execution creditors of Coulter getting anything out of his crops for that year, and that it was not the intention of the parties to create a real tenancy between them. It was held that the lease relied upon by the plaintiffs could not be deemed to have been intended as a bona fide one, and that the relation of landlord and tenant was not validly created thereby so as to affect third parties (7).

And in another case where the facts were similar to those in the preceding case, except that the lease relied on bore date 21st December, 1894. and purported to let the land until 1st November, 1895, at a rental of $705 payable 1st January, 1895, and that evidence was given that the plaintiffs had insisted on the lease being signed on pain of eviction and sale of the property, but there was no evidence that plaintiffs had notice of Murray's financial difficulties, it was held that the lease was void against execution creditors on account of the excessive amount fixed for the rent (8).

A mortgagee may distrain on the mortgagor for rent reserved upon an attornment in the mortgage deed, whether such rent be payable in advance or not, and even where the mortgagee has not executed the deed, if the tenancy be at will only, or for a term not exceeding three years (9). The rental reserved under a tenancy created between the mortgagor and mortgagee need not be of a sum which would go in reduction of interest alone, but may be of a sum equal in amount to the stipulated instalment of both principal

(7) The Imperial Loan & Investment Co. v. Clement, Re Coulter II Man. R. 428.

(8) Imperial Loan & Investment Co. v. Clement, Re Murray (1897) II Man. R. 145; Hobbs v. Ontario Loan & Debenture Co. (1890) 18 Can. S.C. R. 483 followed.

(9) Morton v. Woods, L.R. 3 Q.B. 658.

and interest (10), with the qualification before mentioned that to be valid as to third parties the amount of rent must not be unreasonable and excessive (11); and although a distress be made nominally for interest, the mortgagees may justify the taking on the ground that an instalment of principal was in arrear (12).

Termination of tenancy.-If no rent has been fixed for the period subsequent to the time at which the mortgage matures, the tenancy created by an attornment clause reserving a rental equivalent to the interest stipulated for in the proviso for re-payment will terminate with the last instalment which the mortgagor thereby contracted to pay; and under the Statute of Anne (13) a distress cannot be made if more than six months has elapsed after the expiration of the tenancy (14).

Where there is an attornment clause reserving a rental equivalent to the mortgage interest, a mortgagor who continues in possession after the mortgage has matured, and who has not contracted to pay interest thereafter, becomes a tenant at sufferance, and is no longer a tenant at the rental fixed by the mortgage. The interest after maturity in such a case is recoverable as damages only and not as a matter of contract, and it becomes necessary to prove a new fixation of the rental between the mortgagor and the mortgagee

(10) McDonell v. Building & Loan Ass'n (1886) 10 Ont. R. 580. (11) Hobbs v. Ontario Loan & Debenture Co. (1890) 18 Can. S.C.R. 483.

(12) McDonell v. Building & Loan Ass'n (1886) 10 Ont. R. 580. (13) 8 Anne, c. 14.

(14) Klinck v. Ontario Industrial Loan Co. (1888) 16 Ont. R. 562, 565.

in order to continue in force the right of distress incident to the original attornment (15).

License to distrain for interest in arrear. It is customary to insert in land mortgages a proviso that if the mortgagor shall make default in payment of interest it shall be lawful for the mortgagee or his assigns to distrain therefor upon the mortgaged lands and premises, or any part thereof, and, by distress warrant, to recover by way of rent reserved, as in the case of a demise of the said lands and premises, so much of such interest as shall, from time to time, be, or remain in arrear and unpaid, together with all costs, charges and expenses attending such levy or distress, as in like cases of distress for rent.

Such a power of distress is, by virtue of the Ontario Short Forms of Mortgages Act (16), conferred under a clause in any mortgage expressed to be made pursuant to that Act as follows:

"Provided that the mortgagee may distrain for "arrears of interest."

This proviso may be included in the mortgage, whether or not there is an attornment clause creating the relationship of landlord and tenant, but in the absence of any attornment clause, or even where there is an attornment clause but no rental is expressly reserved, the mortgagee can distrain only to the extent to which the mortgagor has by the proviso contracted that the mortgagee shall have such privilege, and with respect to such goods and chattels only as the mortgagor is the owner and entitled to

(15) Klinck v. Ontario Industrial Loan Co. (1888) 16 Ont. R. 562; Bickle v. Beatty 17 U.C.R. 469; Clowes v. Hughes, L.R. 5 Exch. 160. (16) R.S.O. 1897, c. 126.

encumber with such a license of distraint (17). What is to be recovered by the distress under the distress clause in the Ontario Short Forms Act is not rent but interest eo nomine; and, although the recovery is to be 'by way of rent reserved,' the interest is not, as soon as it gets into arrear, to be considered as rent reserved. The words by way of rent reserved' are not used in connection with the interest, but with the mode of recovering it (18).

Where there is no rent reserved, a power of distress given by the contract between the parties for arrears of interest will not give the mortgagee a right to claim priority as against a seizure under execution against the mortgagor made before any levy under the stipulated power (19).

In Ontario the right of a mortgagee to distrain on the mortgagor's goods is governed by the following statutory provisions :

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The right of a mortgagee to distrain for interest "in arrear upon a mortgage, shall be limited to the goods and chattels of the mortgagor, and as to such "goods and chattels, to such only as are not exempt 'from seizure under execution. This section shall "not apply to mortgages existing on the 25th day of March, 1886" (20).

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As against creditors of any mortgagor or person "in possession of mortgaged premises under a "mortgagor, the right, if any, to distrain upon the

(17) Laing v. Ontario Loan & Savings Co. 46 U.C.R. 114; Doe d. Wilkinson v. Goodier 10 Q. B. 957.

(18) Trust & Loan Co. v. Lawrason (1882) 10 Can. S.C.R. 679, 701, per Strong, J.; Royal Canadian Bank v. Kelly 22 U.C C.P. 279 considered.

(19) Trust & Loan Co. v. Lawrason (1882) 10 Can. S.C.R. 679. (20) R.S.O. 1897, c. 121, S. 15.

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mortgaged premises for arrears of interest, or for "rent in the nature of or in lieu of interest, under the "provisions of any mortgage executed after the 23rd day of April, 1887, shall be restricted to one year's "arrears of such interest or rent, but this restriction shall not apply unless some one of such creditors shall be an execution creditor, or unless there shall "be an assignee for the general benefit of such "creditors appointed before lawful sale of the goods "distrained, nor unless the officer executing such writ of execution, or such assignee shall, by notice in writing "to be given to the person distraining, or his attorney, bailiff, or agent, before such lawful sale, claim the "benefit of the said restriction, and in case such notice "is so given, the distrainor shall relinquish to the "officer or assignee the goods distrained, upon receiv"ing one year's arrears of such interest or rent and his reasonable costs of distress, or if such arrears and "costs shall not be paid or tendered he shall sell only "so much of the goods distrained as shall be necessary "to satisfy one year's arrears of such interest or rent "and the reasonable costs of distress and sale, and "shall thereupon relinquish any residue of goods, and "pay any residue of moneys, proceeds of goods so distrained, to the said officer or assignee."

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Any officer executing a writ of execution, or an assignee, who shall pay any money to relieve goods "from distress under the next preceding subsection, I shall be entitled to reimburse himself therefor out of "the proceeds of the sale of such goods."

Goods distrained for arrears of interest or rent, "as aforesaid, shall not be sold except after such public "notice as is now required to be given by a landlord "who sells goods distrained for rent" (21).

(21) R.S.O. 1897, c. 121, s. 16.