solicitor in Brandon who does your business out here. Please attend to it by return mail, and write me who to go to." This is not proposing another agreement, nor even varying the terms of the one proposed by the defendant, it was only suggesting another mode of carrying out those terms. And he gives a good reason for desiring another mode, because it was not safe for him to send the three notes he had in hand to a man unknown to him. And the mode he so suggests is much more reasonable. He does not ask the defendant to surrender any security or any thing else he may have in his hands; but only to write to his solicitor in Brandon to settle the matter with him. And on receiving this letter, the defendant did nothing further. He should have acted on the suggestion, or written that he objected to it.

I think, therefore, that the averment in the plea on equitable grounds, alleging that the plaintiff has refused to comply with the terms of the agreement set forth in said plea, has not been proven.

In my opinion the verdict should stand, and the rule should be discharged with costs.

DAUPHINAIS v. CLARK.

(IN APPEAL.)

Replevin.-Distress for rent.—Mortgagee.

In an action of replevin, the defendant avowed the taking as distress for rent. Held, That the plea of non tenuit put in issue, not merely the demise pleaded, but whether the plaintiff was tenant to the avowant at the time of distress. The rule as to a tenant not being permitted to deny the landlord's title applies only where the tenant obtained possession from the landlord. Where a person having been in possession is persuaded to attorn under circumstances which do not warrant it, he may show that the rent was paid without sufficient ground.

After rent became due, the lessor mortgaged the property.

Held, That the mortgagor could not distrain, because he had parted with the reversion; nor could the mortgagee, because the rent was not due to him.

C. P. Wilson for plaintiff.

H. M. Howell, Q. C., for defendant.

[18th May, 1885.]

TAYLOR, J.-This is an action of replevin, in which the defendant avows the taking of the goods in question as a distress for rent in arrear, due to him from the plaintiff as his tenant at a yearly rent of a close in the parish of St. Francois Xavier, in the county of Marquette. To this the plaintiff replies, that he did not hold the said close as tenant thereof to the defendant as alleged, and that no part of the rent in the avowry mentioned was in arrear from the plaintiff to the defendant.

The issue was tried by the Chief Justice without a jury, and judgment was reserved. Afterwards he ordered a nonsuit to be entered, but reserved leave to move to enter a verdict for the plaintiff. The learned Chief Justice, when giving judgment, said he would allow the defendant to amend, if he desired, and avow the taking of the distress as agent for the mortgagees of the land. No such amendment was asked for, or allowed, at the trial.

The plaintiff, in Trinity Term, obtained a rule calling upon the defendant to show cause why the nonsuit should not be

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set aside and a verdict entered for the plaintiff pursuant to leave reserved, or a new trial had, upon the grounds: that no tenancy existed between the plaintiff and defendant, there being at most only an agreement for a lease; that if there was a tenancy the distress should not have been made, owing to the reversion having been granted, by way of mortgage, subsequent to the alleged demise; that if a distress could have been made, it should have been made and avowed for as a distress on behalf of the mortgagees; that no proper or regular distress was proven at the trial; and that at the time of the alleged attornment the defendant had only an equitable title to the land. Another ground taken by the rule was abandoned at the argument, which was heard during Hilary Term.

At the trial no evidence was given on the part of the plaintiff. From the evidence for the defendant, it appears that some years ago he applied to the government for a patent to the land in question. This application was opposed by the plaintiff, but the government recognized the defendant's claim to the land. The defendant having to be absent from the country for a time. assigned his interest in the land to his brother, F. J. Clarke. In August, 1881, the defendant went to the land, of which plaintiff was then and for many years had been in possession, and he says he then notified the plaintiff that he must do one or other of three things, or he would eject him-leave immediately, purchase the property, or pay rent. A few days after, plaintiff came to defendant's office in Winnipeg, and agreed, according to the defendant, to pay for the property $250 a year from the 1st of August, 1881. This rent was, the defendant says, to be paid when the plaintiff's crop was out of the ground. The rent would thus, according to the arrangement sworn to by the defendant, fall due sometime in the autumn of 1882. On the 15th of April, 1882, the patent in the land issued to F. J. Clarke. On the 8th of January, 1883, the defendant mortgaged the land to the Manitoba Mortgage and Investment Company, and on the 20th of the same month F. J. Clarke conveyed to the defendant. In April, 1883, the distress complained of was issued, and the plaintiff's cattle distrained upon.

On the argument for the rule, it was urged on behalf of the defendant, that the plaintiff being the tenant of the defendant could not deny his landlord's title, and that at all events he could

not do so under the pleas pleaded to the defendants' avowry. But the Court of Queen's Bench in Ontario, in Elsworth v. Brice, 18 U. C. Q. B. 441, decided that the plea of non tenuit puts in issue not merely the demise pleaded, but whether the plaintiff was tenant to the avowant at the time of the distress. That case followed Hopcraft v. Keys, 9 Bing. 613, in which the same point was decided.

In numerous English cases it has been decided that the rule as to a tenant not being permitted to deny the landlord's title, applies only where the tenant obtained the possession of the land from the person distraining as landlord. Thus in Rodgers v. Pitcher, 6 Taunt. 202, it was held that where the plaintiff did not originally receive possession of the land from the avowant, it is competent for him to rebut the title of the avowant by showing that he paid rent under circumstances which did not entitle the avowant to the rent, and that such evidence may be given on the issue non tenuit modo et forma. Dallas, J., said, "The rule is clear, that generally a tenant cannot dispute his landlord's title; but here it comes to the question, whether after a person has been in possession under another lessor, if he is persuaded to attorn under circumstances which do not warrant it, it may not be open to him to prove that the rent was paid without sufficient ground, and I think it is."

That case was followed in Gregory v. Doidge, 3 Bing. 474. There the plaintiff occupied lands under one Beare, who died. The defendant Doidge disputed with another claimant the possession of the land, and his brother induced the plaintiff to pay Is. as an acknowledgment of defendant's title. In an action of replevin the judge entered a verdict for the defendant, but reserved leave to the plaintiff to move to enter a verdict for himself, if the Court should be of opinion that after the acknowledgment he could dispute the defendant's title on a plea of non tenuit, the only plea to the avowry, and the Court were clearly of opinion that the plaintiff having come into possession under a former owner, and having entered into the agreement in ignorance of a defect in the defendant's title, might show that the defendant was not his landlord. And in Doe d. Higginbotham v. Barton, 11 A. & E., Lord Denman said, at p. 312, "The rule is fully established that the tenant cannot deny that the person by whom he was put into possession had title at that time,

but he may show that such title is determined. With respect to the title of a person to whom the tenant has paid rent, but by whom he was not let into possession, he is not concluded by such payment of rent if he can show that it was paid under a mistake." The present case is one even stronger in favour of the plaintiff than any of these English cases, for he was neither put into possession by the defendant, nor has he paid any rent to him.

It does not seem to me that the defendant could distrain for the rent in this case even if the plaintiff were held to be his tenant, because he had before he did so, parted with his reversion by mortgaging the land to the Loan Company. See Staveley v. Allcock, 16 Q. B. 636, and Parmenter v. Webber, 8 Taunt. 593. The rent in arrear at the time of the assignment of the reversion became severed from it and was a mere chose in action.

Even if the amendment which the Chief Justice was willing to allow, were made, and the defendant should seek to justify the distress as bailiff for the mortgagees, it would not help his position.

There is no doubt a mortgagee, after giving notice of the mortgage to the tenant in possession under a lease or tenancy created prior to the mortgage may distrain for rent in arrear and unpaid at the time of the notice, as well as for rent which may accrue after such notice, but the authorities show that he can do so only for rent which has accrued due since the making of the mortgage. Thus in Pope v. Biggs, 9 B. & C. 245, it was held that by force of the statute 4th Anne, c. 16, the notice operates as an attornment of the tenants, and when they attorn they become tenants to the mortgagee, and at common law that attornment would have relation back to the grant, so as to entitle the mortgagee to all the rents from the time the deed was executed. Here the rent was due before the making of the mortgage deed, and Flight v. Bentley, 7 Sim. 149, is an express authority that the assignee of a reversion is not entitled to arrears of rent which became due prior to the assignment.

The cases of Trent v. Hunt, 9 Ex. 14, and Snell v. Finch, 13 C. B. N. S. 651, in which it was held that so long as the mortgagor is allowed by the mortgagee to remain in receipt of the rents and profits of the mortgaged premises he may collect the rents and justify a distress as bailiff for the mortgagees, are