distinguishable from the present case, in this, that in each case the distress was for rent accrued after the making of the mortgage.

As in my judgment the defendant could not distrain for the rent in question, either in his own right or as bailiff for the mortgagees, it seems unnecessary to go on and consider the other grounds taken on the rule. The verdict should, in my opinion, be entered for the plaintiff, pursuant to the leave reserved.

KILLAM, J.-I concur in the opinion of my brother Taylor, and desire to add but a few words.

Assuming, but not necessarily deciding, that the plaintiff was tenant of the defendant, the rent for which the distress was made accrued before the mortgage from the defendant to the Manitoba Mortgage and Investment Company. By the mortgage the defendant conveyed his reversion to the company and the privity of estate between the plaintiff and defendant being thereby destroyed, there could be no distress. Under such circumstances the right to distrain for former arrears of rent is entirely gone. It cannot be exercised either by the original landlord or by his grantee. This appears from Brown v. The Metropolitan Counties and General Life Assurance Society, 1 E. & E. 832; 28 L. J. Q. B., 236 and from Ognel's Case, 4 Co. 48 Indeed, there is abundance of authority, old and recent, that the grantor of the reversion cannot distrain in his own right. That there is an almost complete lack of authority upon the question of the existence of such a right in the grantee of the reversion in respect of the rents in arrear before the grant to him can be considered due only to the fact that the want of any such right in the assignee was firmly settled. The absence of the right in the grantor was not any less firmly established, but the authorities are numerous, not because this point was ever doubtful, but because the cases have been numerous in which the question has been, whether the landlord had parted with his reversion at the time of the distress. Indeed, from the two cases I have cited the want of such a right in the assignor is shown rather by inference than as being directly considered. One consideration is, however, sufficient to show that the assignee or grantee of the reversion can have no such right. After the statute quia emptores, by which sub-infeudation was prohibited, it became necessary,

when the reversioner or remainderman after an estate for years, for life or in tail, granted away his reversion or remainder, that the particular tenant should attorn to the grantee. Such an attornment was rendered wholly unnecessary by statute 4 Anne c. 16, s. 9; but though, as appears by Gladman v. Plumer, 15 L. J. Q. B. So, a tenant may attorn to the grantee of the reversion or remainder, as from a time long past, so as to enable the grantee to distrain for rents falling due at any previous time after the date at which the tenancy was so acknowledged to have begun, yet the statute of Anne does not assume to create a tenancy from a date preceding the grant of the reversion or remainder, but merely to avoid the necessity of an attornment. It appears, then, as stated in Leith's Blackstone, p. 67, that the assignee can "neither sue nor distrain in his own name for rents overdue before assignment, for at the time it fell due there was no privity of estate between him and the lessee." Such was undoubtedly the law before the statute quia emptores, but what I have said serves to show it more clearly. This gave rise to the practice shown to exist by Smith v. Torr, 3 F. & F. 505, of leaving the conveyance in escrow until past due rents should be paid, in order that the right to distrain for them might remain.

It follows, therefore, that the defendant could not distrain either in his own right or in that of the mortgagees, and that the plaintiff is entitled to a verdict.

McFIE v. HERON.

(IN APPEAL.)

Arrest under capias.-Discharge of bail for delay.

Held. That the Act 48 Vic. c. 17, s. 95, as to proceeding against a defendant arrested under a capias, does not apply where the defendant has been released on bail. In such case the plaintiff has the usual time to take his proceedings.

Chester Glass for plaintiff.

Isaac Campbell, for defendant.

(27th March, 1886.)

KILLAM, J., delivered the judgment of the Court. (a)—

This is an appeal from an order, made by my brother Taylor, that the special bail given by the defendant be vacated, and the bail-bond delivered up to the defendant or his attorney to be cancelled, and that the defendant and his sureties upon the bailbond be released and discharged.

The order was made on the ground that the plaintiff had not proceeded to judgment with all reasonable despatch, in pursuance of section 95 of the Administration of Justice Act, 48 Vic. c. 17. That section provides that, "In case any defendant shall be arrested at the suit of any plaintiff, it shall be the duty of such plaintiff to proceed to judgment, and to charge such defendant in execution, with all reasonable despatch, any law, usage, or custom to the contrary notwithstanding.”

The

The action was begun by a writ of capias ad respondendum, issued on 9th day of May, 1885, under which the defendant was arrested on the 11th May. Special bail was almost immediately put in, but the plaintiff did not declare until the 27th October, being then forced to do so by notice from the defendant. defendant pleaded on the 30th October, issue was joined on the 2nd November, and at the same time notice requiring trial of the issues by a jury and notice of trial for the last Fall Assizes, were given by the plaintiff, but the notice of trial was countermanded on the 5th November.

(a) Present: Wallbridge, C.J., Dubuc, Killam, JJ.

The delay has certainly been very great, and no sufficient excuse is offered therefor. The only question that arises is whether the section is applicable where the defendant is cut on bail.

The enactment is first found in 41 Vic. c. 8. That statute is intituled "An Act respecting debtors in close custody other than judgment debtors." It begins with the preamble, "Whereas a debtor arrested for debt and unable to give bail may, as the law now is, if the creditor does not proceed to judgment and charge the debtor with process in execution, be kept in close custody for a year, although the debtor may be insolvent and have nothing to discharge his said indebtedness with; and whereas imprisonment under such circumstances, in the absence of fraud, is contrary to the spirit of the age."

Section 1 then provides, "In case any debtor shall be arrested at the suit of any creditor, it shall be the duty of such creditor to proceed to judgment, and to charge such debtor in execution, with all reasonable despatch, any law, usage or custom to the contrary notwithstanding." And by section 2, "In case any creditor shall not so proceed, or in case any debtor arrested at the suit of any creditor is, at the time of the passing of this Act in close custody, or in case any debtor hereafter arrested at the suit of any creditor, shall for want of bail, be in close custody, it shall be lawful for any such debtor to apply for his enlargement under and subject to the provisions of 38th Victoria, chapter five, sections fifty-five, fifty-six and fiftyseven; and thereupon the court or any judge may enlarge such debtor, either on his own recognizes and upon such terms and conditions as shall, under the circumstances disclosed, appear proper and just, or absolutely discharge him from custody, as provided in the said section in respect of a judgment debtor."' With slight changes these provisions are found in the Consolidated Statutes, c. 37, ss. 92, 93. The principal changes are, omission of the preamble, the substitution of the words "plaintiff" and "defendant " for "creditor" and "debtor," respectively, the substitution of the word "recognizance" for "recognizes" and of sections 91 and 92 of the same Act for sections 55, 56 and 57 of 38 Vic. c. 5.

the

The words " charge in execution" in their technical sense are not applicable to the issue of execution against a party who

has been arrested and released on bail; they had reference only to the issue of execution against a party held in close custody under mesne process. Hesketh v. Ward, 17 U. C. C. P. 696. This view would seem to show that section 1 of the Act 41 Vic. c. 8, section 92 of the Con. Stat., c. 37, and section 95 of the Act 48 Vic. c. 17 have reference only to defendants in close custody.

If we look at section 2 of 41 Vic. c. 8, we see two cases provided for, that of a failure on the part of the plaintiff to proceed as required by section 1, and the case of a debtor being in close custody for want of bail. There is evidently not a clear distinction drawn here. The first section is clearly adapted to include the case of the debtor being in close custody for want of bail, even if it could be considered to refer as well to a debtor released on bail; the second alternative may refer to a case in which the creditor has failed to proceed with despatch while the debtor remains in close custody, as well as to cases where he has not so failed. As, in neither view, are the two alternatives wholly distinct, there is really no guide here furnished for the construction of the first section. The effect is to include within the operation of the second section cases in which the creditor is in no default, while the debtor is held in close custody.

The word "enlarge" is properly applicable only to the release of a party held in close custody. The words "discharge from custody" may refer to discharge from close custody or from the implied custody in which a defendant still is when he has given a bail-bond to the sheriff, but I do not see how they can be applied where the defendant has given bail to the action and is at large.

There is thus no clear indication in the second section that the first section has any wider application than that to which the expression "charge in execution" would seem to confine it, but the second section seems itself applicable only where the defendant is in close custody. The title and the preamble of the Act would seem to indicate that the mischief sought to be corrected by the Act was the keeping of a debtor an unreasonable length of time in close custody when he was insolvent and unable to give bail. The words "charge in execution" are plainly used in their technical sense in the preamble, thus serving to show their meaning in the first section.