LEGAL DEPARTMENT. 649 



to remove manure from the farm, and, in the absence of any custom or 

 established agreement to the contrary, the outgoing tenant has a right 

 to the manure lying in heaps in the barnyard, and may take it away as 

 a personal chattel after the end of the term. (Foshay v. Barnes, 12 

 N. B. R. 450.) 



A covenant not to remove produce, like hay, straw, and manure, from 

 the demised premises is one that, apart from custom, will not — at 

 least as respects hay and straw — be implied, as against the tenant. An 

 undertaking not to remove manure from a farm means manure produced 

 on the farm, and applies to all such manure, though the provender fed 

 to the animals comes from elsewhere. An undertaking not to remove 

 hay, straw, or other dry fodder of the growth of the premises is not 

 restricted to produce which can properly be spoken of as fodder, but 

 applies e\'en to hay unfit as food for cattle. 



A covenant not to sell or remove from a farm during the last year of 

 the term, any hay, straw, or fodder which should arise and grow thereon 

 prevents the tenant from removing during the last year, hay, etc. , which 

 has arisen and grown at any time during the term, and not merely dur- 

 ing the last year. 



BARBED WIRE FENCE. 



By the Municipal Act R. S. O., 1897 c. 223, it is enacted, that : by- 

 laws may be passed by the Councils of the municipalities : — 



For settling the height and description of lawful fences, and for regu- 

 lating and settling the height, description, and manner of maintaining, 

 keeping up, and laying down fences along highways or any part or parts 

 thereof. 



For regulating the height, ^extent, and description of lawful division 

 fences. But until such by-laws are made "The Line Fences Act" (here- 

 tofore mentioned) shall continue applicable to the municipality. 



For providing proper and sufficient protection against injury to per- 

 sons or animals by fences constructed wholly or in part of barbed wire or 

 any other material ; and in towns and cities for wholly prohibiting the 

 construction or erection along streets and public places, or fences made 

 wholly or in part of barbed wire or any other barbed material. 



It will then be seen that a farmer's right to construct barbed wire 

 fences depends upon the by-laws of the municipality in which he lives. 

 It seems that in this country the removal of a fence on a farm from one 

 place to another is not, in itself, as a matter of law, a breach of a covenant 

 to repair and keep fences in repair, and, whether it is so or not, would be 

 a question of fact under the circumstances of each case. When the lessor 

 accepted rent after such a removal, with knowledge of it : Held, a wai\'er 

 of the forfeiture, if any, and that he could not afterwards claim to reenter 

 for the continuance of the fence in its altered position as a breach of the 

 covenant. (Leighton v. Medley, i O. R. 207.) 



