[HANNEN, J.-I certainly thought that it was not a case for costs. The plaintiff's case created an unfavourable impression on my mind. I thought that the action was a frivolous one, and that the damages were excessive.]

The provision in section 5. is intended to include all actions, whether within the jurisdiction of the county court or not. If the plaintiff brings the action in the superior Court, and recovers a sum not exceeding 10, he is not to get his costs unless the Judge grants his certificate. If he is asked to do so and refuses, the plaintiff has no remedy. The words "action of tort" must include an action of slander. The 4th section, referring to the sale of ale, beer, &c., prohibits any action being brought in any court, superior court or county court.

Anderson, in support of the rule.-It cannot be alleged that the plaintiff was not justified in bringing the action. The damages which he has recovered are substantial damages. If he could have brought the action in the county court, there might be some ground for saying that the 5th section would apply; but, by section 58. of the 9 & 10 Vict. c. 95, no action of slander can be brought in the county court.

[COCKBURN, C.J.-It may be that the legislature intended that such actions should not be brought at all, unless there was a substantial cause of action; but I doubt whether section 5. applies. The intention was to drive all actions of minor importance into the county court; but that can hardly be said to apply to an action of slander, which cannot be brought in the county court at all.]

It is submitted that the plaintiff is clearly entitled to have his costs taxed by the Master.

Cur, adv. vult.

The judgment of the Court (1) was now delivered by

HAYES, J.-This was a case relating to the effect of the late County Court Act, 30 & 31 Vict. c. 142, upon the costs of actions brought in the superior court; but

(1) Cockburn, C.J., Hannen, J. and Hayes, J.

as this action was commenced after the passing of that act, and was tried after it had come into operation, the question stood clear of the provisions of the previous statutes, and depended entirely upon the construction of the 5th section of the late

act.

The action was for slander, and was commenced in October, 1867, and tried at the sittings for Middlesex after last Trinity Term, before our Brother Hannen, when the plaintiff obtained a verdict for 107. The learned Judge declined to certify, and the plaintiff, having applied for costs to a Judge at chambers, who referred the question to the Court, a rule for the allowance of the plaintiff's costs was obtained and argued in last term.

The prominent point discussed in the case was, that the plaintiff had no power of suing the defendant for this cause of action in the county court, the 58th section of the 9 & 10 Vict. c. 95, which excludes the county court from original jurisdiction in slander, being still in force; and although by the 10th section of the late act a defendant is enabled to apply, under certain circumstances, to have such an action remitted for trial to the county court, no such application was made, and consequently the plaintiff was obliged to proceed to trial in the superior Court, or abandon his action altogether.

Under the elaborate enactments of the previous County Court Acts, the liability of plaintiffs to the loss of costs for proceeding in the superior Courts was carefully confined to cases in which the county courts had jurisdiction-(see 9 & 10 Vict. c. 95. s. 129, 13 & 14 Vict. c. 61. ss. 11, 12, 13, and 15 & 16 Vict. c. 54. s. 5).

Indeed, the very object and intention of such provisions hitherto has uniformly been to further the jurisdiction of the inferior court, by practically compelling plaintiffs to sue there for causes of action within its jurisdiction. And it is obviously quite beside the general object of a County Court Act, to subject plaintiffs to the loss of costs for suing in the superior Courts for causes of action which could not be sued for elsewhere. What now gives rise to the question in this case is, that all the former enactments above mentioned, which expressly

preserved the plaintiff's right to costs in cases in which the county courts had no jurisdiction, were repealed by the late act, section 33, Schedule C., and in lieu of the repealed enactments the right to costs is now governed by the brief provision contained in the 5th section of the late act, which is as follows: "If in any action commenced after the passing of this act in any of Her Majesty's superior Courts of record, the plaintiff shall recover a sum not exceeding 207. if the action is founded on contract, or 101. if founded on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit unless the Judge certify on the record that there was sufficient reason for bringing such action in such superior Court, or unless the Court, or a Judge at chambers, shall, by rule or order, allow such costs."

The general and comprehensive words of the earlier part of this section would certainly appear capable of embracing a case like the present; and it was contended, on behalf of the defendant, that they did so, and that, as the learned Judge at the trial had declined to certify under the 5th section, the Court would not now review his decision. But it is to be observed that the jurisdiction given to the Judge at the trial, and that given to the Court or a Judge at chambers, are separate and distinct. The Judge, at the trial, is empowered to certify on a single point, namely, whether there was sufficient reason for bringing the action in the superior Court. The power given to the Court, or a Judge at chambers, is generally to allow the plaintiff his costs. The words relating to the certificate of the Judge at the trial, are taken from those of the enactment previously in force on this point, which was contained in the 12th section of the 13 & 14 Vict. c. 61; and it is clear that they were there intended to apply to those cases only in which the county court had jurisdiction, but in which, nevertheless, it was reasonable that the plaintiffs should sue in the superior Court. This is, in effect, the natural import of such a form of certificate, which is appropriate to express an option and reasonable election of the plaintiff to sue in the superior Court, as contrasted with the county court, but appears

quite inappropriate to refer to a case in which the plaintiff had no option, but was compelled to sue in the superior Court or not to sue at all. It appears to us that the certificate was intended to have the same meaning and application in the section now before us as a similar certificate had, under the 13 & 14 Vict. c. 61. s. 12. And if this be so, it seems to give rise to much doubt whether the 5th section of the late act was really intended to have any application to cases in which the county court had no jurisdiction. If, however, it was intended to apply to such cases, the general authority given to the Court or a Judge to allow the plaintiff his costs, would, at all events, enable them to do so in cases of this nature, where it appeared proper to make such allowance.

In making such allowance, we should not be reviewing or interfering with the discretion exercised by the Judge at the trial, who merely declined to give, in this case, a certificate which was not properly applicable to it, but was only applicable to cases in which the county court had jurisdiction. And as it is plain that the legislature intended that plaintiffs who had the power of suing in the county court, but elected, on reasonable grounds, to sue in the superior court, were to be allowed their costs, it seems impossible to suppose that it was intended that such allowance should not be made to plaintiffs who had no such election, and whose only remedy was in the superior Court. We think, therefore, that as, in the present case, the plaintiff has recovered an amount much beyond what would have entitled him to costs under the general law applicable to actions for slander in the superior Court, and as he could not have sued elsewhere, that he ought to be allowed his costs in this action, and therefore that the rule should be made absolute.

Rule absolute with costs.

Attorneys—G. E. Carpenter, for plaintiff; Herbert Lloyd & Lane, for defendant.

Mortgagor and Mortgagee-Mortgagor in Possession-Attornment to Mortgagee by Deed not executed by Mortgagee -Power to Distrain-Tenancy by Estoppel-Bills of Sale Act, 17 & 18 Vict. c. 36. s. 7.Statute of Frauds.

B, in consideration of advances from the defendants (his bankers), conveyed to them two pieces of ground by a deed reciting that one. portion was already mortgaged in fee, upon trust for the sale of the land and application of the purchase-money. By the terms of the deed B, as a further security for the principal and interest for the time being due from him in respect of the advances, attorned and became tenant to the defendants, their heirs and assigns, at and from the date of the deed, of such of the hereditaments and premises thereby conveyed "as was or were in his occupation, for and during the term of ten years," if that security should so long continue, "at and under the yearly rent of 800l., to be paid yearly on every 1st day of October in every year, the first yearly rent to be paid and payable on the 1st day of October then next; provided that notwithstanding anything therein contained, and without any notice or demand of possession, it should be lawful for the defendants, their heirs, executors, administrators or assigns, upon or after the execution of the trusts of sale therein contained, to enter into and upon the mortgaged premises or any part thereof, and to eject B. and any tenant or person claiming or to claim under him therefrom, and to determine the term of ten years, notwithstanding any lease or leases that might have been granted by B." This deed was not executed by the defendants, the mortgagees, but B. continued his exclusive occupation of the premises until the defendants distrained upon him for arrears of rent, no rent having been paid by him:-Held, affirming the judgment of the Court of Queen's Bench, that B. having executed the deed, and the defendants having assented to it by advancing money to him under it, he became tenant at will to them, either by estoppel or by the NEW SERIES, 38.-Q.B.

For the purposes of this report the following extracts from the special case will be sufficient.

The action was brought by the assignees of John Brown, a bankrupt, to recover damages for an alleged illegal distress by the defendants.

John Brown was devisee with two other persons of certain premises, called the Rivet Manufactory, upon certain trusts in the will mentioned, and was also seised in fee of other premises, called the Rolling Mills. By indenture, dated the 30th of May, 1862, he conveyed the Rolling Mills to Frederick Horn, in consideration of 1,500l. paid to him by Horn, to the use of Horn, his heirs and assigns for ever, subject to the proviso for redemption, and with the power of sale, in the indenture mentioned.

The defendants were the bankers of John Brown, who was indebted to them, on the 8th of September, 1866, on the balance of his banking account in or about the sum of 1,300l., and they subsequently made further advances to him to the amount of about 1,6497. 10s., in part of a sum of 1,8007.,which they had agreed to advance to him; and by an indenture, dated the 12th of September, 1866, made between the said John Brown of the first part and the defendants of the second part, reciting the indenture of the 30th of May, 1865, and an indenture of further charge to Horn of 1,000. upon the premises included in the last-mentioned mortgage, and reciting that under the will before mentioned, subject as therein mentioned, he was entitled in fee to one undivided moiety of all the real estate devised by the will, except, &c., and including in such real estate the Rivet Manufactory, and reciting that part

M

of that real estate devised by the will (which part included the Rivet Manufactory) had by agreement and arrangement with the trustees and other parties beneficially interested in the will, been for some time and then was in the exclusive possession of John Brown, he conveyed to the defendants, in consideration of their refraining from taking proceedings against him for the balance, and of their making further advances to him, the Rolling Mills and the undivided moiety and all other share, beneficial estate and interest of him, John Brown, of and in the Rivet Manufactory, to have and to hold the land, &c. unto the defendants, their heirs, &c., according to the different natures or tenures thereof respectively, upon trust, &c.; "and as a further security for the principal and interest moneys for the time being due from John Brown, he did thereby attorn and become tenant to the defendants, their heirs and assigns, at and from the date of the last-mentioned indenture, of such of the hereditaments and premises thereby granted or otherwise conveyed as was or were in his occupation, for and during the term of ten years, if that security should so long continue, at and under the yearly rent of 800l. to be paid yearly on every 1st day of October in every year, the first yearly rent to be paid and payable on the 1st day of October then next; provided that notwithstanding anything therein contained, and without any notice or demand of possession, it should be lawful for the defendants, their heirs, &c., before or after the execution of the trusts of sale therein contained, to enter into and upon the mortgaged premises, or any part thereof, and to eject John Brown and any tenant or person claiming or to claim under him therefrom, and to determine the term of ten years, notwithstanding any lease or leases that might have been granted by the said John Brown.

This indenture made the 12th day of September, 1866, was executed by John Brown on that day, but it was never executed by the defendants; nor was it ever registered as a bill of sale or otherwise.

The further advances were made by the defendants, and John Brown continued his exclusive occupation of the Rolling Mills and of the Rivet Manufactory.

On the 15th of October, 1866, the defendants distrained for a year's rent (no rent having been paid) upon the goods and chattels which were upon those two sets of premises. In order to get rid of the distress, payment was made by the plaintiffs under protest, upon which the defendants withdrew.

The question was, whether the distress was legal; if it was not, the plaintiffs were to recover the money so paid by them to get rid of the distress.

The Court below gave judgment for the defendants, holding that the non-execution of the deed by the defendants was no objection to the right to distrain, as the effect of that deed was to create, not a term of years, but a tenancy at will; and secondly, that John Brown was estopped from denying that the relation of landlord and tenant existed between himself and the defendants.

Joshua Williams (Manisty with him), for the plaintiffs.-The judgment of the Court of Queen's Bench was wrong on both points. The first question is, whether Brown was tenant at will? It is submitted that he was not. The intention of the parties was to create an estate for ten years; the deed speaks of such a term; if they had intended that Brown should be a tenant at will they would have said so. In Bac. Abr. tit. 'Lease,' (L.) 3, citing Bro. Abr. tit. 'Lease,' 13, 22, it is said, "If one makes a lease for ten years at the will of the lessor, this is a good lease for ten years certain, and the last words are void for the repugnancy." That is like the present case, but stronger because there were the words "at the will of the lessor." A term of years is so called because there is a terminus beyond which it cannot go. If a tenancy at will had been created, it is obvious that at the end of the term there would be the same estate as before, i. e., a tenancy at will, but at the end of this term Brown would be a tenant at sufferance until he paid rent so as to become something more-see Co. Litt. 57 b. That it was not the intention of the parties that at the death of the lessors the estate should determine, is shewn by the attornment of Brown to the defendants, "their heirs and assigns." An estate at will would determine upon the death of the lessors, and so if the lessor makes a present lease

to another-Disdale v. Iles (1). Again, it is to be observed that power is given to the mortgagees to determine the term of ten years, notwithstanding any lease or leases that might have been granted by Brown. That is inconsistent with his being a tenant at will, for a tenant at will who grants a lease determines the estate at will, if the granting of the lease be made known to the lessor-Pinhorn v. Souster (2), Watkins on Conveyancing, p. 1, and Blunden v. Baugh (3). Further, the provision in the deed that the estate is to be determined by entry solely, is inconsistent with the notion that it was intended to be an estate at will.

[KELLY, C.B.-Looking at the estate rebus sic stantibus, there being no execution of the deed by the defendants, how can it be said that anything more than an estate at will was created?]

At law, there is no tenancy at all. Secondly, as the defendants did not execute the instrument, there was no deed as required by 8 & 9 Vict. c. 106. s. 3, and there being no term there could be no power to distrain.

[CLEASBY, B.-But if there is no deed there would be a tenancy at will.]

Not a tenancy at will at the rent of 8007.

If the parties intended that a term should be created at that rent, and Brown did not get the term, he cannot be liable to pay the rent.

[CLEASBY, B.-He attorned to the defendants at that rent.]

Swatman v. Ambler (4) shews that the lessee is not bound until the lessor has executed, he never having received the consideration for which he has stipulated.

[KELLY, C.B. In that case the demise was of an incorporeal hereditament, the tolls of a navigation. BYLES, J.-There was not any attornment, as there is in this case. KELLY, C.B.And where the demise is

(1) 2 Lev. 88; see also Newport's case, Skinner, 421.

(2) 8 Exch. Rep. 763; s. c. 22 Law J. Rep. (N.S.) Exch. 266.

(3) Cro. Car. 302.

(4) 8 Exch. Rep. 72; s. c. 22 Law J. Rep. (N.8.) Exch. 81.

of a corporeal hereditament the tenancy may be created by attornment.]

The decision did not proceed upon the ground of the hereditament being an incorporeal one, but upon the ground that the lessee had not got what he stipulated for, and the Court thought that the principle of the judgment in Pitman v. Woodbury (5) applied. Here Brown did not get the estate for ten years, which he had agreed for. He had attorned to the defendants at the rent for a term of ten years, but as he did not get the term he is not liable for the rent.

[BYLES, J.-The only way of carrying out the intention of the parties is to construe it as the Court of Queen's Bench did. An attornment is as strong as payment of rent would be.]

In West v. Fritch (6) Parke, B. said (see the report, 18 Law Journal Reports, 50), "The deed not having been executed by the mortgagee, it cannot operate as a lease." There the mortgagor had paid rent. Further, it is submitted that to create a demise there must be an act of the landlord. As to the effect of entry under a void lease coupled with payment of rent, see Cole on Ejectment, 450. Next, the ground upon which the Court of Queen's Bench gave judgment, viz., that there was an estoppel, is incorrect. It is a principle of law that where the truth appears from the instrument there can be no estoppel-see Co. Litt. 352 b, "Where the veritie is apparent in the same record, there the adverse party shall not be estopped to take advantage of the truth, for he cannot be estopped to allege the truth where the truth appeareth of record." It here appears that, as to the Rolling Mills, Brown was tenant to Horn, and, as to the Rivet Manufactory, to the trustees. The defendants have not the legal estate. That being so, he cannot be estopped from disputing the tenancy under the defendants. The case of Pargeter v. Harris (7) is inconsistent with the judgment of the Court of Queen's Bench.

(5) 3 Exch. Rep. 4.

(6) 3 Exch. Rep. 216; s. c. 18 Law J. Rep. (N.S.) Exch. 50.

(7) 7 Q.B. Rep. 708; s. c. 15 Law J. Rep. (N.S.) Q.B. 113.