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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est film6 d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. irrata to pelure, n d n 32X 1 2 3 1 2 3 4 5 6 JONES ON PRESCRIPTION. A PRACTICAL TREATISE ON THE REAL PROPERTY LIMITATION ACT o» REVISED STATUTES OF ONTARIO, CHAPTER 108. EMBRACING THE LATEST DECISIONS BOTH IN ENGLAND AND CANADA ; TOGETHER WITH A FULL COMPENDIJM OF THE LAW ON EASEMENTS. Br HEEBERT O. JONES, ESQ. HALI.. BARRISTER-AT-LAW; AND ADVOCATE IN THE PROVINCE OF QCEBEC. TORONTO : CARSWELL & CO., 28 ADELAIDE STREET EAST. 1878. Entered according to the Act of the Parliament of Canada, in the year of our Lord one thousand eight hundred and seventy-eight, by Carswbll & Co., in the Office of the Minister of Agriculture. TO THE HOIf. STEPHEN EICHAKDS, WITH TIIE OIlt»TE»T RMPbct, "or 0»„ OK .c«,„„,. „, „„ ^„„, '"*• «KAD Op A .SOCIETV WHICH HAS PH0I>c;cBD SO MAX, MKMBEK.S JUSTLY CKLEBKATED FOR THEIR .eoal .. BVT ALSO FOR HIS HIGH ArrAINMrVTS AS AN ADVOCATE AND LAWYER THI3 WORK IS DEDICATED BY HIS FELLOW-TOWNSMAN THE AUTHOR. PBEFAOE. Perhaps thoro is no branch of tho law more (Ufficult than that oti which I havo writfcon, and thin troiitiso, if it does not com- pletely fultil its nuHsion, may yet bo of some ussis^anco. It is a suhjoct which grows with its knowledge, and it is for this reason that what was intendtid for a short treatise has in- creased to such forini(hil»lo dimensions. Nor is that to bo wondered at when tho reader recollects the different Acts embodied in tho Statute and tho immense numlier of decisions that have been given ; embracing as it does the Act of 3 & 4 Will. IV. cap. 1, tho Act of 10 & 11 Vic. cap. 5, and the recent Ontario Statute with regard to the Limitations of lieal Property ; necessarily touching on the Dower Act, and the limita- tion as to bonds and covenants. The amount of labour and study necessary for the accomplishment of the work may bo conjectured, though it will hardly be fully known to any except the author of a law book. I havo been veiy much assisted by the works of Mr. Charley, '* Shelford on Real Property Statutes," " Banning on Limitation of Actions," " Goddard on Easements," " Lewin on Trusts," and many others too nxmierous to mention. I have endeavoured to give the writers of these able books the credit due, by the proper use of quotation marks when I have quoted from them. If I have neglected to do so at any time, I make the amende honorable here. I have also to thank the Hon. Chief Justice Hagarty and the Hon. Justice Wilson for their kind assistance. n pRrPAfi. In conclusion, I nmy say that Mossrs. Copp, (Murk «k Co. hiivo j;ivon mo ovory aHsi.stiinco, and hy tln'ir oxcclloiit printing adth^il mucli to tho appcaruncu of tliu work. Hoal Propjirty in a province liko Ontario in hoconiinj^ each year tho njo.st vahialth) kind of |)rop(>rty. Tho incrcaHO in tho nunihcr of Loan and Savings Hocietics will havo a tendency to incroaso conipfitition, and tho transactions in land will grow more numerous as tho pecuniary facilities double. It is liop(;d that this book may bo found serviceable not only to tho [(rofessional reader, but also to the Ileal Estate Agent, and to that numerous class o{ quasi lawyers called "conveyancers" which abound in ( )ntario. Tho peculiar position of tho law with regard to " lateral support " is to bo noticed, and the reader will tlnd in tho two cases of Amjus v. Dalton and Wheelhoiise v. Darch, an opportunity for tho expenditure of much thought. HERBEET C. JONES. OaoooDE IIall, Toronto, October Uth, 1878 LIST OF CASES CITKD. PA'iie — — V. Codpor 14 .\l)hott V. Wwklv .... 170, l'.»i) .MitT^'iivi'iiny N. nriioi). . i;n, I'M Aclicsuii V. iMf.Miirriiy liny Arkn.y.l v. Smitli l!>7, •-'<>(> Adiiiiis V. iJiiny . . lO.'), UM, 107 Ailiiiiisnii V. McNiil) Ul 4 \(l(liii;,'ti)ti V. (.'IimIo IHI A i ivy V. .Mitrli.ll IKi AliloiHiiii V. NVIiito 1>H Aldr.MlsCiiso 17H, 'JOli Altiin V. (i(iiiiiiit) IHO " V. McTiivi.ili .. !K), t»l, ".»*") lOtJ, 108, 141 Allon V. Eiiyliiiul 40 " V. (jiivi,'nry 154, IM AIHhoii v. Ucdiinr 24 Aiuoy ut ul. V. Curd ut al. . . .'{0 Aiiyua V. Daltoii '2'2'.i, 2'M Alton IH,') ArohlH.ld V. Scully .... 21, 140 Archuduckiiu v. Kulk 247 Arda v. Watkin 12 Arkwriglit v. (Jull .... 20!>, 241 Armstrong v. Arumtrong . . 128 " V. Stowurt 32 Arner v. MoKonna 24 Arnold v. JortbrHou 247, 248 " V. VVhito 207 Arnott V. Holdon 15 Arnouldv. Hud.sonRiv. R.R. 223 Arran v. Frawloy 154 Aahburn v. McQiioen 108 Ashor V. Wliitlock 153 Atkyns v. Poarco 28!) Attornoy-Gen. v. Brantfurd.. 209 " V. Chambura 189 " V. Davey 140 " V. Fishmongers' Co. 142 148 " V. Flint.. 126, 146, 147 " V. Goderich 209 " V. Mathias .. 167, 187 " V. McLaughlin 208 '* V. NicLol, 244, 245, 247 .Vttortii'y-GL'n. v. Payno . . . . 146 *' V. st<'|.ii."n» :w " V. Tnn.iit.. 209 .ViiHuian V. .Miiitliorne, 17, 18, 19 73 AiHtin V. L!.«\vcllvn '_'•_', 131 Ayii.sloy V. Uiovcr, 194, 210, 2»H 249 Bahcoiik V. Uttur 222, 223 Hii.;k V. St.u;oy 247 Uxj^olt V. OlT 17M Haili-y V. Applnyard, 185, 1H8, 191 " V. SUivun.s 180, 195 Hains V. Ijimiluy 34 IJaliur V. HiiTttnian 177 " V. WlKitton 98, 271 Bally V. Wi.ll.s 197 Hamford v. Turnltsy . . 202, 203 IJankart v. llaughton.. 201, 20(> 244, 255 Barclay v. Rainu 197 liarkcr v. Richardson . . 19, 234 Barlow V. Rhodes 268 Barnus v. Burt 224 B.arrington v. Evans 14(» Harwickv. Barwick, 74, 94,95, 9!> Batchclor V. Middlcton 97 Baxendalo v. McMurray. . . . 221 Baxter v. Bower 244, 245 Boadul V. IV-rry 247 Boaloy v. Shaw 22r> Bcals V. Stewart 222, 223 Beamish v. Barrett 209, 214 Beardmore v. Tredwell 202 Beasley y. Clarke 214, 267 Beasney's Trnsts, Ite 270 Beaufort, Duke of, V. Patrick. 201 265 Beavon v. Reid 215 Buchtel V, Street 213, 258 Becker v. Hammond . . 107, 126 Beckford v. Wade 4, 159 Bedford, Duke of, v. Trustees of British Museum 197 viU HUT Of rxngeii citid. IWill, /iV IH •• V. Ilowjird 20 " V. Walk.-r 255 lUilliiiiiy V. Siihiiiu IM) iUindiii^ V. It<'ti(liii|{ 127 IKtiioy V, liiiiillcy 'Mi itoiiiiiiurM 'I'niMU, lie :to:) li«)iiiii){t<>ii V. KvHiiH I 'JO l(«>rijiiiitin V. Stnrr 20o lUiiiiiiitt V. Colloy 141") lliiriiiiril V. (iilmoti .'i<> Itickitt V. M..iTiH 218 HiKK'iur V. Alliin .. 2:M5, '2'A7, 242 liin(;k«n v. Tiwh 24f» Hiuw V. NiclioU .. r»H, KM!, 107 iJiriih V. \Vii:^!i» 'M, :\7 •* VVolfo V. Uiriih 140 Flirchiill V. Iloid ,'55 llii-a V. Wri.,'lit 41 BiHhop V. Huward <(0 «' V. Mirklpy 2IH H!ack.;U v. Urn IK.y 17M lilat;kwoll v. Chilil lOH liluir V. |{iiinliy 154 " V. Kui'rwt rj4, I4r. lilancluml v. V.vuh'i-^ . . 242, 244 itljuxl V. liiiiwoiiilu) . . 187, I'.ir* lilowitt V. 'riugr», iKf) _|K7 Hli((!it'H Tjt'SHoesv. !l«ich('Bt«>r~l48 1UW8 V. Hall .... 202, 207, 241 IMowor V. Midwor 124 liDutwrijjIit V. |{(>iitwriyht ... 57 Ikmiuiy V. It«'ilj,'iinl. . , . 145, 150 Hoiinr^y V. Uitlj^iinl 146, 150 lioituiiti V. HockhotiHti 2^(2 Hook V. Piirsor m Hoolo V. D'ckKon 215 Hooth V. Alcock 2:'.!> Borrows v. ElIiKon JiOO iJomnct V. iSjiv«.^;u 157 IJowtl'iii V. lIondtTson 27») IJowor V. I'.uit 2;{2 It^twlby V. \V„u,\k-y 1!»2 Hoys V. Wood i.fc ill 20 lU-adbuty V. Wri<.flit 13 rinulKliiiv/ V. 'r]) v. LIcwellyTi . . 86 Krmiiiujr v. H-ill 171 fivewor V. Hill 197 lirew'«kir V. C.-ui. Company.. 209 lJm{,'ntUiU V. (rill 1»2, 150 " V. Grttno 149 ItriKlit V. Liiroiii>r 107, 144 llriulit V. I<<'^<'i'ioii I4H •^ V. VVuikcr. . 2ull V. MatliowHon .... 274 " V. WilHon.... 175, 184 " V. V<.uii}? 214 Canadu Co. v. Douglass. . 25, ♦12 71, 74 " V. Pottis 215 Canluua v. P'isk 180 " V. Rust 107 Cunn V. Ciuin 144 Cannon v. Ilivingtun . . 22, 134 137, 138 Canon v. Great Western Rail- way Co 214 Carlyon v. Ix)vering 10(j Carnarvon, Earl of, v. Ville- bois 181 LINT or OARKS ClTtD. IX (V.rrv. r.itor.... 2ni,2fi'i, 2«U Oiirr V. Iii(|i)ii ikinl North W.Hl. ni U. W. i;.. UH'J Ciuroll V. K..lhHr V. Kt'itcliiu r.'O Cuvt'i'liill, /)'•' M) V. <>riii :i5 Cnvuy V. I,.iii V. Hii^txy 44 CliaiKlli'i- V. Til |>Hun .... 242 Cliiintiililf Diiiiiitiiiiis, Pdiii- lui.s.-tiniKrHot, V. WyliriiiilH, \'2Tt 147 ClmrttT V. Trtivtilyan ...150, \M Clu'tli.im V. Ilnjiiu l."»0, I.t.H Chiiiiu-y V. Kviiiis UVA Chislioihi V. Itai'iiiinl U7 CIiuIiiiiiikIiiIov V. Clinton .. 1:(<.) Cliii.Htiiiii V. I)i!Viirciix lO.j Citi/.i" I ' mk of l.iiiiisiiiiiii V. iJaiik of Now OrlciiMH.. 2H'2 riiiiii'icimlx V. Hoiiiiinj^ .... lol Clarku v. Chiiku fi:i, 2*5 " V. Hurt 'JHI Cliiytoji V. Hliikoy 41 V. Corlty.. !<)'.>, VXi, 2(15 2(;() Cloliuul V. Kully IJo CluiiuiiitH V. iMartin nt al. , «iO, 72 CucliccoCo. V. Wluttior.... 222 Cocker v. Oowiusr 1<)2 Cixli'inj^tou V. Kuhiy 144 CullM.rno V. \Vn;.,'lit 12 ColtlwL'U V. Hiill .... 81, 82, JM) Colo V. Bnmt :{0 " V. Colo 108 Colubook V. Ciinllora' Coiii- iiuuy 211 Coloinuu V. (Jlaudvillo 128 " V, \Viiitoli(jail 107 Collins V. I'iuiul) 1!>7 (^>lton V. Morton \)l Colvin V. Kin<;'8 I'roctor. . . . 278 Conunissionor.s of Cliaiitahlo Donationsv. Wybrantn, 12.'), 147 ConnuonwcaltU V. Nowberry. 20| Conipton V. Kicliarda 240 Conglotou, Mayor of, v. Patti- son 197 Connor v. Mt;Pln'rMon 20 Conittablo v. NioiioUon, |i;7, 172 174, IMii, 187 (N.ok V. Mayor of Itatli .... 180 Cooku V. <'tvHitM'i41 H, ]0.*» *• V. Korlai 20i% (%M,li.l«.- V. Minw 222, 227 Coopur V. Kniory IlOo •' V. (Irotin H«> '• V. Hulil.nok,240, 2r>l, 2.'.7 Coot V. ll.M-tv 21«» C.irli'v V. lior.l Stalloril 1(^4 Cornlu'lil V. Wvnilhaui .... Kto CorniHh v. .Miinutnn .. 281, 2im Corryton V. liithobyo 2i»8 (.'((sliio V. Sii'TiHt 4r> CottiMvll V. Dittf ti :M)2 Cotti^iiii V. I'luvii.is.. .. ir.4, ir.8 Coiiitaiil.l V. l.r^h 240 ConttH V. (lorhaiu 'J'V.) Covontrv. F ..f, ^. Willi ^ 170 CV>x V. i)oli....ii .. Iir». 1 .'4, 12.5 144, 148 " V. MathowH 2:iO Craii,' V. Craii: 201, 2.'".5 Craako v. lliilhiian 218 Cnmson v. (Jraml Tnink llailway Co 214 CriitpiMi V. MorsH 227 Crookn V. Vv'atkins *X> (h-osl)y V. Hra.lburn. .• 222 Cro.sHli;y V. l.i^'hfowlor. . 180, 217 220 Cnuni) V. Laml).'.t.2()2, 2(»7, 241 Cry.slor v. Crei;^liton 10;{ Cullcy (1. Doe V. 'I'aylir.son. . (>7 CiilvL'i'WL'll V. Ijockiiigtoii.. .. 1I>!» Curriur.s' Conijiany v. Corhott 2.'10 Curtis V. C\irtis 87 Ciirtiss V. Ayrault 222, 22»'. CiirwiMi V. Salkilil 175 Cii^hin V. MoDoiial.l .Ml Citthbort V. Purrier .';04 Dak in v. Cornish ... 220 Daly V. Kirwin 125 Daniel v. < irafi'i .'id " V. North 18'.) D.aniflH v. Daviilson .... 40, 157 Dann v. Spnriicr ] HO Darling v. Chio 252 Davenport v. Tyrrell (Hi Davidson v. Boomer 128 LIST OP CA9E9 CITED. PAOR Diivies' Caao 185 Davis V. H.iKltirscn. .24, 2!», 72 " V. Marsliiill, 214, 2:>'3, 2(10 " V. McKiiinoii 35 " V. Siiv.l.r 254 " V. WillijiiiiH 214, 252 Dawiiy V. 'Jushford 25() Day V. Day 40 " V. IVicu 40 " V. Sava(l<,'(j 1«J5 Dean v. dray 2(10 " V. Thwaitu 149 Doaniian v. Wyclic, lO.'J, 104, 141 Do Mtaiivoir v. Owen 8(J Dodfonl V. Ho.ilton 310 Duldiaiiiu V. IJrown . . 155, 158 Dt'iui V. Cartwiight .% Doiinisoii V. Chew 30 Dunt V. Auction Alart Co. . . 245 247 Dfiiton V. Lu(l(k'll .... 222, 225 Du Jliitzon V. Lloyd 175 Devinu v. Holloway 307 Devonshire, Duke of, V. Elgin 201 255 Dcwdnt'v, Ex parte 57 Dickenson v. (^uial Co 250 " V. Tcasdale..l20, 148 Dickson v. Koliinson 129 Dillon V. Cruise 124, 125 Din.L(\vill V. Askew 108 DinH4 George v. Jess(jn .... 302 (loody v. Carter .... 40 Hagerman v. Strong . 284 Hale V. Mousdale . . 53 Hanley v. Wood 103 Harding v. C(joko . . 84 Hill V. Gander 29 Holt V. Horrocks .. 07 Howard v. McDonnell 29 Hughes V. Dyball . . 84 Humfrey v. Martin . . 84 Jacobs V. Philips. ... 33 Jenkins v. Cartwright 37 Johnson v. Liver- sedge . . 34, 47, 54, 92 Jones V.Williams, 101, 103 Keen 00 Kenrickv. Lord Beau- clerck 40 Kingsley v. Stewart.. 27 39 Knight V. Ncpean . . 303 Langdon V. Rowlston. 302 Lansdell v. Gower . . 34 Lawson v. Coutts . . 35 Lemoine v. Vancott.. 273 Lord V. Cravo 30 Marniion v. Bingham. 45 30 McDonnell v. Rattray 27 28 McGilles V. McGilli- vray 31 McGregor v. Crow . . 94 LIST OF CASES CITED. PAOK Doe d. McCtregf)r v. Hawko . 94 " McKiiyv. Purely.. '27, 'M " McLean et al. v. Fish et al 95 " »:iIlor V. Tiffany loU " Morgan V. Simpson. . 27 30 *' Newman v. Oodsill.. 47 *' ().sl)orne v. MeDcnigiil 19 " Palmer V. Eyre lO.'i " Pearson Oti " Perry v. Henderson.. 17 24, 27, 39, 73, 78 H3, 84 " Quinseyv. CanitfelS, 27 " Koliiiison V. Hiude.. 14 '* Samlerson V. Roe.. . . 274 " Silverthorne V. Teal.. 25 27, 272 " Shepherd V. Bayley . . 23 24, 39 " Smith V. Deans 32 " " V. Deemens. . . 17 " Stanway V. Rock.. 40, 43 " Stewart V. Radick... 29 " Sumner 83 " Taylor V. Crish 40 •' "v. Proudfoot.. 22 288 '' " V. Sexton .... 30 " Tornes v. Chamber- laine 40 " West V. Howard et al. 03 DolcAiine v. Brown . . . 155, 158 Dolson, Re 133 Dormer v. F( )rtescue 87 Dowdall V. Brvne 09 D(nvling v. Winfield 304 Dowsett V. Cox 04 Doyle V. Lord 242 Drewell v. Towler 199 Drought V. Jones 93 Drummcmd v. Saut 33, 43 Dublin V. Judge 71 Duchess of Kingston's Case . . 153 Dudley and Ward v. Lady Dudley 129 Dunible V. Johnson et al. 72, 133 " V. Larush 309 Dunbar v. Tredennick 157 Dundas v. Blake 124 " V. Johnson 28, 32 Dundee Harbour v. Dougall. 3 PAOK Dunn V. Snowdcn 303 Dunne v. Doyle 104, 121 Dunstan v. Patterson 282 Du Vigier v. Leo 105 Dyce V. Haye 1 74 Dyer v. Lady James Hay . . . 195 Dyers' Company v. King . . . 245 Earlo V. Bellingham 100 p]iust India Co. v. Vincent . . 201 Eastward & Skinner v. Helli- well rirt Eccles et al. v. Maxwell .... :'0 Ednumds v. Wangh 88 Edsell V. Buchanan 139 Egerton v. lirownlow 142 EMridge v. Knott 184 Elliot V. Balmer 30 Ellis V. Manchester Carriage Co. (Limited) 239 " V. Sheffield Gas Co. . . . 232 Ellwood V. Bullock 170 Elvey V. Norwood 116 Ely, Dean of 10 Embrey v. Owen 219, 200 English V. Hendiy 210 Ernes v. Ernes 50 Evans v. Bagwell 125 Ewart V. rjraham 186 Eyre v. Walsh 103 Fairclaim v. Little 54 Fairweather v. Archibald. . . 128 254 Farquharson v. Morrow .... 272 Faugher v. Burley 81 Fenney v. Child 37 Fentiman v. Smith 102 Ferguson v. Livingstone .... 90 Ferrier v. Moodie 29 Fielder v. Bannister 200 Findley v. IVdan 30 Finlinson v. Porter .... 221, 231 Finsden v. Ciegg 74, 77 Fitzgerald v. Fitzgerald 282 Flight V. Thomas . .191, 207, 214 238, 241 Ford V. Ager 103 " V. Allen 88, 89 " V. Grey 03, 06 Fordham v. Wallis 90, 97 Foreman v. Free Fishers of Whitstable 177 ^ii LIST OF CASES CITED. PAOR Forrest v. Douglass 67 Foster v. Bates 65 " V. Cooke 126 " V. Emerson 26, 69 Fox V. Purcell 244 Francos' Case 46 Francis v. Grover 90, 125 Frankum v. Lord Falmouth. 259 Fraaer v. t'raser 18, 26 Freeman v. Barnes 42 '« V. Cooke, 281, 282, 295 French v. Davis 126, 127 Frewen v. Phillips 238 Frey v. Witman 222 Fritry v. Thomas 96 Fuller V. Macklem 310 Fulton V. Creagh 275 Fursden v. Clegg 74, 77 Gamble v. Howard 208 Ganard v. Tuck .... 33, 42, 148 Gartshore v. Chalie 106 Gaved v. Martyn 174, 196 Geams v. Baker 230 Gen. Stanwix's Case 278 Geoghegan v. Fegan . . . 224, 225 Gerrard v. Cooke 211 Gibboney v. Gibboney 35 Gibson v. Brockway 222 " V. Gibson 127, 128 Gilleland V. Wadsworth..89, 90 154, 156 Glass V. Hope 57 Glover v. Coleman .... 241, 248 Goddard v. Carlisle 44 Goldsmid v. Turnbridge Mill Improvement Commission- ers 221 Goodall V. Skerratt 131 Goode V. Job 74, 76 Gooderham v. Routledge, 218, 236 Goodwin v. Roberts 280 Gordon v. Gordon 158 Gough v. Bult 124 Graham v. Burr 215 " v. Graham 132 " V. Law 46 " V. Moore 153 " V. Northern Railway Co 208 Grant v. Ellis 10, 21, 47 Great Western R. W. Co. v. Jones 87 PAOR Gregg V. Wells 280 Groenslado v. Halliday .... 240 Greonstreet v. Paris 20 Grey v. Lewis 154 Grimstoad v. Marlow 165 Grissall v. Stelfox 276 Groome v. Blake 86 Guelph, Municipality of Town of, V. Can. Company 209 Guest V. Reynold 242 Hagerman v. Boasley 149 Haig V. Gordon 254 Hainault Forest Act, In re. . 189 Haley v. Ennis 251, 257 Hall \. Evans 241, 242 " V. Hall 127 •' V. Nottingham 228 " V. Swift 252 Hamel v. Griffith 224, 225 Hamilton et al. v. Lightbody. 20 " V. Vestry of St. George's, Hanover Square 211 Hanmer v. Chance 185, 263 Hinks V. Palling 4, 86 Harbridge v. Warwick . 164, 235 Harcourt v. White 140 Harris v. Harris 148 Hartford v. Power 157 Hartley v. Pehall 197 Harvey v. Walters 224, 229 Harvey v. Waters 199 Hawkins v. Carbines 200 Hawkins v. Wallis 199 Hawks V. PaUing 4, 86 Haydon v. Williams 76 Heath v. BucknaU, 207, 242, 246 Heenan v. Berry 146 " v. Dewar 210, 253 Hemmingway v. Hemming- way 19 Henderson v. Harris 59 Hendry v. English .... 217, 260 Henry v. Smith, 92, 104, 117, 120 121, 199 Hertz V. Union Bank of Lon- don 240, 247 Heward v. Jackson 199 Hewitt v. Isham 253 Hewlins v. Shippam . . . 161, 162 Heyland v. Scott 29 Heymer v. Summers 184 LIST OF CASES CITRD. zut Hickman v. Lawson 215 " V. Walker 56 Hicka V. Sallitt 81 Higginbotham v. Hawkins . . 140 Hill V. McKinnon 19, 32 " V. Tupper 100 " V. Walkor 57 Hilton V. Granville .... 172, 173 Hitchcock V. Beardsley .... 278 Hoaru V. Metropolitan Boiu'd of Works 199 " V. Peck 155 Hodlo V. Healey 03 Hogan V. Hand 41 Hoig V. Gordon 284, 297 Holhack V. Warner 250 Holcroft V. Heel 175 Hold V. Caldwell 271 Hole V. Barlow 203 Holker V. Porritt 208 Holland v. King 50 Hollingshead'a Case 139 Holmes V. Buckley 197 " V. Holmes 25, 20 Hood V. Eastoil 99 Horn V. Colo 280 Hoskins v. Robins 200 Houghton V. Thompson 35 Hovenden v. Lord Annesley. 139 149, 154, 155 Howard v. Hudson 281 " V. Wilson 40 Howeren v. Bradburn 110 Hubert v. Groves 205 Hughes V. Kelly 112, 118 Hull, Mayor of, v. Homer. . 184 Hunt V. Bateman 124, 125 " et al. V. Hespeler 212 Hunter v. Farr et al 32 " V. Nockolds....ll2, 115 110, 118 Hurd V. Curtis 222 Hutcheson v. Sargent 128 Hutchinson v. Chase 227 " V. Copestake, 242, 245 Hutton V. Hamboro 200 Hyde v. Dallaway 98 " V. Graham 248 " V. Johnson 80 Hyland v. Scott 72 Incorporated Soc. v. Richards 4 75,76, 83 r.MiK Ingall et al. v. Reid . . . 253, 272 Ingalls et ux. v. Arnold et al. 23 Insole v JameB 200 Ivimey v. Stocker 174, 190 Jacks(m v. Duke of New- castle 247, 248 JaiKjue V. Jocquett 148 James v. Hayward 199 " V. Plant 180 " V. Salter . . 15, 33, 47, 90 Jameson v. Harker 04 Janes v. Jenkins 222 Jayne v. Hughes 75 Johns V Whitley 45 Johnson, lie 311 " V. Barnes 187 " V. Boyle 214 " V. Credit Lyonnais Company 280 " et al. V. McKenna . 31 " V. McLeUand 35 " V. Thoroughgood .. 199 Johnston v. Hogg 311 Jcjliir v. Pitt 57 Jones V. Cleaveland 39 " V. Jones 21, 08, 129 " V. Powell 203 " V. Richard 185 " V. Price 191 " V. Tapling 245, 240 Jordan v. Money . . . '. 282 Joseph V. Joseph 294, 297 Jourdain v. Wilson 197 Jumpsen v. Pitchers 48, 300 Kains v. Turville 215 Kator V. Pembroke 157 Kay V. Oxley 230 " V. Wilson 310 Keats V. Hugo 224 Keech v. Hall 42 Keffer v. Keflfer .... 20, 39, 09 Kelk v. Pearson 243 Kensington v. Bouverie .... 309 Keppel V. Bailey 1^6, 197 Kerr v. B-^avinger 200 " V. Coghill . . 104, 221, 236 Ketchum v. Ingleton . . 23, 24 Kidgill V. Moore 200 Kingston's Case, Duchess of. 153 Kipp V. SjTiod of Diocese of Toronto 24, 30 XIV LIST OP CASES CITED. PAOK Kirchhoffer v. Stanbury 311 Knight V. Uowyer 148 " V. Fox 232 Knox V. CJyo 106 " V. Kully, 122, 124, 125, 143 " V. Truvia 121 Ladyman v. Grave, 104, 194, 236 251 Laing v. Avory 18 Laird v. Birkunhoad Railway Co 201, 255 Lakin v. Lakin 270 Lainho v. Orton 303 Lampman v. Milks 222 Lanfrauchiv. Mackenzie, 238, 240 240 Langford v. Solwes 14 Langley v. Fisher 150 Langton v. Astrew 155 Lapp v. Lapp 128 Lapsley v. Grieraon 284 Large v. I'itt 260 Larkins v. Phippa 100 Latham v. Crosby 153 Law V. Bagwell . . .124, 143, 147 Lawrence v. Hitch 170 Lawson v. Langley .... 185, 202 Lawton V. Ford 124, 144 Lee V. McKiuley 128 " V. Wiliock 303 Leech v. Dennis 129 " V. Schweder, 198, 240, 247 Leeds, Duke of, v. Earl Am- herst 140, 100 Leig'vton v. Turred 40 Leonii rd v. Leonard 144 Lethbridge v. Hickman .... 85 " v. Kirkham .... 4 Lewe's Trusts, Re 303 Lewis V. Duncombe .... 115, 124 " V. Kelly 30 " V. Rumney 57 " V. Thomas 150, 158 Ley V. Peter 71 Lindsay Petroleum Oil Co. v. Hurd 253 Liney v. Rose 33, 34 Llewellyn v. Mackworth, 43, 146 Lloyd V. Davies 14 " V. Henderson, 23, 24, 288 Locke V. Mathews 39 Lockey v. Lockey 142 rAOR Locking V. Parker 145 Look wood V. Wood 170 Loftus V. Swift 103 London Brewery Co. v. Ten- nant, 243, 244, 246, 247 " Mayor of, v. Pew- torer's Comi)any . . 238 Long V. Town 104 Loring v. Loring 43, 87 Love V. Morrison 28 Lowe V. Carpenter 251 Lowry v. Crothera 191 Macaulay v. Roberts 208 Macclesfield (Mayor, &c.) v. Cliapman .... 170 " Mayorof,v. Ped- ley 175 Macher v. Foundling Hospi- tal 46 Mackreth v. Simmons 157 Mahar v. Fraser et al 95 Malloch V. Derinan et al. . . 20 Mallon v. Fitzgerald 40 Manby v. Bewicke 150, 168 Manchester Mills, Case of . . 197 Manners, Lord, v. Johnson.. 242 Manning v. Dever et al 36 " V. Phelps 10, 113 " V. Wasdalo 185 Mansell v. Mansell 166 Mansfield v. Ogle 124 Marcus v. Smith 46 Marker v. Marker 100 Marshall v. Smith 20 Martin v. Headon 244 " V. Wild 30 Mason v. Mason 278 Massy v. O'Dell 146 Mayer v. Murray 308 Mayfield v. Robinson 211 McArthur et al. v. McArthur 26 " V. Eagleson 278 McCargar v. McKinnon .... 66 McClenaghan v. Barker .... 33 McCord V. Harper 46 McCuUough V. Davis 67 McDonald v. Mcintosh. . 73, 87 McDonnell v. McKinty 22 McElvoy, Be 133 " V. Clone 100 McFadden v. Stewart 146 McGill V. Squire 46 LIST OF CASES CITED. xr McQillivray v. Oroat Wostem Railway C(t. . , " V. McMillin . . . McGregor ot al. v. La Push . " V. McGregor .... McIntoHli V. Ontario Bank. . Mclntyro v. Canada Co.. 20, McKechnio ot al, v. McKoyea 212, 213, McKinnon v. McDoiiald, 20, McLaren et al. v. Morphy, 30, McLean v. CroHsan McLennan v. Grant " et ux. V. Meggatt, McLood V. Austin et al McMahon v, McElroy McMaster v. Momson . . 29, McNah V. Adatnson " V.Taylor McNish V. Munro 30, McPlierson v. Norris McQueen v. McQueen Meades v. Lord Orrery .... Medlicot V. O'Donel Medway Navigation Co. v. Earl of Ronuiey M. E. Cjiurch v. Hoboken . . Mellish V. lirooks " V. Leak 43, Merchant Taylor's Co. v. Truscott Men'ian v. Cronk '. . . . Metropolitan Association v. Fetch Middleton v. Lambert Mill v. New Forest Commis- sioners Millechamp v. Johnson .... Miller v. Miller Mills v. Mayor of Colchester, Miner v. Gilmour Mitcalf V. Westaway Moflatt V. Walker Montgomery v. Southwell . . Moore v. Ro^vson 180, " V.Webb Mordaunt v. Thorold Moreland v. Richardson, 201, Morgan v. Thomas Morley v. Pragnell Morrell v. Frith PAOB 214 214 20 128 102 73 74 211 257 29 72 39 219 128 129 30 27(i 72 213 209 39 35 24 157 164 219 201 9 148 179 102 24G 177 190 19G 310 171 219 103 27 93 262 214 80 255 65 202 74 MOB Morris v. Loaseos of Lord Berkeley 247 " V. Moiris 140 Morse v. Royal 164 Moseley v. Walker 175 Moulton v. Edmonds. .4, 85, 305 " v. Edwards ..4, 85, 305 Monnsey v. Ismay, 170, 183, 194 241 Mulcahy v. Kennedy 164 Mulhollandv.Conklin, 29,32, 72 Murgatroid v. Robinson .... 214 Murphy v. Murphy 07 Murray v. Davidson 214 " V. Mathews 17 Musgrove v. Emerson 14 Mutlow V. Bigg . . . 125, 144, 147 Myers et al. v. Greely 19 Nuniock V. Honiton 106 Nash V. Glover 0, 20 National Guaranteed Co. v. Donald 180 Neft' v. Thompson 40 Nepean v. Doe 17 Newport, Mayor, «fcc. , of, v. Saunders 177 Nolan V. Fox 20 Norbury, Lord, v. Kitchin. . 219 North V. Cox 200 Norton v. Frecker 57 Nottingham, Mayt)r and Bur- gesses of, v. Landiert .... 177 Nuttall v. Bracewell 221 Oakes v. Smith 43, 44 Oakley v. Stanley 222 Obee v. Bishop 144 O'Hara v. Creagh 104 O'Kelly v. Bodkin 120 Oliver v. Richardson 86 Onley v. Gardiner .... 206, 206 O'Reilly v. Walsh 140 Orr V. Orr 25 Osborne v. Smith 139 O'Sullivan v. McSwiney 07 Overton v. Freeman 232 Owen v. De Beauvoir, 23, 80, 300 301 Oxford, Mayor of, v. Richard- son 178 Page V. Selby 09 XVI LIST OF CASES CITED. VACtK l\i«ut V. Foley Ill I'lilk V. Skiim.'r 2(54, 2<)(} Paliiiur V. Flutcher .... iJIJi), 240 " V. Paul 2;«) " V. Tlioriihock (12 l'H|)oii(1ick V. Ih'ul)j;watur, 188, 189 Parko V. McCldUKlilin 45 Purkor v. MitohoU 251 " V. Smith 247 " V. Sowt!rl)y 127 Parmontor v. VVubbor 14 Patrick v. Hhavor 121) Paul V. JolniHon 102 I*aulot V. Atty.-(junoral .... 157 PawHoy V. Harnos 144 Payno v. Shocldcn 252 PaynoU's Caao 293 PoarsDii V. Pearson 127 Polham V. Piokorsgill . . 170, 177 Poll V. Towers 178 Polly V. Bascombo 275 Ponnefather v. Ponnefathor. 27(> Penny v. Price 67 " lie, V. South Eastern Railway Co 242 Pentland v. Stokes 145 Potro et al. v. Mailloux .... 19 " V. Petro, 125, 140, 147, 149 Phono's Trusts, lie 303 Philips V. Troehy 200, 201 Phillips V. Mannings 125 Pickard v. Soiu-s . . 280, 281, 282 295 Pickering v. Lord Stamford . 159 Pinhorn v. Sctustor 40 Pipe V. Sliafer 102 Pitts V. Kingsbridgo High- way Bo.u-d 107 Plasterers Company v. Parish Clerks' Company 248 Plewes V. Hall 215 Plimpton V. Converse 225 Plumb V. McGannon 214 Polak V. Everett 282 Polden V. Bastard 222 Pomfret v. Ricroft 211 Pope V. Garland 30 Potter V. North 200 Potts V. Smith 237 240 Powell V. Simons 242 " V. Thomas 201, 255 Pratt V. Swaine 55 Preston v. Mann 279 PAOB Provoat V. Qratz 151 Prioo V. liorrington .... 150, 158 Prince v. Hoyliu 154 Pringlo V. Allan etal. 23, 27, 288 " V. Wornham 247 Prior V. Honiiblow .... 105, 100 Pn.vost V. Calder 222 Pyo V. Mumfnrd . . 193, 200, 207 Pultency v. Warren 159 QuarroU v. Bookford 82 Race v, Ward .... 105, 109, 187 Radonhiu'st v. Coato 201 Radnor, Lady, v. Rothorham. 129 Ratlbrty v. King 98 Ramsdon v. Dyson 282, 290 Randall v. Stevens 40, 72 Ravonscroft v. Frisby 140 Read v. Brookman 184 Reading v. Royston 299 Reedie v. Lcjudon & N. W, R. R 233 R. v. Aveiy 290 " V. Berry 290 " V. Bliss 189 " V. lirowstor 103 " V. Chorloy 152, 180 V. Cross 103 V. Dalby 109 V. Harris 182 V. Horsley 50 V. Hay 278 V. Inhabitants of Har- bourne 303 V. Kent 80 V. Lundey 284, 290 V. Mayor, &c., of Hast- ings 181 V. McCormick 03 V. Pitch 290 V. Rosewell 248 V. Sinnott 04 V. Steward, &c. , of Haver- ing 181 V. Talbot 175 V. Twyning 303 V. Westmark 181 V. Williams 04 Reignolds v. Edwards 252 Renshaw v. Bean.. 221, 242, 245 Reynell v. Lewis 281 Rhodes v. Smethurst 57, 58 «*•; LIST or CASES CITED. xvii %i PAOR Rich V. Brantford 208 Richards v. Fry . . 191, 250, 257 2(>U " V. Rose 223 Richardson v. Lnngridgu . . 41 " V. Yongo 101 Right V. DpThy 37 Rivos V. WatHon 12 Riviuro v. Jlowur 237 Roberts v, Macord 240 Robinson v. Fettorloy. . 215, 210 217 " V. Grave 239 Robson V. Whittingham 247 Roch V. CuUon .... 15, 90, 106 Roclulale Canal Co. v. King. 253 Roo V. LtL'H 30 Roger V. Taylor 172 Rogers v. Bronton, 10(», 107, 109 174 Rolfo V. Gregory 154, 157 Rosamond v. Forgio . . 209, 217 Rosewell V. Pnoi; 247 Round V. Bell 91, 115 Rowbotham v. Wilson, 172, 173 174 Rudd V. SewoU 100 Ruuiball V. Mot. Bank 280 Ruinnell v. Henderson, 20, 39 09, 273 Runcorn v. Doo d. Cooper . . 19 Rust V. Baker 303 Ruttan ot al. v. Smith 74 " V. Winans 211 Saffery v. Elgood 14 Salaman v. Glover 249 Salisbury, Marquisof , v. Glad- stone 109 Salter v. Cavanagh 140, 147 Salters' Co. v. Jay 179 Sampson v. Easterby 197 *• V. Hoddinott. . 218, 220 S-anders v. Norwood 103 Satterthwaite v. Powell .... 277 Saundei-s v. Dehew 155 Sawyer v. Linton 121 Scatherd v. Rielly 50, 89 Schofield V. Lr>ckwood 82 Scholes V. Chadwick 189 Scott, In re, 147 *' V. Bentel 223, 224 " y. Nixon 4, 77, 85 rArm Seagram v. Kniglit 140 Selby V. Nettlnlield 230 SeUey, Lord, v. Rhoades. . . . 100 Selwyn, In hotiin 278 Senior v. Pawson 245 Sharrington v. Shrotton .... 08 Shaver, lie, 131, 137, 139 Shaw V. Johnson . . 91, 116, 124 Sheldon v. Sheldon 36 Shephard v. Payne 171 Shepherd v. Duko 8, 105 Shirt V. Westby 100 Shuttloworth v. Le Fleming. 185 Sibl)ley V. Parry 106 ► dcox V. Sells 271 Sillick V. Booth 270, 277 Siiiikin V. Ashurnt 37 Simmons v. Chx.nan . . 22t', 227 Simper v. Foley 218, 240 Siu»i).son V. Savage 200 V. WelLs 170 Sinclair V. Jackson, 90, 104, 114 Skull V. Glenistor .... 200, 211 Smith V. Baker 139 " V. Day 14 " V. Lloyd 22, 288 *• V. Monis 250 " V. Owen 230 " V. Pithington 82 " V. Tynetal 05 " V. Walbridge 258 Snow V. Booth 124 Somerset Coal Co. v. Har- com-t 201, 255 South Sea Co. v, Wymondsell 139 Sowerby v. Coleman 170 Spencer's Case 197 Spratt V. Sherlock 46 Spurway v. Glynn 100 Stackpole v. Curtis 222 Stahlsmelt v. Lett 57 Stanley v. Shrewsbury .... 250 Stanstield v, Hobson 99 Stanway v. Rock 148 Staples V. Heydon 25(5 Stcinhoff V. Brown 101 Stephens v. Simpson, 24, 25, 20 Stephenson v. Hodder 50 Stevens v. Dennett, 223, 225, 227 Stewart v. Himter 128 " V. Murphy 32 St. Helen's Smelting Co. v. Tipping 205 XVIU LIST or CASES CITED. PAOR Rt. John V. BdiiKhton. . 124, 147 St. MicliaorH Cidloyu v. Mur- rick 7H, 121, 149 Stockport VVator Works v. Pottitr .... HV.i, 202, 2():i, 221 Stokoo V. Siii^orH 252 Htoughton V. Luo 178 Striioluiii V. Tlioiuiw Ill Htriiiglit V. Hiirii 245, 24(5 Stuart V. Spoiico VXi, 257 Sturgis V. Morso . . 140, 150, 158 Start V. Mullisli 302 StyloH V. Taylor 20 Siipi)Io,Li;sHooof,v.llayinon(l .'MK) Sury V. I'igott 218 Swaino v. Groat Northern R. W. Co 205 Swan V. N. B. Austrahiaian Co 280, 282, 29(5 Swanborough v. Coventry . . 240 Tabtjr v. Bradley 223 Tapling v. Joiiea . , 221, 238, 240 Taylor v. Croft 30 " V. Diplook 278 " V. Horde 132 " V. Stibbert 157 Thomas v. Brown 281 *' In re, v. Sorrell ... 102 210 " V. Thomas, 218, 223, 224 274, 303 Thompson v. Lash 300 " V. Maberley .... 37 Thorp V. Facey 39 Thorpe v. Brumfitt 292 " V. Stallwood 56 Thunder v. Belcher 41 Thurlow, Corp. of, v, Bogart. 216 Tickle V. Brown . . 214, 258, 207 Tidball v. Jones 07 Tiffaney v. Thompson 144 Tilling V. Bridger 87 Tindal, Be, 270 Tipping V. St. Helen's Smelt- ing Co 202, 204, 200 Toft V. Stephenson, 90, 106, 146 Tolson V. Kaye 10 Toronto v. McGill 209 " V. Mun. Council of York & Peel 209 Townsend t. Townsend, 143, 145 147 p*ni Trattio V. Kinff 66 TravorH V. (luHtin 128 Trow V. Railway I'aHHongor AHHiiranco Co 297 Triokoy v. Sooloy et al 273 Truolook V. Koby 98 TruoHdoll V. Cook 18, 72 Truro, Mayor of , V. ItoynolilH. 177 TrnHcott V. Merchant Tay- lorn' Co 237, 238 Tuckor V. Paron 259, 200 Tulloch V. Dunn 97 Tupporv. Hill 197 Turloy V. VVillianiBon. . . 18, .•52 Turner, AV, 21 " V. Buck 100 " V. Si»oonor 242, 243 Tuthill V. Rogers 4, 85 Tyson V. .Jackson 126 " V. Smith 108, 109 Underwood v. \N ing 277 United Land Co. V. Groat Eastern Railway 228 Uxbridgo v. Stavelaud 197 Vane v. Vane 151, 158 Vanhorne v. Grand Trunk Railway Co 214 Varley v. Leigh 14 Vernon v. Smith 197 Vincent v. Goring 90, 92 Vooght V. Winch 103 Voorhies v. Burchard. . 222, 223 Vyvyan v. Ai"thur 197 Wade V. Brantford 209 Wadsworth v. McDougal . . 215 Wakefield v. Child 87 Walker, iJe 303 " etal. V. Hyman..286, 280 " V. Preswick 167 Walmsley v. Milne 41 Walter v. Selfe 202, 206 Wanstead Local Board of Health v. Hill 204 Warburton v. Parke ... 191, 214 Ward V. Arch, 124, 125, 144, 148 " V. Cotter 98 " V. Cresswell 178 " V. Robins 260, 267 " V. Ward 68 Waring y. Devberry 66 LIST OF CASES CITED. liX Warner v. Tiiylor VViirri-n v. MiiltlicwB Wiirwu'k V. Quuuii a Cnllcj^o, (Kf.-nl 170, VViitiTH V. LiilwoU .... 104, VVutrnjii V. Miivli . . 104, 120, *' V. Kii','liitiil *' V. I'oriiio " V. Saul . . . 124, 144, WiittH V. Kt"lst)n . . 200, 22;{, Wohh V. Hinl 20«.>, Wolmtur V. Miivhimiro " V. \Vi.;l)HtL'r WoddurlMini v. Wudtloilturn. VVolfliiiiiin V. Stiir^iH Wol.uinov. Uiptou.. 181, 101, WoHtiicdok V. Cdc'vorlino. . . . WoHtiTii V. Caitv. right .... VVlialoy V. Luinir Whulloy V. Tli()i.ii)8ou.. 221J, " V. Wlijilluy Whelun v. McLacIilun WhoeltT V. Howiird " V. HowiiU " V. Montuliore Wheelhousu v. Darch . . 231, Whito V. JJaHS " V. Haiglit ** V. Laiiig " V. NoLsou Wickhani v. Hawker Wideinan v. Bruol Wiglo V. Morriok " V. Sht-nniok " V. Stewai'fc Wilcock V. Piircliaso Wilkinson v. Proud. . . . 1G3, Williams v. Comtnissioners of Cobourg Town Trust. V. Earl of Jei'sey . . V. McDonald. 39, 61 " V. Price PAO* 93 17H 194 120 121 270 2ir. 147 224 225 241 270 57 142 55 192 2(;o 12H 154 1(13 225 208 158 215 93 90 41 232 239 25 129 35 180 29 272 29 271 270 178 4() 200 , 74 309 Williams v. Wolch 120 WilliamHon v. Naylor 57 Williiigalo V. Muitlan.l 107 Willm<.t, AV, V. Larahuo. .38, 30 Wills V. Ody 247 Wilmm V. Mnoro 146 " V. Townui'ud 246 Wilts and Ikirks Canal Navi- gation Co. V. Swindcn Watir WorkH Co 210 Winihli'don,tVc. .Consorvutora V. Dixon 228 Wing V. Angnivi) 277 NN'intcrliottoniv. Lord Durhy. 200 Wisliart v. Cook 28 Wood V. Lodl>ittcr . . 1(;2, 211, 216 217, 253 " V. Saunders 231 " V. Sutciitlo 2(K), 207 " V. W^.od 220 Woodroltb V. Doo d. Daniol., 67 Woodward v. Dowso .... 46, 293 Woollcy V. Clark 54 WoolHuy V. Finch 46 Wor.s.sam V. Vandorhrando . . 59 Wragg V. Bockot 271 Wright V. Howard .... 216, 219 V. Morgan.. 89, 121, 309 V. NotliL-rwood 278 V. R-mkin 153 V. Tumor 208 v.Williuma, 191,250, 252 257> 267 Wrixon v. Vyso . . 103, 104, 141 Wyso, Re 124 Yardley v. Holland 145 Yarmouth, Mayor of, v. Groom 176 Yates V. Jack .... 243, 244, 248 Young V. Elliot .... 24, 28, 32 " V. Wateri)ark . . 115, 124 125, 144, 148 " V. Wilson 210 " V. Wilton 124 INTRODUCTION. Proscription is dofincd in tlio " Code Civil " m a " nionnH of acquirinj;? or of Iwin^ diriclnirj^od hy hi})80 of time, imd Bul)iect to conditions owtublirtiied \:y luw. " In positivo prescription, title is p'-esunied or conlirtncd, and ownersliip is triin»ferred to a poHsctiHor by the continu- ance uf Ilia puHsession. " Extinctive or no^utivc prescription is a l»ar to, mid in some cases precludes any action fur the fultllinent of an obligation, or the acknowledgment of a ri}^dit when the creditor has not preferred his claim within the time fixed by law." Code Civil du Bas Canada, Article 2183. " It might at first sight be considered that the (juration of wrong ought not to give it a sanction, and that the long suft'ering of injury should be no bar to the obtaining of right when demanded. But human affairs must bo conducted on other principles. It is found to be of the greatest im- portance to promote peace by affixing a ])eriod to the right of disturbing possession. Experience teachcB us that owing to the perishable nature of all evidence, the truth cannot be ascertained on any contested question of fact after a con- siderable lapse of time. The temptation to introduce false evidence grows with the difficulty of detecting it ; and at last long possession affords the proof most likely to be relied upon of the right of property. Independent of the question of right, the disturbance of property after long enjoyment is mischievous; it is accordingly found both reasonable and useful that enjoyment for a certain period of time against all claimants should be considered exclusive evidence of title." I^'irst lieport of Heal Property CormnissionerSy England, 39; Dundee Harbour v. Douyall, 1 McQueen, H. L. C. 321 ; Brown's Legal Maxims (5th edition), 343, 892. r^ INTROnirOTIOK. ^1 <) Tlio liintory of tlio (liflbroiit proHoriptiorm nml timou of pruHcripticiii would ho iiitoroMtiii^ to tlin Htudutit of con- Htitutioiiul liirttory, hut wo liiivo uiily Mpucu to ulliido briotly to tlioin lioro. Tim llrst your of Iloriry I,, tlio roi^n of Uiolianl I., Kiti^ JoliirH liiKt rotiini from IroUiitl into Kiig* liiiul, tlio coronation of Ilonry III., tho HrHt voyu^o of Ilonry in. into (iiMcoiiy, woro tho poriotin of limitation huccob- Hi voly Holuctod in Anglo-Norman timofl,and (;ontinuod,Homo of thorn, till tho roi;^n of Ilonry VII. In that roij^n, tho Waru f tho KoHOH having utiHottlod all property, tho LogiHiature rimhod to tho oppoHito oxtromo, and Hxod a kivk yoara limit hy tlno and non-claim. Gharloy'H Koal Property Auts; 20 Ilonry III. cap. 8; Stats. West. 1 ; 3 Edw. I. cap. .'ID. Previous to 3 ife 4 Will. IV. cap. 27, which has hoen almoHt entirely copied into our Canadian Statute Hook by 4 Will. IV. cap. 1, tho remedy was only barred. Hy that Statute, tho right itwolf is extinguished (a). " This," said Lord Leonards, " is a groat improvement. This inii)rovo- mcnt has hoen preserved in our Stat, of 38 Vic. cap. 17, s. 15, and tho Uovisod Statutes cap. 108, s. 15. In I/aivks V. Palling (^>), tho Court askod whether tho section did more than extinguish the right to sue." " There does not," observes Lord St. Leonards, " ap))car to bo sullicient foundation for this doubt. It is not the right to sue that is barred, but tho right and title to tho subject itself that is extinguished (c). The effect is therefore to confer a title on those in possession for tho specified period, which the former owner cannot disturb, and which tho new owner is competent to convey, and consequently such a title as a Court of Equity will force on a purchaser. '''' (d) (a) Bcckford v. W(vle, 17 Vcs. 87 ; Incorporated Soc. v. Richards, 1 Dm. & War, 289 ; 1 Wma. Maunders, 283, n. : 2 B. & Ad. 413; 1 B. & Aid. 93. (6) 6 E. & B. 659. (c) Charley's Ileal Property Acts, 25. (d) Scott V. Nixon, 3 Dru. & War. 388; Lethhridije v. Kirkharn, 25 L. J. (Q. B. ) 89 ; Tulhill v. Rogers, 6 Ir. Ecjuity Reports, 441 ; MouUon v. Edwarda, 1 De G. aiid F. & J. 250; Real Property Statutes, 9; Charley, 25. INTHODUCTION. In Ontftrio, acoordinjif to our r«<;r'''t'*y Inwn, a tltlo liy po«- MMwioii Im prolmltly tliu inoHt ditliiMilt to ^ot li |>iirrliuMur to Bccu|>t. Tho ('(mvuyiinror lii»n to />'/f/^'' in tluMMMiHtnictlon of \m titlo. IIo (run Hnd notliin;; <»n tlio n«j;iHtry l»oli!tij liirt cimin ot' titlo. Of courHo, tliirt all ari«t'(« from tin? f«»lly of our njotliod of triuinfrrrinjif liind, n t'oWy wliicli it i« IiojhmI tho Lffxinluturo of (^nturio will Uccoirte alivo to ut Honic futuro tiino. Vciirrt uu\y elujwtt, iind thin hook will l)u Urtcfid in tliu iniMintinio. Wo may inonlion, howover, tlmt i\w folh/ (!onrtirtt« in our Byrttoni iA' (lijinufi fit title. No piirt of tlu; t-liuin \a htronjjfcr tlum liny inirticnlur link. Wo hIiouIiI uinond our folly by adoptinj^ tlio syrttoin of int/rj>,n. In case of rent under lease, s. 5 (5). In case of tenancy from year to year, s. 5 (6). In case of tenancy at will, ss. 5 (7) and (8). In case of forfeiture or breach of condition, s. 5 (9), (10). !). In case of future estates, f>a. 5 (10), 5(11), 5(12). Period of limitation as to future estates, s. 6. Administrator to claim from death of deceaood, s. 7. Entry not to be deemed poasesaif , 8.8. Continual claims not to preserve rights, s. 9. Descent cast, warranty, &c., not to bar right of entry or action, a. 10. Possession of one joint tenant, &c., not to be deemed possession of another, a. 11. Possession of relatives not to be deemed poasession of the heirs, a. 12. Acknowledgment to be equivalent to possession or receipt of rent, a. 13. Receipt of rent to be deemed receipt of profits, a. 14. Right of party out of possession extinguished at the end of the l)erio(i limited, s. liJ. Action for arrears of dower, rent and interest to be within six years, aa. lG-18. Mortgagca ; Mortgagor out of poasession bar- red after ten years, a. 19. Acknowledgments, ss. 20, 21. Mortgagee oarred after ten years, a, 22. Actions for money charged on land and legacies, a. 23, 24. Actions for dower, s. 25. Bar of estates tail, ss. 26-28. Limitation of suits in equity, ss. 29-33. Prescription in cases of easements : Profits d prendre, s. 34. Rights of way, water and other easements, s. 35. Light, s. 36. Interruptions, a. 37. Pleadings in actions, &c., as. 38, 39. Disabilities and exceptions : In cases of easements, ss. 40-42. Time during which a party under disability not to be counted, 8.40. Term of years excluded in comput- ing time in certain cases, s, 41. Exception as to lauds of the Crown, 8. 42. In cases of land or rent, s. 43-45. Five years allowed from the ter- mination of disability, s. 43. Twenty years the utmost allow- ance, s. 44. No further time for a succession of disabilities, s. 45. 8 JONES ON PRESCRIPTION. [sees. 1, 2. : i i In 38 Vic. cap. 16, Ontario, 1874, the Act is entitled, " An Act for the furtlier Limitations of Actions and Suits relating to Real Property." Tiie preamble is as follows : *' Whereas it is expedient to lessen the time for making entries and distresses, and for bringing actions and suits to recover land or rent in certain cases fvom forty to twenty years, and in certain other cases from twenty to ten years, and in certain other cases from ten to five years, and also to lessen the time for redemption by mortgagors, and for recovery of dower, and of money charged on lauds or on rent, (md of legacies ; and also to provide for cases of money and legacies charged on land, or on rent seoiired by express tnxst, according to the i)rovi- sious hereinafter contained respectively relating thereto." A question arose under this Act whether the right to bring an action for a general pecuniary legacy payable out of personal property was curtailed to the period of ten years. It was decided that the Statute of 3 & 4 Will. IV. cap. 27, applied (a), and our Revised Statutes have set it at rest. Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1* This Act may be cited as ^'The Real Property Limitation Act.'' The system of having a short title for Acts of Parliament on account of its convenience has now come into vogue. There is unfortunately no short title by which the Statute of Limitations of the Imperial Act 3 & 4 "Will. IV. is known to the law. As this Act embraces also the Act with regard to Ease- ments, perhaps something might have been said in the title to have called attention to the fact. It is, however, better to have the title for Acts as short as possible, and the student is supposed to gather what is in the Act when he reads it. H, The words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, (a) Shepherd v. Dulse, 9 Sim. 667 ; Cooke v. Creswell, L. R. 2 Eq. 116, Vide Revised Statutes, cap. 58, a. 8. 11 iif^ 8-88. 1-3.] REVIBED STATUTES, ONTARIO. shall in tliia Act, except where the nature uf the provision or the con- text of the Act excludes such oonstniotion, be interpreted as follows, that ia to say : (1.) " Land " shall extend to messuages and all other hereditaments, whether corjjoreal or incorporeal, and to money to bo laid out in the purchase of land (and to chattels and other personal property trans- misaible to huira), and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles and interests, or any of them, are in pos- session, reversion, remainder or contingency ; (2.) "Assurance" shall mean any deed or instrument (other than a will) by which any land may be conveyed or transferred at Law or in Equity ; and (3.) "Rent" shall extend to all annuities and periodical sums of money charged upon or payable out of any land. C. S. U. C. cap. 88, B. 49. " Land," &c. This definition is taken from the C. S. U. C. cap. 88, 8. 49. Also the definition of "Assurance" and " Rent." The revisers have improved the former section by dividing it, and placing it at the beginning instead of the end of the Act. The wording of the Imperial Act 3 & 4 Will. IV. cap. 27, 8. 1, is as follows : "Land" shall extend to manors, messuages and all other corporeal hereditaments whatsoever, and also to tithes (other than tithes belong- ing to a spiritual or eleemosynary corporation sole), and also to any share, estate or interest in them or any of them, whether the sanxe shall be a freehold or chattel interest, and whether freehold or copy- hold, or held according to any other tenure. Under the definition of " Land " in the Imperial Statute, turnpike tolls were not within the Act, and consequently more than six years arrears of interest might be recovered notwithstanding the 42nd section of the Act (a). Our (a) Mellish v. Brooks, 3 Bev. 22. 10 JOKES ON PRESCRIPTION. [sec. 2. Statute is much more extensive, and takes in ail corporeal and incorporeal hereditaments. Statutes of Limitation are Statutes of repose, and should be construed liberally {per Dallas, C. J., in Tolson v.Kaye^ 6 Moore, 558) ; see also the maxims, " Interest reipuhlicm ut ait Ji/nia litiurrij'' and " Vlgilantibua non dormientihus jura suhveniunt,''^ Broom, 343, 892. Quarries and limestone land, and land held under grants of the exclusive right to mine would come within the Act (a). Shelford says, p. 132, " The limitation prescribed by the 3 & 4 Will. IV. cap. 27, does not apply to an action on a collateral covenant for payment of a rent charged on land, and the covenantee may recover damages for the breach of that covenant, notwithstanding his right to recover the rent- charge is barred by this Statute." Manning v. Phelps, 10 Exchequer, 59. Under our Ontario laws, it is submitted that he would not be able to recover the rent. " Rent." This refers to the estate in the rent, not to the rent reserved, so that a mere non-receipt of rent under a lease for more than twenty years does not deprive the lessor of his right to rent under the lease. Grrant v. Mlis, 9 M. & W. 113. Lord St. Leonards said " rent," in the sense in which it is spoken of here, means rent of inheritance, and it does not mean rent reserved by lease, for example, or rent in the common and customary form of a vendor for property. Dean of My v. Bliss, 2 De G. M. & G. 459 and 472. " Hereditaments" is a very comprehensive term, including whatever may be inherited, be it corporeal or incorporeal, real, personal or mixed (h). An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning or annexed to, or exercisable within the same. In our Act all classes of hereditaments are (a) 3 It. Law Rep. 521. (6) Co. Litt. 4; 2 Black. Com. 17. 'I fl-8 .3.J REVISED STATUTES, ONTARIO. u included, wliereas in the English Act it only applies to corporeal liereditaments. " And to money to be laid out in the purchase of land." It would appear an odd definition that in interpreting the meaning of "land," it should be declared to be " money." This is one of the principles of the Court of Chancery, that wiiere the devise has declared that the money shall bo laid out in land, the money should be considered " land." " And to chattels and other personal property transmis- sible to heirs." This is inserted here in the definition in order to fully carry out the principles of the Imperial Act, 24 Vic. cap. 38, which we have embodied in our Statutes. That Act in substance recites: "Whereas it is expedient that the Act of 3 tfe 4 Will. IV. cap. 27, should bo ex- tended to the case of claims of per3on8 dying intestate." We refer to this matter 8ubsL^..ently. " Rent." — A rent (reditus) is properly a sum of money or other thing to be rendered periodically, in consequence of an express reservation in a grant or demise of lands and tenements (a). There are at common law three kinds of rents {h). Bent- service is so called because it hath some corporeal service incident to it, as at least fealty or the tenant's feodal oath of fidelity (Co. Litt. 142) ; for if a tenant holds his land by fealty and ten shillings rent, or by the service of plough- ing the lord's land and five shillings rent, these pecuniary rents, being connected with personal services, are therefore called rent-service. And for these, in case they be behind or in arrear at the day appoiuocd, the lord may distrain of common right, without reserving any special power of dis- tress ; provided he hath in himself the reversion or future estate of tho lands and tenements, after the lease or par- ticular estate of the lessee or grantee is expired (c). A (a) 2 Black. Com. 31 ; Gibb on Bents, 9. (b) Litt. 8. 213. (c) Litt. 8. 215. T^ It JONES ON PRESCRIPTION. [sec. 2. rent-charge is where the owner of the rent hath no futnre intorcBt or reversion cx))cetnnt in the land, as where a man by deed inaketh over to others his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of d'^.tress, that if the rent l)e in arrcar or behind it shall be lawful to distrain for the same. In this case the land is liable to distress, not of common rigiit, but by virtue of the clause in the deed, and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. In Ontario the common method for formers is to deed the land to their sons on condition of their sons supporting the fathers. It would be much better to charge the land and reserve a rent, making the land subject to a rent-charge which might be recovered by distress against the land itself, no matter who may be in possession. lient-seck {reditus siccus) is in effect nothing more than a rent reserved by deed, but without any clause of distress (a). Either a rent service disconnected from the reversion (J), or a rent-charge may be divided by will or by deed operat- ing under the Statute of Uses, so as to make the tenant liable without attornuient to several distresses by the de- visees or cestui que use. It seems that since the Stat. 4 Anne, cap. 16, s. 9, a rent charge may be divided by a con- veyance of any kind (c). There are also other species of rent, which are reducible to these three. Roits of Assize are the certain established rents of the freeholders and ancient copyholders of a manor, ■which cannot be varied or departed from {d). Those of the freeholders are frequently called chief rents {reditus capitales), and both sorts are indifferently denominated quit rents {guietus reditus), because thereby the tenant goes quit .) 2 Blk. Com. 42. diy. Watkin, Oro. Eliz, 637, 651. icj 'V.i'ea T. Watson, 5 M. & W. 255 ; Cdbome v. Wright, 2 Lev, 239, .' » ".'Tiat 19. REVISED 8TATUTK8, ONTARIO. 13 H-S. 3.] and free of all other services. A fai farm rent is a rent- charjjfo issuiiif^ out of an estate in fee, of at least ono-fourth of the value of the lands at the time of its reservation {a). For a grant of lands roservinj; so considerable a rent is indeed only letting lands to farm in fee simple instead of the usual method for life or years (2 lila. Com.). An opinion is ex|)re98ed by Mr. llangravo (Co. Litt. 143, n. 5), that the true meaning of fee farm is a perpetual farm or rent, the name being founded on the perpetuity of the rent or service, and not on the quantum ; and that the term is not applicable to any rent except rent-service,, whore he differs from Mr. Douglass, who had thought that a fee farm was not necessarily a rent-charge, but might bo a rent- seek {h). These are the general divisions of rent; but the diflPerence between them (in respect of the remedy for recovering them) is now abolished. By Statute 4 Geo. 11. cap. 28, s. 5, the same remedy was given by distress, and by impounding and selling the same, in cases of rents-seek, rents of assize and chief rents, which had been duly answered or paid for the space of three years, within twenty years before the first day of that session of Parliament (January 21, 1731), or should be thereafter created, as in the case of rent reserved upon leases. As the Parliament of Upper Canada laid down in the year 1792 that the laws of England should hold with regard to civil rights, the differences prior to the Statute of Geo. II. did not and have not entered into the study of the Cana- dian student. They are mentioned here as interesting in a historical sense. It may also be mentioned that unless the case is brought within this section of the Statute of Geo. II. a rent-seek cannot be recovered by distress {Bradbury v. Wright^ Douglass, 627). It is not, however, necessary that the three years mentioned in the Statute should be continuous ; (o) Co. Litt. 143. (b) Bradbury v. Wright, Douglass, 627, n. 1. ' '■': I L I i a 1 i u JONES ON PRESCRIPTION. [sec, 2. it Ih 8ufli(Ment if, for the spaco of tlireo whole years within twenty yearn before the paswiii^' of the Act, the rent was paid, thouj^ii those yeurti may not be couBccutive (a). A tenant by elegit ban a right to distrain without attorn- jnent (h). An action of debt liea on an ex])rc68 covenant for the pay- ment of a freehold rent charged on land conveyed in fee (c). A lessee for years assigning his term, reserving a rent, with no clause of distress, not having any reversion, cannot dis- train for the rent either by common law or by the Statute ( V. Cooper, 2 Wills, 375; Parinenter v. Webber, 2 B. Moore, 050; 4 Taunt. 720; 8 Taunt. 593; Lamjford v. Selwcs, 3 K. cV: J. 220) ; although he may re-enter on the breach of a condition {Doe v. Baieman, 2 B. «& Aid. 108 ; Smith v. Day, 2 M. & W. 084). A rent-charge granted for life by a tenant for years is good as a chattel interest, and the goods of a stranger not shewn to hold the premises by title paramount to the rent-charge (as by a prior demise) may be distrained for the arrears {Saffery v. Elgood, 1 Ad. & El. 191). Our Statute limits rent to payment of money, whereas the Statute 2 & 3 Will. lY. cap. 27, has been held to payment of other things, or of service. See Paterson, J., remarks, 7 Q. B. 979; also Doe d. Edney v. Benham, 7 Q. B. 981. But see the curious case in relation to a grind- stone. Doe d. Robinson v. Ilinde, 2 M. & Rob. 441, and 7 Q. B. 978. " Annuity " is a thing very distinct from a rent charge, with which it is frequently confounded : a rent charge being a burden imposed upon and issuing out of the lands ; whereas an annuity is a yearly sum chargeable only upon the person of the grantor (2 Bla. Com. 40). The material distinction (a) Mitxgrave v, Emerson, 10 Q. B. 326; Shelford's Statutes, 137. (b) Lloyd V. Davies, 2 Exch. R. 103. (c) Varley v. Leujh, 2 Exch. II. 446. 8-8. 3.] HKVISKD STATUTES, ONTARIO. 16 between an annuity and a rent is that the former is a charge on the pergonal estate only, and the hitter on the real. An atiMuity eharj^ed upon land is hy this clause included in the word " rent" as used in the Act. An annuity charged by will on lands, with a power of distrecs in default of pay- ment after twenty days, was hold to bo extinguished by sec. 2, twenty years after the first right to distrain accrued after the testator's death. Jauiea v. Salter, 2 Bing. N. C. 544. An annuity given by will and not charged upon land, is within the provision as to legacies in sec. 23. Lord St. Leonards was of opinion that such an annuity would be extinguished if no paynjont were made for twenty years (U. I*. Stats. 138, 2nd edition). IJut it has been suggested that time must be reckoned sei)arately with regard to each payment, and that the annuity would not be extin- guished by non-payment for twenty years. Darb. Bos. Stat. Limitations. Such an annuity has been decided not to bo within sec. 17. Jdoch V. Oullen, 6 Hare, 531. If such an annuity be secured by bond or covenant, the non-payment of each instalment is a distinct breach, and time runs against each as it becomes due. Arnott v. Ilolden, 18 Q. B. 593. 3< This Act shall commence and be deemed to have taken effect, and chapter eighty-eight of the Ccmsolidated Statutes of Upper Canada, and section twenty -two of the Act passed in the thirty-second year of Her Majesty's reign, and chai)tered seven, to have been repealed, on and after the first day of July in the year of our Lord one thousand eight hundred and seventy -seven, as respects any person who on and for twelve months continuously after the twenty-first day of December, one thousand eight hundred and seventy-four, resided without tliis province, and is a person entitled to make an entry or distress or to bring an action or suit to recover any land (jr rent ; or so resident is a mortgagor, or person entitled to redeem witliin the meaning of the nineteenth, twentieth, or twenty-first sections of this Act ; or so resident is a person entitled to, or claiming under a mortgage within the meaning of the twenty-second section ; or so resident is a person entitled to bring an action, suit, or other proceeding within the mean- ing of the twenty-third section; or so resident is a person entitled to 'Si-; IG joifW! o^f I'RKHcnri'TiON. [wfCH. 3, i. uii ftction, Huit or other pn»ooo. l(i, h. M. For ])orflon8 living without tho Province continnohjiy, sinco 2l8t Doc. 1874, this Act cointnoncefl to run tho let July, 1877, for others Ist July, 1870. I LAND OR IlKNT. 4« No person sliall make any entry or tliHtruss, or bring any action or suit, to recover any hind or rent, but witiiin ten years next after tho time at which the right to make Htich entry or distruHS, or t<» bring Huch action or suit, first accrued tf) some poiuon through whom ho claims ; or if such right did n<»t accrue to any peinon through whom he claims, then within tkn years next after tho time at which tho right to make such entry or distress, or to bring such action f»r suit, first accrued to tho poison making or bringing tho same. 38 Vic. cap. 1(>, 8. 1. To students and to non-professional men it may be well to state that the difficulty in most cases as to title is to dis- cover when the Statute first commenced to rim. If it once commences to run it never stops, and at the end of the time limited by law the person in possession in entitled to the title. Doe d. Dixon v. Grant e< a^., 3 O. 8. 511. He not only bars the remedy of the original owner to recover, but he obtains a right to the land. It will be obvious to almost any person that, having obtained the right, he should have some moans of making it appear. There ought in fact to be a new departure — a patent should again issue, and this dependent title system start afresh. This practice and its general utility in these cases will accustom the minds of men to look forward to the time when a system of independent titles will be introduced. w RKVIHKD UTATUTEH, ONTARIO. IT Tlio Kn'. 1'. 70. AIho, wlioro tlio ownor of land put IiIh fiitlior in |><»nHOh., ciin H. turn (/. out ti^^iiin hy revortin;^ to liiri titio undyr tlio Actf Doe d. Amman v. Mini horn,; W i\. W. \^i\\. Ssmhle: Tliiit a pluintitr in ojcctincnt, relying in the opcnin^X of Iiirt chho upon u prima fach titIo by poHscrtnion, and Id'inji; luet l>y proof on tlio part of tlio dofi'iidiint of a prior p(Mrt(!rtrtion, cunjiot repel hu(^Ii pntof by attijinptiiii; to rtlunv tbu poHHCrtrtioti of tliu defendant that of a ti^nant to him (the plaintitl') as laiullord. lie should ^o into his ('aHO fully in the tirnt itirttiineo. Itobiiirion, C J., diss. Do6 d. OHhornc v. MoDowjal^ (5 (}. V>. l.'ir). The practice at the preneiit time would have admitted the evidence. A defence under the Statute against a clear title is not one to be favoured, e8|>e('ially in cases between relations; and where the jtiry have leaned ajjainst such riv(Hl tho doroiidtuit of n titio ac(|uirod undor tlio 8tntuto of MmitiUiouH. Doc d. Ihiy v. limnctt et af., 21 Q. n. 405; vide txUo Malhwh v. Ih'ntuin et al, '22 (i. H. 54. V» hero ft piirty, l>y dood, \m» ^nintod a pioco of liind to another, tliou^h ho nuiy rotiiin ponaossion of |mrt of tho Iftud gnuitod, Hiid th«)Ugh tho ;i;ruu!oo imiy suppoBo his ^nuit dooi* not cover 8udi part, yot if the dood doos Jictujilly oovor tho lauij, tlio jjrantoo is entitled to it if lie asserts his ri^ht within twenty yours of tho date of tho grant. Styles v. Tatjlor, 14 C. I*. Dll Possession of land of wife does Jiot pive husband absolute rijjht to the land ; any ^rant nuido by him will only pass an estate for bis own life, if his wife siioidd so long live. Nolan V. Fox., 15 C. r. 505; McGmjor et al. v. La. Pushy 30 Q. R. 2!)0. With regard to tlio effect of regiBtration, a gomi case is that of ILimUton et al. v. Lighthody. 21 C. P. 120. A deed *)f tho land in question from tho testator under whom the plaintitf claimed to one P. was produced by defendaiit unregistered, and under which the grantee had never taken possession, tho testator having retained posses- sion till his death, and his widow and devisee for life having continueil in possession under tho will which she registered ; in all a period of twenty-seven years. Held^ that the title of the plaintiffs, who claimed under the deceased in remain- der under the will, was not defeated by the deed to P., for whatever estate was conferred, by it was lost by the twenty- seven years' adverse possession. IlamilUm et al. v. Light- hody, 21 ^. P. 120 ; Boys v. Wof>d et al., 39 Q. B. 495; MchUyre v. Cajiada 6\).,18 Chy. 307; Connor \.McPher,'son, 18 Chy. 607 ; Greenstreet v. Paris, 21 Chy. 229 ; Nash v. (?^^T, 24 Chy. 219. An action at law for the assignment of dower is barred by thid section. Marsludl v. Smithy 5 Giff. 37. IlKVIHRD HTATITTKH, ONTAIUO. 21 A i>liiintiir, udmittod to bo in i)()swKHi()M, and HOfikiti^ to tlirtpliico tlu* title iind((r wliich tlio diitnndantrt cluirn on tlio j^round that it whs barnnl by tb(! Statute, ncdd not Hbow what that tithi was and liow it was barrcfl ; but a {xcnoml alh« M. k^ VV. <»:)1). Sholford wijH, p. 140: "Tho word 'mit' in the second section of tlio Act (4tii sccttion of Ontario Act), «iocH not inchnh! rents riwervcd on leaHCH for years, i)nt is confined to rents reserved as an iidieritance distinct from the land, and for which, before the Statnte, the party entitled nii^ht have had an assize, such as ancient rent service, fee farm rents and the like." Grant v. /i7//«, 1) M. it W. 118. Mere non- receipt therefore of rent under a lease for more than twenty years does not deprive the lessor of his ri^^ht to rent under the lease. A lessee of premises for one hundred anr>e ^/. '/r/yA//' v. S,\,:ton, 8 C^. H. 2*i4 ; Martin v. fF/A/, 1J> (i. I{. «;{1. Tho tact timt both i)liiintitr and (l((t(iii(l;mt ill the iibovo chho wore under a common error art to the true houiuhiry, will not prevent the Statute from runniiii^ a<:jainHt tlio true line. McNiah ei at. v. Munro, 25 C. 1'. 2J)(). Ab to exchan^^o of land, sec Findley v. Pedan, 20 C. P. 483 ; Tuf/hr v. Oroft, 30 Q. 13. 573 ; Cole v. Jinmt, 35 Q. B. 103; Elliot V. Bulrner, 27 0. P. 217; Bernards. Gibson, 21 Chy. 195. Possession is considered continuous, though there may bo a break: McLaren et al. v. Morpky, 19 Q. U. 609; Lewis V. Kelly, 17 0. P. 250 ; Kipp v. Incorporated Synod of Diocese of loronto, 33 Q. B. 220 ; McLeod v. Aiistin et aL\ 37 Q. B. 443. In ejectment, defendant claimed under a deed from one C. Tho land had been fijranted to A., a married woman, and C. proved that in 1825 he got a deed, since lost, from her and her husband, on which was endorsed a certificate of A.'s examination and acknowledgment by two magis- trates, both dead, before whom he took her for that pur- pose, lie bought out the interest of one K., who was in possession under an agreement to purchase from A. and her husband, and he paid the balance due to them by K., from whom he received possession. A. and her husband having died within the last five years, their heirs brought ejectment. Held, that the plaintiffs were not barred by the Statute, for that C. under the circumstances entered as a purchaser from A. and her husband ; that their deed to hira being void, he held as tenant at will, and the Statute did not begin to run for a year, since which forty years ha4 not elapsed. Amey et al. v. Card et al., 25 Q. B. 501. The burden of proof is thrown upon the defendant in ejectment to shew that the Statute is inapplicable. Doe d. McKay v. Purdy et al., 6 O. S. 144. ill RKVIHKU 8TATUTK8, ONTAKIO. 31 «-M. 4.] TI»o effect of tlio exception in fiivonr of tljo grantee of tlio (/fown who liiiH never gone into jxwrtertHion i^, tlmt wiulo ignorant of tlio fact of liin luml being in tlio ixwrteKrtion of ftonie other, ho is not to ho regarded iw ared and signed by the referee should be served upon tho person hav- ing tho pai>er title, if ho can bo found; but if not, evidence should be put in both of search for him and his representa- tive ; and if such search prove fruitless, ])os8es8ion should' be shewn long enough against him, even though he had no notice of such possession. A mortgage more than twenty years old appeared upon the Registrar's Abstract. A discharge of this did not a])pear to have been registered ; none was ])roduced, nor was any proof given of the mortgage ever having been discharged. It was stated on affidavit that nothing was known of the mortgagees, and that no demand had ever been made for the mortgage debt, though nothing had been paid, and that no acknowledgment had been given within twenty years or more. Held, that evidence should be adduced of search for tbft mortgagees or their representatives. That a single m 81 JUNRH ON i>krn(;hiption. y> i \> [moo. B. ex parf*' ulHdiivit timt no puyituMit or (loiiuuul Iiiih tiikoii place would not bur cliiiinH of inort^ii<;(H)M who could l)u Burvcd with notice. Hut if thuy could not ho found, iU)tico might ho dirtpciirtud with after a groat length of time and Hatirtfiu-tion pronuinod (a). Under the prcHorit Statute, ho would have ordy to hIiow a twenty yearn' |)oH(). Whuro any [)ur8()n ia in poHMusHion or in rccolpt of thu proAta of any land, or in ruuuipt of any runt by vii>tuo of a Ioohd in writing, by whicli w runt unionntint; to thu yuarly muui of four tloUurH or uiiwimU is ruHcrvud, luul tliu runt ruHurvud by Huch Iuohu \\o» buun ruotMVud by Homu purHon wrongfidly clainunj< to be untitlud to Hiich liind or runt in ruvurHion imniudiatuly uxpuotant on thu duturniination of hucIi Iuiihu, a>M/ MO payment in respect of the, rent renerenl by such leane hus after' wards been mode to the person riyhtfnUy entitled tlureto, thu right of tho purHon untitlud to aiiuh land or runt, subjuct to such luasu, or of thu purHon through whom liu clainia to niako an untry or di.stru8a, or to bring an action aftur thu dutunnination of uuch luaau, shall bu duuniud to havu lii-st accrued at thu tiniu at which thu runt resorvud by such luaau was Jirst bo rucuived by tho purson wronyfidly claiminy as aforo' said, and no such right ahall bu duuniud to havu first uccruud upon the dutunnination of such luasu tu tho person rightfully untitlud. C. 8. U. C. cap. 88, 8. 10. LANDLORD AND TENANT. Where a landlord places a tenant in possession of lot one, and the tenant knowingly encroaches on lot two, held that the tenant's occupation does not enure to create for the landlord a title to lot two. Doe d. Smith v. Dearis, 3 Q. B. 411. (avtiu«nt of rout (loon not cuuho the Stututo to run till iiftrr till! (It'turminiitioii of tliu lounc. Liney v. Hone, 17 0. I*. W\ following Dm d. Daoy v. Oxmham^ 7 M. & W. lai. In tlio 3nl 8ul)-flection to tliiH Hootitm wo linvo follow^ed tlio En^li^h Act, and havo inncrted tlu* words "other than ti will." Tho oauo of James v. Salkr, 2 Hing. N. C. 605, wluM'u tho |)1aintiir m an annnitant nndur a will wan do- olarocl hy the Court not to ho barrtul ovon uftor twonty yearn, and tho i»Rnto carto »)n review in .'J Hin^. N. C. 544, where thii* decirtion was reverrfed, is worthy of heinjif noticed. Viitv Ihu d.Jarohay. I'/iiU/}^, log. H. i;i(); Ganai'd v. Tuck, 8 C. 11. 231 ; Drummond v. Saut, L. U. g, H. 703. (0). NVhoro ftiiy p«rnnn Ih in poHHoBHion or in rocoipt of tho profltn of «ny liiiid, or in nx-oipt of any ront im tonnnt from your to yuar or othor ponod, wiMi' III any iuiuu in writing, tiiu right of tho porHon ontitlud ■uhjuct thuruto, or uf thu jtunton tlirough whom ho chiinia, to make ftu untry or diHtruMH, or to bring lui action tu rucovurHUcti ind or runt, shall )k' iluuniiid to havu tirHt aournud at thu duturmination of tliu hrut of Buch yoarit or othur puriodH, or at thu hutt titnu whun any runt pay- oblu in ruHpuct of uuch tunancy waa rucuivud (whiuhuver laat happunud). C. S. U. 0. cap. 88, a. U. This section fixes tho time when tho right of action accrues cither at the end of tho first year or other periods of tenancy, or tho last tiino when there was payment of rent. This section is taken from 4 Will. IV. cap. 1, b. 20. It was held in McCleiiaghan v. Barker, 1 Q. B. 26, as follows: "A letting at an annual ront constitutes a yearly tenancy, which continues at the same rent for tho second year as the first, if tho tenant remain in possession of the premises ; and the landlord may distrain for tho first year's rent at the end of tho second year ; and tho Real Proi)erty Act 4 Will. IV. cap. I, s. 20 (the section now under con- sideration) does not deterraino the tenancy at tho end of the first year so as to make it necessary to distrain within six months afterwards." in 1 I 34 JONES ON PRESCniPTION. [sec. 6. i I 1 i 1 ; i 1 . Hi s \ ( . Chief Justice Robinson, in delivering tlio judgment of the Court, said : '' Witli respect to the argntnont founded on the Real Property Act, 4 Will. IV. cap. 1, s. 20, I am of opinion that that clause must always be taken in connection with the 16th clause (4th sec. of this Out. Act), and that it can have no effect on the rights of parties until twenty years have elapsed, when its operation applies and not before." This section requires an instrument in writing which may operate as a lease, and a party holding property for twenty years without such a lease, or payment of any rent, acquires a title. Doe d. Lansdetl v. Oower, 16 Jur. 100 ; 21 L. J. Q. B. 57; 17Q. B. 589. With regard to admissions of payment of rent, see Doe d. Earl Spencer v. Beoket, 4 Q. B. 601. Where the circumstances are disputed. The circumstances connected with the annual payments are very important, for if the person paying makes the payment expressly or impliedly on account of something else than rent of land, of which he is tenant, that would not be a payment of rent within this section. Attorney-Gen. v. Stephens, 6 De G. M. & G. 146. In Baines v. Lumley, 16 W. R. 674, the time commenced not to run from the death of lessor, but from the last pay- ment of rent. In our own courts, in Liney v. Rose, 17 C. P. 186, it was held that where in the case of a lease for twenty years, the lessor permits tlie lessee to continue during the term without payment of rent, the Statute does not begin to run against the lessor and those claiming under him until the determination of the lease. Vide also Davy v. Oxen- ham, 7 M. & W. 131 ; Doe d. Johnson v. Liversedge, 11 M. & W. 517. A lease for life for a nominal rent, not under seal, althougii it could not pass a freehold interest, would operate as a lease S-8. 6.] REVISED STATUTES, ONTARIO. 35 from year to vear. Doe d. Lawson v. CouiU. 5 O. S. 499. Plaintirt claimed unrler a deed from J., the patentee, dated 12th April, 1853, and proved that on the 4th of April, 1854, he served defendant with a notice to give up possession on the 30th September then next, in failure whereof, "I shall require you to pay me rent of £1 per month for the same, for every month wherein you may continue in possession of the same, until I recover possession of the same by lepjal proceedings or otherwise," Defendant, at the time of the deed to the plaintiff and for some time previous, had been living on the lot under a verbal agreement with J. that he should have it for several years, and had made improve- ments. Ihld^ that the plaintiff must recover ; that the notice was not an acknowledgment of yearly tenancy, so as to entitle defendant to six months' notice ; and that the agreement with J. could have no effect. Cleland v. Kellyy 13 Q. B. 442. See also as to yearly tenancy the following cases : Doe v. Coutts, 5 O. S. U. C. 499 ; Doe v. Morae^ 1 B. & Ad. 365 ; Beney v. Lindhy, 3 M. & G. 512. "Such leases of land as must be in writing, and are not made by deed, void as leases, leave the effect in all other respects as it was before the Statute was passed." The Statute here alluded to is Con. Stats, cap. 90, s. 4, or Rev. Stats, p. 948, cap. 98, 8. 4. Held, in White v. Nelson, 10 C. P. 158, defendant obtained only a yearly tenancy by means of the correspondence, and was therefore entitled to a six months' notice to quit at least. Caverhill v. Orris, 12 C P. 392 ; Sheldon v. Sheldon, 22 Q. B. 621 ; Houghton v. Thompson, 25 Q. B. 657. In Johnson v. McLelland, held, that the receipt of rent by the wife from a tenant of her estate, after the expiration of a term, creates a tenancy from year to year. Davis v. MoKinnon, 31 Q. B. 564 ; Birchall v. Reid, 35 Q. B. 19 ; Manning v. Dever et al., 35 Q. B. 294 ; Gihhoney v. Gib- boney, 36 Q. B. 236 ; McPhers have determined. C. S. U. C. cap. 88, s. 7. This sub-section is tlie siiino as 3 & 4 Will. IV. cap. 27, 8. 7, except that the proviso in the Imperial Act is inserted in snh-section 8. A tenant at will is he who enters and enjoys the land by the express or implied consent of the owner, without there beinj; any obligation, either on the part of the lessor or lessee, to continue it for any certain or determinate term. Butler's note to Coke Lit. 270 b. ; Leake's Law of Pro- perty, 206. At common law feoffment, or the conveyance of a free- hold estate, was effected by livery of seisin^ that is, by an actual delivery of possession, and by 29 Car. IL cap. 3, s. 1, " estates made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so made or creating the same, or their agents thereunto law- fully authorized, shall have the force and effect of estates at will only." The plaintiff, by indenture dated 0th April, 1854, did " lease, let and t* farm let," the land in question, to defend- ant, upon the terms that he should pay all rates, levies and assessments upon the said property, &c., and not transfer without the lessor's consent ; and the plaintiff did thereby rent unto the defendant (the premises) at the rate of six- pence per acre per annum, payable half-yearly in advance. There was no livery of seisin, nor any time mentioned, but the defendant entered into possession. Ileld^ that an estate at will only passed. Wilmot v. Larahee, 7 C. P. 407. " There can be no estate created for life, if there be no livery, nor anything that would be equivalent to it, as if the conveyance could take effect under the Statute of Uses, ■m it B-B. 7.] RGVISGD STATUTES, ONTARIO. 39 which would be equivalent at common law to transfer the freehold ; for estates of inheritance or estates for life cannot by common law bo conveyed without livery of seisin, and the deed here cannot operate under the Statute. The same investiture or livery of seisin is required to create an estate for life as an estate in fee." C. J. Draper, in Re Willmott V. Larahee. VViiere A. commenced his possession by the permission of B., and upon a contract to purchase, 13. must bo held as in the actual possession of the land, through his tenant at will A., .»"d as being disi)088es8cd at the end of the first year's tenancy. Doe d. Perry v. Henderson^ 3 Q. B. 486. Re-entry by lessor determines the tenancy at will. Doe d. ishepherd v. Baijley^ 10 Q. B. 310. A. entered into possession in 1833, and in 1834 agreed to purchase from B., but did not purchase or pay, and held for over twenty-one years ; B. was barred, as A. held to be only tenant at will, Jones v. Cleaveland^ 16 Q. B. 9 ; McLaren V. Morphy, 19 Q. B. 609 ; Cahxiaxi v. Scott^ Cahuac v. Erle^ 22 C. P. 551 ; Keffei v. Keffer, 27 C. P. 257 ; Doe d. Kings- ley V. Stewart, 6 Q. B. 108 ; Williams v. McDonald, 33 Q. B. 423 ; Rumsell v. Henderson, 22 C. P. 180; McNish v. Munro, 25 C. P. 290. A tenant at will, in possession of a house and land, was told by the landlord that he must give up possession. Upon his refusing to do so, a writ of ejectment was served upon him, but he subsequently obtained verbal permission to retain the house and a portion of the land rent free for the life of himself and wife ; held, what had been done amounted to a re-entry, and as a new tenancy was created, the period of twenty-one years was to be reckoned from that time, and not from the original creation of the tenancy at will. Locke V. Mathews, 13 C. B. N. S. 753 ; II W. R. 343 ; Thorp v. Facey, 25 L. J. C. P. 349. :': » < I '■X % - ! ] . 40 JONES ON PRESCRIPTION. [sec. !5, TENANCY AT WILL DETERMINED, AND NO NEW TENANCY AT WILL CHEATED. R. C, tho purcliaser of land, was let into possession before the execution of a conveyance. He let in liis son as tenant at will. The son occupied and built a cottajjje on tlie land. Afterwards R. C. took a conveyance from the vendor, and some time afterwards he mortgaged the land. The son con- tinned to occupy the premises in all respects as at first, till his death, which ha))pened within twenty-one years of his entry. The son's widow continued to occupy till tho expira- tion of twenty-one years from her husband's entry ; it was held, that an action of ejectment afterwards brought against her was barred, for that the tenancy at will was not determined by the father's taking a conveyance; and that if it had in point of law been so determined by that event, or by the mortgage, a tenancy at sufferance must be deemed to have commenced from such determination, there being no evidence of a new tenancy at will, and the tenancy altogether had continued more than twenty years. Doe d. Goody V. Carter, 9 Q. B. 863 ; Doe d. Stanway v. Rock, 4 M. & G. 30 ; 1 C. & W. 549. Where a tenant at will had been in possession of land for more than twenty-two years, it was held, that time began to run under this section at the expiration of one year from the commencement of the tenancy; and that a question of the subsequent determination of the original tenancy, was only relevant so far as it might have been preliminary to the creation of a fresh tenancy at will, after the determination of the first, and within the period of limitation. Day v. Day, L. R. 3 P. 0. 751. As to tenant at will being dispossessed, see Randall v. Stevens, 2 El. & Bl. 641 ; also Allen v. England, 3 F. & F. 49. As to the determination of tenancies at will, see Dinsdale V, Ilea, 2 Lev. 88 ; Doe d. Tomes v. Chamherlaine, 5 M. & W. 16 ; Daniels v. Davidson, 16 Ves. 252 ; Day v. Price, 9 Bing. 356 ; Leighton v. Turred, 1 Ld. Raymond, 707 ; Pinh&rn v. Souster, 8 Kxch, 763. HOC .5, H-IW. 7, 8.] IlEVIHED STATUTES, ONTAUIO. 41 Uotormiiiatioii by Irmolvent Court. Dofi d. Daviea v. Thofnas, Excli. 854 ; Ilogan v. //aW, U Mooro, 1*. C. C. 310. As to ci-oiitions of tenancy at will. liichardson v. Lang- ridye, Tudor, L. C. Coin. 11, 2rul edition; C'lat/tm v. lilid'c;/, 2 Smith, L. 0. 108, 0th edition. (8.) No mortgagor or cestui que trust shall bo doomed to bo a tenant at will within the moaning of tho preceding section to his mortgagee or trustee. C. S. U. C. cap. 88, s. 8. This sub-section is a portion of sec. 7 of 3 & 4 Will. IV. cap. 27, boinjij tho proviso attached thereto. She! ford says, ])a^'o 109 : " Tho i)rovi8o as to mortn;agor8 and cestui que Irustn was introduced to prevent the title of the mortj^at^ee or trustee from being barred in twenty-ono years, in those cases in which a mortgagor or cestui que trust in possession was held to be tenant at will to the mortgagee or trustee." As to tho relation between mortgagor and mortgagee in possession, see Shelfuvd's Statutes, 109. The legal interest of the mortgagor after default is not more than that of a tenant by sufferance, and he may be treated as such or as a trespasser at the election of a mort- gagee {Doe V. Maisey, 8 B. & Cr. 707 ; Wheeler v. Monte- jiore, 1 Gale & D. 493) ; and the mortgagor or his tenant, coming in after the mortgage, may be ejected without any See further as to tlio rolatioMB hutwcon mort;jii any right to make an entry or distress, or to bring an action to recover any lan'riON. Jl' [mc. 0. wcro no nwvh liHtriirru'rit, ii noj,'lcct of tlio torm« of tlio condition will not Hiiltjccf, In'tn to ii Imkh of the rntiiti! ; and tlio jmrty (tiititlcfj to iiviiil liiiiirtrlf of tlio (ronditioii tmiHt tuko euro to iiiiiko it known to tli(( pcrnon who wiis to roniply with it. J'hinnfH' OLsr, H Hep. H\) h; Slit'p. T. 14H; A/dilon V. Fit^i/rmM, Ii Mo.1. 2H; Skin. 125; Do. d. Junriok v. A/W ir. /iiiiuc/t'/rk, 1 1 KiiHt. 057. An heir iit law to wlioiri u (iuvirio iti tiuuiu npon condition, Ih not linhlo to Ioho hii t'stat(i Uy u luHMicli of tluj conr fiitiii'K cutiUii m- intci-rNt, itiid ii<> f>er- ■un hiM iilttiiini'd till* |><)HMtmHinii or ri'iUMpt of tli<> pintitM of niiili luiiii, nr tint riiO(ti|it of mich runt, hi nrnpuct of mioh imttitc or iiitcri'Ht, thuii ■null ri^hl hIiiiII Iki tlf«itm>il to liavn iirMt auonit>r iiittTt'Nt lit'oiiiiio an oHtuto or iiituri'nt in iioNHiHMion. 0. H. U. 0. cup. 88, B. 2. (I). TliiH 8ul)f<(!(!ti<)H i(* taken t'rotii tli(5 4tli branch ot'BtM'tion 8 of ;i iSi 4 Will. IV. ciii». 27. Tim wordn "or other t'uturo estiito or iut«'rcKt," uill eomprelieiul nil executorv 'hniuos. Jiwu'H V. Sti/f«Ty .'{ Hill;,' N. C. 654; JJot: «/. Johmon v. Li>u'r.sec. of section 6 of the Ontario Act. " And if the right of any one reversioner is barred, it is proposed that the bar shall also extend to any subsequent reversioner whose title is derived from any deed, will or instrument, executed or first taking effect after the original dispossession commenced." The Solicitors' Journal (Vol. XVIII. No. 51, Oct. 17th, 1874), has the following on the point : " If the person entitled to the last preceding estate was out of possession, the period of limitation shall be the longer of (a) Haiuard. 50 JONES ON PRESCRIPTION. [sec. 6. U n I ^ the two followiiig periods, viz., twelve years (ten in Ontario Act) from the time wlien the i>erBon out of possession first had the right of entry, or six years (five in Ontario) from the time wlicn his successor's estate became vested in posses- sion. If the remainder-man or reversioner is barred, all persons claiming subsequent estates, under instruments taking effect after he became entitled to enter, are to be barred also." " The evil of allowing each remainder-man twenty years within which to assert a right of action, was frequently commented upon by Mr. Hayes and other eminent writers. It was the hobgoblin conjured up to frighten the Legislature from shortening the length of title that a purchaser could demand. A series of successive life estates may extend over eighty years and more, and the indefatigable statute has to recommence running at the death of each tenant for life. There could be no security for titles, unless at least a sixty years' investigation was made. " The present enactment mitigates the evil by giving the remainder-man or reversioner only six years (five in Ontario) instead of twenty to pursue his claim, in case the person entitled to the particular estate shall have been out of posses- sion ; with this proviso, timt if the person out of possession was dispossessed within six years of the time when the remainder-man or reversioner became entitled to the possep- sion, the remainder-man or reversioner can avail himself of the privilege of treating the Statute as running from the date of the dispossession of the person entitled to the particular estate, and substituting twelve (ten in Ontario) for six years as the period of limitation. Of course, if the person entitled to the particular estate was dispossessed six years and one month previous to the date at which the remainder-man or reversioner became entitled to the pos- session, the advantage of selecting the alternative date would be lost, as more than twelve years (ten in Ontario) would have elapsed, counting six years backward, and six H-S, .2.] REVISED STATUTES, ONTARIO. 51 forward, from the date at whicli tlie remainder-man or reversioner became entitled to the possession" (a). (2 ). If the right of any sncli person to make such entry or distress, or to bring any such action or suit, has beon barred under this Act, no person afterwards olainiing to be entitled to the same hvnd or rent in respect of any subsequont estate or interest under any deed, will, or settlement fMcnted or takimj effect after the time when a right to make an entry or distress, or to bring an action or suit, for the recijverj- of such land or rent, firat accrued to the owner of the particular estate whose interest has so determined as aforesaid, shall make any such entry or distress, or l>ring any such action or suit, to recover such land or rent. 38 Vic. cap. IG, s. 4. In the English Statute our snb-sections 1 & 2 form one section. The reader will be able to judge of the remark of V. 0. Hall, quoted hereafter, by means of this reference. This sub-section appears to mean this : Under a will : A. tenant for life. B. tenant for life on the decease of A. C. tenant in fee on the decease of B. Now, at the death of the testator all the interests of A. B. and C. become vested interests. Suppose N., a squatter, takes possession of the land six years before A.'s death. On the death of A., B. will have live years to bring an action or suit as his furthest limit. Suppose B. during the time of A.'s life, and during the time A. was out of possession, sells his interest, and deeds to D. This section means that D. shall have no furtlier time to bring his action or suit than B. had. He in fact takes under an instrument which was executed " after the time when a right to make an entry or distress, or to bring an action or suit for the recovery of such land or rent, first accrued to the owner of the particular estate." That is, first accrued to A. at the time when the squatter went into possession. (a) ' ' Lord Selbome has kindly expressed to the writer his approval of this construction."— Charley's Real Property Acts, 1874, p. 38. il 62 JONES ON PRESCRIPTION. [sec. 6. N H li n t Suppose D. did not take any stejw to recover the land for over live years after A.'s death, or suppose the deed from B. to D. was not executed till five years after the death of A. (tlie squatter still being in possession), at which time B.'b interest was barred, then under this section D. would be barred from recovering the land. C.'s interest would also be barred. " Sir Charles Hall, V. C, has kindly favoured the writer with the following explanatory note: That part of the enactment which begins, 'And if the right' (the 2nd sub-sec. of section 6 of Ontario Act) clearly applies only to a person deriving title under a person barred, under the earlier part of the section ; the object being to prevent an extension of time for asserting title in favour of a person deriving title nndcr a person against whom time has begun to run or has actually run " (a). (3). Wliero the right of any person to make an entry or distress, or to bring an action to recover any land or rent to which ho hjw l>oen entitled for an estjite or interest in [K>88es3ion, hivs been barred by the determination of the period, hereinbefore limited, which is applicable in such case, and such person has, at any time during the said period, been entitled to any other estate, interest, right or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action, shall be made or brought by such person, or any person claiming through him, to recover such land or rent in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent has been recovered by some person entitled to an estate, interest or right which has been limited or taken effect after or in defeasance of such estate or interest in possession. C. 8. U. C. cap. 88, s. 48. This section is taken from C. S. U. C. cap. 88, s. 48, from thence from 4 Will. IV. cap. 1, and from thence from the English Statute 3 & 4 Will. IV. cap. 27, sec. 20. Mr. Brown, in his Statute of Limitations, has thns neatly paraphrased the crabbed phraseology of the Act : (a) Charley's R«al Property Acts, 1874, p. 38. i! la. rt-B. 3.] REVIHBU STATUTES, ONTARIO. 57 "When any person has been barred of any estate or interest in possession of any hind or rent by the determina- tion of the period of limitation, and lias durinij; that yjeriod been entitled to any future estate, interest, right or possi- bility, in the same land or rent, no new right accrues to such person on such future estate, interest, right or possi- bility, coming into possession [a). " But if, before such future estate, right or possibility, come into possession, the land or rent has been recovered by some person entitled to an estate, right or interest limited or taking effect after or in defeasance of the estate or interest in possession, a new right accrues to the person claiming such future estate, interest, right or possibility, on its coming into possession " (b). Supposed case. Under a will: A. tenant for life, remainder to B. for life, remainder to the heirs of A. Under the rule in Shelley's case, A. would take an estate in fee simple, subject to B.'s life interest. A squatter goes on the land, and holds for ten years, and A. is barred during his lifetime. At the death of A., B. has five years to bring his action. He brings the action and recovers the possession of the land. Now at the death of B., the heirs of A. are entitled to the land. As in the meantime such land was recovered by some person entitled to an estate limited or takina: effect after A.'s interest in possession, then A.'s heirs would have the right to recover. But if B. had not recovered the possession, A.'s heirs would have had no right to bring the action, but would have been barred because A. was barred. With regard to this section, Mr. Ciiarley says : " Thus, where an estate was limited to A. B. and his wife, and to his heirs and assigns, and A. B. absconded and (a) Doe d. Hale v. Momdale, 16 M. & W. 689 ; Clarke v. Clarke, Ir. L. R. (Q. B.) 395. (6) Brown'a Statute of LimitationB, Bk. IV. cap. 4, a. 3. p. 457. "J . I II I'' ' t! 54 JONES ON PRESCRIPTION, [seos. 6, 7. his wife took poasosnioii, nnd (jontinnod in posBOseion till her doiith, it WU8 liold that the posnession by the wife came within the nvn^o of the 2(>th section, and ^iive her husbandV assij^nces in bankruptcy a new ri^^ht to the remainder in foe, the recovery contemplated by that aection not beinf^ neces- warily a recovery by virtue of lci;al j)roced8." The rij^ht of the heirs of the huHbanntirely riMnovin.' timt wlii(!li conHtitnfod tlio poAHOrtrtion of tlio tortious posscsnor. And ha h ntiitter of Iftw, it irt nnnc'(!e(*rtury for tlu! truf own«'r to p) on and mIi(>w that d ir Vandiihi'Uiulc postiOttAiun. 17 W. U. 53. Seisin \» a tcchrdcal term, to denote the eoin|>letion of that investiture hy whi('h the tenant was aihnifted into the tenure, and without wliiclt no freeiiold could he eonstituted or puss. 1 Ihirr, 1()7. A seisin in law was sutHcient to ^ivo the wife dower out of lier husliand's property. A seisin in law, in its usual acccptiition, is where tiie inheritnnco in lands and hereditaments of which a man died seisin or possessed descends ujx)!! his luiir, who died before entry or posscjssion. \\\ sucli a case, if the heir leave a widow, she shall he entitled to her dower. Litt. s. <>8l. What is an entry, and what is a necessary entry to take the case out of tlie Statute i In Henderson v. Harris^ 80 Q. H. 300, one G., owninj; land, allowed a school house to be built upon it in 1840, and a school was kei)t there until lsr>l, when a ncnv site was obtained, and the trustees sold the old house. Defore doinj^ BO, however, they sent for (i. to j^et his consent; and ho came to the iiouso and said the purchaser mi^ht live in it until the land was cleared up around it. In ejectment against defendant elainnng under the purchaser: luld^ that there was evidence of an entry by G. in IS.51, from which time only possession would run ; and that the plain- tiff therefore was not barred. Where one was in ])osse88ion of the land, claiming as assignee of a bond for a deed made by the owner in fee, whose estate 13. took by demise : held, that an entry by 11 ' \il\ JONKH UN I>RKN(;RIPTI()N. fllftik i ll finim/) poM/iultmdi\ ftnd inc'Kmln^ tlio liuul with ft flnid of hi» own ftdjoiiiiii^, (•iiUHod tliu Stiitutu to (toaHo to run iih u^iiiiiHt I). ; nrid tliHt tliu ri^lit ut' entry of I^, atu) tlioHo cluiniinp; iiiulcr lii»M, (lutod from an ontry the* >ail«r inado Uy the d()fundant8, u{ion U.^h poHHtwHion ho ubtainud. Clements v. Martin dal., 21 C. V. 612. Kjcetmont ft)r tliruo acro« and one aero, Hoparato parcels of Lot 3(1, in tho 2nd coricenHion of Lodiiol. On tliu 10th .Iiino, 1S8<), MtiD., mothor of tiio phiintiff, hecanio owner of tho whole lot hy (lonvoyanco from the grantoo of tho crown. On tho 0th April, 1847, she convoyed tho whole lot to W. her son, hy a deed which was to bo given to him when ho hhould give security for her 8upj)ort. This ho did by bond, and tho deed to him was registered on tho 20th April, 1857. On tho 10th April, 1841), however, sho con- voyed to the plaintitt' (another son), tho three acre parcel by a deed registered the 2nd October, 1849. On tho 10th Juno, 1851, W. convoyed tho one acre parcel to tho plaintiff. On tho 17th May, 1802, W. gave a mortgiige on tho lot to tho plaintiff, registered 23rd September, 1802, to secure advances made by phiiiitiff to pay off a j)roviou8 mortgage to defendant, which mortgage to plaintiff contained a reserva- tion of four acres alrendy made by deeds of conveyance to plaintiff from McD. and W. This mortgage was discharged before this suit was commenced. On the 28th December, 18<»8, W. conveyed tho whole lot to defendant, without any reservation of tho three or one aero parcels. W. lived on the lot, and used it as owner from the date of the conveyance to him in 1847, till he sold it in 1808. The plaintiff' went to tho United States in 1849, but came back yearly and stayed on tho lot, whore his mother also lived with W. In his evidence W. said he always considered tho four acres to bo his brother's, and did not hold thetn adversely, but made no difleronce in the working: held^ as to the three acre parcel, that the plaintiff was barred by the Statute of Limitations, notwithstanding his annual visits to the land. RKVINBn HTATUTKH, ONTARIO. •1 Ilild u1k») (Wilson, J., nt of (iliiintitr'tt titio at that time to tliu luncU mi rrM'rvrd. Ildtl hIho, um to tlu> ono arro ronvovcMl to plninfitl' l»y W, on lotli Juno, IS'il, that W. IxMii^ alKiwud to rriMtiin in poHHUHHion, waH a terutnt at will, which tenanry cikIimI on tho loth June, lHr>2, unerson or persons, or any of them. C. S. V. C. cap. 88, s. 13. This section is taken from 3 & 4 Will. IV. cap. 27, s. 12. THE COMMON LAW. Go-parceners, joint tenants, and tenants in common, having a joint possession and occupation of the whule estate, it was a settled rule that the possession of any one of them was the possession of the others, or other of them, so as to prevent the Statutes of Limitation from affecting them ; nor did the bare receipts and profits of all the rents f^nd profits by one operate as an ouster of the other. Co. Jiitt. 2i3, b, n, (1) 373, b : Ford v. Gret/, 1 Salk. 285 ; 6 Mod. 44. The possession of one co-parcener was that of the other, so as to carry a seisin in the other, and carry her share by descent to her heirs, although the other had never actually entered {Doe d. Keen, 7 T. R. 386) ; and entry by one co- parcener, when not adverse to her companions, enured to the benefit of all. Co* Litt. 243 b ; Doe d. Pearson^ 6 East. 173; Smith, 295. But the possession of one heir in gavelkind was held not to be that of the other, where he entered with an adverse intent to oust the other. Davenport v. Tyrrell^ 1 Bl. R. 675. Where a tenant in common had been in the exclusive possession of the rents of S. for more than twenty years, RGVISRU STATUTES, ONTARIO. 67 12. it. Id m 1 and an ejectment had been brought by another co-tenant in eoftimon, to whicli A. liad taken defence, and on which no fnrtlier proceedings were had, taking such defence is not concbisive evidence of adverse possession against A.'s co-tenant in common. O'Sullivan v. McSioiney^ 1 Longtield &T. HI. Since the passing of the Act 3 »fe 4 Will. IV. cap. 1, the possession of land by one co-parcener cannot be considered as the [)oP8e88ion of his co-parcener, nor, consequently, can the entry of one have the effect of vesting the possession in the other. Woodroffe v. Doe d. Daniel, 15 M. & \V. 7'J2. As to the retrospective nature of the Act, see Culley, d. Doe v. Taylerso7}, 11 Ad. & Ell. 1008; 3 P. & Dav. 538; aSulUvan. V. MeSwiney, 1 Longfield & T. 118, 119; Doed. Holt V. llorrocks, 1 Car. & K. 566. This section applies not only to the case where one of several joint tenants has been in possession of tlie entirety of the whole of tise lands held jointly, but also to the case where such tenant ims been in possession of the entirety of any portion of such lands. Murphy v. Murphy, 11 Ir. C. L. R. 205, where Tidhall v. Jmen, 29 L. J. Exch. 91, is explained. Lands were conveyed to a trustee, in trust for five per- sons. Four of the cestuu que trustent had for more than twenty years, by their agent, been in the exclusive enjoy- ment of the rents and profits. The trustee never interfered with the trust. Held, that the fifth tenant in common was barred, the case not being within the express trust clause of the Statute, as the defendants had not received the rents under, but in opposition to the trustee. Burroughs v. McCreight, 1 J. & Lat. 290. Where two persons were in lawful possession of a copy- hold, and the title under which they held came to an end, but *liey continued in possession for twenty-one years, it was decided that they held on as joint tenants, and inasmuch as ii ;,!■ 68 JONES ON PRESCRIPTION. [sees. 11, 12. ! :i they had done nothing to sever the tena^^cy, the interest of the one who died first determined on his death. Ward v. Ward, L. R. Ciiy. 789. By the Revised Statutes of Ontario, cap. 105, s. 11, "whenever by any letters patent, assurance or will, made and executed after the first day of July, 1834, land has been or is granted, conveyed or devised to two or more persons other than executors or trustees in fee simple, or for any less estate, it shall be considered that such persons took or take as tenants in common, and not as joint tenants, unless an intention srfticiently appears (m the face of such letters patent, assurance or will, that they are to take as joint tenants." C. S. U. C. cap, 82, s. 10. The same principle is laid down in the 37th section of the same Act. 18. Where a relatictn of the persons entitled, as heirs to the pos- sessiijn, or receipt of the profits of any land, or to the receipt of any rent, enters into t)io possession or receipt thereof, such possession or receipt shall not he dooiiiud tnerson, 5 Chy. 135 ; Keffer v. Keffer, 27 C. P. 257. m PAUT II. REVISED 8TATUTKS OF ONTARIO. CAP. 108. Ill* Whuro any ocknowlud^nunt nf thu titlit of tho {tt'raoii entitled tn any liuid or ront hiw boun givun to hiui or (n kin niji-nt in writing, Rignod by tho punwin in iM>88ufMion or in ruuoipt of thu protitH of hucIi land, or in ruoL-ipt of guoh runt, Hnch (KmHUHsion or rucuipt of or by thu person by whom such acknowludgniunt wiw given hIiiiII hu dueniud, iu:cording to thu nieiming of this Act, to have Iwun tltu poHHuMuion or receipt of or by thu person to whom or to wIiomc aynit such acknowludgment was (fiven at thu time of giving thu siunu, and thu right «if such last mun- tionud puraon, or of any [lurHon chiiming through him, to make an entry or distress or bring an action to recover such land or rent, shall bo deemed tu havo first accrued at and not buforu thu tiniu at which Buch acknowledgment, or thu hist of such acknowludgments, if more than one was given. C. 8. U. 0. cap. 88, s. 15. Taken from 3 & 4 Will. IV. cap. 27, 8. 14. The cases cited here refer also to sections 19, 20, 21 and 23. Four distinct cases in sections 13, 19, 23 and 17. In the wliole four cases, if given to the party or his agenty the acknowledgment is binding; but an acknowledgment of title under the 13th section, or of the right to redeem under the 19th section, cannot be given bi/ an afjent, whilst in the case of money charges, and of arrears of rent or interest, an acknowledgment by an agent will be etfectual. This section provides that the acknowledgment must be signed by the person in possession ; therefore an acknow- ledgment signed by an agent will be insnfHcient. Defendant's grandfather had been owner of two undivided thirds of a meadow, and held the other third under a lease which expired in 1818. Defendant's father and defendant succeeded in their turn ; and at the time of the action de- fendant was owner of two-thirds and occupant of whole, no t ;il"H REVIBED STATUTES, ONTARIO. n rent having l)eon paid since 1818. IMaintiff 'a only evidence WHS H lottor of the land a^unt who managed dutundant's property, within twenty years of action, in which he said tjjat defendant " would no doubt accept a lease of Ley's one- third at a fair rack rent." Ileld^ in ejectment for the one- third, that thin wati not a suiHcient acknowledgment within section 14 {a)^ as not being signed by the person in possession, but only by an agent ; and alao that the letter was no evidence of a tenancy at will on the j)art of the defendant. Ley V. Peter, 2 II. & N. 101 ; 6 W. 11. 437. It was held that the unaccepted j)ropo8al for a lease, made by E. F., whose pcrrional representative the defendant was, to the parties from whom the lessors of the plaintift' derived title, such proposal having been signed by a third party yb/* ayid in the prencnce of K F., who was unable to write from illness, was evidence of an acknowledgment of title within the 14th section {b). Corporation of Dublin v. Judge^ 11 I. L. R. 9. The acknowledgment of the widow of the deceased squat- ter in possession was considered suflicuent in the following case : Canada Co. v. Douglass, 27 C P. 339. In February, 18.53, after the expiration of a lease by the plaintiffs to K. for ten years, H. continued in possession; and in 1854, defendant, who had married li.'s daughter, came to reside with R. under a verbal agreement, as he asserted, whereby R. handed over the possession to him ; but the evidence shewed that R. still remained on the place until his death in 1860. After R.'s death, his widow and defendant continued to reside on the premises, but the defendant was frequently absent, working for others. In 1862, while defendant was so absent, and the widow alone in actual visible possession, S., the plaintiff's agent, entered, and the widow signed a written instrument, witnessed by S., confessing that she was on the land merely on sufferance (a) Refers to Imperial Statute. (6) Ibid. I m f i f i \I\ I Tf joirn OK ran(?aiPTioir. [mw. 13. ii ut' tho plnintiffM, and undertaking to givo thoin poMeKnion whonovor thoy niiglit rnqiiiro it. At'terwurdrt dufundnnk returnud to tlie proiniHOtt, and in 1H(US tlio pluiiititt' brought ejoutment. Ifdd, tiiat tlio {)luintitV'8 ontry, nnd tito tM;icnow- ledgment nignud by tliu \vidow in 1802, put an ond ta dotunilunt^A turiiior pot^urttiion, if any, bo tiiat tlio Statute of Liinitatit)iH would run only from tikut period ; and tliat they thoroforo wore not barrod. Tliirt caso wart triod boforo Moss, 0. J., at tlio Ottawa Fall Assizort of lH7t5, and vordict for dufundant. Uiilo obtained by C Uobiuflon, Q.O., to enter a voniiet for plaintitT. On showing cause, J. VV. VV. Ward cited : Evan's Statutoa, 3rdodition,Vol. fX., p.452; Butler v. Church, i0(rrant,2O5, IS Grant, 1!)0; Trtisdale v. Cook, 18 Grant, 532 ; Davie/t v. HenderHon, 29 II. C. 11. 345; frtjland v. Scott, 11) C. P. 1C5; Buttcrfydd v. Mayltee, 22 0. I*. 230 ; MulhoUand v. Canklin^ 22 O.'l'. 372; Cahuac v. Scott, 22 C. P. 551; Jhmdaa v. Johnston, 24 U. 0. U. 547. In support of tho rule, Mr. Robinson cited : McKinnon V. McDonald, 13 Grant, 152: McMaater v. Morrisoth, 14 (rraiit, 138. Judge Gwynno, in delivering the judgment of the court, said: "A person Iiavirjg title has tho possession in law and in fact, although, neither by himself nor another in actual visible possession ; but if a wrong-doer 1)0 out of actual pos- session for any length of time, however short, and during such absence tho trno owner enters upon tho land, he becomes, as } ap}>tehend, beyond all doubt reinstated in the possession of his former estate, and tho tijne running under the Statute of Limitations becomes interrupted." Whether tho widow was not the agent of the defendant is in reality the question in this case. That she itfas, pro- bably was the view taken by Moss, C. J. Reference made to Clements v. Martin, 21 C. P. 512 ; Randall v. StevenSy 2 £. <& B. 641 ; wherein the principles of the decision of the Court of Common Pleas were laid down. RKVIIBD ITATUTKM, ONTARIO. 73 A vorlml urknowlotl^iiiont of title ihjulo diirlnjjT tlm twenty ytmrH will not wivn ilm Stututc Dik' il. I^rmj v. //t/n/trnon, H.I \l iM; MrDonahl v. Mrlntonh, S (}. \\. liSS ; Mr In tyre V. The t'nnwla Co., IH Cliy. Ml. All rtcknowltjd^iiHint in writinj; iit'irr tlio twenty yoftin, will not revive u title wliicli tlir twi-nty yeiirs' |MWH(»nHi«ui liiul extin^iiiKJiod. Av //. /V/v// v. Itiinlei'mm, \\ (/ \\. 480 ; Melnlyre v. Camulu 6V;., IH (J runt, i{»>7. Where A. hiul hoen twenty yearn in |)«»K8e«8i()n, a <'onvoy- Hnco by IJ. to A. within the twenty yearw, tit' part of the lot in (liKpnte, would not hbvo the Statute, there hein^ no written acknowledjjfment on the jiart of A. of H.'k title ; and the fact of A. payinj; the taxen by li.'s diro«'tion, is no bur t«» the Stututo. hoe d. Prrry v. Ifindemon, '.\ (}. M. 4S«. A notieo to quit from C to H., within tiie twenty years, doo8 not 8UV0 C. from bein;^ barred by the Statute. Doe d. AuHman v. Minthornr, 3 Q. H. 423. Nor a judgment in ejectment, recovered by C. atjainst B. within twenty years, luit upon which ]). had never been dispoBsessed. /he d. Perry v. Ilemhrson, 3 Q. IJ. 4S0. The plaintlffd cUiimed title throu<]fh R., ono of the children and deviaces of C. The defendant claimed through It. and the other devisees of C, and by lenj^th of possession. C. died in 1843, having by his will, made in 1S4I, devised this land to his children in fee. R. died in 1851. Neither she nor any one in her behalf had any possession since 1848. It was proved that in 1848 ono F., who was then on the lot, and through wliom defendant claimed, told one M. that he laid R.'s share of the lot, and was to pay the rent to C, the solicitor for the plaintiffs in a Chaiuiery suit brought by F., and by R. r.nd other plaintiffs, for j)artition of C.'a property on acoount of the costs of this suit; and that ho afterwards told the eldest son of R. in 1850, who went to iiim for rent, that ho kept it back to pay the costs. It also appeared that F. had paid money about 1857 to the town agent of C. in that suit on account of the costs. It was r I, ■\ \n IMAGE EVALUATION TEST TARGET (MT-3) /. fe Ua ^o 1.0 I.I ;'" UK IIIIM 14° 2.0 1.8 1.25 1.4 1.6 *4 6" — ► I % * /,. m. VI ^§ /A 4 f/ '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ ^ .< I (/J fc J •^ J" 'Q" C^* '9.'- 74 JONES ON PRESCRIPTION. i MU ■n 1 iii [sec. 13. Bworn, however, that F. occupied under a brother of R. whoso riglit he had purchased, not under R., and no lease was proved from R. nor any authority from her for the payment to C. Ildd, Wilson, J., dissenting, not sufficient evidence of payment of rent to R., to take the case out of the Statute. Iluttan et at. v. Smith, 35 Q. B. 165. The defendant, in a bond to F. dated in 1856, recited that he (defendant) had bought in the estate of all the owners of this lot, except the estate of the family of F. and of such other of the claimants as were under disability, which class would include the plaintiffs, which defendant was to get in: and an agreement in writing was made between F. and another and the defendant, in 1855, by which defendant agreed to buy in all the interest of ilie children of the late 0. in this lot. Ileld, not an aci invledgment under the Statute, not being given to the plainfiti' or their agent. liuttan et al. v. Smith, 35 Q. B. 165. F e also Fursden v. Clegg, 10 M. & W. 572; Ooode \. Jv, ^ L. J. Q. B. 1. When a mortgagor wrote to the mortgagee, in answer to the demand for payment, " I will comply with your request as to the repayment of $500 I bor-jwed from you so many years ago, and until I pay the money I will execute any- thing you wish me to do for its security;" and there was evidence shewing that the only money ever loaned to the mortgagor by the mortgagee was the sum so advanced on the mortgage, it was held sufficient to take the case out of the Statute. BarwicTc v. Barwiok, 21 Chy. 39. An acknowledgment to a party's trustee is sufficient to take the case out of the Statute. McJntyre v. Canada Co., 15 Chy. 36T. Also Williams v. McDonald, 33 Q. B. 423 ; Canada Co. v. Douglass, 27 C. P. 339. WHAT IS AN ACKNOWLEDGMENT? Whether a writing amounts to an acknowledgment of title within this section, is a question for the judge and not for the jury to decide. Doe d. Curzon v. Edmonds, 6 M. «fe W. 295 : MorreU v. Frith, 3 M. & W. 402. REVISED STATUTES, ONTARIO. 75 >n^ Where letters were relied on as an acknowledgment of title, Sir E. B. Sugden, L. C, said it was a question of fact for a jury, whether the letters in question amounted to an acknowledgment of title within the Statute. Incorporated Society v. Richards^ 1 Dru. *& War. 290. See, however, Sugden's R. P. Stats. 67. By an indenture, dated 27th October, 1827, between the defendant of the one part and the plaintiff of the other part, after reciting that certain copyhold premises were surren- dered to the plaintiff for securing the repayment of £300, by him that day lent to the defendant, the plaintiff covenanted, on repayment of that sum and interest on tlic 27th April, 1828, to surrender the premises to the defendant, and the defendant covenanted to pay the £300 and interest at the time appointed for payment. There was also a stipulation that in default of repayment the plaintiff might take pos- session of the premises. The deed was in fact executed on the 23rd of August, 1834. No principal, interest or rent had 3ver been paid by the defendant. In February, 1854, the plaintiff brought ejectment. It was held that the deed was a BufKcient acknowledgment of the plaintiff's title within this section, as the deed was to be read as speaking from the time of its execution, and consequently there was a sufficient acknowledgment to prevent the right of entry being barred. Jayne v. Hughes^ 10 Exch. 430 ; 24 L. J. Exch. 113. A correspondence by a party in possession of property with the solicitor of a society, by which he merely professed to hold the estates until an account on the foot of charges to which he was entitled should be closed, and offered to refer to arbitration all questions touching such account, as the only matter in dispute, was held to amount to a written acknowledgment of the plaintiff's title, and save it from being barredo Incorporated Society v. Richards, 1 Connor & Lawson, 86; 1 Dru. & War. 258. -A i'V JONES ON PRESCRIPTION. [sec. 13. iii ; il 4 Where two parties are dealinfj with each other, the one claiming a ri]>lies to cases which would come within the earlier sections, and that where it is said, that where an acknowledgment shall have been given the right of action shall have been deemed to have then first accrued, the natural construction is, not that whenever an acknowledgment is given the right of action must be deemed to have accrued, but that when- ever the right would under other sections have been deemed to have previously accrued, and an acknowledgment is made, the right shall be deemed to have accrued at the time the acknowledgment is made and not before." Tiie reader's attention is called to the remarks of Chief Justice Robinson, in the ease of Doe d. Perry v. Hender- son, 3 Q. B. 496-7, as to adverse possession. On p. 500, it is said : " Repeated efforts may be made in successive actions (of ejectment) to recover upon a title, which has been adjudged invalid, until a Court of Equity thinks fit to interjwse." The question naturally arises, under the pre- sent Administration of Justice Act, whether it would be necessary to call in the assistance of a Court of Equity, or whether successive actions are allowable? {a) Immediately after this section, in 3 (fe 4 Will. IV. cap. 1^ 8. 27, was inserted as follows : " That when no such acknow- ledgment as aforesaid shall have been given, before the passing of this Act, and the possession or receipt of the profits of the land, or the receipt of the rent, shall not at the time of the passing of this Act have been adverse to the (a) As to this point, vide St. MichaeVa College y. Merrick, supra. mmm REVISED STATUTES, ONTARIO. 79 ricflit or title of tlie pcTson claniiing to bo cntit od tljorcto, then sndi person, or tlie person cliuininas8iny tlio proper person. " 3, It must 1)0 miulo to the i)ropor pernon. "4. It imiat 1)0 inadu with the proper formalities (sneh as signature in writing), if any. And further, in cases affecting real property, where the right and not tlio remedy alone is destroyed, it must ho seen that the acknowledgment is made before time l;r.s finally run in favour of the maker, so as to have made to him a statutory transfer of the property before his acknowledgment, in which case such an acknow- ledgment will bo of no avail." («) 14* Tho receipt of the rent payable by any tenant from year to year, or other luHsee, Hhall, as aj,'ainst such lesHeo or any person claiming under him, but subject to tho lease, bo deemed to bo tho receipt of tho profits of tho land for tho purposes of this Act. C. S. U. C. cap. 88, 8. 17. This is taken from 3 & 4 Will. IV. cap. 27, s. 35. Receipt of rent to bo deemed the receipts of the profits of the land, subject to the lease. A suit for tho recovery of mesne rent and profits in equity is not a suit for recovery of arrears of rent within section 17, supra. Per Turner, L. J., Hicks v. Sallitt, 3 D. M. & G. 816. The Statute of Limitations forms no bar to a claim against a mortgagee in possession for occupation rent. Coldwell v. Hall, 9 Ohy. 110. The plaintiff leased premises from the defendant at a rent of $150 a year, covenanting to pay rent, &c., and it was added, " this lease will be void if the said plaintiff fail to perform this agreement." Held., that the last clause would only make the lease voidable at the option of the lessor, not void ; and that to entitle the lessor to determine the lease for nonpayment of rent, a formal demand was necessary. Quaere : whether the words " this agreement " would apply to the covenant to pay rent ? (J) (a) Banning's limitation of Actions, 37. (6) Faugher v. BurUy, 37 Q. B. 498. ^^i 8S J0NE8 OK PRESCRrPTIOW. i^ir [rocr. 14, 10. It iri liiid down in Coinyn's Law of Lnndlord and Tenant, 827, wlicro the landlord is about to enter for a forfeiture for nonpayment of rent, the Common Law requires a previous demand of the rent due, with circumstances of ^'roat par- ticularity, on the very day the rent becomes due, at a con- venient time before Hunset, «fcc., and that this demand must be made in fact, his claim bein;^ regarded stricti juria. " If, after this formal demand, the tenant refuses or neglects to pay his rent, the lessor's right to enter is complete." — Morrison, J. The i)roper manner of taking accounts in the Master's office appears to be pretty clearly laid down by Van- koughnet, Chancellor, in the case of Voldwell v. Ilall^ 9 Chy. 110: "The Master has taken the account against defendant, with costs. This is wrong, for 1 take it to be the settled practice of the Court, up to this time at all events, that when a mortgagee enters, his money being in arrear, he is not liable to account for the rents received by, or chargeable against him with costs, until he is paid off in full." "In this respect then the Master's report must be cor- rected, and the account will be taken in the ordinary way, allowing the mortgagee his principal and interest until sufficient rents have been charged against him to pay off the amount due him. When this has been done, he must account for the rents annually chargeable against him, with interest on each sum from the time it is so chargeable, as a mortgagee paid off is but a bare trustee of the estate for the mortgagor, and should not continue to hold it, or if he does, , he must pay interest on the rental properly coming from it to the mortgagor." Quarrell v. BecTcford, 1 Madd. 269 ; Smith V. Pithington, 1 De G. F. & J. 120 ; also, Schofield v. Lockwood, 8 L. T. N. S. 409. 15. At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent, for the recovery \-i. .^ RRVISED HTATUTES, ONTARIO. 88 whoroof mich (mtry, dwtroM, action or unit roHpoctlvoly mij^ht havn bcuit iiuulu or hroii^lit within Huuh puriud, Hhall bu uxtinguiHhud. 0. ti, U. C. ciii.. HH, a. 10. Takon froin ;J vfe 4 Will. IV. cap. 27, 8. 34. Funnerly the Statute of Limltationft was only considered a bar to the rctnody, and not an oxtin^uishniont of the rij^ht. TIuB Hcctiun uxtitiguitihefl the right. 8oo ante^ and reinarkH thereon. An acknowledgment in writing, after tlio twenty years, will not revive a title which the twenty years' posnertsion bad extinguished. Voc d. Perry v. Henderson,, 3 C^. IJ. 48G. See also, 1 Win. Saunders, 283, n.; 2 R it Aid. 413; 1 B. & Aid. 1)3 ; 1 Ld. Ifayinond, 422, as to the extinguishment of the right. The old Statutes only barred the remedy, but did not touch the right ; possession at all times gave a certain right, but under the new Act, when the remedy is barred, the right and title of the real owner are extinguished, and are in effect transferred to the person whoso possession is a bar. IncoT'^orated Society v. Richards,, 1 Dru. & War. 280. The effect of the Act is to make a parliamentary con- veyance of the land to the person in possession after the statutory period has elapsed. Per Park, B., Doe d. Sumner,, 14 M. & W. 42. NATURE OF THE INTEREST ACQUIRED. " It has been suggested that the title gained by a wrong- doer who has been in possession, which may be limited by rights yet remaining unextinguished, is commensurate with the interest which the rightful owners have lost by the operation of the Statute, and must therefore have the same legal character, and be freeliold, leasehold or copyhold accordingly." Darb. «fe Bos. Statute of Limitations, 390. Mr. Hayes' view is as follows : " The wrong-doer must be considered according to the principle of the old law as claiming generally, and therefore as claiming the absolute r t Hr|' win i t' 'I ^i ill 'i 'i ■i I 84 JONCM CM fRRNCRIPTIOM. [m)C. 16. |)rf)i)orty (ihiIorh IikKmmI Ik* ('xi>rcHrtly <|imlity Iiw claim), mh\ tiio Stutiito HH iiion'ly *litiiitiirtliiii^ iVoiii tiiiu* tu tiiiio tlio tlim^or «»t' eviction, till at, Irn^jtli liin oii;^iimlly pn't-arioiH too he(r()iin'rt, hy tlio oxc^liiwion «»t' ('vrry Htnui^'cr claim, a flrtn inluiritaiicc." I Ilaycm' Vnuv. '27<», r>t!i edition. Tlic latter viow Heemn to ho taken l»y Mr. Dart, Vt iid. I'k Purcli. .'170, 4thoilitioii. See further, an article 1 1 J iir. N. S. 151, Part II. 8oe also, in l)ntario (JoiirtH, tho reiuarkrt of ('hief Jnrtti(!0 Uohirjson iti Doa d. Perry v. //t7/^/(7*.v<>;<, (juoted in remarks on section 13. A wimple procedure, wherehy tho posHCSBor of land, hy tho extin<5uirthment under tho Statute of Limitationn of tho formor owner's title, eould ohtain a j)atent from the Crown, is very much needed. "An eli^^ihle opportunity \a now opened " for young legiwIatorB to diatinguiHli themselves. Before this Statute, twenty years' poKseasion gave a pri?na fade title against every one, and a (iomplete title against a wrong-doer, who could not shew any right, even if such wrong-door had heen in possosnion many years, provided they were loss than twenty. Dog d. Ilatdimj v. Cooke, 7 Bing. 34G. Tho effect of this section would he to give tho right to tho possessor for twenty ycarb, oven against tho party in whom tho legal estate formerly was, and hut for tho Act would still he, when ho had not ohtaincd posses- sion till after the twenty years ; hut then it is apprehended that such twenty years' ^wsscssion must ho either by the same person, or by several [»cr8ons claiming one from tho other, by descent, will or conveyance. Doe d. Carter v. Barnard, 13 Q. B. 945 ; 18 L. J. Q. B. 306 ; Doe d. Hum- frey v. Martin, 1 Car. & M. 32 ; Doe d. lIiKjhea v. Dyball^ 3 Car. & P. 610. In Doe d. Carter, &c., the lessor of the plaintiff* relied on her possession for thirteen years, and her husband's before her for eightoen years, but in so doing shewed that her husband died leaving children. The defendant, in whom tho legal estate was before the. twenty years, had turned tho lessor of .' ■'■■ HKVrHKI) HTATUTKH, ONTAIIIO. 85 ■ il tho pliiiritiir out of jioHrtOrtrtiojj. It wiw fohl, llrrft, tliut tlir poHHOnwitui of tlic li'i*j<(»i' of tlio plaiutin' not lufiii^' roriiii'i'^L'tl hv ri^'lit witli tlmt of lior Imshiuid, wuitioii \\\ of W ife 4 Will. IV. Clip. 27, n tho ri;;ht in cxtinj^uirthod lit tho ond of tu'onty yciiirri, Htill luivorrto possoHsion by ii Kuocorirtioii of ir>(l('poii(l(Mit ti'OHpimrtort for ii poriod oxoool.f(>n v. Hi'nfrnirtod tliis^ with otiuM* landn amonj; liis children, who l)y |)artition oonvoycd it to one of thorn, J., who attorwardrt (hnni.sod to hin hrother U. U. died, and his land was soKl under a judgment ohtaincd afj^aiuBt (J., Ids wife, on a confeHHion given l)y her a« Ai* adin'inutratrix^ and was purchase*! hy iicr at the s'lii and conveyed to the defendant. /A///, that tlio fact of C, heinp administratrix could not he impeaclied so long as ilic letton* of administration granted to her renuiined in force; and tiiat she oould legally give the (confession she )>tcd what ho had /, 12 Hitn. 402. I*, was ([iHistioticd whether, ninco the Stat\ite 3 ^ \ Will. IV. cap. 27, the bar createil hy twenty yearn' portneHrtion by a mort^agoo !« defeated by bin havinjjf k((pt accountH of tho rontH received by him. Ihihr v. W/ict/on, 14 Sitn. 420. Hut it iflobrtcrved by Sir K. Siif]jrt^aj^(»o for twouty y«!iirrt, wit lioiif Kckn<)\vl('il;j;tnont, a hiir to ri'(|('tii|>ti«>ti, wlicru the orij;imil cotifnict \a in turm* that tlio iriort^ti^or iiiiiy rnlcciii iit tiny tiinu diiriii;^ u poriud ext(iri(linf^ Ixfyond tlu^ ivvoiity yt'iirH." A fnortj^ii^t'o wlio holdrt property in pK'difi* in ro«ponHil)lo for it ill liirt integrity. //ikhI v. I'Mston^ *i (iriM. ♦11)^. In a ('1180 wldcdi vviih dccidiMl iukNt H Imd tMitrrod into poHscrtsion, the tn(»rf^ii^or'rt Holieitor wrote to the niort- giigee, recjuestin^ to know when h(^ couM HtH) tho »Mortj;iif^oc on tho Huhjoct of tho niortj;ii}.?e. Tiio M»ort<.^a;x''*' replied by a lott(!r, Kiiyiiifj;: "1 do not see tho uho (»f meeting unlenH Honio one is ready to pay ino cff." It wuh helil that tho lottor was a Butlieietit acknowledj^tnent in writing to oxchido the ajiplication of tho Statute of Liniitationri, nlthou^h not written within twenty years after tho nu)rtj.jn;;eo had entered into posaertaion. Stausjield v. Ilobnon, \S Do G. M. Jk G. (520; Darh. & 13o8., Stat. Lini. 'M'A. CO. In CI180 there aro more inortj^af^ors than nno, or more pomnnn than ono chuining Lhmtigh thu mortKiif^nr or iiiortga^orH, huuIi aekiiow- munt, ii j^ivoii to any of Huch niortgagnrs nr pcrHoHH, or his or their agunt, Hhull bu as cirectiial au if thu Haiiut liad heun givuu to ull auch luurtgagors or pursons. .'{8 Vic. cap. 10, 8. !). This is the second clause of 3 tfe 4 Will. IV. cap. 27, s. 28. Vide /iarwick v. Barwlck, 21 Grant, 39. There is a great diftbrenco between tlio 20th section and tho 2l8t. In tho 20th an aeknowlcd^incnt given to any mortgagor, &c., shall be as etfectual as if the same had been given to all such mortgagors ; but in the 2t8t section it is laid down that such acknowledgment given by a mortgagee shall only bind the party giving tho same. " There aro no savings for disabilites of tho mortgagor or his heirs, in regard to the bar created by this section. Where the mortgagor is constrnctively tenant at will to the mort- gagee, the time does not begin to run against the mortgagee Mi 1 n ■ 1 1 i J! 100 JONES ON PRESCRIPTION. [sees. 20, 21. till tho tenancy is (letorinincd. An acknowledpfincnt by ono only of two joint mortj^af^oes is wholly inoperative." Sheltbrd's Statutes, 210. Attention is called to Eev. Stats, cap. fiO, ss. 35, 30, 37, 38, which embrace the provisions with regard to sales of equ'ty of redemption, and to tho cases oWSkae v. Chajyman^ 21 (irant, 534; MeEvoy v. Clone, 9\ Grant, 515, in which last case tho sale by the sheriff of lands of inortojafijor, in a suit ai^^iiinst the executors of tho incrt^ajjjor, was held to be valid. — Proudfoot, V. C, dissenting. V'de also, with regard to acquiescence, notes on section 33. 81, In case tliorc aro more mortgagees than ono, or more persons than one claiming the estate or interest of tho mortgagee or mort- gagees, such acknowUMlgment, signed hy ono or more of such mort- gagees or |ter.sons, sliall be effectual only as aguinst the party or parties signing as aforesaid, and tlie person or persons claimiTig any part of the mortgage money or land or rent by, from, or under him, or them, and any person or persons entitled to any estate or estates, interest or interests, to take ellect after or in defeasance of liis or their estate or estates, interest or interests, and shall not operate to give to the mort- gagor or mortgagors a right to redeem tho mortgage as against tho person or persons entitled to any other undivided or divided part of tho money or land or rent ; and where sucli of tho mortgagees or per- sons aforesaid as have given such acknowledgment are entitled to a divided part of the land or rent comprised in tho mortgage or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgivgors shall be entitled to redeem the same divided part of tho land or rent on payment, with interest, of the part of the mortgage money which bears the same pro- portion to the whole of tho mortgage money as the value of snch divided part of the land or rent bears to the value of tho whole of the land or rent comprised in the n^ortgage. 38 Vic. cap. 16, s. 10. This section is the last part of section 7 of 37 & 38 Vic. cap. 57, Imperial Statutes, and the whole section, which we have divided into three parts, was substituted by the opera- tion of the 9th section of the same Act for the 28th section of the Statute of Limitations of 3 & 4 Will. lY. cap. 27. "No special provision was made by that Statute for the case 'I REVISED STATUTES, ONTARIO. 101 of a inorl- '!| '} (a) Charley's Real Property Acts, 47. u m ■AU 102 JONKa ON PRESCIlM'TtON. [8008. 21, 22. recoipts of tho rents. /AA/, that tlicy innst ac(!ouiit to tlie other devisees for tlieir shares of the rents. Afa/ntouh v. Ontario 1iaid\ 19 Chy. 155. The holder of a inort^a^e went to reside witli his sister, the widow of tho niort<;a<:;or, upon the nu)rt<;a, h. 12, TliisHcctioii ia taken from Imperial Statute 1 Vie. eap. 28. Tliere was alarm created amoii<.^ mortu broiij^lit to ro- covor any Hum of iiioimy Huciirud by any iimrtj^iij^o, jiulj^'inont or lion, or otlu'rwise cliiirj^oil upon or iniyiildo out of any laiitl or rout, at law or in t'(|uitv, or any logaoy, hut witiiin ton yoarn next aftur a jtroHiiut rii^ht to u'lvivo tlio wiino uccnud to Honiu purHoii c;ipal>li! of k'v'"K ^ (liHoharf^o ft)r or roliNWo of tho minio, uuIchh in tho nioantintu somo part of tlio prinripal nioniiy, or Homo intoroHt tlioroon, has l)oon paid, or sonio ackno\vloil<^niotit, of tho rii^hl, tlioroto Inw boon f,'ivon in writing Hignod Ity tho pormm by whom tho wamo in payabli?, or iiis agont, to tho porson ontitU'd thoroto or iiis agont: and in huoIi ciiso no action or suit or i)rooooding shall bo brought, but within ton yoars aftor Huch paymont or acknowlodgmont, or tho last of Huch payim^ntH or acknow- lodgmont«, if moro than ono, was mado or givon. IJH Vio. cap. 10, h. 11. This section is taken from section 8 of 37 tfe 38 Vic. cap. 57, Imperial Statutes. In the Eui^lish Act it reads, " but within ten years after a present rin(7 (<«), or otlior lions (ft); nil lo;j;ucics, vvliothor cimr'ijoil o!\ liind or not (r'), inoludiiij; anniiit,i( s(r/); ulso a residiiu bcquuatliod hy a will or a wharo of such rortiduo. [a) Tliiri ti(!otion doort not apply to tlio porsonal ostato of an intorttato. Wt! Iiav(!, liowovor, in our Statiito (oap. 01, Revised Statiitos, Ontario, hoc. 8), introdii(;od the 2!J ife 24 Vic. caj). i'?8 (Inii)orial Statutes), which was i)assed to remedy the evil. That section is as follows: "No suit or other prooocdinf]^ shall 1)0 hrouf^ht to recover the personal estate, or any share of the i)ersonal estate of any person dyiii^ intostat(», possessed hy the lo^al i)ersonal represontativo i»f such intiwtato, hut within twenty years next after a present rii^ht to receive the same accrued to some person cai)al)ie of j!;ivin<; a discharge for or release of the same, unless in 'the meantime some part of such estate, or share or some interest in respcict thereof, has been accounted for or paid, or some acknowledgment of the right thereto has been given in writing, signed by the person accountable for the same or his agent to the person entitled thereto or his agent; and in such case, no such action or suit shall be brought but within twenty years after such accounting, payment or acknowledgment, or the last of such accountings, payments or acknowledgments, if more than one was made or given." 29 Vic. caj). 28, s. 30. It was supposed that the Commissioners of the Revised Statutes would have recommended a cluuigo in this section to ten years instead of leaving it as at present. (a) Toft V. Stephenson, 7 Hare, 1 ; 1 De G. M. & G, 28. (b) Du Vhjier v. Lee, 2 Uuvc, 320. (c) Shepherd V. Duke, 9 Siri: 507; Cooke v. Cresswdl, L. R. 2 Eq. 116. (U) lioch V. Cullen, 6 Hare, 531 ; Ashwell's Will, Johns. 1 12 ; Narnock v. Ifoilon, 7 Ves. 391; Corujield v. Wyndham, 2 Cole, 184; Sibbley v. Parry, 7 Ves. 522. (c) Prior v. Tlornihlow, 2 Y. & C. Ex. 201 ; Christian v. Devereux, 12 Sim. 264. See also Dinsdale v. Budding, 1 You. & Cole, C. C. 265 ; Adamt V. Barry, 2 Cole, 285 ; Charley's Real Property Acts, 48. I 1 i; I. i:':'n M. ' !,'!' (:l:i li!i • I' 106 JONES ON I'hks(;ription. [aoc. 23. Tlio reader will be iil)lo to CHtiinato the advantapjes and disadviinta^es of such a chan< iv.la ch,.\ „ ,%« vherc was no debts, the Court would give the fund to tli '. r , n"tw . ' 'ending there had not been a lapse of twelve months. " Per Lii-d Kld^p. (rf) Wniiaixj on K:!( -utors, 1266, 6th Edit. (e) Per Alderson, B., in Prior v. Hornihlozv, 2 Y. & C. Ex. 200, 206. See also Adams v. Barry, 9 Cole, 285 ; Binnn v. Nichols, L. R. 2 Eq. 259 ; Larkim V. Phipps, W. N. 1873, 207. And see Knox v. Gye, L. R. 5 H. L. 674. REVISED STATtTTRS, ONTARIO. 107 Adams v. Ihirry^ it iij)j)oiirri tliat liino runs in tavoiir of an oxccutor as to asHots from tlio timo they Huvorally conic into his possession, and an itwiuiry in that ease was ordered to ascertain what assets had come into the hands of the executor during tlio twenty years previous to the suit. And tliip case is explained hy Wood, V. C, in tiie snhse(jiient case of Bhms V. Nichols, L. II. 2 Ecp 257 : ' What tiio Vic(v Chaneellor liehl (in Adamn v. liitrnj) was, tliat assets which iniecunlarij legatee was not allowed ; though the Master of the Rolls said that it would have been otherwise had the latter proved that there had not been sufficient assets till within twenty years to satisfy his legacy ; but that this he had not done, and the onus of proof lay with him." [a) The decisions with regard to legacies in Ontario may be mentioned. WITH llEOARD TO ABATEMENT. Payment of a legacy in full is a irrhna facie admission of assets to pay all the legacies in full, otherwise all the legacies must abate in proportion, but it is open to explana- tion. Coleman v. Whitehead, 3 Chy. 227. The provision for the widow of a testator, and certain legacies, being charged upon real estate, which it was appre- hended might prove deficient, the legacies, not the provision for the widow, were ordered to be abated ratably. Becker V. Hammond, 12 Chy. 485. Vide Judgment of Chancellor Spragge in this case, p. 126, in which the doctrine of election is reviewed. (a) Bright v. Larchei; 27 Beav, 130. ill 108 JONES ON I'llKHCIlII'TION. [hcc. 23. A(loiii|>tioii is tlio loss of a legacy by tho dispoHition of tlio pro))oi'ty, or by tlio altoratiou of tho ])roi)urty by tho testator tlurin^ tlio lifotitne of tho toatator. Wharton dofincs it as follows : " A taking away of a loijjaoy, i. e., if a testator, after having <^iven a legacy by his will, alienate tho subject of it (luring- liis life, it is an ademption." A testator beqiioatiiod to W. L. £1,500, "duo to mo by K. 0., and secured by mortgai^e." After the making of this will, and in the testator's lifetime, U. C sold to one If. the property niort<^a^ed, and the testator, to facilitate tho sale and receive the debt due him, took from II. a mortgage of this i)ro})erty and other property, and a covenant to pay tho amount, retaining in his possession the mortgage from R. C. under which ho held tho legal estate in tho land, and tho bond origiuidly obtained from R. C. for payment of the debt. The testator died without in any way altering his will in regard to this legacy. Ile/d^ that it was not adeemed. 12 Chy. 103. Cases cited': BlachveU v. Okild, Ambl. 260 ; DlnyuieJl v. Askeio^ 1 Cox, 427 ; Ashhurn v, McQueen, 2 W. & T. 227. Vide in Ontario, Vole v. Cole, 5 O. S. 747, and judgment of 8herwood, J., on this jjoint. Under this section, tho case of Allen v. MoTavuh must be alluded to. In this case it was contended that plaintiff could not recover on a covenant in a mortirafje for more than ten years, and was so held by Morrison, J., 41 Q. B. 567. Taken to the Court of Appeals, this decision was reversed, and the judgment of Chief Justice Moss, reported in Vol. II. Appeal Reports (not yet published), is so clear, that it has been thought good to insert it here: Moss, C. J. A. — Tho question for determination is whether " The Real Property Limitation Amendment Act, 1874," has limited to ten years the period within which an action may be brought to recover the money secured by a mort- gage of real estate, which contains a covenant for payment by the mortgagor. The point is expressly raised by the pleadings. ^1 lii j 23. UKVISED STATUTKS, ONTARIO. 109 The declaration allej^ed that the defendant, hy y wiw liinltod by CoMHol. Stilt. II. (^ ciip. HS, 8. til (|l(!v. Stilt, ciij). 108, H. 2.'}), wliicli prcscriluMl a period of twoiity yeiirn. Tlio fitiioiint of interest nH'ovtM'.'ihUi wiih j;ov«!riied l»y (^oiihoI, Stilt. 1 1. C. e.'ip. .SS, B. 10, mid ciip. 7S, h. 7 (llov. Stat. 108, ».]Hk^ 10, mid Uev. Stut. cap. (11,8. 1). Tlu^ former H(!etion ((]on. Stat. cap. SS, m, 10), wliieh is taUou witlioiit iiiaterial altei'atioii ihnu tlie itnperial Statiito U i^ 4 Will. IV. cap. 27, 8. 42, enacts that no arrears of interest in resptict t»f any sum of money cliar;;ed upon or |)ayal)le out of any land shall ho rocovorod hy aiiy action or suit, but within six years after becoming due or alter a written ackuowled;i;ment. The latter section (Con. Stat. cap. 78, s. 7), wlilch is do- rived from the Imperial Statute 3 tfe 4 Will. IV. cap. 42, s. 3, re([uires actions of covenant or debt u|)on a l)ond or other specialty to bo commotUHMl within twenty years after tiio cause of action has arisen. These sections have formed the <2;round\voi'k of the lonjr series of decisions, tlio appli- cal)ility of which has been cliallen<;ed by the learned counsel for the defendant, who addressed to us a very careful and well considered argument. It is true, as pointed out by tlic learned counsel, that at first some difliculty seems to have been felt in harmonizing the two Imperial Statutes, which were passed during the same session ; but this difficulty was of short duration, and although it may be that some questions arising upon them are still open, it is quite clear that a complete reconcilement of the two sections has been eifeeted by considering one applicable, where the remedy is sought against the land, and the other where it is sought against the person. The complication which arose from or was increased by the circumstance that while both the Imperial Statutes were passed during the same session, one received the royal assent before the other, suggesting as it did questions whether one lat at izing the and them ment nr one land, ed by 3 were assent er one RKVIHRD BTATI'TKH, ONTAIIIO. Ill pnrtially iTporilcd tho otiicr, «un! wlicthfr thoy rrliitod to ilill'iTciit sultjcct iiiutfiTrt or covtMiaiit uh coin- {>l(!t(>lv (liHtiiict, aiitl as it'iiiadit in Hcparate doods. Tliu ;^roundrt upon wliicih tlicwc! dccirtioris procrrdcd were prccirtcly applicahic! to tlio KP(!tioiirt in tlu; (!onso|i(lat(;d StatntcH, tor it bo liaj)|)('nrt that horo, iw in Kn^daiid, tlio provision allowinu; twenty yearn on a specialty eanu! into toreo alter tlu! other. These} decisions are so nuinerons and ot' such lii^h authority that their hindini^ t'orco is not open to question. Nor can I iii^ree that there is any plaiisihlo ;;round tor the cont(!ntion that they are rej)ii;^nant to the tru(! intent of the Statut(!s, and on;.i;ht not to Ik; accepted as t^uidtis in the interpretation of the IH'W Statute. On the contrary, tliey are in my humble judi^ment, as one would expect to find, entirely consistent with all sound rules of interpretation. In the ilrst case that appears to have arisen ujion these sections {/'mjci v. Foli;/, '2 IVnvj^. N. C. 071)), Tindal, (J. J., thought that there was no contlicit between the two cnact- nunits, but that if there was, the allirmativo enactment permitting the action of covenant to be brought within the longer i)eriod must prevail. The other Judges who took jiart in the decision seem to have laid stress upon the relative dates at which the Acts received the royal assent, althougli, as was pointed out, it seemed dilHcult to sui)pose, from the short interval between the passing of the two Acts, that any contradiction could have been intended by the Legislature. They all agreed that the action of covenant, which in that case was for arrears of rent due under an indenture of demise, was not limited to six years. * The Court of Queen's Bench, in Strachan v. Thomas^ 13 A. & E. 558, expressed its concurrence with that decision. ;i ; I H i.J ! i 1 i f'8 .•i-itU '.. i h 112 JON KM ON rRKHrRIPTloW. [hoc. 2a. '•' y -I t TIh! ('(iriHtnictioti ot'tlio two ciiiU'tinDtitrt wuh riiirt(*i| hct'nrtt Sir Kflwiinl Sii;^rlrn, wIh'ii LonI ('liuticrllor of Irclufid. Ilr BttifoH ill lliKjIii's v. K'lhf, '.\ Dm. iV Wiir. 4!>n, tlmt u i^roat (Iciil of fill' (lillli'iilry \vlii(!li liiiH arisen upon tlio conrttnictiori of tlit'rto Stiituti's ill Mii;(liiny tlio pcrrtoiin vvJio fratiufd tlic former Act. lie liitld that tin; StatiitcH biMii^ /■// pari tmih I'iii. hIioiiM Ihj coiirttriicd to;^»!tlii'r, aiid if jiossibU? roc'onciind ; hut tin; covi'iiant in tlu! vwMi not hi'in}^ vvitli tliu parti(;ri to hu paid, lu; dccidod that in tlu; proctu'din^ hofori; him only rtix _y«(ai'rt'iirri'arrt()f iiitorcrttitoiild ho allowed. Tho suhjcct was fully ronHidcnMJ hy Lord (/'ottcnham in J/uufr/'v. Ndckclds^ I Mac. iV: (iord. (>K>, and altliouj^h that caau irt very tamiliar, the r(it}r ot'('(|iml pruliuliility with Sir Mtluunl Hu^duirrt cxpliiimtidii; litit it \a not oti that iiccdinit tlu; Ichm valiiiiltio iirt II jiidiriiil rxponitioti of tlio olij(>(;trt of tlio two oiitutttiu'iitH, iiiid it Htniii;j;ly hiipportrt tli< viow which tlic prertuiit iippclhiiit )>rop(M(>rt of tho iiitiMit ol uiir A(;t of Ih74. IIu th(Mi proccMMlrt to rcrnurk tliiit tho pr<»virtioit of thu Ititur Htutiito (lourt not profcrtrt to doul with thu hiiid upon wlucli liiiy dtMiiiind iiii^ht hu himmu'imI, hut with thu pcrHoiiul uction only; uiid the fortnor Act profrsst'd to dcul with thu hirut only; and thiit, ho (;oiisid(!i'(Ml, tlicru (rould Ix; no IncoiiHiH- tuncy hctwccii thvMi provirtionK, thu Hnhji-ct nnitt(^r of ciich buini^ ditK'i'ciit, und no <)ucHtiiin could hav(> arisen hut frotn thu ^'uncrality of thu witrdn "action or nuit" in tin; I'Jnd Buction (»f thu earlier Act; hut whether the later provision waH fruinud without rufeiuneu to thu earlier, int»,'ndin;^ to provide for a ditrurunt Huhjectt-nuitter, luinndy, persmuil liahility and not thu laiul charged, or whuthur it was in- tundud to limit the generality of thu former [>roviriionrt hy conliidng thutn to what was thu ttuhjuct of that Aut, namely, thu land, was immaterial, for thu [jrovisiourt of thu two mubt, if poBsihle, hu reconcilud, which can only hu dcjnu hy considuring thu first Act as applicablu only to thu hmd, ami the latter aa applicahlu only to thu perdon. Ho sujuH up with thu formula that no moru than six ycarcj' arruars of inturutst in respe(rt of any sum chargud upon or payable out of any land shall be recovurod hy any action or suit other than and uxcupt in actions upon covenant or debt upon B[)ucialty, iu which cases the limitations shall be twenty years. I think it will appear, when the provisions of our Act of 1874 are examined, that this case covers the whole ground, and disposes of every argument advanced by the respondent. But the principles thus enunciated do not rest upon the sole authority, eminent as it confessedly is, of Lord Cotteidiam. In Manriiiuj v. I*hclj)s, 10 Exch. 59, the Court of Exchequer 8 lU JONES ON PRESCRIPTION. [sec. 23". held that tho limitation of six years did not extend to an action on a covenant for payment of a rent charged upon land by tho same deed, although the right to recover the rent charge ont of the land had been barred by tho Statute. No weight was attached to an argument, precisely similar to that addressed to us yesterday, namely, that the covenant was not an independent contract to pay money, but a cove- nant to pay that particular annuity charged on the land, and that as the annuity had ceased to exist, the covenant was inoperative. In Sinclair v. Jackson^ 17 Beav. 405, iLe Master of the Rolls expressed the opinion that, although interest upon a mortgage of a reversionary estate can only be recovered for &ix years as against the land, it is otherwise upon the cove- nant for payment. In that case there were sixteen years*^ arrears of interest upon money secured by a mortgage upon land with a covenant to pay, when the mortgagee brought a suit of foreclosure against the mortgagor's heir. In his bill he raised no question of liability on the covenant, or of his right to tack as against the heir. Upon an appeal from the report of the Master, who had held the plaintiff entitled to six years' arrears only, the finding was sustained on the ground that the Court could not decide the question, as it had not been raised upon the pleadings, and that the form of the decree, which simply directed the Master to take an account of what was due on the mortgage securities, pre- cluded the assertion of the right. But the lean 1 Judge remarked at page 413 : " I do not think it makes any difiference whether the debt which the plaintiff claims is secured by a covenant in the same or some otht r deed ; in either case it is a distinct security." This opinion, which is amply supported by other cases, effectu- ally disposes of any notion that the present appellant is in any worse position than if he had a separate money bond for the amount of the mortgage debt. The soundness of this interpretation is also expressly or tacitly recognized in the decisions which hold that where . 2X ) an ipon • the ,tute. [Hilar jnant cove- land, en ant of the ipon a red for e cove- 1 years^ ;e upon wrought In his ^t, or of al from entitled i on the m, as it he form take an ;ies, pre- ; do not hich the or some " Thi8 t, effectu- ant is in ney bond pressly or lat where REVISED STATUTES, ONTAIltO. 115 there is a trust created for tlio payment of the mortgage, the full arrears may be recovered. For example, although the case of Cox v. Dolman^ 2 DeG. M. & G. 592, was heard by special leave before the Lord Chancellor and the Lord Justices in the first instance, be- cause he felt himself embarrassed by what he conceived to be a conflict between the decision of Lord Lyndhurst in Young v. Waterpark, and that in Hunter v. Noeholds, it is plain that the principles laid down in the latter case, with which wo are here concerned, are unaffected by the judgment. In Lewis v. Duncomhe, 29 Beav. 188, the Master of the Rolls explained the decision in Cox v. Dolman. lie said that the Lord Chancellor and Lords Justices were of opinion that the case before Lord Lyndhurst, and Hunter ^.NockoldSy ought not to be regarded as contradictory. In Round v. Bell^ 30 Beav. 121, the learned Judge adhered to the views he had expressed in the case last mentioned. In Shaw v. Johnson, 1 Drew. & Sm. 412, the same view of the enactments is implied. Further illustrations of the ample acceptance which Lord Cottenham's construction has received, are furnished by the cases in which a mortgagee has been allowed, as against the heir of the mortgagor, to tack additional arrears of interest in order to -^void circuity of action. It is sufficient to refer to Elvey v. Norwood, 5 De G. & Sm. 243, where the Vice- Chancellor said : " Upon the construction of the Statute 3 & 4 Will. IV. cap. 27, it had been decided, and, I think, rightly decided — at all events in a way that is bi'idiug on this Court — that the only arrears of interest that are a charge upon the land are arrears for six years. On the other hand, there is the other Statute, the 3 ♦& 4 Will. IV. cap. 42, which leaves tV^ personal liability on the covenant open for twenty years." The cases in our own Court of Chan- cery have adopted the same rule. In Carroll v. Robertson, 15 Gr. 173, Mowat, V. C, concisely put it that, " During the ! ' .; ' il m 1)^ i:.' !! i f fiiii lie JONES ON PRESCRIPTION. [sec. 23. life of a mortgagor the mortgagee can only claim a lien on the land for six years of overdue interest, but the mortgagor is liable on liis covenant for twenty years' arrears ; and after his death, the mortgagee, to avoid circuity, is permitted as against tlie heirs, to tack to his debt the whole amount of interest recoverable on the covenant." In Aire]/ v. Mitchell, 21 Gr. 512, Blake, V. C, stated the result of the authorities to be that " No more than six years' arrears of interest in respect of a sum of money charged upon, or payable out of land, can be recovered by suit, except in an action upon the covenant, in which case the limitation shall be twenty years." The same doctrine was ennunciated in Iloweren v. Brad- hum, 22 Gr. 08. It was after this long and consistent array of authorities, of which they must be assumed to have been cognizant, that the Legislature proceeded to pass the Act in ques- tion. It opens with a recital, which, to my mind, clearly indicates an intention to amend cap. 88, but to leave cap. 78 unaffected. It declares, inter alia, the expediency of lessening the time for making entries and distresses, and for bringing actions and suits to recover land or rent, and for redemption by mortgagors, and for recovery of dower, and of money charged on lands or on rent ; but it does not contain the remotest suggestion of interference with the time for resorting to the personal remedy. The object to be gathered from the recital, is that of relieving the land from charges, and not that of releasing the debtor from personal liability. It is only necessary to advert to the reasoning in Hunter v. I^ocholda, to appreciate the force of this distinction. The enacting part proceeds to lay down provisions for a number of cases, which were previously regulated by cap. 88; and in the eleventh section (Rev. Stats., cap. 108, s. 23), enacts that no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment or lien, or other- ( ;Mi REVISED STATUTES, ONTARIO. 117 wise charpjed upon, or payable out of any land or rents at law or in equity or any legacy, but within ten years next after a present right to receive the same shall have accrued to some person " capable of giving a discharge," &c. This is the clause upon which the judgment in appeal proceeded. Its language is precisely identical with that employed in cap. 88 Consol. Stat. U. C, except that the period is reduced to ten years. We have seen that the provisions of cap. 88 did not prevent a mortgagee from recovering under cap. 78, but that his rights against the hind, regulated by one enactment, and his rights against the person regulated by the other, are entirely separate and distinct. It mani- festly follows that the alteration of cap. 88, by simply substi- tuting a shorter period for a longer, leaves the other Statute untouched. The argument which ^/as most strenuously urged was that money sought to be recovered was in fact charged upon land, and that the right to recover it being confessedly lost, there could not consistently with the Statute be any remedy. That general view seems to have strongly impressed Sir E. Sugden, before he was brought face to face with the construc- tion of the two Statutes, for in Henry v. Smith, 2 Dm. & War. 381, he said : " It was said that if judgment creditors are held to be included in this section, they still will be able to proceed against the personal estate of their debtor for the full arrears of interest. I admit no such consequence. The two (ilauses relate to money secured upon land, and to the interest of money so secured : and when the Act of Parlia- ment says no action shall be maintained after a given number of years for the recovery of such sum or such interest, how can a man after that period bring any action in respect of his debt? If the action is brought so as to charge the personal estate, the answer is obvious : ' You have brought your action in respect of a sum of money charged upon or payable out of real estate; you are therefore within the terms of the Act, and consequently your right is barred.' 1 1 ■ ■ t '■■i in I !l Tilt: ij i 118 JONES ON PRESCRIPTION. [sOC. 23. The personal oHtate inaj bo an additional security to such a creditor, but however numerous his securities, they could n(»t carry his rij;ht farther; if his reuiedy under the real security is gone, it is also barred of all the other securities." But he was then considering only cap. 27, sec. 42, taken in connection with an enactment that every judgment debt should bear interest, and the Statute which extended cap. 42, sec. 3, to Ireland was not in question. We have already seen from the notice of Hughes v. Kelly, how the conjunction of the Statutes modified his view, and seemed to lead him to the same conclusion as Lord Cottenham. The jippeal must be allowed, with costs, and judgment on the demurrer entered for the plaintiff in the Court below. Burton, J. A. — Mr. Ferguson admitted very frankly upon the argument that, unless this case was distinguish- able from Hunter v. Nockolds, 1 Mac. & Gord. 640, the judgment below must be reversed ; but he attempted to distinguish it, relying upon the terms of the recital in the recent Act as making entirely new provisions as to money charged upon land, coupled with the positive language of see. 11, wliich declares that no action, suit, or other pro- ceeding shall be brought, either at law or in equity, to recover any sum of money secured by mortgage or other- wise charged upon or payable out of any land, but within ten years next after a present right to receive the same shall have accrued ; and he contended that this must be held to apply to such actions as the present, and impliedly to have repealed the 7th sec. of the Consol. Stat, of U C, cap. 78, in all cases where the covenant was entered into to secure money charged upon land, and to have made a new provision, binding the right to recover upon the covenant to the shorter period mentioned in the recent Act. The effect, however, of the case to which I have referred, and of numerous other cases, both here and in England, iliiili REVISED STATUTES, ONTARIO. 119 since the passing of tlio Acts wliich were consolidated in our Statutes as caps. 78 & 88 respectively, was to hold that the latter had reference only to the land on wliich a demand was secured, the object being to relievo land from the claims of mortgagees and persons holding charges upon it within a reasonable term, which object was not affected by the term of the other Act, which relates to a different subject, namely, to personal actions only, the construction of the two Acts taken together, as regards rent or interest, being that no more than six years' arrears of rent or interest, in respect of any sum charged upon or payable out of land or rent, should be recovered by any distress action or suit other than, except in actions in covenant or debt upon specialty, in which case the limitation was governed by the other statute and fixed at twenty years. That being the construction placed upon the English Statutes, our own, which were substantially the same, were consolidated as above mentioned, thereby adopting the con- struction placed upon them. The recent Act purports to be, and is in fact, an amend- ment to cap. 88, and is to be read with it. It only professes to deal with land and charges upon it, and limits the term, both for the recovery of the land itself and the charges upon it, and does not profess to deal with statute, cap. 78, which, by a long course of judicial decisions, had been held to deal with an entirely distinct matter, namely, the collateral cove- nant or security for the payment of the money. The language used in section 11 is identical with that of section 24 of the former Act, except as to the former period of limitation ; and having been adopted with the knowledge of the interpretation placed upon the former Act, must be •construed in the same manner. It could scarcely have been intended to deprive a person holding the personal security of a covenant which, by a flong course of decision, had been held not to come within JONES osr PRESCRTPTiON. [sec. 23. tlio term limited by the other Act, namely, twenty years. It would require express language to deprive liim of tliat right. The appeal should l>e allowed, and (iiduMiiiit entered tor the plaintiif upon the demurrer. As to reviving a judgment, mi Caf). It was at one time decided in Irehind tliat it had no fiucli operatiijn, and that a legacy charf^ed on real estate with a trust created for its payment, was not saved by the 25th section from the operation of the 40th section {g). liut tho opposite view has been uplield in nutnerous cases, and is sanctioned by the House of Lords {d)\ and it must be con- sidered as now finally decided that, notwithstanding tho lapse of tho periods specified in the 4()th and 42nd sections, ati express trust, created by deed or will for the payment of debts, portions or legacies out of land or rent, may be enforced against a trustee under the exception in section 25, or one engrafted on that section by analogy. And, there- fore, that when an estate is vested in trustees in trust to pay annuitants or raise a gross sum of money, lapse of time will not bar any part of ♦ho claim of tho cedui que trust, so long as the trustees retain possession of the land or the right to recover the same.' {e) (a) Mcasrs. Darby & Bosanquet here add, "and great hardships would be imposed (in such a ceMui que trust if lie were barred of all remedy against a trustee holding on an express trust in his favour in tho periods specified in these sections." But "hard cases make bad law." {h) fSee Law v. BaywcU, 4 Dru. & War. 398, 408 ; St. John v. Boughton, •J Sim. 219 ; Vuuiitj v. Wilton, 10 Ir. Eq. Uep. 10. (r) Knox v. KcUy, 6 Ir. Eq. Rep. 297 (supra) ; Bume v. RoUnson, 1 Dru. & Walsh, 688. (d) Burrowen v. Oare, 6 H. of L. Ca. 907, 901 (supra). ■ (e) Hunt V. Baleman, 10 Ir. Et^. Rep. .360 ; Dillon v. Cruise, 3 Ir. Eq. Rep. 70 ; Young v. Waterpark, 13 Sim. 204 ; 15 L. J. (Ch.) 63 ; Dundaa v. Blake, 11 Ir. Eq. Rep. 138 ; Blair v. Nugent, 3 Jo. & Lat. 658, 668 ; Ward V. Arch, 12 Sim. 472 ; Oough v. Bult, 16 Sim, 323 ; Watson v. Saul, 1 Giflf. 188 ; Cox V. Dolman, 2 De G. M. &. G. 592 ; Shaw v. Johnson, 1 Drew. & Sim. 412 ; Snow v. Booth, 8 De G. M. & G. 69 ; Mansfield v. Ogle, 2 L. J. (Ch.) 700 ; Lewis v. Duncombe, 29 Beav. 175 ; Be Wyse, 4 Ir. Ch. Rep. 297 ; Blower v. Bloiuer, 5 Jur,, N. S. 33 ; Lawton v. Ford, L. R., 2 Eq. 97 ; Burrowes v. Oore, ubi supra. IlKVISED 8TATUTK8, ONTARIO. I2r> " Mr. Brown, in his ftl)lo work on the samo nubjoct, layp down the doctrine dcdiieihlo tVoni tlio cusoh (M|milly hroiidiy : 'Aw uj^uinBt the trurttco and any person clainiini; throuj^li him witiiout value, nnd wiiilst tho relation betwiusn [the trustee or wueli person and the eatui iiue trnd] continwuH, tjjo ri{j;ht of tho cestui tjue tntd, in j^eneral, reinainB un- nll'ected by time {a). Tlio statute waa not dertij^niod t(» intert'ero witii the weli-eHtahlished principle of e(piity, that, as between an express trustee and ecdul tjiie tnt-st, length of time creates no bar.'" {/j) Mr. Banning, in his work on limitations, p. 189, says: "A ditlicult (piestion arose on the construction of ;{ & 4 Will. IV. caj). 27, as to whether section 25 {e), by which the saving as to express trusts is created, extends to the subjects dealt with in sections 40 & 42 (d) of tho Act, namely, on money charges on land or rent. It was at one time held otherwise in Ireland (e), but this view was not upheld by the House of Lords (/) ; and it is now established that when land or rent is vested in trustees upon express trust to raise legacies, annuities, or other charges, time will not run as between trustee and t'cstui que trust as to any part of tho principal or interest of such charges. " (^) (a) Attorney-General V, Flint, 4 Hare, 147 ; Ddhfw Klrwan, 1 Ir. K((. Rep. 163 ; Dillon v. Cruise, 3 lb. 83 ; Hunt v. lialeinan, 10 lb. 300 ; Francia v. Graver, 5 Hare, 31) ; Phillips v. Mannings, 2 Myl. & C. 301) ; Petre v. Pelre, 1 Drew. 317 ; Emus v. Ba) IK)WKR. ^5, No notion of or Hiiit for tlownr hIiiiH Im hroii^ht Itiit williin ton yuai'H from tho duiitti of thu Iiuh)>:iiiiI of tliu dowort'HH, tiotwithHtiuidilig liny ilirtiiltility of tho dowurcHa or of uiiy purMon cliiiining uiidur her. 38 Vic. cup. 10, H. It. Proeeeditif^ft to recover dower aro reguhited by lleviijud StutnteH, cap. 55. Tho ciiBO of Jiecker v. Hammond^ 12 Chy. 485, which was a cuH(^ in wiiich tho main ([lu'stion that arurto was whether the svidow was entitled to dower in addition to tho provision made for her by tho husband's will, deserves notice. Part of the jndij;tnent of tho present Chancellor Spragf^o, enibodyiiior, as it does, most of the law on that point up to tho time of the judgment, I have hero inserted : •' One can scarcely read the will without tho conviction almost that tho testator intended the particular provision that ho made for her to bo her solo provision. J3ut tho cases in favour of the widow having dower in addition to the particular provision made by tho will arc very strong. I may refer, among many others, to Foster v. Cooke (a), before Lord Thurlow; to French v. Davis (5), in which (o) Dickemon v. Teaadale, 1 De G. J. & Sim. 52. (6) Banning's Limitation of Actions, p. 189, (c) 2 B. C. C. 347. (d) 2 Ves. Jun. 572. nrvmrn RTATirTEn, Ontario. 127 Lonl Alviinlc'V roviowcd tho prcvioim ciirti'H; to (Jihiion v. ii'ihsnu (^/), uikI lU'HilitKj V. /ii m/lufj (f>). TlioHO cnnc8 and othorrt arc Btroiijr in fiivoiir of tlio dowcr. On Hio other lumd U tlio Into ca«o of /\trhr v. Soxwrhy (r), nnd tlio cft«o of /A/// V. Ilati {(f), hetore I.oril St. LcoiianiK wlion Lord Mccllor of Ireland, It hai* often bocn olworvt'd that uicrio (lartL'rt ar«! irrccoticilalilc. Tliosc in fuvonr «»f tho dower ^o nniinly upon thin, timt tlic testator tonst In; tinder- atood an diiposinj; of liin o-tat«! nuhject to liirt wito'n |)inionH of the learned jud^ert who have inHiHtod upon thin point, I eannot hut think that in soino cartes thev havo ])Ushed tho do ' l<, 'i^ .. iljl 1 . I 1 ) m \ lit' i V PART III. REVISED STATUTES OF ONTARIO. CAP. 108. i i m BAR OF ESTATES TAIL BY WANT OF ENTRY. ^G. Where the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, has been barred by reason of the same not having been made or brought within the period limited by this Act, no such entry, distress or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred. C. S. U. C. cap. 88, 8. 28. This section is taken from C. S. U. C. cap. 88, s. 28, whicli was taken from the 3 & 4 Will. IV. cap. 27 (Imp. Stat.) s. 21. " It applies to cases where tlie prescribed period has run out against a tenant in tail duriuj^ his life; and provides, in effect, that in such a case the right of all persons, whom he might have barred by any act of his own, shall be barred by the effluxion of time against himself." (a) "The Statute of Will. IV. gives time practically the same effect in barring the issue in tail, and the remainders over as an assurance to bar under the Fines and Recoveries Act." (b) The Ontario Statute (Revised Statutes, cap. 100), witii regard to estates tail, has generally had the effect of turning all estates tail into estates in fee, as the actual tenants in tail availed themselves of the provisions of that Statute. It was taken from C. S. U. C. cap. 83. (o) Charley's Real Property Acts, p. 44. (b) Darby and Bosanquet's Statute of Limitations, p. 310. REVISED STATUTES, ONTARIO. m Before the passing of the Act respecting the assurance of estates tail, a tenant in tail executed a deed purporting to convey the property in fee, and gave up possession to the purchaser. Ileld^ that the Statute did not begin to run till the death of the grantor. Re Shaver^ 2 Chy. Chambers, 379.— Mowat. As to this section, vide Darby and Bosanquet's Statute of Limitations, p. 311 ; d\%o Austin v. Llewellyn, 9 Ex. 276. In Goodall v. Skerratt, 3 Dru. 216, an estate tail was limited to A., remainder in tail to B., remainder to 0. A. dies; then B. dies within twenty years, and C. becomes entitled in posaeasion, being then under disability. It was held, that under the 2l8t and 22nd sections of that Act (3 «fe 4 Will. IV. cap. 27), time commenced running against 0. from the death of A., and that having commenced to run, 0. was not saved from its operation under section 16, by being under disability when her right accrued in possession. Vice- Chancellor Kindersley said, the intention and operation of tiie 2l8t and 22nd sections are to put remainder-men, whose estate might be barred by the tenant in tail, in the same position as if they claimed under tenants in tail ; that is, the act of the tenant in tail, in allowing any portion of the twenty years to run without making an entry or bringing an action to the extent of the period allowed to elapse, binds the remainder-man. It has been said by Bramwell, B., that sections 21 & 22 (27 & 28 Rev. Stat.) refer only to estates in remainder and reversion, the estate of the tenant in tail, which descends to his issue, being provided for by sec, 2. Earl of Aber- gavenny V. Brace, L. R. 7 Ex. 149-173. Joint tenants in tail executed articles of agreement for the division of the property, and each went into possession, and for thirty-six years continued to enjoy the portion allotted to him, when a bill was filed to enforce the agreement. Held, that the defendant could not set up as a defence to such bill, that the plaintiff had by possession acquired a ii^ l.ti u;l 1^ ^ ;ll ■ " 1 * V W3 an i! '■ MB' ■ kS' m 8 • 1 i I ! i ijfc^k 132 JONES ON PRESCRIPTION. [sees. 26, 27. perfect title at law. A decree for specific ])erforinance will bo made against a tenant in tail. Graham v. Graham^ 6 Chy. 372. 581. Where a tenant in tail of any land or rent entitled to recover the same has died before the expiration of the period limited by this Act, no per8iration of tlie usual period of twenty (ten) years. This period, however, dates only, and time commences to run only from the time when the assurance, otherwise valid, but defective from want of the concurrence of the protector, would, if then executed, not need such concurrence, owinji^, for example, to the assurer havini; in the meantime beconie tenant in tail in possession." (a) "' Base fee' shall mean that estate in fee simple, in which an estate tail is converted, where the issue in tail are barred, but persons claiininjj^ estates by way of remainder or other- wise are not barred." {h) •* Protector." " If at the time there be a tenant in tail of lands under a settlement, and there be subsistiiipj in the same lands or any of them, under the same settlement, any estate tor years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the (a) Banning's Limitation of Actions, p. 114. {h) A.ct respecting the Assurance of Estates Tail (Revised Statute, cap.' lOU, sees. 1 & 10). . i i ,i i w II ■I . ; !'■ i I [I m J0NE8 ON PHKHOKFPTION. [seo. 2P. efttuto tiiil, tluiti tlio jKH'tton who is tlio owner of tlio prior erttiito tiliall he the protector to the settlement. "It was one of the propositionn of tlio Real Property ConiinisbionerH, that on any alienation by u tetuint in tail, by any assurance not opcratiiijn^ as a <'oniplete bar to the estate tail, and all estates, rifjjhts and interests limited to take effect on the deternjination or in deroj^ation of it, possession under such assurance should have the same etfect in barrinj^f the estate tail, and all estates, ri Cnnmlian Piirliu- Mient wliieli was jiaKHod into law on the 18tli May, 184(J, uimhlin^ tlu? alienation to l)e oHeJtted hy a Himple C(»nveyance. It has always been tin; rule in England, that a tenant in tail who eontnicts to soil or eluirgo the fee niinple, nniy he com- pelled to do whatever is necob^ary to j;ive the purchaser a title to the fee siinplo. (a) " And the contestant's father could have heen coinpellcd in this country, at any time after the iHth May, 1840, until his death sixteen years afterwards, to execute a new conveyance which would have perfected the petitioner's title [h). I think the contestant's siltnce was a discrlaimer of his rij;ht, and an acquiescence in the petitioner's title to the fee Bim|.le." Jie Shaver^ 3 Chy. Chambers, infra. LIMITATION OF SUITS IN KQUITY. 80. No person chuniing ivny land or ront in o such estate, interest or right, in or to tho samo as ho claims therein in ecjuity. C. S. U. C. cap. 88, s. 31 . This section is taken from the Imperial Statute 3 & 4 Will. IV. cap. 27, s. 24. It not only puts in statutory form and gives the force of law to a well-known principle that equity follows the law, but under this, Courts of Equity may be said to act in obedience to tho Statutes of Limitation. Lord liedesdale holds thus in Ilovenden v. Lord Annesley^ 2 Sch. & Lef. 629. (c) (o) See Sugden's Vend. & Pur. 205, 468, 14th Edit. (b) Sec Smith v. Baker, 1 Y. & C. C. C. 223; Onhorne v. Similh, 4 Ir. ( 'by. 58 ; and other cases cited, Sugden, 744, et aeq. ; Dart, 740, 4th Edit. (c) Hollingshead's Case, 1 P. W. 743 ; South Sea Co. v. WymondMell, 3 P. W. 143 ; EcUell v. Buchanan, 2 Ves. 83 ; Cholmmdoley v. Clinton, 3 J»c. & Walk. 56. 'lit I 140 JONRN ON I'KKHCKIi'TION. [acc. 2i). III h : : , ( > 1 * j ' - i "Tliiirt tluTP wurt no limit in (><|iiity to llio ronovory of n rent j'lmr^u ut a tinn' wlu-ii no li.ir oxiHteii !»}' Statute." Arehbold v. Scully, U II. L. (J. 'M\i). Tliirt Strttnto wart int(>n(l(M| to put an end altoirotlujr to tlie (lirtcivtion of'C'oiirtrt of K(juity in tlhwo cant-rt wlusio thry had lutturu xn'XvA \\y analogy to tli*- time liinitcd at law. That wart an ainilo^ry ('oiind(!d hoth in law and <^iuA Hcnrte, but it nu longer roinainrt in the (lincrotion of tho Court, but is itxtorporatcd in tli(5 Statute. Iiarrit\rat<- art a l;ar in (upiity of any partieular demand. 17 Vch. {>7. Time is a bar in equity to stale denuuuls independent of the Statute. A bill filed by a tenant for life in remainder against the repre- sentative of a prior tenant for life for an account of tind)er improperly cut, was dirtinissed with costs on account of the delay, the bill not having been filed until nearly twenty years after the death of the ttrst tenant for life. Ilarcourt V. White, 28 lieav. 303. Equitable waste was decreed against the estate of a tenant for life thirty-eight years after the waste was committed, the title of the plaintiff as remainder-man in tail having accrued within tw(^nty years before the filing of tlio bill. Duke i)f Leeds v. Earl Afiiherd, 2 Phill, 117; Morris v. J/b/'W*, 4 Jur. N. S. 964. Legal Waste. — Where ti tenant for life imj)eachable for waste commits legal waste by wrongfully cutting timber, time runs against the remainder-man from the time of the cutting, and it appears that the period of limitatit)n is six years. Seagram v. Knight^ L. R. 2 Chy. 628 ; Iliggin- hotham V. Ilawkitis, L. R. 7 Chy. 671 ; Birch Wolfe v. Birch, L. R. 9 Eq. 633. RKVIHKt) HTATL'TKM, ONTARIO. Ul Accnrdiri;:? to Lonl St. Li'ormrdrt, n bill of fororloHiini in iutt II Hiiit ill r(|iiity tor tlio ri'covory of tlin inoiM«y cliut-^tMl iipoM llii) liiiiil ; l>iit irt. ill i'llVct, II Hiiit to olitiiin tlio t>i{iiity of rcMlciiijitioti, wliicli irt, in viow of o(jiiify, iiri jvctiiul *'8i;it»!. Tim tiint* irt tlinn'fom pivi-niotl hy tliu N'^iil ri^lit to Itrinjr an action. \Vn',roH v. r/:v', .'{ Drn. iVr War. KH; iSn^d. It. P. StiifK. JU, 121, lind Kilit. Soo, however, l),',ii'man V. W>'/<^J>Sim. 570; Sli.'IfonrK I{. I'. Stutrt. ij:i7, Stii Kdit. 800 in Onturio ('Oiirtrt, jii(|;;ini>nt of (yliief JiMtici' .Moha in Allan V. MfDivl.sh^ '»/''<', pp. I<>s lis. An to tlio v\Xoct of proci'udinj^ft in Cfpiity in provcntini^ till' optiriition of the Stiituto, turn Siidfonrrt U. 1*. Stilts, pp. VMK 2()(>, 8tli Kdit. :I0' Whuni any l/iinl c»r rvut m vt'Htnl in n triiHttio ii|«>n nuy « ccittiii ifiie frimt, or liiiy purmm eliiiiiiiii^ tlir*iii)«', or any purHoii claiiniiiK tliioiiKli him to rmoviT such hiiid or rent, Hhall bu (lot'iiuiil to havo fintt aocniiul, according to thu iiKtaning of thin Act, at and not huforu thu time at which Hiu^h land or runt han huitn convuyod to a piirchiiMur for a valitahli) conHidt'iation, and Hhall thtro ton^o a conveyance within the meaning of the Act {d). No possession by a purchaser short of tlie statutory period will be a bar." {e) This section applies only to express trusts. " Trusts, as regards the provisions of the Statute, may be divided into express trusts and constructive trusts,' the former arising from the language of some written instrument, and the latter, such as are elicited by the principles of a Court of Equity from the actions of the parties." (/) (a) Braiime v. Radford, W. N. 1874. (6) Sturgis v. Morse, 24 Beav. 541, 3 DeG. & Jones, 1 ; ffeenanv. Berry, 2 Jones & Lat. 303 ; Salter v. Cavanagh, 1 Dru. & Walsh, 668 ; Blair v. Nugent, 3 Jones & Lat. 668, 9 Ir. Eq. Reports, 400 ; Ravetisero/t v. Friahy, 2 Cole, 16 ; Massy v. O'Dell, 10 Ir. Ch. Rep. 22 ; O'Beilly v. WaUh, 6 Ir. Eq. Rep. 555 ; Dixon v. Oayfere, 17 Beav. 421. (c) Petre v. Petre, 1 Drew. 371. ((/) Attorney-General v. Davey, 4 De G. k J. 136 ; Attomey-Oeneral v. Payne, 27 Beav. 168. (e) Attomey-Oeneral v. Flint, 4 Hare, 147 ; Lewin on Trusts, 718. (/) Lewin on Trusts, 719. aB lal V. RKVI8RD STATUTES, ONTARIO. 147 In CornmUfiionera of Charitable Donations v. Wyhrants, 2 Joiuifl bring a suit in equity for the recovery of any land or rent which he (a) A. O. y. IHshmangers' Co., 5 My. & Cr. 16. (6) Kniyht v. Bowyer, 2 De G. &J. 421, 4 Jur. N. S. 560, 28 L. J. Chy 54 ; Ward v. Arch, 12 Sim. 472 ; Young v. Lord Waterpark, 13 Sim. 199 Cox V. Dolman, 2 DeG. M. & G, 592 ; Garrard v. Tuck, 8 0. B. 231. (c) Banning's Limitation of Actions, 191 ; Dickenson v. Teaadale, 14 DeG. J. & S. 52 ; but see Jacque v. JacqueU, 27 Beav. 332. (rf) Bright v. Legerton (No. 1), 29 Beav. 60. (e) Blight's Lessees v. Rochester, 7 Wheat. (U. S.) 535 ; Melting v. Leak, 16 C. B. 652; Stanway v.. Bock, 4 M. & Gr. 30; Banning's Limitation of Aotioni, 194. RRVI8RD HTATUTBS, ONTARIO. 149 or any purHon thnnij^h whom ho claiinit, nmy havo boon doprivod by 'Atich friiiKl, ithall bu (UuHiiud to havo firat i>ocriiueration of the Statute, however great or carefully concealed, but that it was necessary to go into equity, yet at present, under the Administration of Justice Act, relief may be obtained in any court, and the 'equitable rights administered. With regard to the jurisdic- tion and practice under the Administration of Justice Act, see the judgment of the Court of Appeals in St. MichaePs Oollege v. Meyrick^ Appeal Reports, Vol. I. ; No. 5, Can. L. J. 1877, p, 239. " Such fraud as will in equity prevent the bar of the Statute, must be distinct in its characteristic (c), and mere wrongful entry or possession is not e(iuivalont to fraud unless there is designed concealment of important circum- stances from the rightfid owner. It has been decided that possession through a conveyance from a lunatic is not of (o) Hatjerman v. Beasley, 14 Veaey, 273 ; Bridgman v. Oreene, Wilmot'i Notes, 58. Banning's Limitation of Actions, 217. {b) Hvvenden v. Lord Annealey, 2 Sch. & Lef. 634. (c) Petre v. Petre, I Drew. 397 ; Dean v. Thwaite, 21 Beav. 621. II '■\i 160 JOIfES ON PRK8CRIPTION. [nee. 3!. iNii' itself evidence of fraud (a). Hut it W(»ulf a Maw in his title, it was (tonrtidered ?K»t u (riis(( ot fraud, so as to taku the casu out of the then existing Law of Limitations. (f rnarria<;e which formed a princii)al link in the title of the phiintiff had been fraudulently mutilated, as was alle^t'd in the hill by one Edward Chetham, counsellor at law, yet it was held by Malins, V.-C, on demurrer, that the fraud could have been discovered earlier with proper diligence, and that the bill was too late (nt with reference to that rpiestion, James, L. .1 , in deliveriii;; the judi^ment of the Court in V'lnc v. Vdne {(;), remarks as follows: 'it appears to us beyond all (juesMon that, as the law of this court stood when the Statute was pa^se('li«'Vo,' vvt;ro dcHi^^ncdly introduced, ho tliat <»nly tliorio |Mii'(;liusi'i'rt Hhould Im> iifti'ctcd wlio liud uctiiiu know- It'd^'f, iind who wrro, in trntli, tnakinjjj tln'tn!si'Iv«'>» nioriilly Hi;conndi(!t'rt in tlu; iVuud, in fact, njctiivcrs of slolon j^oodH. Hut \\v think that what th(^ I.t'^rihlatnro meant to ilo wnH to (3X(dudu that (!on>4trn(;tivu notice, which had (;ertainly hoen carried to a very startling extent in numy irirttatKies, and thftt it dion thu clause, it is obvious that if actual personal knowledj^e were re(piired, every c(»r}>oration or j()intstock company mijjjht actjuire a i^ood title to property, althouf;h its otticers and solicitors were purfectly conversant with the j^rossest fraud perpetrated by the ven; BurrouuH v. (JnO^x, vS C. P. 121 ; Wrhjht v. /lankin, IS (irant, ()2r> ; Duehesw of Kin<:;st(»ii'rt case, ti Sm. L. C. ('.so, <;th Kdit. Taylor's Kvidence; /)ff< linnrdl v. Turner, U M. 6c VV. (J4;i; As/ier v. WkUlork, K. U. 1 Q. U. 1. See also D(n: Miller v. Tljfunij, 5 II, C. 7i). In tliis case {liutterfehJ v. Maybee et ai, 22 C.P. 230), Chief Justice Ilanjarty remarks : "The Statute of Limita- tions (at least in a country like ours) lia.s worked most beneficially for the (piietinj^ of titles. I think the present is hardly a case for extending or straininj; the well settled lej^al causes which prevent or suspend its operati(jn," Whether the Court of Chancery did not "strain the well settled lejijal causes which suspend its operation," in tho next case may be a subject of interestin<( incpjiry. The case of Latham v. Cro-Hhij, 10 Chy. p. 30S, may be of interest in this connection. '' L., as dauj^diter of a 11. E. Loyalist, had been granted a lot ot land, but left Canada for the United States in 1825, where she had resided ever since. Various persons took possession of tho land, and im[)roved it 80 that it was worth £2,500. Crosby sent his a<;ent, Kotchum, to L. in Michigan to treat for the purcliase Ijli IM JONRS ON I'liMCHII'TIUN. [nttC. 31. I t» il lit if of |)liiiritity*rt intorett. Thin n^ont inndo nuinoroiiH \'nU» ropri'rtrtitiitiotiH iH to tho position nnd vhIuo (>t'tli(i I^. to convey licr ititi>ri>rit in tin: himl to(!. tor un in(;oiiHiiii>rul>lc •uiri. On u 1)111 \\Uh\ to set iinido tliiit con v<'y unco, /<»///, tlmt tho I'eprcKcnttitiontt nui«l(> \ty \.\\v, ii^<*nt W(>ri> rnutcriul, and to l>o eoMHidt'red in wt'i^liinj; tlii^ fx^na jiiUn of tlio coutruut, which was ordered to he <'iincened." Tho jjonerul principh* with re;jard tt) fraud in thi>^, " that tho ruhs of tin? (!itiirt are tho rnhw of honcHty afivd Anihxh'ij, 2 Sell. ik. Lof. «I.';i ; HVa/*;/';* v. Cai'twilglit, Sel. C;h. Ca. ;i4; Mulcahy v. ICnmrdy, \ Itidjre, '6'M. It appears to ho laid down in Lewin on Trusts, p. 711, that if defendant has not in soiiut way |)leaded th*; Statute, ho cannot shelter himself under it, hut it is sii|)poriud th:it in Ontario, in analoi;y with the ilucision in the vwm of (rille- lund V. Wuihwot'th^ where the Ive^intry Laws were not pleaded, it would not be tieceBsary to plead the Statute of Limitations. See also Prince v, Ifiylln^ 1 Atk. Iio}». 4*J4. Lewiii on Trusts says, p. 711: "Even when the hill charji^es fraud, the defendant nuiy demur or plead a(rc(M'dinj; to the (nrcumstances of the ca8e(tf). It the plaintitl* allege that he (a) Grnfi v. Letri^, 8 I.. II. Va\. fi2«; Lowin on TruKtH. 704. (ft) lUair\. Hruinleii, 'J I'liill. .Sr>4 ; llnlj'e v. Ur.ynrij, W Jur. N. S. 97; t. c. 4 Do (J. Jon. & Sui. r)7(); Votml v. Purchnai-, cjia. t; Tallxit, 03, prr Ix»ril Tallidt; Medticol v. 0' Ihnwl, 1 H. & H. 1(5(5, /wr Ix)nl .Miinnero; Arran v. Fimrhy, cited, Ijcwin on Trusts, 170; Allen v. Gregory, 2 Kdtsu, 280; Atortie v. Hitynl, 12 Ves. 374; Lowin on Trusts, 710. i HKVINKIl HTATIITKN, ONTAHIO. 15ft »1 only (iiA<*ovuroriii(l liiuiti'(| hy tl Stutiitr, tli(> «lot'(>ii(liitit iiiiiHt liy |)lni citliiT ili'iiy tliu tVuud ur iiiiii^t tliiit till) pltiiiiliti' \m\ kmnvUjtl^o o( it," 3^. Nolhiri^ in tint liint pn>I(< nny »wn<*r of UiiiIh itf rciiUt to )iAVi< aniiit in tH|iiity for tlic ro mvoI'v <>f hiicIi limtU or rir/iir niluithlv nmHiiUra tutn, will) liiiN not itHMiHtdil m tint CKinmiHHinn of mikIi friiml, uixl who at till) tiniii tliiit III! iiiiiilti tint |iurcliiiM>> iliti;(i in Ontiirio of tlividin^ tin' l«)nff EiijfliHJi «t'(!tioiH into twoortlirro Hnmllcr m-ctioMM, in worthy of noti(!o. It rcnduirt tlio Htndy of Stiitntt; Liiw, ut no tiino very interi'stin;^ or ontt'i-tiiininjr, u littlo cUiuriT, und in<»re •'iirtily uridi'i'rttootl. Most of till! ciMuft tliLMTforo, ftn) Our Statute with rej^ard to voluntary oonveyanecs would perhaps eure any rulin\ Mac. ik G. 486. As to what constitutes reasonable diligence in the dis- covery of concealed fraud within this section, see Chetham v. Hoare, L. R. 9 Eq. 5ri ; Vane v. Vane, 21 W. K. 06. Time is no bar to fraud, {a) A Court of Equity will not impeach a transaction on the ground of fraud, whore the fict of the alleged fraud has been withiiJ the knowledge of the party many years; but held that every new right of action in equity which accrued to the party must be acted on to the utmost within twenty years, except in the case of a trustee whose possession was consistent with the title of the claimant. 2 Sch. & Lef 637. Where a party is to be constituted trustee by a decree of a Court of Equity, founded on fraud or the like, his possession Ib adverse, and the Statute of Limitations will run from the time the circumstances of the fraud were discovered. 2 Ball & B. 129; Broohshank v. ISmith, 2 Y. & Coll. 58. (o) 1 Fonbl. 331 ; Cotterill v. PurcJiase, Forrest. 61 ; AUim v. Gregory, '2 Bden, R. 230; Whalley v. Wkalley, 1 Mer. 436; Dokraine v. Brown, 2 Br. C. C. 633; Gordon v. Gordon, 3 Swauat. 400. the imp but •ned \inty was 1637. I of H taion the 2 2 Br. RRVI8ED STATnTES, ONTARIO. 160 S3* Nothing in thia Act contained stiall be 'looniod to interfere with any. rule or jurisdiction uf Courts uf E. 27, Imp. Stat. It gives a statutory authority to the former jurisdiction of tlio Court of Chancery. "It is rtsiiniy true," said Sir Williain (Irant, "that no tiiu" hill's a direct trust; hut if it is meant to he asserted tlmt a Court of Equity allows a man to make out a case of Gormtruative trufit at any distatuv of time after the tacts and circumstances lun'pened out of which it arises, I am not aware there is any ground for a doctrine so fatal to tiie security of property as that would ho; so far from it, that not only * i rir unstances where the length of tiuje would render it cKUtmely dittictdt to ascertain the true state of the fact, hut where tlie true state of tin; fact is easily ascer- tained, and where it is perfectly clear tiiat relief would originally have been given on the ground of constructive trust, it is refused to the party who, after long a(;(juie6cence, comes into a Court of Equity to seek that relief." {a) With regard to a bar from public or private inconveni- ence, F/f/e I^ewin on Frusts, t)th Edit., 713, and |)articularly the case of Pickering v. Ij)rd Stamford^ 2 Ves. jun. 272. "It is a principle that whenever a party applies to a Court of Equity, and carries on an unfounded litigation, protracted under circumstances and for a lapse of time which deprive his adversary of his legal rights, a substitute for the legal rights of which the party so prosecuting an unfounded charge has deprived his adversary should be supplied and administered." (6) (a) Bedford v. Wade, 17 Ves. 97. (6) Banning's Limitation of Actions, 123. Vesey, 73. PtUtetuy V. Warrffi, 6 N : la '! It l! \U I H fi; 160 JONES ON PRESCRIPTION. [sec. 33. ■ii In former times there was a question whetlicr a pluintifi was not barreri in law by time during the time proceedings were being taken in equity, but this does not apply to Ontario, partlcMilarly since the passage of the Administration of Justice Act, and the partial fusion of law and equity. Our Statute only allows twenty years in any case. In Enj»land although forty years was the statutory period, it was always necessary to trace title for sixty years. How far will it be necessary in Ontario under the present Statute? In Dannv. iSpurrier^ Yiord. Eldon says: "This Court will not permit a man knowingly, though but pas- sively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as using terms of encourage- ment, a lessor knowing and permitting those acts which the lessee would not have done, and the other must conceive he would not have done, but upon an exnectation that the lessor would not throw any objection in the way of his enjoyment." {a) Acquiescence is defined as follows by Lord Cottenham, in The DuTce of Leeds v. Amherst, 2 Phillips, 123: "If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he can- not afterwards complain. This is the proper sense of the word acquiescence." It is evident that acquiescence must presuppose full knowledge of the facts. A cestui que trust with no know- ledge, or imperfect and partial knowledge, can hardly be said to acquiesce. (J) The cases in Ontario are few, but they are all founded upon the same principle. (o) 7 Vesey, 231. (6) Marker v. Marker, 9 Hare, 16 ; Cooper v. Ore«n, 2 De G, F. & J. 68 ; Ghalmera v. Bradley, 1 Jac. & W. 59 ; Lord Sehey v. Rhoades, 1 Bli. N. S. 1 ; Rudd V. Sewell, 4 Jur. 882-86; 3 Vesey, 748; 6 Vesey, 632. I t full )W- be led 58; PART IV. REVISED STATUTES OF ONTARIO. CAP. 108. PRESCRIPTION IN CASES OF EASEMENTS. We now come to the important sul)ject of Easements by Prescription. The last treatise on easements, that of God- dard, published in 1877, enters very fully into the definition of what is an easement, and it may be well to refer to it here. " The earliest definition of the word ' Easement ' is to be found in an ancient and well-known book, called ' Termes de la Ley,' in which it is laid down that ' an easement is a privilege that one neighbour hath of another, by writing or prescription without profit, as a way or sink through his land, or such like ' (a). To the trustworthy character of this book Bayley, J., bears testimony, describing it as a book of great antiquity and accuracy (5) ; but it will be seel that the words of this definition are very wide in their signification, and will embrace many rights which are not easements in the strict sense of the word, and to which that term ought not to be applied according to modern decisions. Before, however, proceeding to the consideration of those decisions, it may not be out of place to give a definition which, it is conceived, more accurately describes easements strictly so called, and reduces the meaning of the word to proper limits, as it is understood at the present day. An easement is a privilege, without profit, which the owner of 11 (a) Termes de la Lty, 284. (6) Hewlins v. Shippam, 5 B. & C. 229. I I' If^ ,i I : mi I llir 162 JONES OK PRESCRIPTION. one tonemont has a right to enjoy in respect of that tene- ment in or over tiio teiioinont of another person, by reason whereof the latter is obliged to sutler or refrain from doing Boincthing on his own tenement for tlie advantage of the former." (a) Of easements there are two kinds : tlioao that are created by the act of man, and those given by law. The former are strictly and technically called " easements," the latter, " natural rights." " Natural rights are inherent in the land, ex jure natunn^ and are secured to the landlord by the common law ; for example, the right to secure necessary support for land from the adjacent or subjacent soil, while it is allowed to remain in its natural condition, and the due enjoyment of air, light and water, which, by the provision of nature, flow over the soil of one landowner to that of another, for the common benefit of each." Although an easement may be obtained, it is not obtained merely by writing or prescription according to the modern decisions. A writing not under seal would only give a license the same that would be acquired by word of mouth. " A right of way or a right of passage for water, where it does not create an interest in the land, is an incorporeal right, and stands upon the same footing with other incor- poreal rights, such as rights of common, rents, advowsons, &q It lies not in livery but in grant, and a freehold interest in it cannot be created or passed (even if a chattel interest may, which I think it cannot) otherwise ^4«/i hij deedy Words of Bayley, J., in Ilewlins v. Shippam^ 5 B. & C. 229 ; Fentiman v. Smith, 4 East. 107 ; Cocker ▼. Cowper, 1 0. M. *& R. 418 : " A dispensation or license properly passeth no interest, nor alters or transfers property in any- thing, but only makes an action lawful wiiich without it had been unlawful." Per Vaughan, C. J., in Thomas v. Sorrellj Vaughan, 351 ; Wood v. Ledbitter, 13 M. & W. 838 ; 14 L. J. Ex. 161. (a) Goddard on Easementi, 1, 2. ,&c luay, &C. )perly any- )ut it ia8 V. W. RBVISBD BTiTUTRS, ONTARIO. 163 An easemont can only bo granted by deed, and if given by j)arol, may be revolcod at any time. CnjuUr v. Vrehjhton^ E. T. 2 Vic. In liegina v. Breioftter, 8 C. V. 20S, /uild, that twenty years' user will legitimate an easement affecting private property, but not a nuiwuKio. Draper, J., in hia judgment says: "It was secondly urged that the dam had been erected upwards of twenty years. For the purpose of establishing an easement affecting the private property of others, this would bo sufficient, generally speaking, but it is not 80 where the consequences of this Act are ad com. In li. V. Cross, 2 C. & P. 483, Lord Ellenborough snys: "It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisatico." In Voo(/ht V. Winch, 2 B. & Al. C62, the Court expressed a clear opinion "that tin obstruction of a navigable river, though continued for twenty years, is no bar to a public right." But a licensee has power to sue, either in his own name or that of his grantor, any person that hinders him in the enjoyment of his privilege (a). " It has been held that a right to take coal from under the land of another person, is an incorporeal right or a privilege, but a right to take all the coal lying under the particular close is a corporeal right and not a privilege, because it is a right to part of the soil." (b) The tenement in respect of which an easement is enjoyed is called the " Dominant tenement," and the owner of that tenement is called the " Dominant owner ;" while the tene- ment in or over which the right is exercised is called the " Servient tenement," and the owner thereof is called the " Servient owner." This ownership must belong to two lifferent persons, and the same persoQ could not have an [a) Whnlfy v. Laing, 2 H. & N. 476 ; 26 L. J. Ex. 327 ; per Bramwell, B., Ill Stockport Water Work* Co. v. Potter, 3 H. & 0. 300 ^ MitcaJ/y. Weslatoay, nL.3. C. P. 113. (h) Wilkinson v. Proud, 1 1 M. A W. 33 ; Sanders v. Norvsood, Oro. Elii. »5S4; Dot d. Hanwy v. Wood, 2 B. & Aid. 724. !li I': 164 JO<«R8 Ojr PRKRCRIPTrOW. caRCinciit over h\« own land. liord Ilathcrlcy says, " I take tho prifHtlplo laid down in I laHputfje v. Warwick^ 3 Ex. 552, to l>c, that in order to obtain an easement over land, you muHt not )»e tl)o jx)H6e8nor of it, for you cannot have tlie land ituelf and a)»o an eat^'inent over it/' (a) The hitest case decidcunds; tho plaintiff* claimed the use of a water cl(»aet that was not on tho piece of land sold, but on another piece of land adjoining, belonging also to the deferulant. The description of the land in the deed did not embrace the water closet. The plaintitt'liad been tenant of the defendant, and during the time of his tenancy used the water closet. A man named Lyon had also been tenant, and also nscd the water closet during tho time of his tenancy. There was evidence that defendant intended to convey tlie premises that Lyon occupied, and the learned Chancellor seemed to think that the deed the defendant signed conveyed the use of the water closet, and created an eaaement in favour of the plaintifi*. Decree for plaintitf. In the judgment tho learned Chancellor alluded to the case of Corley v. Lord Stafford, \ De U. & J. 238, as to the duty of solicitors buying property from their clients. This decision appears to me to be contrary to the autho- rities, as Coghill owned both lots, and during the time tl»t Lyon occnpied it there was no easement properly so called. A landloi-d may allow Ids tenant to walk over his land without being willing or intending to grant the land or that privilege to a stranger who buys an adjoining lot. No easement can exist when a person owns the land, so that aB (a) Ladyman v. Grave, 6 Chy. Appeala, L. R. 767. (&) Sabsequently reported 25 Grant, 179; in which it appears doubtful whether plaintiff had btsen tenant. Decision based on the effect of the Statute in Short Forms of Conveyances. I tftkc I. 552, il, you krc the thftt of June, \f\\t the the use )ia, hut to the did not Ljnant of used the { tcnnnt, 3 of hie jnded to learned et'endant eated au intiff. )d to the as to the ,8. le autho- time tl»t BO called. his land 3 land or lot. No 80 that ap jars doubtful effect of the BEVIHED STATUTM, ONTABIO. 165 long an Goghill whb owner there watt no eafleinont Was an oaHeincnt created hy the 'deed Cugliill signed to Kerr, and did defendant, acting under liis uwn unattBiAted judgment, understand that he was fliua creating an eaHument? We think hetietit will accrue from the insertion of Mr. SlielfonPs remarks : "A profit claimed out of another man ^8 soil must l)c alleged hy way of prescription, and not hy way of custom, for a custom to take a profit in alieno mlo is l)ad {/iU'icitt v. Tregonnwg, 3 Ad. i\r Ell. 575 ; see (I IJ., N. S. 0S2), l)ut an easement, as a right of way hi alieno wA>, may he claimed hy custom. Gi'ltristeadw. M^ii/'/oio,4:T. 11. 717. The reason why a pn>fit d prendre cannot ho su}>ported hy a custom in an indefinite numher of poopio is, that the suhject of the profit rtnin iH)rvlct!H,ccrtHin iH)rtion of their lonl's Innd. That compact iiieiiidc'd the ri<^ht of (twntnoii on the lordV waHte; and the hiw will not Kuttor thiit tij^ht to want a legal cliaracter, ami ho he witiiout the ineanrt of itti legal unforce- inent, though at thu expense of btriet legal reasoning. In tho Hamo way, the right now in quentioii ntUBt have origin- ated in each inntanee in a virtual contract; the owner has permitted tho tinner to enter and work, when he did not work hiniHelf or devote his waste exclusively to other pur- poses oy inclosuro, on tho condition that the tinner shall render to him a certain portion, tlxed by custom, of the produce of the mine. Hero, tis in the instance of a common, tho thing is in its nature to be claimed by prescription only ; but they who have it, and ought to have it in justice, cannot proscrilK) for it from necessity ; therefore, that the undoubted riglit may not l>e defeated, they nhall be allo'ved to claim it by custom.' Ji'(Hjern v. U/eiUon, 10 t^. B. (10, 02. "In that case tho plaintift* claimed under tho following custom wliich the jury found to exist in fact : any person tnay enter npon tlie waste land of another in Cornwall, and roark ont by four corner boundaries a certain area ; a written d'Jscrijrtion of the plot of land so marked with metes and bounds, and the nnmo of the person for whose use tho pro- cooding is taken, is recorded in an immemorial local court, cidled tlie Stannary Court, and proclaimed at three successive conrtB held at stated intervals ; if no objection is successfully made by any other person, tho Court awards a writ to the bailiff of the court to deliver ix>sses8ion of the said 'bounds or tin work ' to the bounder, who thereupon has the exclusive right to search for, dig and take for his own use all tin and tin ore within the described limits, paying to the landowner a certain customary proportion of the ore raised, under the name of toll tin. The right descends to executors, and may be r that reived \ con- \ land. lord^B » legal nfuree- g. In origin- ler liHB lid nut er pur- )r Hhall of the >tninon, .n only ; , cunnot doubted clftim it jUowing y person rtiU, and V written ctc8 and the pro- id court, uccessive jcesstnlly it to the ' bounds exclusive I tin and mdowner inder the id may be RRVIUBn BTATUTKS, ONTARIO. 1B7 prcwrvod for an inf an annual re- newal, without working, in unrcarionablu and bad in law, and th»'*, the plaintiff (who had cearfcd to work or jwiy toll for oighteon yearn) rould not recover in the abt»vo action even as against a stranger, and that although the alleged custom involved a claim of profit In alieno juifo, it would have been a good one, W>onaJi;v>/iV d prendre out of another man's land, though you may claim an easement. AH the cases, if any, in which such a custom is held to bo good must bo taken to have been overruled.' Constable v. Nlcholwn^n \V. K. 01)8; 14 C. 13., N. S. 230. And see the remarks of Byles, J., Att.-Gen. v. Mathian^ 4 K. & J. 591. In an action of trespass for taking stones, sand, &c., from the sea shore, the defctidant pleaded a custota in the inhabitants of a township of which he was a meml)cr, and also a prescriptive right for the inhabitants and overseers of the highways of that township to take such stones, sand, *&c., for the repair of the highways. On demurrer, the Court held that such a custom was bad, being {xjyrojit ilju'cndre in alieno solo, and tliut the overseers of the highways and the inhabitants of a township, not being a corporation, were not capable of taking by grant, and therefore could not claim such right by prescription. Constable v. Nicholson, 11 W. R. 698 ; 14 C. B., N. S. 230 ; and see I*itts v. Junysbridge Highway Board, 19 W. R. -]S4. As to a grant by the Crown to a body which could not claim either by prescrip- tion or custom, see Willingale v. Maltlaml, L. U., 3 Eq. 103. " It is an acknowledged principle that, to give validity to a custom — which has been well described to be a usage which obtains the force of law, and is in truth the binding 1 I P r ■ ■I * IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■i: Ilia - m "■' m 1.4 ||M M I™ 1.6 V] (^ /}. / o e). ■c/. #5 / / y M Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 iV ^V ^\^ (V ^^ :\ \ 6^ % A> %^ .<\ ;f^J^ (/x St- •I! •a ' J0NE3 ON PRESCRIPTION. law, within a particular district or at a particular place, of the persons and things which it concerns (see Davy's Reports, 31, 32 {a) — it must be certain, or capable of being reduced to a certainty, reasonable in itself (see Tyson v. Smith, 9 Ad. & Ell. 406, 421), commencing from time immemorial, and continued without interruption, subject, however, to the qualifications introduced by the Stat. 2 & 3 Will, IV. c. 71. It belongs to the judges of the land to determine whether a custom is reasonable or not. There are several cases in the books upon the question, What customs are reason- able and what are not. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the '^^ommon law, for ' consuetudo ex certa causa rationdbili ^^s'J.ata privat communem legem^ (Co. Litt. 113 a), as the custom of gavelkind and borough-English, which tJ'e diiu • !j' contrary to the law of descent; or, again, tL»j custoiii of ., which is contrary to the law of escheats. Nor is a custCia .mreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth, as the custom to turn the plougli upon the headland of another, in favour of husbandry, or to dry nets on the l?>nd of another, in favour of fishing and for the benefit of navigation. Bat, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason ; for it could not have had a reasonable commencement ; as a custom set up in a manor, on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad ; for it is injurious to the multitude, and beneficial only to the lord. Year B. Trin. 2 H. 4 fol. 24, B. pi. 20. So a custom that the lord of the manor shall have £3 for every pound breach of any stranger (21 H. 4 (a) ; or that the lord of the manor may detain a distress taken upon his demesnes until fine be made foi" the damage, at the lord's will. Litt. B. 212. A custom is void which sets up a claim to lay coals to an indefinite extent and for an indefinite time on the REVISED STATUTES, ONTARIO. 169 lands of other copyholders, whereby their lands may be made practically useless, although they would still be liable to pay their rents, and perform the'r stipulated services to the lord. Broadhent v. Wilks, Willes, 360; 1 Wils. 63, recognized in H. L., Marquis of Salisbury v. Gladstone^ 9 H. L. C. 692. In all these, and many other instances of similar customs which are to be found in the books, the customs themselves are held to be void, on the ground of their having no reasonable commencement, but as being founded in wrong and usurpation, and not on the voluntary consent of the people to whom they relate. Tyson v. Smith, 6 Ad. ife Ell. 421 ; 1 P. & Dav. 307 ; 6 Ad. & Ell. U6. " In trespass for breaking the plaintifTs close and digging and carrying away clay, the defendant justified as owner of a brick kiln, and pleaded that all occupiers thereof for thirty years had enjoyed, as of right, &c., a right to dig, take and carry from the close so much clay as was at any time required by him and them for making bricks at the brick kiln, in every year and at all times of the year ; it was held unreasonable and bad, as amounting to an indefinite claim to take all the clay out of the close in question. Clayton v. Corhy, 5 Q. B. 415 ; see 2 Q. B. 813. " Customs derogatory from the general right of property must be construed strictly, and above all things, they must be reasonable. liogers v. Brenton, 10 Q. B. 57. It is a general rule that customs are not to be enlarged beyond the usage, because it is the usage and practice that make the law in such cases, and not the reason of the thinff. 11 Mod. 160; Fitzgib. 243. A usage for the inhabitants to have common to their houses was held not to extend to a new house. Owen, 4. A custom would be bad which required a township, part of a parish, to pay a proportion of a church rate without requiring the inhabitants of the township to be summoned to consider the rate. Reg. v. Dalhy, 3 Q. B. 602. A custom for the inhabitants of a township to go on a close and take water from a spring was held good. Ra,ce m '" '% m li? 1 'v iu '1 ft '•: Is m 170 JONES ON PREHCniPTION. ▼. Ward, 4 Ell. & Bl. 702 ; 3 W. R. 240. The custom to erect booths in the highway during a fair has been held legal. Such custom was in substance for every victualler to enter upon any parts of a certain close within a borough within which there was a fair immemorially held for three wee!:8, but leaving sufficient part of such close open for use as a public highway, and for the more conveniently carrying on their trade during the fair, to erect booths and keep goods there, until the fair was ended, paying to the owner of the soil a reasonable compensation for the use thereof. BJllwood V. Bullock, 6 Q. B. 383. But a custom to erect stalls at Statute Sessions for hiring servants was held to be bad, as it could not have had a legal origin. Simpson v. Wells, L. K., 7 Q. B. 214. A custom for all the inhabitants of a village to dance on a particular close at all times of the year at their free will for the, recreation has been held good. Abbott V. Weekly, 1 Lev. 176 ; cited 4 Ell. & Bl. 713. See Warwick v. Queen^s College, Oxford, L. R., 10 Eq. 105. A custom is good for the freemen of a town to hold horse races over certain land every Ascension Day. Mounsey v. I^iay, 1 H. & C. 729 ; 11 W. R. 270. Such a custom cannot be claimed on behalf of all the Queen's subjects, but only on behalf of a limited class of people. Earl of Coventry V. Willes, 12 W. R. 127. A custom for the inhabitants of a parish to exercise and train horses at all reasonable times of the year in a place beyond the limits of the parish is bad. Sowerby v. Coleman, L. R., 2 Ex. 96. " Equally in the case of custom as in that of prescription, long enjoyments in order to establish a right must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time. Therefore, where the owners of an oyster fishery had since the reign of Elizabeth held courts and granted for a reasonable fee licenses to fish to all persons inhabiting certain parishes who had been apprenticed for seven years to a duly licensed fisherman, it was held that, as every act of fishing had been il '1 REVISED STATUTES, ONTARIO. 171 by license, there had been no enjo}'ment as of right so as to give rise to custom. Mills v. Mayor of Colchester^ L. R., 2 0. P. 476 ; 3 0. P. -575. A particular custom as to the appointment of a church-warden was lield valid. Bremner V. Hull^ 14 W. R. 964. As to a claim by custom to visitation fees, see Shephard v. Payne^ 10 C. B., N. S. 132; and to marriage fees, Bryant v. Foot^ L. R., 2 Q. B. 161 ; 3 Q. B. 497, where it was said by Kelly, C. B., * The true principle of law applicable to this question is, that where a fee has been received for a great length of time, the right to which could have had a legal origin, it may and ought to be assumed that it was received as of right during the whole period of legal memory, that is, from the reign of Richard 1. to the present time, unless the contrary is proved.' L. R., 3 Q. B. 505. The requisites of a valid custom are stated in Broom's Commentaries, 12-19, 4th Edit. " A declaration stated that lands were in the occupation of a tenant of the plaintiff, the reversion belonging to him, and that the defendant wrongfully dug out of the lands large quantities of stone, sand and soil, and carried away the same, and made large holes, excavations and cuttings in and throng' parts of the lands, and erected mounds and banks of earth and rubbish in and upon other parts of the lands, so as thereby permanently to alter, damage, injure and spoil the surface of the lands. The defendant pleaded that R. was seised in fee of all the mines and quarries of stone under the earth or upon the earth within certain parts of a lordship, and that he and all those whose estate he had and has of and in the mines and quarries within the lord- ship, from time whereof the memory of man is not to the contrary, have been used and accustomed of right, as often as it might be necessary, for the purpose of effectually getting, winning or working the mines or quarries within the parts of the lordship, to enter into and upon any lands within the said parts, within or under which the mines or quarries were situate, such lands being, or having been, part of the waste of the lordship, and to dig, excavate and cut I ^i I \ . '.IB 'I ;■; ,i ? i t| * 172 JONES ON PnESCRIPTION. into and through tho same lands unto the stone of the mines and quarries, and out of the lioles and excavations so made to raise, di<; and get the stones of tha mines and quarries, and carry away tho same, doing no more damage than necessary. Tho plea then stated that K. demised a quarry of stone, situate within and under tho lands of the plaintifl* being parcel of the mines and quarries of stone within the lordship, to the defendant from year to year; and the plea justified the acts complained of in the exercise of the right. There were two other pleas under the 2 & 3 Will. IV. cap. 17, alleging an enjoyment of the right by the defendant as occu])icr of the quarry for forty and twenty years. On demurrer it was held, that tho pleas were good, for the right was not unreasonable, and miglit have originated in grant. Ji*o(/er v. Tai/Io)', 1 II. tfe N. 700; 20 L. J., Ex. 203. The custom was upheld in this case on the ground that it was of the nature of an easement. Conato^ ',e v. Nicholson, 11 W. K m'd,pcr Willes, J. " In an action for working mines under ground near to a house, so that the house was injured and in danger of falling for want of support, the defendant claimed, as lessee of the manor in which the house was situate and of the mines therein, a prescriptive right to work the mines under any houses parcel of the manor, paying to the occupiers of the surface a reasonable compensation for the use of the surface, but without making compensation on any other account; and the defendant justified under that right. Held, that such a prescription was bad as being unreasonable, and that such a right could not exist by custom. Hilton v. Granville, 5 Q. B. 701 ; see C. R. &. Phill. 283. ' There can be no doubt but that, to some extent, the authority of Hilton v. Lord Granville has been shaken, inasmuch as a position assumed in the reasoning of the Court, as one of the grounds of its decision, has since been distinctly overruled in Rowhotham v. Wilson, (8 H. L. Cas. 348; 30 L. J., Q. B. 905), in which the question presented itself for adjudication ; in REVISED STATUTES, ONTAIIIO, 173 and it cannot l)c denied that the decision itself has not met witli the univtrsal approval of tho i)rofes8ion, and that it may be desirable that the validity of that decision shonld be brought under the consideration of a court of error. At the same time it is equally clear, that though the reasoning of the Court in Hilton v. Lord GranvUk has been impugned, tho decision in tiiat cjise has not been overruled ; and the judgment having been a considered judgment, and standing unrevei*sed, we do not feel ourselves as otherwise than bound by it. We must, therefore, but without expressing any opinion one way or tlie other as to the pr()i)riety of the decision in question, give judgment on the third plea for the plaintiff, leaving the defendants to take the case into error, if they shall be so advised.' Per Cockburn, C. J., in Blacken v. Bradley, 8 Jur., N. S. 588, 589 ; 1 B. S. 140 : ' Hilton V. Lord Granville decided against a custom lor a mine owner to work his mines so as to let down the surface without paying compensation to the person so injured by bis mining operations Even if Hilton v. Lord Granville is r... authority that where there is nothing to shew for the right but a customary exercise of it, the custom cannot be supported (which I think is open to question), yet the dictum of Lord Denman in that case, that a grant in specie to the effect of the custom could not be supported, has since been overruled.' Per Lord Chelmsford, Duke of Buccleuch v. Wakefield, L. R., 4 H. L. 410. A custom as between the owner of the surface and the owner of the mine, entitling the latter to cause a subsidence of the surface, if necessary in working his mines, would be bad and wholly void. Duke of Buccleuch v. Wakefiekl, L. E., 4 Eq. ClJl " The rights of a grantee of minerals depend on the terms of the deed by which they are conveyed. Under a grant of minerals a power to get them is a necessary incident. Eoiobotham v. Wilson, 8 H. L. Cas. 348 ; 30 L. J., Q. 11 965. Prima facie the owner of the surface of land is entitled to the surface itself and all below it ex jure natures; and those •who claiiij the property in the minerals below, or any !! Jl ul.i ■i I ^ i. M .a* 1 i. 9 m 174 J0NE8 ON PRE8CEIPTI0V. interest in them, must do so by gome jj^rant from or convey- ance l»y him. The rij^hta of the grantee of minerals must depend upon the terms of the deed hy wliich they are con- voyed or reserved wlien the surface is conveyed. Prima fade it must he presumed that the minerals are to bo enjoyed, and therefore that a power to pjet tlicni must also be granted or reserved as a necessary incident. A similar presumption prima facie arises, that the owner of the mines is not to injure the soil above by getting them, if it can b-e avoided. liowbotham v. WiUon^S II. L. Cas. SGOj^^tT Lord Wensleydale. " A custom of tin bounders as to marking out tin works on waste lands in Cornwall is stated in Rogers v, Brenton. 10 Q. B. 26. Tin bounders also claim to be entitled by custom to divert all water within their bounds for the pur- poses of their mines. Gaved v. Martyn^ 10 C. B., N. S. 732 ; 14 W. R. G2. This claim was discussed, anu it was held that a presumption should be made that a right to use the water had been acquired by arrangement with the owner of the mine as well as with the bounders. Ivimey v. Stocker^ L. li., 1 Chy. App. 396. " III order to make out a prescriptive right, it must be claim 3d as annexed to land, or as having been created by a grant «nd enjoyed by a body corporate in continuance from time immemorial, or as a right handed down from ancestor to heir without intermission until the person who claims the present enjoyment. Constahle v. ^icholson^ 14 C. B., N. S. 230 ; 11 W. K 699. "There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. It does not follow that rights which can be sustained by grant can necessarily be sustained by prescription. The law of Scotland agrees with the law of England in holding that the right to village greens and playgrounds stands upon a principle of original dedication to the use of the public. Dyoe v. Haye, 1 Macq. H. L. 305. HF.VISKD STATUTES, ONTARIO. 1711 " A prescription by immemorial upngo can in {general only 1)0 for incorporeal hereditarncntfl, which may be created by (jrant,6uch as commons, ways, waifs, estrayrt, wreck, warroD, park, treasure trove, royal tishes, fairs, markets, and tho like. Co. Litt. 114 a; 5 Rep. 101) b; 1 Ventr. 387; Bac. Abr. Customs (B) ; Com. Dig. Prescription (C) ; /hid. Fran- cliises (A. 1). A prescription to have a free warren in a manor and in the demesnes thereof is good. AV.c v. Talbot^ Cro. Car. 311; Jones, 320, As to francliiscs, see Cruise's Di7. The right to hold a fair or market may be acquired by grant and by prescription. 2 Inst. 220. And where tho grantee of a market under letters patent from the Crown, suffered another to erect a market in his neighbourhood, and to use it for the space of twenty- three years without interruption, it was adjudged that such user operated as a bar to an action on the case for a disturb- ance of his market. Ilolcroft v. Heel., 1 Bos. &, P. 400 ; see 2 Wms. Saund. 174, n.; and Camiyhell v. ^Vilsml., 3 East. 294. The lord of an ancient market may by time have a right to prevent other persons from selling goods in their private houses situated within the limits of his franchise. Moseley v. Walker., 7 B. & C. 40 ; Mayor of Macclesfield v. Pedley, 4 B. & Ad. 404. So he may determine in what part of the township the market shall be held, and shift it from place to place, or confine the right of holding it to a particular place. Ou?'wen v, Salkeld, 3 East. 538 ; De /iutsen V. Lkyyd, 5 Ad. & Ell. 456. " Stallage is a payment due to the owner of a market in respect of the exclusive occupation of a portion of the soil. Therefore where a person used a market with a chair and a ' ped,' that is, a wooden or wicker basket, four feet long, two feet and a-half wide, and two feet high, with a lid which, being turned back and supported by pieces of wood riot fixed ■M « l| !' % € ]l 176 JONES ON PRESCnrPTION. in tlio 8()il, formed a tiiblo on wliich lie exposed his provisions for Hide, it was held that lie wan liable for stallage. Mayor of Yarmouth v. Groom, 1 H. i\: Colt. 102. The word ' toll ' in a grant of a market may include stallage. An exemption from stallage for the inhabitants of n town can be only by way of custotn, not of grant or prescription. Whether an exemption or discharge from toll, other than stallage, could be claimed by such grant or prescription for inhabitants generaUy, was questioned. Lockwood v. Wood., ♦> (}. B. 31 ; affirmed by Kxch. Ch. Ibid, 50. The grant of a market does not of itself imply a right in the grantee to prevent persons from selling marketable articles in their private shops within the linuts of the franchise on market days. Macdefijield {Mayor, t&c.) v. Chapman, 12 Meee. & W. 18: 13 L. J., N. S., Exch. 32. Such a right can exist only by imme- morial custom. Ibid. As to claims to a market toll by prescription, sec Lawrence v. Hitch, L. II., 2 Q. B. 184 ; 3 Q. B. 521. The Stat. 10 & 11 Vic. cap. 14, consolidates in one Act the provisions usually contained in Acts for constructing and regulating markets and fairs. " Toll traverse, which is defined to bo a sum demanded for passing over the private soil of another (Com. Dig. tit. Toll (A.), or a duty which a man pays for passing over the Boil of another in a way not a high street (Vin. Abr. tit. Toll (A.), or lor a passage over the private ferry, bridge, &c. of another (1 Sid. 454), may be claimed by prescription by a corporation or an individual, without alleging any consider- ation, and payment time out of mind is sufficient to support the prescription. 2 Wils. 296. Until the Act 2 «& 3 Will. IV. cap, 71, such toll could not have been claimed unless it had been taken time out of mind (Fitzh. tit. Toll, pi. 3), and reserved contemporaneously with the dedication of the way to the public. Pelham v. Piohersgill, 1 T. K. 660 ; see Lawrence v. Hitch, L. R., 3 Q. B. 521. " In order to support a prescription against public right, a consideration must be proved ; as where toll-thorough, that nr.vi8Kn statt'tks, ontaiuo. 177 id, a toll for piissin;^ over tlio public highway, i« claimed. Mayor and linn/ixsix of Xottinijham v. Lmnh&rt^ Willi:*, 111; Ihu'tt V. Unties, 10 K iV: 0. noS. Ami wlioro tlus pjjiin- titr claiiiKMl toll-tlioroii<;li, mid hhowod tlmt tlio Hoil and tlio tolirt JH'turc tli(! tirriu of loj^ul memory heloiii^ed to the wime owner, altlu)Uii;li tlicy had hecii Hevered since, it was liehl that it wan to bo j)r(,'5iunied that the riijht of paHsa^je bad been ;;raiited to the piiblic in i:onsideiati1. (>), bnt it cannot be sold, except in the ease of turnpike tolls under 3 Geo. IV. cap. 12<), s. 39. Tolls may bo recovered in af<.s>(tnj>s/t, and no proof is ^ivcn of anything; like a contract by i:ho party a^^ainst wiiom the claim id made; and stallage, which is ft satisfaction to the owner of the soil for the liberty of placing a stall upon it, may be recovered in the same way without shewing any contract between the owner of the market and the occupier of the stall. 2[ayni\ i(v'., of Ncu}- port v. SuKH(/crfi, 3 B. *fe Ad. 411. The exemption Iron) toll may also bo claimed by prescription or by the kinii!;'s <:;rant. 4 Inst. 252; 1 H. 131. 200; 4 T. R. 130; 1 Bos. iV: Pul. 512; 7 Br. P. C. 120 ; Mayor of Truro v. Reynolds, 8 Binr iv ccrtiiifi cIoho is a right to liiixi, mid ciiiiiint ho chiitnud hy prrHcription. It is othurwiriti of a riglit to tiiko coal in iiiiothcr ttiuirrt hiiul. WilkinHirn v. Prowl, I 1 Mct'rt. it VV. \V.\. S»'i! Stnutjhtnn V. LeSy 1 'ruiint. 402. Whiit iirim's hy niuttcr of ruciorii onnnot be prcwM'ihisd for, hiit iiiiHt ho chiiiiu'd hy ^'riint, (iiift'iiul on record ; HU(;h uh, for iiirttancr, tho royal fraiichlHCH of diMMhinds (whirh arn now uholiMhc(l l»y D iV: lo Vie. chii. »!'2), ft-loim' gootls and thi' like. 'I'hrsc' not hriti}; forfeited till tin- matter on vliicli they arisen in found hy tim in(|iiihitioti of a jnry, and HO niado a niattcr of record, tlio forli-itnn? itself cannot bo cUiniud hy an inferior title. Co. Litt. 114; tj Ml. ('oniin. 205. A j)reHeri|)tion for a ri^ht common to all the rtnhjecta of the realm cannot he HUpported. /V// v. Towers^ J^'»>}'» i^^J; Br. Ahr. I'res. pi. 71. Every man of common rij^lit may fihh in tlio Bca, or with lawful netw in a mivi^^ahle rivor {Wiwran v. Mattluwu^C) Mod. 7.'5 ; Salk. 3r)7), and therefore a prescription for a ri^ht of iifiiin^ in the sea, aa annexed to certain tenements, irt had ( Wanl v. Cre,s.swell, Wiiles, 205), wliicli is not merely the law of this country, hut also of nations (Grot, de iluro Belli et l*acis, h. 2, c. 3, b. i) ; Bract, lih. 1, c. 22, s. (>); but a subject may have a several fishery in an arm of the sea by prescjription. Mayor of Oxford v. liichardson^ 4 T. Ji. 431). AikI thou<;h prima facie every subject has a rij,dit to take iish found upon the sea-shore between high and low water-mark, such general right may be abridged by the existence of an exclusive right in some individual. Bayott v. Orr^ 2 Bos. & V. 472. "One prescription cannot be prescribed against another pre8crij)tion, for the one is as ancient as the other ; as if a man prescribe for a way, light or other easement, another cannot prescribe for liberty to stop it when he pleases. Aldred's Case, 9 Kep. 58 b; 2 Mod. 105 ; Com. Dig. Pre- scripticm (F. 4). "A man cannot prescribe or allege a custom against a Statute, because it is the highest matter of record in law (3 iiEvism RTATirrrH, Ontario. ITf mo It a (3 T. R. 271 ; 11 F.iirtt. 405), unitw tlio tit)n 1)0 hiivimI or |)rortervt'(l liy ftrnttlu'r Act. Co. Ijitt. 115. And Lord (Joko irmkoH ji ditlVn'tico hctwoun Acts in tlio noj^sitivo and in tho iitlirniiitivo ; tor a Stiitiitn in thu utHriiititivu, without uny nc^iitivo cxpriWH or iin|»li('d, (!(»(>« tiot tiiko awuy tiio coininon liiw; iind lik(»wirto lu^tween Statutes that are in tlio nc^^utivc, for it' a Statntc in tlio negative be d('<*larativo of the ancient hiw, a man nuiy pnscjrihe «)r aUe^e a cuHtotn against it, as well an h«» may a;^ainst a com- tnun Uiw. llar^rave'8 Co. Litt. 115 a, n. (15). " An ancient custom may he dcrttrovcd hv tho expresg provirtiiMift of a Statutu or hy positive hiii:;ua<;e in •I'lisistent with tho exiriteiice of tlio cudtom. Mifi'httnt Ttiylon* Company v. I'mncott, 11 Ex. 855; iiulUr' Comj/ani/ v. Jay, 3 Q. li. lOU. "J3y t'r • oinmon law a man mijj;ht have prc:(;ri.>od for a rii,'ht which liad hccn enjoyed hy his ancestors or predo- cesours at any distance of time, thouj^h hin or their enjoy- ment of it had been Btis[)endc(l tor an indefliiito serieti of years. But hy the Statute of Limitations (152 lien. VI U. cap. 2), it is enacted that no person shall make any presf'rii)tiori by tho neiditi or jfo,s,st'».s!oii of his ancestor oi" predecessor, unless such seisin or possessio!i h.id been within threo- scoro years next before such prescription made. 2 lil. Com. 2<5t>, 2(54. And tho remedy for such ri^dits, so far as it depended upon real actions, was further abrid^^ed by the abolition of real actions after 31st De(!ember, 1834, by tho Statute 3 & 4 Will. IV. cap. 20, . 30. Where a i)rofit of any kind to be taken out of lands has not been taken for a vast number of years, and the lands have been enjoyed without yielding such profit to a third person, the consequence is, that the title to it, whatever its nature, shall be presumed to be discharged. 3 Bligh, 245. But a title gained by prescription or custom is not lost by mere interruption of possession for ten or twenty years, unless there be an inter- ruption of the riyhtj as by unity of possession of right of P maiiBSBSTsaaak - ;.'«lilCU'^Milai...-»«.^iMr,^.^. . 180 JONES ON PRESCRIPTION. common, and the land charged tlierewith of an estato equally high and perdurable in both. Co. Litt. IH b. A unity of possession merely suspends; there must be a unity of ownersiiip to destroy a prescriptive rij^ht. (Janham v. Fifik^ 2 Cr. ife Jerv. 120. Tlius, if a person having a right of common by prescription takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription ; for the suspension was only of the enjoyment, not of the right. Co. Litt. 113 b. "Easements are extinguished by the union of seisin of the dominant and servient tenements in the same person. James v. IHant^ 4 Ad. & Ell. 749. Easements are some- times extinguished by statute, e. */., the General Inclosure Act, 41 Geo. III. cap. 109, s. 8. They are extinguished when the puipose for which tliey were created no longer exists. National Guaranteed Manure Company v. Donald^ 4 H. & N. 8. A prescriptive right may be lost by the debtruction of the subject-matter (4 Eep. 88) ; but not by an alteration of the quality of the thing to which a prescription is annexed. Hob. 39 ; 4 Rep. 86 a, 87 a. Alterations in the dominant tenement will sometimes extinguish an easement. Allan v. Gomme^ 11 Ad. & Ell. 772. The release of an easement may be implied from abandonment or non-user. Cook v. Mayor of BatK L. E., C Eq. 177. It was said that a release of a right of way, or of a ri<^ht of common, will not be pre- sumed by mere non-user for a less period than twenty years, although it is otherwise as to lights. Moore v. liawson^ 3 B. & Cr. 339. But ' it is not so much the duration of the cesser as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material.' Per Lord Denman, lieg. v. Chorley^ 12 Q. B. 519. See Crossley v. Liyhtowlcr^ L. R., 2 Chy. 482. The right to hold courts for the determination of civil Buits, granted by the king's charter to the steward \s%- REVISED STATUTES, ONTARIO. 181 and suitors of a court of ancient demesne, was held not to bo lost by a non-user of fifty years. Rex v. The Steward, i&c. of Havering, 5 B. & Aid. 091 ; Hex v. The May or ^ iSsc. of Hastings, Id. 692, n. "An ancient {;rant without date did not necessarily destroy a prescriptive right ; for it might be either before time of memory, or in confirmation of such prescriptive riglit, which is 'matter to bo left to a jury. Addington v. Chde^ 2 Bl. Rep. 989. A plea,* that before and at, «fec,, the de- fendant, and all his ancestors, whose heir he is, from time whereof tlio memory of man is not to the contrary, have had, and been used and accustomed to have, and of right ought to liave had, and the defendant still of right ought to have for liimself and themselves, the sole and several herbage and pasturage of and in divers, to wit, 217 acres, *&c., of a certain open field, called, etc., was held to be dis- proved by shewing a grant to the defendant's ancestor eighty-one years before for a valuable consideration ; and such plea is not aided by the Stat. 2 & 3 Will. IV. cap. 71, 6. 1, which, if relied on, ought to be pleaded. Welcome v. Upton, 5 Mees. & W. 398. See Iteg. v. Westmarh, 2 M. & Rob. 305. " The doctrine as to the grant of a franchise by the Crown within time of memory being a determination of a prescrip- tive claiiu to the same franchise does not appear to be settled. Where a bishop, having free warren by prescription over the demesne and tenemental lands of a manor whereof he was seised /m?**? eeolesice, accepted a grant from the Crown to himself and his successors of free warren over the demesne lands of all his manors in England : it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the deinesne lands (which the Court con- sidered to be at least doubtful), it could not affect it over the oth'ir lands of the manor. Aarl of Carnarvon v. Villebois, 13 Mees. & W. 313. hi 'i\ .'.■-.-~-— ii r 182 JONES ON PRESCRIPTION. [sec. 34. " Formerly a preBcription oould not run aj^ainst the king, fts no delay in resorting to his remedy would bar his right. The muxiin was nullum tempus occurrit regi. 2 Inst. 273 ; 2 Koll. 2G4, 1. 40. Com. Dig. Prescription (F. 1); Broom's Maxims, pp. G5-68, 5th Edit. Liberties and franchises were excepted in the Statute 9 Geo. III. cap. 16, limiting the claims of the Crown to sixty years. By 32 Geo. III. cap. 58, the Crown is barred in informations for usurping corporate offices or franchises by the lapsQ of six years. See Bac. Abr., 7th Edit., Prerogative (E. 6), 467, and Stat. 7 Will. IV. & 1 Vic. cap. 78, s. 23; Beg. v. Harris, 11 Ad. ife Ell. 618. It will be observed that by the Stat. 2 ife 3 Will. IV. cap. 71, ss. 1, 2, the Crown is placed upon the same footing with the subjects as to the rights affected by that Act." 34* No claim which may be lawrfuUy made at the common law by custom, prescription or grant, to any profit or benefit to be taken or enjoyed from or upon any land of our Sovereign Lady the Queen, her heirs or successors, or of any ecclesiastical or lay person or body corporate, except such matters or things as {ire hereinafter specially provided for, and except rent and services, shall, where such profit or benefit has been actually taken and enjoyed by any person claiming right thereto, without inteiTuption for the full period of thirty years, be defeated or destroyed by shewing only that such profit or benefit wsis first taken or enjoyed at any time prior to such period of thirty years ; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated ; and when such profit or benefit has been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and inde- feasible, unldss it appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. C. S. U. C. cap. 88, s. 36. This section is taken from 10 & 11 Vic. cap. 5. This Statute has the following preamble : " Whereas, by the law of Upper Canada the title to matters that have been long enjoyed, is subject in some cases to be defeated by shewing the commencement of such enjoyment, to the great incon- venience of and injury to parties having had such long enjoyment." 34. This |e law long pwing Incon- long KETISED STATUTES, ONTARIO. 183 This Act was copied almost verbatim from the Imperial Statute 2 i& 3 Will. IV. cap. 71. That latter Statute has the following preamble: " Whereas the expression 'time immemorial,' or 'time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote tiic whole period of time from the reign of King Richard the First; whereby the title to matters that nave been long enjoyed is sometimes defeated by shewing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice." This section is the same with regard to the space of time as the old Statute of 2 & 3 Will. IV. cap. 71, the com- missioners probably considering that, with regard to ease- ments, the time of prescriptions should not be shortened. In Lower Canada (Civil Code, art. 2211), "The Crown may avail itself of prescription. Tlie subject may interrupt such prescription by means of a petition of right, apart from the cases in which the law gives another remedy. Among privileged persons the privilege takes effect in the matter of prescription." Ylde also, arts. 2212-2214, and 2215, which last is similar to this section, and is as follows : " All arrears of rent, dues, interest and revenues, and all debts and rights belonging to the Crown and declared to be imprescriptible by the preceding articles, are prescribed by thirty years. Subsequent purchasers of immovable property charged therewith cannot be liberated by any shorter period." (a) The Act of 2 & 3 Will. IV. cap. 71, is generally called the Prescription Act, and the origin of this Act arose in a curious way. I cannot do better Ihan quote the words of Martin, B., in the case of Mounsey v. Ismay, 3 H. & C. 486; 34 L. J, Ex. 52: "The occasion of the enactment of the Prescription Act is well known. It had been long estab- lished that the enjoyment of an easement as of right for (a) McCord, Civil Code. 1 Fer. C. P. 312 ; Polk. 0. 0. t. 14 n. 36. \\\w ^ ' 11. ' '1 ,l!H V: i ' -Up- ;. \W ««t.«li,SC ■«»» .-iiJUH ^ 18 1 JONES ON PRESCniPTION. [hoc. 34. i'l ) ' m. m '' twenty years was practically conclusive of a rifjlit from the reij^n of Richard 1., or, in other words, of a rij^ht hy pre- Bcription, except proof was given of an inipo99il)ility ot a right from that period; and a very common mode of defeating such a right was proof of a unity of j)09se88ion since the time of legal memory. To meet this, the grant b}' lost deed ivas itivented, but in progress of time a ditfi- cidty arose in requiring a jury to find, upon their ouths, that a deed had been executed which every one knew never existed ; hence the Prescription Act." Gale on Easements, p. 159, says : "Although the courts refused, in form, to shorten the time of legal memory by analogy to the later Statutes of Limitations, they obviated the inconvenience wiiich must have arisen, from allowing long enjoyment to be defeated by shewing that it had not had a uniform existence during the whole period required, by introducing n new kind of title by presumption of a grant made and lost in modern times." {a) And on this ground, although it appeared that a right of way had been extinguished by unity of possession (h), or even by an Act of Parliament (c), it has been held that a title might be obtained by an enjoyment for twenty years. These doctrines are only matters of history, as thr- present Statute and the Prescription Act has settled the tune. The Prescription Act did away, at least in part, with the practice of requiring juries on their oaths to be mere passive instru- ments in tinding facts, in the existence of which the Court itself did not believe." Mr. Starkie, in his Treatise on (n) The introduction of this doctrine was attempted by a modern civilian. " Laudensis," saya Martin, p. 82, " alleges that though a prescription is not admissible in support of a discontinuous servitude, usage will raise an inference of an actual grant, the existence of which is to be deduced from the patience of the adversary." (b) Heymer v. Sumviera, cited in Head v. Brookman, 3 T. K. 157, Rule N. P. 74. (c) Campbell v. Wilson, 3 East, 294 ; Mayor of Hull v. Horner, Cowp. 102; Eldridgev. Knott, Cowp. 214. Zl REVISED STATUTES, OXTARIO. 185 lule Evidence, 2nd Edition, says: "The efrect is indirectly to estaJjlisii an artificial presumption, which, for want either of inclination or authority, could not be established and a])plied directly. It seems very dilHcult to say why such presumptions Bhould not at once have been established as mere presump- tions of law, to bo applied to the facts by the Courts, without the aid of a jury." " It must be borne in mind that the first section of this Act includes diflfcrent subjects from those in the second, which distinguishes between easements and common, or profit d prendre, and that a different limitation is established for the first and latter cases. Bailey v. Applei/nrd, 8 Ad. & Ell. 167; Lawson v. Lawjiey, 4 Ad. & Ell. 890; Jones v. Richard, 5 Ad. & Ell. 413. The rif^ht to receive air, light or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common ; but the rigiit to take * something out of the soil ' is a profit d prendre, and not an easement. Mannimj v. Wasdale, 5 Ad. & Ell. 764; 1 Nev. & P. 172; Bhwitt v. Tregonning, 3 Ad. & Ell. 554; 5 Nev. tfe M. 308; Bailey v. Applcyard, 3 Nev. & P. 257 ; 8 Ad. & Ell. 161. Prescrip- tive rights in gross are not within the scope of the Shitute. Shuttkworth v. Le Fleming, 19 C. B., N. S. 687; 14 AV. R. 13. This section applies only to profits ti prendre in the land of another, and has no application to a copyholder's acts on his copyhold tenement. Hanmer v. Chance, 34 L. J., Chy. 413 ; 13 W. R. 556. " The liberty of fowling has been decided to be & profit d prendre. Dames' Case, 3 Mod. 246. The liberty to hunt is one species of aucupium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature ; it implies that the person who takes the fish, takes for his own benefit; it is common of fishing. Anon., Hardr. 407. The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken ; and if it were a license I m 11 f [J JONES ON PRESCRIPTION. [hoc. 34. given to one individual, eitlior on one occaftion or for a time, or for his life, it would amount only to a mere ])er- Bonal license of pleasure, to bo exercised hy the individual licensee. But in the case of a grant hy deed — 'of free liberty with servants or otiierwise to enter lands and there to hunt, hawk, fish and fowl ' — to persons, their heirs and R8si;j;nH,' where it is apj)arent that not merely tlie particular individual named, but any to whom they or their heirs choose to asrtij^n it should exercise the right, it has been considered that an interest, ov profit il prendre, was intended to he granted. Per Parke, B., Wickham v. Hawker^ 7 Meea. 6 W. 78, 79. The property in animals ferw natura\ while they are on the soil, belongs to the owner of the soil, and he may grunt a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a license of a profit d prendre. Sub- stantially it may be reserved by the owner of the fee sim' le when he alienates, although it is considered that, technically epeuking, in such a case it is a re-grant of the right by the alienee of the fee simple to the alienor. Eivart v. Graham^ 7 II. L. 344, 345, ^jcr Lord Campbell. A right to cut down and carry away trees growing in a close {Bailey v. Stevens^ 12 (J. B., N. S. 91), and a right to take stones and sand trona the seashore {Constable v. A'icholson, 14 C. B., N. S. 230), have been held to be profit d prendre. "It is an elementary rule of law that a. profit d prendre in another's soil cannot be claimed by custom, for this among other reasons, that a man's soil might thus be subject to the most grievous burdens in favour of successive multi- tudes of persons, like the inhabitants of a parish or othr- district, who could not release the right. The claim of free miners to subvert the soil and carry away the substratum of stone without stint or limit of any kind cannot be sup- ported either on the ground of custom, prescription or lost grant. A claim which is vicious and bad in itself cannot be Bubstantiated by a user, however long. Fcr Byles, J., Atty.- REVISKD STATUTKS, ONTARIO. 187 Ire his 3Ct Oen. V. MaUhia,j. v. Bliss, 7 Ad. ifc E. 550. " The turning of cattle upon alluvium by the proprietor of land not separated from it l)y any boundary, although with- out interruption, was lield not to be an assertion of right 80 acc^uiesced in as to raise a presumption of title. Lord Chelmsford, L. C, observed : ' The etfect of acts of ownership must depend partly upon the nature of the property upon ■which they are exercised. If cattle be turned upon inclosed pasture ground, and be placed there to feed from time to time, it is strong evidence that it is done under an assiertion of right ; but where the property is of such a nature that it cannot be easily protected from intrusion, and if it could it would not be worth the trouble of preventing it, there mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition.' Atty.-Gen. v. Chambers, 4: DeG. Q. See In lie JlainauU Forest Act, 1858, 9 C. B., N. S. 048. " This section of the Act does not prevent a claim to a right of common, &c., from being defeated after thirty years' enjoyment, by shewing that such right was first enjoyed at a time when it could not have originated legally. A claim to a right of common over a crown forest, in respect of a certain tenement being vested on thirty years' uninterrupted ' '1 |i .|tt f '::|l| ill I: ._li. 100 JONKR ON PRESCRIPTION. [hac. 34. I j; i ■ M enjoyment undor this Bcction, may ho |»eiired to he referable durinj.' the whole period to an agreement in writinj^ jmide bv »i ttfuant for life of tho Ror- viont tenement, and accjuieseed in and acted on by the flUC(!essive owners of that tenement, it wan held that althouj;h the tenimt for life who ma !e the a<;rccinent and the next Hucceeding tenant in tiiil had both died before tho sixty years bei^tin to run, no prescriptive ri^ht had boen gained under this section. Lowry v. Crothem, I. H., 5 C. L. 98. " Tho 1st section requires in tho ease of a rij^dit of common or a profit o sulticicnt. Riilci/ v. Applvi/ard, H Ad. k Kll. 104; BOO F/u/ht V. Thomas, 11 Ad. cV: Ell. (;88. Takinj^' the first, fourth and fifth sections toi^ether, it has been decided that tho period mentioned in tho Act is thirty years nt!.\t before some suit or action in which the claim shall bo brought into question, and that an allegation of an enjoyment for thirty years next before the times when the trcj'passes to which tho plea relates were committed is insutKcient. Richards v. Fry, 3 Nov. u»;M<'Kii>rii>!«. [mm. 34, 35. mixlo of plt'iulin^ n |>n>nt to l>o tii1(««n out of Iiitxl in the I'rijoyiii'iit of tlir ri>{lit for tli<* )M>riiHU tiD'titiuiuxl in tlio firht wcfinn. MVAom/' v. //)>/«)/», r» Mrrrt. iV: \V. 'MS ; 7 Dowl. V. ('. t75."(/f) !!.'(. No cliiim wliifh nmy Iiiwfiiny !••' iimy niitiiiii, |>ri'.i( riiiliDri or ^riiiit, In any May or ntlur m.timi nl, or in any wittur-ODiii'Hit, of tlitt UN(< iif any water to liu cnjoyivil, or ilciiv'txl ti|ioii, ovur, or from any IjuhI or water of our Hiiiii lr lieim or unri'i'MMurH, nr lu-int,' tlie prniierty of any eicleHiaNtical or lay ihthoii or lindy 'iiriiiniite, when Kiieli way or other matter an herein hiHt lieforo inuntioneil, liaH lieen aetiially enjoyed l>y any perHon iliiiiuiinj I'niht thfirh) without inturruiition for tho full porioil of twenty yuai-N, hIuiII Im) (lefeateil or ileHtroyeil liy Hhewinj^ only that Hui;h way or otlittr matter was tirnt enjoyed at any time |)rior to the period of twenty years ; Imt, nevertheleHs, hiicIi elaim may lie defeated in any other way by W'hioli thu Hiimu is now lialdo to hu defeated ; and where hiicIi way or uthur matter as herein last before mentioned has been so enjoyed, an nftiresaid, for the full period of forty years, the rii,'ht thereto shall bo tluemed absolute and indefeasible, indess it appears that the same wan unjoyed by houiu uoiisent or a^^ruonuiiit expressly given or made for that purposo by deed or writing. C H. U. 0. cup. 88, b. ^7. Tliirt rtcction is taken from 10 ^ 11 Vic. cai). 5, h. ii, \vlii(!li wns tiikcti from 2 ^ 3 AVill. IV. cap. 71 (Imp. Act), h. 2. Tlio leading cawc in the (^ansidiaii Reports on this section is Jioinllnj V. Woodliij^ S C^. W. JUS. Ciiief Justice liohinson delivered the jiidf^iiient of the Court. Draper, J., was with him except with regard to the pleadinj^s, and liuruH, J., concurring with the Chief Justice, the defendant succeeded. In this case, defendant had used a mill dam for more than twenty years while it helon^^ed to the Crown, and after the survey, as in the eiM th(^ fttllowin^ wordx: *' I coiiHidur that tho rij^ht or priviU'j^o «iHod hy tho dofoiidant of hacking wutor on tlu^ land, Ih an oanuinent coining within th(^ Hccond claut^o of onr Sfatuto, hocaiiKu it is an oa8(uiic>nt to which a title may ho iu*<|uir('yod openly, not covertly or hy Htealth, an the fact niubc iiave been from tho very nature o.' tho caHement itself, wo are to take it that tho defendant enjoying it and daiming r'ujhi thereto^ that this case hoitij^ made on tho one side and nothing ehown to rebut it on the other, tho Statute leaves nothing necessary to bo found by the jury, but establishes the right as a legal coQBCr of otm totuTin'rit ciiutiot (;aiiH(i or pcrrnit '<» piiHH ovrr or flow into liin lu'i^lihotir'n tonntncnt iitiy oi r or morr of thono tliin^M in kucIi a way HH tnateriiilly to intrrfcro witli tlic! ordinary comfort of tlio occupier of the n«'i^hl»ourinf^ tcnfjiruMit, or 8o m to injure hirt property." HHm v. Halt, 4 Min^'. N. C. IH.'J; 7 L. J., N. S., C. 1*. 122; Flhjht v. T/inmuH, 10 A. Jk, E. 51)0. When will the Court of (Mumccry intorfcro l)y injunction to protect a ri^ht or an oariiMiicnt^ In IOn>.^land, in tlio case of Jleath V. nnrknall, L. II., H Kcp 0, Lord Uoniilly, M. U.,Haid : " It may no doubt ho laid down as a (general axiom, that whoro a man jxwscsrtcs a rij^lit to lij^lit and air over the property of a nuij^hhour, the olmtruction of which would ho punirthahle at law in the shape of dama^^es, u Court of Kijuity will by injunction prevent that obstruction." Vit ill li-'T .1*' 210 J0NE9 ON PRESCRIPTION. [sec. 35. An important case, decided in our courts, may be cited (Young v. Wilson, 21 Grant, 144; 611 affirmed), where tlie question of the assignment of an easement came up. T., being the owner of 275 acres of land, caused a mill- dam and race to be constructed, and a mill to be erected thereon. For thirty or forty years this mill, or others built on its site, run by water power only, had existed, and were run by the water passing from a natural stream through the race. T. sold to W. the whole property, taking back a mortgage for part of the purchase money on that part of the land through which the race ran, and on which the mill- dam was situated, excepting, hoioever, the mill site. It was shewn that the mill could not be supplied with water power otherwise than by the race running through the mortgaged premises. T. afterwards assigned the mortgage to plaintiff, and W. mortgaged the mill and mill-site to D. Ileld, that the riiilit to use the dam and race was a necessary, continu- ous and permanent easement, and could not be destroyed by the plaintiff, although the servient parcel had been first conveyed without any express reservation of such easement. In rehearing, Blake, V. C, said : " It is out of the question that Tiffany, after allowing this property to be excluded from the hiortgage in order that the mill might be built, and knowing that the mill, when built, would be useless unless the easement which had previously been used in connection with the mill formerly there were enjoyed by Wilson, and after it had been enjoyed for seventeen years, can now demand that this easement be extinguished, to the destruction of the mill premises, the building of which he sanctioned. On the principle laid down in the Court of Appeal in Heenan v. Dewar (a), and English v. Hendry (5), Tiffany is now estopped from such an act." ASSIGNMENT OF AN EASEMENT. General words in a deed, such as " appurtenances," &c., will convey any easement which may at that time exist on (a) 18 Grant, 438. (6) 18 Grant, 119. REVISED STATUTES, ONTARIO. 211 lilt, less in by irs, Ithe he of on the dominant tenement. But where it is a tenancy hy parol, the question arises wliether the casement passes. Skull V. Glenister^ 11 C. B., N. S. 81, would seem to decide that it did. Vide^ however, Mayfield v. Robinson, 7 Q. B. 489, and Wood v. Ledhitter, 13 M. & W. 378, in which it was said : " A right of common, for instance, which is a profit d. prendre^ or a right of way which is an easement or right in nature of an easement, can no more be granted or conveyed for life or for years without a deed than in fee simple." REPAIR OF AN EASEMENT. The dominant owner may enter tho servient tenement and repair the easement, {a) In our own courts we find the following cases : Defendant, and those under whom he claimed, had the right to overflow the adjoining lands to an extent not ex- ceeding ten acres, for supplying their mill with water, and which right had been exercised to a certain extent for twenty years or more. In trespass, quare clausuni f regit, for entering the adjoining close, held, that having the right to overflow a part of the plaintiff's close, defendant had, as incident to that right, authority to enter and repair breaches in the natural state of the soil of the dam, but not to add thereto so as to cause additional flow. Held also, that the extent to which such right could be maintained, was that to which it was exercised during twenty years after such right accrued, and that a partial overflowing would not keep alive the right to extend the overflow at any time to tlie full extent of ten acres. Ruttan v. Winaiis, 5 C. P. 370. Whenever a right to interfere with the natural course of a stream is attempted to be founded upon prescription, the exercise of such right must be shewn throughout the period (with the exception which the Statute allows) to the full extent claimed. McKechnie et al. v. McKeyes, 9 Q. B. 563. (a) Pomfret v. Rkroft, 1 Wm. Saunders, 365 ; Hamilton v. Vestry of St. George's, Hanover Square, L. K., 9 Q. B. 42 ; Oerrard v. Cooke, 2 B. & P., N. C. 109 ; Colebeck v. Girdlera' Company, 12 B. D. 234. , it| III ■It i -'^i • IH 212 JONES ON PRESCRIPTION. [soo. 35. In McKechnie et al. v. McKeyes, 10 U. C. Q. B. 37, the wliolo question arose on the sixtli plea as to the prescriptive ri<;lit. We refer to this case more particularly in tlie notes on the 37th section. The rights and liabilities incident to water mills have become in Canada, on account of the clearing of the forests and great decrease in the water in the streams, subjects of considerable inquiry. Some difficulty seems to have been experienced by persons, having had for a long ])eriod of years a right to the use of water, in being able to obtain what they consider their just rights. For instance, A. has had the use for a long period of years, through himself and those through whom he claims, of the right to use the water of a certain stream for the purposes of a mill. Other mills below his dam have been built. The water throughout the country has decreased. A. builds his dam liigher in order to obtain the necessary quantity of water for his mill, and B. (having a mill below A.) complains that he cannot get enough water. Such was tlie condition of things in the case of Hunt et al. v. Ilespeler^ 6 C. P. 269. The principle there held is embodied in the head-note as follows : " Whenever a right to interfere with the natural course of a stream is attempted to be set up by prescription, the exercise of such right to the full extent must be shewn throughout the period for which the right is claimed, and not that the right had accrued within the time allowed by the Act, but had not been exercised till of late." Draper, C. J. (p. 273), says : " The effect of our Prescription Act is to make an enjoyment of an easement for twenty years without interruption presumptive evidence of a right, though such presumption may be displaced by shewing that during that period there was a lease under which the easement tenement was occupied, or that it was held either by a tenant for life or by a person under any of the disabilities specified in the Act [or there was unity of possession ; but see supra^ page 221, Moak's notes. — Ed.] RKVISED STATUTES, ONTARIO. 213 35. the itivc lOtes have •rests )ject8 have leriod )le to tance, rough right >aeB of The bniWs lantity >w A.) ras tlie speler^ in the with up by extent right nn the ll till of of our seraent vidence iced by i under it was any of mity of .-Ed.] •e The riglit springs from the user for twenty years, while tlie plea does not assert an actual enjoyment for that period as of rifjht, but a right only recently brought into exercise to add to or increase the preceding user. I have been unable to find any English authority bearing on the case, but it appears to me undistinguishable from Jfolu'chnie v. MoKef/es, 9 Q. B. 563, which I mentioned just at the close of the argument; and upon tliat authority, as well as upon the reason of the thing, I think the phiintift' should have judgment. The defendant appears to me to plead a pre- scriptive right; in other words, a right arising from twenty years' user, without shewing a ttser in fact. What he really does assert is a dormant right, just brought into exercise, to use the stream to the damage of the plaintiff." The decisions all seem to agree that the " easement " con- sists in the use of water at the time, and that an owner of an easement would not be allowed to pen back the water in order to get the same supply of water all the year round that he was formerly accustomed to get, to the detriment of his neighbour below iiim. This, however, would seem not to be the principle, from the remarks of C. J. Kohinson, in Beohtel V. Street^ 20 Q. B. 17. The author submits that the real easement is the supply of water necessary to run the mill ; and if the supply can only be obtained by raising the dam higher, lie can do so, provided he does not over- flow the plaintiff's land more than usual, and provided no other person below him have an easement for the over supply. . McNah V. Adamson, 8 Q. B. 119. This was a case for damming back water on defendant's land. Ileld^ that the issue was not whether a dam which had been two feet high was made by the defendant three feet high, or being made by others within twenty years, was wrongfully continued by him, but whether the prescriptive right, whatever it might be proved to be, had been exceeded, within twenty years, to the plaintiff's prejudice. 214 JONES OK PRESCRIPTIOK. [hoc. 3r). t I \ u; The riglit of mlll-owiiurs to i>en Imck the wiitor is strictly limited to the extent of their rights, and they will ho liahle for any excess, (a) The use of hriicket hoards on a niill-dani is an easement that can ho ac(juired hy jirescription. Canqyhdl v. Young, 18 Chy. 97. Cases cited for: Moore v. Wdf), 1 C. 13., N. S. C73 ; Davies v. WiUifuns, 10 Q. 13. 54() ; TicMe v. Brown,, 4 A. & E. 309 ; Munjatroid v. Jiohhison, 7 El. & 13. 301 ; Bendcij V. Clarke,, 2 \\\\\^. N. C. 705; Warburton v. Parke, 2 H. & N. 64 ; Beanihh v. Barrett, 1(5 Grant, 318 ; /7/«//<< V. llwiau", 8 01k. tt F. 231; Brown on Statute of Limi- tations, •' Sevev V. .f, ^cs have been decided by our courts with rei^ard to what C(»nstitute8 a water-course. McGillivray v. McMiUln, i^'' Q. '' '7; Crewson v. Grand Trunk liailway Company, 27 Q. V>. *'*'. I ide also BroadJtcnt v. liamshotha'in, 11 Ex. G02 (not surface water) ; Canon v. 6rVca^ in^s^t?^ liailway Company, 14 Q. 13. 193 ; Vanhorne v. Grand Trunk Railway Company, 18 Q. 13. 350 ; McGillivray v. Great Western Railway Company, 25 (J. B. 73. The cases on p. 73 are well worth looking at in cases against railways. See Mwray v. Davidson, 19 C. P. 314. A private right of way might be consistent witli a right of way for the public over the same ground. Johnson v. Boyle, 10 Q. B. 101. rimnb v. McGannon, 32 Q. B. 8, was founded on an application for the disturbance of a private way granted by deed and devised to plaintiff, on which defendant had built a boat-house, on the banks of the St. Lawrence. AVhat was high-water mark was dis- cussed. By Judge Wilson it was said that "high-water mark meant the general and usual limit of water in the summer thne, not when the river was swollen in the spring, (a) Adamson v. McNab, 6 Q. B. 113. nEVISED STATUTES, ONTARIO. 215 ;ht V. 8, u on of di fi- lter the In tliis case also the (lucstion as to the paasing hy will of after acfjuirecl property was decided. Tiio reader will notice that the above case referred to the banks of a navigable river. In Kaiiis v. Turmf/e (a), the question, What is the meaning of " water's edge" in a eft»i'(' the de- fendant (rould UHe any; and that the defendant was not, hy the provirto, entitled at all ev(;nt8 to eiionirh to turn one water wheel. Bhhop v. Mirkleij^ 8 il. li. W.^o. In Gooihrham v. lioutlcdtje^ 10 (Jhy. J^!>S, it waH held that an easement was extinju;nished l)y unity of possession ill the inort^^a^'or, and that eonsequently tlio whole water jtassed to the mort^a^ee, freed fronj the easement that niort- gaj^or had formerly created over another piijce of land. In this ease, Rfr (Jwynne (joiitended that a water-course was ditl'erent from a way, and the casemtMit revived alter sever- ance of the unity of ])ossession. 'I'hc Chancellor (pioted Wliltlo(!k, J., in Sury v. Pltjott^ Palnu'r, 444 ; " There is a ditfercnce hetween a way, a common, and a water-course. Brackton, lih. iv. f. 221, 222, calls them ttirnitntcs prailiales^ those which he^in hy a private ri<.dit. hy prescripti(»ii, i)y assent, as a way, common, being' a particular henetit, to take part of the profits of the land : this is extinct hy unity because the greater benefit shall drown the less; a water- course doth not begin by ])rescription nor yet assent, but the same doth begin ex jure naturhy. App. 47H; (hfthmUy. Th^ Tnrnbridgi MUU ImprtMuttunC ComtiiiHn!<)n»'rn^ \,. IC, I K(j. UU. In liaxt^mhU v. M<'i)furra>/, J.. K. 2 CUy. App. 7'.>0, the qiioHtioti wiw wlicthor a imumt'iK'tiiror of pupor iiati the same ri^ht, to pour tho rntu«<« from \m u\\\U when working up oaparto griwH as lio lmw ciin provcfut that nuisaneo m hy ereetin;i; a harrier and stoppiiii; tlie whole up." This was, however, overruled in Taplliuj v. Joiifs. IJy ^rantinj^ away a pie(!0 of his lanl whieh does not altut on a stream, tho grantee does not beeouio pohhoh^^cmI of ripa- rian riijhtfl (rt). Can tliere he an assignnuMit of riparian rights so that tho assignee and those eiaiming under him would hold the rights though they le physical condition of the property at the time, may ho rept'llod l>y actual knowledj^e on the part of the contracting parties of facts which ne<;ative any deduction to he drawn from the apparent condition. Where there is proof of such know- ledge, they are presumed to have contracted not solely with reference to its condition, but as it was known to be by the parties. Simmons v. Cloo7ian, 47 N.Y. .3, reversing 2 Lansing, 340; Curtiaa v. Ayraxdt, 47 N.Y. 73. " 11. ass as an incident or appurtenance to the premises so con- veyed, and that by the abandonment of the use of the ' old REVISED STATUTES, ONTARIO. 227 mill'tlic ri. :i i ' q the timo the rij^ht iirosc, and tlu; ri«^lit \>v\u as to obstruct the proper workinijj of the railway." Lhiited Land Co. v. (iroU I'Mxtcrn Iini/ioifi/, 7 E(i. C. 7;}S. "A custom for the iiduibitants of a parish to enter upon certain hind in the parish, and erect a niaypoh) thereon, and danco around and about it, and otlierwise enj(»y on the land any lawful and innocent recreation at any times in the year, is ;reater burden on the servient tenement. Where a road had been innneniorially used to a farm not oidy for usual agricultural purj)()ses, but in certain instances for carryinj^ buildin*; materials to eidarge the farm house and rebuild a cottaj^e on the farm, and for cartinj^ away sand and gravel dug out of the tarm, Iwld^ that that did not establish a right of way for carting the materials required for building a number of new houses on the land. Winibledotn, cfic, C niseroators v. Dixon., 15 Ch. Div. 783, Semhle, the fact that the occupiers of the farm, in passing with carts from a particular point to a certain gate over a common on which no definite road was marked out, did not keep to one line, but used several tracks, did not prevent their acquiring a right of way between that point and the gate." Ibid. " The plaintiff was the owner of certain premises, the eaves of which projected over adjoining land of the defendant's, and had become entitled by length of user to have the rain water drop from such eaves on to the defendant's land. The plaintiff, in rebuilding his premises, carried the wall abut- ting on defendant's land to a slightly greater height thau UF.VIHr.D STATUTItS, ONTARIO. ••Ml' before, atul coMstMimiiitly niistjd tlic lu'ijLjIit of the ouvcrt from tlio j;r(»uii(l to tlio saiiiu extent. //rA/, that, in the ahseiico of any oviihMKHj that a j^reater hunh-'n wan thrown on tlie serviiMit tetienient hy the alteration, the easenuMit wa^^ not therehy (Kfstroyed, and the iilaintiff wan etititleil to the; ri;i;ht of eaveridrip from the i)remises an altered.'' Ildn^cij v. Widiei'x, <; c. 1*. wyi. "P. was the owner of an inn, the ynrd of which was aj)[»roach(!d hy a passaix^* over adjoinin;j; property ot M. l\ and M. a;j;re(!d to alter their Ixtundary, and snhstitnfe a new passai,'e for the (dd one, M. accordinirly, in 1855, conveyed to l\ a small strip of land reaehini; across the end of tiio new pa>sa<^e where it entered the yard, and iece of land liereinbefou; conveyed and a street called the Tyrrels.' J»y another deed P. released his ri^^lits of Nvay over the old ))assa^e. The plaintiff was a lessee (»f the inn and yard under P. The defendants were tenants of M. oeenpyinf]^ warehouses on his property, and the hill was tiled to prevent the defendants from allowijii^ carts and waiiijons to remain stationary in the ii!tst;a^e in course of loading and uid(»adi!ig, so as to obstruct the access to the yard. Udd^ that the necessity of the business of the de- fendants did not give them any right to occupy the passage by stationary obstructions when other persons having a right of way required to pass. Thorpe v. Brumfiit^ <3 Chy, App. 554. lldd^ further, that the riglit of way was not a right in gross, but was aj)purtenant to the ]>roperty occupied by the plaintiff, so that his lease gave him a right to the enjoyment of it." Ihld. "Defendant was owner in fee of a dwelling-hotise, to- gether with a cottage and stable belotiging to it, called ' Roseville,' and was also owner in fee of an adjoining farmstead and farm, having a private road which led from a high road to the farm buildings and })assed close to one i ! i I f 1^/[ i : .' li 230 JONES ON PRESCIUI'TION. [hw. 3r». Bide of tho etablo of Rn^evillo. ^^y indorituro «>f tho Ist of May, 18(50, derendiint demised ItoHcvillo to II. for ton veiirrt. ][. entered on tho j)reiniHe8, and htiilt ()V(;r the Htahle a hay loft, with two openirij^rt toward the ])rivate farm road, having tirut ol)taii»od permiHsioii from ihifeiuhiiit to (h) bo, and alrio permidsion from defetidaiit ami the tluMi tenant of tlie farm to use the farm road for the jturpose of brinj^iiij^ liay, straw, etc., to the loft, that hein*; tiie oidy aeeess to the openings in the loft. II. and the suh-tenants oc(MJpyiii«^ lloseville coiitimied durin*^ the term t»> use the road up to May, 1870; at that time plaintiff ai;reeil to purchase Itose- villo of defendant; and by dctMl of the 2nd of Au<;nst, 1870, Koseville, tfce,, was eonveyed by defendant to ])laintilf in fee, 'to.'», after the ahovo convey- ance, constructed a new sower (in lieu of the old one, into which the drain discharged the sewerage from thi>tli of till' troncliort vvjis Hlunvri. Thin work was K't nut to u con- trjKrtor; und thnm«'li liin M(>i;li«;('nn? in (li<'i'inL' tlii» tronduw, ttc, tho wall of tho phiiiitiir'rt honrfo fell, //I'A/, thut tlio dcfoiuhiiit waH liuhlo for tho <]iima;^i) which art)S(.', not in a inattor (roHatcral to, hut in tho ]K^rf<»rtnaii('0 ot tlio very act which the (KHitnuttor wan cmployoil to jK,'rft>nM. /fftf also, that tho phiiiititf hy twenty years* user, liis house having h(!en huilt for that time, IukI aeqiiiireil, if tliat wenMve<'08- flary to maintain this action, tho rii;ht to supjxirt for lii» hout»o from clofonihint'fi adjacent soih This caflo, with rt^^ard to tho lia])ility of a contrnctor, was decided foHowin^' BuiOf^/' v. J\'itf, L. li., 1 Q. li. J). 321, when! Coekl)urn, C. .)., speaks of the o.isc of lii)nnnii v. Bdck/toUHfi^ IF. L. C. 503. Tho doctrine there laid dowi> is that the takinjjf away of the soil, to the support of wliic'» an adjoiniti}^ owner is entitled, is not in se wron*;ful, and theiTfore, ^»hero tho defendant \vm\ }>ound tho W)ntra(!tor on)y to take away such soil and 8U(;li work as could be done without hurtiu!^ tho jdaintilf, ho was not liable. Ilan^arty, ('. J., sjiysi "1 wish to be understood as not decidiiii; that a twenty years* ])ossossion was necessary to entitle the }>laintirt*s to recover.'' ]Y/u'elhoii.s<' v. iXr/vA, 28 C. P. 277. See also Bxtlcr v. Ifuntrr, 7 IF. ^ N. 82(5; mis V. Sheffield Ohm Co., 2 E. vi' 11 707 ; 0,y>rton v. Freeman, 11 C. B. 8t)7 ; Kiuijht v. Fox, 5 Ex. 721. G Wynne, J., says: "Tho principle established is that where the act which (rauses the iujnry complained of is ])urely (;ollatend to and arises incidentally irk the manner of ])erlormini; a work which tho person actnally causinjij the injury has been lawfully employed to execute, tho employer is not liable, because he never authorized the ^>iirticular act to bo done which caused the injury, but that where the employer has contracted with another to do a partictdar thing from tho doing of which, negligently or otherwise, the injury arises, then the employer is liable." Wheelhousei V. Diii'iJiy 28 C. r. 27S. RKVISED BTATI'TKy, ONTAIIfO. 231 III l!nd!,' V. LoikIoii il' .\. ir. A'. /.'., I V.\. l>r).'{. ivciirto in point, I'liitt, H., kuvi^: "Sii|)|>n>(' tlio (UMMipicr ofu liojiso woro to diroet u Itrickluycr to wv.ikv- (rrtiiiii ri>imirrt to it, uiid onu of hirt men tliroii^'ii Iiin cluinsiiicsH wcro to lut u brick t'lvll upon ii psisHur by, is tlio owner to 1\( liiihlor' Tho ciirto of Angus v. Daltim^ .'» (J. 15. I), s'), in ono of great importance, and leave;* the law in a rather nnpcttled condition. Two liousoti had been Htamlin^ for over a hun- dred years. Twenty yearA before action brou;;ht, jdaintittH took down one t)f them and built a iari^o coach factory. Detcndanlrt now took down the otiier; but in doing so, Daltori, one of tho defendants, who wa?4 employed an con- traetur, did not leave enough latei'al support, and plain- tiftV couch factory toi)pled over. Action was l)r<)Ught for danuiges. Tho Court difFcrcd, Lush, J., holding for jilaintills, ami Cofikburn, C. J., and Mellor, J., for defendants. Lush, J., says: ''It seems to nie to be tho necessary eonsequoncio of the Limitation Act, that sm^Ii an easement Bhould be gained by a length of enjoymtint eommeiisiMiito with that by which a title to the house is gained. It wonM bo a strange anomaly to hold that a title to the house should bo acquired, and not a title to that which is essential to it* existence — that tho law which bars the owner from recover- ing the tenomeiit itself after he has ac(piiesced in a usurped ownership by another for twenty years, yet leaves him at liberty, if he happens to be adjoining owner, to let it down and destroy it altogether, by taking away that which has been its natural supi)t)rt during the whole period. 1 cannot help thiidving that tho revolting lietion of a lost grunt may now be discarded, in view of the necessary etfect of tho Limitation Act upon such an easement as this." The conclusion of the majority of tho Court was that "any presumption arising from length of enjoyment, as respects tho casement of lateral 8iipi>ort to houses or other buildings, is one which, both at common law and since tho i il 234 JONKM (»N FIlKMrillPTION. [m'CII. 3.^, 30. Act of 2 iVt 3 Will. IV. H. 71, it* opon to hn rolmfto.l; and that it'tlio t'iK't that tio ijiuint iiuim ti'rt' nnu/r \n ('stul»li-*lu'e iii)|ili(>il, tliu pre- HUtiiption fuilr^. It Ih Ixtyond nil aw of Mascmcnts, p. 1K> : 'The whole theory i»f prescription dependrt npon the presumption of a jxrunt havitii; heen made. If, theretore, it vuu he shewn that no ^rant could have hceii le;;ally made, or that any eas((mei't lawriilly created must have heen suhsetpu'ntly extin^uishi'd hy iiiuty of seisin or otherwise, or if it can ho shewn t(» he a very improhaM(( thinij that a iiraiit ever was made, tlui ]U'esumption cannot arise, and the title hy pro- scription fails.' An instance in which such a presumption failed is to he found in the case of Btwhrr v. /tfc/iari/son^ + }]. iSc A. 57i>. There li;xhts had heen enjoyed for more than twenty years over land which (luiinjij part of the time had heen nt' tiiru! (luring \viii(!li tlu> ownur of the hoiiHO, or hilt o('(!ii|tyiri){ tfiimit, in uho tlio oc(Mi|ii(>r of tlio IuihI over wliicli till' ri;,'lit would oxtt'iitj." (»i) Tlii* cuHo in nil iriiportimt oti(',Hrt it ri'verm-rt tlir jinl^Miiciit of V. C. St Hurt, wliicli wax toiin(|(!i| on the fiictrt uu>rv tliiiti tlio liiw, llu HHVs, p. "•>5 : "Then iiriotlicr <|iu'Htioii luis l»0(Mi ar«jcu(Ml for wiiicli I tliiiik then) Iiiih Ikmsii no imtliorify cited, and upon wliicli I do not consider it ncccMOiry to CXpi't'sH an opinion, and that in, wlit.'thcr tin? owner uf the fri'c'hold (if a tioininant tencnuMit can have his ri;;ht prcju diced hy a unity of pt»(*»»uhrtioii ac(]uircMi williuut iiis kmnv- ledi^c! hy \m tLMnint^' I.ord Hatlu'rl(;y, in rovicwinj^ the jiid;jnient iA' Sir Jaine> Stuart, nays: "The pntponition that tlm cnjoyinent must he dirttinct has, I think, never heeii (piestioned, and wouhl seem at once to approve itself to eonnnon rtonse ami judg- ment. The Statute could not have? meant to (-onfer upon a man a ri^ht ho in no way rcipjired to have eonferred npnn him, namely, a ri^ht to enjoy that which he could not he prevent«Ml fronj enjoyini; so \i*u>^ as he v/as the occupier I'f the piece of laiul on which the impcfliment to his liirhr mijjjht he raised. Il(irb}(l(!S !U)t allow tlio (ro-exiritencc of an oasLMtiont in land willi tliu jKJSsosriion of the caHoinont ituclf. IJndoiiht- cdly, us in tho (;aso of all oflior oascnionts, the acrrning rij^ht to tho oa^^oinoTJt is sMspondtMl, hnt only Hnapondod (lurin;j; t!io nnity of tho |»(»ss('ssion ; so that if it had been shown that tho «!njo_vnient had lastod tor liftoon yoars and upwards, iitid then thoro had hocn intorrnption by nnity of possession — in Buch a craso, mii resont a side view to jx'rsons ootniiii:!; aloni; the street, the objo(!t being to attraet their attention, ami obtain their eustotn for the wares displayed in the shop ; and the privilege was shewn to be a very imjiortant one. The temmt of an adjoining shop having placed a show-ease in an open spa'" or doorway of his shop, BO as to intereept tho view of the plaintiff's window, was restrained by injunction from continuing the obstruetion. ]^ut see, with reganl to a similar case, Sfnit/i v. Oircfi, 35 L. J., Chy. 317, where the plaintiff was owner of a shop in IJond Street, and the defendant, who was owner of tlie adjoining premises, began to make alterations which it was anticijiatod would have the efleet of preventing the shop of the plaintiff being seen so far down the street as usual. Sir W. Page Wood, V. C, refused to interfere on this ,;. MiiS. IT UKVISKI) HTATtJTKS, OMTAUrO. 2.3' Mi ground, for ho said that all that roiild ho complained of wan that pcrsoiiH could not hoo the ^roods so soon as tlujy niiglit if tho altcratioriB ohjoctcd to had not been made; that when they came in front of the sliMp window, the ^ouds would be seen just as well as before. See ali»o Halt v. IviiKvlvl Gan Company^ L. It., 2 Chy. A pp. 158. Tho case of Riviere v. Hoivcr, My, uts the ri;^ht, therefore, on the simplest foundation with the sim])le8t exception." After this, the case of Tnpl'inq v. Joncfi, 11 II. L. C. 200, was decided in tiie 1 louse of Lords, and a principle was laid down entirely atHrmiui? the opiniim of Coleridge, J. The Lord Chancellor said that " the right to what is called an ancient light now depends upon positive enactment, and therefore ought not to be vested on any presumption of grant or fiction of a license having been obtained from the adjoining proprietor. Written consent or agreement may be used for the purpose of accounting for the enjoyment of the servitude, and thereby preventing the title wliich would otherwise arise from uninterrupted user or possession during the requisite period. This observation is material, because I think that error, in some decided cases, has arisen from the fact of the Courts treating the right so originating in a presumed grant or license." Mai ins, V. C, in the case of Lanfranchi v. Machemie^ L. R. 4 Eq. 426, doubted the decision of the House of Lords, viz., that the right was created solely by the Statute. But see Truscott v. The Merchant Taylors^ Company^ II E.\. 855, and Frewen v. Phillips, 30 L. J., C. P. 351; and in the case of Flight v. Thomas, 11 A. & E. C95 {a\ Maule, IB., expressed an opinion that the words "claiming right thereto," were purposely omitted in the third section of the Act. " It is not every case of severance of houses and land that a grant of a right to light can be implied. To take the (a) Mayor of London v. Thft Pewterers' Company, 1 M. & R. 403. ,■ ■ ;i^ "t REVISED 8TATLTKS, ONTARIO. 239 }il)ovc three cases in auccossion. If a man solU a liouso which has w*ni 290; Oreentlade v. Halliday, 6 Bing. 379. »ii' REVISED STATUTES, ONTAUIO. 211 "Witlioiit interruption" means "without iiitiM-niptidn Ity some reiisonjiMo means." Arkioright v. (Jrll, .') M. ^V: W. 203. As to the question of the riirlit to flow of air, si'o Wel the owner of the adjoining lot to put up an wjly obstruction against his neighbour's windows 'if rmvACY. No action is maintainable for disturbing a man's privacy by windows built by defendant in his own house. Turner V. Spooner^ 30 L. J., Chy. 803 ; (Jhandhr v. Thompson^ 3 Comp. 80. Interruption of privacy was expressly held not to confer a right of action. In re Penny v. The South Eastern, Railway Company, 7 E. «fc B. 660 ; 26 L. J., Q. B. 225. See with regard to breaking a covenant that would have the effect of disturbing the privacy, Lord Manners v. Johnson, 1 Chy. D. 680. Extent of prescriptive rights to light. " The Statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before the Statute was to have that amount of light M RKVISF.I) STATITKH, ONTARIO. 243 m lis )t throurjh tlic windows of a house \vl)k'h was sufticiout, Rccionlinj; to tl»o ordinary notions of mankind, for the coiu- fortalilo uso and onjovniont of that lionse, as a dwoUinj^ house, if it were a dwelling house; or for the henolieial uso and occupation of the house, if it were a warehouse, a shoj) or otlier place of hnsiness. That was the extent of the oasetnejit — a right to prevent your neighhoiir from building upon his land, so as to obstruct the access oi' sujfit'ient light and air to such an extent as to render the house substantially less comfortable and enjoyable."' — James, L. J., in lulk v. Pearson^ L. U. Ch^'. App. HOO; approved of by Lord Selborne, L. C, in the Clti/ of Londtm. lirewenj Comjmiii/ V. Tentiant, L. R., 1) Chy. App. 212; l^'dt^'s v. Jack, L. U., 1 Chy. App. 295 ; 35 L. J., Chy. 539. " The right conferred (prescriptive right by Statute) is an absolute indefeasible right to the enjoyment of the light, without reference to the purj)ose for which it Iwis been used." — Cranworth, L. C. By grant, the same extent as by prescription. lielk v. Pearson, L. R., Chy. App. 813. An old case of Turner v. tSpooner, 4 Esp. G9, seems to hold that the servient owner could restrain the dominant owner to the amount of lidit that had been accustomed to go through his windows, even when that amount was curtailed bv the construction of the dominant tenement itself; but the more modern case of Turner v. Spooner, 1 Dr. «fe Sm. 407, settles the question. There the dominant owner fitted up his windows without enlarging them, and took away the iron bars, and had them arranged so that they would open wide ; and the servient owner immediately erected an obstruction resembling win- dows, within a few inches of the new windows, glazed with opaque dark-coloured glass, and prevented the additional light which the plaintiff* would have had by his improve- ments. On a bill filed to restrain the erection of the glazed frame, it was held that the plaintiff had a right to improve his own dwelling without acquiring a new easement. It has been the custom to couple together air and ligLt when Buing for obstruction, but this is manifestly improper, •I' PI 21 1 JONKH ON I'Ur.SCniI'TIOK. [roc. 30. I I I I ; \\. 'll; f 1 1 'I "1^ - as tlioro ifl n j^roat diHiTorjco. Sec Th'' Cif>/ of f^mthm /itu'irrn/ (ht/iptnu/ v. 7\'unn7it^ L. U., 9 Cliy. Aj))). 218; 43 L. .1., VA\y. I.')?; iilso /Am-Z^v v. Jiown^ 44 f. J., Cliy. 025, in which it. wiis Buid that all the foniH of injuiictioiH itisertccl the word air aa well as I'njhty hut that the t'onncr word on^ht not to i»e iiirtertod ludoss it was specially diroctod ; ftud .laines, L. J., said the Court never \n\U in the word », tlio ponitioti of wliich is oblique to the ohstructLMl witidows, it iiiiiy r('(|niio nutrc evidence. Attorncy-licn^'ral v. Nichol^ 1«» Wm. ;542 ; Tht CU II of London lircincry Conqnimj v, Tnnimit^ \,. If., 1) (^liy. App. 220; Clarke v. Clarke, L K., 1 Cliy. App. U\. Wo have before jilhidrd to tlie »|nestio!i whether the eiil;ir<;cMiient of ancient \vin(h)\vs, (tr piittiii-j: in otiier win- dows, would tiike iiway the ancient ri^^ht a((|uir(Ml by pre- eeription, and allow the Rcrvient owner to build wiu'ri; before he c(»uld not. The cases have been i-onllictiiii;. In /itns/taw V. /h'an, 18 Q. U. 112, the (/ourt held in favour of defendant. This waa followetl by Ilatcliisi>n \\ Ci)i)<.sfak»\ C. IJ., N. S. 803. Then came the cases of JUiickt's v. l\ush, 11 C. a, N. S. 324; and Jonosw Tapl'nuj, II C. !{., N. S. 283; 12 C. B., N. S. 820. This latter case was taken to the House of Lords (a)^ and has already been noticed. The efit'ct of the decision was that the ancient riijlit (prcscrij»tive) remained, altlioiilHtni('t tlu) ancit'ut window, for to tlmt t'Xlciit liirt ri^iit of l)niltiiii<; in j^uimj \>y tin; iii(U'fua.sil)Io right which thi; Stutiito has (v-nffrrtd." Thii* in the K'lidinj; eaHO hc'forc the highest trihunal, yet, Hincc tho decision in Tnplinij V. ./o/jtw, liovcral <'ascs liavu occurred in which the •Tndgt'8 in tho Court of (Mianct-ry liavo douhtcd the ftound- iiesd of tlio reu8oning. In Laufranchi v. Marhnz],', L. H., 4 Kcj. JLT) ; :5f; L. J., (hv. r>22, Vice Ohnncellor Alalins said lie did not under- stand the l*rescri|»ti(»n Act to have made niiy dilference in tho i)rincij)Io on which rights to ligiit are ac, Lord Justice Giffard differed from him, and in AijneKlfy \. iih>V€i\ L. R., 10 Chy. Ai)p. 283, it was held that the Prescription Act did not take away any of tho modes of claiming easements, inchulitnj rujhtH to liyld^ which existed before tho Statute. If tho obstruction be temporary, the occui>ier of the house may alone sue ; if permanent and would affect the pro- j>crty, tho reversioner also. Mttrojxtlltan Aftftociation v. JWch, 5 i). 13., N. S. 504; Wilmn v. Toimscnd, 1 Dr. & Sm. 824. Limited interest in house, limited restraint of right of light. Sit/ij>er v. Fohy^ 3 John, it IL 555. If a tenant olistruct the light, an action may be obtained against him; but if the building be erected before the tenancy, tho tenant 1! UKVIHKI) HTAT|•rK^. OVTAIIIO. 247 ciuwiot ri!im»v«' it, tor that woiiM he <*niiiiiiiffin;; wiisto. At'ndd V. Jiffirsmi, Holt, t'Jh ; /lowioiil v. /*rio/\ '2 Sulk. 400. It is fu)t (vory ciisij \vlii(!li will ii-ccivo llii! uttciition of tliu Courts (.'itlu-r in tlii^ way otMuiiiap's or for uii iiijiiiictioM. Tlio lious(> uii(!omfortaM(', ainl (or) to |»rovent tlio plaintiir (a ^rroccr) from (^arrvinjr ofi jiis nccus- toniod husincss." \'it/i; also llrri: v, f'nion linuh of IjOnt/oii, 2 (iWW ; Ihntw. Thf Anrtmn Muhl of A\'irrtt.sfh', ',)'.] L. .1., Cliy. «;<),S ; Pa Ayr v. S,n!fh, 5 C. iV'P. 4:{S ; ll7//.y v. (h/i/, 7 C. it P. 410: /^rirvjfe v. irt77. .y,>/i V. WhJtthutfnim, L. R.. 1 Cliy. A].i». 442 ; ll'tKlA v. /V/vy, L. K., 3 i^j. 4«;.-> ; J/o/v/.y v. LemteeH of Lord lierkehy, 2 Vos. 452. Substantial injury must ho proved oven under a (rovenatit for quiut enjoyment of the li;4ht. /,'VvA v. Schuh'dti^ li. ll., 1> Chy. A pp. '4(53. There is no hard and fa; Chy. App. 212, Lord Selborno, (\, t^aid there is no positive rule of law upon the subject, althoujrh it would bo matter of evidence; and as the Metropolitan P>uildin^ Act is^ framed on the principle that the height of a buihlirii; on the oppo- site side of the street should not e.xcced the breadth of the street, that would be good evidence. The a})plic'ation must bo founded on the present existing injuries, and future possi- Ill « m 24H JOhM ON I'ltKHi KirTloM. [•••, 86. Idlitlt'H ('((iild not 1)0 H|UMMi!iif«Ml ii|ioii liy flic Coiirt. Jarkmni V. The l>ukr oj .\,',noiHtl,\ \V.\ I,. .1., Cliv. •;<>M. Ill Aifn>'nh'if V. ft7oiu'/\ li. It., IS |;(|. r»U, .ItWHi'J, Nf. n., u.xprc^H'ij liirt opitiioii tlmt tlu; ulmvo ilcfirtiuri was wroii^, and ill fiuillii-t with Vaft-i v. .A/c/, L. U., I Cliv. App. yiK"^. Tiil\ii)<; tlio law into your own IiuikIs ami n-iiiovin^ tlu* ol)ntniction luirt Ix'cii IicM to l>c N>^al, tlioii^'li it in ilaiij^iM'oiiK. 17(A //>/; //,,,• v. I{,muullr2. Salk. I.M*; /l/vn-A/ v. J,fn's„n, ll'lt, l!N. In ordor to do iiwav witli tln< prcH-riptivn ri^dif ucipiirod hy loii;;tli ot* tiiiic, tluTO iiiiiKt ho an a;;rfiMiH'iit or coiiKt'iit in writinjx, and *' paynuMit t)f runt or (ttlicr ackiiowlcd^jjiiu'iit therefore no h>ii;:;cr keepH open tli(! ri;;ht •»!' fht> ailjoiiiiiiir owner tt» ol)Htrii('t li;ihts;" aixl in the«'asoot' '/'/(> ycai-s, the ri«;ht of the adjnitiinj^ owner to Iniihl iiyraiiiHt them was taken iiwav l»v tho Act." "The twenty years' enjoymt'tit which umler >a. M of 'J tV .'5 Will. IV. cap. Tl.^ivos an ai».m»hite and indeteasiMe ri;;ht to the arci'tsrt of h'l^ht, lu'ed not he an enjoyment in tact ' with- out interiMiption ' for tho p-riod mentioned, hut an enjoy- ment without fiifi'/i ati interruption a.s is eont(.'mphuod l>y s. -I, vi/., 'un interruption suhmitted to or aecpiierieeil in hy the party interrupted for one year' uftor notice." (ihtwr v. Voleman, II i\ V. 27'). " And in order to net^ative Buhmi?*tii(>n to or ae(piies(!ence in the interruption, it is iii>t neeosrtary tliat the party iiiter- ru|>ted >ihall have hroii^ht an action or Kiiit, or taken any active steps to remove the ohstructioii ; it is enoiij^li to &hew tiiat he has in a ivasoiialile maniu'r communicated to the party eausin/jj the interruption that he d»>es not really guhmit to or aequieseo in it. Ibid. (a) G Ex. 030 ; 20 L. J., Chy. Ex. 302. ,. s IlKVtHKIi HTATIITKH, ONTAItlO. 249 " Wlirrc, llirrrCon', tlu^ pluintill* liml for rii(»rn timri twriity yciirrt nijoytMl tint iicccMrt (»t"li;;lit to liirt Nvorl\rtli(i|>, tliruti^'li a window ii^iiiiirtt wlii(;li t\w (Ictuiitliirit hml, tihoiit t'oiiitcuti iiioritlirt iK't'on; iu;ti(»ii lirou;;iit,(>i'(>ct(Ml ii piTiimtii'iit Imililiti^ wliicli oli.itriicted it, luid tli(^ pliiintitt' liiid takoti no iictivu niciiKurcs to oiiUrti) tliu oliHtriKttion to ho iHririovod, hut hud Hovoriil tirncri, iiiniKcit' or hy hirt tcniint, couipliiinrd of and protcrttod a^^iiiiirtt it; //»/'/, that it wan u <|U('Hti(tn proprr to ho loft to tho jury whether or not thert) hud heet» such a Buhniii^Hioii to or ae({iiies<'eneo in the iritcrrtptiuM of tlio onjoynient ha to dt'privo tho plaiiitiir of th«! riyht to the li^lit. S\nih/t\ that tho hanio nort of evidi'iiec of \iser or onjoynuiit neeil not ho ^'iven in the ease (»f a li;;iit as in tlio earto of a ( laiiu of a ri^ht of way." //nr>). The lease HuhsiMpiently granted was of th(! land t(»^ether with tlu! house ertietod thoreon, and all li^ht.-i, eas(!incnts, and ftp[)urtenances tiieroto hidonj^in^. In ac(!ordiince with tho Boheduled form, /u//l, that tho ^rant hy tho U-aso of li;:hts and easements was controlled hy tho antecedent agreement, whi(!h was to he read as })art of tlio lease; and that A. was not entitled to restrain tho lessees of tho opposite houses from huildintr so as to ohstruct tho access of liirlit «iid air to his premises from over such hoiieos." Salaman v. (n'nr.r, 15 E(i. C. 430. "Neither tho etdar<;enuMit of ancient windows nor the construction of new windows in their immediate vicinity will affect the right of the owner to protection for his ancient lij^hts/' Ayyidey v. Glocei\ 11 Ya[. C. 521 ; atlirmed, 12 8. c. 72t). 250 JONES i)N PHESCKIPTION. [srcs. .'^o, 37. m i,i , ; " Where it appeared that the buildinj^ complained of as seriously (>l)structing ancient liro- coding Huctions mentioned sliall be deemed und taken to be the period i\£xt before some, mdt or action, wherein the claim or matter to which Biicli period may rehite was or is brouf^ht into (piestion ; and no act or other miiltor shall be deeuied an interruption withui the moaning of the said three sectio..d, unless the same has been submitted to or acipiie.scud in for one year after the i)arty interrupted has had notice thereof, iind of the person making or authorizing the same to be made. C. S. U. C. cap. 88, s. 31). This section is taken from 10 it 11 Vic. cap. 5, s. 4, which was taken from 2 it 3 Will. IV. cap. 71, s. 4. We have before alluded to the decisions, where it was held that the time should be counted up to the time when the action was brought, not up to tho time the trespass was committed. Parke, 13., in Ward v. Robins, 15 M. & W. 237, says : " Such enjoyment, in order to give a right under that Statute, must be up to the time of the commencement of the suit, not up to the tinie of the act complained of; and conse- quently, an enjoyment for twenty years or more before that act gives only what may be termed an inchoate title, which may become complete or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit." Vide&\%o Wright v. Williams, 1 M. ife W. 77 ; Richards v. Fin/, 7 A. *fe E. 008. "Some suit or action." A question arose as follows: Whether the enjoyment which is to confer the right must be an enjoyment for twenty years next before the suit or action in >v}>ich the claim is set up, or whether it is enough that the enjoyment has been had for twenty years next RKVISKI) STAIMIKS, ONTAIiro, 351 before some other net ion or suit. Coop'i' v, IhO>h\ich^ VI C. B., N. S. 401. Held, Williiitns, J., disseiitin*,', tlmt the twenty yeurii' enjoyment of the nd'ess and nse of li<^hl to a dwelling; house, &e., under tlie 3rd and 4tli section of the Prescription Act, 2 cVr 3 Will. IV. cap. 71, is to be taken to be tlie period next before some action or suit wherein the claim shall have been brought in question. AVillos, J., there says: "Tlie eft'ect, tlierofore, is that iniinediutely upon the bringing of such suit or action, the enjoyment, if within the previous sections as to longtli and otherwise, sluill ripen into a right. Tiiat l)ecomes necessary imiiuMliutely njx)!* tiie bringing of the firdt suit or action, wherein the claim or matter shall have been or shall 1)0 brought in «juostion. If the Statute did not then come into operation, there would 1)0 a right without a remedy. If it does, as I think it will be admitted it does, then come into operation, what is its effect ? I answer, the creation of a rigiit, not a mere excuse or temporary shift or continuance for the purpose of that suit." See supra. ''''Next hefore some suit or action." With referen(!e to this, it has been decided that the Statute intends that actual user must have been shewn to have continued to within one year of the commencement of a suit or action. In /*arl'tr v. Mitchell, 11 A. & E. 788, evidence was giv'en of a way from a period of fifty years till within four or five years before the commencement of the action, and it was held that this evidence was not suftieient to establish an casement. Lord Denham expressed an opinion that absence of evidence of user for two days before the commencement of the action would not prevent the acquisition of an easement. F/ywe v. Carpenter, 6 Ex. 825, user for fourteen months held insuffi- cient {a) ; Haley v. Ennis, 10 Q. 13. 40i. See also Glover V. Coleman, L. R., 10 C. P. 108. Ladyman v. Grave, L. R., 6 Chy. App. 7G8; Carr v. Foster, 3 Q. B, 581. These cases indicate that user ia (a) Goddard on Easeinunts, 129. |p!;i I 202 JONKft (»N PUKHtMlll'THlW. \aw. 37. US!! M m \ ^ Hi 3 s ■' W' ■' i'ltl^' ;f I'h' li ^1 1 W^ Hiiirificiit for tho ju'(|uirtiti<)U of ii prcHcriptivo li^lit, ovon tlioiiuch tlirrt' wcro a poriod of non-us(»r in tlio 'uiddlo, pro- riilnf f/ir '>on ufirr wiia not iit cum8i'«nu'JU'o of tho jkIvopho act o\' thi> stTvit'nt owner, ho iiw to constihito ivn intcrrnption. Alcro non user will not of ilsidf conslitiito Hullicit'nt dcfciu'o to 11 cliiini for u ;>roK{'rij)tivo r'<:;lit: t<» Imvo thut I'fViH't, it nnist bo t'onpU'il with sonio net iiulinitivo of ulmn- (lomuiMit. {^it) If tho ui*or ho intorniptod in ono piirt, tho prosciiptivo ri;:lit onlv IniU us to tii;it part. Jhtria v. \VIIHt prevent |>refeript ion. \J>) In \\ /'i'ir continuance. Tho rules* for computation of prescripticm pi>riods apply oidy to c ises of easements claimed uiuler tho Act. To ostaldish an easonuMit clainied hy ])rescriptioJi at common law. it is not essential to pnxliu-e evidence of user within tho last }oar before action. DarUny v. Chte^ 4 F. vt F. 0_<.r. A(Qini:S('KNCK. Iti 1S(51. wliile defetulant was bnildint!: a tannery on land adjoining the plaintiff's premi-es. the plaintiff encoura«;od defendant to proceed. The business was conunonced the (d) Moorf V. Jiiiirsoii, .3 B. & ('. IV.VI; SUikor v. SiiujfrH, 8 E. & B. 31 ; 26 L. J., Q. B. 'J57; h'ojlna v. Chorhi/, fJ Q. B. a 15. (h) Payne v. S/„iUtii, 1 M. & K. 38.'; liiijnoUhv. Kdwanh, Willes, 282; Carr v. Foster, 3 Q. B. 585. IlKVIMKI) HTATCTI'.H, ONTAKIO. «<'iinn vofir. In ISO.T !i m I'lc tu tin! ljnlMin;Lr^ with tlir plaiiitifl"^ l\in>\vliMli;(> Mtid iici|iii»'sc»'iMT ; iiml tin; |>luiiitiir mii/\' llic ('onrt licjuw), tlmt l)V lii- r-i.ndiict In* liiul h:> Oil (Joiiipiitn/ w Ihtril, 17 ( liv. A pp. W). On Appoiil t(» tli(! Privy (-'(Miiicil («. (r., !«; ("hy. 117), it, was lield in acconliiiuu) with tho Court hdow, Ii. U., 5 P. C. 221. Nature of licenses is clearly explained in Watnl v. Led hitter^ l.'{ M. iV W. SIJ8, where it is held that nn ic JicenseH may he jjjiven hy deed as well as hy parol. As to aefjiiies- cence, see Davicn v. Mdrxfmll^ 10 (J. J*.., M. 1^. CUT; /iV7i- tlale Canal Cornynny v. I\huj^ 2 Sim., N. S. 7S. The latter case was an aj)[)lieation hy Uo(!hlaintitt' Iiad acfiuircd any ccjuitable interest arising out of such acquiescence, lie c()uld not cnf'oice it against W. without proving actual notice to him of such equitable in- terest. JJell V. Walker, 20 Cliy. 558. In Craif/ v. Craig, 24 Chy. 575, Proudfoot, V. C, says: " Equity interposes to i)rcvcnt a jierson who has acquiesced in the expenditure of money, or in the doing of some other act, on the supposition that a right to an easement was acknowledged, from making use of his legal title to interfere with the enjoyment of it." In The Duke of Devonshire v. Khjin, 14 Beav. 530, the defendant had consented to plaintiff niakitig a water-course through his land upon being paid a " proper and reasonable sum." The water-course vva^ made, but no grant was executed, and no sum arranged. Alter nine years' user the defendant stopped it up, but he was restrained by a per- petual injunction from interfering with it, and a reference was made to the Master to fix a proper compensatio!!. See also Poicell v. Thomas, G Hare, 300 ; Laird v. Birkenhead liaihoay Company, John. 500; Duke of Jieanfort v. Patrick, 17 13eav. 60; liankart v. Houyhton, 27 Beav. 425 ; Somerset Canal Company v. Ilarcourt, 24 Beav. 571 ; Moreland v. Richardson, 22 Beav. 5D0. 38* In all actions upon tho case and othor pleadings whuroin tho party claiming may now by law allege his right generally, without averring tho existence of such right from time inunouiorial, such general allegation shall still be deemed suHioieiit, and if the same is denied, all and every tho matters in tho four next preceding sections of this Act mentioned and provided, which are applicable to the case, shall be admissible in evidenoo to sustain or rebut such allega- tion ; and in all pleadings to actions of trespass, and in all other pleadings wherein it would formerly have been neceHsary to allege tho right to have existed from time immemorial, it Rhall be sutlicient to allege the enjoyment thereof, aa of r'ujht, by tho occupiers of tho tene- ment in respect whereof the samo is t.'.imed for and during such of the periods mentioned in this Act as are applicable to tho case, and without claiming in the name or right of tho uwuer of the fee, as 2:)(] J()Ni:m (»n i'hescuii'TIov. «, [■ MPC 38. WiW \i.siially ilono ; jukI if tlio utlior piirty iiitt'iids to rely on iiiiy pro- vIho, oxooption, iuf.'ipatnty, disaliility, contriict, u%'ri;urnoiit or otimr iiuittor horL-iuhitfori) inuntioiicd, or on any oanHo or niattur of fact or of law not incoiisiMtiMit with tho Hiniplo fact of unjoyincnt, the .sanic »liall l)u Hpccially allo^'cil and Hi't forth in answer to tho aUctjation of thu party clainiinjj, and nhall not be rucuivud in uvid(.>nc>> on any general traverao or denial of hucIi allegation. C. S. U. C. cap. 8S. s. 40. This Poction is tiikcii from 10 vt 11 Vic. cup. '>. s. 5, wliidi WHS tiikfii from 2 tS: '.) Will. IV. cfxp. 71, s. 5, ITiuUt tlic cotniMon law, tho owner of land in too cjin alone chiini an oas(;mont by prescription. Otlicr persons must prescriho throuj;h him, and shew the derivation of their title from him. (d) A tenant for years must prescribe tlironi:;h his landlord {h). ijul; the present Statute (r?) altered this, atid says: "In all }>leadinjj;s to actions of trespass, and in all other pleadinj^s wherein formerly it Would have been necessary to alleiije the right to have existed frotri time immemorial, it shall bo sutticient to allege the enjoyment thereof as of right by tho occujyiers of the tenement in respect whereof tbo same is claimed, for and during such of the periods mentioned in this Act as may be applicable to the case, and without claiming in the name or right of the owner of tho fee, as is now usually done." Tho words of tho Act do not enable the occupier to acquire the easement for himself; it is for the benefit of the dominant tenement, aiul goes with it. We shall notice several cases in our own and the pMiglish courts. In a case for overflowing the pJaintifi''s land, the defend- ant pleaded tlie enjoyment of a right for twenty years ; the replication simply traversed the enjoyment. Held, that the plaintiff could not give in evidence a life estate outstanding as tenant by courtesy, but must, by 10 «k 11 Vic. cap. 5, 8.5, (o) Holhack v. Warner, Cro. Jac. 665 ; Staples v. Heydon, 2 Ld. Raym. 922 ; Smith v. Morris, Fort. 340. (6) Large v. Pitt, Peake Ad. Ca. 152 ; Dawny v. Cashford, Garth. 432. (c) Goddard ou Easements, 12. nRVIHRD STATITTEH, ONTARIO. 257 reply to that fact H|>e('i»illy. ^Stuart v. Sj>fui'f, 10 (). []. ISH. 8n»} jiJHo remarkH of Kobinsun, C. J., in Jlr/urfuiif ti „ M)\. Ward V. Rohlns, 15 M. & \V. 237, 239 ; I (I M. iVr H. 211; Wri>jhtv. Williams, 1 M. &, W. 77; liirhanU v. /'>//, 3 Nov. it v. ()7. These cases all hold that in the construction of the l*rcrtcri|)tion Act the twenty year-^' continuous enjoy- ment is down to the GotTinieneeinent r>/'the action, not to the time the trespass was committed. Parke, 11, in Ward v. linlnns, says: "This apparent absurdity, arisini; from a strict (construction of the Act, has already b<'(>ri fully con- sidered by this Court in the case of Wriyht v. Wllliamn, and the literal interpretation adhered to, the Cvourt intimating its opinion that the mischief of such a construction was rather aj)parent than real ; and the decision in that case was fully approved of and acted upon by the (Jourt of Queen's Bench in the case of Richardx v. Fry.'''' Bee also the remarks of Uobinson, 0. J., in McKechnle et al. v. McKeyes, i) Q. ^. 5GG. In Buel V. Ford, (S Vj. P. 200, the Court followed the decision in Haley v. Funis and liichards v. Fry, and held a plea ?MleaH are: ^' That he, the defcndiint, and all the occupiers for the time hcin^ of the Hai(>, the Court held that the enjoyment ax of r'ujht, spoken of ifi the Statute, meant an ctjjoyment had opeidy, noto- riously, without particular leave at the time, hy a perHon claiming to use without danger of being treated art a tres- pasHcr, art a matter of right. Construing the ternm ' enjoyed art of right,' used in the plea, in this manner, the of)jecti(»n is fully answered. It was objected also that the pleas should have (H)ntained a distinct averment that the obstruction complained of was actual, occasioned and erected during the period of twenty years." Chitty's Pleadings, 7th Pldit. by Greening, Vol. III. p. 271, referred to. Drai)er, C J., '•Every material statement contained in the form is to be fountl in these ])lea8." The pleas were sustained, and the practice and pleadings in these cases thus clearly indicated by judicial authority. We refer also to Bechtel v. Street., 20 Q. B, 16, whi(;h was a case for backing up the water on plaintiff's land. Plea was held good. Kobinson, C J., at p. 17, says: " The important question of fact is not how high the dam was for twenty years, but how high the water has been backed up on the plaintiff's land during that time, and I confess I should have expected in any approved precedent of a plea •of prescription, to find that point more clearly brought out HFA'IflET) UTATtrrrs, ONTARIO. 259 mg (lit. be tlie ited ncli Iviui. Ixhe for up |J88 Iple a out than it \»> in the precoilent in Mr. Oliitty'n excellent work. But we nro not dirtpuBed to treat the procfdeiit ah ono tliut is not rtat'o to follow; and taking it to be (intK(;i(>nt, then the queKtion in, whether the plea now before u* [» uoi in Bulmtanee and etfuct the eanio, though it docH not hpecify the height of the dam as the precedent in C'liitty doen. It may, wu think, be held that it is Aubbtuntiiilly the t^utni! in its Btatenient, for what it HtateH i^ that the defendant has enjoyed, whieh hab been held equivalent to haying that ho ha8 exercised for twenty years the ri^ht and privilege of keeping up the same dam us that whieh foriiiH the olmtruc- tion, and occasions the injury complained of If that be ko, it is of no con8e(|uoncc what the height of the dam wan and ifl — the fact of identity is the umteriiil thing.'' Tucker V. Pureti, 7 0. P. 2) ; and each riparian proprietor is entitled, not to the property in the tiowing water, but the usufruct of the stream, for all reasonable purposes — to drink, to water his cattic; or to turn his mills, according to the nature and situation of the stream ; lion JONKS (»N I'RKNCRIPTIOV. [ww. 38. J '!* iiixl wluiro uri injiirv in «l»»no to any r'n:\\i, an uctuiil pcr- cuptililu (iHinapt iii'cii not he proved in onh'r t*> intiintuiti un action, h'lnhtwy v. Oirfn^ i\ Kx. .'IMl. lint tifi/f tin' rhjht irniKt Ito rliiinu'il fv;/vvv7///, imd \\w pliiintitr ciin only n-cover on the ri^lit m-t forth in th») (lechirution." I'/VA, Inttole v. .A/m/.y, Ilnrrtt iV: N. 24.'J. On pcnninj; buck wutor, uc(|ni('ttcen('(', and pl('ii/' Jt'i'Hcij, Or, Aj IMi. 1)7 ; Ihirit's v. Mur.'iltitll, 10 C. R, N. S. m)7; /A7», wlicrc the di>(;trinu of HcfpiicBceneo wiim fnlly dirttrijrt.si'd. Tui'kcv V. I\u'i'7i^ 8 C. P. <>;{, In iin iictioii hroiinjlit to try th(! ri<^lit to wutcr, tho dofuiuhmt hy his jtlcri iii;^ht than h(> was lej^ally cntitlod to do, hnt dunied the consoipiciKtort arisinj^ from wiudi act. Upon demurrer, /V. M. iV: 11. 211, and />• v. J/ ////// J W, 1 1 Q. W. (HIO, are lead in j;^ enses. In tho ease of Welcome v. Fpton, 5 M. tt VV^ 3i>8, llli^(eared in ovidoiuio that within tho la»*t twenty yours enirroachmontB had hoon inado l>y l)uildin;;s jind iucloriures on tho 217 acre.-^ on which the allc;.;od trespartH was coin- niittod. //t/(l, that tho«o interruptioiiii heinj; mj rocont did not disprovo tho rif^ht of T. W. t«» tho pasturai^o in 1755, as alleged in tho first plea; and that not havin o ^. //. //a w 7 Photographic Sciences Corporation V "■^ 4v ^p \ \ 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 w Vo-^ A. Va 262 JONES ON PFtESCRIPTION. [sec. 39. Uu % ;;ih ;• '■ i i'i i< I' m for nearly forty years bcf »re the com men cement of the action — tlie Act, in the case of coirnuons, requiring enjoy- ment for tliirty years. It appeared, liowevor, tluit ahout eighteen years before the action, tiie owner of tiie dominant tenement, having no cattle, made no nse of the riglit for a period of two years. It was urged in opposition to the claim, that the Act required actual enjoyment during the whole period, which was not proved, and that by reason of the sixth section, no presumption of enjoyment during the two years could be made ; but it was held that the evidence was sufficient to support the right. Lord Den man, 0. J., in his judgment sr.ying that 'Section 6 enacts that no pre- sumption shall l »>^a.de in favour of any claim, on proof of the right having }>ep.i er.ercised for a less period than that prescribed oy tla A i 'm the particular case. But that pro- vision is moanl: o .> encounter j)resutnptions from an exercise of the right during such an im])erfo<;t period that it was exercised in olden times. The effect of the clause is that a claimant proving enjoyment for less than the specified time, shall not, on that ground, carry back his right to a period before that which his proof extends to. But this does not affect the mode of proof, and where actual enjoy- ment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time.' Frcm the case of Lawson v. Lang- ley, 4 A. & E. 890, 6 L. J., N. S., K. B. 271, it may be inferred that the sixth section of the Act would not preclude a jury from presuming user at the commencement of the prescriptive period, if evidence were given of user a little before, and again after the prescriptive period had begun to run." {a) This section relates exclusively to the cases of easements claimed under the Act. In Bright v. Walko7% 1 C. M. tion of such a grant having been made merely because the user i)y itself would have been insufficient to satisfy the Statute. In such a case the title to the easement is not i>rescriptive at all, but depends upon the actual grant." Tliis section does not embrace the whole of s, 6 in the Act 10 tfe 11 Vie, cap. 5, as s. 40 of this Act, wliich will be noted hereafter, is part of s. 6 in the former Act. But the present arrangement follows 2 & 3 Will. IV. cap. 71. Ints R. 3en rill DISABILITIIiS AND EXCEPTIONS. 40. The time during which any i)erson otherwise capable of resist- ing any claim to any of the matters mentioned in the thirty-fourth to the thirty-ninth sections of this Act, is an infant, idiot, non compos mentis, or tenant for life, or during which any action or suit has been pending, and which has been diligently prosecuted until abated by the death of any party or parties thereto, shall be excluded in the computation of the period in said sections mentioned, except only in cases where the right or clainx is thereby declared to be absolute and indefeasible. C. S. U. C. cap. 88, s. 42. This section is taken from the latter part of s. 6, in 10 & 11 Vic. cap. 5, which was s. 7 of 2 & 3 Will. IV. cap. 71. 264 JONES ON PRESC'RIPTrON. [sees. 40, 41. It will be noticed tliat this section does not appl)' to u tenancy for yenrs, aithouj^h s. 41 does. Coleridfje, J., in Palk v. S^'inner, 18 Q. B. 508; 8. c. 22 L. J., Q. B. 27, says: "Piittin<]f out of consideration ps. 7 ct 8, there was clearly evidence f(tr the jury of a twenty years' user as of rnjht before the coinnienceincnt of the actit>n. Tiiat beinjjj so, we must look at ss. 7 ife 8 to sec whether that period of twenty years is to bo shortened by cxcliidini; the period durinfjj which the tenancy for years existed. Now, 8. 7 applies in terms to a twenty years' eiijoyiuent for the purpose, not of defeating the ri^dit, but of e.xchidinj^ certain periods from the computation of the twenry years. But a tenancy for years is not one of those ])eriods, aithouj.jh a life tenancy is. Then s. 8 (41) does exclude a tenancy for years, but excludes it or\\y from the coinpuUitioii of a forty ^yea/**' enjoyment. There beiiif; o*"j section applicable to a twenty years' enjoyment, and aiiotner exjiressly confined to a forty years' enjoyment, it would be unreasouMble to import the latter into the former, and make s. 8 (41) applj' to a twenty years' enjoyment also." 41- Where any land or water upon, over or fron) wliicli miy such way or other eascmv/)it, ivatcr-coursa or run of water liius been enjoyed or derived, or has been lield under or by virtue of any term of life or any term of years exceeding three years from the granting thereof, tlie time of tlie enjoyment of any sucli way or other matter, as herein last before mentioned, during the contintiance of such term shall be ex- cluded in tlie computation of the said period of forty years, in case the claim is, within three years next after the end, or sooner deter- minaticm of such term, resisted by any person entitled to any reversion expectant on the determination thereof. C. S. U. C. cap. 88, s. 43. There is a material diflference between this section and s. 7 of 10 & 11 Vic. cap. 5, and also the English section. In the English section we have the peculiar words " any such way or other convenient water-course, or use of water;" in 10 & 11 Vic. we have "any such way or other convenient water-con ise, or run of water." But our ]»resent section was altered at the time of the consolidation of the Statutes. REVI8ED STATUTES, ONTARIO. 2G5 " The seventh (40) section of tlie A(^t appears to be at variance with the fourth (37). In the latter the period is required to be next before some suit or action, but if a dis- ability intervenes, and the time durinnj its continuance is to be excluded in computing the period, it may happen that a small portion of the prescriptive ])eriod only can be proved to have been next before the action. This point arose in the case of Clayton v. C(yrhy, 2 il B. 813, 11 L. J., Q. H. t>3D, which was an action for trespass in answer to wliich a pre- scriptive rij^ht to diiij clay was set up, claimed under the first section of the Act: the replication alleged the inier- vention of a life estate in the servient tenement, and the question was whether evidence of user for twenty-five years before the creation of the life estate, during tiie life estate, and for six yenrs after the life estate continuously down to the commencement of the action, was sufficient to establish the right. It was held that it was, for that the fourth and the seventh sections ought to be read together, and that the period is required to be thirty years next before action, excluding^ in the computation of those thirty years, any tenancy for life, and that the setting up of a life tenancy obliges a claimant to shew thirty years' enjoyment, either wholly before the tenancy for life, if it be still fiiibsistiiuj at the commencement of the suit, or partly before and jx^/'Uy after, if it be ended.'''* The user, to satisfy the Statute, must be continuous ; and it may be urged against the continuity of the enjoyn)ent, that if a tenancy for life or years or a period of disability intervenes, the time during the continuance of which is excluded in the computation, the enjoyment ceases to be continuous. . But this is not so ; for the effect of the seventh and eighth (40, 41) sections is not to unite discontinuous periods of enjoyment, but to extend the period of continuous enjoyment by so long a time as the tenancy or disability continues, (a) (o) OnUy V. Gardiner, 4 M. 4; W. 496; 8 L. J., N. S. Ex. 102; Goddard on Easements, 135. T 2G0 JONKd ON I'RKSilRIPTION. ill 1 i »Ui [sec. 41. ■j, ' Wo refer, in Clayton v. Corhy, 2 Q. B. 813, to ar])ears that there was no necessity for the Court to give any opinion as to the effect of s. 8, for the right of way there claimed was clearly destroyed under s. 7, '\jy reason of a tenancy for life." It has been held that proof of a written parol license will defeat a forty years' user, and proof of a mere verbal license a twenty years' user. Tickle v. Brown^ 'L t\. 6c E. 369 ; Beasley v. Clarke, 2 New Ca. 705. See also, Wright V. Williains, 1 M. & W. 100 ; Pye v. Mumford, 11 Q. 13. 666-672. In Bright v. Walker, 1 C. M. & E. 221, the judgment describes so well the condition of the law on this {)oint, that we here insert a great portion of it. Parke, B., says : " From hence we are led to conclude that an enjoyment for twenty years, if it give not a good title against all, gives no title at all; and as it is clear that this enjoyment, whilst the land was held by a tenant for life, cannot affect the reversion in the bishop now, and is theiefore not good 268 J0NE8 ON PRK8CRIPTI0N. [hoch. 41, 42. US against every one, it la not j^ood aj^ainst any one, and tlicrefore not aj^ainat the defendant. TIiIb view of the case derives confirmation from tlio 7tii Mcction, which ])rovideB as follows (see s. 40). This section, it is to bo observed, in express terms excluded the time that the person (who is capable of resisting the claim to the way) is tenant for life ; and uidess the cotitext makes it necess^iry for us, in order to avoid some manifest incongruity or absurdity, to put a ditierent construction, we ought to construe the words in their ordinary sense. That construction does not appear to us to be at variance with any other part of the Act, nor lead to any absurdity. During a ]H'riod of a tenancy fi»r life, the exercit-e of an easement will not allV'ct the lee : in order to do that, there must be that period of enjoyment against the owner of the fee. The conclusion, therefore, to which we have arrived is, that the Statute in this case gives no right from the enjoyment that has taken ))lace : and as s. G (1^9) forbids a presumption m favour of a claim to be drawn from a less period of enjoyment than that pre- scribed by the Statute, and as more than twenty years is recpiired in this case to give a right, the jurj could not liave been direitced to presume a grant by one of the termors to the other by the proof of possession alone." The following cases were cited in argument in Bright v. Wallfer : Corryton v. Lithebye, 2 Wm. Saund. 114; Barlow V. Rlwdes, 1 Or. & M., s. 439; Wlialley v. Thompson, 1 Bos. & Pull. 371. Jif ;;i tyi ■;■! 43. Nothing in tlie thirty-fourth to the thirty-ninth section of this Act shall support or maintain any claim to any profit or benefit to be taken or enjoyed from or upon any laud of our Sovereign Lady the Queen, her heirs and successors, or to any way or other easement, or to any water-course or the use of any water to be enjoyed or derived upon, over or from any land or water of our said Lady the Queen, her heirs and successors, unless si.c.t land, way, easement or water-course or other matter lies and is situate within the limits of some town or township, or other parcel or tract of land duly surveyed and laid out by proper autliority. C, S. U. C. cap. 88, s. 44. REVIRRD STATI'Tr'S. ONTARIO. 200 This section is token fn.rn 10 iV: 11 Vic. cap. 5, s. 8. It was purely a Canadian provision, applviisir to a new country. How would tln'B Paction nfr.rt an eaHcnunt ..n land hold under a mining h.cation in Thundrr Hav District, where the land has not been laid out into tcwnnhips? Would the survey on which the patent is.ued he con- sidered "proper authority ?" PAUT V. IIKVISKI) STATUTKS OF ONTARIO. CAP. I OS. i.*' 43. If at thu time at uhicli the ri^ht of any person to mako an entry nr rlutti ontitrc'il into punrtrrtrtion. A. «li«'(l in 1S'J»I. (J., IiIh t»l. 1. //'A/, tliat I). ini(U'r tlicHt' facts was Ituirt'd frotii rt'coviTv l».y tlin Statutes of Limitatioiirt, and tliat R. could not Iks (!oiMi(l(>n;d in poHriurtnion nn tlio Hervant or hailitf of till! Imniti(!. Do,' (I. SHiYrthnrn v. T>ah 7 (l W. -'570. In I'Jcctniont tlio |>iaintitrclainu'd iih heir at lau'cd' M. F., hii» tnothcr, the patoiitoo of the lot in (inorttion nndcr i\ patinit irirtiicd tin; l.'Uli of Au^unt, IMMT). It apjxsared that J. F., i)laintilf 'ri father, diod in 1850, and hi.s mother, tho patcntoo, aiiout two years heforo. Defendant had heisn iti portneKsion sineo I8!i0. This writ wan iHriU(!1, Jhlil, that the patentee havitii: died under the diBability of covertnro, J. F., the plaintiff under 0. S. II. C. ca|). 88, 8. 47, had ten years frotn her death, or twenty years from the time when her ri^ht aeerued in 18;i(); and that both the periods having expired before the issue of tho writ, the plaintiff was barred. Tho fact of the father beinj; for two yeare toiumt by courtesy would not j^ive tho plaintiff twenty years from his father's death. Witjlt: v. Mci'vlck, 8 C. V. 307; remarked upon, Farquhari^on v. Morrow, 12 C. P. 311. After the expiration of more than twenty years from tlio accruing of tlie husband's right to make an entry or bring an action, the Statute will operate as a bar during tho coverture to any action by husbands and wives jointly for land owned by the wives. Ingalls et al. v. /i*ei(l, 15 C. P 490. RF.VIRKD BTATirTM, OSTARIO. 273 >l(>r or rtr*UO liur the V. n V. the ^ 1) Thc«o two cnHOH nro iiuTcly niRcrtrd hiM'o to show what thu hiw WiiM forinurly ; but iiuw thu Uiiiubilit)' of cuvcrturu it) rumoviMl. Iti cjcctinctit tho j»l;iintitr <'hiimr(l m ln'ir at hiw of hix mother T., u r of H. II. dit'tl in In.'!'.), hiiviii^ (l(!viHC(l tlic hitiil to hirt widow, A., t|iiully divided uition^ hid ehihh'eii. Sim iimrried tv^n'm iti 1X4.*], T. married tho phiititill'rt father in ISI'J, htiinj^ tlien (Mj^hteen, iiiid tliey liveil with Iter mother, ho workiii*^ the hind, mitil Isll. T. died in Is |S. About IsOS th(« pliiintilf'ti father surremh-rcd bin interest to th<' |)hiintitf, wh(» wart born in Decumbor, IS47. DefendintH chiimed title by length of porirtOBHlon. //t'/. 214; Rumnell v. Jfendersun, 22 C. P. 180. Tho Imperial Act 3 ti- 4 Will. IV^ c^p. 27, b. 16, is dif- ferent from our own. it is as follows: " I'rovided always, and bo it further enacted, that if at tho time at wliicli the rij:;ht of any person to make an entry or distress, or hrin^ an action to recover any land or rent shall have lirst accrued as aforesaid, such ])or8on shall have been under any of tho disabilities hereinafter meritioned, that is to say, infancy, covKKTUKK, idiotcy, lunacy, unsuundness of mind or ahence hcyond seas." Our lei^islaturo considered it advisable to strike off " coverture " and " absence beyond seas " as disabilities. INFANCY. Where a minor gives a bond to convey, and he or his heir afterwards brings ejectment against the assignee of the ob- ligee, the defendant is entitled to a demand of possession. Doe d. Lemoine v. Vancotf, 5 O. S. 486. 18 '27 .lONKS ON I'UKMCUIl'TION. [800, 43. All ifitaiit will 1k' udinitlod to \ it 1 Vi(!. {(t) An i!irni\t |>l!iintiir can ^\w out a writ of rjcctnu'iit in liift own nanio ; Imt al'ttM* a|)|M'aran('(^ t'ntcn'd, lie cannot take Htiy t'urtluM' hli'|) without liavin<; a nrxt iVicnd a|t|»oint('d ; and any Kiich riirthcr jtrocct'dinjjjrt in tlie iid'anl's own name will 1)0 not asido. Ctinijibell v, Miit/n'iniorif 5 V. U. DI, C. L. Clianil).- -Ila<;arty. An ortato b(Mn|jj Bottlod on tlio wife for lifo, with roTnaindcr to her ohihlnMi, tho liushand (Mitorod on tli«^ witoV death in 1S;VJ, and roniaitiod in possession till his death. The (ildest son attained his a^o in ISJ^C), and in \SUU tiled a hill a<;ainst tlic tievisee of his father; it was held that tho son was not barred hy this SiH'tion. It was contended that tho plaint ilf's rii;ht was barred, as he had been of n^o luoro than te!i years, his right havini* accrued on the death of his mother in ISM'J. It was li^ld, the reasonable inferenco was that the father ent(M-ed ou behalf of his children as their guardian, which was totally ditforent from tho case of a mere stranger entering ni)on property umler siuiilar cir- cumstances. I'homas v. Thomas, '2 Kay i\: .1. 7J). A testator wlio died in 18.'}3 gave all iiis pro])crty to his two daughters, and appointed his brother aiid aiiother ex- ecutors of his will, and trustees for his wife and children. The will having been attested by only two witnesses, tho real estate descended upon his two daughters, one of whom died an infant. In 1833, J,, one of the executors named in the will, entered into the receipt of tho rents, and paid interest on a mortgage atiecting the estate. Thirty years afterwards, on a question as to whether tho claim of the infant's heir was barred as against the claim of J.'s heir, it was Jield that, in the absence of express evidence to the contrary, J. must have been presumed to have entered on (a) This case is taken from liobinsou & Joseph's Digest, and does not appear to be reported. IlKVrHKn HTATIJTKH, ONTAUIO. 275 not hdliiilf of tin' infantH, and tlirn'forn titiin to 181i^ wore not UHHctB of tlio IcBHeo. In tli(! Imp(!rial Act, 37 & 38 Vie. eap. 57, fl- 4, tlie fol- lowing wonJH an5 found: " 'I'lie time within wliieli any rtucli entry may bo made, or any hucIi action or Hnit may ho bron Jur. 891. The presi}nq)tion of death after seven years' absence does not arise wiiere tl»o prt)bability of intelb'<:;enco is re- butted by circumstances. Boivden v, Jlendenon^ 2 Srn. & Giif. 300; and see ACcMahon v. McElroijy Ir. Hep. 5 Eq. 1. In Wel)!^kr v. Blrchmore^ 13 Ves. 302, the presumption of death from len(];th of time was lield to have relation t<» tlie commencement of the period of uncertainty as to the existence of the party when he was proved to have been in a desperate state of health, and was to have returned to his relation in six months. A party was presumed to have died at a f articular time during the seven years, that particular time being the hurri- cane months, when he was proved to have left Demerara before their expiration. Sillick v. Booths 1 Y. & Coll. N. C. 117; see also Be Beasney's Trusts^ L. R., 7 Eq. 498. As to presumption of survivorship, vide Re Tindall^ 30 Beav. 151. A son, first tenant in tail in remainder, left this country on the 11th April, 1858, and was never after- wards heard of. His father, tenant for life, died on the 30th May, 1858. lield, in 1872, that it should be pre- sumed that the son survived the father. Pennefather v. Pennefather, Ir. Rep. 6 Eq. 171. Vide Lakin v. Lakin^ 34 Beav. 443. Where two persons die by the same accident at the same time, it is presumed that they died at the same moment, RBVISKn STATCTRfl, ONTARIO. nf and evidence must be {>iveii of survivorHliij). Snfft'tihraits V. Powdl. 1 Curt. 705. ]iut it» Si/lirk v. Jioot/i, 1 V. tfe Coll. 0. 0. 117, it was held timt, evidcince of hoiiltli niij^ht bo p;iven. This case is doubtful. 1 T.-iyior ou Kvidenco, 203. The testator and his wife were shipwreeked and drowned at sea, one wave Bweej)in^ thcni both away. It was //<;'g;' Crompton, J., in Howard v. Hudson, 2 E. ^fc 13. 13. In another i>art of tho judgment in Freeman v. Cooke, 2 Ex., Parke, H., at p. 604, says: " In truth, in most cases to which the doctrine of /*/cZ:rt;v/ v. ».Vt'ay'^ has been a])plied, the representation is such as to amount to the contract or license of tho party making it." See further, ^>c/' Lord Chelmsford, in Clarke v. Hart, 6 II. L. C. 033. If any person, by actual expressions, or by a course of conduct, 80 conduct himself that another may reasonably infer the existence of the .agreement or license, and acts upon such inference, the ])arty using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct. See per Pollock, C B., in Cornish v, Ahington, 4 II. & N. 556, approved per Mellor, J., in Thomas v. Brown, L. K., 1 Q. B. D. 722. The representation, whether by words or conduct, accord- ing to Pollock, 0. B., in Reynell v. Lewis, 15 M. & W. LIUi ! r !i.'' li I 8M JONKS ON PRESCHU'TIOM. [hcc. 43. 627, may 1)0 mado "directly to tlio pluintifr, or made pub- licly, so that it may bo interred to have reached him." To briti^ a caso under the princijiie estahlirthcd by tho decisions <»t' Pickard v. /Sear/i and Fnemdn v. Cooh\ it is now essentially necessary " that the representation or conduct coinphiined of, vviietiier active or passivo in its character, should have been inteiuhul to brin^ about the result where- by loss has arisen to the otiier l)arty, or his position has been altered" {pep Cockburn, C. .)., in Samn v. N. B. Austmlamm Co.^ 2 If. tfe 0. 188), for these estoppels ''only justify the acta to which the conduct of the ])arty induces." I\'r Willes, J., iu Dimstan v. Patterson^ 2 C. B., N. S. 502. If a man, either by words or conduct, has intimated that he consents to an act which has been done, and that he will oiVer no opposition to it, although it could not have been lawfully done without liis consent, and ho -hereby induces others to do that from which they mi^ht otherwise have abstained, he cannot question the len;ality of the act he has sanctioned, to the prejudice of those who have given faith to his words, or to the fair inference to be drawn from his conduct. Per Lord Campbell, in Cahncross v. Lorimer, 3 Mac. H. L. C. 829 ; s. c. 7 Jur. N. S. 149. See further, lia7nsden v. Dyson, L. II., 1 II. L. C. 129, 140, 168; Acheson v. McMxirray, 41 U. C. R. 494. It is immaterial whether there is a misrepresentation of the fact as it actually existed, or a misrepresentation of an intention to do or abstain from doing an act which would lead to the damage of the party induced to deal on the faith of the representation. See per Lord St. Leonards, in Jordan v. Money ^ 5 H. L. C. 185 ; see further, Citizens^ Banlc of Louisiana v. Bank of New Orleans, L. R., 6 H. L. C. 352; Fitzgerald v. Fitzgerald, 20 Grant, 410; Polak V. Everett, L. E., 1 Q. B. D. 673. Mr. Justice Brett, in Carr v. The London c& North- Western E. W. Co., L. R., 10 C. P. 316, 318, made an effort RF.VISRD STATUTES, ONTARIO. 2f^^ to reduce the law of estoppel iti paia to four ubstract pro- poBitions. 1. If a !nan, by his wordu or conduct, wilful J ij causes another to boliovo in a certain state of tliiii«rH wlhi-h the iirst knows to bo false, and if the second bclitjvcs in such a state of thinn;8 and acta upon his bulief, he who knowingly made the falso statenjont is estoppe(i from averring atter- wards that such a state of thin«'s did not in fact exist. 2. If a man, either in expr(!ss terms or by conduct, makcp a representation to another of the existence of a certain state of facts wliich he intends to bo acted upon in a (icrtain way, and it bo acted ujxjn in that way, in the belief of the existence of such a state of things, to the damage of him who so believes and acts, the first is estopped froni denying the existence of such a state of facts. 3. If a man, whatever his real ineanin<^ be, so conducts himself that a reasonable man 'umuld tul'e his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intfindcd to act upon it in a particular way, and he, with such belief, does act in that way, the tirst is estopped from denying that the facts were as represented. 4. If in the transaction itself which is in dispute, one has led another into the belief of a certain state of facts by conduct o^ culpable negligence calcuhited to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act by mistake uj)on such belief to his prejudice, the second cannot be heard afterwards as against the first, to shew that the state of facts referred to did not exist. No attempt was made on the argument before us to bring the case within the bounds of any of these propositions, with the exception of the third ; but even to that we cannot assent. The conduct of the plaintiff, in so long absenting himself from his Canadian home without communicating with his wife, brothers, or any other person in Canada, was 284 JONES ON rniLSCHIPTlON. 1 pi J [hoc. 43. TH(wt pxtrnorditmry and moHt oonHJiruhlo, Jind yet wo cannot lonk upon it art in any Hcnso aiindintin^ to u reproscntation tliiit uiitttlicr pcrrtoii (>WM»!(1 liirt land, or tliiit lio meant or that it inuHt lio lield that ho tncMint Huch a I'oproseututiun, if njiido, to ho actud upon hy any purnon whatovor. ItuhuMl, wo finil a dilHouIty at every stop in nttornpting to ivpnly the hiw of CHtoi>pul in thiti cuao. 1 am unablo to nay— 1. That phiintifr at any timo hy wordd or conduct mis- represented liiH title to the hmd. 2. That Hucli a miHroprertontation, if nia(io, was ever made lo the deftiudant or any person niuhsr whom ho ehiimed, or «() publicly made, if made at all, as to mako it a represen- tation to the defendant or any [person uudur wliom ho elaiiiiH. .'{. That if Bo made, it was ever meant or intended, or rM\ he held to have been meant or intended, to bo acted upon by tho defendant or hy anybody elrto. 4. That tho defendant or anybody under whom lie claims ever did act npon it. On the contrary, it appears to mo that tho defendant, who was a j)urehaser for value of the land, instead of buying land from a jterson not the owrun*, while the owner was, as in Ifoffj V. Gordon^ 17 Grant, 5DI), silently standing by or by word or conduct misrepresenting his title, was put upon inquiry as to the title, and ])urchased subject to tho con- tinjreney that the plaintiff, who was the true owner, might some day appear and assert title. The presumption is in favour of life, \fter the lapse of seven years tho presumption is in favour of death, but not of the date of death. Doe Ilagennan v. Strong, 4 U. C. R. 510; 8. c. 8 U. C. R. 291. The presumption of death, however, is one of fact and not of law. Lnpsley v. Griersofi, 1 H. L. 0. 498 ; The Queen v. Lumley, L. R. 1 W. 196, !| Ht:VI8KD HTATUTCH, ONTAKIO. 280 of lot R. A man nftor Bovcn jcurH, Jiltlioij^^h prcHutnod to bo dead, ifl not concluHively proved to bo dead, or iilt ritbor with hirt property or \\\n wife upon the Huppositimi of biH death. NotwithHtanditij^ the incoiivenietK^o of th(! rciippoar- aneo of Hii(;Ii a man uikUt Hueb einMitnstanceH, I know of no j)riru'iplo of OHtoppel wlii( h can bo propi'rly held on the factrt of thirt oaHO to prechnl'j bin roappourunce, and upon h\i reappearanee, tho assertion of all \m lej^al ri{,'liti«. Tlio bitest easo on the point \a Wa/krr ff an UHr<(>rtion of thu ownership of the hiifo incon HiHtcnt with tho roal ownort^hip, and that asHfrtion wiih iiiadu by the pcivoiirt who woro tho roal ownorrt, ami iiiudo art it w'tMV t«» tho puhli(». In thin ciiho, tlioro iH iiothiii;^ hut tlio unt'xphiiiic'l ahscnco of tho owiior of tho latif»iro wiM no i|) rnico iimlrr tlit* Siutiittt ot' l.iinitiitini ii^tiiiiMf, tlio pliiintiir, lircinHn liirt wit'i* WHS, until tin; litHt tlitrr ynilM, in iMihhi'Hsiiiii ••!' iIm' IiiimI, iukI Itrciiiirtn l)iivi(lKt)n, Ih-i' hci'ond llllhluinil, wIhi riaiinrd liy uikI tli|-uu;;li lirr, IiidI Iiu drlfiM'c, HH I iirtniinicil, a^^iiiiMt tlin pliiintill', uh hIki IiikI nut. hut. I wnH inrliiinl tu tliink tlmt u drt'i'iici! I>y (•Htu|>|M'| nii^lit Ix) rairtt!)! a^uiiiHt tlio |iliiiiitill', iinilcr tliti ciiriiitii^tuiM'iiH of tliu ciiho. Tlu'ii I wiiH <)r<)|)iniun tliiit DuviilKoii, t)ir Ht'corid liUHhiiiDl, iiii^;lit HU»'«a'HHriilly HiiHtuin ii drfciHMf undrr tim Stutiito of liiiiiitiitioiiK, altliitii^li tli<> witn could not ; ami altft* tlio liiKt ar^^UMii'iit, i am of that opinion Htill. It is clear tliat, art tlic |ilaiiititr irt tiic pat(>nt(>fM»r tint land, nnd lian never parted with it, \h' niii^t he entith one who is enahled to Hct it up a;j:aiii^t him. Tht! plaintill' had, hetint this ai'tiou waft hc^un, heen out of the actual poHHcHsion of tlio hind for thirty years. Jjut Irom ISIT, when the plaintilf left tho land and left the proviiKic, until iHOiJ, his wifo lived iipcm it, and from isr»;{, when hIh5 married Davidson, until May, 1875, Davidson and hIk; toi<(;ther liveij upon the land as hushand and wife. The land, from JNlay, 1875, remained in tho luindrt of the loan company, to whom Davidson and the woman had mort/.?a^;jd it in l''ehruary, 1n72, until the company sohl it to the defendant in March, Ih70, who haa had possijssioii <»f it from that time until th(! pr(!S(Mit. It was arjjcued that, as the Statute enactc(| that when the person who waH in possession of tin; land should ''have heen dispossessed or have discontinued su(di ])ossessi(tn," and the rij^ht to brlujiij tlio aetion to recover the land "shall be deemed to have first accrued at the time of such disj)Or^- 80rtsion or discontinuance of possession," that there was a dilierence in tho o})eration of the Statute of Limitations 288 JONES ON PRESCRIPTION. [soc. 43. wlion the owner was dUposseased, and when he diacontinned his possession ; that is, that wlien the owner discontinued the possession for twenty years, he lost his title to the land, although no other person had been in possession of it in the meantime, but that in the case of a dispossession., title was not lost, unless the land was held for twenty years by another. In Doe d. Outhhertson v. McGUiia^ 2 C. P. 124, at p. 142, Sullivan, J. decided expressly against such a contention. He lield that unless another person were in possession of the land which the owner had vacated, and acquired a title by a twenty years' possession, the owner did not lose his land although he discontinued the posses- sion of it. Tiie cases of Doe d. Taylor v. Proudfoot, 9 U. C. ^i. 503, and Pringle v. Allan, 18 IJ. C. R. 575, are opposed to the case of Doe d^ Outhhertson v. McOiUls ; but this latter decision is supported by Smith v. Lloyd, 9 Ex. 502, where it is said, and the opinion of Lord St. Leonard is adopted on the point, that "discontinuance of popsession in the Statute means an abandonment of possession by one person, followed by the actual possession of another person, for if no one succeed to the possession abandoned, there could be no one in whose favour or for whose protection the Act could operate. To constitute discontinuance there must be both dereliction by the person who lias the right, and actual possession, whether adverse or not, to protect." Lloyd V. ILenderson, 25 C. P. 253, is a decision to the like etfect, founded upon the same authority. There are other cases to which I might refer, but it is Dot necessary to do so. The result is, there is no difference in the effect, under the Statute of Limitation, in law between a dispossession of the owner and a discontinuance by the owner. The only difference is that discontinuance is the ordinary act of the owner dispossession is the forcible act of another against REVISED STATUTES, ONTARIO. 289 the owner. Land cannot bo abandoned as a more chattel may be, to be seized by the first tinder, or as an easement may bo. The possession, it lias been said, wliicli was hehi of the land from 1847 till 1853, was by the plaintiff's wife and cue two children she iiad by the plaintiff. During that time there can bo no doubt that her pos- session was 1ms possession. The agency there is between husband and wife for many purposes continued during that period of his absence; and I am of opinion there can be no personal possession by the wife of the husband's land in his lifetime which can be adverse to the husband, or be other- wise tiuin his possession. She cannot, I think, disseise him by an actual ouster so as to vest the title in herself, nor can she be a trespasser or wn»itg-doer upon his land,^ nor could he bring an action of ejectment or of trespass against lier. The unity of person of husband and wife, for these and for many other pur- poses, still continues, notwithstanding the late legislation in favour of married women holding and dealing with their own separate estates 9a femes sole. But a wife may, by feoffment to another of her husband's land, disseise him, Cmt is, it becomes the disseisin of the feoffee, because her feoff- ment is void. Vin. Abr. " Disseisin," F. pi. 8. The next inquire is, whether when the wife married Davidson in 1853, and he went on the land and occupied it with her, and they continued that possession until 1875 as man and wife, that kind of possession and occupancy was of such a nature as to operate adversely or prejudicially to the plain' Iff? The second marriage of the wife determined her agency for her husband the plaintiff. Athjns v. Pearce^ 2 C. B., N. S. 763. In that case Cockburn, C. J., said: "Does not all the authority of the wife cease when she quits the husband's roof and goes to live with another man J Is the adultereis 19 M 290 11 I ;; I- 3 J / % Wf JONES ON PRESCRIPTION. [sec. 43. still clothed with all the authority of a wife ? The authority of the wife is derived from the conjugal relation ; that tie severed, the authority ceases ; the fact of her living in a state of adultery divests her ot all authority which arises out of the marital relation." A woman could not be convicted of stealing her hus- band's goods, although she went off with them in the ■company of a paramour. That, however, is not because the agency continues, but because of the unity of person. The agency is in such ft case destroyed ; so that, if the paramour received the goods from her or helped her in taking them, he might be convicted of the larceny of them. Jieg. V. Avery, 5 Jur. N. S. 576 ; Iteg. v. Berry, 5 Jur. N. S. 228 ; Beg. v. Pitch, 3 Jur. K S. 524. The woman could not have been convicted of bigamy {The Queen v. Lumley, L. R., 1 C. C. 196) although she had married Davidson, and was cohabiting with him as his wife. Was the possession by Davidson and his supposed wife after their marriage the possession of the two jointly, or the possession of the wife alone, or of Davidson alone ? If the possession of the wife alone, I think her possession would still be the possession of the plaintiff, her lawful liusband, by reason of the continuance of the unity between them. The possession of Davidson and the woman after their marriage was the possession of the two. He entered, and she admitted him as having and claiming an interest in the land by reason of the marriage, which they believed to be a lawful marriage ; and I think, after his occupation of the land for twenty years with her, he had acquired a title to the land of some kind and to some extent, as against the plaintiff. Davidson did not claim the land as his own, but as that of the woman. He claimed such right in it which he, as REVISED STATUTES, ONTARIO. 291 her supposed husband, had. That would be for the joint lives of himself and the woman, and if he were the survivor, then for the further period of his own life, as tenant by the courtesy for his children of that marriage. That is what ho claimed for himself personally, and he contended the land would go to his children after their mother's death. lie also said he did not intend to give up the land to the plaintiff, until he saw what right he had to it. I was very much of the opinion for a time, that as Davidson claimed only in respect of his supposed wife, and as she could not claim against the plaintiff, her lawful husband, that neither could Davidson resist the claim of the plaintiff. But I am of opinion that the title which Davidson set up was adverse from the very first to the right of the plaintiff. It was irreconcilably opposed to it, and even to his existence, and in no sense can it be said to have been or to be a recognition of his right. Davidson was from the first a trespasser upon the land, and a disseisor of the husband, for the license of the plain- tiff's wife to be there was not a sufficient license in law. She had no power to grant it as agent of her husband. That agency was gone^ and she did not profess to act for or to bind him ; and having been there for more than twenty years, claiming right and title to the land for his life, not recog- nizing but disputing the plaintiff's title, and claiming the land for his children after her death, he was in my opinion in a position to dispute the plaintiff's title after such twenty years' possession, and the defendant is entitled to the benefit of that limitation. If the woman had made a lease for years to another, her husband, as he could enter upon the lands as against her, could enter also upon the tenant who claimed under her, so long as the tenant had not acquired a title contrary to the lease by length of possession. Ill 11 M I 292 JONES ON PRESCRIPTION. [sec. 43. If she had sold the land to another, and the purchaser had held the land for twenty years from her, he could hold it against the husband. If the woman had died soon after the second marriage, and her second husband had remained after that twenty years in possession, the first husband could not disturb him. So, if the second husband first entered on the land, and lived there alone say for ten years, and tiien the wife en- tered on the land and the two lived there together for say fifteen years, so that the second husband had been in ])0H9es- sion more than twenty years, I do not think he could then be dispossessed by the first husband, although the period of limitation was made up partly by the joint occupation of himself and the plaintiff's wife. If that be so, I do not see why the second husband, when he has been twenty years in possession, may not equally hold against the first husband, although the woman has been living on the land the whole time with the second husband, and is still living, and although the first husband may have the right of entry in respect of the wife's pos- session. It does not follow that he can disturb the second hus- band's actual possession, which he had and claimed to have in himself, and which the wife could not interfere with. If the wife had leased the land to another, the plaiutiflf might have ratified it, and might have notified the tenant to pay him the rent, but he could not ratify the second marriage or the adultery committed by reason of it and under it. In that respect there is an important difference between the position and rights of the second husband and of a tenant claiming by lease from the wife. PoBsession is a matter of fact. If two persons are living on land, the possession may be wholly in the one, and the right of occupancy by license may only be in the other. la Buch case the title will be wholly in the one having REVISED STATUTES, ONTARIO. 293 possession and property or claiminf^ it, and the other will have neither tho possession nor property. In tliis particular case both the wife and the second husband had the possession ; she claimed it, and he claimed it also by reason of his being her husband, as he supposed. lie claimed it for his life, and for tho benefit of his chil- dren, and he said at the trial that he did so. As his title was not disturbed for twenty years, and as the woman could not by any ri<5ht she had eject him, and as her first husband can only enter upon such rigiit or title after the lapse of twenty years' possession apiinst him which she still hud and another hud not, he has not the power to do an act in respect of her which she did not herself possess. There was pn)bably here no forfeiture of dower by the womun in her first husband's estate, as she did not elope from him, but lived in his house with her second husband, and so her case is not within the Statute. It was the first husband who abandoned her. If she had left his house and gone elsewhere with her second husband, it appears she would have lost her dower to the first husband's estate. Woodward v. Dowse^ 10 C. B., N. S. 722, and the cases in our own courts following it: PayneWa Case, Dyer. 107a; 2 Inst. 435,436; and Coot V. Bertt/, 12 Mod. 232. Perhaps the first husband could not sue for a divorce iu such a case, as he had virtually deserted his wife, 1 Bishop on Marriage and Divorce, s. 710, quoting from Aylitt'e, and referring to Fras c's Domestic Relations, 81, in the note. But see Brown's Law of Divorce, 26. I do not conceive she could have proceeded against the first husband for a restitution of her conjugal rights, after having lived with the second husband for thirty years and borne him children ; although it is possible, if he had de- ceived her by any positive act on his part which led her to believe, and which was done to make her believe, he was A^ i m ■ I ^^ a! if- 204 JONES ON PRESCRIPTION. [hoc. 43. m dead, she might, notwithstanding her long coliabitation with the second husband, have been able to compel a restitution of conjugal rights. The case of Joseph v. Jo":,ph^ 34 L. J., P. M. & A. 90, may throw some light on this proposition. The legal rights towards the plaintifi', her legal husband, being, as I think, such as I have stated and considered tlioin to be, then by reason of his absence, and by reason of her second njarriage, and by the long possession of the land jointly by her with the second husband — thcbe factfl do, in my opinion, enable the second husband to hold the land adversely to the first husband, so that he, or those repre- senting him, cannot bo ejected by the first husband. That right was not to the sole possestiion, but jointly or equally to the enjoyment of that possession with the wife. The first husband must be entitled to recover the possession which his wife had. The first and second husbands will thus be, or in effect be, tenants in common of the land. Tiie mortgage which the second husband and wife gave of the land, conveying it as the freehold of the wife, does not operate by estoppel, as the first husband is a stranger to it, and therefore the whole of the circumstances may be considered. As there was a special argument upon the question of estoppel, I have to say that I do not think that it can be applied in this case against the first husband. At one time I thought it might be, and the reason of it was this : The plaintiff left the country voluntarily, and for about five years was sailing on the lakes ; and while he was on the adjoining shore of the United States, he was not very far from home, and could readily have returned to it. For the remaining twenty-five years he was in California. He was not a literate man, but he never sent any message by letter or otherwise to his wife or to his relatives. They did 'lot know where he was, nor whether he was living or not. lie could have found them or communicated with them at ^'■"/TT/ KRVItlED 8TATUTE8, ONTAHIO. 295 nny time. Thoy (!ouM not find him or commnnioftte witli liiiii. They had roafion to fu'lievo, and they did heliovc, ho WHS dead; and ho nuist havo known they hclioved so, or ho must havo known that his conduct would naturally lead thoin to think bo: and he must also have known that thev would he likely to act towards him and his property as if lio were dead. If, then, they treated him as dea, 550. The rule nlno is, "tliut an estoppel hy noi;]i<;en(;e rinip^t 1)0 the neglect of some duty cast upon the party who irt j^uiity of it, and the nc<;ieet nnist he i:i the traiiftaction itself, and ho the proxiiiiato cause of leading the party into the n»istake." Siofui v. North BrUinh Australasinn (Jo, {Limited), 2 II. & C. 175, 181. Here the plaintilf ujade no representation of any kind. His conduct w^s of no ))ositive act; it was that of neglect only, and there was no duty nj)on him to look after his )>roperty or to find out what others were doing with it ; and as he did not know what they were doing with it (tr had done with it, he had nothing to counteract or to forijid. If a person builds on the land of another supposing it to be his own, and the owner, perceiving his mistake, abstains from setting him right, and leaves him to goon in hiserrer, the owner cannot afterwards assert his title to the land on which the money was expended by the other on the sup- position that the land was the property of the one who laid out the money. It was the owner's duty actively to interfere and to assert his adverse title ; and it would be dishonest of the owner, after remaining passive, to profit by the mistake which he could have prevented. But if one build on land knowing it not to be his, equity will not prevent the legal owner from claiming the land with all the expenditure made uj)on it. liamsden v. Dyson, L. R., 1 II. L. 129 ; 2><^r Lov(\ Chancellor, pp. 140, 141 ; j^er Lord Westbury, p. 1(58. If the plaintiff had been informed of the second marriage, and of the second husband living on the laud, or that his dauffhter was about to sell the land as her own as the heiress at law of it in the belief that the plaintiff was dead, and ho could reasonably by some act or means have asserted his rights in due time, and he did not interfere, his case would REV18KD STATUTKS, ONTARIO. 207 1)0 very Bi'milar to the one just refcrrotl to, nnd it sociniHl to inc lit one tiino it ini^lit Ite aesuincd ii^Miiist liitii on the evidence tlmt tlio plaiiitifl' was nc^li^^ently, waiitoidy and wilfully kecpinjj; hiuiselt' in a state of i^n(»ianc(; of a con- dition of thin;jis whicli he must iuive known wouhl ho verv likely to take ])laco after his lon«5 ahsence, and when lu' knew that all those who were interested in him nuist have believed, and had every reason froin his own conduct to believe, he was dead, and that as ajjjainyt him it nii^ht be assumed ho was wilfully al)stainin<^ from ])UtLln;^ forward his claims, ktjowiii};, as it mi;i!;ht bo assumed, tiiat others were dealing with his hind, atid knowiiijij also, as it mi<,'ht bo assumed, that they had the rii^ht to do so. lint I am not j)re])ared to say he was Ixjund to tell where ho was, or that he was still living, or that he was bound to look alter his rij^hts or property, or to inform himself whether others were dealinj^ with them or not at any further ri.^k than that of losin<^ them by the law of limitations. If he had by any act or device led it to be believed he was dead, and had resorted to such act or device wiiii the intention of havin<^ it so believed, atid he kept away or concealed himself tor that purpose, and it was accord- ingly believed he was dead, then I think the sale by his daughter would in this case have been a valid act, whether ho had previous knowledge of such sale or not, and whether he could have prevented it or not, so long as he did not in fact prevent it, when he could have prevented it. There have no doubt been many cases of such concealment or misrepresentation, and Bome of them arc very singular cases. Trew v. 77i€ liailway Passemjer Assurance Co., C Jur. N. S. 759; 5 II. ct N. 211; G II. & N. 830; the opinion of Pollock, C. B., at p. 760 of G Jur. N. S., as to what he supposed was the case ; Joseph v. Joseph., 34- L. J., P. M. & A. 96; Iloig v. Gordon, 17 Grant, 599; and the very extraordinary case mentioned as a fact, and which I presume to be so, in Vol. IX. of Household Words, p. 327, '29A JONEH ON PHRSCRITTION. [hoc. 43. ,^!l' hikI Vol. T. of (^iijihcU'r Mft^., p. 23^^, nnd al^o sliortly rofprrcd to ill Tiiiib'rt (Jiii'iositictt of London. Other crbos miji^Iit hIso 1)0 roforred to. Wliilo I Hill not al)lo to attiu^li nny lc<;al duty upon tho ])liiiiiti(l to coiutludo liiiJi by CHtoppol, / (Un of ttpinion he in fuirred hi/ Icix/th of time m far as J)TION. [mcc. 43. I li , I I Ihhih', mid Hd hy hiicIi h posKCKrtioii ti Htutiifory titiu to tlio land in ({iiCMtioti, wo would Ix; '' puttin)^'/' to uk(> thu wonU of uM cniincnt jud^'(>, *'uii cHtiito into liini in Bpito ot* liirt tcotli." V'ciitrii*, J., in Thom^mon v. Latihy li Vontrirt, 17H. I think the rule flliould he dischargod. Su('(!0!;Hivo (lirtiihilitics in the snmfl jh^rann h.'id Ix'on h
4, and, heinj^ ix feme mvert, attained lusr full iv^a in WM\ and died in 1827, it was held that an ejt'ctinent was well hron^ht hy her heir. L<\Hfne of Supple v. Jitii/tnoml, I Hayes, Ir. Hep. ; 2 I'rest. Ahst. 340; lilansh. Liiii lil, 22. It has been lield under JJ A: 4 Will. IV. eiij). 27, that when the person to whom the rij^dit to hrin;,' an acttion for the recovery of land is under a disahility, and hefoi-e the reJiioval of that disahility the same person falls under another disahility, his right to hring an action is preservetl until ten years after the removal of the latter disability. B^ Of/'OIVH V. Th m ison )f Oi L. K, G Ex. 128. De B 16 M. i. iv ». ;>-*<, which went up in error to the full Court, and was decided in error and reported in 6 Exeh. IfiG, and also L. J. 1850, Ex. Chy. 177 — the following judges being present : Patterson, J., Coleridge, J., Coltman, J., Maule, J., Cross- well, J., Erie, J., and Williams, J. Tiiere it was determined, "the right to rent is extinguished hy the lapse of twenty years from the time of the last ])ayment of such rent, although twenty years have not expired since the rent KKVINRU ttTATl'TM, OVTARIO. 301 l>0('fUM(( (|iif^. WIic!rc tlin Stiittito of riitriitiitiotH rxf ini,'iiiHln'H flio rij^lit iitnl (lin'H rxit hiir tlio rt'tnt'luuilt'(l." Tlio r(MMurki4 of Park*', II., in Ou^fn v. fh- /'>o ol)Hi!rvuil, irt tniido to oporato only ulu;rt) tiio piirfy intfrnlt'il to 1)0 proteciti'il in under disiihility at tim tiin«? when tho riirht to ni;ike tho diAtresti or hrint; tht; action tlrrit aceruiMl ; and if this ho hehl to ho tho tiin<» when tho hist payment wurt niaih', tho protection will in niany eauert ho wlndly illn<»ory. I'lit tho caHO, for in.-ttjincc, of a party r<'<^nlurly rocciviri;^ his rent up to a <^iven day, and hccomint; liiiiati(! heforo the next day of |)ayin('"t arrives; if he Hlioidd, hy reason of his lunacy, oniit to entorcc payment <»f his rent for twenty years, it would seem, on all princi|)lc, that ho must have heon intemhid to ho protected ; hut (;ertaiidy, aH ho was not under disahility at tho last time of payrtient, ho won! ' not cojno within tho protection of tho l»>th (present) Hoction. Many other similar cases may ho pointed cnit. Tina is no douht a very serious defect, and would afford stron;^ j^rounds for adoptin<; any roasoiuihlo construction of tlie .'{rd section (suh-s. 1, s. 5, Ont.) hy which it mi^rht ho remedied. l>ut no construction would have that result; tor even if hy a forced and ditlicult (Construction of tho sixth hranch of the section, wo were to hold that the point of time there desi<^nated was not tho last actual payment, l>ut tho time when the rent tirst fell into arrcar, yet tiie very same difHculty would exist in all tho olhcr cases pointed out hy tlio Statute, namely, tho case of a person dyinj]^ 8eiseSc W. 894; 5 B. & Ad. 8G; Rex v. Inhabitants of Ifarhonrne, 2 Ad. 6 Ell. 540 ; Rex v. Tunjning, 2 B. & Aid. 3SG. It was held that where a person has not been heard from for seven years, he must be taken to have lived to the end of the seven years ; unless they could prove the fact before that time. Lamhe v, Orton, S W. K. Ill; Dunn V. Snowden^ 2 Dr. & Sm. 201 ; Thomas v. Thomas. Dr. & Sm. 298; Be Benham's Trusts, L. li., 4 p:q. 410. But see Be Phene's Trusts^ L. R., 5 Chy. 139, wliere the old cases are overruled and all the cases collected, and where it was held that if a person has not been heard of for seven years, there is a presumption of law that he is dead. With regard to legacy, onus of proof that legatee sur- vived the testator is on the persons claiming the legacy. Be Lewt ' Triists, L. R., 6 Chy. 356; Be Walker, L. K., 7 Chy. 120. See also the following cases, in which it was held that the legatee died before the testator : Bust v. Baker, 8 Sim. 443 ; Dixon v. Dixon, 2 Br. C. C. 510. On a reference to the Master to inquire whether a legatee was living or dead, the certificate of the Master, stating that the legatee had been abroad twenty-eight years and had not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the founda- tion of a decree. Lee v. Willock, 6 Yes. 606; see also 13 V'^s. 362. The Courts in some cases have presumed the death, and have ordered the distribution as if the legatee died in the •M)i JONES ON PRESCRIPTION. [seo:s. 43, 44. ! ■; [ litcjtime of the testator, on security l)ein2^ j^iven to rot'iind. Such was the ease in Dowlin(j v. Winfieldy 14 Sim. 277. A 8Utn of money was set apart in 1815, to answer an annuity to a woman then supposed to be resident in India i)Ut wiio was never afterwards heard of. In 1887, the Master havinjjj certified upon ])re8umption tiiat she was dead, but without finding when she died, the Court ordered ])ayinent of the principal money to the party entitled to it, subject to the annuity. In 184:2, the Master having certified upon presumption tliat she had died in 1822, and that no personal representative had been lieard of, the Court ordered immediate payment to the same party of the accumulation since that time. And in 1847 it ordered })ayment of the rest of the fund to the same party, though resident abroad, upon his giving his personal security to refund in case the annuitant or her personal representative should ever establish a cluiui. Cuthhert v. Parricr^ 2 rh. C. C. 190. 44. No entry, distress, action or suit shall be made or brouglit by Hiij person, who, at tlie time at which liis right to make any entry or distress, or to bring an action or siiit to recover any land or rent, first accruetl, was under any of the disabilities hereinbefoi*e mentioned, or l)y any i)erson claiming through him, but within twenty j'ears next after the tinie at wliich such right first accrued, although the person under disability at such time may have remained under ojie or more of such disabilities during the whole of such twenty years, or although tlie term of ^yc years from the time at which he ceased to be under any .'juch disability, or died, may not have expired. 38 Vic. cap. 10, a. 0. This shortens the time materially. The section in the Imperial Act 37 & 38 Vic. cap. 57, s. 5, is the same, except that where the Ontario Act has "twenty years" the Imperial Act has " thirty," and where the Ontario Act lias " five," the Imperial Act has " six." The section in the Imperial Act was substituted for the 17th section of 3 & 4 Will. IV. cap. 27. Lord St. Leonards, in commenting on the 17th section, says: *'The writer attempted, without success, to prevail REVISED STATUTES, ONTARIO. 305 upon Parliament to shorten tliis period of limitation " (a) (forty years). " The failure was, however, only temporary. The success of tlie present measure was assured by his lordship's previous efforts." (b) The question arises under this Statute, IIow long a period must be shewn in order to make a good title ? Under the Statute 3 & 4 Will. IV. cap. 27, where the limitation was forty years. Lord Lyndhurst, C, said : " It was supposed that, by the operation of that Act, it was not necessary that the title should be carried back, as formerly, to a period of sixty years, but that some shorter period would be proper. It ai)pear8 that conveyancers have entertained dillerent opinions on the sul)jcct; but after considering it, I am of opinion that the Statute does not introduce any new rule in this respect, and that to intro- duce any new rule shortening the period would affect the security of titles. One ground of the rule was the duration of human life, and that is not alfected by the Statute. It was true that in other respects the security of a sixty years' title is better now than it was before ; but I think that is not a sufficient reason for shortening the ])eriod — for adopting forty years, or, as it has been suggested by a high authority, fifty years instead of the sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." Cooj)er v. .Eiacrij, 1 Pliill. C. C. 388. See the remarks of Lord Campbell in 2rouUon v. Edmonds, 1 DeG. F. & J. 250. Under the present Statute and the operation of our Registry Acts, there appears no more reason for holding that the period should be sixty years than that it should be one hundred or two hundred years— the right to the land or rent is extinguished in the majority of cases by tc7i years' adverse possession; and at any rate, no matter what the ((f) Sugden's New Laws of Kual Property, 2ikI Edit. p. 70. (6) Charley's Real Property Acts, p. 42. 20 I 300 JONES OX rnEscniPTiOK. [flcc. 44. f ^ llil % disabilities aro, hy twenty. Why we sliould liold to the old rule, unless because it is old, it is dilllcult to sec. So far as recent decisions on the Statute in Ontario have gone, tlicy all tend toward establishing a much shorter period as the rule. A feme sole seised in fee married, and she and her hus- band ceased to bo in the possession or (Mijoynient of the land, and went to reside at a distance from it. They both died at times which were not shewn to be within forty years from their ceasing to occupy. The wife's heir at law brou|i;ht ejectment against the poi'son in possession within twenty yenrs of the husljand's death and within live years of the passing of t/tis Statiite (:] S: 4 Will. IV.), but more than forty years after the husband and wife ceased to occupy ; it was held that the heir at law was barred by the 17th section of the Statute, though it did not appear when or how the diifendant came into possession, iind though proof was ollbrcd that the wife had levied no line. Doe J. Corhipi V. B/'a/nsion, 3 Ad. iS: Ell. 03. There is a material distinction between the case of a husband and wife making the possession derelict, as was the case in /)oe d. Corhyii v. Jji'tUndoti^ and the case where the husband and wife are seised in fee in right of the wife, and the husband, by a conveyance which docs not bind the wife, purports to convey the fee. Because the eli'ect at law is, that such coTiveyance merely passes to the grantee of the husband that estate which he had and mii>;ht have held during the continuance of the coverture. In such case the right of the wnfe comes v^^ithin the -ith description of interest in the 3rd section of 3 & 4 Will. lY. cap. 27, (sub-s. 3, s. 5 of Ontario Act). If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed without fine, the wife if she survives, and if not, her heir, may on the husband's death recover the land, notwith- standing the purchaser may have been in possession for more than forty years. Jumpscn v. Fitchcrs, 13 Sim. 327. See also Ontario decisions. RFA'ISKD STATUTES, OXT.VUIO. 30; 45. Wluro any porsmi is uiulcr imy <»f tho tlisjiliilitii's lun'cinbofon! mentii))iyil, at tho tiuia iit whicli liis riy;Iit to iiialis life! witlmut liaviii',' ceasud to h^ \vn\vv any sncli di.saliility, no tinio to niako an untry or di.stivsH, or to briiiLj an action to recover such land or runt beyond the said period of trii. years next after thu ri!,ditof such person to make an entry or distress, or to hrini,' an action to recover such laml or rent, lirst accrued, or tlm said ])ei'iod of live years next after tlie time at wldcli such pi'rson died, shall !ie allowed by reason of any disability of any other person. C. S. U. C. caj). 88, s. 47 ; Jio Vic. cap. Ki, s. 15. This spctioii sliortciis tlio tiino from twenty to ten years in tlio ciiso of a succession of disiibilitios. In other nspccts it is the sanui as tho Ini]>erial Stat. 3 i*v: •! Will. W. cap. 27, s. IS. The Iini)orial Stat. 'M, u8 Vic. cap. 7^, s. 1>, substitntos "six years'" fi)r " ten "" and "twelve years" for " twenty " in tlie Act of Will IV. Tliis section is so tar retrospective as to extend to a case where the lirst person, under disability, died belbro the passiui^ of tlic Act. A claimant to land in the colony of New South "Wales, whose ancestor died mider disability in the year 1S35, l)rouo;ht action to recover in lS.5t), haviriij^ in the meatitime l^eon under disability himself, was l)arr('(l by a colonial ordinance of 1837, which applied tho o })eared that the mort- gagee had received the rents, that various parts of the pro- perty had been sold, and the proceeds of the sale received by him. No allegation of any wilful default on the mort- gagee's part was made out by the pleadings, as ]n'Oved at the hearing; but the minutes, as drawn by the Ilegistrar, directed an account of the rents and profits and proceeds of the sale received by the mortgagee, or which, but for his wilful defaidt, he might liave received. The Master of the Holls was of opinion that the minutes so drawn were correct, and that in the case of a mortgagee, the aci'ount directed against liim was always on the plea of toilful ihfaiilt^ and, unlike the case of a trustee, nothing rt'hitive thereto need be mentioned in the pleadings or proved at the trial. The principle was correctly stated by MMMB" APpnvnrx. ^q(j Mr. Fisher in \m vahiahlo book on morf^^ai^cs (Fisher on Mort^'ii^^'s, 3rd Edit. j). 04.']), that 'theurcoutit usually directed a<,'aiiist a inorfj,Mi;ee iti puasct^siou, either of tani^Mhfe proporty, was of what he hai^, or, without wili'nl detUult, mi^dit have received from the time of his takinrr lawful jiossession.' His Lordship referred to the authoritJes cite (inint, hCA.—Stdtnt,^ of L'lmlta- iiona. — AddiiKj ^'jtari//'" uftcr Uqm of lo)cnti) years. til! FuUn' V. Mafkldii, 25 (inint, 455; MUlci- v. Miller^ 25 (Irsint, 'Jtii. — Interest OH LitjiU'ij. \.:. Kay V. WUmn: Aiipcal Court Ro]K)rt?, Vol. II., p. loJJ. Jiedcitij't'ion. — PosHcmum. hy Mi>rt ; and in 1842, default havin*^ been nnidc under the niort<;a<;e, D. fileil a hill of foreclosure ai-iunst S., on wliich a final decree was obtained in 1845 ; but to this suit ]v,, throui^di sonic oversi<^dit, was not made a party. K. died in 187(>; and in June of that year the plaintilf, his heir at law and devisee, hoard of Iv.'s claim on this land foi' tlic -irst time, and therefore illed a bill to redeem. The defendants claimed under conveyance from D., made after the fore- closure. Jt was proved that D. had gone over the land in 1S39 or 1840, after his title had become absolute at law, to see if there were any trespassers on it. That he then asked one II. to look after the land, and offered to sell it to him ; that he sold to one S. in 1841, who frequently went upon the land, and had it surveyed in 1853; and that the taxes had been paid by D. &> S., and those claiming under them. Held, on ajipeal from the decree of Spragge, C, which was allirmed (24 Grant, 218), that there was suflicient evidence of possession having been acquired by the mort- gagee more than twenty years before the bill was tiled, and that the ])laintiti"'s right to redeem was barred. Held also, tliat where actual possession is once obtained by a mortgagee !&• APPENDIX. 311 fn assertion of liis Ici^'iil ri^rlit of virtitlnpf, it nood not bo niaintaiiied continuously tor twenty years. A ijrciit number of ciisei^ were cited on the Jirj;;innent, wliich will bo fount] in Ai)pcul Court lieports, Vol. II., pp. 13.j, 13*;. Kirchhofcr v. Stui)hHr;/,2t) (^vimt,\\?,.~Ii!j)ariini Pro- prietor. — GiHuU remivoinj Watcra of a Jiivct: — Dene rq^t ion. Re Johnston. Johmton v. /A>yy, 25 Grunt, 2G1. — Lia- lility of LxeciUorsfor Ne(jli(jenec. AS TO KEVIVINO A JUDGMENT. Just as wo are ^^)in,i,' to press, tlic followiui]^ decision of the Court of Appeals, reversing Casper v. Keac/uc^ is to be noticed. In tlie Court of Appeals, liot/ci v. O'Loane {Lim Jour- nal, Ontario, 1S7S, p. 215). JI,h/, reversiiii,' tlie decision of Gwynne, J., that s. 11 ot 38 Vic. c. 1(5, does not apply to jud^nnents; and an action may still be brought thereon within twenty years under C. S. U. C. c. 78, s. 7. Acting on this decision, ^Mr. Dalton, in a late case of Graveley v. PovkU,, granted an order to revive a judgment of fifteen years' standing. >V>1 I' iul I ;' il IX DE .V. Ansi'.NCR. from province not n . iiiiist be in reproseiitativo capacity, 97. of trustees, 97, of tenancy, 35. cases referred to, 98. letter of mortgagee to mortgagor's .solicitor, 99. of agent, 98. ACCOUNTS, taking, in Master's office, 82, 308. ACCRUED, right first, 22. ACQUIESCE, possession of land, 29, ACQUIESCENCE, in a boundary lino, 29. in cases under the Statute of Limitations, 159 jurisdiction of equity saved, lo'J. wliat amounts to, 1.59, 160, when presuoiyd, with regard to light, 244. 314 i rciiHTtlnir T.lmltnflon of SuUn, 1. (/ini'tlm; '\"\\Uh, \h. oiriut ufliliii;^ |K'lltlun under (julotlntf TltlcH, IS, 10. ACTION. hrinn'iiiK of, not recovery <>f pnxxe^-lon, Hlay;* StutiiU", 18. fi)r iiHwl^^ninent «)f ilowir barred, '..'0. ACTUAr, i'ossf:ssi()n, Holjiin in fee ciin only bo prcnumod from, 27, ADMINFSTIIATION, letters eut()r, distinction butwuuD, 54. title of, r)5. dehiy in, Oft. ADMISSIONS, of piiyincnt of rent, 84. aditi,tf:uv, forfeiture of dower by, 46, AUVr.USR POSSESSION, under old law, 17. under Ontario decisions, 17. of rector, lU. twenty seven yenrH*. 20. wlien inortn'ayco not in, 96. aoent. ueknowledgmont of, 08. AtJRF.EMENT. will) re:,'ard to lease, 81. jiarol, IS. oorinj^ fitr oil, 4(5, A 1 11, fts to onscmcnt, 201, 202. pidlution of, 202, 203, 204, 205, 200, 207, 208. AMERICAN CASEH, 222, 223, 224, 225, 226. ANCIENT ORANT, without date does not destroy a prescriptive right, 181. ANNUITANT. under ft will, 33. ANNUITY, what it is, 14. different from rent charge, 14, chargod on land e(|ualn "rent," 15, txliuguishmeiit of, by lupBc of time, 15. INDEX. m ANNl'ITY-r..«//H«../. •I'tiiml by Itoiiil Id- rovpnmii. non jmymi-rit. ilUflnrt hr«>fttli. lA. Klv«!n liy will mul not «liur;(.'i| „n litriil U in |iriJvUlorii of *»'0. 38,. .19. nri./a. will Imuu to ruvivo Jiulguiuiil for, I2v), ANNlflTlKS. tliuu to bririif action Itniltt'tl ;« ten yearn, lOI, ARIIFAUS, ul (lower, 86, notreciivtrnlfli' for inoro timii hIx ycurn, 80, A.SHKT.S, iiftrr rirc|iiin'il, lo7. "AS.SL'HANCK." iiiliriirclatlon of tho turiu, 7. AVOIDANCi:, by jirocuMx, 18. LAU. of cHffttcs tail for wnnt of ciifry, 180. noit'H on, l:!o, i;ii, i;)2, i:j;{. HAIl OF .STATITTK. fllf<;t of liliii- u |)i;iLLlou uiulcr Act f-r li;ili)tlii;i TUlou, 18, 19, BASIC FEK. what, V66. BIfJAMY, woniaii t'ouKl not bo convict.-U uficr hipso of tlnic, 2'.iO. BOND, for (Icod, docs not luako tho person enlillcMl to tlio Innd, ai. BORIN(}, for oil, 4fi. BOUND AR IKS, disputud or iiiistuken, 29, 30. BROTH E I W. podHossion of, 26, , BROWN, puraplu-ftso of sub-section 3 of section 6, Staliitu of LiiuiLations, 02, 511. CARETAKRR, posHt'ssion of, 27. CASES DECIDED, 03 to rnortgayeo, 10.3. CESTl/I QUE TRUST, in posacssion, 42. ia tenant at will, 42, :\]t\ INOKX. M'' 4 ch'srri (jr/: Th'i'sT Coittiinini. (•xti'iil III rule l)('t\v«M>ii, unil IruMlco, ill. when riijlit In lirini^ mi Mclidii iiccnii'n, 111. Ill) li'ii^lli iiriiniK II l)ar ln'lwt'cn Irimloo and, HI, 1 in, 1 ifl. OIK- III' ii'iiiiiil'j ill coiiiiiinii liarrril, i'i7. ("(HI liilliiw 111!' i'hIiiIo into IimiiIm of ii Htraii;,'i'r In wIidiii it. ImH luicii tor- lioiislv i'kiivcvim), ]t\ts. williiiiil. kiio\vl('ilj;o of I'lU'ts, ciuiiiot bu HU|)[i(mc'(l Id iu'(|iiii!ticc, 100. ClIAKLKY, (III siMtioii rt,. .48, -111. r.o. on Mirliiiii '24,..1'22, l'2i», I'M, 125, 12rt. OIiATTKI.S, IIS lit, itiul ollior jHTSoiml iiroju'rl}', II. t'II{(M'MSTAN('K,S, of imyiiii'iit of rout, .'M, lift. Civil- I, AW. on trnsi, 11 3. «'IiKNCKS TO HUN. wi\i«n Slaliiti' t'ufi, 17. ( '( > M M i: N ( ^ is M 1', N T 1'' A CT, liiiit' of, ITi, IC, l^)MMi:NrKMF,NT OF TIMK. wlii'ii Statiilo l)('y;iiis lo run, 57. will lint coniiiii'iift' till Icllcr.s of adininiHtration \w takiMi out, 67. will not stoji, if oomniiuiceil in tlio debtor's lifetime, 57. CONCEALED FUAnn, as to, list, U.o, 151. 182, 163. (H)NSTurrnvK rossr.ssioN, actual and, 27. CONTINUAL CLAIMS, what elVect, 62. previous to Statute, (>!?. CONVFYANCKS. vohiiitary, 1<''>5. parlianientary, 83. COrARCENERS. possession of one not possession of others, 66. entry by, 66. even when in possession of the entirety, 67. COURTS. lean toward tenancy from year to year, 36. r rvuKX. .11 ( COVKXANT. (Millalrnil, for |inyinfiit, |i). ill it iiK.rlK/iirc, liio, I'.M. In iii()rlj,'ii>;inMt, fi.T. ciiHi H, |(iurlico Willi if;,'ar(l to, 04. (JUMTOMH, whal. iini viili(', icr., 1C,7, IP.H, If,',), I'/fi, 171, 173.^ «Icro;,'ul.ory to ^jcncnii n'j;U\.i,f |.ni|MTl y triinl, l)t: con.Hl.ruod strictly, lt'.!». (injoyiiiciil. iiiiisl. Imvc liccn mm of ri;,'lil, Ivu. UH to hiiiii'H ami <|iiiiii ii'\ 171. of iniiic owncTM to woik iiiinr'H ho um I,KTi;UMINA'!lO.V, of tenniicy at will, 40. DKIiTS, collection of, liy cxecntorH, .'Jfi. delay of twelve- nioiillia huid to require o.xplarintion, 50. DESCENT CAST, deli nit ion of, til. d(je,4 not defeat right of entry, 04. i>kcri:e, for Hpeeidc performnticc tniiy bn mndo ntfftinnt n tonnnt in tail, \?.2. ofCourtof Kijiiily i.H inehnled undi.TJud'.4iMiTil, I'JI. DEDICATION, ouHcs with ref,'ard to, 209. DISAlilMTIHH, Blicce-isive in same person, .^00. liv. {)k'adini;s in, 87. no action but witliiii ten j'ears, 126, 127, 128, 129. EASEMENT. definition of, 161, 162. servient iiml dominant tenements, 163. instaneep of, Id:). modes of claiming, 163. case of Kerr r. Cogliill, remarks on, 164. profit () piriiihr, ItJ."). i« (i//f';/'' .'•■''A> tna}- be claimed by custom, 165. extinguished by the union of seisin of the dominant and servient tene- ments, ISO. Act witli regard to, ct scq., 182, 183, 184, 185, 186, 187, 188, 189, 190, 191. within s-ection 36 of Prescription Act, 192. instances of easements, 1V>9. riglit to fasten clotlies lines, 199. nail trees to a wall, 199. convejance of smoke, 199. right to have a public liouse sign-post on a common, 199. right of eaves ilrojiping, 199. right to tetiier horses, 199. extent of enjoyment of, 199. jurisdiction of Court jf Etpiity with regard to, 200. as to air, 2ul. aa to water, 209, 210. ■faM INDEX. 319 repair of an, 21 1. 'JI'J, 21!!, 214, 215. Aiiici'iriiri cdH'H of, '22:>, 221, 225, 226. ollit'i' ciiM's (if, 22!t, 2'iO. lateral support, 2il, 2a2, 232, 334. "ENOCH AllDKN." cnHii of McArthur v. Enijledon, 278-I500, KNTIIV, n(!\v, (Ic'finition of, 3!>. fre.sh ri^ht of, on default, 45. no pyrs.in deeini'd in po-scs-j-in of land merely by entry, 58. ratilii'd by an action of (^((etrnt'nt, 58. action n.usi, be cornniencl'd within ono year after, and prosecuted with cn(;ct, 58. how fir siillicient, 58, :>'\ GO. HJiylil, iiow far sulilcicnt, tlj, ineie, not pos?5ei-;sioii, (jl, E(iUITV, liiiiilali'iM fjf suits in, ll'iO. doctrines of, witli rc<,'ard to fraud, 149, sales of, of redemption, ](ji). ESTATE, of inheritance, interpretation, 9. for any lilV, <). at will, (iciinition of, ,38. in rever>ion, 47, or intcre.-t in possession, 47. or interest in reversion, 48. partieniar section with regard to, 51. snbse(|ii('nt, barred, .51. per.sonul, of au intestate, 105. ESTATES TAIL, bar of, ]:;o. • no bar allowed by any person claiming any interest which such tenant m tad tiiii;-lit have barred, ];iii. where tenant died, no further time allowed, 132. as to, l;i;!, 1:J4, i;J5, ]«(i, i;n, i;i8. EVIDEXCE, clear and positive, required, -'Jl. EXECUTORS, delay in eolleoting debts renders them liable, 5G. barred wiien, 5(1. should proceed with promptitude, 60. not bound to tiike adv.'.nta'ro v('nil)lL' in case of uiliuitiistnilor, 50. uiMjuii't'd, iiiituro of, 8:^. piirclmher liablu to, from tiiiio of possession, 87. IMTKIilMlKTATION, cluu.-iu, 8, 9. INTKllRUl'TION, without, ruuiuis without interruption by some roasonablo means, 241 JOINT TENANTS, possession of one not possession of others, 08. former hiw, 66. Statute, section 11. JUDOMENT, revivinf^. 120, 311. case of Caspar v. Keochie, 120; reversed, 311. JURY. question for, in case of wild lands, 27. iiil LACFIES, Sec Acquiescence. LAND, interpretation of term, 9. wliere taken from. 9. wording of Imperial Act, 9. turnpike tolls not in Imperial Act, 9, 10. time to be recovered, 16. how .Statute must be construed, 23. right to, not barred unless some other person is in posseasion, 24, Statute with regard to wild land, 28. limited to part actually occupied, 28. exchange of, 80. sale of wild lauds, 310. LANDLORD AND TENANT, Statute as to, 32, 36. LEASE, for life at a nominal rent, 34, 35. for two years certain, 37. Statute with regard to, 32. LEGACY, decisions with regard to, 107. geuernl jjccuniary legacy within Act, 8. arrears, with respect to,' 87. time to bring action to recover, 104. LEGATEE, also au executor, Is not barred, as he can pay himself, 67, 58 INDEX. LETTER, tiow far au acknowledgment, 94. LICENSE, utjcJur seal, revocable, 217. LIENS, OTHER, time limited to ten years to brinn^ action, 104. LIFE ESTATE. fliiccebsiou, 50. LIGHT, Prescription Act with ropfunl to, 234. cttsert with rfpird to, 2;J5, 2'M, 2;17, 238, 289, 240. f(tr ol)stru(;tiiig, ri;,'ht of action, 214, 215. eiilart;eriieiiti/f witiiiiiws, 245, 248, 21i>, 250. (lainugu lu, must bo Hubstautiul, 247. LIMESTONE LAND, within the Act, 10. LIMIT, twenty yonrs the furthefit, 304. I^rd St. Leonards on, ;{ni. to uialcu a good title, 3U5, 306. LIMITATION, Statutes of, old StatiitoH, 8, 9. Statutes of repose, 10. of actions and suits in the recovery of land or rent, 16. time when, lt>. effect of time to the, extinguished, 16. final, twenty years, 304. Bection 44,. .804. as to fraud, 153, 154. of suits in enuity same timo as in COarts of law, 13) former law on point, 139. LIVERY OF SEISIN, defiuitioa of, 88. LUNACY, or unsoundness of mind, 270. disability has five years, 270. 323 MINES, rights incident to, 178, grant of, 173. in Cornwall, 176. MONEY, to be laid out in the purchase of land, 9, 11. principles of Chancery, 11. MORTGAGE, ' registered as against will, 25. how fur effected by entry, (51. arrears of interest on, 87, 88, 89. la short form, how far it has the effect of barring the eatall, 133 334 INDEX. if n 'I I i MORTOAORR, {)ri«)r, liiihlo for wliolo Amount of Interest to Rubsofiuont mortpnpco, ttl, II poHHossiun, Ulatuto furiiis no bar to a claim aguinat, fur occuj)ation n-nt. HI. barrod, not liaving taken possosston or rocovorud ^intorcst fur twenty yeuPH, W5. barred of liU rorncily on covenant, 95. an to forecloHure, 96. acooiuitH before MiiHter, 102. U'lunl nccount, 308, .'i09. rents, 102. otflea deeidcd, 102, TeHponmblo for property' held in pledge, 90. wbether Imr creoted is defeated by uiort(;agoo having kept account of rents, 98. more timn one ncknowledtjment of, only binds the one Rivinjj, 100. only binds the part of the laud in posaosBion of him wiio gives acknow- ledgment, 1(J0. out of posHCHMion, 101. retains possession after being paid in full, 101. acknowledgment of one of two bound to account for timber, 101. as to nccouiits before Moster, 101. tim(! to bring nction, 102. ten years from last payment of interest, 102, 108. MORTOAr.OR, possession of, 27. not a tenant at will, 41, interest of, after default not raoro thon that of tenant by sufferance, 41. case C)f introduction of claim, 41. time limited to ten years, 9!{. what he lakes under an acknowledgment, 100. acknowledgment of one of two joint mortgagees, 101. time to 'ring action, 1()2. ten years from lost payment, 102. not to bring action but within ten years after mortgagee obtained posses- sion, 9.'5. inU-rest recoverable by, 88. case of Ford v. Allen commented on, 88. '■ I NEW ENTRY. wliot constitutes, 39. NOTICE TO QUIT, at least half year's notice, 37. three months' notice, Ac., 87. determination of leosc by, 37. how far registration would be notice, 156, 187. Ciise of IJiileland v. Wadsworth, 156, 167. ct>r).«trucl'ive, 151, 162. of fravid requisite, 156. fit OCCUPATION RENT, Statute no bar to cinim for, 81. „ OTHER EASEMEJITS," meaning of, 21)9. INDEX. 325 OWNER OF LAND. fulUur in pudsotiaion, 18. " I'ARTY." adtliiig, ofler lopse of twenty years, 810. I'ATENT, I)ro|>odu(l issue on oxtinguishmeat of titlo, 16. TEUSONAL ESTATR, of un intcatAto, IDS. PERSONAL PROPERTY, trausmidsible to heira, 11. PETITIONER, uiulor Act for Qiiioting Title?, 19. POSSESSION, recovery (if, 18. must l)u proved by clear and positive evlJeaco, 19. priictieo for recovery of, ll>. definition of, 2'.i. ri^iit not barred unlopa some person is in, 24. owner out of, for twenty years, 21. question of, soeins to iiavo beoa decided according to each case, 24. payment of taxes as to, 24. among relatives, '24. by maniac, 25. by relatives, 26. by caretalier, 2t5. bj' servant, 26. by mortgagor, 26. witli regard to wild lands, 28. continuous, 30. tenant at will, 30. of tenancy at will, 40. cases cited as to, 32. • no new right accrues to owner of futare estate on hts coming into, 53. • when his interest barred, otherwise if not, 53, 64. how far it holds good, 60, 61. before patent, 63. as against the Crown, 03. of one of several co-parceners not possession of others, 66. by relation of heir does not hold the land, 68, prior state of law, 08, 69. of widow, 71. acknowledgment of, sufficient, 72. where two persons are in possession of land, the law adjudges it to be the possession of the one that hatix the right, 2'J9. PRACTICE, in recovering possession, 19. PREAMBLE, of Real Property Limitation Act, 8. of 38 Vic. cap. 16,.. 11. of34, Hcction 41, notes on, 2B5, 2fi6, 207. 288. suction 42, aa to land not Burvoyod, 208, 269. PRESCUn-TIVR UIGIITS, how loht, 179. rRESHMITION, of death, 276, 277. PRIVACY. no action maintainable for disturbing a man's privacy by windows, 242. rUOCESH, avoidance by, 18. , PROTECTOR, definition of, 136. owner of first existing estate prior to estate tail to be, 136. PURCHASER, •without notice of fraud, not liable, 165. not nssistinij in fraud, 156. bona firov«Dt an inUcfoiuible tillu bultnj ULHiiiiriHl, 8fl. Ur.COVKUY OF POSSF.SSION, cirtcl (if, witliuiit notion, 18. IIKCTOII. not tjiirri'd by nilvcrso poHioHsion, 19, UKF.NTHY, i)y knaor (letormlnos tenoncy at will, no. TlKfilSTllATloN, I'tflCl (if, 'Ji>. liow fur ri'i;i-ttrntl()n woiild bo notlrc, I.TCi, 167, , case of (filiolanil u, Wailrtwortb, 150, 157. UKLATFONS, of liirirrf not posHusHion of hfirs, C8. IlKLATIVKS, . powrtt'SHion of, 19. IlKMAINDER-MAN, wiml he takes, 60. KEMAINDEUS, 47, REMEDY, not only, but riijht barrod, 81?. RENT, inlerpretntioii of, y, 10, 11, 21. rent service, 11. retiteliart^e, 12. rent seek, 12. distress for, 11,12. of assize, 12. fee farm rent, l.S, non-payment of, 3.^. letiini; nt nn annual, 33. admissions of (layment, 34. circumstaneeHofiiayment, 3-1, 38. receipt of, by wife creates tenancy from year to year, 38. tenane}' for two years at once, 37. rcceiiit of, to bo receipt of the pr ifits of land, 81. lease voidable, 81. when ffirmal demand for rent necessarj', 81. cases with rei^ard to, 82. rii,'hts to rents exlinjjiiished, 86. non-receipt of, 21. • how Statute to be construed, 23, 328 INDEX. '' in, |ilt'u utiiicr SUliitu of Llrultatluna, lUO. UKHllurAIlY I.KOATKK. tliiiu coiuiiioiict'N tu run «|lion, 106. t'Hliito 111, 48. barruil, fi'i. lU'lUT. to cut turf, l'.»l. t'XlinujuUlicd, 83. I 111 rujiluvlii, 8»J. RIF'AFUAN rROI'IlIHTOna, iisi' (if wiitcr, 2r.t, ri-usoimlilc iho of water for iiianufHctiirlng purposoii, 220. i;rmit rwcrviiiy water of u river, 311. KULK. tlmt Stntuto of Mmltatlonn ilocs not liar tni«t oHtalo, (8. IioIUh unly between cestui que trwit uud trudtcv, 4'ii. SALES. of eijulty of ruiliMiiptlon, 100. SECTIONS, hi'clioii 8,.. 88. Hoction U,..fi"i. Hci'tion 10,. ,(')t. BUftioil 11,. .till. section 12,. .(IS. mction 18,. .7i». flection 14,. .81. Hection 15,. .82. flection 10,. .88. st'cUou 17,. .87. Heelioii 18,. .91. seclion 19,. .93. Bcclion 2i»,..99. section 21,. .loO. section 24, .127. Buh-section 3 of section 6, ..27. sulj-seclion 7 of seclion H,. .37, 88. 8ul)-8ection 11 of section 6,.. 47. sub section 2 of section 0,. .61. SECURITY FOR COSTS, effect of, 20. SEISIN, what it is, 59. auftieient to {^ivo wife dower, 5 • in law, doiiuition of, 59. SELBORNE, Lord, on sections 6 <& 24,. .49, 50, 122. ]^mm tsnr.x. 329 SERVANT. |)im«i »v|i)n of, 2A, 'iT. Willi tliur noting un, 17. si{i;r,Fi)Ui»'s uj:al I'Ropi'rtv statutkh Ux t'l Ifllt, "J I, 8I.\ MONTHS, niHico, na. SMOKK. u-'i to, ;i>)'i. SOLICIKJU. mii-tt, not hiiv (or lilriHulf, anil -lacrUli'i,' li'n client^ iijloro^t, 1^ .Sdlii'iiiir'.^ .liMiriiikl, I'j. SON. pDMiKHion of, '26, SlillATTIMl. HI t'l l.iiiil. '2H. |tri' niiut'il not to liu nii encumbrance, U2. HTAI.K, ii**riiiini| not cotintotiiinccil, 54. .STAI,I.A(.K. wimt it, l,i, n.'i. STATITK. (Idi'h lint run till after the ileternunuliun of loau', 33. 21 Jao. I., y5. . HUn^^TANTFAL IN.UTRY. riMHt 1)1! jimvod, even under cuvenunt for quiot sBJoymont of lli^lit, 217. surrouT, liiti-ral. 231. lUHe of Wiieelhouse y. Diircli, 231, 'j;J2. TH NANCY. fteknowlcdprnont of, 86. TKNANCY AT WILL, (letermiiieil, and no new tenancy (Tcated, 10. TKNANCV FROM YKAR TO YKAR. ilUtin:,'uisliud from tenancy for proper terms of yearn, 35, 3(). receipt of rent by wife create.^, 35. cireuiiHtanccs of payment of rent, 36. • court.-' lean toward, liO. TENANT, wiiat an acknowludgmeat of, 85. holding over, 38, TENANT AT WILL, possession of. 3n. who is, A-c, 38, 39, 40, 41. 330 INDKX. TKNAXT AT \V\Llr-Ci»,linue,l. «li>|l(»SSfSSC'(|, lo. diiti'i'iiiiiiiitiiiii of, 1(1. by liisolvi'iit Court, 41. croiition uf, 41 . iiKJi'tiiiiijor not. 11. o»tiii ijiti trnni ill iiOHSt'SSKin, 42. TKNANT IIV KLF.CIT. ri^lit to (lislriiiii of, 14. THNANT HY SIJFFICUANCE. k'ljnl interest of, 41. TKNAXT rilOM YHAIl TO YEAR, wliuii Statute b(';^iiiH to run, 'AW. TENANT II()M)IN(! OVF.U, ()cou|mti()n, prcsuiiiplioi). .'!7. pri'sumiitioii of deiuiao for ycnrs not raised hy, 37. TiCNANT IV TAIL. Imviiii^ dii'il before cxpiriition of the period, hia auccetsor limited to satnc time as liinisclf, V.Vl. imvin;r nuidu an a.ssurancc, \?,'.\. TENANTS IN COMMON. barred, 67. what are, t)8. TIME, of commeneemon' of Act, 1."), Itl. of brin^iriijj an aetion or (ii.-.lress, Id. of l-'n^jlish Statiitc twelve yeai's, 17. (lueslioti as to l)enefit of Ontario Statute, 17. demise from year to year, lit). after the time wiien rit^ht acerui'il to owner of |)artieular estate, fil. old rule as to issuintj, with rcijard to administration, 64. interest liow far ehar;^eai)ie, M\. creditor barn-d, if Statute has bci^un to run and time elapsed, fid. thouirJi e.xeoutur brings an aetion within reasonable time of death of ttistator, .'>7 not eomTiienoed to rtm, .')7. for niorti^as^or to brinj; aetion, itU. in eipiity, ten j'ears' limitation, 11t». to brin;; action to recover (ten years). lOJ as to foreclosure suits. 104. us to writs ofyi fa., 104. ns to writs of .f (•»./«., inl. final decrees of Courts of E((uity, 104. venilor's lien for unpaid imrehase money, 105. otlier liens, 1(»5. nil le-jacies, 105. annuities, 105. residue bequeathed bj' a will, loS. to recover even if express trust, 121. to brini» action, ten years, 121. does not run in equity whih' fraud concealed, 148. Courts of Equity will not impeach a transaction after many yeora, 168. how long for a good titlo, 3U6. fsamb INDEX. 331 TITLE, (A Act, 7, 8. of liH Vic...8. (if|"'ii(|('nt, Ifi. fxtinijiiiHlimcnt of, K., 82. 83. not iincessnry tobo shewn, 21. jiayiiH'nt of taxcH, 2\K riuinot \h> revived, onco Imrred, 8,'). liow long n period riiUHt be eliewn for n good, 30S. TOM., TIIAVEUSK, wliiit it i.s, 176. "TOLL OH DKFEAT," definilion of, 04. TRUST, witii rpf»ard to letfacy, 87. time does not create II bar, 112, wliat civil law says, 113. iu(!i,'nient of Chancellor Vankoui,'hnet, 114. betwoon trudteo and ceittui ijue tru-tl, 145, 145, 147, MS. TUUSTRK. Statiilo docs not niti a^^ainsit the Crown even na, r,4. of joint tenants, his Cfstui ipie trml, not in poaseision bftiTPii. ti7 ncknowledf^ment of, 97. ri;jht of ees(ni i/na trmf to brini; an action when e.statc' conveyed to a trustee for valuable considerutiun, 141. TRUST ESTATE. no enittui i/ue trust a tenant ot will to trustee, 41. provisions with refjord to, 139, 140, 141, 14'>, 143, 144, 145, Mt^, 1 (.^ lib. TRUSTS, express, 43, Tl'RNPlKE TOLLS. in interpretation clause, 9, 10. UNITY OF POSSESSION, extinj^uishes an easement, 218. USUAL ACCOUNT. what is it V 308, VENDOR'S LIEN. for unpaid pureiiase money, 10.5. time to bring action limited to ten years, 1(»4. VOLUNTARY CONVEYANCES, t>tatuto with regard to, 1J>5. WARRANTY. what it is, 64, 6S. |v!!:( •^•^2 rNDEX. WASTE. iM|uiUil)I(', 140. I(';;al, Uii. WATKR. for rnuMiifiicturinp puqioscs, 220. t') iiTiicatf iaiKirt, 22u, pi.Iliitif.ii 'if streiirns, 220. How of, 221, 222. WATRU COURSE, wiUiiti st'ction 3.'»,..192. leadini,' case with regard to mill dfltn, 192, oii.sfs with regard to, 193, 194, 195, 196, 197. WAY. Act, witli regard to, 192. uriinti!rru{)ted possession for twenty years gives right of, 192. WIFE, i-pe-cipt of rent by, creates a tenancy from year to year, S5. could not be convicted of stealing her husband's goods, although she wi-iit off witli them in the company of lier paramour, 290 WILD LANDS, sail) of, 310. WILL. void as against a duly registered mortgage, 26. residue be(iueathed by, time to bring action limited to ten years, 104. WOMAN. rigiit of dower, 46. WRONOFULLY CLAIMING, land or rent, 32. YEARS, time of limitation, 16. time in Act, ten years, 16. demise from year to year operates as a demise for two ye^ra, 36. • isiij COPl', CLAEK d CO., raiNTEBS, COLBOENE STaUKT, TOBO.NTO,