WILLES, J.-I am of the same opinion. The title to the land could not possibly come in question here. If the plaint had been for a trespass in removing the plaintiff from the land, and the defendants had justified under a plea in the nature of molliter manus imposuerunt, then the right to the possession of the land might have come in question. But that is not what was done here. The plaintiff was not requested to leave the land, but he was taken into custody on a charge of stealing a chattel belonging to one of the defendants on the land. The county court judge might well entertain the complaint, even though incidentally the plaintiff thought fit to assert that the defendants had no title: Dutens v. Roberts, 1 H. Bla. 100.(a) But it does not appear that he had any intention to do so.

BYLES, J.-I also am of opinion that this rule should be made absolute. Upon the affidavit used before me at Chambers, it appeared that the title of Edward Newman to the land was denied before the magistrate, and he was thereby induced to dismiss the charge. The probability that the same question would be raised before the county court induced me to make the order. Upon consideration, however, it does not appear to me that any question of title could arise, and therefore there is no ground for a prohibition. Rule absolute.

(a) Cited post, p. 432.

*In the Matter of a Plaint between EMERY and BARNETT.

May 6.

[*423

A mere assertion of title will not oust the jurisdiction of the county court: the title must be bonâ fide brought into question.

A. was let into possession of premises as tenant to B., and paid him rent. C. claiming title, A. gave up possession to him in consideration of a sum for crops. In an action in the county court by B. against A., to recover arrears of rent, and also possession of the premises,-Held, that whether C.'s title could be set up or not, depended upon whether A. had been evicted by title paramount, or had voluntarily yielded up possession.

ON the 31st of March, 1858, a plaint was entered in the county court of Shropshire holden at Market Drayton, and a summons thereon served for hearing on the 12th of April, in which William Emery was plaintiff and John Barnett defendant, for the recovery of a house, land, and premises at Stoke Heath, the yearly rent of such tenement being 8l., and for the recovery of 117. 68. 3d. rent and arrears of rent due from the defendant to the plaintiff in respect of the same premises. At the hearing it was proved on behalf of the plaintiff, that he verbally let the premises to the defendant from the 25th of March, 1856, at the yearly rent of 81., and that thereupon the defendant entered and occupied the premises, and in or about the month of February, 1857, paid to the plaintiff one half-year's rent due the 29th of September previously; that the plaintiff and defendant afterwards signed an agreement or demise in writing, bearing date the 7th of April, 1857, for the yearly tenancy by the defendant under the plaintiff of the said premises from the 25th of March, 1857, at the like rent of 81. per annum, payable half-yearly, on the 29th of September and 25th of March in every year; and it was one of the terms of the said agreement that the said tenancy might be

determined by either party upon giving six months' notice at Michaelmas in any year.

It was further proved on the part of the plaintiff, that the defendant offered to give up possession of the premises to him (the plaintiff) prior to the 29th of September, 1857, upon certain terms which the plaintiff *refused to agree to; and that, on the 22d of that month, it was

*424] verbally agreed between the defendant and one James Dutton

(with the consent of the plaintiff) that the defendant should give up the said premises to the said James Dutton on the following Michaelmas Day, and that Dutton should pay the defendant for his hay on the premises, and that the defendant should pay the rent of the premises to Michaelmas Day; but that the defendant did not carry out the said agreement, but, on the contrary, gave up the possession of the premises previously to the said Michaelmas Day to one John Stones, who, it was alleged, claimed to be entitled thereto.

tiff

It was also proved, that, on the 29th of September, 1857, the plaingave the defendant a notice to quit at the then next Lady Day; and that, on the 2d of October, 1857, a distress was levied on the premises for 81., a year's rent due on the 29th of September, under which distress certain goods were seized and sold.

On behalf of the defendant, it was proved that John Stones had, after the signing by the defendant of the agreement above mentioned claimed to be owner of the premises, and, in June, 1857, gave him notice not to pay any more rent to any one; that the defendant afterwards informed the plaintiff of Stones's claim; and that the defendant had delivered the possession of the premises to Stones, or to some person on his behalf.

On the part of the defendant it was objected, on the authority of a case of Mountnoy v. Collier, 1 Ellis & B. 630, that, the title to the land being bonâ fide in question, the judge of the county court had no jurisdiction to determine the plaint. The judge thereupon, conceiving that the title was in question, held that he had no jurisdiction, and accordingly declined to proceed.

*425] Prentice, on a former day in this term, upon an *affidavit of these facts, obtained a rule calling upon the judge of the county court and the defendant respectively to show cause "why the said judge should not hear and determine the said plaint, and why such order should not be made as to the costs of and occasioned by this application to the court as to the court should seem fit." (a)

Unthank now showed cause, upon an affidavit stating, that, upon the hearing of the cause, it was proved, on cross-examination of the plaintiff's son, that the defendant had, in June or July, 1857, informed him that a person of the name of Stones had demanded possession of the

(a) The 43d section of the 19 & 20 Vict. c. 108, enacts that "no writ of mandamus shall henceforth issue to a judge or an officer of the county court for refusing to do any act relating to the duties of his office; but any party requiring such act to be done may apply to any superior court, or a judge thereof, upon an affidavit of the facts, for a rule or summons calling upon such judge or officer of a county court, and also the party to be affected by such act, to show cause why such act should not be done; and if after the service of such rule or summons good cause shall not be shown, the superior court or judge thereof may by rule or order direct the act to be done; and the judge or officer of the county court, upon being served with such rule or order, shall obey the same, on pain of attachment; and, in any event, the superior court or the judge thereof may make such order with respect to costs as to such court or judge shall seem fit."

premises sought to be recovered in the action, and given him due notice not to pay any more rent to the plaintiff, and that the defendant had given up possession of the premises to Stones, who was then in possession thereof, and that he believed the notice received from Stones was after the defendant had signed the agreement of the 7th of April, 1857: That, on the conclusion of the plaintiff's case, it was objected, on the *part of the defendant, that the judge of the county court had no jurisdiction to determine the plaint, on the ground that the [*426 title to the said premises was in question; but the judge said, that, before he decided that the title was in question, he must be satisfied that the claim was made bonâ fide, and he should require some evidence in support of such claim: That it was then proved on behalf of the defendant, that Stones, accompanied by an attorney, in or about the month of June, 1857, called upon the defendant at Stoke Heath, and demanded possession of the said premises, and gave the defendant notice not to pay any more rent to the plaintiff; and that, in pursuance of such demand and notice, the defendant had, previously to the 29th of September, 1857, upon Stones agreeing to pay him for his growing crops, yielded up possession of the said premises to Stones: That it was further proved on behalf of the defendant, that Stones was then in possession of the premises, which he claimed as heir-at-law of his father, John Stones, deceased, who claimed under the will of Francis Stones, deceased: That the defendant was prepared, by the will of Francis Stones, and by further evidence, to show that the question of title was raised bonâ fide, and that the claimant John Stones was the person really entitled to the premises: And that the judge, being satisfied that the claim was made bonâ fide, and that the title to land did come in question, declined further to proceed with the cause, saying that he had no power to inquire into the validity of such title.

As a general rule, no doubt, a tenant is estopped from disputing the title of the landlord by whom he has been let into possession. But that which took place here, assuming Stones to have had a good title, was equivalent to an eviction. The question therefore was, whether he was a mere trespasser, or a person having title. In Mountnoy v. Collier, 1 Ellis & B. 630, a plaint was brought in a county court [*427 for use and occupation. It appeared that the plaintiff demised the premises to the defendant for a year from Michaelmas, 1850, and the defendant occupied from that date up to the time of the trial. The defendant paid the rent to the plaintiff for the half-year up to Lady Day, 1851, but refused to pay rent afterwards. It was proved that one J., claiming to be the plaintiff's landlord, had given the plaintiff notice to quit, expiring at Lady Day, 1851, and ordered the defendant not to pay the plaintiff any rent after that day; and that the plaintiff and C., a deceased occupant of the premises in question, had paid 108. rent to J. The plaintiff contended that this payment was for a part only of the premises; the defendant, that it was for the whole. The defendant offered to prove by declarations of C., the deceased tenant, that C. paid rent for the whole. The judge rejected the evidence; but gave judgment for the defendant, on the ground that the plaintiff's title had expired as to part, and that the rent was not apportionable. On appeal on a case stating the above facts, it was held that the judgment could not be supported; that the evidence ought to have been received; and

that if, when received, it showed that the defence was bonâ fide, it would sufficiently raise a question of title to deprive the county court of jurisdiction under the statute 9 & 10 Vict. c. 95, s. 58. [WILLES, J.-Rent was claimed here for six months after the tenant gave up possession.] Yes. [BYLES, J.-Must not the tenant, before the estoppel ceases, deliver up the possession to the person from whom he received it?] No case has held that the tenant is bound to resist a bonâ fide claim of title. [CROWDER, J.-To discharge the tenant, there must be an actual eviction, or something tantamount to it: Carpenter v. Parker, 3 C. B. N. S. 206 (E. C. L. R. vol. 91). *In Mountnoy v. Collier, the title *428] had expired. But, may the tenant in any case hand over possession to a claimant ?] In the case of a lease by mortgagor, if the mortgagee gives notice of his claim, the lessee ceases to be liable on his Covenants. [CROWDER, J.-That is eviction by title paramount.] The tenant is in no case bound to incur costs to free himself from adverse claims. [BYLES, J.-In Doe d. Knight v. Lady Smythe, 4 M. & Selw. 347, it was held that a third person cannot defend as landlord upon the trial of an ejectment, where it appears that the tenant in possession came in as tenant to the lessor of the plaintiff, and paid rent to him under an agreement which has expired. Bovill, Q. C.-Doe d. Bullen v. Mills, 2 Ad. & E. 17 (E. C. L. R. vol. 29), 4 N. & M. 75 (E. C. L. R. vol. 30), 1 M. & Rob. 385, comes nearer. There, A. having, without title, entered upon land, and built a cottage, afterwards accepted a lease (by indenture) from B.: C. claiming the land as his own, paid to A. 207. to give up the possession to him: and it was held (in ejectment on the demise of B. against C.), that A. had estopped himself from controverting the title of B., and that C. was bound by the estoppel, as having come in under and received the possession from B. CROWDER, J.-Does not the tenant controvert the title of his landlord by giving up the possession to a stranger? BYLES, J.-In Doe d. Manton v. Austin, 9 Bingh. 41 (E. C. L. R. vol. 23), 2 M. & Scott 107 (E. C. L. R. vol. 28), one T. held premises under a lease from one B., and paid rent to B. and to his personal representatives after his death: on the expiration of the lease, T. surrendered the premises to the defendants: and it was held that the defendants could not dispute the title under which T. came in. Tindal, C. J., there says: "The principle is, that a tenant shall not contest his landlord's title: on the contrary, it is his duty to defend it. If he objects to such title, let him go out of possession."] That is a *429] totally different case: there, the third party came in by assign

ment under the tenant. The court cannot interfere, unless they can clearly see that the title could not come in question. The question the judge will have to try will be, whether there was an eviction by title paramount or not. The 50th section of the 19 & 20 Vict. c. 108, gives the landlord the option of proceeding for the recovery of possession against the tenant or "any person holding or claiming by, through, or under him." Here, Stones is not claiming by, through, or under Barnett. Emery cannot place himself in a better position by proceeding against the defendant, than if he had proceeded against Stones; and, if this action had been brought against Stones, the title clearly would be in question. [BYLES, J.-If the tenant had merely walked out, and Stones had walked in, Stones would not have been estopped from denying Emery's title. But here Stones came in under an arrangement with the

that

tenant.] The transaction was bonâ fide. Unless the court can say it is impossible that the title can come in question, the case cannot be sent back to the county court. It would be an usurpation upon the jurisdiction of that court to try the question of bona fides here.

Bovill, Q. C., and Prentice, in support of the rule. The defendant takes premises of the plaintiff, pays him rent, and submits to a distress. for subsequent rent. He is therefore clearly estopped from disputing his landlord's title. The rent was payable half-yearly, on the 29th of September and the 25th of March. The action in the county court was brought to recover half a year's rent due for a period during which the defendant actually occupied the premises, and for a half-year accruing since, and also to recover possession of the premises. The answer attempted to be set up, is, that the defendant has yielded up the possession of the land *to a stranger, in consequence of a claim of title, and in consideration of a claim of a payment of 201. What right [*430 can the tenant, or any one let in by him under such circumstances, possibly have to set up a title adverse to the admitted title of the landlord? [WILLIAMS, J.-Suppose this had been an action for the rent only, and the tenant had pleaded an eviction by title paramount,-would there be here any evidence to go to the jury?] Certainly not. [WILLIAMS, J. -That seems to be the whole question. If there is any evidence to go to a jury of an eviction by title paramount, the issue cannot be tried in the county court.] In order to oust the jurisdiction of the county court, it is not enough that a claim of title is suggested; but the proviso in the 9 & 10 Vict. c. 95, s. 58, as to actions "in which the title to any hereditaments shall be in question," extends only to actions in which the question of title actually arises in the course of the trial: Latham v. Spedding, 17 Q. B. 440 (E. C. L. R. vol. 79).

WILLIAMS, J.-I am of opinion that this rule must be made absolute. Upon looking at the affidavits, it seems to be quite clear that the judge declined to hear and decide the case. He appears to have thought that a question of title arose, and that he had no jurisdiction, as soon as he was satisfied that a bonâ fide claim to the property was set up by a third party. He considered that a change of possession was enough to make him hold his hand. I am, however, of opinion that he ought to have gone further, and inquired whether the defendant left the premises by compulsion of Stones, the claimant, or voluntarily. If he found that the defendant was turned out, then the question of title would have arisen, and the case would have come to a point at which the jurisdiction of the county court ceased, and the judge ought not to have heard any more. If, on the other hand, he found that the tenant went out voluntarily, and *that the possession was changed under an arrange[*431 ment between the tenant and Stones, under which the former was to get a sum of money for going out, no question of title could arise, because, by the ordinary and well-known rule of law, both the tenant and Stones would be estopped from disputing the landlord's title.

CROWDER, J.-I am of the same opinion. The judge of the county court seems to have proceeded upon the notion that a bonâ fide claim of title was sufficient to oust his jurisdiction. That is clearly a mistake. The language of the 58th section of the 9 & 10 Vict. c. 95, is, where the title to land "is in question." Now, it appears here that the defendant was let into possession of the premises as tenant under the plaintiff,