assertion of the owner's right; and as a determination of the tenancy at will, or at sufferance, as the case may be; and if the tenant remain still upon the land it will be regarded as the creation of a new tenancy from which, and not from its original creation, or from a year after it, the statute will run.

There is no doubt upon the evidence that Robb did repeatedly between 1867 and 1879, and up to the latter date, go upon the land as owner, and consult with Lorimer if he did not direct him as to what was to be done in the way of improvements upon the land. For the law up on this point, I need only refer to a passage in the judgment of Lord Denman, in the Exchequer Chamber in l'oe Turner v. Bennett, 9 M. & W. 643:

"The intent of an entry is undoubtedly in many cases important, but in the case of a tenancy at will, whatever be the intent of the landlord, if he do any act upon the land, for which he would otherwise be liable to an action of trespass at the suit of the tenant, such act is a determi) ation of the will, for so only can it be a lawful and not a wrongful act." Or, as it is put in another case, every time he (the owner) puts his foot upon the land. It can make no difference whether Lorimer was tenant at will or at s ifferance, for his mere possession would make the entry of any one, without better title, a trespasser: Asher v. Whitelock, L. R. 1 Q. B. 1.

Some passages in the judgment in Groves v. Groves, 10 Q. B. 486, are apposite to the relations and dealings of Robb and Lorimer. I will quote two of them. Patteson, J., says, page 490: "Here the defendant's title rests merely on the Statute of Limitations; and his acts may well amount to an admission, that during the period in question he was in fact tenant to another."

Erle, J., says: " The question is, whether the estate of the heir-at-law is defeated by certain acts in pais, relied upon by the defendant. The lessor of the plaintiff was clearly entitled, and his title recognized in the plainest way by the defendant. But the defendant's answer is, that he occupied as apparent owner for twenty years. To this the reply is, that the real owner came now and then and lived

with him. If I had been in the place of the jury, I should have held that this shewed that the defendant was in reality tenant at will."

The admission by acts spoken of by one learned Judge, and plain recognition of title spoken of by the other, were not nearly so distinct and unequivocal in that case, as they are in this.

I think further that this case comes within that part of section 5 of "The Real Property Limitations' Act," which provides that the right to make an entry shall be deemed to have first accrued at the last time at which any profits or rent of the land in question has been received. The agreement was in some respects a peculiar one; in other respects not an unusual one. It has, however, these elements: The owner of land puts a person into possession, the person put into possession agreeing with the owner to hold the land from him, and to place upon the land a certain building, and to make upon it other improvements, and that the same should be in lieu of a money payment of rent, and that upon his leaving the land this building and other improvements should be left thereupon, and be and remain with the land the property of the owner. In this case

there was no definite term for which the party put in possession was to have the land, nor was the value of the improvements fixed, nor the time when they were to be made. The parties appear to have had great confidence in each other. The owner was to be at liberty to resume possession whenever he pleased, and the improvements were to be of a certain character; some defined, though not very clearly at first, and others from time to tine as proposed by the one and assented to by the other. The party put into possession and holding the land from the owner stood to him in the relation of tenant, and the owner of the land stood to his tenant in the relation of landlord. I think this must have been the relation of the parties so far. Lorimer understood that he was paying rent and Robb understood that he was receiving rent, or an equivalent for rent; and unquestionably Lorimer was to

give and did give a valuable consideration for that which he received from Robb. Whether it was rent in the legal meaning of the term, or within the meaning of the statute, is another question, and one which I think it is not necessary to decide, because if what was done by Lorimer on Robb's land was a profit received by Robb, it is brought within the terms of the Statute.

I see no necessity for restricting the word "profits" to a periodical return from the land; though that is its most ordinary signification. In a wider sense it means, according to the Imperial Dictionary, "any advantage, any accession of good from labour or exertion." In that sense Robb received profit every time that a building or addition to a building was placed upon his land. The statute does not. define in what shape the profit is to be received. In the case before us, it was received in a very practical shape, viz., by the rendering of the annual value of the land from, nothing to $100. This was the sum at which it was let to the younger Lorimer; and it was the right of Robb at any time during the tenancy of the elder Lorimer to realize a profit, to bring a profit literally into his hands, by evicting his tenant and letting the land to another. He did not do this; but probably did what was better for his own interest and profit, by leaving his tenant from time to time throughout his tenancy to enhance the value of the land by adding one improvement to another upon it, each improvement being a profit to the owner of the land.

Each party to this agreement evidently regarded it in this light. Lorimer putting upon the land improvements equal to what it was worth to rent, and Robb accepting them; each probably having in his mind the common practice in this country of letting land to a tenant, the landlord for a portion of the term, or it may be for the whole of it, receiving compensation by the making of improvements by his tenant. Such agreements are of course usually more definite than was the agreement in this case; but in this case the landlord was sufficiently protected by his power at his will to put an end to the tenancy. The

principle is the same in both cases, the landlord is compensated by the enhanced value of the land; in that shape he receives his profit for its use by his tenant; and it is a present profit from time to time, as the selling and rentable value of the land is increased by each improvement as it is made.

For these reasons I think that the title of Robb to the land in question was not extinguished by the possession of it by Lorimer, and that the appeal fails.

BURTON, J.-This case must turn upon the construction and effect to be given to the Statute of Limitations upon the facts in evidence.

It is admitted that Samuel Lorimer entered into possession of the premises in question in 1867 as tenant at will. The defendant, John Robb, admits "that there was no particular agreement as to what he did going on rent for the land,” adding, that he could not let him have it for nothing, and that he considered the improvements he made more than equal to the rent.

Reading the whole evidence it is manifest that there was no agreement for rent or the performance of any specific repairs, or work, in lieu of rent, but that the defendant Robb believed that the improvements that were made were sufficient compensation for the use of the property, and that the estate of Samuel Lorimer at the commencement was, at most, a tenancy at will.

I am unable to agree that there is any evidence to sustain the finding that the particular improvements were all made after consultation with the landlord. They were made frequently, no doubt, with his knowledge in terms of the original agreement, and he may occasionally have been consulted in reference to them; but to hold that any. thing that subsequently occurred was under a new or distinct agreement, so as to convert what was optional at first into a new agreement to pay rent in work, or constitute a new tenancy, would be, in my view, a perversion of the evidence on both sides.

No such defence is set up or pretended in the answer of the defendant Robb. The tenancy is thus stated

there:

"I told him he could go on and occupy the premises and make such improvements as were necessary, and I would allow him for them; this was, I think in the year 1867. After selling this portion of the said premises to Rymal the residue of the said premises was of little or no value, being swampy, and the flow of the water from the test well required to be drained and utilized to make the premises of value. The said Samuel Lorimer, with my permission, went on and occupied and carried on business thereon, and erected a small shop, in the year 1868, and the following year added thereto and ditched and drained the said premises, and afterwards built a drying-kiln to dry lumber thereon. I looked upon him as my tenant at will, or during my pleasure."

Here

This is somewhat at variance with his evidence. the allegation is, that he, the landlord, would pay for the improvements. The evidence is, that there was no understanding, but that when he required the place Lorimer was to give up possession of the premises, with the improvements upon them, nothing being said about rent or payment for the improvements.

This is what he states about it: Q. Was there any arrangement about that between you and him; was there any understanding between you? A. I don't say there was, but I told him to go on and improve it, for I could do nothing with it. Q. Well now, you say you knew from time to time when he made improvements. A. Yes. Q. Would he make improvements without consulting you or with consulting you, or how would that be? A. I knew what he was doing. And again: Q. Was he occupying for nothing; was he to occupy for nothing? A. For improvements; he was to improve it. Q. You were to get the improvements, you say, whenever he gave it up? A. He told me he would give it to me at any time; he built a brick dry-house. Q. What did that dry-house cost? couldn't tell.

As to the consultations he was asked: Q. Now, did he ever consult you as to what buildings he should put upon

51-VOL. VII A.R.