exemption on payment of a modus. The correctness or not of the decision does not affect the question of jurisdiction of the Commissioner over the subject-matter upon which he was to decide. A great deal has been said on the second and minor point, that at all events the tithes of wool and lamb had been perpetually extinguished in these lands by the Act of 1762. One answer to that, I think, is, that the words "except as hereinafter excepted," relate to the clause claiming in favour of the rector the exemption of the modus of the Ancient Closes, and I consider that that modus was probably a modus in lieu of tithes of wool and lamb as well as of all other kinds of tithes, and so that would be exempted from the Act. I am, moreover, by no means clear that section 90 of the Tithe Commutation Act extends to take lands out of the jurisdiction of the Tithe Commissioners, where there has been only a partial extinguishment of some limited kind of tithe, leaving the lands liable to tithes in all other respects; but, be that as it may, I think on the construction of the Act of 1762 the modus probably excepted these lands from wool and lamb. The question, however, can be raised before the Commissioners, when the other proceedings in the matter are taken. In my opinion, this rule ought to be discharged.

WILLES, J.-I am of the same opinion. With respect to the first point made in the argument, it turns upon the assertion that the tithes of the lands have been already perpetually commuted or extinguished under an Act of Parliament. Well, in one sense, if the tithes were given up for a perpetual modus which was in existence at the time, you might say the tithes were extinguished. I do not think this is at all the sense in which the word "extinguished" is mentioned in the Tithe Commutation Act. I should think if such a modus had been made under the Act of Parliament the tithe might be said to be commuted, and then it might come under the term "commuted" instead of under the word "extinguished." That brings me to consider whether the modus is created by the Act of Parliament of 1762 or one to which statutory force is given by the Act. Now, I apprehend it is quite clear that it is not. The Act of Parliament deals with certain tithes, and provides for their perpetual commutation in consideration of certain money payments; but with regard to the lands in question, "the Ancient Closes," and also with respect to other land, called “the Groves," and further with respect to certain personal tithes, it provides that the right to the modus in respect of the Groves and the Closes and the personal tithes, should not be affected by the Act of Parliament. The Act goes on to say, "all which the rector reserves, ana they are hereby reserved to him and his successors in full right and in as ample manner as they have always been enjoyed." Whatever may be the language employed, the true effect of it is that the enactments in this Act of George the Third are not to apply to that property at all. That really is so with respect to those personal tithes; they remain just the same, and therefore the tenants are subject to the same provision as they were before the Act passed. With respect to the modus, just consider for one moment the condition of the rector. If there was a valid modus, which was a modus binding on both parties, of course the only remedy for the rector would be in the spiritual Court; he would proceed in the spiritual Court, and he would enforce

his modus. If the modus was invalid, the rector would proceed by bill in equity for the subtraction of tithes, and the defendant must then have to state in his answer the existence of the modus, and further show by such answer that the modus was one sustainable in point of law. Now, what is the situation in which it is suggested this Act of Parliament places the rector? It is that he is bound to show the modus was valid, that he is to preserve to all time the evidence to show what were the terms upon which the modus was established,— in other words, that the burthen of establishing the exemption from tithes is transferred from the landowner to the rector. That is in violation of a principle which is, I suppose, as old as the period at which the Church first began to acquire property, namely, that these corporations sole, rectors, and others who have property in the Church, may improve the property which they so have, and hand it down to their successors in an improved state, but are not capable of handing it down in a deteriorated state; and I cannot conceive that the legis lature should have intended this rector to take upon him the burthen for all time of preserving such evidence, or as the only alternative, that he should lose the tithes altogether. If that were intended, I have no doubt the legislature would not have used the language in question, which amounts to nothing more than this, that the Act does not interfere with the modus affecting the Ancient Closes. That being so, it is clear the 90th section is inapplicable in respect of the tithes being perpetually commuted by Act of Parliament. With respect to the tithes of wool and lamb, it is contended they were commuted throughout the whole parish. I apprehend that it is impossible to say that without seeing what the modus was; and I think if it appeared that it was a modus applicable to all tithes except of wool and lamb, there might be then a strong argument that the Act of Parliament took away those tithes; but if it was a modus in respect of all tithes, the Act of Parliament would not at all apply. In the absence of such evidence, I can only apply the rule that words general and words universal prima facie mean the same thing; that is, that the modus, in respect of the tithes, means in respect of all the tithes of the Ancient Closes. If that were not so, still I say the prohibition ought not to go, because I think with my Lord that section 90 of the Tithe Commutation Act means lands the whole tithes of which have been commuted or extinguished. That section excepts, in terms, such lands or tenements; therefore, they must either be within or without the jurisdiction of the Commissioners, and unless the whole of the tithes of such lands or tenements have been commuted or extinguished, they have not, I think, been commuted or extinguished for the purpose of that Act of Parliament. Then, if that be so, the utmost that can be said on the part of the applicant is, that the Assistant Commissioner has put a wrong construction upon the Act of George the Third in respect of the wool and lamb. For the reasons I have already stated, I am by no means prepared to say he has put a wrong construction upon it, but I am disposed to think he has put the right one upon it. For these reasons I think that this rule ought to be discharged.

BYLES, J.-I am of the same opinion. We have nothing here to do with the merits of the decision. The ground upon which the application was made (the only ground on which the rule can be supC. B. N. S., VOL. XI.-33

ported) is that these Ancient Closes are, under the circumstances, forbidden ground, upon which the Assistant Commissioner has no right to enter, because the tithes there have been commuted by Act of Par liament, as the 90th section of the General Tithe Commutation Act provides, as to the general jurisdiction of the Commissioners, that "nevertheless this jurisdiction shall not extend to any lands or tenements the tithes whereof shall have been already perpetually commuted or extinguished under any Act of Parliament herein before inade." I very much doubt whether that proviso applies to such a case as this. It seems to me it applies chiefly to the compulsory Acts where the tithes are either extinguished and a glebe given in place of them, or else they are commuted for rent payable in money, or more usually in kind, and in that sense the word "commutation" is used, not only in the title, but in the various sections in the Tithe Commutation Act itself. But still, no doubt, it is open to Mr. Bovill to contend that this local Act of Parliament has made a commutation of the tithes within the meaning of that section. Now it seems to me it has not commuted the tithes and did not create a modus. It is plain it deals with the modus as a payment already existing. If it had created a modus, it would have created it by some reservation or exception, or other enactment in favour of the landowner. But here the proviso is, "provided always, that the moduses in the Ancient Closes are reserved to the rector in full right and in as ample manner as they have always been enjoyed." That is simply a reservation to the clergyman of the payment of the modus. It would be very odd, indeed, to create such a modus as that in the reservation or provision, and it is plain on looking at this Act of Parliament that this Act deals with the modus as a thing already existing, and it provides that notwithstanding that and other provisions in the Act of Parliament the clergyman of the parish shall receive the payment of it. Well, then, if it is not created by any Act of Parliament, it cannot in any sense be said to be a commutation of tithe within the 90th section. The only doubt I have entertained at all in the course of the inquiry is as to the point which is now raised for the first time, but which was not raised when the rule was moved for, with respect to the tithes of wool and lamb. But I think the term "modus" comprehends here a compensation for all the tithes in the Ancient Closes; and that being so, there was an extinguishment of the tithes of wool and lamb all over the parish, including those closes subject to the payment of the modus thereinbefore existing; and that being so, it se ms to me, without expressing any opinion upon the question on which my Lord and my Brother Willes have spoken, as to the effect of a partial extinguishment of some tithes, that there is no part of the tithes of these Ancient Closes which are not subject to the jurisdiction of the Commissioners. It is not necessary for us to go even so far as that. It lies on the party applying for the prohibition to satisfy us that the Assistant Commissioner has exceeded his jurisdiction, and I think he has shown very clearly that he has acted within it. Whether he acted rightly or not is a matter on which I give no opinion.

KEATING, J.—I am entirely of the same opinion. I think it is clear the terms of the Act of 1762 did not affect either the extinguishment or perpetual commutation of the tithes in the land in question. For

the reasons already given, if seems to me that even if the Act did not bear that construction which I think it does, in respect of the tithe of lamb and wool, that is excluded in the modus with respect to the Ancient Closes. If it did not bear that construction, I agree with what has fallen from my Brother Willes, that that partial exemption could not, under the 90th section of the Tithe Commutation Act, have taken away the jurisdiction of the Assistant Commissioner.

Rule discharged, with costs.

PELLATT v. BOOSEY.

May 10, 1862.(a)

The plaintiff, who had leased premises to B. for a term of years, which was unexpired at B.'s death, afterwards, in the belief that no one would administer to B.'s estate, agreed with B.'s son for him to occupy the premises as a yearly tenant, at the rent reserved by the lease to B. The son accordingly occupied and paid rent. The plaintiff repaired the premises shortly before Michaelmas, 1861, and having afterwards discovered that the defendant, a daughter of B., was the administratrix to his estate, and, as such, claimed to hold the premises for the remainder of the term under B.'s lease, the plaintiff sued her on the covenant in the lease to repair, and also brought ejectment for forfeiture for non-repair. In the action on the covenant the defendant paid a sum of money into Court, which the plaintiff accepted in satisfaction. There was no want of repair to the premises after the plaintiff had so repaired them, and the rent due up to Michaelmas, 1861, was paid by B.'s son, and received from him by the plaintiff before either action-Held, in the action of ejectment, that either the rent paid by B.'s son was to be taken in satisfaction of the rent under the lease, and so there had been a waiver of the forfeiture, or else there had been an eviction of the defendant by the plaintiff which would prevent his taking advantage of a forfeiture for non-repair during such eviction.

Held also, per Erle, C. J., and Byles, J., that the statement in the plaintiff's declaration in the action on the covenant, that the breach for non-repair occurred during the existence of the term, was a further ground against the plaintiff recovering in ejectment.

THIS was an action of ejectment to recover the possession of the first floor and upper part of a house in St. Mary-at-Hill, in the city of London.

The plaintiff had granted a lease of the premises in question, in August, 1859, to a Mr. George Brocket Boosey, the father of the defendant, for a term of years, of which twelve years were still unexpired. The said G. B. Boosey died in November of the same year, intestate, and the defendant (Charlotte Boosey), in the following month of December, took out letters of administration to the estate of her said father. In January, 1860, Charles Boosey, who was a son of the said G. B. Boosey, called upon the plaintiff and asked to be allowed to remain as tenant of the premises at the same rent as his late father had held them, and it was on that occasion agreed between them that C. Boosey should occupy as yearly tenant at the same rent as reserved by the lease, namely, 507. a year. The plaintiff was not then aware that administration had been taken out to the estate of the said G. B. Boosey; on the contrary, he was told by C. Boosey that his father had died insolvent (which was not true), and that there would be no administration. C. Boosey paid the rent quarterly, the last of such payments being the quarter's rent to Michaelmas, 1861, and which the plaintiff received on the 25th of October following. An action of ejectment having been brought in June, 1861, against the plaintiff by the reversioner, for breach of the plaintiff's covenant to repair, the

(a) 31 L. J. 281; 8 Jurist 1107.

plaintiff settled that action by putting the premises into repair, which he did to the satisfaction of such reversioner before the 29th of September, 1861. The plaintiff afterwards sold his lease by public auc. tion, when, for the first time, he became aware that the defendant, as administratrix to her father's estate, claimed to hold under the lease of August, 1859, which accordingly disabled the plaintiff from completing his contract of sale. He thereupon sued the defendant in an action of covenant for not repairing the premises, in which action the defendant paid a sum of money into Court, which the plaintiff accepted in satisfaction. This action of covenant was commenced in December last, and in the same month he brought the present action of ejectment for breaches of covenant, the main breach relied on, and the only one necessary to refer to for the purpose of this report, being the breach for non-repair.

The action was tried, before Byles, J., at the London Sittings after Hilary Term last, when a verdict was found for the plaintiff with leave for the defendant to move to set the same aside, and enter it for the defendant, on the ground that there had been a waiver of the forfeiture for non-repair.

A rule nisi to this effect having been obtained,

Collier and Philbrick now showed cause.--The only question is, whether there has been a waiver of the forfeiture for non-repair, and the waiver which is relied on by the defendant is the acceptance of the rent up to Michaelmas, 1861. Now, what the plaintiff so received was from C. Boosey, who, as it now turns out, was a wrongdoer, and had, in fact, obtained possession of the premises by a fraud on the plaintiff. C. Boosey was no tenant, except by estoppel, and that would only be as between him and the plaintiff, and no payment of rent by C. Boosey could be a payment under the lease. [ERLE, C. J. -Could not the defendant adopt such payment by her brother, as rent paid under the lease?] It is submitted she could not, as it was not paid on her behalf, or professed to be so paid. [BYLES, J.-The action of covenant which was brought against the defendant admits that the tenancy was in existence at the time the repairs were wanting.] The landlord may bring ejectment, notwithstanding he has also brought an action for damages for breach of covenant. With respect to the payment of rent it may be shown under what circumstances it was paid-Doe d. Lord v. Crago, 6 C. B. 90 (E. C. L. R. vol. 60), s. c., 17 Law J. Rep. N. S. C. P. 263, and Fenner v. Duplock, 2 Bingh. 10 (E. C. L. R. vol. 9); and here it was clearly shown to have been made not on behalf of the defendant. The case of Williams v. Bartholomew, 1 Bos. & P. 326, was the converse of the present case; and there Buller, J., said: "If money be paid to A. by the direction of B. it is a good payment to B., but I can never agree that if money be paid A. simply with the knowledge of B., it will be a payment to B." "Knowledge will not do; there must be consent, direction, and authority." They referred also to Croft v. Lumley, 5 El. & B. 648 (E. C. L. R. vol. 85), s. c. 27 Law J. Rep. N. S. Q. B. 321.

Cleasby (Turner with him), in support of the rule.--There was here either an eviction or not. If there was an eviction there would be no forfeiture for which the landlord could bring ejectment, and if there was no eviction, what took place amounted to a satisfaction of the