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A PRACTICAL TREATISE 
 
 ON THE 
 
 FORECLOSURE OF MORTGAGES 
 JF REALiy.. 
 
 WITH THK RULES OK PRACTICE REf.ATINC lO I ORECLOSURE, 
 ANNOTATED, AND AN APPENDIX OF FORMS 
 
 AND 
 
 THE MORTGAGE LAWS OF ONTARIO 
 
 (being a COI.I-ECTION ok STAIIJTKS AND SECTIONS OK SIAIUTES 
 RE[,ATIN(; TO MORTOAGES OK REAMV) 
 
 HV 
 
 A. T. HUNTER, LL.B., 
 
 (0/ Osgoodc. Hall, Dairixfer-af-Lan:) 
 
 Author of "Poiwr of Sale Under Mortiages of Realtii," and '' lical I'mpcrtii 
 Statutes of Ontario." 
 
 TORONTO : 
 
 The Garswell Co., Limited, 28 ADEiaiDii; St. East. 
 
 1899. 
 
K^o :■-/? 
 
 1 1 . 
 
 F6 
 
 1-, •■' 5 
 
 ICntert'cl iiccording to Act of tlii' Parliament of Canada, in tli(' year ono 
 tlnmsaiul liglit linndrwl and nint'ty-ninc, by TiiK( 'AH.-iWKM. Co. (Limited), 
 in the office of tiu' Minister of Aj;i'iciilt\ire. 
 
 TOUONTO 
 I'llINTKU Iiy TlIK CAUSWKLI, CO., MMITKIl 
 2'2, 30 Adehxiile St. Ki'flt 
 
PREFACE. 
 
 rjlHE want of a siini)le and practical treatise on the law 
 of Foreclosure has been lone, felt l.y the profession 
 m Ontario. Tiie American text-hooks bearino- the title 
 of Foreclosure, such as Mr. Wiltsie's useful work relate 
 nearly alto^^ether to the sale proceeding., taken in the 
 various States for the extinction of n.ortoa.ors' titles 
 To what is known in Ontario and in En<vland as Fore- 
 closure, and in the United States as " Strict Foreclosure " 
 very little attention is directed by American text-writer.l. 
 The Enolish treatises that bear on the subject .leal 
 widely with the whole subject of Mort^.iges, and so leave 
 room lor a special treatise on Foreclosnre. 
 
 The result of the absence of suen a special treatise 
 has been that as a rule members of the profession in 
 Ontario have preferred to take advantaoe of the more 
 l«'nihar process of "Sale under Power." But with the 
 steady mcrease of value that is now n.anifest in real estate 
 we n,ay expect to find the enforcen.ent of Foreclosures 
 becommo. aiore and mo.-e a favorite method with investors 
 and their solicitors. 
 
 The bulk of tho ^..esent w<,rk was written prior to 
 
 he revisions of the Rules of Practice and the Statutes of 
 
 Ontario. Some delay was therefore caused by the author 
 
 having to re-write portions and to revise the whole. 
 
 As the R. S. O ifto^ .„..^ ,,,• ^^ ^ . 
 
 s ol so recent issue the 
 
 author thouoht it would be 
 
 an appreciated labor if I 
 
 le 
 
sag 
 
 IV 
 
 I'HKFACK 
 
 collected iiud minotated the variouH Statute.s and sections 
 of Statutes in force in Ontario relatinj^- to ]\I(n't<^a<^eH. 
 
 Any disadvantages arising from the somewhat scat- 
 tered arrangement of the work, have, it is believed, been 
 overcome by the elaborate Analytical Imlex and Table of 
 Contents. 
 
 Despite the care exercised in revising the sheets a 
 few errors have crei)t in which it is hoped have l)t!en all 
 collected on the page of Ki-rata. 
 
 A. T. HUNTEK. 
 
CONTENTS. 
 
 I'AUT I. 
 
 <1IAI>TKR I. IXTRUDUCTION, 1-14. 
 
 A. F.,ml...su,v intr.HlL.ed int.. rmu.i- Cimada, 1. 
 AiitKjiiily or n-inedy „i: foreflosmv, 1. 
 Wiis there a Court or K(iiiityV 1. 
 Agitation lor u Court of JOiinity, ;!. 
 Was llicr,. „ sinnilicrinj,' ,M|ni(y uf HMleniption .' r,. 
 J.«-«islaliv.. recoKiiition of ...,ni(y of redeniptionV C, 
 MortKage remedies liefore 1S;{7, U. 
 N<. remedy for niort-aj^'or out (.f i>ossession, 7. 
 I'>. ("l.anj.'es in fore.dosure proeedure, 7. 
 Sale instead of foreclosure, S. 
 Deposit l.y defendant. S. 
 
 I>.'fondant may have action dismissed on payment. S. 
 I ersonal order fur payment, S. 
 Surety for debt, S. 
 
 Master given full iiowers without directions H 
 Service on execution creditor, 8. ' 
 
 Spoedy forcvlosure. !>. 
 
 Parties interested in c.pdty added in Master's otlicc. !. 
 I'ossession, l». ' 
 
 I'laintitr may give ,.redit notice, !). 
 
 IJ.jrhts of .lefendant in redemption acti.m, •. 
 
 1 raecipe judgment, !K 
 •fiidgment against infants, 0. 
 I'laintifl- may mal«' .lefendant ...n.lu.'t sale '» 
 I'lnal order ex parte, K). 
 • Mea. lings may lie n.tted, K). 
 I''"i-(h..r tin... ,,fter the six months, 10. 
 Defendant wishing sale. 10. 
 Finding vari.uis .-anses of action. 10. 
 f. (Jeneral principles, 10. 
 
 There must he default, lO 
 
 l^^Z"T'-^" '""' '" "• '•"^'^'"" ••• ■— ey, 11. 
 i oiedosure a.ts in personam, 11. 
 
 IJedeem up, foreclosure down, 12. 
 
m 
 
 M 
 
 CONTKNTS. 
 
 ITi.r .n.utgn«.c. uol party lo fTeclosniv 1- 
 
 Title to the oslato not to ho ...hnlea uMon.. o ,u 1.. 
 
 I,,i,.tii. should us. .lHi.ou..e in ^'•-""; '^ ' ; j, ,,„,, 
 IViHons eiititk-a to nioiiK">»i ■" -" . 
 
 Mo;;:^"s"H.luto.u.su.l.is.eu.aies.^^^^^^^ si. H. 
 
 V^^^nm un,st ju.l.. if h.- will hav. .......euc.. 14. 
 
 niArTEuu. wuiT AM) iM.KAniN(;s, ir.-iT. 
 
 JoiuiuK various rausrs of action. I-. 
 
 Various olain.s that nu.rtp.^r.. <an nu.ke, 1... 
 
 Relief lin.itcd hy indorsi-n.ont of writ. l.»- 
 
 Lan.ls should he si.eeiHcall.v set forth K- 
 
 Tn.lorsenient lor liduiaated .lenian.h K.. , ,. . ... 
 
 ^o^;a^elief linnte.1 ^o that elain.ea in l.lea.l,n«s. !<.. 
 
 Vonue in foreclosure, IT. 
 rorodosure as a counter-claim, 1.. 
 
 CIIAI'TEUHI. TAUTIKS I'LAINTIFF, 1S-20. 
 
 A. Persons inten'Ste.l in un.rtKafie, IS. 
 Joint owners of niortf;ane. IS. 
 Venaor, niort^'afie ha<-U. IS. 
 Lep.l representative of nn-rt^'aBee. IS. 
 lHM.ease.l vendor, uu.ler a.'reen.ent lor sale, l.». 
 Forei^jn execut..rs and a.hninistrators, U. 
 Trustees and heneticiaries, '2i). 
 Where trust attacked, '20. 
 Mortfxafrce. trustee, for sale. 20. 
 Acconunodation niortjrajrees, -<>. 
 
 OHkials. 20. oi 
 
 Assi«n.-e and assif:u..r of niortp.Ke, -1. 
 Latest assif-'uee snllicii'Ut. '-1. 
 
 \ssi>;unient pendente lite. -_'. 
 
 I'erson suhronated to mortfiajiee. 2-. 
 
 Suretv suhroKated t.. niort«a!iee, 22. 
 
 rur<haser aft.>r defective foreclosure, -.5. 
 
 B. Persons under disability. -^• 
 Liinntics, 23. 
 Married wonu>n, 24. 
 Infants. 24. 
 
 TTnauthori/.ed or iUesial investments, 2o. 
 
 Chartered Banks, 2.'. 
 
 Municipal corporations. 20. < 
 
 Joint stock companies, 20. < 
 
CfJNTENT.S, 
 
 Vii 
 
 list 
 14. 
 
 es, 2.'.. 
 
 CHAPTER lU.-Contintied. 
 
 Jioim (•oiiiimiiics, Hiiil«1in>,' .societies, etc., i>7. 
 Iiisiiriiiico (oriiornlidiiN, Friendly .societies, ete., 1'7. 
 Trust cniniiiiiiies, ll~. 
 MiniiiK ciiiniiiuiies, i>7. 
 Ceiiietcry ((Uiiiiiinics, I'S. 
 1). rnrtiiersliiii.s, -JS. 
 
 rnrtiiors, who may |()i(.,|,,se, 1>.S. 
 MortKiiKt' taken |(, om. i,aitner. I'S. 
 riiiiUKe of (inn: ell'ect on .seenrilies. 2!A 
 
 ClIAl'TKIt IV. I'AKTIIOS lUOFEXDANT. ;!(.-51. 
 A. nefeiHlinits lu the wi'it, oO. 
 'I'lie niortpiKor, oO. 
 
 The mortpiKorn.iiy Imve ronveye.I his e.iMilv .-.l 
 1 1"' ...ortKap.r n,,..y have n.,,.].. .M^rreen.ent for .ale, .'M 
 Ihe niortj,:,;ror n.ny i.HM.n.e hankrum or insolvent ;{l" 
 " lie of niorttrii;;or, ,'{2. 
 
 Wife of niort-i.iror, „„t si-nin^ n.ortKaye, l}-2. 
 
 ANife of imi-ehii.ser of fiiiity, ;{;{. 
 
 Ilnsliand, .'ii!. 
 
 Hol.lei- of th.> .Minify of re.lenii.tion. :J4. 
 
 .lonit owners of .'.inity, li4. 
 
 M.'sn.' purchasers, ;J4. 
 
 I'nrchas.'rs i.endente lite, 35. 
 
 Xnist(.es an.l .•estins (,ne trnstent. HO. 
 
 TriLstec's not ne.-.'ssi.ry when trust ..xpircl :\7 
 
 (Ved.tors s....ur..,l l.y ,„„rtff„Ke to trustee.' 37. 
 
 MortKap.r-s h..irs an.l ,.er,s„nnl representatives 37 
 
 ' artn.'rs, r..i,r..sentativ..s .,f d.'cease.l, 30 
 
 riircha.s,«r's heirs or rei.r..sentatives, 4t>. 
 
 Infants as p.'U'lies, 4(». 
 
 For..,losur.- an.l poss..ssion, infants 41 
 
 Wlien .-xecuto,-s not party ,„ pro..e...ling againnt infants, 42. 
 
 i..nnaiic, c.unnuttee of, 42. 
 
 Devisees of the e.mity, 42. 
 
 Annnitiint, 4;!. 
 
 liejracies charKe.l, 43. 
 
 Principal and surety. 43. 
 
 AssijiniM' in l.ankrui)tcy, 43. 
 
 lieinaind.M-iiK.n an.l reversioners 43 
 
 Tenant f.,r lite, t.-nant in tail, '44.' 
 
 Tenant f.)r life, represent'itiv..« pi , ,. 
 
 . "I'ltst luatnes ,,f deeense.l, 44 
 
 i^ess.'.'s of mortgagor, 44. ' : 
 
 Tenant f.>r .vears, 44. 
 
 Why tenant shonl.l he .j..in...l. 44. 
 
 MortKajjee may accept tenant, 45. 
 
f! 
 
 Vlll 
 
 CONTKXTS. 
 
 CHAPTER l\.—Conthiu,-<l. 
 
 Uiiilwny coiiiimiiy in luissessioii, 45. 
 
 Execution creditor. -l(i. 
 
 MorlgiiKOf wlio liiis parted with liis interest, 4(!. 
 
 U. J>L"lenilants added in Master's olllce, 4(i. 
 ("lasses of iiersous added, 40. 
 Assi^'nee of siilisequent incunibrnncer, 47. 
 Second niortKaK»'e, rei>resentatives of, 47. 
 .7udf,'ineiit creditors of suhseciuent incnnibrancer, 47. 
 .ludfjnient creditors of the inortH!>K<'«'. 4S. 
 ^forlBagor In derivative niortpijje, 4S. 
 Assi>rnees of niortgant't'. where foreclosure of derivative 
 
 inortuayt't'. 48. 
 MortKaKt'<' of tenant of niortKaKoi". 4S. 
 Mortgagees of tnide lixtures, 41). 
 
 C. I'rior mortgagee, 41>. 
 
 Trior mortgagee, iiarly to redemption not foreclosure, 41). 
 
 To redeem prior mongage, both mortgages must be over- 
 dtits 49. 
 
 Kedemption may lu' combined wit!i other causes of ac- 
 tion, 50. 
 
 I'rior mortgagee in possession acfiuiring equity, 50. 
 
 I'rior mortgagee, right of, when consenting to be party, 50. 
 
 Special circumstances, 50. 
 
 Special circumstances, deed absolute in form, 51. 
 
 CIIAI'TEK V. .HIXJMENT. 5J- (U. 
 
 A. .ludgment on rraecii)e, '^'2. 
 
 When entitled to praecipe judgment, 52. 
 When Judgment entered. 52. 
 Defendants out of jurisdictiou, 5.3. 
 Uelief given in pr0e<ipe judgment, 5.3. 
 
 H. .Fudgment for foreclosure and personal payment, 53. 
 Order for jtersonal payment, 53. 
 Order for personal payment, immediate, 53. 
 Effect of reference on immediate payment, .''>4. 
 Foreclosure atter execution on personal judgment, .^)4. 
 Default judgnuMit where statement of claim asks account, 54. 
 
 ('. .Tndgment for fon'dosure and delivery of possession. 55. 
 Development of the order for possession. ."t5. 
 Order for possession usually asked t>n writ, 5.5. 
 Sui>plenu'ntal order for possession, ."»(>. 
 Tos lession should be asked without delay. 50. 
 .Not granted ex parte, 5(5. 
 Against whom order directed, 50. . 
 
CONIKNTS. 
 
 l.\ 
 
 or- 
 
 at;- 
 
 . r.4. 
 
 CHAPTKH V. r„„li,nir<l. 
 
 J). .liidKiiit'iit nKii>>»*t infants, .'7. 
 
 Iliiw iihtaincd, TiT. 
 
 Imiuiry wlictlicr siili' <<i' fdrt'i'liisuri' nntrc heiiclii'iiil, "t". 
 
 Wlit'ic It rcriMirc (lisiictiHcd witli, "i". 
 
 Inl'iint, trust estate in, aisu licnclii-ia! interest, .'S. 
 K. Uelief (intside ol' nsiuil jnil>rinent, ."iS. 
 
 Injunction alter judjtnu'nt I'ur I'drediisure, ."iS. 
 
 W'iien ninrlua^cir directed ti> deliver up deeds, .'{). 
 
 .M(irt;.'aKce nut entitled to sale in ^uise of luirlition, Ti!). 
 
 No piiilitidii against will ol" inorti;aKee, ."•!». 
 
 Mone.vs in I'cceiver's hands, ,"){>. 
 
 Ueceiver ai)iM>inted; how not to re-o|tcii I'ore.lnsnrc, ')!>. 
 V. l''ornis (d" judninent in special cases, (!<l. 
 
 Scpar.'ite inoit^'ajies on sei>arate propei'lics, <!<». 
 
 MortKaKc of undivided interests, till. 
 
 ^^'hel•(' "(luity sold and niorlKaKcd tiack, till. 
 
 Wlien porti(ui of ei|uil,v sold and ImUince re-nioitKMKcd, lit. 
 
 Dispute as to ownership of eiiuit.v, I'd. 
 
 Action liy scccuid niortKaKce against first, I'd. 
 
 Suli<'(|iient incnnihrancer nainiiiK priiuity, Ul. 
 
 MoriKaKor ,joinin>; a^. mh ty in further niortira^'c, '»1. 
 
 When inoi'tK-'iKt'i' was trustee liesides, li^. 
 
 Dower barred in one uur'KaKc oidy. li'J. 
 
 Widow claiming dower paramount to niorlita^ec, ii2. 
 
 When moneys in receivei" s hands not c irric.l into account, lio. 
 
 Lump sum allowed liy plaintiff for rent-i to he colL^ato:!, !'>•"'. 
 
 E(|uital)le mortKajic, ti.'J. 
 
 K(|uitalile mo!'t;;.'iKP, vcstinj; order, lilt. 
 
 Where debt payable by instalments wit limit iicceU'ration, l'>4. 
 
 Mortnaned iireinises out i>( jurisdiction, li-1. 
 
 i'lIArrEK A' I. l.NTKltlOST. li.V-T'-*. 
 
 Fnterest implied liv inortKaKc debt, (!.">. 
 Interest accrues from day to day, li.'. 
 When accrual of interest stops, lir). 
 Interest on mortKa>;ees disbursements, f>7. 
 Arrears of interest; liow many vears charKcab' tiS. 
 •"•'tiimlations for Increased rate, liS. 
 ^^ mmissioM on arrears, (!!►. 
 Interest on .arrears of interest. 111). 
 Effect of assij;nnieiit of niort>;aKe on arrears, 70. 
 Ii.terest on bam to rep.iy prior niort>.'a>:es, 7tl. 
 ;ate charjieable after maturity of loan, 70. 
 interest during the six montlis' period. 71. 
 
 Interest, iiow (oinputod, when successive periods of redemp- 
 tion, 71. 
 
 Interest, how computed, when period for redemption en- 
 larged, 72. 
 
■■^5= 
 
 ill 
 
 X CONTENTS. 
 
 CHArTKIl VII. mrROVEMKNTS, 73-78. 
 
 Limitort right to chnrKc for imi i ovcnients. 73. 
 
 Mustn't iniiirovo niDrtfiaKor out of liis estate, 73. 
 
 More lilioi'iil allowiiiico wlicn sale set aside, 74. 
 
 How allowance caleulatod, 74. 
 
 Should inipi'ovonicnts he pleaded, 7.^». 
 
 How to ohjcct to allowance lor iuiproveineuts. 75. 
 
 Itule when niortKaiice charged with rent of improvements, 77. 
 
 Second mortjiaKee cannot improve as against first, 7S. 
 
 Improvements hy the mortgagor, 78. 
 
 Improvements by mechanics, 78. 
 
 CHAPTER VHI. RENTS. 70—00. 
 
 A. •' But for wilful neglect or default," 7!). 
 
 Two modes of charging mortgagee mIiIi rents, 7!». 
 What wilful default means, 80. 
 Mortgagor's tenant failing to pay. 80. 
 Mortgagee ejecting mortgagor's tenant. 81. 
 Mortgagee making easy lease to gain a side iirofit, 81. 
 Where mortgagees make defective transfer. 81. 
 
 B. Occupation rent, 81. 
 
 Occupation rent reckoned to day of payment, S'^. 
 Statute of liiniitarions does not affect occupation rent, 82. 
 Arrears of interest set off against oc 'Upation rent, 82. 
 Mortgagee not chargeahle with rent due liy co-owner, 83. 
 Evidence as to occupation rent. 8."). 
 
 C. Rei.ts as accountalile to suhsciiuent in.-nmhrancers. 83. 
 Right of sulisequent incumlirancer to occupatictn rent, 83. 
 Rents cannot he applied to an o\itside debt, 84. 
 
 Effect of attor)iment clause, 84. 
 OccupatioM at a loss, 8."). 
 
 D. Interest on rents. 8."). 
 
 Cleaning of " taking th(> account with rests," 8.". 
 
 Itests, when taki-n in account for rent, 8li. 
 
 Rest, perhi'.ps when no arrears at time of entry. 8(1. 
 
 But the fact of no arrears is not decisive. S~. 
 
 Rest where mortgage dcht fully rei»aid. 88. 
 
 Rest where part of mortgaged property sold, 88. 
 
 Rest where arrears capitalized, 88, 
 
 Mortgages with monthly instalments, 80. 
 
 :yrode of cah-ulation where rests are actually directed, 80. 
 
 How to aitpeal decision of Ma;-.er as to rests, 80. 
 
 E. Commission for c(dlection of rents. 80. 
 
 Mortgagee collecting personally cannot charge commission, 89. 
 Commission to hailiff not alw:iys allow 'd. 0(t. 
 
CON'J'ENTS. 
 
 XI 
 
 ,' . I. 
 
 82. 
 83. 
 
 HU. 
 
 n, 89. 
 
 C'lIAPTEIt IX. M.ASTEU'R KEPOHT, 01-95. 
 
 lU-ports ami certificates, 91. 
 
 Kinds of reiiorts and ccitificatcs, 91. 
 
 Wlicn report j)rei)are(l, 92. 
 
 Warrant to settle report, 92. 
 
 The Master shonld draw liis own report, 92. 
 
 lieport to l)e filed. 93. 
 
 Some thinfrs wliicli report shonld contain, 93. 
 
 Some things Mliich Master sli<Hild not do, 94. 
 
 CIIArTEIl X. AMENDMENTS AND APPEALS, 9(>-101. 
 A. Appeals from jtnlKments, rnlinKs and reports, 9»;. 
 Appeal from praecipe jndKinent for foreclosnre. 9(;. 
 Appeal from order or rnlin^ of Master, 9(i. 
 Appeals from Master's rei»ort, 9(i. 
 Keiiuisites of notice, 97. 
 When notice retnrnai)le, !>7. 
 
 What mnst he shown on a|ii)lication for leave to api)eal, 97. 
 Persons entitled to jijii.eal from Master, 9,S. 
 Resnlt of appeal, 9S. 
 Matters not appealed from, 9S. 
 
 When Court will review eviden<e taken before Master, 98. 
 P. Amending judgments and other ))rocee(lin«s. !)!». 
 Clerical errors, 99. 
 
 Amendment where the wron;,' r«>lief ;;iven h.v order, 99. 
 Amendment where relief .urante.l that mortgaKee not'entitU'd 
 to, 99. 
 
 Amendment where .jndj,'ment oniils r.'ference. 100. 
 
 Amendment of ndsdescriptiim of land, lOO. 
 
 AVhere parties omitted, 100. 
 
 Purchasers omitted of part of ecpiity, 100. 
 
 Judjinient creditors omitted. 100. 
 
 Amendments in the Master's ollice, KH. 
 
 Settinj; asi.le ju.lKment to amend proeeediuKs. 101. 
 CIIAPTEU XI. I ERIOD FOR liEDEMPTION. 102. 
 
 Former rule: puisne incnnd)rancers to i,e fi.rc.-lose,I l,ef„re 
 
 mortgatror, 1(»l'. 
 Modern rule, six m.mths allowed ail defendants, 102. 
 E.vception; sn<'...ssivc periods wIumv puisne m.M't^ajrees have 
 
 proved claims, 103. 
 Cases wliere successive periods allowed, 104 
 WluM-o one in<.uud,rancer redeems, perio.l ,•„, foreclosure 
 
 apainst others, 104. 
 Periods allowed after six mouths 1(1.-, 
 
 Period .nention..! in decree shorten,.d by Master's report, 10." 
 1 ermd not shortened for n.ortjraK.u''s benefit, lo.",. 
 iimo allowed after abortive sale, lot!. 
 
Xll 
 
 CONTENTS. 
 
 CHArTEU XII. rUOOF OF MOUTCAOE ACCOUNT AND 
 NON-PAYMENT, 107-111. 
 A. Proof of iiiortgago account, 107. 
 
 MortKaR«> ix'poiint; liow ordinarily proved, 107. 
 Proof by assiftneo of niortfraRc, lOS. 
 Allidavit should show how money advanced, 108. 
 Parol evidence to show true amount advanced, 108. 
 Parol evidence to show true purpose of security, 108. 
 Allidavit by officer of company, 100. 
 Ti. Proof of non-payment within time fixed for redemption, 109. 
 When affidavit made. 105). 
 Affidavit l»y agent or solicitor. 100. 
 Company's agent, 110. 
 Affidavit l)y co-mortgagees, 110. 
 Bank certificate of non-payment, 110. 
 Effect of affidavit showing possession, 110. 
 Attendance for payment. 111. 
 
 m 
 
 CHAPTER XIII. OPENING FORECLOSURE AND STAY OF 
 PROCEEDINGS. 112—111). 
 
 A. Opening foreclosure liy action on covenant, 112. 
 Previous payment in full bars foreclosure, 112. 
 Previous payment in part does not bar foreclosure, 112. 
 Suing on collateral for part of money, 112. 
 
 Suit on covenant after foreclosure oi»ens same. 112. 
 
 Terms of redeniption in such case, 113. 
 
 I'rinciplos of opening foreclosure, 113. 
 
 Where mortgagee cannot restore estate, 113. 
 
 Where mortgag«>e can, but won't, restore estate, 114. 
 
 Costs of opened foreclosure, 114. 
 
 B. Opening foreclosure l)y r.'ceipt of rents. 114. 
 Receipt of rents liefore default, 114. 
 
 Receipt of rents after default but Itefore final order, 115. 
 Receipt of rents where successive periods of redemption, 115. 
 Rents taken in by re<eiver, 11(5. 
 lIow to avoid further accounting, 110. 
 
 C. Staying proceedings. 117. 
 Kefore judgment. 117. 
 .\fter judgnu'ut. 117. 
 
 The money must be jiiiid, 117. 
 What amount to be paid, 117. 
 Person applying nuist be entitled to redeem, 117. 
 Stay on motion by puisne mortgagee, 117. 
 Stay on motion by plaiutifl; himself. U.S. 
 1>. Enlarging time for payment. IIS. 
 Motions to enlarge. US. 
 
D. 
 
 )F 
 
 CONTENTS. XIll 
 
 CHAPTER Xin.-~C\>ntiuiie,l. 
 
 Where the mortgagco was at fault, 118. 
 Where good prosi)e('t8 of being able to pay, 118. 
 Whore the value is being greatly increased, IIU. 
 
 ( IIAPTEU XIV. FINAL ORDEK, 120—128. 
 How final order obtained, 120. 
 What is foreclosure absolute, 121. 
 Final order good until set aside or opened, 122. 
 Solicitor for pjaintiffs cannot re-open onU-r for defen- 
 dants. 123. 
 Purchasers from the mortgagee after foreclosure, 125. 
 Day to show cause in foreclosure against inlands, 128. 
 
 (CHAPTER XV. COSTS, 129—1.30. 
 
 Rul.' as to mortgagees costs, 120. 
 
 Right of mortgagee to costs is founded on contract, 120. 
 
 Right of mortgagee as against puisne incumbrancers, 130. 
 
 Higher or lower scale, 130. 
 
 Costs, mortgagees have been held entitled to, 131. 
 
 Costs of joint mortgagee, 131. 
 
 Costs of consolidated mortgages, 131. 
 
 The costs of his own trustee, 132. 
 
 Costs, mortgagees have been held not entitled to, 133. 
 
 Costs of unnecessary search of title, 133. 
 
 Costs of litigation not concerning the other parties, 133. 
 
 Unsuccessful litigations not authorized, 133. 
 
 ^lortgagee may be disallowed costs of reference, 134. 
 
 Costs of foreclosure suit after tender, 134. 
 
 Commission, 134. 
 
 Mortgagees have been ordered to pay costs, 134. 
 
 Costs of amending judgment, 130. 
 
 I'rotit costs to solicitor mortgagee, 130. 
 
 I'artner of solicitor mortgagee, 1.30. 
 
 Foreign mortgagee has to give security, 130. 
 
 PART II. 
 
 THE RULES OF PRACTICE RELATING TO FORECLOSUJt!- 
 WITH CASES AND ANNOTATIONS, 137—100. 
 Rule 141. 130. 
 
 Con. Rule 248, 130. 
 Con. Rule 1438, 130. 
 
 Distinction between writ and counter-cTalm, 139. 
 Rule 170, 140. 
 
 " In actions other than upon a niortgnge," 140. 
 
XIV 
 
 CONTENTS. 
 
 RULES OF PRACTICE— CoHt/»uicrf. 
 Rule 181>. 140. 
 
 ("liaii«e of wording, 140. 
 
 Sim-ly, iiliiintifl" rights nuaiiist, 140. 
 
 Snn 
 
 ■tv. risilUs iis n^'iiinst itlaintiff, 140. 
 
 Smi't.v, ri^'lits as agaiiif^t iiriiu-ipal <l('btoi-, 141. 
 
 Rule 1!)0, 141. 
 
 Con. Rule ;!(l(i, 141. 
 
 (Jcnoral rule as to holders of equity, 142. 
 
 IMu-cliasers of a iiortion of the mortgaged estate, 142. 
 
 AVidow entitled to dower, 142. 
 
 Mother of intestate, 142. 
 
 Mortgaji-or l>.v deiiosit of mortgage, 142. 
 
 Devisees l>y will, 14:5. 
 
 " Either upon "'"lion," 14o. 
 
 Notice of aiiiilication to add, 143. 
 
 In the Master's olliee, 143. 
 
 Qiiestions between eo-defendants, 143. 
 
 Rule 1 !»:•., 144. 
 
 Changes in wording, 144. 
 
 Inciniry as to the infant eestuis que trustent, 141. 
 
 Rule 15)4, 14r». 
 
 I'roeeedings where no iiersonal representative, 14o 
 
 Rule !!».-, 14"). 
 
 Scoi 
 
 le 01 
 
 rule. 14,"). 
 
 iln 
 
 Cases where adniinislrator ad litem appointed, 147. 
 le 2(i3, 147. 
 AnaloKv to ruli' 2('i:'> in mortgage action, 148. 
 
 Rule 332, 14S. 
 
 S 
 
 crvKc on so 
 
 licilor of judgment creditor, 148. 
 
 Rule :!.-)2. 14i>. 
 
 Time for reports to Vjeeome absolute, 140. 
 Rule 378, 140. 
 
 Foreclos\ire on sale, 149. 
 
 Sale refused:— 
 
 1. Where land is out of jurisdiction. 1.")0. 
 
 2. SubsiMiuent incumbrancer as plaint ilT, l.")0. 
 ;'.. iMpiitabU' nn)rtgagee, ir)0. 
 
 4. Sale not granti'd in absence of intere.,ted parties. 151. 
 Foreclosure refused: — 
 
 1. Against Crown, 151. 
 
 2. 1' ledge of chattels, 152. 
 
 3. Trust for sale, 152. 
 
 Neither sale nor foreclosure allowed:— 
 
 1. Mortgagee of railway, 
 Siieedy foreclosure. 153. 
 
 152 
 
 May pray for sale when, 152. 
 
151. 
 
 CONTENTS. 
 
 KTJLES OF l^RAGTICE-Cohtinned 
 Knit" :i7U, l.-,3. 
 
 XV 
 
 % 158. 
 
 ir)2. 
 
 Salt' iiiisti-ad of foreclosure, 153. 
 "The usuiil or niiy tinie," 'ir>4 
 AaM,n„.„ts f(„- sliorteiiinK time, 154 
 I.^nmnent reasons for shortening ti.ne, 155. 
 ">xten,l,„K t.n.e afh.- shorf.ninj, ],, ]n5. 
 
 Uu.n ,„^,nu.nt for in„ne.liate sale obtained, 155. 
 UuU' .ISO, l.,5 
 
 Oluect of deposit, 155. 
 
 ^"ourt ,na.v ,lis,,ens,. with .leposit, 1.5(! 
 
 ^^^_^--i-..neient reasons for dispensi., .,,,,.,,, ,,,^ 
 
 ^l*-.norandnn. 1„. defendant wishing sale 150 
 Jn.s,eenotexen.,t f. -on, deposit. ^ -.7 
 ^ J....a^does not depend on insn.eie.. of seeuri,, .., 
 
 Iuc,unhran,.er ad,l,.d d.-sirin^- sale. 157 
 Ivindal.le n.or(«aK,.e entitled to sale IJ 
 
 IJnle :;s:i. i.is. 
 
 f''^'''' *" 'lefVi.dant to e.,ndnet sal,. 1.-„S 
 
 J'inal ord,.r on ex parte motion, LIS 
 liule ;iS(i, ].-,«)_ 
 
 I'laintiff ,,,ti(led to order for pMvmenf r i ,• • 
 
 .. r,,| I'.i.Miient ot dehcienev. 15!) 
 
 . ', """■'«'t«"i- or person lialde," 1.-,!> 
 
 lJ:Z\:. .-.•t.n... .here no persom.l eovenaat, ... 
 
 <'i'i'dit no(i,e. Kll. 
 
 <>''.i''<'t an<l time „f notiee, H\2. 
 JJule .'ISS, !(;:.>. 
 
 '•i'^-iissal-.f a,.,ionon payment of prineipal ete K;-. 
 A<'.'l.'ia(,on of prineipal, Ki;!. ' - "'- 
 
 ■■ 'I'lic defendant may,"' 1(14. 
 ■• Hefore .indj;nient." 1(14. 
 •' I>no for principal, interest and eosts," JW 
 Ifnle ;jS!>, 1(14. 
 
 ^^tny^^of proceedings after jnd.a.ent hefore linal judgment, 
 IJille y»0, 1(15. 
 
 Default Huhse.iuent to stay of proceedings. I(i5. 
 
X V 1 
 
 CON'JENTS, 
 
 llULliS OF TKACTICE— Co»j(/Hi«?(;. 
 Kule Jiltl, lliii. 
 
 Itedoinption act ion, (k'ti'iidiiiit entitled to what j\idginoiit, lUu. 
 
 Itidi" 'M2, l(jr>. 
 
 Dt'lc'iidaiit ill I'cdeiniitioii iictioii lias optional roiiu'dy, 105. 
 
 Object of ruif, Itlti. 
 
 JHsiiiisisal ol' bill to rcdoeiii, liiO. 
 
 Action to rtMlcciii liy second mortgagee, KiO. 
 
 llule 3!)y, m\. 
 
 One month allowed Avhcii further time necessary, lUU. 
 
 lUile 3U(!, 1U(;. 
 
 Transmission of interest or liability, lOti. 
 
 Jiule 595, 107. 
 
 rrocedure for judgment against infants, 1G7. 
 
 " Some of the defendants," 107. 
 
 Are infant defendants always entitled to inquiry V 107. 
 
 Master must reiiort finding ..s to infant, 108. 
 
 Kule inaiiiilicable to case of lunatic adult, 108. 
 
 Kule 590, 108. 
 
 I'raeciiie judgment on default, lOS. 
 
 "Admits the execution and other facts," 109. 
 
 Ordinary relief granted under rule 590, 109. 
 
 Xo injunction on praeciiie, 170. 
 
 Uule 141 shouUl be followed, 170. 
 
 •' Where no reference as to incumbrances, etc.," 170. 
 
 Amending or setting aside prsecipe judgment, 170. 
 
 Kule 009, 171. 
 
 How judgment may be obtained in general, 171. 
 
 Injunction, how appliiMl for, 171. 
 
 I'erson of unsound mind as defendant, 171. 
 
 Rule G19, 171. 
 
 What foreclosure judgment contains, 171. 
 " Where a reference is re(iuired," 171. 
 " In general terms," 172. 
 Master to whom referred, 173. 
 
 Kule 035. 173. 
 
 Foreclosure judgments entered at full length, 173. 
 
 Kule 030. 173. 
 
 E.v parte orders in foreclosure entered ut full length, 173. 
 Effect of not entering order, 173. 
 
 Kule 037, 174. 
 
 Kule 04(5, 174. 
 
 Fowor of Court lo direct references at any stage. 174. 
 
CON'l'EN'rs. 
 
 XVI I 
 
 liULES OF PRACTICE-Co«//«».,/. 
 Hulo 744, 174. 
 
 Master to en(,nire «s to incumbrancers and report, 174 
 Upon a reference," 175, '. ^f-t. 
 
 "A judgment for foreclosure or sale," 175. 
 '■ WIuj other than the plaintiff," 175.' 
 " Subsequent thereto," 170. 
 
 Subsequent incuu.brancers not to be defendants to writ. 177 
 «iilo 745, 177. 
 
 Registrar's and sheriff's certificates 177 
 
 liegistmtiuu of judgments; executio.', creditors of mortgagee, 
 
 What writs included in sheriff's certificate, 178 
 Certificate of sheriff; where chattels real, 178. 
 l>ate to which certificates l)rought down, 17!). 
 Interests acquired pendente lite, 179. 
 Rule 740, 179. 
 
 Master to add incumbrancers, 179. 
 "All such persons, etc., 179. 
 ChLsses of persons added, 180. ' 
 
 Execution creditors, ISO. 
 Unregistered subsequent incumbrancers, 180. 
 Registered subsecnu-nt incumbrancers, ISO. 
 Heirs of subsequent mortgagee, 181. 
 Heirs of first mortgagee, 181. 
 Representatives of deceased partner, 181. 
 Mechanics' lien holders, 181. 
 Co-tenants of tenant in common, 181. 
 I'ersoii iu dual capacit.v, 182. 
 Rule 747, 182. 
 
 14 days to set aside ord(>r making party, 182. 
 I'riority lost by not moving against order. 1S2. 
 AVhen appeal from order heard, 183. 
 Form appeal should take, 183. 
 Rule 748, 184. 
 
 Appointment to be served on parties, 184. 
 Rn' • 749, 184. 
 
 "Njn-nttendance treated as a disclaimer, 184. 
 
 ■•ules as to disclaimer, 185. 
 r ' ' TJiO. 180. 
 
 .Alasior to take accounts and settle priorities, ISO 
 Rule 751. 180. 
 
 Account proved by oath of assignee of mortgage ISO 
 Rule 752, 187. 
 
 Contents of Master's report, 187. 
 
XVIU 
 
 CONTKNTS. 
 
 RULES OF VRXC'TICE — Coiainued. 
 Utile 7ri^{, 1S7. 
 
 Subse<iu(>nt iiocdiints iind .sul)Soquont costs, 187. 
 Iiisuriiuco prcniiuins, 1S7. 
 
 l{nl(> 754. 1S8. 
 
 Master to settle coiiveyauce on sale, 188. 
 Premises to lie sold, 18S. 
 
 Tliile 7.'t."), 188. 
 
 Ai)i)lieatioii of piireliase money, 188. 
 IM'iorities of execution creditors, 188. 
 IJule 7r.C.. 18J). 
 Accounts on judKnient for redemption, 189. 
 
 11 
 
 ilemiition not allowed exceitt on payment, 189. 
 
 edemi 
 
 Kedemption, disputed right to, 189. 
 
 Rule 
 
 (i>r 
 
 199. 
 
 Proceedinjis in redenipti<in action, 190. 
 
 Last incumbrancer treated as owner of equity, 190. 
 
 Uule 7.-)8. 190. 
 
 Deeds to lie delivered to party redeeminj:, 190. 
 Assif-nimcnt and conveyance to party redeeminj,', 1'.>L 
 Allidavit of mortgagee on delivering deeds, 192. 
 
 Uule 84r>, 192. 
 
 .Tudfiment f(u- possession enforceable by writ of posses- 
 sion, 192. 
 
 Itule 847, V.)n. 
 
 How writ of possession issued, 193. 
 
 :Materiiil on which obtained. 19.'?. ' 
 
 Wl 
 
 len new 
 
 writ obtainable, 193. 
 
 Kule 848. 193. 
 
 Writ of possession sujiei 
 
 Rule 1107, 194. 
 
 Taxation of costs on foreclosure, 194. 
 
 Kule 1108. 194. 
 
 When execution \irgent, 195. 
 Uules 1109, 1170, 1171, 19.'). 
 
 Items improperly allowed, 190. 
 
 ■sedes writ of assistance, 194. 
 
 M 
 
CONTION TS 
 
 XIX 
 
 TAKT III. 
 
 A COLLECTION OF STATITLS ANO SKCTIONS OF STA- 
 TUTES IX FOiU'E I.N ONTAKIO. AND KELATINCJ 
 TO THE LAW OF .MOKTOAOES WITH CASES 
 AXI> ANNOTATIONS, ltH-:i(!4. 
 
 U. S. O. IS'.iT, c. VJl (.Vii Act rcsin^fliiig .MnrtKJiKt's of Ueal 
 Estnti'): 
 
 Inti'iiirclMtiiiii" scctitin 1: " pidiii'iMy," '■land," "(nnvcy- 
 iiiicc," '• cniivcy," " iiinrt>:!i>;«'," " inortKiiKo iiioiu^v," " inort- 
 ^';i;:((i'," " iiiciit.^iij.'''<",'" '• iiicnnilirancc." " iiicnniliranccM'," 
 " iii(prt;:ii;ro(' in possessimi." 1!)!l-l.M<l. 
 
 .\ssi}rnni('nl nf niiirt;;iij;'i' in lien of I'ccnnvcyiinfc, scctidU 
 2: " where a ninrt.i:!i,!,'iii" is cntitlod to rcdccni:" certiticiile of 
 jiiiynient: reconveyance: decisinn in Teevan v. Sniidi; anieiid- 
 ineut to Iinin'rial Act: conveyance liy lirst nmrtirafree to 
 defeat second: "on llie terms:" wlnit covenants in assijj;n- 
 ment ; form of conveyance: treatnuMit <d' e<dlateral seenrities: 
 to wlioni transfer to lie made: form of order: nntrtjrajree in 
 [lossession: stiimlations to contrary invalid, LMMi-UdS. 
 
 ro\v«'r of mort^ajior to iiisjiect title dceils, section .".: former 
 rule: riglit to see mortgajre deed: director of mort;:a.uor-com- 
 liany, 1st day of July. 1^*^>1<>. :itlS--<>'.». 
 
 Ajiidication of insurance money, section 4: Edmonds v. 
 Hamilton I'rovident: Metroiiolita.i linildiuK Act: rights of 
 
 mortgagee to 
 
 nsurauce money: 
 
 it of reinstatement: 
 
 a ge : 
 
 retention as 
 
 aitplicatiou towards discharge of nmri 
 collateral security; can nK)rtgagee consolidate for inirpose of 
 alisorhing insnrani'e nnineyV can mortgagee bring action in 
 1ms own nameV refusal hy mortgagor to assign policy; when 
 
 mortgagee nisures 
 
 his 
 
 inte 
 
 foreclosure. •_'(»!»-212. 
 
 Covenants to Ik- imjilied in niortg.ige, section 
 
 mortgage 
 
 li.v lieneticial owner; coven.ants under Short l''ornis Act: 
 
 danger of using implied covenants 
 
 action on ini 
 
 idled 
 
 cove- 
 
 nant for (juiet possession; mortgage of leasehold; implied 
 '•ovenants are joint and sevei'al; nature of .joint and several 
 covenants: "more mortgages than one"; joint and separate 
 claims, 2l2-li1(i. 
 
 Application of sections ."> and (i, section 7: 1st July, ISStJ 
 
 21() 
 
 Merger, sections S, !) and 10; release of eciiiity without 
 merger; purcliase under execution, etc.; not merged as against 
 when t:rst mortgagee acquiring e(iuity; priorit.v under Registry 
 Laws not affected; comparison of onr law with that of Eng- 
 
XX 
 
 CONTENTS. 
 
 A COLLECTION OF STATUTES, lCi(;.-C<)»//i/i»,r/. 
 
 laud; how Ioiik is inortgaKC dclit kept iilive; effect of purchnsp 
 by mort>;ii >?(•(> at slieriff's sale; extent to wliicli doctrine of 
 merger is affected; Rule as to merger, lil()-21J>. 
 
 How executors, etc., may deal witli mortgage, section 11; 
 in wliat circumstai ces; payment having heen nuide to wliom; 
 convey; assign; reiease; discharge; origin of section; h'ase- 
 hohls, how affected; assignment by executors; saU> by execu- 
 tors; l)e«iuest of Inue'jtedness on mortgage; discharge by 
 executor of mortgage by himself to estate, 21l)-'J12li. 
 
 Certificate of payment valid at whatever time given, section 
 12; scope of section; " if in confornuty with the Uegistry 
 Act"; "be valued to all intents"; statutory discharge; regis- 
 tration of discharge; operation of discharge; discharge when 
 mortgagor has conveyed equity, 222-221. 
 
 Keceipts of mortgage, sections 1^, 14; advances on joint 
 account; effect of section 13; nature of joint tenancy; joint 
 tenancy in purchasers; joint tenancy in mortgages; change 
 effected by section 13; siimmary as to receipts of mortgagee; 
 Mill Courts go behind "joint account" clause, 224-230. 
 
 Mortgagee's right of distress, sections 15 and 1(5; limited to 
 goods of mortgagor; limited as against creditors to one year's 
 arrears; mortgagee to relinquish to ollicer or assignee; re- 
 imbursement of oHiccr or assignee; notice of sale of goods; 
 distress and attornment; operation of section 15, attornment 
 clause; Hobbs v. Ontario L. & D. Co.; operation of section 
 Ki; supposed disadvantages of attornment; attornments to 
 two mortgagees; forms of distress and attornment clauses; 
 distress clause; sham attornment; attornment not intended 
 to enable mortgagee to collect capital advanced, 230-235. 
 
 Payment of principal after default, section 17; exception 
 in case of ex[)ress agreement; exception in case of accelera- 
 tion; 1st July, 18S8; change elTected by section 17; when 
 mortgagee not entitled to notice. 235-238. 
 
 Powers incident to mortgages, section 18; Lord Crau- 
 worth's Act; power of sale; power to insure, 238-240. 
 
 Receipts for purchase money on sale under power, suflicient 
 discharges, section 19, 240. 
 
 Notice before sale under power, section 20; to whom notice 
 to be given; where to be served; notice to executors; notice to 
 infant, 240-241. 
 
 Improper exercise of power of sale not to defeat title of 
 purchaser, section 21; purchaser aware of irregularities, 241- 
 •212. 
 
 Form of notice of sale, section 22-242. 
 
CONTKNTS. 
 
 XXI 
 
 A COLI-KCTION OF STATIITF-^S. F/rc. Cmtiiniril. 
 
 ItcKi^itrntiitn of notice of siilc. sections L':{-'J4; nllidavit for 
 I'CKistnititiii: ccrtiticd copies ns evidence, li-l'J-'J-l.'?. 
 
 Alipliciition of imrclnise money on sale, section 2'>; priority 
 u( ciainiiints. LM;{-LM4. 
 
 f'onveyiince to purchaser, section 12(1; what vendor under 
 power can convey; conveyance by etiuitahie niortgaRec; niorl- 
 ^'a^'ee of h'astdndds, 'J44--45. 
 
 Owner (if cliarue nniy call for title deeds, section 27, 245. 
 
 Restri<te(l iip|dication of powers of sale and insnri nee, 
 section -S, LMr>. 
 
 Ainemlnienis to statutory jiower of sale, section 20; elfccl 
 of section 2U; snmnuiry of provisions as to power of sale, 
 24fi-247. 
 
 Taxation of niortnanee's costs, section .'^O; after costs paid; 
 provisions of Solicitors' Act; application of section 1, 247. 
 
 No further pnceedinj;)-' after notice of sale, section 31; 
 deniainl of luiyiiKMit; order allowiiifj further proceedings; 
 proi)f (in which order granted; style of cause; exception in 
 favor of proceeding's to stay waste; niortnaKC must provide 
 for notice liefore section ai)plicalile; advertisement of sale a 
 further proceeding; writ served after notice; acts done 
 simultaneously; aliamlonment of sale notice, 24S-2r>(). 
 
 I'aynient to lie acce|ited if made in terms fif notice, section 
 .">2; taxation of costs; effect of section; (>tTect on acceleration; 
 effect on claim for interest on notice; i'ffect on costs, 2r)0-2r»1. 
 
 Purchaser of inortsnpe may set up defence of inirehase for 
 value without notice, section ."i.">; necessity for section; differ- 
 ences of opinion amonj: jud^'es; decisions since section enact- 
 c(l; excejition as •ittainst morljraKor, 2."l-2r»2. 
 
 Time for ^'if'slioniny: sales under iiower limited, section ^4. 
 252. 
 
 R. S. O. 1S!»7, cap. 12<! (an Act resiu'ctinc Short Forms of 
 MortKaKes). 
 
 Interpretation, section 1; "lauds:" "party," 2.";]. 
 
 T'se of schedule, section 2; mortHiiKe containiuj,' form in 
 column one, to lie construed as coutainiuK form in column 
 
 two, 2ri;5. 
 
 Mort>;age failing to take effect under this Act, section li, 
 2r.3. 
 
 Schedule to form part of Act, section 4, 253. 
 
 Form of mortpage, Schedule A., 2o4. 
 
XX 11 
 
 CONTKNI'S. 
 
 A COLLECTION OF S'l'A'lT'lKS. VUc-lUniiiinir,!. 
 
 ('(ivnianls nnd (liifctiniis as li> their use, Srliodiilc H . 
 L'r)4-'J,S*2. 
 
 Diri'dions, \-'.\\ siilislitnlion of niunt's; fcininiiic for miisoii- 
 liiH', pliinil I'lir siiiKiilar; I'Xpi'fss i xci'iitioiis or utlier t-xiiroKS 
 (|iiiiliti(iiti(His, :'."i4. 
 
 Ifiir of (lower, cliniso 1: I'lTcd of wire's Imr ol' dower in 
 inorl^iine; dower in siirpliis. lio."). 
 
 Iroviso for redfiniilioii, eluiise 1'; const i-iietion of jiroviso; 
 proviso extcinliiiK lieyo'id ."» years, '2Tt{\'27>~. 
 
 Covenimt, >;eneriil form, elniise .">, -T)S, 
 
 Coveinmt to |iay, elaiise 4; the personiil eovenjint; stiilute 
 of Jiniitiitioiis iipidiealde to; siiinj; on lovenant in Division 
 Court; corporate si'mI. 'jriS-li,'!}). 
 
 Covenant K'»od title in fee, cliinse .">; effect of cc)venant in 
 working estoppel, '2r>U-'J*'M 
 
 CovenjinI ri):ht to convey, clanse I!, litiO. 
 
 <'oven;int uniet possession, clause 7: distinction lietween 
 leasing powers nnder clanses 7 and 14, U(i1-'_'ttL>. 
 
 Covenant, free from incnmlprances, clause S; iilisolnte effect 
 of covenant, litill-lifll!. 
 
 Covenant, further assurances, clanse U, 2i'i'.i. 
 
 Covenant to jiro luce title deeds, clanse U», lit!4. 
 
 Covenant, no iict to encumhei', clanse 11, 1,'()4. 
 
 Covenant to insure, clause lli: comniou miule of luortKaKee 
 insurance; nnuM^'afze cl;iuse; ori>:iu and form of clause; effect 
 id' covenant without fornuil assijruinent: effect of mort(?aj;»! ■ 
 undertakinj; to insure; sei)arate insui'ance liy mortKUK'T and 
 inort;raf.'ce; rif,'lit of suliro;;ation, I'tl.'i-liti)). 
 
 Kelease of all claims, clanse V.i, 2(>!). 
 
 Proviso for power of sale, clausi' 14: power of sale without 
 notice; new trustee in lietter case than assignee; Ke IM'itisli 
 Canadian L. iV: I. Co. v. Kay; ni.'cessity li>r entry; iiower 
 exerciscalil(> on one month's defaidt; exercise of jiower can 
 not lie held iis !i ludlity; execution creditors are " iissijjns "; 
 " at his or their usual or last phu'c of residence"; " hy public 
 an<'tion or |)rivate c(Uitract"; "and shall pay the sui'idus," 
 l'7()-277. 
 
 Proviso for distress, clause I'l; written v. printed pro- 
 visions, 277. 
 
 Acceleration clause, clause 1(5; optional hut n.ortgngec 
 hound by his option; relief against acceleration; acceleration 
 for'other causes than non-payment, 278-281. 
 
 Proviso for re-demise, clause 17, 281. 
 
 h: 
 
CONTKXTS. 
 
 XMII 
 
 A COLr-KCTION OK STATUTKS. VVn. --Coiitinn,;!. 
 
 U. S. O. INii", niit. Jl> (Tlu> Vn't' Oitints tiiul lldiiiostciuls Aft). 
 No |i(i\>cr in lnciilt'i> to iiiui'l;;aK»' lii'inri' patent issncil, 
 Hcctioii 1!>. lis.'!. 
 Wil'i- niMsl jiiin in inoi'lKi'K'' "I' iK'nicslcaii, scctinn "Jtl; power 
 
 to nioi'iua);r: ri^lils of locnlci', 'JN.'!. 
 
 \l. S. (>. 1,S!»7, cMp. •"• <'l'l"' .Inilitnlnrt" Act). 
 
 .Inrisdirtioii of Court in niorlKUP' <'iihcs, section Utl, I'SI. 
 
 Rules of liecision to lie lllose of (-'ouit o{ CUiuwcvy, Aih 
 March. ts;!T. secti..n I'T. I'.SJ. 
 
 Movljrii^'or nniy sue in liis own luime for rents, etc., section 
 ."N; former law, '2Ho. 
 
 Li.s pendens not reciuired in foreclosure nction. section '.'7. 
 
 ::sn-2st!. 
 
 H. S. (>, 1S!(T. lap. ."."> (The County Courts .\(t(. 
 
 .lurisiliction of County Court in niortKiiKe iictions. section 
 2.'!; eipiity .iurisdict ion of Court, liS7. 
 
 It. S. (). iSJtT. Clip. (;i» (The IMvision Courts .\cl). 
 
 SuiiiK I'oi' sepiirate instaluieiits of interest, see lion Tit; i)ro- 
 cess liy jiKlKnient summons not availalile, liSS. 
 
 K. S. (). 1S!»7. cap. 71 (The Settled Estates Act I. 
 
 Fower of Court to imthorize nnu'tyaire of settled estate, 
 sectiiui 14; for purpose of raisini;; money for rejiairs; or dis- 
 (•hiirKin;; inciimhrances. 2S(). 
 
 Court may sanction actions, iietitions to T.ej^islalure, ete., 
 and m(U'tK!i;;iuK to jiay costs thereof, section I'l; construction 
 of net, L',SJ»-2!H». 
 
 Court to direct what jiersiuis are to «'xeeuie the mortgages, 
 section IM. L'UO. 
 
 ^lortgagfs under this Act must he registered to take effect, 
 section ."/J. l!il(». 
 
 Mortgages under this Act nu!>t have heeu within juiwers 
 of settler himself, section lis, I2!t(t. 
 
 .Mortgages under this Act to lie valid jifler complet 
 
 m|)leti(Ui. 
 
 section 3i>, 'JltO. 
 
 Onh-rs lor mortgages, eti-., under this Act not to be in- 
 validated for want of jurisdiction, section 4(»; effect of 
 irregularities, L'!)l . 
 
 R. S. O. 1S!t7, can. 72 (aiV Act resi)ecting Limitation of Actions). 
 
 Acti 
 
 (uis oil covenant within ten years, section 1 (h), -91. 
 
 R. S. O. ISO 
 
 7. cap. 77 (The E.xecution Act). 
 
 Power of sheriff to .seize mortgages 18, 292. 
 
 I 
 
w 
 
 XXIV 
 
 CONTENTS. 
 
 A COLLECTION OF STATUTICS, KTc.^Conliniifd. 
 
 I'a.vineiit to shcrill' liy person linble cxoiioratos pro tanto, 
 section 11). li!)2. 
 
 Notice of seizure to lie sent liy slieritl' to Ke^iisirav, seeticn 
 I'.'J; I'onn of notice; effect of re^'istnition, 2{)'2-'2',)4. 
 
 Notice to be served liy sheriff on uiortgnsor, section 2-1; 
 seizure of nioi'tjJtiij^e to lociitee, 294. 
 
 Action hy slu-rilT on niortga),'e for sale or foreclosure, sec- 
 tion 2.1, 2U4. 
 
 Cer(i(icate of expiry or setting' aside of ti. fa. to he rogi3- 
 
 tered, section 2ti, 2!M. 
 
 Verification of certilicate, .section 27, 204. 
 
 Fee for registration, section 28, 2!t."». 
 
 I'ower of sheriff lo sell e(iuity of redt-niption. seel ions 29, 
 30, 29.'5. 
 
 Effect of sale of eciiiity hy sheriff, section ol: estate vested 
 in purchaser; ri;:ht to demand discharj;:e on payment of 
 mortKajre, form of ci'rtiti<ate of dischar>re, 2!).")-2!M;. 
 
 JJifiht of nmrtgasee to pnrcdiase at sheriff's sale, section 
 :52; effect of pin-chase hy nmrtjia.iree, 29<>. 
 
 li. S. <). 1S97. cap. 119 (Tlie Law and Transfer id' rroi)eriy Act). 
 Civil penalty on luortf^aire:-, etc., falsifying or concealing 
 evidence of title, .^eelinn ■\'.): crinnnal penalty lor sr.ch fraud. 
 297-298. 
 
 11. S. (). 1N97, cap. 12;{ (The Partition Acti. 
 
 Mort;;'af;'ees and (dhers lialde to suffer parliiitm of laiuls, 
 section r>; rif^hts »( nn>rtf;ii,i;ecs in such eases, 299. 
 
 Not necessjiry to join niorlitajri'e in piirtition action, section 
 21; case of luortKajree of mie undivided share, .'59(1. 
 
 K. S. (). 1S!>7. call. 129 (Tiie Trustee Actl. 
 
 Charjic nf real esta1(> fzives trustees power to mortgage, 
 section 1(!; relation of power to sell ami i)ower to mort- 
 gage', .'iOl. 
 
 Triinsmission of power t'; survivors or successors of trus- 
 trees, section 17, .'?<>2. 
 
 lO.xecntors to have power in sinular cases, section IS, .'502. 
 
 .Mortgagees not lioinid to '.niuire into correct exercise of 
 power section 19, ;{(I2. 
 
 Mortg.ages nnide prior to istli Septendier, lS(t."», section 
 29. :]92. 
 
 ^^'ho exercises power to nnu'tuagc when no trustees named, 
 section 21, SO."}. 
 
 ivxercise of jjower to mortg.'ige hy adndnistr.-itor with will 
 annexed, secti(nis 22. 2o, .'id.'j. 
 
 :fiS!!Wa*tP^ 
 
 B'B .ii i' v:« ! " i ! ' ^!fcl-IJ".y! ! !l 
 
CON'I'EXIS. 
 
 X X V 
 
 A roiA.V.C.TUm of STATUTKK, Etc-Co,,//,,,,,,/. 
 
 ]{. S. (). IS'.H. <ii|.. i;5(» (Thf Tnist('t!s liivi'stment Art). 
 
 Power of trustees to iiivesi in .securities on land, section 2; 
 must lie a first eli(.r>r.. on lan.l held in fee simple; must bo' 
 otherwise a propel' and re isonatde invv'stinont, 304. 
 
 If. S. (). i,s!»7. ,.:,„. i;".;; ,'»-.,, r,,.,, j.,„.,^.,,j. i,i,nit„tio„ Act). 
 
 No entry (,r adiou, hut within ten years after rif,'ht accrued. 
 se<ti,.n i; foreclosure acti,,n; redeni|iiion action, :W')-30U. 
 
 When rij;ht deen.ed to have accrued, section 5, mortgagor 
 not irciiled MS tenant at will; occupation of cestui <iuo 
 trust, :J(I(;. 
 
 Arrears of rent or interest, section 17; not recoverable for 
 "ore th.'.u six ye;irs; arrears of rent: rents charged on land; 
 • innnith's; ii..r.son;il annuities; money payable out of land; 
 "iiert'st on legacies .-harged on lauds; tim.> when interest 
 li.'gins to run on legacy; interest on mortgages; money paid 
 ■ nt.r Court by r.ailway company, arrears out of; intere.st 
 ■"I 'i"»iey .secured by vendof-s lien; interest on judgment 
 "iHu land under li. fa.; "the per.s.ui by whom the .same 
 was payable," .'{07-311. 
 
 Kx<'C'ption in favor of subsequent nu.rtgagee wheiv prior 
 "He in iM,s,.e.ssiun. .section 3S; explauati.m of .section; must 
 '■""I" or relief within a yo:n: judgment .reditor may be the 
 prior incuinbrancer, 312-31;;, 
 
 M.u-tgagor barred by possession of m.,rtgagee for 10 years 
 s.".tio,. 1).; what is a mortgage within section 10; possession 
 nnist be acpiin^d by mortgagee, qua mortgagee; can solicitor 
 "< .Mortgag.u- be deemed mortgagee in po.ssession; the pos- 
 Mssiou of mortgages passes to their assigns; distinction 
 l'.'tw.rn rights of entry of mortgagor and mort.Mgee; pt.r- 
 ••liase from mortg...gce under power of sale; -Wt of sent 
 lor administration; what is su.lici,.nt acknowledgimu'it bv 
 ■Mortgagee; a.knowledgmeut to third person; a,...,u,nts kep't 
 b.v mortgage,.; po.ssession of part of ,,roperty l,v mortgagee- 
 '•••"^ time be extended by terms of original mortgage co,i- 
 ••■•"•': .l.snbilities of n.ortgagor; effect of bankruptcy on 
 mortgagors rights, 313-31.S. 
 
 Ackliowledirnieiit to one of scverMl i,n,..t,ro , 
 , •. . , s<\ti.il nnutKagors, section l!(i: 
 
 tlie ,..,uity ot re.h.mption is an ..iitiiv whole, ;!I,S 
 
 Acknowledumen, by one of several •.gagees, 'se.,ion U! • 
 
 •"•'^"""''"'-'"""f ^'y »■ two joint mortgagees, :;n,. 
 
 I't'fiod of limitati 
 
 iiKM'tKagee may enter 
 payment; when inoiiev 
 
 ion agjiinst uiortgag 
 
 ee, sections '2'2 and 23- 
 
 '!■ sue Mithin 10 
 
 alistied 
 
 (•hargei 
 
 .vears from last 
 
 ami 
 
 '•Igm .-liiil oliject 
 
 legacies to be de. 
 
 Died 
 
 ■^'••••""i I."-'; change eU'e.'ted 
 
^^ismf;mWWmii 
 
 x\\ 1 
 
 CONTKNTS. 
 
 A COIiLECTION OK KTATUTKS, Vvw.—roiitiinic^l. 
 
 Iiy section 23. natiitt' <ii)t'riit('s ;\ r( iiveytnicc tn iiiin'tga>;<»r; 
 
 claiiiiin;; under ii niortfjiiflt'; forerlosnrc: lutiun on (•(tvonnnt; 
 .inilfiMiont : <'liarKe I'or local iniipruvcnicnts: vendor's lien; 
 money charged niion or i)ayalile out: leKac\ liow far -within 
 section li.'!: lej,'acy not cliai';j;c(i on land as williin section -'•'<; 
 legacy inclinles residue or share thereof; charge of delits 
 Mill not revive barred legacy: former rule as to legacies; 
 " jireseiit right to receive:" uftei' a nresent I'ighl acerneil; 
 mortgage without redemise when right to enter accr\U's; 
 where lands vacant and in redemise: iiayment \>y whom 
 made: distinction hetweeii sections -'2 and ■_':*>: ijaymcnts liy 
 mortgagor after he has assigned the e(|uily: paynn'Uls liy 
 tenant for life of th(> einiity: effect of jiaymeni liy one joint 
 owner of eiiuity: agent to pay interest: iiayment to second 
 mortgagee hy solicitor of lirst mortgagee: jiaynient of interi'st 
 to nuirfgagee- third person in iiossession: diffei'cnce lietM'een 
 paynu'ut and a<-knowledgnient : !iy whom acknowledgment 
 may he given: acknowledgment liy tenant for life: agency, 
 proof of: acknow lc(lgments to whom made: Mill ackiioM- 
 ledgnienl to mortgagor by third person in possi-ssion avail 
 mortgagee: aci^nowledgment, how made: acknowledgnu'Ul 
 must be intentional: case where mortgagor jmd mortgagt'c 
 the same: effect of insolvency of morigagoi-: locatees of the 
 <'r<iwii: effect of issue of jiatents to mortgagor or nmrt- 
 gagee, .•'.l!l-:!:!4. 
 
 'I'inu^ not to be enlarged by exiiress ti'usts. section 24: for- 
 mer law as to: effect of trust for sale and iiayment of debts, 
 
 l']xpress ti'usts, sei-tion :>(i: niorlgagcc in pussession how far 
 a trustee: mortgage by way of tiaist for sale, .").'!r»-.ir)<5. 
 
 R. S. (). ISitT, cap. i:U rriK A'endors and i'urchasers .\cl). 
 
 Proof of discli.'irged mortgages by memorials, secti(m 2, P,PtC>. 
 
 R. S. (>. 1S!H, 
 Deeds). 
 
 ;l|i 
 
 i:'.T (An Alt 
 
 respei 
 
 ting the lustodv of Title 
 
 Deposit of receipts for payment of mortgage money, 
 iection !•, :i:!ii. 
 
 1{. S. (). lS!t7. .a]., ins (The Land Til'es Ad). 
 
 Applic :ition by niortgiigee to have UKirtgagor registered as 
 owner, section S; mortgage by administr.ator to pay his own 
 
 ilelil, .i,M. 
 
 Land registered subject 1o niortg.-iges, entries to be made 
 secticni 2!>, .nnS. 
 How cancellation of nmrtgage entered, section '.W, liliS. 
 
COXTKNTS. ^^^.jj 
 
 A (^OLI.I-.CTION OF i^TMHrEH. En:.~C,mtinue,l. 
 
 I'.iwor of iv-islcicl nwuvv to iiinitKMKe. sccti,.)) .•]:!: f„riii 
 "f lunvt^nixr- inuii-.-i.uc h,v aLsolnto dcnl; fixdiivs <-„veroil l.v 
 iiiortK;i;;v, ;;;',s-;!;;<». 
 
 Iinplinl .(.v.'iiiiiits ill iiinrtiv,);;,. (cliiirsc), section .".-t: cuii- 
 
 slni.-lini, ,,r .oviMiiiiil; 1 t^imors ri-iit |„ ,,„iei ,.„ j„_v'in,Mit : 
 
 iiinri,i;;i;.'nis t lajislcrcc iKit lialilc, ,",; !!»-.• MO. 
 CuvrlKiiits iiii|ili<'<l i;i lii,,|-|^',-|;r.' of jcilsciinl.l, scclioii ;!.-,, ;{-(0. 
 
 Ui^'lit ..r tMitry in iiiorl.i;.-!-.',. ],y ,ii;,i-,.. se.-lioii .-ill: toiiiiiils 
 <>( iii<irti;ii;;(ip. .'Md-.';-! 1 . 
 
 liiiiht of fnrcclosiirt' in iiioi-lj^.-i-t.,. h.v cliaryv, sccliiju .">7, ;!-ll. 
 
 I'ow.T of s.il,. in niori-ajicc by .•li.-ir-,.. section .'IS; v\- 
 
 tiiiuiiisluiicni ,,!■ ninri.i;,-i-„r-s liilc l,v s.-ile m- toivlnsniv; ni.ticc 
 
 . of s;i!c to iiii.rl>;:i.uoi-; st;iy of iiroccciliiiKs l.y tciidcr, .•Ml-;!42. 
 
 I'riorily nf iciristcred ciiar^'cs, section ;!<», :Mi>. 
 
 •Not in- ccssMtion nf ,h;,i-..s, section 4(1; ..nl.T directing'. 
 
 ]oi-;il niasic!' oT titles to iioliiy i-ess;ilion. .'Ml'. 
 
 UiKlils to dower ,,r wile ,,r tiMiisreree ..i' .'(|nity. section ."(I. 
 
 IJi.irht ef niori-;i.L;ce to 1 rjinsrer cli;ii-;:e, section T)!, ,'!}:!. 
 
 I>"V(dnii.in of cli;ir.i;vs, secti.ni CO. .-ti:;. 
 
 S.'iznre nf (inir-, l.y sliei-ifC. section (•><;, :m:;. 
 
 ^ <'i'ili<';ition of inorl;:;i.ue or clnii-.ue, sdiedule. rule li."; 
 .•iitestation of nioi-tt:;ij;-e, :\4-\, 
 
 N iTilicMtion of trnnsf r of cinirue, si'liednle, niie L'C, ;!44. 
 ^■e^ili^,•ltion of discli;ir,i;v. scliednle. rule I'S. ;54.-. 
 
 ^''''■''''="' '■ iiiciinihi:iii,(. nnd cessation llnTcof. scliednle, 
 
 I'lilo .■!■■">. lilTi. 
 
 '''■'■'''''•" ■ 'li^ii-e to lie under seal of Master, contents, 
 
 s.jicdnje, rnle 1 1, ;|-|."). 
 
 •''•""•'■'linv where certilicale lost: scliednle. ml., -i;;: cstody 
 of certili<.;ile of .-Ii,, r-e : n;ort u.-i ^,.e coinoellahle to i.rodin-M 
 ecrlllicMie, :',{(■,, 
 
 K. S. (). ]SU7, cap. 1.-,:t ,'ni,, .\i..,.iiani..s- Lien .\ci). 
 
 •.='■11 jis against prior i .t,i;a.L:ee, si.ction 7, :;4<;-:M7. 
 
 I-it'ii on insiiraiK.- moneys held hv prio 
 .^, ;!47. 
 
 pnoi' ino|.t;.'a.L:('e. section 
 
 Men h 
 
 1.^ pi'iority over snlise,|iient iiiorl; 
 
 ^•■•■lion i;;. remedy of lien hold 
 •■"iilined to increased value :!n 
 
 ar<'>^ and advam 
 
 <'!• a«.|ins( [irior niortsaKei 
 
mmtr^immmmmm 
 
 xxvm 
 
 CONTKN'I'S. 
 
 A COIiI.i:CTION OF HTATUTKS, FAr.~Co)iti,nir>h 
 It. S. O. 1S!)7, cap. I(i4 (The Dow.t Act I. 
 
 lOflcct of Imr of dower in niortfjiiKo, section 7: bar of dower 
 ill Kocoiid Miortjiiifie; refui'iiiiilioii of iiiortfra^re deed by inser- 
 lidii of bar of dower. ,">4S. 
 
 Dowel' ill surplus, seetioii S; contriliiitioiis by dowress, 349. 
 Siiri»liis may be pni<l into Court, section !t, ;'.4n-.'i.")(». 
 Mortjia^'e witliout dower where wife in asyhiiii, section 11, 
 
 Wife living aiiart, luort^'aKe witliout dower, seciion lli, ooH. 
 
 Order wiiere wife a lunatic, section i:i, ."i.")!. 
 
 Order where wife not cunlinetl, sec'.ion 14, '.)7}\. 
 
 I'^irtlier orders for other niortjrajres, section l-l. ."irtli. 
 
 Tersons who may apply for order, section Ki, :\T>2. 
 
 Order where person livin.a' iipiiit m(irt,i;ay:es to iterson with- 
 out notiie. section 17. .■!.":'.. 
 
 I'^onii of (H'der, rcKislratiiJU of same, st-ctions IS-iil, :'„");}. 
 
 U. S, O. 1,S!I7, ciiii. li;.'» (The Mtirried WoniMii's Keal Kstate Act>. 
 Hfir of dower by wil'(> under 21 yejirs of ;i.ce, scctiiui .1, '.\')4. 
 
 R. S. O. is;i7. <;ii). li(l."» (The Lojiu ('ori»or:iti(ins Actl. 
 
 I'owcr of coi'iior.-itioiis to lend on mortf;a;i:e to uou-memliers, 
 section Hi: iinikin;;' by-hnvs piirt of <(iiitriict, ."..")4 -I !."."». 
 
 I'ower to lend (ill mortua;;es, section 17: discretion allowed 
 directors; securities on which inone.xs may be lent: iiower to 
 iiiortmi^ic coriiorat ion's lands: improvident sale by mortf,'aKee: 
 siile by iiiiM'tjiJiK'ee to s(df: discliaryes by corjioratio.n; limit 
 to land held by corpoiat'oii, ;',.".")-,'!."i7. 
 
 IkillotiiiK for loans forbiildeii, section IS; Starr BowUett 
 liuildiiifT Societies, .■i."(7-.'!riS. 
 
 Riites of interest on inorl;;ii;;es to loiiii coinpauies, sectiiJii 
 
 IJleiided p.iymeuts of principal and interest, sections L'l mid 
 -'2: statiiuent reiiuired in iii()rtKa.«e, .">."i}». 
 
 Fines and penalties restricted, secti(Uis '2'.\ and 24, :',r,[). 
 
 I'roviso for reiiii.\uient of principal extendiiii;- over ."i yeiirs, 
 secti(Mi -l."i*f"lo;in reiiiiyiible with '.\ mouths' bonus, :!."»)l-.'i(!tl, 
 
 l>y-l!iws of corporatiiui to explain iiKU't^.-if^'e phius, scliediile. 
 rule o, :!•;(). 
 
 I'eriods of Krace and tines to be stated in by-liiws, schedule, 
 rule <;, :j(i(). 
 
 I{. S. O. 1S!»7, ciip. 211 (\i\ Act respecting Heuevolent Societies). 
 I'ower of benevolent society to jrive a morts'afre, si'ction I't, 
 .".III. 
 
CON'I'ENT.S. 
 
 A COLLKCTIOX OF STATUTES, En.-Coni 
 
 xxix 
 
 onti lined . 
 
 I! 
 
 . S. O. 1S!I7. .-up. 2i:j (All Act icsiicctiiiy (Vnielcr.v Coiiipiuiies). 
 Lots siild for Imriiil sites not to Ito iiiorltriiKod. section IT., 
 
 3(11 . 
 
 n. S. (). 1S!»7. ciip. 22:; (An A<t rcs;,c,.tin;,' InvestnuMits ».y 
 ( '<ir|i(ir,i1ioiisi. 
 
 rjcncnil power to invest in seciiriti<'s ii first clinrKe on laml 
 ill lee simple, section 1, .'Jfd. 
 
 Miinieipiil coiiHirMtions n()t so iuilliorized, section 2, .'{(ll. 
 
 n. S. (> 1,S!.7. e.-,p. :!i»7 (An Act resp..ctiii;4 Pn^perty of UeliKioiis 
 Institutions, 'M'J. 
 
 ^*'^"'''' '•» ' 'iiinfxr for eertiiiii purposes, section S, lUVj. 
 
 C'ontij:iioiis p;ircels, section !», ,'!(il.'. 
 
 li. S. r. ISSt;. ,.,„,. 127 (An Act ivsiiectiii;: Interest I. 
 Tower to sti|.i'];ite iiii.v rate, section 1. .'{CT 
 I^trnl rate is (i%, section 2, Sm. 
 ^inkiiiK fiin.l plan, stateiiu 
 sections ;! and 4. .'{(;■{. 
 H.'sfricti.in on fines and penalties, sections :. and C, :W.\ 
 n.viso for r,M.eniption extending- over .". .years, section 7- 
 l">'ici|^il rei.a.valple on tlire,. niontlis' bonus, :!(;4. 
 ij'5 N'ic, <ai), 34 (Dom.). 
 
 Section 7 of prc-edinfr Act not aj.plical.le to securities .-iv 
 l)y corjKU'a lions. 304. 
 
 •Ill reiiuirod on inort>;af,'es, 
 
 en 
 
 I'Airr IV, 
 
 A COLI.Kc -TIOX ov FOUMS a.M, PRKrEDFXTS TFT vr 
 
 IiHlorsenient of writ, ,'!(;7 
 ^^..try Of appearaii,.o i„ 'aetion for laud, liniitiu« defence. 
 
 Notice disputintr aiiHuint, 370. 
 
 Notice liniitinp: defence, 370, 
 
 Notice in lieu of statement of claim 371 
 
 Xoticeofelection.hatdefendau, .;,udu;, sale 371 
 .Notice to iiicuniliranf-er.'), 37*1 . • '• 
 
 AppoiutnieM on referei^'e as' to incun.brauce 373 
 
 ^tandInJ,' conditions of snl;^, .'374 
 
 Heiioi't on sale. 37.". 
 
 i;-rn, Of iud^nnont on pra>cipe for sale or foreclosure, with 
 reference as to iucunibrances, etc -uid orders f • i 
 
 '«'>>-"t and delivery of possession^'o '"' """"""^^ 
 
mmmmmmmmMtii 
 
 xxx 
 
 CON Ti; NTS. 
 
 A COLLECTION OF VOmiH, Kic- Continued. 
 
 Form of judKiiioiit (iii prajcipc for loroclosiin' or sale, 
 iifcoiiiil, taken l).v ref:;is(i'iii' niul urders I'lir iiiiiiii'diiilc pnymeiit 
 and delivery of iiossession, ;>77. 
 
 r'lirni ol' JudKintiil on prrt^iiie I'or redemption, ,'571>. 
 
 Foi'm of stMtement, i>( elaim where mortgagee i posse^jion, 
 
 Spcciiil elanses in stdlement of cliiini, .">.S2. 
 
 where mortgagees in possession of sonu- 
 pii reels only, '.\S'2. 
 
 Speeiiil elanses where nnirried woman hns (Miveniuited, IIS'J. 
 where mortgiigees inivc paid taxes or insnr- 
 anic, ;!.".'!. 
 
 Allida\i(: iiroving elaini, '.'>'.>. 
 
 Ordei' for immediate sale when infants eom-erned, ."..S.". 
 
 Order for reference when infants coneerued, 3S<i. 
 
 .Indgment against married woman, u87. 
 
 Length of notice to defendants of taking aeeonni, ;?S7. 
 
 Fnller payment elanse in order, liSS. 
 
 Order for new day, IISS, 
 
 AHidavit (if non-payment hy odicer (d' corixiration, 3S0. 
 
 hy rei)resentalive of mortgagee 
 ont of jni'isdiction, .'>'.)(). 
 
 Allidavit of non-payment when a, foreign corporation, IVM. 
 
 hy mortgjigee in pcsso.ssiou, 3!»1. 
 I'oini of report, IW2. 
 
 (another form), .">!.'.']. 
 '* (^another form). J!!'!. 
 
 Final order, ;{i;('>. 
 
 I''inal order for sak', foreclosing emnndirance, '.VM. 
 A'esting order, o'.t7. 
 
 'S 
 
lent 
 
 lull. 
 
 1':rkata 
 
 LMlll' 
 
 {S-_>. 
 
 SllV- 
 
 Kei- 
 
 »1. 
 
 ('ill. 
 
 ;l'2 
 
 ('■) ro!i( 
 
 1 "I 
 
 •"ii'. Ill Niiti! (s) and Xoto 
 
 '17. Ill Note (ir) roiui •' W 
 
 U.S. In N,.tL. (;/) line:?, mui '•Smith v. il 
 
 AV/.'wv V. Juiniiev, 
 
 ainiiiiin v. IJowlu-r. 
 
 In r. 
 
 me S from hottoin i.f text read " I 
 
 ill," not " V, Hall. 
 
 not " ill 111 Tc'iirs. 
 
 iiterest on arri 
 
 r^iist foot-note. 
 
 ItJ. Note (//) ruiid •• \\' 
 
 lead " Bates v. E 
 
 alnisle\- v. Hi 
 
 not " Bill 
 
 !».^. Note (4) i-ead " J{ 
 
 not 
 
 ]Jall. 
 
 Note (,-) road " Wil 
 
 oinanes v. Hen 
 
 ^•2 Gr. ICi!* I If 
 
 llti. L 
 
 ine V.i read ",1c 
 
 nuns V. Haun," not " v. II 
 
 "■•.). 
 
 mil. 
 
 1U>. N.ite (<•) read " B 
 l'-'-''. Note (-/) read " \V 
 
 uier Fust" for " T 
 
 iirner Fust. 
 
 I2!t. Note 
 l-'it. Foot-not 
 
 i-ewin not " JJrewer" v. Aiisti 
 ariiock v. I'rieiir." 
 
 line 1 read "v. Gaim 
 es read "National 1' 
 
 not ' 
 
 iiaiiios. 
 
 V. Ctiiines. 
 
 rovincial Bank \. Q 
 
 ^aiiioH, not 
 
 l;{■-^ Note (/) line 2 read 
 
 i:5.'5. Note (//) read " National 1' 
 
 V. lianies 
 
 1.54. Not 
 
 Kit. Not 
 I.S.5. Not 
 
 u (') read " ]{e Watt 
 
 rovincial Bank v. ( 
 
 janies. 
 
 e (:) line ;i, read".M(;r 
 
 w. "not " Bo Walli- 
 
 jaren v 
 
 Mill 
 
 f (.'/) line -2, read " Bo .Miller, !•_> (.;. l 
 
 L'l-," not " V. Ml, Ik 
 
 v.):. 
 
 ler, Ac 
 Foot-notes (.r) and 
 
 not " J{e Mill- 
 
 text. Delete note (:) 
 ■■i(>'>. Note(/-) read "(ieminill v 
 ^■"'i*. Note (/() after Bo J5i 
 
 (.'/) belong' respectively ti: 
 
 (.'/) iind 
 
 111 
 
 Nell 
 
 igan. 
 
 ■'51)1. Note 
 
 /') read " (J 
 
 ••il».-). Third II 
 
 no fr( 
 
 til V. Hell read " '.'(i {). K. 
 liawiier's' for "Chalmers." 
 
 OOI. 
 
 well V. Hall. 
 
 "1 I'otloni of text, read "Coklwell" for " Cald- 
 
 :ilO. Ninth line f 
 
 roni bottom. 
 
 Hall. 
 
 '•«ul "Coldwell" for "Caldwell 
 
 ;ilH. Note 
 ••ili». Note 
 ;i(i2 
 
 (•>■) read "Coldwell- for " Canid 
 
 [■•'•) read " Ge 
 
 well V. Hii 
 
 mmill V. Nellii 
 
 ^iiie I from bottom read " B.S.C 
 
 an. ' 
 
 1H8(1, 
 
 not " K.S.O. 18!)7. 
 
TABLH OF CASES CITED. 
 
 A bell V. Morrison p-^Qk. 
 
 Abell V. Parr '..".'.'.'. 22,207 
 
 Abbott and Metcalfe, lie 35, 171) 
 
 Adams '-. Harry ... 244, 275 
 
 Addison v. Cox '^-'"^ 
 
 Alcook. Rp 8S 
 
 Alden v. Foster 66, J63 
 
 A Iderson v. Elge,v ' 1 fi 
 
 A Iderson v. Wliite -05 
 
 Alexander v. Sininis ... -!» 
 
 Alison, Re Kj-i 
 
 Alison, Re Johnson v' Mounsev ^'•^' ''^^ 
 
 Allan V. Gott ■ :m 
 
 Allan V. IMcDougail . ^35 
 
 Allan V. McTavisli . 130 
 
 Allen V. Edwards . .[ ♦'*^. •>('!*. 322 
 
 Alwortli V. Robinson ' Ho 
 
 Ames V. MaiinerinK . <>2 
 
 Anderson v. Sander.soi, ' .' ' ' 327 
 
 Andeivson v. Saugeen, The ''.-n 
 
 Anderson v. Stevenson ' -11 
 
 Anderson v. Watt 44 
 
 A nnis V. Wilson . . :5a 
 
 A "on v. ,2 Ch. Ca. 244) ...'.['. 1 1'> 
 
 ( f Sannd. STfij 13 
 
 n Collv. 278) «5 
 
 (■i Or. fii). . Ill 
 
 ^ , <-i '■-. Eq. R. 7„i) 118 
 
 A;;cbbold V. Rnilding Ai Loan' A^sn :;••;•• ^"^^ 
 
 Archhold V. Sculh- .. 'I. 1*j;j, 23(1 
 
 A roher v. Severn ... 307 
 
 Aidagh V. Orchard ^'-'. 307 
 
 A rdagh v. Wilson 120 
 
 Annitage. |„ re, ox d.' Andrews ^"^^ 
 
 Arnisti-ong v. Gage . 3tC 
 
 Ashenhiirst \'. .lames 5)3 
 
 Ashton v. Dalton .. 70 
 
 Ashwell, Re "" 65 
 
 'tf\a 
 
T=^ 
 
 \ \ \ I \' 
 
 TAHLK OK (ASKS (HKI>. 
 
 PAaK. 
 
 AsliwcU V. Sliiiiiiton (i.'i 
 
 Ashworlh v. I.onl SS 
 
 Asll)iiry V. Astl)iiry ;!:;i 
 
 Atkinson &. I'lmlry, Re !:!(» 
 
 Allorncy-dcntMal v. Uirniingliam, Corporiilion of liil 
 
 Atlorncy-Ci'-MU'riil v. I'ar. tlicr Xi 
 
 Altorn('y-(!cncriil v. Tonilinc !i:t 
 
 AiidHlcy V. I lorn 1 1!, :iO 
 
 Ansliu V. Story -Ml 
 
 AiiKlral Otis Co. (Ltd.) v. Andrew Korr &. Co. (Ltd.) ;!;lli 
 
 Australian Deposit and Mortgage Bank v. Lord .MO 
 
 Ayers v. Adams :fJ, 
 
 AyersL v. JMeLean ;!2 
 
 Ayhvard v. t.ewis \2. 1 IT, 211 
 
 Aynslf>y v. Reed II 
 
 na))y V. W'oodhridge IM 
 
 Hacklioiisf V. Charlton !.')() 
 
 Haddeley, Doe v. Massoy :!!'!, 321 
 
 Hadger, ICx u (i7 
 
 Haker V. Trainor ;!("; 
 
 Raker v. Weston :{17 
 
 l?akei- V. Wind i:;;, 
 
 Bald V. Thompson II 
 
 Hall V. JJell !-;,;> 
 
 Hall V. Ihu'ris ;{iil 
 
 Hallard v. Tomlinson I'M 
 
 Hank of Jh'itish North America v. jMoorc Ill I 
 
 Bank of Montreal v. HalTner 17(> 
 
 Hank of Montreal v. Keteluuii r>7 
 
 l?ank of Montreal v. Power I nil 
 
 Hank of Montreal v. Wallace .')7. I71t 
 
 Bank of New Sonth Wales v. Cainpl)ell 2t; 
 
 Hank of New South Wales v. O'Connor 12!». KM 
 
 Hank of Toronto v. Perkins 2.'), I'li 
 
 Hank of Upper Canada v. Scott 2t;, 15G, IHS 
 
 Hank of Victoria v. McMichael HI I 
 
 Banner v. H<>rridge W, SM, 'M\ 
 
 Harher v. Clark 211 
 
 I'arber v. .Teckells ."pi), »;:{ 
 
 Harher v. Mackrell su 
 
 Harday v. Owen 32!t 
 
 Harker v. Eccles 18S, 217 
 
 I'arnes v. Raostor 129 
 
 Harrett v. Birmingham I!;{2 
 
 Barrett v. Crossthwaite 101 
 
 Harrett v. Hartley !H), 27;i 
 
 Barry v. Anderson 27 1 
 
 liartle v. Wilkins 19 
 
 Bartlett v. Franklin 2X7 
 
 i 
 
J 30 
 101 
 
 2:i 
 y.i 
 ;io 
 
 -Ml 
 
 lilt 
 ti 
 
 IM 
 
 IfjO 
 
 321 
 
 (i7 
 
 :',c, 
 :ii7 
 
 II 
 
 !!;.!> 
 
 ;5iii 
 
 174 
 17(> 
 
 l) 
 Hi 
 F{i 
 Bj 
 Bi 
 Bi 
 Bi 
 Bi 
 
 TAIil.K ol' CASKS CITi:;). ^^^^. 
 
 nartldt V. .Tiill ''•V,'':' 
 
 niirllctt V. Ross ' \ KjV Tr 
 
 l^.'irkwcll V. I'arUor ............'...,.. "' j',-, 
 
 Baiwick v. Hiu'wiclc . '.{',,'-' .,.','! 
 
 Mal.s V. I.:i,.y •;.. '"• '•-•',.', 
 
 njiiii, iw i> •':' 
 
 Hiixii'i' V. 'riiriiiiiiii . . ., 
 
 ';'':ili V. Smidi '.'.'.'.['.'.'. :',i 
 
 Hcan V. iioothhy " j^"* 
 
 Hcatoii V. Uniilton t^ 
 
 Hfal.v V. ISlakc ^"'^ 
 
 ''•'.•vt.v V. (ioodcrlia iii ...,......'.' l^l 
 
 Hoal.v V. firoi^oiy -]' 
 
 Hoaty v. Radciilnir.m -'j'J 
 
 '■faty V. Shaw '. V ' !,^,'^ 
 
 '^fatly V. I.'iiilaysoii < I "-'-'! 
 
 FJoatfy V. O'ComuT ,; ; ' fi'' 
 
 BfaimioiK v. Orcalln'ad -lH. 27(1 
 
 ncclior V. Wohl) -'■' 
 
 noolu'tt V. Do la four . . ' '^'^ 
 
 rJockford V. Konihh. ''-"* 
 
 r.eddoo. Rf. II 
 
 Beioloy v. ('arlcr ' '-'•"' 
 
 nni V. r.oud.n, and SoiUlVwrslcni' Maiik 'lH 
 
 Bfllaniy V. iJad^M-i-ow -' 
 
 ndlatny v. Sahino . . -"''• •' '"' 
 
 nelleniy v. lirickciidVii ''^•'* 
 
 Bonnoft V. Edward.s ... ''7 
 
 noiiiicit V. Foreman . '- 
 
 HciiHoii V. Maudo . . ' . ^ '■ *'^- ''''■ '■^''^ 
 
 Benson v. Hai-foot . . . ''■-"' 
 
 I^cn.soii v. j faniill ■"'•'' 
 
 Bonson v. Huslios '-'' 
 
 I5oiil V. J^iickloy . 285 
 
 Bent V. Young. .....'.'.'. '.' J1^ 
 
 Bernai-d v. Alloy II 
 
 lieiiravil v. Norton' '. .'. I"**' l^l 
 
 BPKt V. Applf-afe .... '^^ 
 
 Betlinne v. Caiilcott "'• ■''*' 
 
 '•fvaii. l.],v |) I'll. 187 
 
 f'vis v. Boiiltoii . . '>•* 
 
 ickiwU V. Dp Ja Coni- . . . <■> 
 
 ickford V. Grand Junction Ry' Co '''^' 
 
 ifl<liani V. Cro.ss ■•• 94 
 
 iplin V. liielin 'i'^ 
 
 gelow V. Staley 71 
 
 ggar V. Way ... -24 
 
 Riiold, Re 1 0r>. 1 21 
 
 ,,;yf 
 
r 
 
 \ \ X V I 
 
 TAIIM'; <H' (JASKS (ri'KI». 
 
 Ill 
 
 J ! 
 
 :sil ,' 
 
 I'AOK. 
 
 ItlnnB V. N'lcholH 'A'M\ 
 
 HIrd V. WilKlit 30B 
 
 nirks V. Trlppct :J2<1 
 
 UlHhop of Wlnclu'Hter v. Pnlne 35 
 
 niHsott V. joiu'H ir> 
 
 Mliu'hfonI, lie 3aft 
 
 Itliichfonl V. Oliver . . !>, 153 
 
 J«liiil)(M-K V. (Jattc r>3 
 
 Mlftlr V. NiiKont 332 
 
 Klako V. Smith 23 
 
 IMong V. Kitzgcmld 32. 2rjr> 
 
 HlonK V. Kennedy !()!» 
 
 MIoor V. Hank of ITpper Canada 2 H 
 
 Mocksfal, Re lOH 
 
 Holi'O V. O'Lorne 323 
 
 Holdero v. Halpln 325 
 
 HoldlnK V. Lane 3()S, 311, 330 
 
 iiompas V. King 85 
 
 Honlthon v. Hockniore 1)0 
 
 Booth V. Alcoek 221 
 
 Hooth V. Creswlcke 3«i 
 
 Hooth V. Purser 314 
 
 Hooth V. Ual tfi 95 
 
 Mooth's Tnisls, Re 42 
 
 Houlton V. Don & Danfor^^ Co 123, 121 
 
 Koulton V. Rowland 277 
 
 Howen, Re 80 
 
 Rowen v. Evans 1 2r> 
 
 Howen v. Lincoln Hiiilding and Loan AsKociation 355 
 
 Howyer v. Woodman 308, 3:i4 
 
 Hox V. HriilKman 183 
 
 Royd V. I'etiie 1!>1, 20t) 
 
 Rradshaw v. Outram 37 
 
 Hrandon v. Hrandon 80 
 
 Hrazill. Re 78 
 
 Hrethonr v. Hrooke 261 
 
 Ri-ewln V. Austin 72, n!> 
 
 Hridge v. Hrown 53 
 
 Bridges v. Longman 301 
 
 Bridges v. Real Estate, F^oan & Debenture Co 252 
 
 Hrierly v. Ward 5.'< 
 
 lirlgham v. Smith 96 
 
 Rrlght V. Campbell 69 
 
 Hrlght V. Laroher 325 
 
 Hrlght V. MeMurray 314 
 
 British Canadian Loan & Tnv. Company v. Rav 273 
 
 Hritish Canadian Loan & Inv. Comnanv v. Williams 21!) 
 
 British South Africa Company v. The Ctmipanhia Do Mocam- 
 
 biqne 12 
 
 Broad v. Selfe 131. 273 
 
 Brocklebank, Ex p 25 
 
TAHI.K tH- (.'ASKS t|T|.;|». N \ X \ 1 1 
 
 rAni:. 
 
 llrocklflinrflt v. .ffssop :\\l 
 
 Hrookc V. Mrlii'iiM .'ItT 
 
 llrooks V. SmyHiT 10 
 
 HidokslKiiik V. IliKKiiihottom IIS 
 
 Krol hers v. Filoyil 1 2 1 
 
 Hrothfi-toii V. llj'tluM'inKlon T'l 
 
 Urown V. Hiiildiiim 70, 7:,' 
 
 Mrowii V. Hnnlcll 101 
 
 Hrowii V. DciK'on 'is 
 
 IM'owii's Rstiitd 'Vl('> 
 
 Hrown v. Mcl.ciiii 22, 207 
 
 Mrowiic V. liOckliiiil i:<2, 2:M 
 
 I'rownti'cc V. CiiiiiiiiiKliiiin 100, i;'«l 
 
 Mniiu-.wl( k v. Dawson lillO 
 
 Unierc v. Wliarloii 72 
 
 UniBli V. Aetna liisiiranct' Co 212 
 
 Urnyeii v. Rose 2><^ 
 
 Hiic(I«MiKli. 'I'lio Duko of UM 
 
 Uiicliaiian v. (iiociiway 10."). 1 IT. 
 
 I?ii<liaiian v. Tlflany 1S1 
 
 Uncklcy V. Oiililcltc f)*'. 
 
 MiH'kl.'y V. Wilson :!l, 142,217 
 
 Knckncll v. Vickory <:'.> 
 
 Mncll V. rishor I".'. 
 
 MnildinK and Fioaii v. Carswoll ;12 
 
 HniMinK Association \. (Jrocshock o')-> 
 
 Unlloy V. Hullcy V.C, 
 
 Hiirko v. O'Connor ll'.;{ 
 
 Hui-kn V. Pyn«' 1 2S 
 
 Unrn \. London and Soiilli VV'^ales Coal Co -<'!• 
 
 Hums V. Davidson II 
 
 Ihirnsidc v. Lund i:i4 
 
 Hni r V. H(>crs n t 
 
 Hurton V. Coi-o DislricI Miitnal V'wo Tns. Co 2ti:t 
 
 Cuddick v. Cook '>?, 
 
 Cadhiiry v. Smith :\>\ 
 
 Cade V. Nowliall !t,S 
 
 Caiss(,' V. Hiirnham !i:! 
 
 CJaldPcolt. Ex J)., Ill" White 2 >s 
 
 (Calloway v. Peoples 211 
 
 (^alniac v. Durie 11'.; 
 
 Calverly v. Phelp 1:5 
 
 Calvert v. Black ;ir)2 
 
 Cameron v. Cameron 1 i:t 
 
 ('amerou v. Gibson _. 2r.> 
 
 Cameron v. Lynes ' 9(1, 121 
 
 Cameron v. McRae 11, lo;}, 27!t 
 
 Cameron v. Phillips 117 
 
 Cameron v. Walker 315, IJUI 
 
 ill 
 
rr^r 
 
 If .1 
 
 ^' 
 
 X\N Vlll 
 
 lAiiM'; OF CASKS ' rn;i). 
 
 (lanieron v. Wolfe Ishmd Co 185, 
 
 C'juni)l)ell V. (larrctt 
 
 Canipljoll V. Holylaiul KMi, 12\. 12:5, 121. 123. 
 
 Canipbf^H v. I\Iel)onsall 
 
 Campboll v. Iloljiiison 
 
 ("ampbell v. Sandford 
 
 Canada T.andcd Credit Co. v. Callagliaii 
 
 Canada Landed Credit Co. v. McAlliHler 
 
 Canada Permanent L. & S. Soc. v. AlcdonoU 
 
 Canada Permanent L. & S. Hoc. v. Teeter 2111, 
 
 Canadian liank of Commerce v. Forl)es 
 
 Cann v. Knott 
 
 Carey v. I 'oyne 
 
 Carpenter v. Wood 
 
 Carr, Ex |) 
 
 Carr v. Fire Assurance Association 
 
 Carradice v. Curry 
 
 (^arroll v. Carroll 
 
 Carroll v. Hoi)kins ID?, 
 
 Carroll v. Robertson 
 
 Carnitliers v. Hamilton Provident 
 
 Carter v. Clarkson IK), 
 
 Carter v. (Jrnssett 
 
 Carter v. Wake 
 
 Carver v. Uicliards 127, 
 
 Cash v. HelclKM- 
 
 Casliell V. Kelly 
 
 Ca.'-^.iicr V. 1 laifi;lit 
 
 Casselnian v. Casselnian 
 
 Caylf^y v. Colbert \'A, 
 
 Cayley v. Hod.i;son dl, 
 
 Challie v. C.wynne 
 
 Chamberlain v. Armstroii.t? "i;!, .*>o, 
 
 ClKiinl)erlain v. Sovais 
 
 Chainl)erlaiii v. Clark 
 
 Chaniiiers v. (Joldwiii 70, 
 
 Chambliss. Re. and Canada Life .\ss. Co 
 
 ('hai)lin v. Youn^ 
 
 Ch!i])man v. Corjje 
 
 Chai)nian v. Heecliain 
 
 Chappel V Rees 
 
 Cliiird V Myers 
 
 Chard v. R;\(> 
 
 Charles v. .lones SS, 
 
 Chatfield v Cnnningham 12.'!. 127, 273. 
 
 Cliarlton v. Dnrliani 
 
 Chawner's Will. Pi> 
 
 Chennel v. Martin 
 
 Chesterfield. I.ord, v. Lady Cromwell 
 
 Cheston v. Wells 59, 
 
 Chiles V. Calk 
 
 AOK. 
 
 18'; 
 iia 
 
 127 
 
 \m 
 
 Nl. 
 :!2.j 
 139 
 180 
 
 45 
 273 
 180 
 291 
 
 G5 
 
 cSO 
 
 C7 
 210 
 
 02 
 300 
 lf)5 
 
 7' 
 35G 
 
 .5::) 
 
 224 
 
 152 
 
 27f) 
 
 31 
 
 31 
 
 32 
 
 2ii'i 
 
 155 
 
 141 
 
 11? 
 
 170 
 
 141 
 
 32!) 
 
 90 
 
 147 
 
 <"9 
 
 313 
 
 23T 
 
 30S 
 
 99 
 
 39 
 
 1211 
 
 27(i 
 
 321 
 
 301 
 
 91 
 
 70 
 
 r,3 
 
 334 
 
 '■A 
 
 ■Si- 
 
 ^^•■■m>fiT'm'mmm^'i!\\m«'mmimm,, 
 
taiuj: ok casks riTKD. 
 
 \ \ X 1 X 
 
 17 
 
 ; /« 
 
 r!> 
 
 '4 
 
 :^i:< 
 
 
 :;3T 
 
 M 
 
 30H 
 
 •1ft 
 
 1 
 
 8!t 
 
 ■i 
 
 12!^ 
 
 :J 
 
 27(i 
 
 ■■'1 
 
 22\ 
 
 •'^ 
 
 301 
 
 ^ 
 
 '.M 
 
 a 
 
 70 
 
 M 
 
 r,3 
 
 fl 
 
 334 
 
 S 
 
 .311, 312, 
 34 
 
 Clarke v. 
 riarko V. 
 
 riiinuery v. Kvuns 
 
 riiisliolm V. Kenny 
 
 Cliolmcndolcy v. Clinton 
 
 Christie v. Dowker 
 
 Christian v. Devpreux 
 
 Christoplurs v. White 
 
 Christy v. (Joodwin 
 
 Church Society v. INIoQiieen '^' 
 
 City Hank v. T^arrow 
 
 Clack V. C.n-lon 
 
 Clapham v. Aml.-ews 
 
 Clare v. Wood 
 
 Clark V. Barber. Re 
 
 Clark V. Harvey 
 
 Clark V. Woodruff 
 
 Clarke v. Hest 
 
 Clarke v. Cook 
 
 Clai'ke V. Henderson 
 
 Janiieson 
 
 Royal Panopticon 
 
 Clarkson v. Henderson 
 
 Clarkson v. Scott ' Ifl. 
 
 Clay V. Tilley. Re 
 
 Cleveland v. McDonald 
 
 Cliff v. Wadsworth 
 
 Clongli, R(> 
 
 Cloiister V. Mcl-ean ; 
 
 Cobh v. Dyer 
 
 CockbiU'n V. Edwards Hit, 
 
 Cockell V. Taylor 
 
 CockenoiH" v. Bullock f^. 
 
 Cocks V. Cray HO, 
 
 Colchester, Township of v. Valad 
 
 Culclontih \-. Stenini 
 
 C(ddwell V. Hall 7ft, 80, SI, ,S2. Sr,. ftft, 30.',, 310, 
 
 Cole V. Hall 101, 17r,, 17(i, 177 
 
 Coleman v. Hill 
 
 Coleman v. Llewellyn .^ft, 03, 10.") 
 
 Coles V. Forest 3r,. 42 
 
 Col(>s V. Trecothick 
 
 Collins V. CnnninKliain 
 
 Collin-; V. Denison 110 
 
 Collins V. Shirley 31 
 
 Colonial Rank of Australasia v. Rnbhage : . 
 
 Coltman, Re 2.' 
 
 Colyer v. Finch 
 
 Commercial Rank v. Rank of T^i>i)er Canada 
 
 Commercial Rank v. Rreen 
 
 Commercial Rank v. Orahani 
 
 Cornell v. Curran 
 
 Consolidated Investment and Insurance Soc. v. Dodd 
 
 VC.T'.. 
 
 327 
 122 
 43 
 160 
 324 
 13ii 
 r,3 
 21 
 322 
 13ti 
 132 
 130 
 250 
 274 
 278 
 140 
 
 3r. 
 .3 1 i 
 
 ft7 
 301 
 
 09 
 I (iO 
 302 
 
 3(; 
 134 
 2ftl 
 
 04 
 
 22 
 32? 
 
 ftft 
 
 133 
 
 07 
 
 vzr, 
 
 318 
 
 , 180 
 
 2.',fi 
 
 IK! 
 
 43 
 331 
 
 44 
 12(1 
 
 32 
 341 
 
 27 
 301 
 
 ?J] 
 340 
 120 
 131 
 I Oft 
 
 il 
 
 M 
 
ij 
 
 I 
 
 Xl TAHLE OF CASKS ( ITKI). 
 
 pa<;k. 
 
 Constable v. Guest 7S 
 
 Constable v. Howick 11') 
 
 Cook V. Dawson 1^01 
 
 vJook V. Flood 1 ')■_' 
 
 Cooper, Re, Cooper v. V'esey ;{•; 
 
 Corham v. Kingston 21 1 , 2P. l 
 
 Comish V. Guest ''>M 
 
 Corser v. Cartwright HO I 
 
 Cornwall v. lirown 134. 135 
 
 Cornwall- v. Henroid ^('>h 
 
 Corsellis v. Patman If);". 
 
 Cotterell v. Stratton 1 2t> 
 
 Cottrell V. Finney To 
 
 CouFineau v. r.ondou Fire Ins. Co I!)4 
 
 Counter v. Wylde 110 
 
 Court V. Holland S+. 107 
 
 Court V. Walsh ^ :52i . :w:: 
 
 Cox V. Dolman lUH 
 
 Cox V. Watson Ill 
 
 Cradock v. Piper I ;',(; 
 
 Crawford v. Edward 3 1 
 
 Credit Foncier v. Schiilt/, 7(i 
 
 Credland v. Potter \:\7, 
 
 Crerar & Muir, Re 270 
 
 Cr iize V. Hunter 72 
 
 Crofts V. Middleton liii'i 
 
 Cronyn, Kew & I?e(is, R" 27il 
 
 Crooks V. Street its 
 
 Crooks V. Wat kins 17, | s_' 
 
 Crosbie v. Fenn 177 
 
 Croskery, Re :ji'. •_'77, :!49 
 
 Crosskiil v. Rower 7o 
 
 Crowe V. Steeper I !».", 
 
 Croxon v. Lever r,s, i I's 
 
 ('rnniley v. Kingston j:; 
 
 Criiso V. Rond \r,:], l':!7. 2r,l . I'Tii. 2s, ( 
 
 Cruso V. Close \:,t\ 
 
 Cummer v. Tomlinson Ill 
 
 Cummins v. Fletcher 211 
 
 Cummins v. Harrison H:> 
 
 Curry, Re, Curry v. Cun-y Dj 
 
 Dallas V. Gow i:{1 
 
 Daly V. Kelly 47 
 
 Danger v. Stewart 21 
 
 Daniel v. Sinclair 70 
 
 Daniel v. Skipwortli ;i7 
 
 Darling v. Wilson 47, .-,1 
 
 Daubuz V. Lavington 2^:1 
 
 i1?j|»i«;.4()(J(p»!M*3i«|i«S!S(!),^^ 
 
TA15I>E OF CASES CITED. \li 
 
 r.\(^>:. 
 
 Davetipoi! v. .lames 13, l[\\ 
 
 llavey v. Durant 74 
 
 I lavidson v. Boyes 'A'A 
 
 Davis V. Chanlor 14'i 
 
 Davis V. Davis D!) 
 
 Davis V. Deiuly 90 
 
 Davis, Re Jane, Evans v. Moore 324 
 
 Davis V. May 1^17 
 
 Dawkinrt v. Penrhyn 321 
 
 Dawson v. Moffat t lO.'i 
 
 Day V. Brown 09 
 
 Day V. Day G(5. 237 
 
 Day V. Radeliffe 3(j 
 
 Dal'laqniere v. ArnistronK 9,S 
 
 De Caiix v. Skipper I.'?^ 
 
 Delaney v. C. P. R. Co 4t!, fiS, 311, 32(i 
 
 Detillin v. Gale 120 
 
 Dibb V. Walker 32>; 
 
 Di'.'kini-'on v. Teesdalo ooft 
 
 Dickinson v. Avery r)v; 
 
 Dickson v. Draper 144 
 
 Dictator, Tlie ^01 
 
 Dilke V, Douglas U^l ^24 22(! 229 
 
 Dillon V. Cruise ' ' jjoj; 
 
 Dit-clier v. Canada Permanent L. & S. Co 277, 3r)2 
 
 Dixon \. Peacock '74 
 
 Doi)bin V. Dobbin 3 ,,^ 
 
 Doble V. Alanley ^^^.V 
 
 I )ol(son V. Laud j^y 
 
 Docksey v. Else -jqc, 
 
 Dodd V. Lydall (;•> 
 
 Doe V. fJiles ,„','^. 
 
 Doe v. l.iKbtfoot . . 3''^,;' 
 
 Doc v. Williams ' V'l 
 
 Donaldson, R,- ' "' 
 
 '^"»'iy. R" ;;;;;; \':\: 
 
 Dornyii v. Pralick '''. 
 
 DouKall V. Wilbnni ^l 
 
 Doull V. iMcllreith .' .' ;!" 
 
 Downey v. Parnell ^fj 
 
 Downey v. Roaf '' 
 
 Dowselt V. Cox .^"^ 
 
 Drewey \-. OWeal ..,..' '"'[ 
 
 Drouubt V. ,Iones ^ !' 
 
 Dnimniond v. Ander.son ^J\ 
 
 Drnmmond v. Duke of St. Albiiii's «•' 
 
 Drnmmond v. Cnickard ... ,;.,; „„" 
 
 Dr.vden v. Kn.st ""'• ;'J 
 
 Dudley \-. Tlerczy ^ _' ' " _' ,, 
 
 Dufloii V. HorniuK "' ' l*'*^ 
 
 ni7 
 
r 
 
 Xlii TABLE OF CASKS CITED. 
 
 PAGU,. 
 
 l)iin(>onil)o V. Hansley 37 
 
 J)unl()i). Doe. v. McNab 320 
 
 Dunn V. Attorney-General h'l 
 
 DiuiFtan V. Patterson It, 12[), 201 
 
 Dymond v. Croft rui 
 
 Eades V. Harris ^'I 
 
 Eardley v. Knight 67 
 
 Earle v. BellinRliam ^-•'> 
 
 Eckerpley v. Eclcersley 99 
 
 Eilmonds v. Hamilton Provident Loan Co. .. 70. 209. 210. 211, 231 
 
 Edmunds v. Waugh fiS, 83, 309, 310, 311 
 
 Edwards v. Bennett 1 93 
 
 Edwards v. Pearson ' 9fi 
 
 Edwards v. Warden '^'^^ 
 
 Egleson v. Howe -•'>- 
 
 Ellenor v. Nagle 11'' 
 
 Elliott V. Hunter 107 
 
 Elliott V. .layne -17 
 
 Ellis V. Ellis 1!>' 
 
 Ellis V. Griffltlis 11 ^> 
 
 Ellison V. Wright V.\1 
 
 Elton V. Ctirteis 72 
 
 Emerson v. Humphries 41 
 
 Emmons v. Croolss 21fi 
 
 Enys V. Donnithorne 21.'» 
 
 Erriugton, Re 70 
 
 Essex Land Bank. Re 2() 
 
 Evans v. .loncs 44 
 
 Evans v. Parker Ill 
 
 Everitt v. Autonintie Weighing Machine Co 202 
 
 Ewing V. Orr-Ewing It 
 
 Eyre v. 1 1 ughes i)(l 
 
 Eyre v. Sa unders 290 
 
 l''air('l()Ugli V. IMarshall 2.Si) 
 
 Faithful V. Woodley 17. .S3, .'-)4 
 
 Fall V. Elkius .')9 
 
 I'aruuM' v. Curtis 37 
 
 Farrau v. Heresford 32ti 
 
 Farrell v. Stokes 110 
 
 Farrer v. Lacy r)\, (32. 170 
 
 Faulds V. Harper 44, 142, 30.S. 30(;, 314 31S 
 
 Faulkner v. Daniel 147, 32.S 
 
 I<>arnside v. hMint OS, 309, 331 
 
 Fee V. Cohlne 74 
 
 Fell V. Drown 37 
 
 I'Vrgus v. Core 67 
 
"■% 
 
 TM'.LK <IF CASKS CITKI). 
 
 X 1 1 11 
 
 37 
 
 32(5 
 
 110 
 
 170 
 
 3 IS 
 
 325 
 
 33 1 
 
 7t 
 
 37 
 
 67 
 
 PAGIC. 
 
 Ferguson v. Englisli and 8cottisli Inv. Co 248 
 
 Fergupon v. Livingston 3()S 
 
 I'^incli V. l}i-o\vno 87 
 
 Finklo V. Dalo 97 
 
 Finlayson v. Mills 217 
 
 Fitzniaiirico, Kt^ 32!), 331 
 
 FIctclHM- V. Hodden 30."). 321 
 
 Flight V. l?()llanil 21 
 
 I'Mint. and .IcllelL. Re 219 
 
 F()rl)(>s V. Adamson Ini) 
 
 Forbes v. ^loffatt 2l!) 
 
 l''ord V. Ager 3;}.) 
 
 Ford V. Allen (iS, 3:):t, 310 
 
 I'-ord V. Chesterfield. Farl of isr> 
 
 Ford V. T.anded Banking Co 147 
 
 For<l V. Stppples II!) 
 
 Ford V. White 1 S.-> 
 
 I'^'ors.vth V. Drake IS. li), ;',7, 4i 
 
 P'oster V. Deacon ;!.-,, nc, 
 
 Foster v. Parker .f,S. |:>s 
 
 Foster V. Patterson :{()f,, ;!|s 
 
 Vox V. l?earl)loe]c <)S 
 
 l''ran(is v. Harrison 42 
 
 Francis v. drover ;5()S 
 
 Fraser v. I .ocje i ox 
 
 Fraser v. Kutherland ;!7 
 
 Frazer v. .Tones i;{i) 
 
 Freeborn v. Van(his(>n !(■/ 
 
 I'-reenian v. Edwards ^'M 
 
 Frcni h v. Haron .,i, 
 
 I''ri.'diy, Re ■,.,., 
 
 I'l'ontenae F,oan Co. v. Hysop 211 
 
 [''iillerton v. Kecdy j,;Y 
 
 l''iirl)or, Fjk \) .^1 
 
 l'"nrne.^s v. Hoot h ill 
 
 (■'iirness V. Caterhani I{y. Co 1;,2 
 
 C. Mortgagee v. V.. Mortgagor I lis 
 
 (I'abonrie, He ik; 
 
 <i:ige V. Stafford II 
 
 (lalt V. ICrie & Niagara Ry. Co l,-,2 
 
 (lardner v. Hrown ;;.-,2 
 
 (Jardner v. Munro !iit 
 
 (!arli( k v. .fackson II.-, 
 
 (iarratt v. McDonald 1.-,:^, 
 
 (iarrod, Doe, v. Olley •>(;•> 
 
 Ciarlh v. Ward '.'. . ............. ~:j.-; 
 
 (iarth V. Ward ;!5 
 
 C!askin v. Phoenix ins. Co 212 
 
xliv 
 
 TAI'.l.l': OK f'ASK.S (I'll; I). 
 
 Gee V. Rell Ki, r,:> 
 
 Gerninill v. Hiowii !(;;> 
 
 Geniinill v. NelliRiiii 2rir), :M!> 
 
 (Jeneial Credit and Discount ("o. s. (ile^K Hit. 102, Ifil 
 
 General l^'inaiice Co. v Lii)erat<n' 2(!() 
 
 Gii)l)on V. Walker r,-> 
 
 (Hlbert v. I!rai(h\vait 12l 
 
 (JilchriKl Ai lalaiid. Ili' 24(i. 272, 274 
 
 (Jiles V. Morrow jd; 
 
 Gilnioiir v. Myers I Ijij 
 
 Gilmonr v. Roe ,S4 
 
 (iilniour \'. Wliite 27:> 
 
 (iirdlestone v. (Jniin lOH, lii:{ 
 
 (ilaHs V. l''reckletoii ,. ic, r,!, loi 
 
 (Jodfrey v. Watson (;7, fl > 
 
 Goldsmith v. Stoneliewer 42 
 
 Goodall v. Uurrows ;i, joi;, \:,^ 
 
 (looderhaiii v. DeCJrassi 21, 22. \'.i'>, 172 
 
 (iooderiiani v. 'I'radei's' Hank 20t; 
 
 (Joodhiie V, Carter i:{:! 
 
 (Joodliue V. Whitniore :{1 
 
 Goodman v. Kine .-,s 
 
 Goodvvilli V. Xortli 27'.* 
 
 Gordon \ . Kit kins S7 
 
 (lOi'don V. Gordon !))^ 
 
 Gorley, VZ\ \t 21l) 
 
 Gorliam v. Goriiani !ir, 
 
 Graham v. Anderson t;i 
 
 Oiiiliam V. Davis 57^ ^^-^ 
 
 (frahani v. Ross 2S0, 2SI 
 
 (Jranne v. iiarlier ,-,(( 
 
 (irant v. lian(|U(' Nationale 2i'i, 2t> 
 
 (Jrant v. Cnnada l.ife .Ass. Co 27t; 
 
 Grant v. (irani ID,-, 
 
 (Jrant v. I'eopie's Lonn ;ind Deposit Co :!ll 
 
 (Trattan \. Doncgiil 72 
 
 (■ray v. Hell 12S 
 
 (!ray v. CoiiKhlin lUS 
 
 Green iV .Viikin K,. 271 
 
 GriH'ii V. Hamilton Provident Loan Co 27<; 
 
 (Jreeii v. Aleasnres 02 
 
 (ireen v. Pratt 2:1 
 
 Gre(>nsliirl(ls v. Hliickwood 1 IT) 
 
 (Jreeiiway v. Itromlield (IK, ;!0!> 
 
 Greenwood v, Sntidift'e 184 
 
 Greet v. Citizens Ins. Co 2tis 
 
 GregK V. Arrott S4 
 
 (Jregor v. I'arker [IA\ 
 
 Gregory v, Alger 3:^7 
 
 (Jregson v. Hindley ;{2 1 , ;\2'^ 
 
 fJrenfell v. Girdlestone 
 
 3:<2 
 
1 
 
 T.Mil.i; (H ( A!S|-;s I'iTKD. \1\ 
 
 I'Aui:. 
 
 (iiittiths V. London & St. Catharines Dock Co 101 
 
 ('■riftiths. Jones & Co., Re 129 
 
 (irinishawe v. I'arks IT. 181 
 
 Crundy v. (Iricf St 
 
 ( irubhlns v. Creed 71 
 
 Giinim V. Tyrie 27H 
 
 (luninurson v. MantinK 74 
 
 (}iinn V. Uol)le y-'». l-'O. W,. 127 
 
 (Junn V. Land Mortgage Bank of Victoria. Ltd ;<4I 
 
 (rurney v. .(ackson Ill 
 
 (Jwatkin v. Dowiing 101 
 
 (izowski V. Ueaty liitl 
 
 Hague, lie iUl) 
 
 Hall V. Comfort 2:^:? 
 
 Hall V. Hall 19t 
 
 Mall V. Heward 134, isn 
 
 Hall V. Morley If,] 
 
 Hall V. Park IS.". 
 
 Hall-Dare, Re 2!M 
 
 Hallett V. Furze lil . \r>r, 
 
 Hamilton v. Howard It. i:i4. I7r« 
 
 Hamilton I'rovident Loan Co. v. Smith I*i0. 101 
 
 Hampson v. I'^ellosvs 2:55 
 
 Hancocli \. .Attorney-Cicneral I.")l 
 
 Haneock v. Manlson I(>7 
 
 Hanen v. Tower :i;j2 
 
 Hanmait v, Riley 42 
 
 Hannesry. Doc. v. Meyers 2He 
 
 llarcourt v. While :i2} 
 
 Hardy v. Reeves 76 
 
 Harland v Ciar))ntt 24 
 
 Harlock v. .\shberry 'M)',. :{L'I. :;27 
 
 Harman. Re. and W. R, Ry. Co 230 
 
 llarmer \. I'rieslly 230 
 
 HariX'r v. ("iiUiert li 1 1. 27<i 
 
 Harris v. Harris 7L>. ;!.",»; 
 
 Hari'is \ . Light foot li,', 
 
 Hiirris v. Myers 1S;{ 
 
 I larrison, K\ p 8r> 
 
 Harrison v. Dingman t;s, :',o!t 
 
 I liirrlson v. Crier \4^ 
 
 Harrison v. Jones 71;, S2 
 
 Harrison v. Harrison 12 
 
 Harryman v. Collins i;{r, 
 
 Hart V. Hawthorne 1 1 1 
 
 Hart V. McQiiestin 1»17 
 
 Hartley v. Ihirton L'()7 
 
 Harty v. Davis ;{2l 
 
 Hiirvpy V. Ingles :>4-_> 
 
 i 
 
 
r 
 
 ;ii 
 
 xlvi TAiii-K OF (AsLs crii;i>. 
 
 r.\(ii:. 
 
 Harvey v. McNeil H»::. IH!) 
 
 Flarvey v. Tebltul t 135 
 
 Harvey v. Wilde 42 
 
 Harwood v. Marye 38 
 
 Hawkins v. Jarvis IH4 
 
 Hawii v. Cushion 77 
 
 Hawthorne, He 12 
 
 Hay v. McArlhm- 249 
 
 Ffayos v. Hayes it:!. !)7 
 
 Haynes v. Haynes 114 
 
 Heath v. Crealoi-k 1"7. 2fiO 
 
 Heath v. Pngh t-M. ;!()0, ill.'., ".If., :!21 
 
 I [ehhlellnvaite v, Pcever 323 
 
 llecUlrs V. Heekh s S3 
 
 I lennuing v. Blanton 33(> 
 
 Henderson v. Astwood 74, 7.'), i;',.'., 212, ',W>Ct 
 
 Henderson v. Itank of Hamilton 12 
 
 Henderson v. Cowau 10, 120 
 
 Henderson v. Henderson 323 
 
 Henderson v. Kerr 32, 333 
 
 Henley v. Stone 13 
 
 Henry v. Smith 311, 321, 324 
 
 ilerclnner v, J<]lliolt 252 
 
 1 lertzel, Ex [) (if) 
 
 Hewish, lie 32, 291, 352 
 
 Hiberniu Savings and Loan Co. v. Herl)eri 38 
 
 llkdiins V. Kelley 18 
 
 Hiekson v. Darlow 18'J 
 
 I licdiman v. I'psall XUi 
 
 lliggins v. Crawford 32[> 
 
 I liggins v. l''rankis CO 
 
 Hill, Ex D 23t 
 
 Hill v. llickin 83 
 
 Hill v. Rowlands 71. 1()(> 
 
 Milliard v. Caini)bell ]2:> 
 
 Hime &, liOdley, Re 178 
 
 1 loare v. Stephens 10,'), ! kj 
 
 Hohart v. Abbot 21 
 
 Hobbcs v. Ontario Loan & Debenture C'-. 232 
 
 Hodge v. Attorney-General 157 
 
 Hodges v. Croydon Canal Co ,'v)«», :{i 1 
 
 Hodgson V. Hodgson dj 
 
 Hodkinson v. French r,(j 
 
 Hodgson and Howes, Re 215 
 
 Hole, Re 290 
 
 1 i ol ford V. Yale 1 1 9 
 
 Holland v, Clark ;5a^ 
 
 Holland v. Ross 28;j 
 
 Hollis V. Wise (•>,{ 
 
 Holmes v. Turner OO 
 
 Holt V. Mill \\'\[ i„^^ 
 
 
•J?'„ 
 
 lAIlM': OF 'ASKS (irKK. 
 
 nI\ ii 
 
 ^D.i 
 
 ;.^'^r 
 
 05 
 
 '# 
 
 ;'.52 
 
 -'% 
 
 38 
 
 Ss 
 
 18 
 
 ■^ 
 
 189 
 
 ^4? 
 
 32r> 
 
 CO 
 
 .51 
 
 M 
 
 TAX 
 
 
 K3 
 
 
 IOC 
 
 
 12r> 
 
 
 17S 
 
 
 ik; 
 
 
 21 
 
 ■^ 
 
 232 
 
 
 If)? 
 
 
 311 
 
 
 (17 
 
 
 r.t; 
 
 
 .2 If. 
 
 
 2S)(> 
 
 
 119 
 
 
 332 
 
 
 28X 
 
 
 . «s 
 
 « 
 
 . m 
 
 
 . KK 
 
 
 llniiiim V. AiulrcWH ^^'. 
 
 Hood v. I'iuston "'^< 
 
 Hood V. l'liiUii)s ■/■■',■,■■ 
 
 1 looUiT V. Morrison '^-'*' •5•"^'■ 
 
 llfxiju'r. Ex p 
 
 Hooprr. U<~ 
 
 Hopkins, Re. l!;irnos v. HopUius 
 
 HopUiiis V. llopUins 
 
 HorlocU V. Sr.iitli 
 
 Hoiiicr, Re. i''ooks v. Tlornor 
 
 HnriiMy V. Moniu-ch liivestun'ut Co 323, 
 
 Hoimhlon \. Seveiioalccs 
 
 Houston, Re <'^. I'i^. 
 
 liowiird V, Macarii 
 
 Ho\v(iii v. I'.radbiirn ''^. 
 
 Howi s V. 'riH' Doniiiiioii I'Mrc & Marine Ins, Co 
 
 Hnghcs. Kx )) 
 
 Hnulus v. Coles 3i)S, 
 
 HukIh's v. Rccs 
 
 Hngiirs V, Williiinis 13, S'J, 10.', Ill, 
 
 Hiiuil! v, Wilkinson 30."), 
 
 I 111 I V. i'^iiconcM" 
 
 Hnnl. V. Acre 
 
 linn I. V. l''o\viu's 
 
 II nil I cr v. Myatt 
 
 lluntt'r V. Nockolds 
 
 llMiiliT V. Staiic 
 
 Unison V. \'alli«'rs 
 
 Unison V, Dallaway 
 
 Hyde v. Lar^;o 
 
 Ilyniaii v. RooUi 
 
 .\r, i;. 
 
 327 
 
 3IS 
 
 21!) 
 
 332 
 
 20 
 
 2'JO 
 
 31!) 
 
 43 
 
 S7 
 
 71 
 
 325 
 
 23(; 
 
 II!) 
 
 ;!n!) 
 211 
 
 71 
 3:11 
 101 
 3l)S 
 321 
 18.') 
 
 ■13 
 
 307 
 
 17 
 
 287 
 
 31 t 
 
 131 
 
 ■2\ 
 
 ir> 
 
 224 
 
 7) it 
 
 28;i 
 
 100 
 
 l.yU'liail \'. Hicrcc 
 
 Inilicrl 'l"('rry v. Carver 
 
 Iniperiai lianic v. IMetealfo L'23, 
 
 Imperial Loan and Investment Co, v. Uonlton 
 
 Imperial Loan and Investment Co. v. Cleghorn 
 
 Incorporated Society v. Ricliards 
 
 InKl<'s V. (;il(dirist 
 
 hiKfddhy V. Riley 27 
 
 Inman v. I'arsons |i)7 
 
 Inman v. Wearing KUi 
 
 I ron i'^nrnace Co., Re 234 
 
 Irvine, Doe, v, Webster 2t)0 
 
 Irvine v. McfJaulay ;j2:1 
 
 Irving V, .Mnnn 5li, 57 
 
 .lackson, Kx i) S.'i, 23r; 
 
 .lackson. R.>; Smith v, Sihtliorpe 28, 230 
 
 "•I 
 
% 
 
 xlviU TAIU-K Ol' CASES (ITEIX 
 
 i'AUK. 
 
 Jackson v. Hammond 177, 181 
 
 Jackson v. Yeomans IBl 
 
 Jackson v. Gardner 18;{ 
 
 Jackson v. Vail 334 
 
 Jacob V. Karl of Suffolk 72 
 
 Jacobs V. Hk'harda 107 
 
 Jacobs V. Robinson 287 
 
 James v. James 150 
 
 James v. Rumsey 6t> 
 
 .Fames v. Salter 30? 
 
 Jamieson v. Hacker 333 
 
 Jay V. Johnstone 322, 323 
 
 Jellett V. Anderson 93 
 
 Jellett V. Jones 273 
 
 Jellett V. Wilkie 343 
 
 Jenkins v. Ridgley 5(5 
 
 ,Ienner-Fu8t v. Needham lor>, 11".. UK 
 
 Jennings v. Jordan I'.rt 
 
 Jennings v. Ward 273 
 
 Job V. Job so 
 
 Johnson, Re, Sly v. Blake 325 
 
 Johnson v. Ashbridge 123, 12 ( 
 
 Johnson v. Evans u;3 
 
 Johnson v. Williamshurst i:!4 
 
 Johnston v. Cox 132 
 
 Johnston v. Johnston 105, 121, 121, 125, 127 
 
 Jones V. Tuberville 325 
 
 J(mes V. Bank of Upper Canada 48, 143 
 
 Jones V. Griffith ()3 
 
 Jordan v. Young US, ;{0!) 
 
 Joslin V. S. K. 11. Co 332 
 
 Kearsloy v. Phillips 23 ! 
 
 Keen v. Codd 3<), 1 1 
 
 Keim v. Yeagiey I!)<; 
 
 Keith V. Day 1(1. 5t! 
 
 Kelley v. Ardell 15. 19, 37 
 
 Kelley v. Imperial Loan 127, 273. 270 
 
 Kensington, Ex p 29, iil 
 
 Kensingtitn v. Ilouverie SO 
 
 Kerby v. Kerby 7t> 
 
 Kerr v. Bebee 1 50. 15S 
 
 Kerr's Policy, Ke <I5 
 
 l<;errick v. Saffery 31 
 
 Kilmnrray v. Greery {''■> 
 
 King V. Connor Ill 
 
 King V. Freeman 170, 171 
 
 King V. Hoare 215 
 
 King V. Hough Ill 
 
 King V, Martin 31 
 
TAIiLK OF CASi;,S CITKI). 
 
 xlix 
 
 Kingsland, Ro 
 
 KiiiKsmill V. (lardiuT 
 
 KiniiJiircl v. Trollopo 
 
 Kinnoiil. Earl of, v. Money 
 
 Kinsniiiii v. Roiiso :J05, 
 
 Kirclioffi-r v. Stafford 
 
 Kirkham v. Smith 
 
 Kirkpatrick v. Howell 
 
 Kloin V. Inion Fire Ina. Co 
 
 Klinck V. Ontario Industrial liOan Co 
 
 Kline v. Kline !M;, 170, 
 
 Knapp V. Bower 
 
 Knapp V. Cameron 164, 279, 
 
 Knarr v. Itricker 
 
 Knight, Re 
 
 Knot linger v. Bari)er 
 
 Knowles v. Chapman 
 
 Knowles v. Spence 
 
 Knox V. Simmons 
 
 I'Aoi:. 
 
 277 
 
 108 
 
 114, 191, 204 20.-) 
 
 44 
 
 318 
 120 
 133 
 lfi9 
 139 
 
 23r, 
 
 183 
 (if) 
 
 280 
 93 
 
 1 2!i 
 
 11)2 
 (i7 
 
 111 
 
 43 
 
 (13 
 3t)!> 
 332 
 
 23'. 
 
 11 
 
 lilt; 
 
 r>t; 
 
 37 
 
 27r. 
 
 «i7 
 
 so 
 
 7« 
 loS 
 
 •;r> 
 :!) 
 
 tT) 
 
 111 
 
 171 
 
 2ir. 
 iir 
 
 31 
 
 Mert ins 
 
 , Tyrrell 
 
 Mcintosh 
 
 I^onghurst 4(1, 
 
 il, 
 
 V. Ashford 
 
 I^aoon V 
 
 Lacon v 
 
 Lake v. 
 
 Lally V. 
 
 Lancashire Cotton Spinning Co., Re . . 
 
 Landowners, West of England, etc., Co 
 
 Lane. Ex p 
 
 Langton v. Langton 
 
 [.■angstaffe v. Fenwick 
 
 Langtry v. Dumoulin 
 
 Laplante v. Seamen 59, 
 
 Larkins v. Phipps 
 
 Latter v. Dashwood 
 
 Lavin v. O'Neill 
 
 Lawlor v. I awlor 
 
 Lawrason \ . Buckley 
 
 V. Fitzgerald l,^)fi, 
 
 V. Humphries 19, 1S1, 
 
 Ford 
 
 Maude 
 
 Ranney Kj, 
 
 Lawrason 
 Lawrence 
 Law ton v, 
 Layard v. 
 Lazier v. 
 
 ■m 
 
 Leavitt v. Pell 
 
 Leclimere v. Clamp .-,3, 04. 
 
 Leckey v. Dancer 
 
 Lee V. Howes 
 
 1 ^ee V. Morrow 
 
 Lee V. Shirrock 
 
 Leeds and Hanley Theatre of Varieties v. Broadbent 
 
 1 iics V. Fisher 63, 
 
 1 .ees V. Whitely 
 
 ii.v.si.—d. 
 
 (i7 
 
 ->(\ 
 
 128 
 
 101 
 
 234 
 
 78 
 
 29 
 
 130 
 
 90 
 
 93 
 
 299 
 
 325 
 
 S7 
 
 94 
 
 '11 \ 
 
 IfiS 
 
 2S) 
 
 334 
 
 01 
 
 r^^\ 
 
 21 
 111 
 
 53 
 224 
 22"< 
 
 92 
 259 
 170 
 210 
 
 111 
 
 I: t 
 
r 
 
 TAlW.i: OF CASES CITED. 
 
 '* 
 
 1', 
 
 .oitcli V. McLoliiiu 
 
 ^('ith V. Irvine 
 
 4Ci)i)iinl V. Uickotts 
 
 A'uVn' V. Fi'diih 
 
 ^t'tts V. Hutcliiiis G), Uui, 
 
 A'\\\n V. Jones 
 
 .(•win V. Wilson 32(i, 327, 328. 
 
 -t'wis V. John 
 
 ^ewis V. Nanglo 
 
 -(■wis V. 'l'iill)ot St. (Jmvol Road Co 
 
 ,i(l(l('ll V. Deacon 
 
 Jplit V. liigiit 
 
 .illy V. F^anghiirst 
 
 Jiuisay V IJaiik of M'>ntrf-!ii ... 
 
 .inscll V. rsoiisor 
 
 liquidation Estates Purchase Co. v. Willougliljy 
 
 >loyd, E.K p . 
 
 doyd V. Jones 
 
 jloyd V. J.,au(ler 
 
 doyd V. Ward 
 
 ,oeUliart v. Hardy 112. 113. 
 
 .oel<ing V. Parl<er 
 
 .oftus V. Swift, ...131. 
 
 .ondon and Canadian Loan Co. v. Evereii ... 
 
 ..ondon and Canadian Loan Co. v. iMoirl!H)n 
 
 .ondon and Canadian i^oan Co. v. Pull'ord 
 
 iondon Hank of Australia v. White 
 
 .ondon Loan Co. v. Smith ICl, 
 
 .ondon Monetary Advance Co. v. Bean 
 
 „ong V. Long 
 
 -ord, Re 
 
 ,ord V. Lord 
 
 .ord St. Jolin V. Houghton 
 
 ^oucli V. Da 11 
 
 ,ove, R(> 
 
 .ov(dl V. Gibson 
 
 .owe V. Morgan 
 
 .owe V. Telford 
 
 .uhbock, E.V p 
 
 .ucas V. Denuison 
 
 .uckhardt, Ro 
 
 ..udlani, Re 
 
 .usk V. Sebright 59 
 
 .yall V. Fluker 
 
 liynian v. Kirkpatrick 
 
 Lyon V. Ryerson 
 
 .V(ii;. 
 
 352 
 
 !tO 
 
 t;5 
 
 74 
 
 23(5 
 
 185 
 
 331 
 
 132 
 
 43 
 
 97 
 
 36 
 
 23 
 
 17« 
 
 179 
 
 32/ 
 
 219 
 
 29 
 
 88 
 
 31 
 
 14S 
 
 114 
 
 3ir> 
 
 32!) 
 
 128 
 
 156 
 
 49 
 
 70 
 
 251 
 
 53 
 
 49 
 
 92 
 
 309 
 
 331 
 
 341 
 
 132 
 
 42 
 
 13 
 
 262 
 
 f)7 
 
 317 
 
 256 
 
 325 
 
 , 63 
 
 333 
 
 110 
 
 250 
 
 Mo .Arthur v. Dudgeon 92 
 
 Mc.Artliur v. Prittie 99 
 
 McCragar v. McKlnnon 95, 98 
 
TAitr.r. or r\sKs riTF.n. 
 
 !tO 
 
 Ii5 
 
 74 
 
 , 2'M 
 
 IS.". 
 
 , 331 
 
 132 
 
 13 
 
 . llV 
 
 . 3t) 
 
 . 23 
 
 ITii 
 , IT'J 
 . 32 (• 
 . 219 
 . 29 
 . SS 
 . 31 
 . 14S 
 {. Ill 
 . :',i;1 
 
 I. 32il 
 
 . 12S 
 
 . 15G 
 
 . 49 
 
 . 70 
 
 . 2ra 
 yi 
 
 49 
 . 92 
 . 309 
 . 331 
 . 341 
 . 132 
 . 42 
 . 13 
 . 2«2 
 . ()7 
 . 317 
 . 2r.6 
 . 325 
 59. (J3 
 . 333 
 . 110 
 . 250 
 
 
 M 
 
 ..;■■* 
 
 .68, 
 
 M( f'iiriliy V. IJiiiiiliilT 
 
 McCaw V. Ponton 
 
 MiCnrn.ick v. McCornilck 
 
 M(C'iill(iugh V. Syl<«'S 
 
 McDcrinott v. K''«'iKin 
 
 MtDciiiioll V. >!cl)i'niinlt 
 
 MfDoiiiild. Ut>; McDouiiM v. :Mai-sh 
 
 MiDonnld v. Dni'iiv 
 
 Mcnoniild V. DdWiliiU. Ilo 
 
 McDmiiiM V. RlliotI <•«. 71, 3fHt. 
 
 Mcllonitji' •' I lime I-'"' 
 
 ^T«■l)(Hlilt ildli'M 
 
 iMcnoniilti > . Howe 
 
 McDonal.l v. Wriiilit 
 
 Mcnontii II V. McMnlion 
 
 A'cnoiifiill V. I.ilids.Tv I'jip'f .Mill Vo 91, 1S2 
 
 McCillivi-ay v. Canici-oii 
 
 MctJfPfrnr. Doc, v. Haw Uc . 
 
 M<f!r(>Kor v. iMcOnvtior 
 
 Ml (!nsan v. AI( (lugan 
 
 Millroy V. Hawke 
 
 Mclntyi'o V. Thompson Its, 
 
 Mr!\ay v. Howard 2.">7. 
 
 Ml Kay v, iMcFarlano 
 
 .MiKi'nzio, Doo d., v. Rutliprfonl 
 
 IMcKonzio v. Aetna Insiiranro (\) 
 
 MfKonzio V. Wi.ii^rins 
 
 MiKcnzii' '■ York liiiilding Co 
 
 M.Kil.l.o'- WiUiams 
 
 "V'lKlnni Hamilton 
 
 MiKinnoii AndiTsoii 1:L', 
 
 Mcl-aron v. Fraser 
 
 MrLarcn v, 
 McLean v. 
 McLean v. 
 M< Loan v. 
 McLean v. 
 
 l^lcl "iman v. .McLean 
 McLeod y. Woodland 
 McLnro v. IJlaok . . . . 
 McMahon v. Spencer , . 
 .Mc.Master v. Demmery 
 McMastor v. Hect(M' . . . 
 Mc:\lillan v. McMillan . 
 McQueen v. McQiu-en . 
 
 .A>. 
 
 Miller lt;3, HU, 
 
 C'ro.sH 
 
 I'-isli. Doe 
 
 tJrant 
 
 Laiillaw 
 
 191, 
 
 H 
 
 .\i!n. 
 
 70 
 
 97 
 
 1S» 
 
 3u9 
 
 (;.") 
 
 193 
 
 27t; 
 
 117 
 
 2.*.rt 
 
 322 
 192 
 
 isl' 
 
 3li 
 
 93 
 
 129 
 
 ISt 
 99 
 
 320 
 7S 
 
 2S7 
 
 ^'<■^ 
 
 100 
 
 277 
 
 lt:3 
 
 117 
 
 212 
 
 5i' 
 
 74 
 
 S2 
 
 24 
 
 ICii 
 
 74 
 
 2 SO 
 
 131 
 
 i2i; 
 2t;o 
 
 223 
 
 20V 
 
 2.S3 
 
 323 
 
 49 
 
 72 
 
 20.", 
 
 9S 
 
 11 
 
 92 
 99 
 B5, 98 
 
 IMacara v. Gwynnc 173 
 
 IVIacbeth v. :Macl)eth 221 
 
 Mactlesfield v. Felton 4:; 
 
 Muodonald v. Biillivant 219 
 
lii 
 
 TABLE OF CASES CITED. 
 
 I'AllI':. 
 
 Macdonald v. Macdonald os, 30f>, 322 
 
 Macdoiigall v. Macdongail 300 
 
 Machell v. Campbell ]'>H, 157 
 
 Maclaren v. Rivett 147 
 
 Maclennan v. Gray 0(j. 277 
 
 Macleod v. Jones 18!» 
 
 Macrae v. Evans Ill 
 
 Madison Avenue Church v. Oliver Street Church 77 
 
 Magnus v. Queensland National I?ank 191 
 
 Maher v. Fraser 322, 32() 
 
 Mahony v. Horkins 52 
 
 Mainland v. Upjohn «!» 
 
 Mair v. Kerr 12^ 
 
 Major V. Ward 241 
 
 Malone v. Malone 3it, 42 
 
 Mangles v. Dixon 70 
 
 Manley v. London Loan Co 70 
 
 Manlove v. Bale 07 
 
 Markle v. Ross itii, 107 
 
 Markwick v. Hardingham 31 7, 31 s 
 
 Marner v. Bright; Bagot v. Easton 3;'. 
 
 Marsh, Ex p 29 
 
 Marshall v. Shrewsbury Kit) 
 
 Marshfield, Re (JS, 30:t, 310 
 
 Marson v. Cox 204 
 
 Martin v. London, Chatl'am and Dover Ry. Co l.")2 
 
 Martin v. Miles 44 
 
 Martindale v. Clarksou 32. 349 
 
 Mason v. .Johnston 32:^. 
 
 Mason v. Seney 50, !»2 
 
 Masson v. Roblin i:5it 
 
 Matson v. Dennis 227 
 
 Matson v. Swiit 23(1 
 
 Mathers v. Helliwell ]-,[), iti » 
 
 Mathiescn v. The Mercantile Finance and Agency Co., Ltd... 342 
 
 Matthews v. Matthews 11 H 
 
 Maule V. Beaufort 34 
 
 Mayer V. Murray so 
 
 Meacham v. Cooper 92 
 
 Meir v. Wilson 147 
 
 Mellersh v. Brown 69, 71, 30;» 
 
 Melling v. Leak 30(i, 307 
 
 Mellish V. Brooks 30;t 
 
 Mellor V. Porter 12S 
 
 Meneilly v. MoKenzie I7S 
 
 Merchants Bank v. Grant 99 
 
 Merchants Bank v. Sparks 249 
 
 Merchants Bank v. Thomson 3.'? 
 
 Merriam v. Cronk SO 
 
 Merriam v. Bonner 132 
 
 Metcalfe v. Campion SO 
 
 'I 
 
 1 I 
 
10. w 1 1 
 
 . . 18!» 
 
 . . Ill 
 
 r»rr 
 it 
 
 . . 191 
 
 2. aiT) 
 
 . 52 
 
 . . fi!> 
 
 . . ^2% 
 
 . 241 
 
 it. 42 
 
 . . 70 
 
 . . 70 
 
 . . (i7 
 
 (i, 107 
 
 7, ;!ls 
 
 . . o;i 
 
 . . 29 
 
 . . Hid 
 
 :t, sirt 
 
 . . 204 
 
 . . 1.-.2 
 
 . . 44 
 
 2. ;}4it 
 
 . . :V2?, 
 
 5(;, !t2 
 
 . . i:5i> 
 
 . . 227 
 
 . . 2:w 
 
 9. It; » 
 
 . . 342 
 
 .. IH 
 
 . . 34 
 
 . . SI) 
 
 . . !)2 
 
 . . 147 
 
 1. 30;t 
 
 (i, 307 
 
 . . 3i>;t 
 
 . . 12S 
 
 . . \1H 
 
 . . !t!) 
 
 . . 2 19 
 
 .. 3.-? 
 
 .. SO 
 
 .. 132 
 
 .. SO 
 
 '■i 
 
 TAHLE OF CASES CITED. lill 
 
 PAr.R. 
 
 Meyers v. Harrison 8, l.'SO 
 
 Middlebury v. Stevens 71 
 
 Middleton. Lord, v. Eliott 66, 129 
 
 Miles V. Cameron 124 
 
 Miller, Re 183 
 
 Miller v. Brown 317 
 
 Miller v. Cook 273 
 
 Miller v. Imperial TiOan and Investment Co 234 
 
 Miller v. Pilling 95 
 
 Millett V. Davey 77 
 
 Millington v. Thompson 332 
 
 Mills V. Choate 112. 113. 123 
 
 Mills V. Dixon 93 
 
 Mills V. .Jennings 36, 42 
 
 Minot V. Eaton 107, 108 
 
 Minns v. McDowell 22 
 
 Mitchell, Re Wavell v. Mitchell 42 
 
 Mitchell v. Barrett 167 
 
 Mitchell V. Hayes Ill 
 
 Mitchell V. City of London Assurance Co 211, 268 
 
 Mitchell V. Mit( hell 96, 9R 
 
 Mix V. Andes Ins. Co 24 
 
 Mocatta v. Murgatroyd 135 
 
 Moffat V. March IDl , 136 
 
 Moffat V. Thompson ;{2 
 
 Monk V. Benjamin 33 
 
 Miinro V. Pike 258 
 
 Montgomery v. Ball 13 
 
 Montgomery v. Calland S8, 135 
 
 Montgomery v. Shortiss 1S3 
 
 Montgomery v. Southwtdl 3i;{ 
 
 Moodie v. Leslie 79 
 
 Moore, Re 223 
 
 Moore v. Hobson ;-,! 
 
 Moore v. Merritt K; t 
 
 Moore v. Painter 7-, 
 
 Moore v. Perry 150 
 
 Morley v. Bird 226 
 
 Morley v. Matthews 74 ijj^ 
 
 Morley v. Morley 2(i7 32 ^ 
 
 Morphy. Re .]-,;{ 174 
 
 Morris v. Islip ' ' ' ' ^.j,- 
 
 Morrison v. Robinson y^j |J).) 
 
 Morroiigli v. Power 33"> 
 
 .Morse v. J^Tmb I,, j ^Jj 
 
 Morton v. ',V.)ods 2:5f 
 
 Moss, lie. Levy v. Sewill 66 l(i3 
 
 Mountain v. Porter "»'i 
 
 Muir V. Dnnnett -Vl 
 
 Muir V. Mnnro ~\'^h 
 
 Mulhallen v. Martini n 
 
llV TAHLE OF CASES r'lTED. 
 
 PA OR. 
 
 Mulligan v. Hendershott r9 
 
 Mumford v. Collier 235 
 
 Municipality of Orford v. Bailey 26, 143 
 
 Munro v. Orr 259 
 
 Munsen v. Hauss 1 14. 122 
 
 Munsie, Re 1)4 
 
 Munsie v. f.indsay 78 
 
 Murphy v. Meade 75 
 
 Murray v. O'Dea 83 
 
 Music Hall Block, Re 223, 352 
 
 Mutlow V. Bigg 324 
 
 Mutual Life Assurance Soc. v. Langley 102, 101, 105 
 
 Nash V. Glover 9? 
 
 National Bank of Australasia v. Cherry 26 
 
 National Hank of Australasia v. Hand in Hand Co 4!>, 
 
 70, 81, 8«i. 135, 341 
 National Permanent Mutual Benefit Bldg. Hoc v. Roper. .110, 115 
 
 National Provincial Bank v. Games 12ft, 131, 132, 133 
 
 Neesom v. Clarkson 75 
 
 Nelles V, VanDyke 96, 170 
 
 Nelson V. Booth 8(i, 87 
 
 Nelson v, Cochrane ,• 1 SO 
 
 Nettleship, Ex p TJ 
 
 Newbould v. Smith 328, 329 
 
 Xewling v. Ai)hott 74 
 
 Newman v. Selfe 154, 155 
 
 Newton v. Blunt 215 
 
 Nichol V. Allenby 180, 181 
 
 Nicholls v, Judson 38 
 
 Noble V, Line 130 
 
 Norris v. Chambers 12 
 
 Norris v. Meadows , 160 
 
 Norrish v. Marshall 21 
 
 North of Scotland Canadian Mortgage C ). v. Ikard 54, 170 
 
 North of Scotland Canadian Morlga.m- Co. v. Gcrmaii 210 
 
 North of Scotland Canadian Mortgage Co. v. rdcll 219 
 
 Northey v. Northey 221 
 
 Norton v. Cooper 67, 134 
 
 Norton v. Soule 22 
 
 Norton v. Warner 21 
 
 Nual v. Hill 74 
 
 O'Doll v. noty 153 
 
 O'Dontdiue v. Hembroff 92 
 
 O'Donohue v. Whitty 241, 276 
 
 O'Grady v. Mc(\'iff r vy 77 
 
 Ontario v, Wicrnaker 131 
 
 Orford, Municipality of, v. Bailey 26. 143 
 
 Osbourn V, Fallows 18 
 
 OsBulston, Lord, v, Yarmouth 69 
 
P.\r!K. 
 
 . ih 
 
 . 235 
 
 ;, 143 
 
 . 25') 
 
 , 122 
 
 . 94 
 
 . 7S 
 
 . 75 
 
 . S3 
 
 , 352 
 
 . 324 
 
 , 105 
 
 . 9^ 
 
 . 2H 
 
 , 341 
 
 », 115 
 
 , 133 
 
 75 
 
 ), 170 
 
 i, 87 
 
 . 180 
 
 . 2'J 
 
 i, 329 
 
 . 74 
 
 I. 155 
 
 . 215 
 
 ), 181 
 
 . 38 
 
 . 130 
 
 . 12 
 
 . KM 
 
 . 21 
 
 I. 170 
 
 . 210 
 
 . 2U) 
 
 ', 134 
 
 . 21 
 
 . 74 
 
 . 153 
 
 . ;>2 
 
 1. 2711 
 
 . 131 
 
 i, 143 
 
 . 18 
 
 . Ga 
 
 4 
 
 TAHLE «)F CASES CITED. Iv 
 
 PAGR. 
 
 ^=^^^-^fr' ;\v;;;;.v.v.v.v.Vi;"orm 
 
 I'agft V. K<le 
 
 l'Hg..t V. Foley ''''^ 
 
 Paisley v. Broddy :|;- 
 
 Faloy V. Flint - • ; V ' . 
 
 Palk V. Clinton '^^' '''• ^^ 
 
 I'alnior, Dof v. Eyre '"'^ 
 
 PalnifT V. Carlisle , 
 
 Palmer v. Walesby .... ^- 
 
 Parke, Ex p T,-, 
 
 I'arker, Re. Parker v. Parker -y^^ 
 
 Parker v. Butcher ' _ 
 
 I'arker V. Vinegrowers' Association ■■ ly>^ 
 
 Parker v. Watkins y- _• • 1;]'^' };l^ 
 
 Parkinson «'. Hanbury '■♦• '■'• -^ '• -';* 
 
 Parr, Ex p . "'. 
 
 Parry v. Wright ;; -^'' 
 
 Parsons v. Bank of Montreal '-• ■'" 
 
 Passmore v. Laylnirn ••• .,Jo 
 
 Patch V. Ward "^' ^^^Z 
 
 - Patch V. Wild ^ '^ 
 
 Paterson v. Holland l"*- 
 
 I'aton V. Wilkos 20, 1 52 
 
 Patrick v. Walbourne 'f^\ 
 
 Patridge v. Bere ^^'j 
 
 l'att«>rson v. Scott ;^i^ 
 
 I'atterson v. Tanner ^- • ~'j^ 
 
 Paul V. Johnson ^''' ' ' 
 
 Pavey v. Davidson ^ ' 
 
 Pawscy V. Barnes -^-^ 
 
 Payne v. Parker ^'' 
 
 Pavntcr v. Carew 117, 23(> 
 
 I'carcc V. Morris 44. 191, 20ii 
 
 Pcarnian v. Hyland 1"' 
 
 Pearson v. Canipl)ell 49 
 
 Pears v. I.ang "^-^ 
 
 P»'at V. Gott 14" 
 
 Peck, Doe d., v. Roe 19:1 
 
 Peel V. White 14it 
 
 i'.^ers V. Allen !'<'- 
 
 Peers V. Cceley 133, 134 
 
 Pegg V. Hohson -19 
 
 Pegloy V. Woods "i^l 
 
 Pt'll V. Northampton & Bunbnry Jn. Ry. Co 15J 
 
 P. Uy v. Wat hen 75 
 
 Penn V. Lord Baltimore 11 
 
 Pcnn V. Lockwood 81, 108 
 
 I'enncr v. Cannitt 143 
 
 I'coplo's Loan & Dci)osit Co. v. (Jrant 71 273 
 
 Percy, Re, Stewart v. Percy 349 
 
 Perkins v. Vanderlip , t>l 
 
 1 
 
 III 
 
'# 
 
 Ivi 
 
 TABLE OF CASES CITED. 
 
 56, 
 
 Perkyns v. Baynton 
 
 Perrin v. Davis 
 
 Perry v. Barker 
 
 Perry v. Perry 
 
 Peto V. Hammond 
 
 Peto V. Welland Ry. Co 
 
 Petti ward v. Prescott 
 
 Pherill v. Forbes 16 
 
 Phillips V. Davis 
 
 Phillips V. Munnings 
 
 Pickering V. Stamford 
 
 Piggot V. Jefferson 
 
 Pipe V. Shafer 
 
 Pitt V. Lord Camelford 
 
 Piatt V. Ashbridge 122, 123, 124, 
 
 Piatt V. Mendel 103 10,'.. 
 
 Playfair v. Cooper 324, 
 
 Playford V. Playford 
 
 Plumpton V. Plunipton 339, 
 
 Pollock V. Lands Improvement Co 
 
 Pollock V. Perry 
 
 Porter v. Porter 
 
 Portman v. Paul 142, 
 
 Portman v. Smith 
 
 Potts V. Warwick & Birmingham Canal Nav. Co 
 
 Powell v. Peck 
 
 Powell V. Trotter 75, 
 
 Power V. Lester 
 
 Powers, Re 
 
 Powers V. Merriman 
 
 Pni'd V. Hall 
 
 Pratt V. Bunnell 32, 255, 
 
 Prees v. Coke 115, 
 
 Prescott V. Tyler 
 
 Pressey v. Trotter 
 
 Price V. Berrington 
 
 Price V. Great Western Ry. Co 
 
 Price V. Price 133. 
 
 Prior V. Horniblow 
 
 Prittie v. Connecticut Kire Ins. Co 
 
 Proctor V. Cooper 
 
 Proctor V. Weller 
 
 Proud V. Proud 
 
 Provident Permanent Building Society v. (Jreenhil! 
 
 Provincial Insurance Co. v. Rcosor 
 
 Pryce v. Bury 
 
 Punnett. Ex p S5, 
 
 Purdy V. Parks 
 
 72 
 184 
 114 
 24y 
 
 34 
 152* 
 
 82 
 170 
 130 
 324 
 325 
 325 
 
 82 
 
 91 
 127 
 121 
 335 
 
 44 
 346 
 130 
 107 
 
 23 
 143 
 115 
 152 
 
 71 
 135 
 
 24 
 322 
 109 
 280 
 349 
 120 
 151 
 2.52 
 135 
 
 71 
 179 
 324 
 268 
 
 70 
 193 
 325 
 
 27 
 269 
 1,50 
 234 
 
 14 
 
 Quarrel 1 v. Beckford 67. 75. 88, 90 
 
 Queen's College v. Claxfon 204 
 
 I 
 
 •■?»■ 
 '■M 
 
 ^:¥W^-:'^'^^^'- 
 
TABLE OF CASES CirEI). Ivii 
 
 PAGK. 
 
 Kadcliffp V. Duffy 1|^9 
 
 Kao V. (ieddes '^^ 
 
 Rao V. Shaw 10]| 
 
 Rao V. Trim / ' j^'' 
 
 Rafferty v. King 31, 3U 
 
 Rakestraw v. Brewer 318 
 
 Ramus v. Dow •^'^ 
 
 Raphael v. Boehm ^^ 
 
 Raveuscroft v. P'risby '■^'j^ 
 
 Read v. Prest '■^^ 
 
 Reade v. Reade _— ^- 
 
 Reddiik v. Traders Hank of Canada -77, 287 
 
 Reeve v. Attorney-Ceuf ral l-''' 
 
 Reeves v. Butcher '^■^'■^ 
 
 Reeves v. (51astonl)ury Canal Co 8, 117 
 
 Regina v. Wiamer 331 
 
 Reid V. Reid •^-*'* 
 
 Reid V. Wilson "•'' 
 
 lienaud v. Conselyea '•' 
 
 Rew v. Fettet 33 1 
 
 Reynoldson v. Perkins 1-1 
 
 Hlio(l( s V. Hurkland ^^'^ 
 
 Rice V. Brooks 1-1 
 
 Rice V. KinRhorn •"'- 
 
 Riehards. Re 30!t 
 
 Riehardson. Re -^") 
 
 Richardson v. Youn.i;e 317, 3ir> 
 
 Rigney v. Fuller I 'il, 1 :">•"> 
 
 Ritchie. Re, Sewery v. Ilitchie l»2 
 
 Roberts, Re 71, 1 3i'. 
 
 Roberts v. Williams 135 
 
 Itobertson. Re 1% 
 
 Robertson v. French 27S 
 
 Roljertst)n v. Hetherington \()i 
 
 Robertson v. Th«' American Homestead Assn 35") 
 
 Robinson v. Byers 1 S I , ii22 
 
 Robinson \'. Dobson 143 
 
 Robinson v. Ridley Tti 
 
 Robinson v. Whitcombe 184 
 
 Robinson v. Wiltse 147 
 
 Robson V. Argue 179 
 
 Roby V. Doe Maisey :i06 
 
 Roch v. (\Tllen :i08 
 
 Rochfort V. Battersi)y ;5] 
 
 Rodburn \ . Swinnt'y 27»J 
 
 Uoddam v. Morley ;;i!4, 329 
 
 Roe v. Stanton 9li, 183 
 
 Rogers' Trusts, Re (i,-) 
 
 Rogers v. Lewis 41) 
 
 Rogers v. Maule 151 
 
 Rogers v. Rogers 2U, :{ti 
 
 i 
 
^. 
 
 Iviii TAIU.E OF CASES CITED. 
 
 Ronianps v. Hern 98 
 
 Uosel)atch V. Parry 95 
 
 Ross V. Parrault 90 
 
 Ross V. Stevonson ] 8tJ 
 
 Ross V. Thompson 11 
 
 Ross V. Vader f)!'. 1 (J9 
 
 Round V. Bell US, ;{09 
 
 Rowe, Re 'i2i 
 
 Rowe V. Jarvis 178 
 
 Rowe V. Wert 97 
 
 Rowe V. Wood 77 
 
 Rowell V. Jewett 7t! 
 
 Rowland v. Burwell 182 
 
 Royal Canadian Hank v. Cummer 2»i 
 
 Rumble v. Moore lO!), 141', 143 
 
 Rumsey V. Thompson 144, 172 
 
 Runcorn v. Nicholson 53 
 
 Russell V. Robertson 4tJ 
 
 Russell V. Romaines 7-1 
 
 Rustin V. Hradley 287 
 
 Ryan v. Gamble 326 
 
 Ryan v. Simonton 92 
 
 Ryckman v. Canada Life Ass. Company 251 
 
 St. John V. Rykert .' 71, 99 
 
 St. Johns, Dean and Chapter of, v. MacArthur 217 
 
 St. Paul's, Dean of 174 
 
 Salt V. Marquess of Northampton 273 
 
 Salter v. Edgar oG 
 
 Sanders v. Malsbury 251 
 
 Sanderson v. Ince 4S, 177 
 
 Sands v. Thompson ;i,3t> 
 
 Sandon v. Hooper 75, 135 
 
 Saunderson v. Caston 32 
 
 Sayiors v. Saylors 22 
 
 Scarlet v. Birney 9, KHi 
 
 Schoole V, Sail 11 
 
 Schram v. Armstrong 22 
 
 Sclater v. Cottam 13ti 
 
 Scol)ie V. Collins 234 
 
 Scott V. Black 57 
 
 Scott V. Heisch 290 
 
 Scott V. Jones 324 
 
 Scott V. McDoncll 110 
 
 Scottish American In v. Co. v. Brittle 45 
 
 Seager v. Aston 327 
 
 Second v. Trumm 2S7 
 
 Seidler v. Sheppard 43, 141 
 
 Seymour v. DeMarsh IV, 55 
 
 Siiarp V. Sharp 23 
 
TABLE OF CASES CITED. HX 
 
 r.vdK. 
 
 Sharpnell v. Blake <>*• 
 
 Stiarshaw v. (Jibbs "^^ 
 
 Shaw V. FmMly •• 1^1 
 
 Shaw V. Johnson ''^- '''_!'' 
 
 Shaw V, 'I'inis '■^ 
 
 Sheffield & South YorkHhire Permanent Bldg. Sue. v. Aizle- 
 
 wood -^2^' 
 
 Shej)iird V. Jones *•'' 
 
 Shepheard, Re I^'**' 
 
 Shepherd v. Duke •^-■* 
 
 Shepherd v. Titley ]^ 
 
 Sheppard V. Monanza Nickel Mining Co 2o9 
 
 Sievewright v. Leys ^*'*> '*^' 
 
 Simmons v. Blandy ''-^ 
 
 Simonton v. Graham ''^ 
 
 Simpson v. Smyth -• C ' 
 
 Sims V. Strachan '■^^' 
 
 Sinclair v. Jackson 'JS, 307, 301t 
 
 Singleton v. Cox ^1. ^^^ 
 
 Skead v. Holland 99 
 
 Skinner v. White 23 
 
 Smart v. McEwan 2Sl 
 
 Smart v. Sorenson 32, 349 
 
 Smith V. Honnisteel 74 
 
 Smith V. Boucher •^)3 
 
 Smith V. Brown 249 
 
 Smith V. Chichester 10 
 
 Smith V. Davis 16 
 
 Smith V. Green 201 
 
 Smith V. Hill (is. 30:S. 309 
 
 Smith V. Houston 92 
 
 Smith V. Loml)ardo 21 
 
 Smith V. Olding 102, 104 
 
 Smith V. Robinson 29S 
 
 Smith V. Smith ti6 
 
 Smith V. Spears 27*1 
 
 Smithett v. Hesketh 104. 105, 20ti 
 
 Snagg V. Frlzell 135 
 
 Snowdon v. Huntingdon ati 
 
 Solomon <fe Meagher's Contract. Re 23.S. 244 
 
 Soule V. Union Bank . . 'MH 
 
 Sovereign v. Sovereign !».=> 
 
 Sparhawk v. Wells 77 
 
 Sparks v. Purdy 41 
 
 Stackhouse v. Barnslow S2 
 
 Stacpoole V. Walsh 193 
 
 Stains v. Banks ilO 
 
 Staley v. Barrett ;{27 
 
 Stanford, Ex p 213 
 
 Stanhope v. Manners , (iJl 
 
 Stanley v. CJrundy 8 1, 234 
 
 
 i 
 
Ix 
 
 TAHl-E OF CASES CITED, 
 
 PAni:. 
 
 Stark V. Reid 20."), 208 
 
 Stead's Estate, Re 311 
 
 Steel V. Dickson 114 
 
 SteinhofT v. Brown HO 
 
 Stephens, Re, Warbiirton v. Stephens 324, 33.") 
 
 Sterling v. Campbell ISO, 18« 
 
 Sterling v. Riley 108, 109 
 
 Sterne v. Beck 281 
 
 Stevens v, Simpson 28, 181 
 
 Stewart v. Noble d,') 
 
 Stewart v. Robson 27t) 
 
 Stewart v. Stewart 70 
 
 Stlnson V. Pennock 2U» 
 
 Stockton Iron Furnace Co., Re 84 
 
 Strachan v. Devlin 117, lfi5 
 
 Strachan v. Miirney tltl, 117, lti4, 181 
 
 Strange v. Radford 1 2, 1 :>(► 
 
 Street v. Dolan 37, 143 
 
 Street V. Reilly 11!) 
 
 Strode v. Parker •)8 
 
 Stronghill v. Ansley 301 
 
 Stiirgess V. Pitner 130. 133 
 
 Superior Loan & S. Co v. Lucas 232 
 
 Sutherland v. Dickson 12S 
 
 Sutherland v. Rogers 02 
 
 Sutton V. Sutton 08. 30!t. 322 
 
 Swain v. Bringennin 324 
 
 Swan V. Swan 74 
 
 Sweet V. Combley 102 
 
 Swift V. Minter 151 
 
 Sykes v. Beadon 358 
 
 Symons, Re 80 
 
 Tanner v. Heard l-^r) 
 
 Tarn v. Tui-ner *4 
 
 Taylor V. Baker V.H 
 
 Taylor v. Cuthbert 109 
 
 Taylor v. Moslyn U^ 
 
 Taylor v. Stead 17, 181 
 
 Taylor v. Walker l''ti. liiS 
 
 Taylor v. Ward 1 7'» 
 
 Taylor v. Wolfe & Co 341 
 
 Teed V. Carruthers II 
 
 Teeter v. St. John 98, 141, ItKI 
 
 Teevan v. Smith 191, 202, 204 
 
 Teulon v. Curtis 133 
 
 Thibaudeau v. Miller 342 
 
 Thibodo v. Collar 10, «2 
 
 Thomas v. Torrance • 30 
 
 Thompson v. Baskerville 30 
 
 -m 
 
 
 * 
 .i- 
 
 
'jAiii,!'; oi' CASKS < rri:i) Ij^i 
 
 PACK. 
 
 Tlionipsoii V. Bowyer 317 
 
 'llionipsoii V. Callagan 136 
 
 'I'lioniijson V. Drew (iS 
 
 'l'li()ini)s()n V. Eastwood 308 
 
 'I'honiijson v. Fai."l)airn 173 
 
 Tlionipsoii V. Hudson 85, 88 
 
 'riiompsoii V. Lcit h , 70 
 
 'llionipsoii V. Luke !)8 
 
 'I'lionipson V. Macaulay 15(;, 15( 
 
 'I'lionipson V. Smith ID 
 
 Tlionipson V. Walker 98 
 
 'l'lu)ini)S()n V. Warwick 159 
 
 'llioriH' V. Hurd ;>29 
 
 'riionu; V. Newman 74 
 
 'lliorneycroft v. Crockett (ji)_ g^ 
 
 'i'hornliill v. Kvans (-,9 
 
 'I'liornliill V. Mannlnj; 122 
 
 'I'liornton v. Court (jg 
 
 Thorp V. Faccy •{.>,; 
 
 'I'lirefal Re 235 
 
 'I'liurRood V. Cane 53 
 
 'I'invaites v. McDonough 327 
 
 Tile V. Myers ^j^3 
 
 'I'ildesley v. I.odge j3q 
 
 Timpson v. London & North Western Ry. Co 24 
 
 Tipton Green Co. v. Tipton Moat Co. . 75 
 
 'i'oft, V. Stevenson 31V.323. 32!t" 331 
 
 i'olson V. .Tarvis j-^ 
 
 Toomes v. Conset " ,,~^ 
 
 'I'opliam V. Hooth -533 
 
 Toronto J{elt Line Ry. Co., Ri' 45 
 
 'i'orrance v. Winterbottom . . 3'.' 
 
 'i'olten V. Douglas ^' 
 
 Totten V. Watson "j^o 
 
 'i'owerson v. .Tackson .,[ „ '|. 
 
 Train v. Smith ^'^ 
 
 Treoothick. — v .'I'l 
 
 Trice v. Robinson ... .: 
 
 'i'i-imh\o V. Hill ;; il 
 
 Trinity College v. Hill WW ' ' \\\ •^,.; " ■•.;• J" 
 
 Tristram v. Harte ■ ■ • i-i. i-. i-4, 1.7 
 
 1'i-oop V. Mosier 
 
 Trulock V. Roby "^^ 
 
 Trust & Loan Co. v. Cuthi)er't' .' .' II' V-l 
 
 Trust & Loan Co. v. Gallagher "' ',„ 
 
 Trust & Loan Co. v. Kirk ... ;: ' :t.^ 
 
 Trust & Loan Co. v. La wrason . 'Zl' i'". 
 
 Trust & Loan Co. v. McCarthy :'!'' 
 
 Trust & Loan Co. v. M.-Donnell 'o 
 
 Trust & Loan Co. v. Reynolds VrV ir- 
 
 Trust & Loan Co. v. Rut tan . ' .Ij.'^' 
 
Ixii TAHLK Ol' (ASKS ('lTi;i). 
 
 I'AGi:. 
 
 Trust & Loan Co. v. Start 57 
 
 Trust Ai Loan Co. v. Stcvonson 32S 
 
 Ttirubull V. Symnioiitl.s 1»!() 
 
 'I'urni'r v. Hancocls 129 
 
 Tyler V. Hinton Iti4. 'JSO 
 
 'I'ylcr V. Thomas 179 
 
 Tyrwhitt v. Tyrwhitt 218. 2iy 
 
 Tysun v. .laokson 324 
 
 I'ndi rliay v. Head 2S,") 
 
 rniako v. Rochford 117 
 
 Cnion Hank of London v. Ingi^am (il*. 'JO 
 
 I'nion Insurance Co., R<> 211 
 
 I'pton V. National Hank of Rcadinv; 21 
 
 VanKlopk v. TyrroU 48 
 
 Van Xornian v. McCarty 2H(> 
 
 Vf-rnor v. General Trust ;]")() 
 
 Vickers v. Cowell 14. 18 
 
 Vincent v. Goinp; tJS, 307, 30'j, 311. 313 
 
 A'inccnt \ , WilliUf^ton 332 
 
 Voiscy, Ex p 232 
 
 Waddell V. McColI G8, SI, fi."., 123 
 
 VVaddell v. Smyth 92, !i9 
 
 Waldy V. Gray 107 
 
 Walkei'. Re 308 
 
 Walker v. Dickson 15. 31. 31. ItU 
 
 Walker v. .lones 207 
 
 M'alker v. IVIatthews f.t; 
 
 Walker v. Ware U. & H. Ry. Co 152 
 
 Wall V. .McMillan 21 
 
 Wallhridge v, Martin 179 
 
 Wallingford v. Mutual Soc (i8 
 
 Wallis. Re ' 13t) 
 
 Wallis V. Smith t;9 
 
 M'alnisley v. Bull 80, 94 
 
 Walsh V. Hourke 181 
 
 Walsh V. Lonsdale 285 
 
 Walton V. Hernard 82 
 
 Wainniau v. Howker i;7 
 
 Ward V, Cartt^r 314 
 
 Warner. Re 290 
 
 Warnock v. Prieur 52. 125, IGS, 171 
 
 Warren v. Taylor 107 
 
 Warring v. Warring 321 
 
 Wartnaby v, Wartnaby 23 
 
 Waterhouse v. Worsnop 23 
 
 A 
 
 ■':$ 
 
;i 
 
 :;{ 
 
 TAIII.M or CASKS riTED. Ixiii 
 
 rAiji;. 
 
 Wntcioiis EiiKinc Works v. M.Canii -''S 
 
 Wat.TS. U.' ^JJ 
 
 Watkins v, Williams • • ;';| 
 
 Watson V. Lindsay 2S3, .Uu 
 
 Watson V. !{(.yal Porinnnfnt I'.ldn. Society 3H9 
 
 Watts. U<\ Sn\itli v. Watts !''•' 
 
 Watts V. Hyd.' ' J"'* 
 
 Woavpr V. Vandiison -^^^ 
 
 Wct.h V Koi'kf ^l 
 
 WrliliiT V. mint '*^^ 
 
 Webster \. I'atteson y*'> 
 
 Webster V. Soiithey '^"^ 
 
 Webster v. Taylor •■• • l-''^ 
 
 Weed V. Stevenson '"'T 
 
 Weir V. Tavlor I-^' 
 
 Weeks V, Stoiirton MM, l!t2, L'lll 
 
 Wells V. I'rnst &- Loan ("o V-^^ 
 
 Wells V. Van Dyke 77 
 
 West London ronimercial Itank v Relianeo Permanent lUdK. 
 
 !Soci(>ty s^. -"■'> 
 
 Western Assurance Co. v. Capriol 110 
 
 Western Canada Loan & Savin;;s Co. v. ninin laO. Ids 
 
 Western District liank v. Turner sj 
 
 Westmacott V. Ilanley 2<u 
 
 Wetherell V. Collins 18 
 
 Whan V. Lucas 'M 
 
 Wliattou V. Craddock 7-' 
 
 Wheel, r V. Urooke liOt 
 
 Wheeler v. Howells 'IS. ;507, 'i-iK. SK? 
 
 Whitaker v. Forbes 12 
 
 Whit bread v. Lyall 101', 120 
 
 White V. fieasley ITt". 
 
 White V. City of Londcm lirewinj; Co SI. 1L".> 
 
 White V. Courtney 12 1 
 
 Whittield V. R()l)erts 72, lift 
 
 Whitla V. Halliday 1S1 
 
 Wiley V. Ledyard IS:; 
 
 WilKi-f ss V. Crawford 10 ». 172 
 
 Wilkes V. Kennedy ;J40 
 
 Wilkinson v. Cliarlesworth 72 
 
 Williams, Ex i) ,'2:V2. 'S.{\. 235 
 
 Williams v. Haun !(S 
 
 Williamson v. Seaber 71 
 
 Willis, Re 231^ 
 
 Willis V. Willis .[ 42 
 
 Wilson, Pennington & Payne, Re Snj 
 
 Wilson V. Campbell (if). 2si 
 
 Wilson V. Cluer S!) 
 
 Wilson V. Fleming 2.")9 
 
 Wilson V. Ilarman (j,-, 
 
 \\'ilson V. Hodgson 121 
 
 t' 
 
 1-V 
 
■% 
 
 Tr 
 
 IxiV TAItLE OF CASKS t'lTKD. 
 
 I'Ai.i:. 
 
 Wilson V. Kyle 2r.2 
 
 Wilson V. Metcalfe SS, 131 
 
 Winchester, Hislioi) of, v. MidhantH Ry. Co l.'i^ 
 
 Wise V. Wise 130 
 
 Wiseman v. Westhuui .")» 
 
 Wolley V. DniK <!7 
 
 Wolnierlmusen, Re 322 
 
 Wolverhampton & Staffordsliire Hanking ('o. v. Cieorge. .58, 
 
 12S. ir,r, 
 
 Wodd V. Sun- 17 
 
 Wood V. Wheater 192 
 
 Wood V. Williams is 
 
 WoodrntT v. Mills 21 S, 2!tt; 
 
 Woodward v. Phillips 7t> 
 
 Wormsley v. Start 1)2 
 
 WorthinKton v. Elliott 2i) 
 
 Wragg V. Denham Si) 
 
 Wright V. Leys 251 
 
 Wrixon v. Vize lUif), 329 
 
 Wyman v. Imperial Fire Ins. Co 212 
 
 Wyman v. Knight 191 
 
 Wynne v. St igan 3315 
 
 Yaggip, Re 74 
 
 Yeatman v. Reed (JS 
 
 York l^nion Banking Co. v. Artley 150 
 
 Yonng V. Ward ;■,(!, 39 
 
 Youngman v. Elmira 22 
 
 Younts V. Starnes 28 
 
 I 
 
 
■% 
 
 . ;;:»:: 
 
 . 131 
 
 , m:.' 
 
 131) 
 
 09 
 
 (17 
 
 ir,r, 
 47 
 
 192 
 IS 
 
 29(1 
 7(i 
 
 . 92 
 20 
 SI) 
 
 251 
 
 329 
 
 212 
 
 191 
 
 39 
 
 22 
 
 2S 
 
 INDEX OF RULES. 
 
 <^'oii. UiileH (l«87) 21S '''^"'''* 
 
 2r,g 139 
 
 m ".'. •'0.41 
 
 280 '•^ 
 
 305 '" 
 
 8U0 J-' 4!< 
 
 311 "1 
 
 324.. 1« 
 
 341 ; •'" 
 
 ;,.,7 "», 15, 17, .'-,.•{ 
 
 355;; :....149. HiO 
 
 3/5(5.... 1"^ 
 
 3/57.. 1"^ 
 
 358 J'!^ 
 
 393.. 1'-^ 
 
 77.) ;;; j^^ 
 
 780. 171 
 
 7HI.. 171 
 
 840 ■;;;;;;;;;; ^7' 
 
 989. l^'' 
 
 1438... •'■''•' 
 
 1141... 139 
 
 1444 ;;;;;;; 157 
 
 1490 11" 
 
 C!on. Rules (1897), 138 1^-^ 
 
 139 !'• 
 
 Ml 10 
 
 in;;;;;;;;;; '-^ •'• •"•!•'. i^- ^2, 53, 139, no 
 
 lo2.. .. •''•' 
 
 ir,3... 1<». 4) 
 
 102 []]'[[ ■!"• 41 
 
 107 ■"'•^ 
 
 170 ^•'' "0 
 
 184 ,][[ -^70 
 
 189. •'"'•'■ 370 
 
 1<)0 ^' 140, 149, 101 
 
 ,y;, '•'• l'^'-i<*. •■!<!. 40, 1(10,101,141 
 
 ,', " !!'> ^'0, 30, 40, 144 
 
 195...!!!.'.' 143 
 
 197 [[[[[[ 145 
 
 n.j.ji.— c. 24 
 
"^ 
 
 Ixvi 
 
 IN'IH:.\ <»!■■ ItULlvS. 
 
 I A(iK. 
 
 Con. KuluH (181)7), !".•'.» '21 
 
 20G. 
 '217. 
 218. 
 '_"21 . 
 'I'l'l . 
 •232 . 
 '2:»G . 
 *2H7 . 
 
 K'l 
 '23 
 •1-2 
 •12 
 
 •JH 
 
 lU 
 21« 
 
 II) 
 37 1 
 
 ♦Jt)3 10, 117 
 
 283 . 
 332. 
 334. 
 3.V2. 
 
 IJS, 
 
 •Jl.") 
 ISO 
 ".12 
 141) 
 If.l 
 153 
 155 
 
 378 8, '.I'.), 140, 149. I'lO. 
 
 37!) M, 
 
 380 s, 
 
 381 10, 156 
 
 382 157 
 
 3S3 1), l")t;. 158. 371 
 
 384 158 
 
 38.-) 10, 158, 171 
 
 38() 8, 140, 14'.), 159 
 
 387 1), 110. 161 
 
 388 H, II, (10. 117, 162. '27'.) 
 
 381) H, 117, 164. 270 
 
 31)0 .s, 117. 165, 
 
 31)1 1», 117, 165 
 
 3!)2 1), 165 
 
 31)3 10, 101. lO.-t. lOCi, 1.-)3, 166 
 
 395 22 
 
 3I)() 166 
 
 521) 17 
 
 ■)!).■> 1), .V2, .-u, 167, 171 
 
 oIK) s, 1), 13. 1(1. iVt, .")('.. ,)(!, 168, 171. 37<!, 377 
 
 003 1(> 
 
 COD .">7. K'lK, 171 
 
 Oil) 171 
 
 035 173 
 
 030 173 
 
 037 174 
 
 040 HI). 172 
 
 041 172 
 
 040 174 
 
 001 DO 
 
iXHEx ()!•• iii:m:s. 
 
 XVII 
 
 l'A(iK. 
 
 Con. link's ( IH<»7), tlCiti , 8. 17, 00, 75, 7 
 
 f.li7. 
 (174 . 
 
 ()7r. . 
 (;7t). 
 
 t'iH7 , 
 liHH . 
 (iHl) . 
 
 fJ'JO . 
 ('.Hi. 
 
 t''!»3 , 
 
 ti'.U. 
 ti't.') . 
 
 fUl. 
 
 i.Sl. 
 iU. 
 
 ur>. 
 
 74(1. 
 717. 
 
 NH. 
 
 74!i 
 
 7M . 
 7-.1. 
 7.>2. 
 
 754 
 
 7 M . 
 
 7-.(;. 
 
 7(17 . 
 
 7(18 
 
 7(l'.t. 
 
 770. 
 
 771. 
 
 772. 
 
 84(1. 
 
 817. 
 
 818., 
 
 !I71. 
 
 !».1(1 . . 
 11(17.. 
 IKIH . 
 1 !()•.».. 
 1170.. 
 117!.. 
 
 <t 
 
 7!>, 8.1 
 
 107 
 
 107 
 
 107 
 
 •12 
 
 '.»3 
 111 
 
 374 
 
 ••n.'i 
 
 .171, 174, IHO 
 .17«, 177, 18(» 
 
 Id. 47, 93, 179, H72 
 
 W<, 14;i, 182 
 
 ..!».», 184, MA 
 
 !>;{, U4, 184 
 
 03, <>4. 186 
 
 . . . 108, 186 
 .'.»3, !t4. 187 
 
 187 
 
 187 
 
 ...171, 188 
 
 '.•4. 18!> 
 
 .'.1(1, '.17, 183 
 '.Ml 
 
 . . . !)7 
 
 . . \n 
 
 .. »7 
 
 . 192 
 
 193 
 
 . 193 
 
 . 40 
 
 . . ,V.( 
 
 '■11,194 
 
 <.)l. 194 
 
 !)4, 193 
 
 I9S 
 
 I9S 
 
IXVllI 
 
 Hules (Appendix) 
 Form No. 
 
 INDEX OF HULKS. 
 
 «iK. 
 
 6' 
 
 2« .,1 
 
 4G ,,-, 
 
 47 ;^ 
 
 48 j? 
 
 7(5 
 
 J « . 
 
 77 
 
 ■>/ J 
 
 78 :: .,:: 
 
 85 
 
 
 8« ■; ;:: 
 
 58 "'. 
 
 54 ;;;;■■; u. 
 
 00 
 
 Ml 
 
 37fl 
 
 ii 
 
(IK. 
 
 67 
 
 :!(•)'.» 
 370 
 370 
 371 
 371 
 72 
 373 
 374 
 375 
 37fi 
 377 
 379 
 
 INDEX OF STATUTES. 
 
 HrAiciK. 
 
 I I 
 
 1:0 
 
 \-2 
 1 t 
 
 .lac. 1. . 
 «i»<>. 11., 
 
 <;.u. 111.. . . Ts 
 
 (;.n. 111.. .. 1 {V (".I -. 
 
 <;.•(). 111., r. .-) 
 
 A: 4 Will. 1 V . .•. 1:7 
 
 Will. IV., c. 1 
 
 Win. IV.. .•.•_• 1. 
 
 \ N \i. .. r. 7<; (Imp. I --0, 
 
 tS; !> Vii-.. <■. ItlC. (Iiiip.l 
 
 <•. 71 (("nil. I --'lit'. 
 
 N'ic, c. 7.'{ (('iiii.i 
 
 ■ • 7 22(1, 
 
 \ l.'i Vic. <■. •».". (Ciiii.i 
 
 & i.':t Vir., <•. :!.-. (iiiij).) L':.".). 
 
 «•. as (Iiiii..) 21)7, 
 
 iV: LM Vii.. c. 1 ir. (Imp.) -Jd'.i. 22!!. 
 
 A: 2(i V 
 
 H- 
 
 (Illip.). 
 
 !1 V 
 
 U V 
 
 _')> 
 
 
 10 
 
 22(». 
 
 ••►.... 
 
 7 (Oiit.i 
 
 -Ml (Out.) 
 
 j-J (Oiit.i. . 
 
 217, 
 
 23!>, 
 
 ») 
 
 \I1K 
 
 320 
 8 
 
 210 
 (> 
 (I 
 
 320 
 
 ;520 
 ."> 
 
 22(1 
 
 21.S 
 •»•)•» 
 
 217 
 2! 17 
 2!>S 
 2.".'. 
 24.") 
 17S 
 
 .MO 
 
 2(10 
 
 44 A: 4."> Vi. 
 
 i.". tV 4(; Vi( 
 
 Hi A: 47 Vi. 
 
 41 (Imp.). 
 
 2ii(», '_>(IS, 2(«>, 2i:'.. 22.'. 2:!(l. 2;iS. 24(i 
 
 10 Vi... 
 •".(> \"u-.. 
 U. S. (' 
 
 l»"> (Out 
 20 (Out 
 22 (Out 
 20 (Out 
 
 12 
 
 is.«i(; 
 
 U. S. o., is,s7. 
 
 (Imp 
 ( I mp 
 
 ) 
 
 
 
 
 
 
 
 •>04 
 
 ) 
 
 
 
 
 
 
 
 2;',;'i 
 
 t.). . . 
 
 
 
 
 
 
 
 
 '»40 
 
 .).... 
 
 
 
 
 
 
 . .20!!. 
 
 21(1. 
 
 •>•>,( 
 
 .». . . 
 
 
 
 
 
 
 
 
 t.t. . . 
 
 
 
 
 
 
 
 
 "10 
 
 27. .. 
 20. . . 
 
 
 
 
 • • ■ • 
 
 
 . .2:'.7. 
 
 2.".7. 
 
 :ti;o 
 •'1 
 
 ."•4 . . . 
 
 
 
 
 
 
 
 
 *';{ 
 
 ti(». . . 
 
 
 
 
 
 
 
 
 "107 
 
 04. . . 
 
 
 
 
 
 
 
 
 4» 
 
 02. . . 
 
 OS. .. 
 
 .14. 
 
 IS. 21, 
 
 2S, 
 
 nil. 
 
 200, 2: 
 
 2 2152. 
 
 2:{.".. 
 
 240 
 
 10. .. 
 
 
 
 
 
 
 
 .10, 
 
 •(•>•» 
 
IX X 
 
 INDEX OF STATUTES. 
 
 STATI'TK. PA(iI!. 
 
 li S. ().. 1SS7. .-. m 334, 335 
 
 c. 114 2o2 
 
 <•. 110 337. 3.3S, 3.tn, .340, ."m. .34J, 343 
 
 c. 132 24 
 
 c. 133 34S, .3.-.(), 3B1. 352, 353 
 
 <•. 1«!7 210 
 
 <■. 170 45 
 
 <•. 172 301 
 
 r. 175 28, 301 
 
 c. 170 2H 
 
 c. 182 2.5. 3»;i 
 
 <■. 183 21 
 
 K. S. O.. 1SS7. <-. 237 302 
 
 51 Vi<'.. c. ".» (Out.) 11) 
 
 51 Vif., c. 15 (Out.) 103, 28'.>, 211, 245 
 
 52 Vic. .-.54 2(;2 
 
 .53 Vic, <•. 31 (Doiii.) 2.5, 20 
 
 .53 Vi<'.. <•. 31 (Out. 1 330 
 
 .-. 32 343 
 
 .-. ;{3 (Out. I 178 
 
 c. 34 (1)1)111. » 238,304 
 
 .54 Vic. r. IS (Out.) 37, 31) 
 
 .55 Vic, c 42 lOiit.i 20 
 
 .50 \'i<-., c. .5 177 
 
 c 17 (i8. 82, 258, 309, :522 
 
 c 20 (Out. 1 37, 38, 3l> 
 
 <•. 21 (Out.) 22 
 
 c 22 .3.38, 342, 343 
 
 c 20 (Oiit.t 17l> 
 
 57 Vic. c 20 178 
 
 c 41 354 
 
 .5S Vi.-.. <•. 12 (Out. 1 1, 1T8 
 
 .-. 13 (Out.) 1>7, 178 183 
 
 c 25 (Out. 1 2.54, 34l> 
 
 51) Vi... ,-. 7 (Oil!.). . .' 37 
 
 <•. '8 lOiit.) 183 
 
 c. 40 350, :'.53 
 
 r.0 Vir.. . . 14 lOiil.i 37, 07. 181, 2.50 
 
 <■. :'.5 (Oiit.t 347 
 
 I . 28 (Out. I 27 
 
 c 20 (Uiit. 1 27 
 
 <. 30 (Out. I 21, 27 
 
 <•. 37 (Out.) 27 
 
 /. f. 38 (Out.) 27. ;{55, :!.50, :',57. 3.5S. 3.50, 300 
 
 . • c 42 (Out.) 28 
 
 I 
 
 t^ 
 
INDEX OF STATl'TKS. 
 
 I XX I 
 
 
 52, 353 
 
 . .. 210 
 
 . .. 45 
 
 . . . 3(51 
 
 •JS. 301 
 
 
 3r.2 
 
 
 19 
 
 n, 
 
 24.-, 
 
 
 2(52 
 
 2.-., 
 
 2(; 
 
 . . . 
 
 330 
 
 
 343 
 
 
 178 
 
 3S, 
 
 304 
 
 37. 
 
 39 
 
 
 20 
 
 
 177 
 
 09. 
 
 :'.22 
 
 38, 
 
 39 
 
 . , 
 
 22 
 
 42. 
 
 343 
 
 
 179 
 
 
 178 
 
 
 854 
 
 .1, 
 
 178 
 
 78 
 
 183 
 
 '•4, 
 
 349 
 
 , , 
 
 37 
 
 , , 
 
 183 
 
 50, 
 
 ;!r>3 
 
 ^1. 
 
 259 
 
 
 347 
 
 , , 
 
 27 
 
 , J 
 
 27 
 
 ■i 
 
 1S!)7, (. 29, s. 19 283 
 
 s. 20 283 
 
 '•• ''1. !^- 20 284 
 
 >*■ -7 284 
 
 ><• •'>" (3) 281 
 
 i^- •'"'< 141 285 
 
 ^- '>" 285 
 
 -• 110 ;.n 
 
 •■• "'■ "■ '-■' 287 
 
 '■• "' 259, ;!:;;5 
 
 "• '!> 288 
 
 c. 05 ^.. 
 
 '■■ "l.^' 11 289 
 
 •'*• 1"' 289 
 
 «• -1 290 
 
 •'*• •^- 290 
 
 *"• '^^ 290 
 
 «• •"> 290 
 
 «• ■^" 291 
 
 •'■ '-• ^- 1 <!' OS, H'2, 291, :!(»!». .•{•_'2 
 
 '•■ ~" 2IV 
 
 ^- ^'^ 292 
 
 **• "* 292 
 
 ^- - 292 
 
 "^—^ 294 
 
 ^- -■' 294 
 
 ^- ;!; 294 
 
 **• -' 294 
 
 "^^ -' 295 
 
 ^•-'» 295 
 
 '■■'" 295 
 
 ''• •" 295 
 
 ... n, ': .''■.■.■.■.■;.•.•.■.■.■;.. v.; .^ 
 
 r. 11!» . . ''■"■' 
 
 s ;{.. "" 
 
 .-. 12, .-..:: ^^ 
 
 — • ^ ::-:::::::::::::::::::::::i^ 
 
 *^' : 200 
 
 ^' ■] 208 
 
 "• 209 
 
 ''^ ■; I'll. 212 
 
 ^- !: 214 
 
 '■ ^ 216 
 
 "• ^ 216 
 
 «• •• 216 
 
 U' 
 
Ixxii 
 
 INDEX OK STATl.'TKS. 
 
 HlATLTi:. ,,AUK, 
 
 H. K. ()., Is'.iT, c. 1.21, B. 10 216 
 
 B. 11 219 
 
 !^. lli 222 
 
 »*. 13 II, l,s, L>s, 224 
 
 s. 14 225 
 
 s. ir. 230 
 
 s. IC. 230 
 
 s. 17 235 
 
 s. IS 238 
 
 s. lit 240 
 
 s. 20 240 
 
 .'^. 21 241 
 
 s. 22 242 
 
 s. 2;! 242 
 
 s. 24 243 
 
 s. 2r. 243 
 
 s. 20 244 
 
 s. 27 245 
 
 s. 2S 240, 245 
 
 s. 2!) 246, 27:? 
 
 s. Hi) 247 
 
 s. ;{1 14, CO, l.*}4, 248 
 
 s. :V2 250 
 
 8. ;i3 251 
 
 s. 34 252 
 
 c. 123, s. r. 2!KI 
 
 s. 21 300 
 
 o. 120, s. 1 253 
 
 s. 2 253 
 
 s. 3 253 
 
 s. 4 253 
 
 s.lu'd. A 254 
 
 sthoil, B, (.liiuso 1 255 
 
 (•laiis»> 2 256 
 
 clause '.\ 258 
 
 clauso 4 258, 2SS 
 
 clause r» 259 
 
 clause 260 
 
 clause 7 261 
 
 (4ause S 262 
 
 clause 1) 263 
 
 clause 10 264 
 
 eliuiso 11 264 
 
 dnuse 12 212.210,265 
 
 clause 13 269 
 
 clause 14 240, 270 
 
 
 i...-.^ 
 
1-AOH. 
 
 216 
 
 219 
 
 222 
 
 , '2H, 224 
 
 225 
 
 230 
 
 230 
 
 . ...235 
 
 238 
 
 .... 240 
 
 240 
 
 . ...241 
 
 242 
 
 242 
 
 243 
 
 243 
 
 . ...244 
 ...245 
 240, 245 
 246, 27:? 
 ....247 
 .34, 248 
 
 250 
 
 . .251 
 . . .252 
 . . . . 2!>!> 
 
 3()(> 
 
 ...253 
 
 253 
 
 ...253 
 
 ...253 
 
 ...254 
 
 . .255 
 
 ...256 
 
 ...258 
 
 158, 288 
 
 .259 
 
 ...260 
 
 . .261 
 
 ...262 
 
 ...263 
 
 ...264 
 
 ...264 
 
 40, 265 
 
 ...269 
 
 10, 270 
 
 INlJliX OF .S'J'ATUTES. 
 
 ix.xni 
 
 srAicii 
 H. S. ().. 
 
 IH!)7, Soiled. IJ., clause 1". ^„ '''^*"'" 
 
 ""''- ^*' 235, 277 
 
 •■'""«^ ^*' 117,237, 278 
 
 .. ,.,, "'"•^"'" 281 
 
 r.'v^K ;.'lO •^■' ^^' 181 
 
 .- 301 
 
 ■"'■ 1* 'W. 273, 302 
 
 •■>• 18... 
 
 s. UK.. ««« 
 
 S.20. 302 
 
 . ..1 302 
 
 , 303 
 
 ^7^" 303 
 
 c. i;!(i. s •> 303 
 
 .-. 133.^: 1 304 
 
 - 305 
 
 s: 17::::. ^oo 
 
 s. 18 307 
 
 s. i;. 312 
 
 s. 20. 313 
 
 s. 21. 318 
 
 ., .... 319 
 
 s:23:::: ^lo 
 
 .s. 24 319 
 
 s. 30.:: 334 
 
 .■. 131, s. 2....: ■.'.■.. ••■335 
 
 <-. i;{t; . . 336 
 
 s. 70:: ^'7.202 
 
 r. i;!7 223, 22S 
 
 .-. i:ts. s. s 243 
 
 s ,» 336 
 
 ^. 20.".'.'. 337 
 
 N. 30 ^ 
 
 s. 33 "^ 
 
 S.34 -'^ 
 
 s. :i-,... •«;«• 
 
 s. 30... •!-»" 
 
 ^. 37.. •'-*" 
 
 s. ;{8.. •'«' 
 
 s. 30....:.:::;; •'"*' 
 
 s. 40. . . '•''^- 
 
 s. ;i.>. . ;!^^ 
 
 .. 57. . ^^'^- 
 
 s. 00... -<'^ 
 
 ^ ,.,. 343 
 
 S'-lieJ. rule 2r» j'^'' 
 
 riiio 20 : : '^^^ 
 
 II.K.M. f. '"^U 
 
 Jii 
 
 ■11; 
 
 •f :| 
 
Ixxiv INhEX <>I' STATUTKS. 
 
 '•'.I.' lis ;i^r^ 
 
 rule .'ir» ;!-|r» 
 
 iiiif n :54r( 
 
 i;! :{4ii 
 
 <-. 1«7 Sli 
 
 C-. in:; 7s 
 
 s. 7 346 
 
 <•. KM 32 
 
 s. 7 348 
 
 c. Hi."), s. .'.... 354 
 
 .-. 174 217 
 
 >•. L'n.'.. s. 1<; 354 
 
 c. I'll, s. ir. 361 
 
 <•. 21:'., s. ir. 361 
 
 -■. 22:!. s. 1 361 
 
 (. ;!(I7, s. N 362 
 
 s. !t 362 
 
 •;i \ir. .. ir. (Oiit.(, s. 2 25U, L'SS 
 

 .•54r> 
 :ui! 
 
 .346 
 
 .361 
 .362 
 .362 
 
 JU. L'SS 
 
 PART I. 
 
 THE PltlNCIPI.ES OF RiKFCI.OSIlHH 
 
 
 ;tf 
 
i 
 
 ■'"X CJ 
 
I. INTRODUCTION. 
 
 A. FOKECLOSrKK INTHODr'CED INTO UPPER 
 
 CANADA. 
 
 AnTKjIITV of Hk.MKDV ol- FORF.CLOSL'RK, — TllO 
 
 r(|iiiliililt' ri;;lits «>f foreclosure iiiul I'cdeiiiplioii are well 
 known to beof colisideiillde iililiquil.V ill the liiw.s of Ellg- 
 land; and ll»e jurisdiciion of llie Coni't of ('hancery iu 
 niorlfrajje cases appeal's to li.ive been a {growth of a very 
 {gradual soil until the reijiu of Charles I., when the prac- 
 lice of iWma bills for foi'eclosure seems tirst to have been 
 inti'oduced in). 
 
 In Upper Caiuida the same ecpiitable rights appear 
 to date from the 4th March, ISJT. when a Court of Chan- 
 cei'v was eslablislK'd having; the Meutenant-Ciovernor 
 as the nominal riiancellor (//). The judicial functions 
 were actually exercised by the Vice-Chancellor. The 
 tirst \'ice-Chancellor was a Mr. Jameson, who will prob- 
 ably be better reuu-mbered as the husband of Mrs. Jame- 
 son (c) than fr<Mu any contributions of his to the science 
 (»r e<iuily jurisprudence. 
 
 NVas TiiKRK A CoruT OF Equity? — It may be not 
 f|uite correct to say that there was no Court of eipiit- 
 al)le jurisdi<tion in Upper (.'anada prior to 1S;{7. For 
 have we not it on the authority of a 
 
 that 
 
 i^nglish sol 
 
 "There is also a Court of Chancery, but the laws 
 give no information respecting that, nor, indeed, any 
 
 ((j) See Spence's Equitable' Jurisdiction of Courtof Chancery, p. COl. 
 
 (b) 7 Wm. IV. c. 2. See 58 Vict. c. 12 (Ont.), sec. 22. 
 
 (c) Author of " Winter Studies and Summer Rambles," etc. 
 
 H.F.M.— 1 
 
% FOllKCLOSrilE OF MOIlTflAOES. 
 
 otlu'i' Tom'ts than thoHc which have just bi'i'U ciniiiie- 
 
 The Slatulc '.V2 (Jco. III. c. 1 (IT. C.) 8. T). speaks of 
 ** Iho several ("ourls of Law ami K(i\iity wilhiii this I'ro- 
 viiiee." This, however, was not regarded 1»\ .liul^ie lloul- 
 lon "as liidieative of the leyislalive inin«l thai cMiuit.v 
 as a svshin ha<l been oi" was thereby iiitemled indireclly 
 to be rei ((Ionized as a rule for the decision of (inestions 
 ie}>ai'dinji' civil rijilils, whi'n they absteniionsly forbore 
 for half a century l(» establish any tribunal wherein 
 such a system could be administered " (r). 
 
 The I'liju'r Oanada Equity Court must, indted, have 
 had a most sha<lowy and unsubstantial existence. It 
 was unknown to Thief .histice Iiobinson, who has said: 
 *• No Couit of lC(|uity was ci'eated, and no provision 
 nuule foi- the exercise of an tMiuilable j>irisdietion, in 
 rej;ard to any »uie matter that belonj^s peculiarly to 
 c(|uity, nor any assurance held out by the Le;;islature 
 while they were iulroducinj; the lCn;;lish law in the year 
 17!H\ nor f<u* UKUe than thirty years afterwards, that 
 there ever would be a Court in I'pper Canada authorized 
 to administer what is in IOn<;land called equity"!/), 
 
 I'rior to ls;?7 there were a Master in Chancery and a 
 Clerk of the Crown in Cluuucry. otlicials doubtless per- 
 forming; some functions, and nndoubiedly drawinj:? pay. 
 Jt was arguable also that the Court uas in existence, 
 and that all there needed to be d«uie was to commissicui 
 an Equity dudj^e. 
 
 It was evident that the powers at the Colonial Ottice 
 were not (piite clear in their minds that there was no 
 e(|uitilile Jui'isdiction in rjiper Caua<la. For, in 1S27 
 .Mr. .l(»lin ^^'alp^de \>'illis proceeded to I'pper Canada 
 uu(h'r ;i jcomise from the Colonial (HVice that he had 
 been ajqiointed a .lud};e of the Court of Kinji's Hench of 
 
 ('/) Laws of tlie Uritish ColonioH, by John lit nry Howard, ns27) 
 vol. II. at p. 11. Cf. Summary of ColoiiialLaw, by Charles Clark, (1834) 
 at p. Jo.V 
 
 (-' Kimpson v. Rmyth, 1 E. & A. 200 (IHKJ). 
 
 (f) Simpson v. Smyth, 1 E. & A., at p. .'57 (I84(i) ; 2 0. S. 209.. 
 
 L 
 
¥ 
 
 INTUODli TION. 
 
 of 
 
 OtVu'O 
 ,:is lU) 
 
 IS27 
 
 ium 
 
 hit 
 
 da 
 had 
 •h of 
 
 1(1. '1827) 
 Ik, (lHa4) 
 
 ntpcr Ciiiiiidii iiiid also lOqiiity .Iiid^c, and that it was 
 iiitt'ii<l<Ml l(» cuimn'u to him llif ('<niital»l(' jurisdiction «)f 
 that i'rovint*'. On liis anivji! in Canada In- learned by 
 leller lliiit Ihe Crown lawyers hiid ^iven it as their o|tin- 
 ion thai Ihe olliee of iMpiity .ludp;e in Ijiper <"anada 
 (■<Mild nut liiwt'iilly he ereeted, exceitt hy an Ael of the 
 I'rovim iiil Mouse of Assembly (</). 
 
 Tin-re wiis ii deiil of poliliis mixed up in this matter. 
 Attorney* leneral b*ol»in-!(ui xi^-orou^iy o|»posiu}; Willis' 
 ap|iointinent as an Kt|uily .lud^«'. as well as opposiu'^; 
 the iniroduclion of a system of jurisprinleuce alien to 
 tliar whirh he himself as Attorney (leneral and after- 
 wards jis riiicf .lust ire administered (when politics were 
 nhsenii. with extraordinary ability. 
 
 Ai.iTAirox lOK A rotuT ()|- KoriTY. — Whether it 
 was thai Ihe troubles in which dud^fe Willis becanu' 
 involved, iind which caused him to be alternately re^jard 
 cd as a rebel and a nnirtyr. iiad directe«l the people's 
 mind to the lack of a t'hancei'y Court. <ir that the con- 
 tinual increase in land values had i'en«lei'ed more slrikin;^ 
 the injustice of Ihe ccunnum law a.s to mortjra^ie con- 
 tracts — whatever was the I'eason — in b*<L*N a movenu'nt 
 as commenced to erect an Kfjuity <'oui't. This niove- 
 
 w 
 
 nienl was conducted with the characlerisli*- parly bitter- 
 ness (»f those days, and the characteristic tlisrep;ard of 
 I 111' jtublic welfare. 
 
 In ISL'S desjiatches from the ('(donial OHice respect- 
 ing pro\ ision f(»r Ihe eslablishment of a Court of Ivpiity 
 were hiid before the House of Assembly, with reports of 
 the .ludjics and Crown olllcers respecting,' Ihe same 
 i.buirn. Ass, isi'S, p. ."»."» i, l>ut the opponents of ihe Court 
 succeeded in carryiu}; a residution "That allhou;;h this 
 House is sensible of His Majesty's jjracious intentions in 
 re;i;ird to the establishment of a Court of Chancery las 
 set forth in a despatch fi'om Ihe C(»|onial Secretary), it is 
 already so much occupied with impoi'tant measures lin- 
 tludinjf some that were unavoidably p(>stponed last sea- 
 
 (;/) See letter in Colonial Atlvocuto, Dec. lOth, 1829. 
 
 i 
 
4 
 
 FORECLOSURE OF MORTGAGES. 
 
 w ■ I 
 
 sion) as to render it impracticable to bestow upon thi» 
 question during the present session that mature con- 
 sideration which so important a subject requires." 
 (Journ. Ass. 1828, p. 100.) 
 
 In December, 1832, a committee of the House of 
 Assembly reported, " That whatever difference of opiniou 
 may exist as to the best mode of organizing a Court of 
 Equity in this Province, it cannot be denied that the in- 
 stitution of such a tribunal possessing extensive powers 
 is imperiously called for, and cannot be delajed without 
 subjecting His Majesty's subjects to the continuance of 
 an evil amounting to a denial of justice in prosecuting 
 and maintaining some of their most important rights." 
 
 And yet it was delayed for nearly five years. Bills 
 for the establishment of a Court of Chancery were in- 
 troduced into the Assembly in the sessions of 18;{2-3,^ 
 1835 and 1830, but were in each case shelved. 
 
 In 1835 the Colonial Secretary of the Melbourne 
 Government, in a despatch to Sir ..lohn Colborne (15th 
 June, 1835) referred to the fact that there was then no 
 Court administering etjuily in Upper Canada, and as- 
 signed that fact as one of the reasons for refusing assent 
 to the bill incorporating the Upper ('anada Life Assur- 
 ance and Trust Company. Lord (Jlenelg writes to the 
 Governor as follows: "As there is no Court of Ecjuity 
 in the Province, I do not perceive how any remedy is to 
 be had for the neglect or breach of any trust which the 
 company may undertake." There was at that time in 
 Upper Canada no process by which ii mortgage could be 
 foreclosed. (App. to Journ. Ass. 183(J-7, No. 10, p. 4; 
 letter of Daniel Jones, of Urockville, to Lord (Jlenelg, 
 November 27, 1835). The company had in its bill more 
 than supplied this lack of ecpiity jurisdiction, and had de- 
 vised for itself as intending mortgagee a special law of 
 mortgage. On this feature of the bill the Colonial Sec- 
 retary says: ** In favour of this company an entire alter- 
 ation is made of the law of mortgages. I am equally at 
 a loss to understand the motives of the innovations, or 
 
 I 
 
 - If,.'. 
 
 
 A. 
 
 «a^- 
 
INTUODUCTION. 5 
 
 the reasons which may be supposed to reqiiire that the 
 new hiw shonhl api»ly only to niortpifjes j?ranted to this 
 society, not niort^jatres for securinj; the advances of other 
 creditors." (.lonrnal of Assembly, WW, p. 2(»;{-4.) The 
 Colonial Oflice was tirm in its refusal to sanction such 
 special le^nslation (.lourn. Ass. ls:»i-7, p. 1S!>); and 
 tinally. in ls:{7. an art (//) was passed erecting,' a Court 
 of Chancery and vestinj,' in it the general power over 
 niort^'a;,M's. The eleventh section of this Act shows, in 
 ^Miarded terms, the harshness of the previous law. 
 
 S XI.— Ani> whrreah tlie law of England was at an early period intro 
 (iuced into tliia I'rovince, and lias continued to be the rule of decision 
 in all matters of controversy relative to property and civil rights ; 
 while at the same time, from the want of an equitable jurisdiction, 
 it has not been in the power of mortf,'aj»ee8 to foreclose, and mort- 
 f,'a^,ors beinf; out of possession have been unable to avail themselves 
 of their equity of redenii)tion ; and in consequence of the want of 
 these remedies, the ri(^lits of the respective parties, or of their heirs, 
 executors, administrators or assi^jns, may be found to be attended 
 with peculiar equitable considerations, as well in regard to com- 
 pensation for improvements, as in respect to the right to redeem, 
 depending on the circumstances of each case, and a strict application 
 of the rules established in England might be attended with injustice : 
 He it therefore enacted by the authority aforesaid. That the Vice- 
 Chancellor of the said Court shall have power and authority in all 
 cases of mortgage, where before the passing of this Act the estate 
 has become absolute in law, by failure in performing the condition, 
 to make such order and decree in respect to foreclosure or redemp- 
 tion, and with regard to compensation for improvements, and 
 generally with respect to the rights and claims of the mortgagor and 
 mortgagee, and their respective heirs, executors, administrators or 
 assigns, as may appear to him just and reasonable under all the 
 circumstances of the case, subject however to the appeal piovided 
 by this Act. 
 
 Was Thkre a SLUMnKiuxr, Equity of Redkmp- 
 HON? — After the passap' of the Act of 1S;{7(/) it was 
 a favorite subject of discussion, whether an ('(piity of 
 redemption had existed at all in Upper Canada prior t(» 
 the ,\ct. The better opinion appears to be that of .lud^e 
 IJoulton : "Allhounh it was, no doubt, common for 
 
 i 
 til 
 
 1 
 
 (/() 7 Wm. IV. c. 2. 
 (i) 7 Will. IV. c. 2. 
 
6 
 
 FOllECLOSUUE OF MOUTGAOES. 
 
 jitentlomon bred to the profcHsloii in T'ppor Canada, 
 wluMV the En^liHli law haw <'vt'r pn'vaiU'd, to speak of 
 equity as a principle, and to siieak of an equity of re- 
 demption as a beneficial interest in an estate, with which 
 their r«'adinj^ Kiif^liMli books had made tliem familiar, 
 yet I am constrained to advance it as my delilu'vate judi;- 
 ment. that no such interest as that existed in I'pper 
 Canada, excepting; in so far as the common an<l statute 
 law reco};nized it and would ^ive it effect " (/). 
 
 Lkgislativk Kecognitiox of EoiMTY OF Kkdemp- 
 Tiox, — Chief Justice Kobinson thouj^ht that the earliest 
 legislative allusion ir. Cpper Canada to a mortjranor's 
 rijj;ht to redeem was in IX'M (/,), Hut in this he was in 
 error. The sectiim to which he refers is the enactment 
 by whicli a ceif ificate of «lischiii';;e of nuMtyaj;!' is made 
 when rejiislercd to have the efTec) of a re c(»nveyance. 
 It happens tlial in the year 17!>r> a reji'isti'y Act i/i was 
 ])assed jiivinj: practically the same form of certificate 
 as is in use to this day. And the mai-^inal titles in the 
 collection of statutes made in is;il are " of a redcmi>tlon 
 of a nuM't^aj'c "; " of a ceiliticiite of such redemption." 
 
 MoKTc.Ac.K Kk.mf.1)Ii:s Mijoki. ls:i7. — Chief Justice 
 l{(dMnson says of Cpper Canada pi'ior to is:{7. that it 
 was "a country in which the law of Kuf-laud. uncon- 
 trolh'd by aiul unmixed with etiuily. had Ix-eii adminis- 
 tered foi" nearly fifty years; and where m<>rt^a<;<'s liad 
 been freely j>iven and taken liirou^iiioul all thai period, 
 both pai'ties beinji' left, in sucli cas 's as in all others, to 
 the lejiiil conseijuenccs of their coatracis " i/hI. 
 
 "The Lejiislature in ITIC* ^avc us liie law <»f Enji;- 
 hind as our rule o\' dcci.sLon {miii^. itv that law, if a nuui. 
 
 0) Sinipsnn v. Hmytli, 1 K S: \., 201 (IS Mi) ; 2 O. K «.-);<, 2'., c. Cf. 
 Roljinsoii, C.J., in ib., 1 E. & A., at p. 70, " rather a (jiRMtionablo 
 equity." 
 
 (A) Simpson v. Sniytli. 1 K. A- A., at p. 57. 
 
 (/) ar, Geo. III. c. 5, Sclieiiule. 
 
 (Ml) Hini|)Hon v. Smyth, 2 (). 8. 1 C. ; 1 E. A- A. 17^ (IHIC). 
 
 {mm) 32 Geo. IIl,(U.C.)c. 1,8. H.continue.l by K. S. O. 18117. c. Ill, 
 P. 1. 
 
INTRODUCTION. 
 
 who has uiortfjaKod his property for a debt, does not per- 
 form the condition, the estate of tlie other party be<'ome8 
 absolute; and he has tliis protection only at hiw aj^ainst 
 tlie consequences, tliat if tlie mortgagee, in order to j^ain 
 possession lu»s to brinj? an ejectment, then a (atute (7 
 (leo. II. c, 2(0 }j;ives liini tlie privilege of payinj> the debt 
 and costs at any time during; the pendency of the action, 
 and thus preserving? his estate" (n). 
 
 Itnt the statute 7 Oeo. II. c. 20, "can only be used 
 in cases where there are no accounts to be investijfated 
 and no disputed payment, when nothing; is to be douo 
 but for the Master to make a computation upon the face 
 of the mortjjat^e " (o). 
 
 No ItFMniDN- I >R Mortgagor Oit of Possi:ssion. — 
 In Decemlit I. |,s;{L'. a select committee of the House of 
 .\sscmbly i't'p(U'ted: 
 
 " Tiu'i'e are at present no means of redeemiii}? mort- 
 p;nfred estates after I ii( ilui'e and judj^ment in eject- 
 :iienl, and the possession chany;ed under a writ of jtos- 
 sessioii. Thus, a person >\ho, from inabilit.\ or any acci- 
 dental cause, has . wiMSfd to pay a trilling sum secured 
 by nuM'Igage on p^ >; : jy of great value at the day it be- 
 <auie <lue, is without the means of reclaiming this pro- 
 jierty, although he may otTer to paiy the money due by 
 him and fully indemnify the mortgagee " (/>). 
 
 It will be at (uice seen that none of the known forms 
 in use foi- moitgage-loaning — whether mortgage deed, 
 absolute ( (UiNcyauce or trust deed — could secure their 
 rights to both parties to the transaction. To enforce 
 the (|uasi trusts of a mortgage transaction a cMirt of 
 (■•luitable jurisdicti<Mi was essential. 
 
 Ill 
 
 i 
 
 15. (MlANdKS 1\ FOHKCLOsnjK PKOrElHRE. 
 
 The law of foreclosure established in Upper «'anada 
 oil March 11 h, ls:?7, was the law in force in Knglaml at 
 
 («) Hohiiia.,!!. C J., in Simpson v. Smyth, 1 E. \- A. O'J (ISKI). 
 
 ((>) II). , at p. (V2. 
 
 ('') Sec Journals of tlic flouae of Assembly. 
 
:■- 
 
 I 
 
 8 
 
 FOIIECLOSURE OF MORTGAGES. 
 
 that (latp. It may be useful to give a summar.v of some of 
 tlie chief alterations that have since been made in tlie 
 direction of rendeiing this mortgage remedy more effec- 
 tive and less cumbersome than when it came to the hand 
 of our first Court of Chancery in this Province. 
 
 Sale Instkad of Foreclosure. — June .'ird, 1853 (f/). 
 Instead of a forei losure a sale may be granted with an 
 order for payment of the deficiency. See Kiiley 'MS, >i~\). 
 
 Deposit nv Defendant. — June 3rd, 1853. A defen- 
 dant aslving sale must put up a deposit. See Kule 380. 
 
 Defendant May Have Action Dismissed on Pay- 
 ment. — June 3rd. 1853 (/). The defendant may, in (er- 
 lain cases, move to dismiss the action on payment of the 
 amount due for prim ipal, interest and costs. See Kulew 
 S88, 389, 31)0. 
 
 Personal Order for Payment. — June 3rd, 1853. 
 The morlgagee may claim payment of the mortgage debt 
 in an action for foreclosure or sale. See Rules 378, 380, 
 r.DG, 141. 
 
 Surety for Debt — June 3rd, 1853. A surety for 
 the payment of nuutgage debt may be joined in mort- 
 gage action. See llule 181). 
 
 Master CJiven Full Powers Without Direc- 
 tions. — June 3i'd, 1853. The Master may exercise his 
 powers without 8i>ecial reference to the statements in 
 the pleadings or specific directions in the judgment. 
 See Kule OOO. 
 
 Service on Execution Creditor. — June lOth. 185V. 
 It is sufiicient to serve the solicitor of an executiou credi- 
 tor. See Kule 332. 
 
 (</) In lHo(», Blake, C, Bpeakn of the practice of ilecreeiMf» a sale, 
 instead of a foreclosure, as not the practice of Westminster Hall, but as 
 establislieil in this country many years before he came to the Bench. 
 Meyers v. Harrison, J (Jr. 45"). 
 
 (r) The power of the Court of Chancery to »tay proceedinoii on pay- 
 ment of principal, interest and costs is an old power. Cf. Reeves v. 
 Glastonbury Canal Co , 14 Sim. 351 (1844). See also 7 Geo. II. c. 20. 
 
 
 
INTllODUCTION. 
 
 Ill 
 'Ut. 
 
 t 
 
 Speedy Foreclosike.— 1859 and 18G(>. Goodall v. 
 I{iiiTows(.s) ami IJhuhford v. Oliver (/) appear to contain 
 tl.e oi'iii'm of a itractice of holding abortive sales as a 
 picliniinary to foreclosure at a short day. 
 
 l»AiniES INTKKESTEI) IX EoLMTV AnOED TX MaSTER'S 
 
 Offfck.— -liine li!»lli, 1S(;1. Parties, such as holders of 
 u suli-dividcil properly, who should properly have been 
 made defcudiiuls to the writ, may, if tlu' Tourt thinks 
 fit, be added in the Master's ollice or (since 1st Septem- 
 ber, 1S!)7). dispensed with. See Ivule 100. 
 
 Possession-.— .lune L'Dth, l.SOl. Order for delivery 
 of possession may bi' made [before or] after final order 
 for fon-closure or dismissal of redemption action. See 
 Hules 'iW, 141. 
 
 ]'laintii-f Mav (iive Credit Notice.— June 21)th, 
 3St;i. To prevent the openinjj of foreelosure a plaint ill" 
 may. before the day ajipointed for jtayment, };ive a notice 
 ci-editinj,' the defendant with rents, etc., received. See 
 Kule ;JS7. 
 
 JticiiTS OF Defendant in* Kedemi'tiox Actio.v. — 
 Febiiiiiry lith. ISCm. A mortt^af^iee defendant to a re- 
 demjition action may, on default of i)ayment accordiii}^ 
 to report, t-itiier havi' a tinal order for foreclosure or an 
 order dismissin<»; the action Avitli costs. See Kules I191, 
 
 1'r.ecii'E Judgment. — December 20th, 18(15. Where 
 no defence, in certain cases. jud};nient may be obtained 
 on i»ra'ci[»e. See Kule 5!>l». 
 
 Judgment Against Infants. — April Ist, 1S<;7. Ap- 
 jilication is to be made in Chamlx rs for judf^ment when 
 some of the defendants are infants. Uule ')«),"). 
 
 Plaintiff May Make Defendant Conduct Sale. — 
 July 1st, ISC.S. The plaintiff may notify the (h'fendant 
 thai lie is to conduct sale instead of the plaintilT. See 
 
 Rule as;?. 
 
 
 r^ 
 
 m 
 
 pay- 
 es V. 
 
 U) 7 Gr. 449 (1859) considered in Scarlet v. Binney, 15 P. R. 283 
 (1893), Ferguson. J. 
 
 (0 8 Gr. 391 (18C0). 
 
 41 
 
 i 
 
10 
 
 FOUECLOSUllE OF MOUTOAOES. 
 
 Final Order Ex Parte.— July 1st, 1SG8(»). After 
 default of payment aocordinj; to report a tlnal order may 
 be granted ex parte, Sre Kule .'t85. 
 
 I'leadixgs May Be Noted. — September 27th, 1802. 
 liy analofjy to Hule 2(V.\ the pleadinjrs in a mortgage ac- 
 tion may b«' noted closed (r). 
 
 Further Time After the Six Months. — June 2:h'd, 
 1804. After the period of six months, if a further time 
 has to be fixed, the time allowed is one month. See 
 Kule :{0.'{. 
 
 Defendant Wishing Sale. — January 1st, 180(5. A 
 defendant simply wishing sxle may tile a memorandum 
 in the time limited for appearance. liule :{81. 
 
 Unitinc, \'arh)us Causes of Action. — September 
 1st, 1807. Formerly a foreclosure action could, under 
 Con. Kule .'541 lai be jolne«l with certain other actions. 
 Kut tile restriction on uniting causes of action is done 
 away witli. subject to the (liscrctioii allowed the (Jourt 
 by Kule 2;{7. See Kules 2:?2. 141. 
 
 C. (JKXEKAL PKIXCIPLES. 
 
 We may prolllably inseit here a few of the general 
 principles which govern the jn-actice of foreclosure. 
 
 Tiii'KK Mist He Defailt. — To give a moitgagee a 
 present right to foreclosure thei'e must be default in 
 the mortgage under which he means to proceed. 
 
 A mortgagee who hohls several nu)rtgages in fee on 
 the same land, one of which is not due, cannot foreclose 
 that mortgage with the others (jr). 
 
 The default, however, may be the default o\' nien-ly 
 an instalment of nrincipal or interest, and not neces- 
 sarily the default of the whole principal. 
 
 («) 111 a cnse in 1 Chy. Cli. 297 (Ilendersou v. Cowan). , Mowat, WO. 
 lays down tlie Banie rule. 
 
 (r) Decision in Morse v. Lamb, 15 P. R. <) (1S<)2). Hoyd, C. 
 
 (ir)' Thibodo v. Collar, 1 Or. 147 (18.50). 
 
 
INTUODUCTION. 
 
 11 
 
 in 
 
 ■ly 
 
 It has been li<'l<l lliat upon (U'fault in pa.vmont by 
 a iiiorl^'aKoi' <»f 5»>iv iiislalincnt of, or of iniri-cst upon, 
 inoi'tKJ>^'<' moiu'V, tlit' inort^'a},'*''* l»i»'* J? ''^'I't to a judg- 
 ment diivctinf; payment, or to foreclose on default the 
 whole amount secured by the morlga;;e (,r). 
 
 A mortjjap'e has a rijjht to lile a bill of foreclosure 
 the day after default; and thouj,'h such a course may be 
 extremely siiarp. he cannot be refused his costs (//). 
 
 When the arrears have been settled for by note, 
 snbse(|uently dislnuKMired, tin- m(Mt;,'a<;<'e before actual 
 discharjrc or reconveyance is entitled to foreclose (^). 
 
 ]'i..\i.\Tii-i- TO FoKixLosK Mist He ix Positidx to 
 KixoNVKV. — It se«'ms that the plaintitf will not be en- 
 titled to the absolute order of foreclosure aKiiin'^t a sub 
 seijuent mort;,'aj;e»' and the mortpifijor. unless he be in 
 a situa(i(tn to re-convey the legal estate in the mortgaged 
 premises ((/). 
 
 Hut where A. lent H. fl'.OOO, took two mortgages, 
 each foi' |1.(MI(>. on separate property, forechtsed one of 
 the moilgages, and then parted with the foreclosed jtro- 
 |)er(y. it was held no bar to a foreclosure of the other 
 mortgage [h). 
 
 FoKKCLosiKi: Acts i\ Pi:ks()N.\m. — The fact of the 
 lands being outside the jurisdiction will not lU'event the 
 (.'ourt granting foreclosure as between parties who re- 
 side within the jui'isdiction. A judgment in foreclosure 
 is a decr«'<' in jtersonam depriving a mortgagor of his 
 right to redeem ((•). This doctrine will not be «'xtended 
 
 (.r) Cameron v. Mcllae, 3 Gr. 311 (18,-,-.>). But See under Rule 388. 
 
 (y) Huniiett V Foreman, IT) Gr. 117 (IHf.H). 
 
 {:) Teeil v. Carruthera, 2 Y. it C. C. C. 31 (lsl-2(. 
 
 (d) l{oHH V. Tliomi>son, '2 Gr. t>24 (IS.M). Plaintiff fjivon only rcdfmp- 
 tion aj^aiiiKt first niortt^at^ee, wlio was absent from Province, and left no 
 one to receive money or re-convey to plaintiff. Cf. Schoole v. Sail, 1 
 Sell, .t Lef. 17t>. 
 
 (^) Hald V. Thompson, 1() Gr. 177 (ISr.n). 
 
 (<•) l^aset V. Hde, L. H. IS E(i. 1)H (1S74). Cf. Heckford v. Kemble, 
 1 Sim it St. 7, cases simultaneouslv in Enj'lisli and (!()li)nial ('onrts, 
 Rent V. Voun^. •» Sim. 1H(I ; Penn v. Lo>d IJaltimore, 2 W. .t T. L. C., 
 •1th Ed., 1IIJ7; Ewint; v. Orr-Ewinq, !) .\pp. Cas. 10; Pavey v. Davidson, 
 23 A. 11. '.» (ls«»(i) ; Burns v. Davidson, 21 O. R. 517. 
 
 ■;;i 
 
 •<ll 
 
12 
 
 FORECLOSURE OF MORTGAGES. 
 
 1 I 
 
 
 80 far as to direct a sale of lands in a foreign jurisdic- 
 tion ((/). 
 
 An Ontario Court will not grant a decree for re- 
 demption of a mortgage over lands in Manitoba at suit 
 of a judgment creditor of a mortgagor, whose judgment 
 being registered is, by statute in Manitoba, a cluirge 
 upon the lands, the judgment creditor and mortgagee 
 botli having domicile in Ontario (c). 
 
 Tin? tendency of modern decisions lias been to de- 
 cline jurisdiction with reference to foreign land (/). 
 
 Kkdi:i:m Hi-, Ft)KECLC)Si': Down. — Tlie most element- 
 ary i)rincii)Ie in the law of foreclosure is that the holder 
 of an interest in niortgaged land is <'ntitled to redeem 
 those in i)ri()rity to himself, and to foreclose or be re- 
 deemed by those subsequent. For a nu'sne incumbrancer 
 to put this rule into full o[)eration it is necessary that 
 both mortgages should be overdue (//). 
 
 Prior Mortcac.f.e Not Party to F(3Reclosl'rf,. — 
 It is a conseqm'uce of the foregoing principle tliat a prior 
 mortgagee should not be made a party except for the 
 I .irposes of redemption. Formerly there was a rule 
 (t^on. Kule .'{O.")) embodying this, but the pi-actice has been 
 thought so settled that the rule has been omitted in the 
 last const)Iidation as being unnecessary. The exceptions 
 will api)ear in the chapter on " Parties Defendant," under 
 the heading " Prior Mortgagee." 
 
 Titlk to the Estate Not to Be Debated in Fore- 
 closure. — Tlie object of a bill of foreclosure is to talie 
 away the ecjuity of redemption, leaving absolutely, in- 
 stead of conditionally, to the plaint ill' the title he has; 
 
 ((/) Ktrivn^e V Riulford, L"* O. R. 14(5 (1887). CL Norris v. Cham- 
 bers, •><) Reivv. '24(1 ; iJ UeG. F. & J. nSH, vendor's lien ; Re Hawthorne, 
 23 Cli. I). 74.{ (1HS3), niortHftge in Saxony, title disputed ; Harrison v. 
 Harrison, 8 Cii. App. 311) ; Wliitaker v. Forbes. L. R. 10 C. P. 585. 
 
 (f) Henderson v. Rank of Hamilton, 23 S. C. R. 71C (1894) ; 20 A. R. 
 64«>, reversing 23 O. R. 327. 
 
 (/) Sir H. Stronj,', C.J., in Henderson v. Bank of Hamilton, 23 S. 
 C. R., at p. 722 (1H!)4). Cf. British South Africa Company v. The Com- 
 panhia Do Mocanibique, I8'>3, AC. (502. 
 
 (.'/) Parsons v. Bank of Montreal, 15 Or. 411 (1808). 
 
 l! 
 
 la •' 
 
 »--iji 
 
.. R. 
 
 
 ■S 
 
 INTRODUCTION. 
 
 13 
 
 but not to amend that title (/t). It is true other causes 
 of action may, under the present rules, be joined with 
 an action for foreclosure; so that possibly an action for 
 forecl(»sure mit,'ht be brou^jht against the mortgagor, 
 joined with an action against a person claiming a para- 
 mount title. The Court, however, might exercise its 
 discretion by separating these causes of action (/). 
 
 Plaintiff Shoild Use Diligence in Framing Ac- 
 tion. — While great freedom of amendment is allowed a 
 plaint itT under the present practice in foreclosure, it ia 
 still incumbent on him to use some diligence in framing 
 his proceedings; as, for instance, in indorsing his writ 
 with the relief reipiired (/), or in tinding out the correct 
 parties defendant (A). 
 
 I'kusons Entitled to Mortgage Monev and to 
 Kquity Must Be 1'arties. — Generally speaking, there 
 can be no redemption or foreclosure unless all the per- 
 sons entitled to the mortgage money and to the equity 
 are before the Court. Thus, a person entitled to a sixth 
 part only of a sum on mortgage is not at liberty to bring 
 an action for foreclosure of a sixth part of the mortgaged 
 estate (/). On the other hand, a person having a partial 
 interest in the ecpiity of redemption cannot maintain an 
 action for redemption in the absence of the other parties 
 interested {ni). 
 
 If necessary, one of twc joint mortgagees may make 
 the other a defendant (y/). In the absence of agreement 
 to the contrary, joint mortgagees are tenants in common 
 
 ('/) See Fislier on Mortf,'age, 5tli Ed. (1897), S 988, citiug Anon, 2 Cli. 
 C&. 244. 
 
 (/) See Rule 2.S7. 
 
 (J) See under Rules 141, 590. Cf. IIu«hes v. Williams, 3 Mac. & G. 
 (588 (18r)2), relief asked inconsistent with foreclosure. 
 
 (A) See under Rule 190. 
 
 (/) Palmer v. Carlisle, 1 Sim. & St. 423 (182.3). Cf. Lowe v. Morgan, 
 1 Bro. C. C. 3(58. But See Montgomery v. Ball, 3 Ves. 5t>0. 
 
 (m) Henley V. Stone, 3 Heav. 3).') (1H40). Cf. Calverley v. Plielp, 
 Madd. 229 ; Audsley v. Horn, 26 Beav. 19"). 
 
 (»i) Davenport v. James, 7 Ha. 249; 12 Jur. 827 (1848). Cf. Wiltsie 
 on Foreclosure, vol. 1, s. 78 et seq. 
 
 m 
 
 
14 
 
 FOUECLOSUllE OF MOinOAGES. 
 
 of tho mortpja}j;o inoiioy, nnd when deconsod must be 
 I'oprcHcntcd (o). 
 
 Mortc.agee's Right to Pursur IIis Rkmedif.s 
 SrMUi.TANHoL'SLV. — A iiioi't jjnjj('<''s rlpht to pursue his 
 rciiu'dirH siinultiiiicously \h liniitcd jih to brin^in^ actions 
 for fori'closui'c siiid personal judf^nicnt hy the danjjei* 
 of opening foicelosiirt by receiving 8uniH realized under 
 the personal judgment; 
 
 — is limited, where notice of sale (or demand of pay- 
 ment) has been ^nven, by K. H. O., 181>7, e. llM, s. 'M. 
 
 — iH limited by the tendency of the Court to make 
 the ])laintit1' pay costs for vcxaticnis jiroceedinjis ; as 
 where a derivative moitj;a};ee brin}?s two suits simul- 
 taneously for foreclosure (/>). 
 
 I'laintifk Must Judge if ITf Will TTavf Kffkr- 
 ENCE. — Except in the case of infants (where a reference 
 is as of course), a plaint ilf must decide for himself whe- 
 ther he will ask for a reference as to incumbrancers or 
 for any other purpose. If he omit to tjike a refen'nce 
 he may discover some person who should have been for<»- 
 closed. and be itut to the necessity of either settiu}; 
 aside his proceediufjs or brin^injj; a further action. If 
 he unnecessarily take a reference he will be disallowed 
 the costs thereof (r/). 
 
 (o) VickeiB V. Cowell, 1 Beav. 52!) ; 3 Jur. 8M (183'.»). See U. S. O. 
 1«!)7, c. 121, 8. 13 ; II. S. O. 18S7, c. 102, h. 14. 
 
 (/)) Gayo V. Stafford, 1 Vea. Sen. 513 (1750). Cf. Dunstan v. Patter- 
 son, 2 Pli. 341 (1847) ; Shepherd v. Titley, 2 Atk. 348. 
 
 ('/) See Pnrdv v. Parks, !♦ P. R. 424 (1883) ; Hamilton v. Howard, 4 
 Gr. 581 (1854). 
 
 f 
 
Wim' AX1> ri.KAIUNriS. 
 
 15 
 
 II. WRIT AND PLEADINGS. 
 
 Joining Vakiois ('aisl , or Action. — ViUw to the 
 issue of 11h' pn'snit niI«'H(»/) the atlltiudc of the CourtH 
 Wiis ii^MiiisI joining' otlici* riiiiHcs of iiction willi iirlioiiH 
 involving,' I he recovt-ry of hmd, Tims, Con. Kiih' .'54! 
 hiid (h; VII a ;;eiieriil rule aj^iiiiist such nii.xed actions — a 
 rule from liiiu' lo time ealen ap by «'x<ejilions, especi- 
 ally in the case of niortpiRc actions (h). The rule is now 
 al>roj;ale<l. an<l it remains to he seen lo what extent the 
 patii'nce of the Courls may he safely tried hy what, to 
 ]iaraphras(> the words of Hnrton.'I.A., will appear, to the 
 old fashioned notion.s, a very stranj^e and very objection- 
 able practi<*e(('). 
 
 Wvuims Claims That MouTOAOKii: Can Makk. — A 
 niortj^ajit'e can chiim foret-losnre or sale a^taiii'st those 
 below him an<1 redemption a;{ainst those aliove him in 
 priority. He may also claim an oi'der for delivery of 
 immediate |>ossession. an order for personal payment 
 against the mortgagor or surety, or an order for the 
 payment of a deticiency «tn a sale, lie may also claim 
 to have a receiver ajtpointed or an injunction against 
 Avaste, or the removal of lixt\ires by the occupant. 
 
 Indee<l, since the abrogation of the ruh'if/l, there 
 seems no limit to the various kinds and «|uantities of 
 relief he may claim in his writ, — the limit being to the 
 relief he will be granted. 
 
 Ki:i.ii:i' LiMiTKi) r.v Ini)(»ksi:mi:nt oi" Writ. — The 
 rules pr(»vide somewhat specllic foinis for the indorse- 
 ment of claims foi- foreclosure, sale, redemption, imme- 
 diate «lelivery of possessiiui and immediate payment (r). 
 
 ((») CominK into force Ist September, 1807. 
 
 (/') Cf. Con Kule Ml {<i). Cf. Kelly v. Arilell, 11 Gr. 'u'.) (\AC,r>), 
 action to enforce payment of le;^acy charged and mort;4at^e lield not mul- 
 tifarious. 
 
 (c) Cf. Walker v. Dickson, 20 A. R. 101. 
 
 (f/) Con. Rule 311. 
 
 (t) Rule 141. Form 9, Appendi.x II., sec. VI. 
 
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 FOKECLOSURE OF MORTGAGES. 
 
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 The penalty for not following the prescribed form 
 may be the refusal of the oflQcer to sign judgment on 
 praecipe, thereby depriving the plaintiff of the benefit of 
 Rule 596 (/). 
 
 It does not necessarily follow, however, that relief 
 not claimed in the writ will not be granted without the 
 bringing of another action (r/). For instance, an order 
 for possession may be granted even when the writ does 
 not claim it (/t). 
 
 Lands Should Be Specifically Set Forth. — The 
 forms prescribed in Appendix II., section VI., to the 
 Rules, require a description of the mortgaged premises. 
 Under the old Chancery practice, where the lands sought 
 to be affected were not set forth or the value of them 
 stated in tl t^ bill, tlie Master was directed to inquire what 
 lauds were ,i. affected and their value, further directions 
 being reserved until after his report (i). 
 
 Indorsk' "-!' FOR Liquidated Demand. — There does 
 not appear t-: .my great advantage in adding to the 
 indorsements fo' foreclosure or sale, an indorsement 
 under Rules 138 and 139 for a liquidated demand, being 
 the specified sum due on the covenant. For it does not 
 appear that the procedure for speedy judgment under 
 Rule G03 can be usefully made to supplement the proce- 
 dure in mortgage cases (;) There is nothing, however, to 
 prevent the procedure under Rule 603 being taken as to 
 the specially indorsed demand (A:). 
 
 How Far Relief Limited to That Claimed in 
 Pleadings. — It is not necessary that the pleadings 
 should be very explicit to enable the Master to exercise 
 
 (/) See Pherrill v. Forbes. 8 P. R, (1880). Cf. Gee v. Beil, 35 Chy. 
 D. 160 (1887). For old Chancery practice, see Drewry v. O'Neal, 2 Chy. 
 Ch. 204. 
 
 (g) See Keith v. Day, 39 Chy. D. 452 (1888). 
 
 (/)) See Best v. Applegate, 37 Chy. D. 42 (1887). Cf. Lazier v. 
 Banney, 6 Or. 323 (1857). 
 
 ((■) Glass V. Freckleton, 8 Gr. 522 (1861), 
 
 U) Cf . Bissett V. Jones, Cm L. J. Chy. (518 ; 32 Chy. D. 635 ; Smith 
 V. Davis, 28 Ch. D. 650, not followed. See also Imbert-Terry v. Carver^ 
 31 Chy. D. 506 (1887). 
 
 (k) Rule 603 (2). 
 
WRIT AND PLEADINGS. 
 
 his full powers on a reference (Z). But there are cases 
 where the relief granted may be limited to that claimed 
 in the statement of claim. Thus, where the statement 
 of claim asked an account to be taken, and the defend- 
 ant made default, the account was ordered to be taken, 
 although the plaintiff asked immediate judgment on 
 the covenant (jn). The principle in such cases is that 
 the defendant's admission (in making default of plead- 
 ing) must be taken as made only for the purposes of the 
 relief which is asked by the statement of claim (»). 
 
 Vexue in Foreclosure. — By Rule 529 it would ap- 
 pear that the venue of a foreclosure action, where im- 
 mediate possession is demanded, should be laid in the 
 county town of the county in which the land is situate. 
 This rule contains the words " the recovery of land," 
 substituted for the words " action of ejectment " in O. 
 J. A., Rule 254, which latter words had been held to 
 refer only to the old common law action, and not to the 
 order for possession in a forclosure suit (o). 
 
 Foreclosure as a Counterclaim. — A mortgagee, 
 defendant to a redemption action, is in as favourable a 
 position as if plaintiff in a foreclosure action : " Our 
 amended Rule 341 (a), excluding actions on mortgages 
 from the operation of the first clause of the rule, applies 
 equally to claims and counterclaims. The result is that 
 one rightlj' counterclaiming in respect of a mortgage can 
 ask for all the remedies incident to the position of a 
 mortgagee without contravening the practice of the 
 Court. This, besides, is a case in which the mortgage 
 accounts are asked to be taken by the plaintiff, and he 
 offers to pay what is due; it is merely a correlative right 
 that the defendant should ask foreclosure and posses- 
 sion in case the plaintiff fails to redeem " (/>). 
 
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 (I) See Rule 066. 
 
 (m) Faithful v. Woodle", 43 Chy. D. 287 (1889). 
 
 (n) lb. 
 
 (o) Seymour v. DeMarsh, 11 P. R. 472 (1886). See ib., at p. 475. 
 
 (/)) Boyd, C, in Hunter v. Stark, 17 P. R. 47 (1895). Con. Rule 
 .341 has been abrogated. ' 
 
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 18 
 
 FORECLOSURE OF MORTGAGES. 
 
 III. PARTIES PLAINTIFF. 
 
 ■; 
 
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 A. PERSONS INTERESTED IN MORTGAGE. 
 
 Joint Owners of Mortgage. — The subject of joint 
 ownership of a mortgage has been touched on in the 
 introduction under the sub-heading, " Persons entitled 
 to mortgage money and lO equity must be parties."* 
 Where the mortgage expresses tliat the money is ad- 
 vanced on joint account, the incident of survivorship at- 
 taches (a); otherwise the mortgagees n^e treated as ten- 
 ants in common of tlie mortgage mon^y (b). 
 
 Vendor, Mortgage Back. — A vendor with a mort-^ 
 gage back for the unpaid purchase money may foreclose, 
 and it is no defence to such an action that the vendor 
 (now mortgagee) had no title to a portion of the lands (c). 
 
 Legal Representative of Mortgagee. — Fisher on 
 Mortgages states: "The person in whom the legal in- 
 terest in the security becomes vested, whether it be 
 by the original mortgage (</), by assignment (c), or 
 [formerly] by devise (/), and though he be only a trustee 
 (fj) for the persons entitled to the mortgage money, is a 
 necessary party to a suit for redemption (/<) or fore- 
 
 (a) R. S. O. 1897, c 121, s. 13 : R. S. 0. 1887, c. 102, b. 14. See For- 
 syth V. Drake, 1 Gr. 223. 
 
 {b) Vickers v. Cowell, 1 Beav. 62!) ; 3 Jur. 864 (1839). 
 
 (c) Cockenour v. Bullock, 12 Gr. 138 (18f»5). For rights of assignee 
 of mortgage back when an outstanding incumbrance that vendor should 
 pay, see The Church Society v. McQueen, 15 Gr. 281. 
 
 (d) Wood V. Williams, 4 Madd. 186. 
 
 (e) Wetherell v. Collins, 3 Madd. 266. 
 
 ( f) Wood V. Williams ; Wetherell v. Collins ; Hichens v. Eelly, 2.- 
 Sm. & G. 264. 
 
 (g) Osbourn v. Fallows, 1 Russ. & M. 741. 
 {h) Wetherell v. Collins, supra. 
 
PARTIES PLAINTIFF. 
 
 w 
 
 closure (j). To the one that a reconveyance may be ob- 
 tained, to the other for the same reason, if the defendant 
 should redeem; and in the case of a judgment for fore- 
 closure, because the legal interest is to be protected by 
 the judgment " (7). 
 
 By the Devolution of Estates Act and Rule 193 the 
 executor or administrator of a deceased mortgagee 
 would, during his term of office, prima facie be the per- 
 son to bring foreclosure; but the Court may at any stage 
 add the devisees or persons beneficially entitled (A-). 
 
 It was formerly necessary in a bill to foreclose to 
 allege that an executor made party as plaintiff (/) or de- 
 fendant {m) had proved the will or acted as executor. 
 
 Tlie successor in office and not the personal repre- 
 sentative of an executor or administrator, is the proper 
 person to bring foreclosure (»). 
 
 Deceased Vendor, Under Agreement for Sale. — 
 Where there was unpaid purchase money under an agree- 
 ment for sale, a deceased vendor's personal representa- 
 tives appear, even before the Devolution of Estates Act, 
 to have been the proper parties to bring foreclosure; 
 the unj)aid purchase money forming part of his personal 
 estate (o). 
 
 Foreign ExecUtors and Administrators. — See 51 
 Vict. c. 9 (Ont.), " An Act respecting Ancillary Probates 
 and Letters of Administration " (p). 
 
 (i) Bartle v. Wilkins, 8 8im. 238 ; Smith v. Chichester, 2 Dru. & 
 War. 404. 
 
 (j) Fisher on Mortgage, iJth Ed.. § 1695, at p. 811. 
 
 {k) See Forsyth v. Drake, 1 Gr. 223, as to representatives of sur- 
 vivor. 
 
 (l) Lawrence v. Humphries, 11 Gr. 209. Held not necessary to make 
 the heirs or persons beneficially interested under the will parties, 
 (m) Kelly v. Ardell. 11 Gr. 579. 
 
 (/i) See R, S. O. 1887, c. 110, s. 3 ; Renaud v. Conselyea, 4 Abb. 
 (N. Y.) Pr. 280 (1856) ; Brooks v. Smyaer, 48 Pa. St. 80(1804). 
 
 (o) See Dart. Vendors A P., 6th Ed., p. 293, and cases there cited. 
 Cf. Thomson v. Smith, 63 N. Y. 801, 303 (1875). 
 
 (p) Cf. Dicey, Conflict of Laws, Rule 75, p. 351; Wiltsie on Fore* 
 closure, ss. 108, 109. 
 
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20 
 
 FORECLOSURE OF MOUFGAGES. 
 
 i u 
 
 Trustees and Beneficiaries. — By Rule 193 trustees 
 may sue without joining any of the persons beneficially 
 interested; but the Court or a Judge may at any time 
 order the beneficiaries to be added or substituted (</). 
 
 Where beneficiaries themselves wish to bring fore- 
 closure it would be the proper course to add the trus- 
 tees as plaintiffs or defendants. 
 
 Where Trust Attacked. — Until a deed, alleged to 
 be fraudulent, is declared void, it must be deemed valid. 
 Therefore, where, at the hearing of a foreclosure suit it 
 appeared that after the execution of the mortgage a 
 voluntary deed had been executed by the mortgagee 
 plaintiff, purporting to vest all his property in trustees; 
 that he alleged and had gone into evidence to sliow this 
 deed void as obtained from him fraudulently; that some 
 of the cestuis que trust had released their interest under 
 the deed, and that the others had not any part in obtain- 
 ing, and had not executed it: — Held, that such other 
 cestuis que trust must, notwithstanding, be m" ie parties 
 to the suit; and leave was given to the plaint.. ^ to amend 
 for that purpose (r). 
 
 Mortgagee-trustee for Sale. — Where a mortgage 
 is in the form of a trust for sale there cannot be fore- 
 closure; sale is the remedy (s). 
 
 Accommodation Mortgagees. — Where a mortgage 
 has been made to a person, so as to enable him to sell 
 or raise money on it and hand the proceeds to the mort- 
 gagor, the mortgagee will not, on his failure to sell, be 
 allowed foreclosure (t). 
 
 Officials. — Besides trustees and executors, ofBcials 
 generally, and their successors, may sue for foreclosure 
 where they have taken mortgages in an official capacity; 
 as the following: 
 
 (q) See Fisher on Mortrfage, 5th Ed., §§ 1644, et seq. 
 
 (?•) Rogers v. Rogers, 2 Gr. 137 (1851). 
 
 (s) Paton V. Wilkes, 8 Gr., at p. 257 (18G0). 
 
 (/) ee ) Worthington v. Elliott, 8 Gr,234 (1860). 
 
PARTIES PLAINTIFF. 
 
 m 
 
 A superintendent of insurance («). By the insurance 
 law of Ontario securities deposited with the Department 
 are vested in the Minister and his successors (<•). 
 
 The receiver or liquidator of an insolvent corpora- 
 tion, or his successor, may sue (ic). a liquidator has 
 power to bring or defend any action in the name and on 
 behalf of the company, being himself described in the 
 I)roceedings as " A. B., the liquidator of " (x). Fore- 
 closure by a liquidator, except after an abortive sale, 
 would be exceptional, his province being t<) 'alize and 
 distribute as quickly as possible. 
 
 A sheriff taking a mortgage back for part purchase 
 money after a sheriff's sale may foreclose (y/). 
 
 Assignee and Assignor of Mortgage. — The abso- 
 lute assignee of a mortgage may bring an action of fore- 
 closure, and his oath as to the state of the mortgage 
 account is prima facie sufficient without the affidavit of 
 the original mortgagee or any intermediate assignee (z). 
 Of course, if the assignment is not an absolute one, the 
 assignor must be made a party, either as plaintiff or de- 
 fendant (a). The assignor, himself, where the assign- 
 ment is not absolute, may bring foreclosure, making the 
 assignee (or pledgee) of the mortgage a defendant, if he 
 will not join as plaintiff (b). 
 
 Latest Assignee Sufficient. — "Where there has 
 been an assignment without the previous authority of 
 llie mortgagor, or his declaration that so much is due, it 
 
 (ii) Smith V. Lombardo, 15 Hun. (N. Y.) 415 (1878), action in name of 
 deputy. 
 
 (v) GO Vict. c. 36 (Ont.), s. 42. 
 
 («•) See Leavitt v. Pell, 27 Barb. (N. Y.) 322, 25 N. Y. 474 (18C2) ; 
 I^lehart v. Bierce, 36 111. 133 (18()4). 
 
 {x) R. S. O. 1887, 0. 183, 9 ; R. S. C. 1886, c. 129, ss. 29-31. 
 
 (ij) See Wall v. McMillan, 44 S. C. 402 (1895) ; 22 S. E. Rep. 424. 
 
 iz) Rule 751, R. S. O. 1887, c. 102, s. 11. Even where mortgagor 
 an. ,c!S full payment, mortgagee not necessary party : Gooderham v. 
 DeGrassi, 2 Gr. 135. Of. Upton v. National Bank of Reading, 120 Mass. 
 153 (1876), assignee in Bankruptcy or by general assignment. But see 
 Church Society v. McQueen, 15 Gr. 281. 
 
 (a) Norrish v. Marshall, 5 Madd. 475 ; Hobart v. Abbot, 2 P. W. 642. 
 
 (/>) See Norton v. Wafner, 3 Edw. Ch. (N. Y.) 106 (1837.) 
 
 
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22 
 
 FOUECLOSUUE OF MORTGAGES. 
 
 is enough to make that man a party who has contracted 
 to stand in the place of the original mortgagee, and all 
 assignees till the title was got in by himself " (c). 
 
 Assignment Pendente Lite. — By Rule 395, in case 
 of an assignment, creation or devolution of any estate 
 or title pendente lite, the action may be continued by or 
 against the person to or upon whom such estate or title 
 has come or devolved. 
 
 Person Subrogated to Mortgagee. — By 5G Vict, 
 c. 21, s. 76 (2), when a mortgage is paid off out of a new 
 loan, the discharge is to be registered within six months; 
 but " such registration shall not affect the right (if any) 
 of any mortgagee or purchaser who may have paid off 
 such mortgage to be subrogated to the rights of the 
 mortgagee whose mortgage debt has been so paid " (d). 
 Of co,urse, where a person is entitled to subrogation to 
 the rights of the mortgagee he may bring foreclosure (e). 
 
 Surety Subrogated to Mortgagee. — " If a person 
 who stands in the relation of surety to a mortgage debt 
 is compelled to pay it, he is entitled lo be subrogated to 
 the rights of the mortgagee, and may foreclose the mort- 
 gage in his own name, without a foriual assignment 
 either in writing or by parol " (/). 
 
 A surety who has received a mortgage from the 
 primary debtor on his own estate for the same debt as 
 the surety is liable for, may, it seems, combine an action 
 to foreclose this mortgage with an action to redeem the 
 mortgage on which he is liable (g). 
 
 (c) Gooderham v. DeGrasai, 2 Gr. 135 (1850). 
 
 (d) Cf. Abell V. Morrison, 19 O. R. 669 (1890) ; Brown v. McLean, 18 
 O. R. 533 ; Trust & Loan Co. v. Cuthbert, 14 Gr. 410 ; Cobb v. Dyer, 9 
 Me. 494 (1879). 
 
 (c) See Cobb v. Dyer, supra ; Ayers v. Adams, 82 Ind. 109 (1882). 
 Lovejoy v. Vose, 73 Me. 46 (1881) ; Youngman v. Elmira & W. R. R., 
 65 Pa. St. 278 (1870). 
 
 (/ Wiltsie on Foreclosure, s. 94 ; citing Minns v. McDowell, 4 Ga. 182 
 (1848) ; Norton v. Soule, 2 Me. 2 Greenl., 341 (1823) ; Saylors v. Saylors, 
 6 Husk. (Tenn.) o25 (1871). 
 
 (g) Schram v. Armstrong, 1 0. S. 327 Chy. 
 
PARTIES PLAINTIFF. 
 
 23 
 
 Purchaser After Defective Foreclosure. — 
 Wiltsie on Foreclosure says: "It may be stated gene- 
 rally that a purchaser at a foreclosure sale becomes an 
 equitable assignee of the mortgage foreclosed, for the 
 purpose of maintaining a second or strict foreclosure (/<), 
 to extinguish the liens of junior incumbrancers, who 
 were not made parties to the original action, or of per- 
 fecting a foreclosure in any way defective; he is entitled 
 to an action de novo on the mortgage " (j). 
 
 B. PERSONS UNDER DISABILITY. 
 
 Lunatics. — In case of a lunatic, or person of un- 
 sound mind (not so found by inquisition or judicial de- 
 claration), he may sue 
 
 (1) by his committee (;) ; 
 
 or (2) by his next friend (k) ; 
 
 or possibly (3) by the Attorney-General {I). 
 
 It seems that any person, though financially worth- 
 less, may be a next friend (m), provided the plaintiff is 
 really of unsound mind (/<), and the action is for his 
 benefit (o). 
 
 An action brought in the name of a lunatic, without 
 either a committee or next friend, is irregular (p). 
 
 If, after action is commenced, the plaintiff is found 
 a lunatic, the committee should be substituted as a plain- 
 tiff for the next friend (q). " If the plaintiff becomes a 
 
 (h) " strict foreclosure '-' is what we call foreclosure. 
 
 (0 S. 92. 
 
 0) Rule. 217 Cf. R. S. O. 1897, c. 65 ; R. S. O. 1887, c. 54. 
 
 {k} Rule. 217 Cf. Porter v. Porter, 37 Chy. D. 420 (1888) ; Light v. 
 Light, 25 Beav. 248 (1858). 
 
 (0 See Atty.-Gen. v. Parnther, 3 Bro. C. C. 441 (1792) ; 4 ib. 409. 
 (>») Crumley v. Kingston, 3 C. L. T. 311 (1883), order refused for 
 security for costs ; Sharp v. Sharp, 2 Chy. Ch. 244. 
 
 (h) Palmer v. Walesby, L. R. 8 Chy. 732 (1868); Skinner v. White, 
 19 C. L. J. 115 ; application to dismiss action. 
 
 (o) Waterhouse v. 'WorBnop, 59 L. T. 140. 
 
 (p) Dan. Chy. Pr., 6th Ed, 119 ; citing Wartnaby v. Wartnaby, Jac. 
 377 i Blake v. Smith, Younge, 596. 
 
 {q) See Beall v. Smith, L. R. 9 Ch. 85 ; Green v. Pratt, 41 L. T. 
 N. S. 80. 
 
 I! 
 
 I 
 
 I ij 
 
 hi id 
 
 m 
 
24 
 
 FOUECLOSUUE OF MOUTaAGES. 
 
 lunntic after the iustitution of uu action, or if the com- 
 mittee of a lunatic or idiot dies, or is changed during 
 the progress of an action instituted by him on behalf of 
 the lunatic or idiot, an order to carry on the proceedings 
 by the committee, or the new committee, as the case may 
 be, should, it seems, be obtained " (/•). 
 
 Married Women. — By the Married Women's Pro- 
 perty Act, 8. 14, Every wonmn " shall have, in her own 
 name against all persons whomsoever, including her hus- 
 band, the same remedies for the protection and security 
 of her own separate property, as if such property belong- 
 ed to her as a feme sole " (,s). 
 
 It is quite common in Ontario for a wife to hold 
 mortgages, and to execute discharges of or take proceed- 
 ings on them without the concurrence of her husband. 
 It has been held in I'ennsylvania that the discharge by 
 the husband alone of a mortgage to him and wife, but 
 really belonging to her, will not prevent her foreclos- 
 ing (t). There are also American cases to the effect that 
 a husband may validly mortgage his lands to his wife 
 and slio foreclose {u), and that the assignment to her of 
 a mortgage on his lands (r), or the fact of her marrying 
 her mortgagor (jr) does not effect a merger. 
 
 By Rule 199 (2), " In cases not provided for by the 
 ^larried Women's I'roperty Act, a married woman may 
 sue as plaintilf by her next friend." 
 
 Infants. — By Rule 197, " An infant may sue by his 
 next friend." 
 
 " If an action be commenced without a next friend, 
 the defendant may move for it to be dismissed, with 
 costs to be paid by the solicitor who filed it {,r) ; but his 
 
 (r) Dan. Chy. Pr.,Gth Ed., 118; citing Dangar v. Stewart, 9 W. R. 266; 
 Timpson v. London & North-Western Ry. Co., 11 W. R. 658 ; Harland 
 V. Garbutt, W. N. (1881) 8. 
 
 («) R. S. O., 1887, c. 132. 
 
 (() McKinney V. Hamilton, 51 Pa. St. 63 (1865). 
 
 (u) See Mix v. Andes Ins. Co., 9 Hun. (N, Y.) 397 (1876). 
 
 (v) See Bean v, Boothby, 57 Me 295 U869). 
 , ■ {w) Power V. Lester, 17 How. (N. Y.) Pr. 413 (1858). 
 
 (x) Flight V. BoUand, 4 Russ. 298. 
 
 ihi. 
 
I'AllTIES PLAINTIFF. 
 
 88 
 
 proper course would .appear to bo to npply ... on 
 notice to stay proeeedings, until a next friend be ap- 
 pointed " (//). 
 
 "The oftice of next friend is distinct from that of 
 fiuardiiui U), thoutjh the same [lerson nuxy fill both char- 
 acters ((/). 
 
 C. CORPOKATIONS. 
 
 Questions are sometimes raised as to the status of 
 corporations to enforce the remedies on mortgages made 
 to tliein. 
 
 Gkxeral Power of Corporations to Invest in 
 MoRTGACES.— By R. S. O., 1887, c. 182, " All corporations 
 having money in their hand which it is their duty, or is 
 in their discretion to invest, may invest the same if they 
 see fit in securities, which are a first charge on land lield 
 in fee simple; provided, that such investments are in 
 otlier respects reasonable and proper "(?>). This does 
 not apply to municipal corporations (c). 
 
 Unauthorized or Illegal Investments. — A loan 
 on real estate, which is unlawful and prohibited by sta- 
 tute, is void; e.g., a loan by a bank directly on the 
 security of real estate ((/). But a loan which is merely 
 beyond the powers of the company's management may 
 )>e enforced, e.g., an unauthorized investment by the 
 trustees of a friendly society (e). 
 
 Chartered Banks. — By the Bank Act (f) a " bank 
 may acquire and hold an absolute title in or to real or 
 
 (y) Simpson on Infants, 2nd Ed., 469; citing Dan. Cliy. Pr. 117; 
 Ex p. Brouklebank, C Chy. D. p. 3G0. 
 
 {*) Citing Harris v. Lightfoot, 10 W. R. 31. 
 
 (n) lb. at p. 470. For law relating to qualifications, etc., of next 
 friend. See ib. c. XXIX. 
 
 (h) S. 1. 
 (c) S. 2. 
 
 {(l) Grant V. Banque Nationale, 9 0. R. 411 (1885) ; Bank of Toronto 
 V. Perkins, 8 S. C. R. 603 (1882). 
 
 (e) Re Coltman, 19 Chy. D. 64 (1881). 
 
 (0 53 Vict. c. 31 (Dom.) s. 70. 
 
 f ' 
 
 
 -41 
 
 ■ ■ i ■ f 
 ■If 
 
 'fl 
 
 ' l\ 
 
20 
 
 FOnECLOSUUE OF MOUTOAOKS. 
 
 immovable property mortgaged to it as security for a 
 debt due or owiii); to it eitlier by obtaiuin^^ a release of 
 the e(iuity of redenii)tiou iu the mortjjfaged property or 
 by procuring a foreclosure, etc." ((/). 
 
 The mode iu which banks are 8Ui)po8ed to take mort- 
 gages is " by way of additional security fo«' debts con- 
 tracted to tlie bank in the course of its business" (A). A 
 moi-tgage giv<'n not to secure n past debt, but to cover 
 a contemporaneous loan (/) or future advances (/), is void. 
 
 When the bank takes over realty, by foreclosure or 
 otherwise, it is not allowed to hold it (except such as is 
 required for its own use) for more than seven years (A'). 
 
 Municipal Corporations. — " It would be more in 
 accordance with the policy of the Mortmain Acts if they 
 could not acquire property by foreclosure; but the 27 
 Victoria not onl.y validates past mortgages on real estate, 
 but authorizes the investment of municipal funds in the 
 same way, and places no restriction upon the remedies 
 in default of payment. And there is probably no serious 
 danger of municipalities holding lands so acquired to 
 any alarming extent " (/). 
 
 By the Consolidated Municipal Act (m) provision is 
 made for the investment of surplus municipal funds "in 
 first mortgages an real estate held and used for farm 
 purposes and being the first lien on such real estate." 
 
 JoiKT Stock Companies. — Joint stock companies, 
 as such, are not authorized to do a business of lending 
 
 (g) Cf. Bank of U. C. v. Scott, 6 Gr. 451 (1858). See further, Bank 
 of New South Wales v. Campbell, 11 App. Caa. (1880). 
 
 (h) 53 Vict. c. 31 (Dora.), s. 68. See National Bank of Australasia v. 
 Cherry, L. R. 3 P. C. 299 (1870) ; Re Essex Land Co., 21 O. R. 367 
 (1891) ; Commercial Bank v. Bank of Upper Canada, 7 Gr. 250 (1859). 
 
 (j) Bank of Toronto v. Perkins, 8 S. C. R. 603 (1882). 
 
 (j) Grant v. Hanque Nationale, 9 O. R. 411 (1885). Cf. Royal Can- 
 adian Bank v. Cummer, 15 Gr. 627 (1869). 
 
 {k) lb. s. 70. See Maclaren's Banks and Banking, 136. 
 
 (I) Municipality of Orford v. Bailey, 12 Gr. 276 (1866). 
 
 (m) 56 Vict. c. 42, s. 376 (1). 
 
;.' I 
 
 I'AUTIES PLAINTIFF. 
 
 27 
 
 nionpy on ronl estate («). Land may, however, be held 
 hy them " by way of security " (o). 
 
 Loan Corporations, Building Societies, etc. — The 
 buUdinj; s()('i«'tieH and other loan corporations in opera- 
 tion in Canada have cimstantly exercised the power of 
 foreclosure (/>). Very fiill powers are piven by the Loan 
 Corporations Act U/), as, indeed, the fullest powers of 
 dealing with nu)rt};anes and the premises mort^ajjed are 
 esseniial to the existence of such companies. Twelve 
 years is the mortnuiin limit tixed for these companies by 
 theAct(r). 
 
 Insurance Corporations, FRiENnLV Societies, 
 ETC. — The jTrouf) of corporations included in the Ontario 
 Insurance Act (.s) are permitted to invest in ''securities 
 which are a tirst charge on land held in fee simple" (/). 
 An insurance corporation has power to hold, inter alia, 
 *' such real estate as being mortgaged or hypothecated 
 to it, is acquired by it for the protection of its invest- 
 ments " 00. 
 
 1l does not follow that because a friendly society 
 or insurance company makes an unauthorized invest- 
 ment that the mortgage cannot be enforced (r). 
 
 Trust Companies. — See Ontario Trust Companies 
 Act (jr), section 11, and Schedule C. 
 
 Mining Companies.— See The Ontario Mining Com- 
 panies Incorporation Act (a-), section 3 (b) and (i). 
 
 (») See Loan Corporations Act, ss. 2 (5), and 117. 
 
 (o) GOVict. c. 28, 8. 24((;); Ontario Companies Act. See same section 
 for mortmain limit. 
 
 (p) Cf. Provident Permanent Building Society v. Greenhill, 9 Chy. 
 D. 122 (1878), ordinary form of foreclosure decree; Ingoldby v. Riley 28 
 L. T. 55, W. N. (1873) 38 ; Bell v. London and South-Western Bank. W. 
 
 N. (1874) 10. 
 
 (q) GO Vict. c. 38 (Ont.), s. 17. 
 
 (r) lb. 8. 17 (5). 
 
 (i.) GO Vict. c. 36. 
 
 it) S. 92 (1). 
 
 («) S. 92 (2), seven years mortmain limit. 
 
 (v) Re Coltman, 19 Chy. D. 64 (1881). 
 
 (w) 60 Vict. c. 37 (Ont.) 
 
 (x) 60 Vict. 0.29 (Ont.) 
 
 
 i I I 
 
 M 
 
 ■■ . i 
 
 I! 
 
 ,1^!;] 
 
 ';. : 
 
 L. 
 
28 
 
 FORECLOSURE OF MORTGAGES. 
 
 Ah 
 
 Cemetery Companies; No Mortgages on Lots. — 
 x\. joint stock cemetery company may make a mort- 
 gage (j-j'), bnt it cannot ai>parently take a mortgage on 
 lots sold. " Wlii-n a lot has been sold by the company, 
 for a bnrial site, the convieyance shall not require to be 
 registered for any purpose whatever, and shall not be 
 affected by any Registry Act, nor sliall any judgment, 
 mortgage or incumbrance subsist on any lot con- 
 veyed " (7/). 
 
 D. PARTNERSHIPS. 
 
 Partners, Who ^Iay Foreclose. - The American 
 rule as to foreclosure by partners is thus stated in Wiltsie 
 on Foreclosure: ** The general rule is that any member 
 of a partnership may bring an action to foreclose a mort- 
 gage given to secure a partnership debt; hence on the 
 death of a member of the partnership, the mortgage may 
 be enforced by the survivor, or survivors, as it is a mere 
 security " (z). The tendency of our Courts is against 
 survivorships, except in cases where the funds are ex- 
 pressed to be advanced on joint account (a), and it is pos- 
 sible that as between the persons interested in the 
 money, the Courts will go behind a joint account 
 clause (It). 
 
 By Rule 222 partners may sue and be sued in the 
 name of the Arm of which such persons were co-partners 
 at the time of the accruing of the cause of action. 
 
 Mortgage Taken to One Partner. — Where a mort- 
 gage is taken in the name of one partner to secure a 
 partnership debt, and an action is brought to enforce 
 the security, the representatives, real or personal, of a 
 deceased partner, are not necessary parties (c). 
 
 {.Tx) See R. S. O., 1887, c. 176, s. 7. 
 
 (y) R. S. O., 1887, c. 11'), a. 14. Cemetery Companies come under 
 the Companies Act. See 00 Vict. c. 42 (Ont.) 
 
 {z) Xerr's Supplement to Wiltsie, s. 83 ; citing Younts v. Starnes, 42 
 S, C. 22 (1894) ; S. C. 19 S. E. Rep. 1011. 
 
 (a) R. S. O., 1897, c. 121, a. 13; R. S. O., 1887, c. 102, s. 14. 
 
 {b) Re Jackson, Smith v. Sibthorpe, 34 Ch. D. 732 (1887). 
 
 (c) Stevens v. Simpson, 12 Gr. 493 (18CG). 
 
PARTIES PLAINTIFF. 
 
 29 
 
 Change of Firm; Effect on Securities. — Ques- 
 tions arc apt to arise in tlie enforcement of mortf^apres 
 made to a lirm, a clianj^e having occurred in the consti- 
 tnt'on of the firm. Lindley says, in his booli on Partner- 
 ship ((/): "It is established that an equitable mortgage 
 by deposit of title deeds mjiy be extended, even by parol, 
 to cover advances made after a change in the firm with 
 which the deeds are lodged (/). And although a legal 
 mortgage to a tirm cannot be converted into an ecpiit- 
 able mortgage merely by parol (/), it may be so converted 
 by a written agreement, and may, as an equitable mort- 
 gage, become available as a security for advances made 
 after a change in the firm to which the legal mortgage 
 was originally given {</). Owing to these doctrines, a 
 security given to a firm for advances to be made by it 
 is, upon a change in the firm, readily made a continuing 
 security, and a slight manifestation of intention on the 
 part of the borrower that it should so continue, will 
 enable the new lirm to hold the securities until the ad- 
 vances made by itself, as well as those made by the old 
 firm, have been repaid (/<)• 
 
 {(l) Tith Ed. at p. ll'J. 
 
 (e) Citins Ex p. Lloyd, 1 Gl. & J. 389 ; Ex p. Lane, DeG. 300 ; Ex p. 
 Nettleship, '2 M. D. & DeG. 124. 
 
 ( /■) Ex p. Hooper, 2 Rose, 328. 
 (g) Ex p. Parr, 4 D. & C. 420. 
 
 (//) Ex p. Kensington, 2 Vea. & B. 79; Ex p. Marsh, 2 Rose, 239 ; 
 Ex p. Lloyd, 3 Deac. 305 ; Ex p. Alexander, 1 Gl. & J. 409. 
 
 t.^ 
 
 
 
 '■A 
 
 1 
 
 4 
 
 1 
 
 1 
 
 ;■ ■■! 
 
 ^i 
 
 ,1 
 
 
 ti 
 
^mm 
 
 III 
 
 30 
 
 FORECLOSURE OF MORTGAGES. 
 
 IV. PARTIES DEFENDANT. 
 
 A. DEFENDANTS TO THE WRIT. 
 
 There are certain classes of persons interested in tlie 
 ('(luity of redemption, who should be made defendants 
 by the wnt of summons in a foreclosure action. It is 
 true that under Rule 100, if some of the proper parties 
 are already defendants, the Court may dispense with, or 
 add, in the Master's office others who properly should 
 be defendants. But the Court still requires the plaintiff 
 to exercise diligence in bringing the proper parties before 
 it in the first place ((/). 
 
 The Mortgagor. — The most natural defendant to a 
 writ for foreclosure is the mortgagor himself, and it is 
 usual to make him a party to the writ, regardless of any 
 subsequent disposition he may have made of his equity. 
 The general rule, as stated by Romilly, MR., is that, 
 ordinarily, nothing can be well determined in a fore- 
 closure action but the validity or invalidity of the mort- 
 gage, and the parties to the mortgage deed, or those 
 claiming under them, should alone be parties to the 
 cause (^), As the mortgagor is a necessary party to a 
 suit in which the validity of a mortgage is contested (c), 
 it would, therefore, be unwise to omit his name as a de- 
 fendant to the writ. 
 
 It is well, however, to consider some of the disposi- 
 tions that may be made by a mortgagor, and how far 
 they have been held to render his name unnecessary to 
 the writ. 
 
 ((() See cases cited under Rule 190. 
 
 (6) Audsley v. Horn, 26 Beav. at p. 197 (18.58). 
 
 (e) Thompson v. Baskerville, 3 Ch. Rep. 215. 
 
 U^.. 
 
PARTIES DEFENDANT. 
 
 81 
 
 His 
 
 (1) The Mortgagor May Have Conveyed 
 Equity.— If he absolutely disposes of his whole interest 
 there is authority for stating that he is not a necessary 
 party to the writ (d). But the form of indorsement of 
 writ given in the rules (c), and commonly in use with the 
 profession in Ontario, contains a demand for Immediate 
 payment, which demand naturally concerns the party 
 to the covenant — the mortgagor. 
 
 In such cases the judgment is for a personal order 
 against the mortgagor, and in default of payment, an 
 orde*' for sale or foreclosure, and an order for possession 
 against the owner of the equity of redemption (f). 
 
 We may also remember that sometimes the trans- 
 action is such that the purchaser is not intended to 
 ahisume the mortgage. Or the conveyance, though in 
 form an absolute deed of the equity, may in reality be 
 subject to a defeasance. The joining of the original 
 mortgagor effectually settles any complication that 
 might arise from doubts as to the effect or validity of the 
 conveyance of the equity (//). 
 
 (2) The Mortgagor May Have Made Agreement 
 FOR Sale. — " The grantor and the grantee in an unex- 
 ecuted contract of sale of the mortgaged premises should 
 be made defendants " (h). 
 
 (3) The Mortgagor May Become Bankrupt or In- 
 solvent. — There are a number of cases to the effect that 
 it is not necessary to join the mortgagor who has be- 
 come bankrupt or insolvent (j), unless the assignees ab- 
 
 ((') See Boone on Mortgages, s. 179 ; Jones, 4th Ed., ss. 1404, 1407 ; 
 Wiltsie on Foreclosure, Kerr's Supplement, s. 118, and the American 
 cases there cited. 
 
 (e) See Form No. 9, section VI. (d) and (c). 
 
 if) Burton, J. A., in Walker v. Dickson, 20 A. R, at p. 101 (1892). 
 
 ill) See Weed v. Stevenson, Clarke, N. Y. 166. 
 
 [h) Wiltsie on Foreclosure, Kerr's Supp'jment, s. 124. 
 
 (t) Torrance v. Winterbottom, 2 Gr. 487 (I8.')l), citing Collins v. 
 Shirley, 1 Kuss. & M. 638 (1830), Singleton v. Cox, 4 Hare, 326 (1845), 
 Cash V. Belcher, 1 Hare, 310 (1842). and Kerrick v. Saffery, 7 Sii.i. 317 
 (1835). See also Goodhue v. Whitmore, 7 U. C. L. J. 124; Lloyd v. 
 Lauder, 5 Madd. 282; King v. Martin, 2 Ves. Jun. 641; Rochfort v. 
 Battersby, 14 Jur. 229; Cashell v. Kelly, 2Dru. A War. 181; Raflfertyv. 
 King, 1 Keen, 619 ; Eades v. Harris, 1 Y. & C. 234. 
 
 J^i 
 
 u 
 
 '■Ml 
 
 ■I 
 
 l! 
 
 'Hiii 
 
 \ i 
 
 II 
 
82 
 
 FORECLOSURE OF MORTGAGES. 
 
 solutely disclaim (/), and do not admit that the estate 
 vests in them [k). As, however, tliere does not ajjpear 
 to be anytliinj? in the loose insolvency laws of Ontario 
 to prevent the mortgagee obtaining a personal judg- 
 ment against the insolvent mortgagor, many creditors 
 jirefer to ignore, as far as possible, proceedings .under 
 the R. S. O., 181)7, c. 147, and to proceed independently of 
 the assignee, treating the assignment to hira as they 
 would anj' other conveyance of the equity (/). In such 
 cases the mortgagor would be joined as a part}- de- 
 fendant. 
 
 Wife of Mortgagor. — " The practice has waver- 
 ed (m) as to whether or not the wife, who has barred 
 dower for the purposes of the mortgage, should be made 
 a party, some later decisions being against adding her 
 as a defendant in the lifetime of the husband. In view 
 of the legislation extending her rights in 42 Vict. c. 22 (»), 
 proper jiractice appears to require that she should be 
 a defendant where the action is for foreclosure, in order 
 that she may either redeem or protect her interes.ts by 
 asking for a sale. Being a defendant and submitting to 
 foreclosure, no question could arise as to her dower be- 
 ing effectually extinguished. But if foreclosure goes 
 upon her husband's default to redeem, and against him 
 as sole defendant, there is no certainty that she may 
 not have been prejudiced (o). 
 
 Wife of Mortgagor Not Signing Mortgage. — 
 Where the wife of a mortgagor did not join in the mort- 
 
 (.;■) Singleton v. Cox, supra. See Franklyn v. Fern, Barn. 30. 
 
 (k) Collins V. Shirley, 9 Sim. at p. 399. 
 
 (I) For jurisdiction of Court to decree foreclosure against an as- 
 signee under the Insolvent Act of 18C9, see Henderson v. Kerr, 22 Gr. 91. 
 
 (»i) See Moffatt v. Thompson, 3 Gr. Ill ; Davidson v. Boyes, 6 
 P. R. 27. 
 
 (n) See R. S. O., 1897, c. 1G4, ss. /, 8 and 9. 
 
 (()) Boyd, C, in Ayerst v. McClean, 11 P. R. IT, (1890), in which the 
 following cases are considered : Saunderson v. Caston, 1 Gr 349 ; Build- 
 ing and Loan v, Carswell, 8 P. R. 73 ; Casner v. Ilaight, fi O. R. 4r)l ; 
 Re Croskery, !(> O. R. 207 ; Smart v, Sorenson, 9 O. R. (140 ; Re Ilewish, 
 17 O. R. 4r)4 ; Martindale v. Clarkson, fi A. R 1. See further, Blong v. 
 Fitzgerald, If) P. R. 4G7 (1893), wife added on her petition after judgment 
 and report, Pratt v. Bunnell, 21 O. R. 1, considered. 
 
 til. 
 
PARTIES DEFENDANT. 
 
 33 
 
 f»age, the foreclosure proceedlnj^s must be taken as sub- 
 ject to her dower interest. Making her a party would 
 !-('eniinp;ly be a useless i)roceeding, as whatever claim 
 Hlie has is paramount to the mortgage (/>). 
 
 Wife of Purchaser of Equity. — Until the death 
 of the purchaser of an equity his wife has no claim to 
 redeem, his estate being a mere equity to which dower 
 does not attach unless he died seised. Until this event 
 Iiappens, therefore, she is not a proper party to the ac- 
 tion {(/). ^Vhere this event does happen, the widow be- 
 ccmies a proi)er party and, semble, even if the husband 
 should die during foreclosure proceedings, between judg- 
 ment and the time for tinal order, she should be added 
 as a party, and a new day given to allow her to re- 
 deem (/•). 
 
 The American rule appears to be that the wife is 
 a. necessary party (.s). 
 
 HusnAXD. — It is not usual to make the husband of 
 a mortgagor a party, as such, during the lifetime of his 
 v.ife, unless he has joined in the mortgage. After her 
 decease he may have an estate by the curtesy; and there 
 may still be lingering cases where, during her life, he 
 has such an estate contingent on his survivorship (t). 
 
 Where the husband has joined in the mortgage it is 
 preferable to join him as a party, if for no other reason 
 than to obtain a personal judgment on the covenant. 
 
 There does not seem to be any reason for joining 
 (as such) the husband of a purchaser of the equity (u). 
 
 (p) Cf. Merchants Bank v. Thomson, 55 N. Y. 7 (1873). 
 
 (q) Monk V. Benjamin, 13 P. R. 35(5 (1890). Robertson J. 
 
 (/•) lb. N. B. The amount involved in this case (outside of the 
 principle involved) was ^5.32. 
 
 (■''•) Wiltsie on Foreclosure, s. 135. 
 
 See discussion of Married Women's Property Acts in Armour on 
 Titles. 
 
 (h) For American law, see Anderson v. Watt, 138 U. S. 01)1 (1891) 
 S. C. 11, Sup. Ct. Rep. 449 ; husband of one in possession of land in 
 Florida claiming title is a necessary party. 
 
 H.F.M.~3 
 
 i:-! 
 
 :.«? 
 
 
 M ' 
 
 '■■ -'4 1 
 
 \ til'' 
 
 :if 
 
 '! HM 
 
34 
 
 FORECLOSURE OF MORTGAGES. 
 
 ifr 
 
 it: i 
 
 ii 
 
 Holder of the Equity of REDEMrTioN. — The pur- 
 chaser or purchasers of the equity are necessary parties 
 to the writ (r). 
 
 (1) Joint Owners of Equity. — Where the mort- 
 gaged lands were divided into building lots, and suit 
 brought against some only of the purchasers, the Master 
 of the Rolls allowed the objection that the purchasers of 
 the other lots were necessary parties (;r). The rule works 
 both ways: While a mortgagee is not allowed to " real- 
 ize his securities piecemeal " (x*), he is " entitled to insist 
 that the whole of the mortgaged estate shall be redeemed 
 together; and for this purpose that all the persons in- 
 terested in the several parts of the estate as mortgagors, 
 should be made parties to the bill seeking the account 
 and redemi)tion " (//). 
 
 (2) ;Mesne 1 l'rciiasers, who have wholly conveyed 
 their interest, need not be made parties to the writ un- 
 less they have become personally liable to the mortgagor 
 for the mortgage debt. In some of the United States 
 it is the rule that a purchaser assuming the debt is di- 
 rectly liable to the holder of the mortgage (.^). This is 
 not the rule in Ontario. It is not uncommon, however, 
 in cases where the mortgagor, or a mesne purchaser, 
 ranks under the heading nulla bona, for the mortgagee 
 to take an assignment of his equitable rights of indem- 
 nity from his immediate purchaser. Our (Courts, how- 
 ever, do not favour the introduction of such claims into 
 a foreclosure action. Thus Burton, J.A., in Walker v. 
 Dickson ((/). says: "This case discloses what, to my old- 
 fashioned notions, appears to be a very strange, and I 
 
 See Ilule 1!)0 ; Whan v. 
 
 Cf. Buckley v. Wilson, 8 
 
 (j') Maule V. Beaufort, 1 Buss. 349 (1826). 
 Lucas, 1 Chy. Ch. 08. 
 
 (w) Peto V. Hammond, 29 Beav. 91 (18G0). 
 Gr. 505. 
 
 (x) lb. 
 
 (?/) Cholmondeley v. Clinton, 2 .Tac. & W. at p. 1.S4 (1820). See Palk 
 T. Clinton, 12 Ves. 48 (1800). 
 
 {z) See Crawford v. Edward, 33 Mich. 354; Burr v. Beers, 24 N. Y. 
 
 178. 
 
 i 
 
 i 
 
 (a) 20 A. R. at p. 101 (1892). 
 at p. 312 (1893). 
 
 See criticism of this case, 29 C. L. J. 
 
i 
 
 PARTIES DEFENDANT. 
 
 35 
 
 think, a ver^ objectionable practice. The action is one 
 lor foreclosure or sale, the only necessary parties to 
 which were the plaintilf, the niortgajjee, D. the mort- 
 gaf^or, and the person who was at the time of action 
 bronjiht the owner of the equity of redemption. . . . 
 M.. havinj? no answer agsnn^t the niort}j^a{T;ee's claim, suf- 
 fered judj^nu'iit to be noted ajyainst him by default, but 
 the intermediate owner of that (Mpiity, that is to say, a 
 person who had at one time owned the equity of redemp- 
 tion, was most unnecessarily and improperly, as I think, 
 made a defendant, and one cannot avoid a stronj; sus- 
 ]ii(i()n tliat the suit, as constituted, was so constituted 
 to enable 1). and K., in the plaintiff's action, to set up 
 their respective claims to indemnity, so as eventually to 
 lix the defendant M. with a personal liability-. They 
 liave so far succeeded in this that the proceedings have 
 resulted in a judgment, by which not only I), but R. and 
 ^I. are ordered to pay to the plaintilf the full amount of 
 the mortgage money, interest and costs. This is mani- 
 festly erroneous " (?>). 
 
 (15) Purchasers Pendente Lite. — The general rule 
 a]»pears to be that i)urchasers pendente lite are not 
 necessary parties (c). In one case, where the purchasers 
 had an adverse interest (by possession) prior to the in- 
 terest ac(|uired pendente lite, and were added after 
 decree, the Master in Chambers set aside the order mak- 
 ing them i)arties " to a foregone judgment by which their 
 rights wei-e concluded " (d). 
 
 A purchaser or assignee pendente lite may, it ap- 
 pears, bring himself forward in the suit. This had 
 formerly to be done by tiling a supplemental bill (c) be- 
 
 {h) Objection should, however, be taken at or before the trial, and not 
 on appeal, for such side issues may by consent be tried alon^j with the 
 chief issue ; see ib. at p. 105, per Maclennan, J.A. ; citing Marner v. 
 Bright, IJagot v. Easton, 11 Ch. D. 392 (n) (1H78). 
 
 ((■) See Fisher on Mortgafje, ."ith Ed., § K)')!, p. 794, citinf* Garth v. 
 Ward, 2 Atk. 17"), Bishop of Winchester v. Paine, II Ves. 201. Cf. 
 Wiltsie on Foreclosure, Kerr's Supplement, s. 130. 
 
 {d) Abell V. Parr, 9 P. R. 504 (1883). 
 
 (e) Foster v. Deacon, 6 Madd. 59 ; Coles v. Forest, 10 Beav. 552. 
 
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30 
 
 FORECLOSUllE OF MORTGAOES. 
 
 fore decree (/), and would not be granted on petition (<;). 
 Doubtless Rule 190 (2) is sufficiently liberal to permit 
 the adding in the Master's office of assignees pendente 
 lite, if they consented. 
 
 Trustees and Cestuis que Trustent. — Formerly, 
 in a suit adverse to cestuis que trustent, tlie Courts 
 would not nuike a decree in their absence, and held them 
 to be necessary parties (//). This state of the law has 
 been considerably modified and is now governed by 
 Rule lOa. 
 
 This is the English O. XVI. r. 7 (1875); 130 (18S3), 
 under which rule it has been held that trustees of an 
 equity sufficiently represent their cestuis que trustent, 
 if no direction has been given by the Court to the con- 
 trary (/). In one case, Jessel, M.R., said that the mort- 
 gagees " ought u(»( to have been ordered to pa^- the costs 
 of the cestuis que trust, and the order must be altered 
 in that respect. And to that extent we can give the 
 I»laintiiTs no costs of the appeal, as a punisliment to them 
 for making the beneficiaries parties " (/). Formerly, how- 
 ever, if a trustee had an adverse interest to his cestui* 
 que trustent (k), or had disclaimed (/), or if it were a 
 case of fraud (ni), the Court would order the benefi- 
 ciaries to be made parties {ii). Probably the same course 
 
 (/■) Booth V. Creswicke, 8 Sim. 352. 
 
 {g) Foster v. Deacon, supra. 
 
 (/i) See Rogers v. Rogers, 2 Gr. 137 (1850) ; Cleveland v. McDonald, 
 1 Gr. 419 (1850). 
 
 (i) Jennings v. Jordan, 6 App. Gas. at p. 710 (1881) ; Mills v. Jen- 
 nings, 13 Ch. D. 639. 
 
 (;) Re Cooper, Cooper v. Vesey, 20 Ch. D. at p. GS.'i (1882). Cf. 
 Bulley V. Bulley, 8 Ch. D. at p. 489 (1878) ; Brooke v. McLean, 5 O. R. 
 at p. 220 (1884). The procedure in objecting to parties is under C. R. 
 324 (a) ; Carter v. Clarkson, 15 P. R. 379 (1893). 
 
 (k) Payne v, Parker, L. R. 1 Ch. 327 (1866). Cf. Keen v. Codd, 14 P. 
 K. atp. 184(1891). 
 
 {I) Young V. Ward, 10 Hare, Iviii. (1853). 
 
 (m) Read v. Prest, 1 K. & J. 183 (1855). 
 
 (»i) See also Liddell v. Deacou, 20 Gr. 70 (1873) ; Day v. Radcliffe, 
 24 W. R. 844 ; Baker v. Trainor, 15 Gr. 252 (1868), bill seeking destruc- 
 tion of trust estate ; Clarke V.Cook, 23 Gr. at p. 113(1876), discretion of 
 Court ; Thomas v. Torrance, 1 Chy, Ch. 46 (1869). 
 
PARTIES DEFENDANT. 
 
 87 
 
 >voul(l now be taken, as the Court Las complete discre- 
 tion in the matter. 
 
 The present rule has superseded Chy. O. Gl, the de- 
 cisions under wliich were somewliat conflicting (o). 
 
 Trustees Not Kecessary When Trust Expired. — 
 A morip,agor havins; devised his equity of redf'mption to 
 trustees for his children in fee on their attaining twenty- 
 one: — Held, that to a bill to foreclose against the cestui i 
 (liie trust, after they attained twenty-one, the trustees 
 were not necessary parties (/>). 
 
 Creditors Secured by Mortgage to Trustee. — The 
 trustee to whom the defendant made a mortgage for the 
 benefit of creditors was held sufhcient without joining 
 the creditors as plaintiffs, the sole object being to realize 
 the trust fund (7). This nuitter is now governed l»y 
 Kule VX\. 
 
 ^Mortgagor's Heirs and 1'ersoxal Represexta- 
 TiN'ES. — The heir of a deceased mortgagor has been held 
 a necessary party (r), and formerly it was not necessary 
 to make the executor a party (,s). The executor does not 
 even seem to have been a proper party (0; unless the 
 j)laintiff were seeking an account of the personal 
 estate (11). 
 
 Under l]\e Devolution of Estates Act (r) and its 
 amendments (»:) i»5e real property of a deceased person 
 vests in the person to whom probate or administration 
 is granted. This continues for twelve months from the 
 
 (0) See cases collected in Holmested and Langton, at p. 325. 
 
 ip) Forsyth v. Drake, 1 Gr. 223. 
 
 ('/) Fraser v. Sutherland, 2 Gr. 442 (1851). 
 
 (»■) Farmer v. Curtis, 2 Sim. m, (182!)) ; Street v. Dolan, .3 Cliy. 
 Ch. 227: Fell v. Brown, 2 Bro. G. C, 270 (1787), case of heir being out 
 of jurisdiction ; Palk v. Clinton, 12 Yes. at p. 58 (1800). 
 
 («) Buncombe v. Hanaley, 3 P. Wms. 333 (h). (1720). 
 
 («) Bradshaw v. Outram, 13 Yes. 233 (ISOli), case of mortgage of 
 term of years. But see Kelly v. Ardell, 11 Gr. 579 (ISli")). 
 
 (") Daniel v. Skipworth, 2 Bro. C. C. 155 (1787). 
 
 (v) 4'.) Yict. c. 22 (Ont.) ; 59 Vict. c. 7, s. 35; R. S. O., 1887, c. 108, 
 
 8. 1. 
 
 (w) 54 Vict. c. 18 (Ont.) ; 56 Vict. c. 20 ; 60 Vict. c. 14. Now consoli- 
 dated as ll.S.O. 1897, cap. 127. 
 
 
 I V: 
 
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 i.l!- 
 I 
 
 III 
 
FORECLOSURE OF MORTGAGES. 
 
 owner's decease, and the period may be extended by the 
 executor or administrator filinji; a " caution " in terms 
 of the Acts. Twelve months after the decease or the 
 registration of the last caution the property vests in the 
 " devisees or heirs beneficially entitled thereto.'' 
 
 The effect of thes<» provisions would be to render the 
 executor or administrator a necessary party durinj; the 
 time of his dealing with the estate (./). liut in an action 
 begun within the year, without making the personal re- 
 presentative a party, the plaintitf was, after the lapse 
 of a year, held entitled to judgment, no personal repre- 
 sentative having been appointed, and no caution having 
 been filed (//). From which we may infer (1) that an 
 action begun within the year, and not against the per- 
 sonal representative, will not be defeated for that omis- 
 sion, unless a personal representative is appointed; (2) 
 when the period for the personal representative's deal- 
 ing with the estate has expired, the personal representa- 
 tive is no longer a necessary party to the action (~). 
 
 The same case («) contains the following statement: 
 '*' The fact that the writ was issued during the currency 
 of the twelve months after the intestate's death does 
 not signify. The plaintiff brought the action at the 
 risk of being defeated by the administrator, if one ap- 
 pointed, filing the caution within the Act." 
 
 The year of grace allowed to executors does not 
 seem to exclude the bringing of a foreclosure suit. 
 "Though executors have a year allowed them to pay 
 legacies, yet that does not extend to debts, but they 
 are liable to be sued the moment after the testator's 
 death (h). It is possible the personal representative 
 might be sued before his appointment, if he should be 
 
 {x) Cf. Harwood v. Marye, 8 Cal. 580. 
 
 {y) Ramus v. Dow, 15 P. R. 219 (Feb. 9, 1893) M. C. 
 
 (z) For cases where no probate or administration taken out, see 56 
 Vict. c. 20 (Ont.), s. 3. 
 
 (a) Ramus v. Dow, supra. 
 
 (6) Nicholls V. Judson, 2 Atk. .SOI (1742). But see Hibernia Savings 
 and Loan Co. v. Herbert, 53 Cal. 873 ; S. C. 7 Reporter, 458. 
 
PARTIES DEFENDANT. 
 
 39 
 
 appoiiitod in time for trial (r), provided he is the person 
 ]»rimarily entitled to administer the estate (</). In case 
 the trustees, or other persons primarily entitled to ad- 
 minister, sliould diselaim, they would not be proper 
 parties to a foreclosure action " (e). 
 
 After the period of one year, or the period for the 
 jtirsonal representative's dealin{?s has expired, the de- 
 visees or heirs are Uie proper parties. 
 
 It is possible that it would be better to make the 
 '' devisees or heirs, etc.,'' partie?; even if the suit is 
 brought within the year after the ovner's decease. For 
 Ihe interest taken in the realty by tne jx'rsonal represen- 
 tative is only a transient estate, vested in him to enable 
 him to fulHl his duties as executor or administrator (/), 
 and tlie devisees or heirs are in rather a stronjjer posi- 
 tion than cestuis (jue trustent (</). They may, however, 
 be added by the Court or a Judge at any time under 
 IJnle 193. 
 
 Partners, Representatives of Deceased. — Three 
 I»artners took a conveyance of real estate, " as and for 
 liartnership property, for the purposes of the partner- 
 ship," and one having left the Province and another died, 
 the mortgagee of the property filed a bill to foreclose: 
 — Held, that the personal representative of the deceased 
 jtiirtner was a necessary party, and that the i)laintilt' 
 must prove the absence from the jurisdiction of the non- 
 resident i)artner, and perhaps the plaintiff's inability to 
 serve him with process (//). 
 
 (c) By analogy to Trice v. Robinson, 10 0. R. 433 (1888). 
 
 {(l) Boyd, C, in Chard v. Rae, 18 O. R. 871 (1889) ; distinguishing 
 Trice v. Robinson, supra. 
 
 (e) Young v. Ward, 10 Hare, App. LVIII. (1853). 
 
 (0 See 54 Vict. c. 18 (Ont.), s. 1, and 5fi Vict. c. 20 (Ont.), s. (2). 
 
 {<)) Malone v. Malone, 17 O. R. 101, holding that devisees are not 
 necessary parties, was decided in 1889 prior to the above-amending Acts. 
 
 Carter v. Clarkson, 15 P. R. 379 (Sept. 28, 1893), was decided sub- 
 sequently to these amendments, but does not decide that the heirs-at-law 
 are not proper parties, but merely that the procedure to object to their 
 being parties is under Con. Rule 324 («), and not by demurrer. 
 
 (/*) Baxter v. Turnbull, 2 Gr. 521 (1851). 
 
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 40 
 
 FOUECLOSUHE OF MOllTOAOES. 
 
 Turciiaskr's Ukirs or Kki'uf.skntatives. — Tho same 
 niloa will iipply to these as to those of iiioi't}{a{;oi', ex- 
 cept that there will be no aicount of the personal estato 
 of the deceased purchaser (j). 
 
 Infants as 1'artifs. — Infants are ])rotected apainst 
 the personal represi'ntativo by Kule J)71, and section S 
 of R. S. ()., 1897, c. 127. 
 
 ** 971. Before an executor or administrator takes 
 Iiroceedinps under the Devolution of Estates Act for the 
 sale of real estate in which an infant is concerned, lie 
 shall sive to the otlicial guardian, or other ollicer charged 
 with the duties referred to in the eighth section of tlie 
 said Act notice of the intention to sell, and shall not be 
 entitled to any expenses incurred before giving such 
 notice " (/). 
 
 R. S. O., 1S97, cap. 127, s. 8 (1). "Where infants 
 are concerned in real estate which, but for the preced- 
 ing sections of this Act, would not devolve on executors 
 or administrators, no sale or conveyance shall be valid 
 under this Act without the written consent or approval 
 of the otlicial guardian of infants appointed under the 
 Judicature Act, or in the absence of such consent or ap- 
 proval without an order of the High Court." 
 
 In view of these provisions Boyd, C, decided: " This 
 rule of Court was passed chietly to avoid the expense of 
 serving many parties, but when infants interested in an 
 estate are as a group represented by the official guardian 
 (Con. Riule 258), it is better that he should intervene at 
 the outset of the proceedings than at a later stage . . . 
 It may well be as a matter of title that the record is 
 complete with the general administrator as thc^ sole de- 
 fendant in these foreclosure actions. Hut as a matter of 
 procedure, I decide that the infants are proper parties, 
 and as such should appear as original defendants, unless 
 
 (i) See Jones, 4th Ed., s. 1415. 
 
 (;) See Rules 152, 153 et seq., as to service on Official Guardian and 
 infants. 
 
 yiLlik 
 
PARTIES DEFENDANT. 
 
 41 
 
 ^(»I1U' very ji;o(nl i-cjinoiis oxlst l\)r t-xfludiug tlicii), at that 
 .staj^e of I lie action" (/.). 
 
 In INissnioiv v. l.avbuni (t^. 15. 1)., 24th Octtau'i-, 18"-», 
 (■alt, <\.l.), phiinlitTH having; obtained jud;;ni(.'nt and final 
 (iidcr ajiain.st the cxccutoi's, niovtul foi' an oi'dcr addinj; 
 as defendants ceitain infants, and directing!; that they be 
 bunn«l by tlw ateonnts taken. The Chief Jnsti«'«>, follow- 
 iuis; Keen v. ('odd, dismissed the motion with costs to tlu' 
 execntors, biit said that if plaint itl's desii'ed it lu^ would 
 allow an order to }j;o vacatinj; the judj,Mnent nium pay- 
 ment of costs to the defendants, the cixecutors. 
 
 FOKECLOSURK AND I'OSSKSSION ; INFANTS. — " ActloH 
 
 to foreclose and for possession ajjainst widow and child- 
 ren of mortt;aj;()r with tenant under them in possession. 
 IN-rsonal service need not be made on the infants, be- 
 cause they are not personally in possession (see Ihile 
 2.")!)) (/); and by Knle 2o8 (ni) service on the oflicial guard- 
 ian for all the infants is good, where the infants are in- 
 terested and not iu actual possession. So far as mere 
 possession is concerned, service on the tenant is sulh- 
 lient; but for tin? puri>oses of foreclosnre all the tuir- 
 ^iving family of the intestat^e mortgagor nuist be joined 
 as defendants " (n). 
 
 A wnt of possession is good although the infants 
 have not been made parties. In Emerson y. Unmph- 
 ries (o) the plaint ill's brought a foreclosure action against 
 the executors (one being the widow) of William Humph- 
 ries, deceased, and obtained a writ of jjossession. The 
 widow, with two infant children, lived (m the premises. 
 The sheritT interpleaded. It was contended that the in- 
 fants should have been made parties, and the writ of 
 
 (A) Keen v. Codd, 14 P. R. atp. ISl (]8i)l), distinguished in Emerson 
 V. Humphries, 1") P. R. at p. 8(1, by the Master in Chambers as follows:-- 
 " Keen v. Codd, 14 P. R. 182, referred to an mtestacy under theDevohition 
 
 of Estates Act." 
 
 (/) Pre^^ent Rule l.-)3. 
 (ill) See Rule 152. 
 
 (n) Boy 1, C. in Sparks v. Purdy, 1 ") P. R. at p. 3 (29 June, 1892). See 
 Rule loB, where infants in actual possession, 
 (o) 15 P. R. 84 (Nov. 23, 1892K 
 
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 FORECLOSURE OF MORTGAGES, 
 
 possession should be set aside. The Master in Chambers 
 decided that tlie action was properly constituted, at 
 least so far as the application was concerned (/>) ; heirs 
 beinjf prima facie bound by a judj^ment against the ex- 
 ecutor, as rejTjards an execution aj?ainst lands (r/). 
 
 When Executor Not Party to PROcEEorNO 
 Against Infants. — Where a bill by a mortf?ap;«'e against 
 the infant heir of the mort}j;a}jjor prayed a foreclosure, 
 and the Court, for the protection of the infant, directed 
 an inquiry whether a foreclosure or a sale is more for 
 the benefit of the infant, it was held not necessary to 
 direct the ^Master to piake the executor of tlu^ mortji'afJtor 
 a party in his oltice, in case of the Master's opinion being 
 in favor of a sale (r). 
 
 Lunatic, Committee of, — The procedure in cases of 
 suits aj^ainst lunatics or persons of unsound mind (not 
 so found) is laid down in Rules 217-221. The lunatic 
 may be made a party, and if no appearance is entered, 
 proceedings taken under Kule 218. 
 
 Devisees of the Equity. — Where the will of a mort- 
 gajjjor {iJive the pro])erty in trust to pay a certain weekly 
 sum to the widow, and iu trust for his two sons, it was 
 held the proper course to make parties to the suit not 
 only the trustees but the parties beneficially interested, 
 i.e., the widow and the representatives of the two 
 sons (.s). 
 
 It does not appear always necessary to join the heirs 
 when there is a devisee beneficially entitled. Thus, 
 where n devisee brought a redemption action without 
 nuikinj? the heir-at-law a party. Lord Hardwicke said: 
 
 (p) Citing Re Mitchell, Wavell v. Mitchell, W. N. 1892, p. 11 ; Frances 
 
 V. Harrison 48 Ch. D. 183 ; Aylward v. Lewis, ri8!)l] 2 Ch. 81 ; Mills v. 
 
 Jennings, l.j Ch. D. fi49; Malone v. Malone, 17 0. R. 101; Re Booth's 
 
 > Trusts, 1() O. R. 429 ; Goldsmith v. Stonehewer, 9 Hare, XXXVIII. ; Han- 
 
 man v. Riley, ib. XL. 
 
 («?) Citing Willis v. Willis, 19 Gr. r)73 ; Lovell v. Gibson, ib. 280 ; 
 Harvey v. Wilde, L. R. 14 Eq. 438; R. S. O. c. 04, s. 26. 
 ()•) Trust and Loan Co. v. McDonnell, 12 Gr. 196 (1806). 
 («) Coles V. Forrest, lOBeav. at p. 557 (1847). 
 
PARTIES DEFENDANT. 
 
 43 
 
 '' If the plaintiff claims to have the will established, it 
 is necessary; if only a title under a will, it is not (/). 
 Where, however, there is any danger of the will being 
 attacked, tlie heirs should be joined" (u). 
 
 Annuitant. — Where an annuity is charged on the 
 e(iuitv of redemption, the annuitant is a necessary 
 party (/). To sucli an extent is this true that a mortga- 
 gee was allowed the costs of an administration to an 
 iiiinuitant who had died pendente lite, her annuity being 
 in arrears {ic). 
 
 Legacii£S Charged. — Where the mortgagor devised 
 Ills estates, subject to the mortgages and subject to 
 several legacies, it was held that the legatees were neces- 
 sary parties (,r). 
 
 Principal and Surety. — Where there is only one 
 jdiiiclpal and one surety, both must be made parties to 
 an action for foreclosure or sale (//). 
 
 Assignee in Bankruptcy. — See under Mortga- 
 gor (C). 
 
 Kemaindermen and Reversioners. — These are pro- 
 per i)arties (~). " Where there are trustees to preserve 
 conlingent renuiinders, however many contingent limi- 
 1 at ions there may be, it is sutticient to bring the trustees 
 before the Court, together with him in whom the hrst 
 icmainder of the inheritance is vested, and all that come 
 after will be bound by the decree, though not in esse ; 
 unless there be fraud auf^ 'ollusion between the trustees 
 and the first owner of the inheritance {a). 
 
 (t) Lewis V. Nimj^le, 2 Veg. Sen. 431 (1752), Ambl. 150. Cf. Maccles- 
 field V. Felton, 1 Vern. 168 (1(583). 
 
 {«) See Hunt v. Acre, 28 Ala. .")80. 
 
 (i) Hunt V. Fownea, 9 Ves. 70 (1803). Cf. Coles v. Forrest, supra. 
 
 (iv) Hunt V. Fcwnes, supra. 
 
 (.r) Batclielor v. Middleton, (5 Hare, 78 (1847). 
 
 ill) S^idler v. Sheppard, 12 Gr. 456. The surety Rave a mortgage on 
 his own property. 
 
 (z) See Fisher on Mortgage, 5th Ed., s. 1434 et Eeq. 
 
 (a) Fisher on Mortgage, 1st Ed., s. 313 ; citing Hopkinn v. Hopkins, 
 1 Atk. 590 ; Cholmondeley v. Clinton, 2 Jac. & W. 133. See Fisher, 5th 
 Ed., § 1434. 
 
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44 
 
 FORECLOSURE OF MORTGAGy.S. 
 
 Tenant for Life: Tenant in Tail. — ** The tenant 
 in tail of the equity' of redemption may also redeem {h), 
 and so may the tenant for life " (c). 
 
 Tenant for Life; Representatives of Deceased. 
 — The representatives of the deceased tenant for life of 
 an equity of redemption are not necessary parties to a 
 bill to foreclose, although the interest on the mort- 
 gage fell into arrear during the lifetime of the de- 
 ceased ((/). 
 
 Lessees of Mortgagor. — " Being in fact a lessee, 
 and as such a purchaser pro tanto, and having thus a 
 dear and indisputable right to redeem " (t). 
 
 Lessees subsequent in date to the mortgage, or 
 who have postponed their lease to the mortgage (/), have 
 an estate in the land and are entitled to redeem (7). 
 
 Tenant for Years. — ''A tenant for years may re- 
 deem, although his lease being made after the mortgage 
 {ind good against the mortgagor, is not good against the 
 mortgagee, and although the lessor being also the mort- 
 gagor has released his equity of redemption to the holder 
 of the mortgage ■' (//). This right of redemption is abso- 
 lute (as against the mortgagee), and the Court has no 
 discretion in granting or withholding redemption (i). 
 
 Why Tenant Should Be Joined. — To an action 
 upon a mortgage for relief by sale or foreclosure, a ten- 
 ant of the mortgagor is a proper party, in order that he 
 
 (b) Playford v. Playford, 41 La. .Tlfc, redemption by tenant in tail 
 against devisees of tenant for life who had paid mortt{at;e. 
 
 (c) Fisher on ISFortgage, 5th Ed., ss. 1433, 143.") ; citing Aynsley v. 
 Reed, 1 Dick. 249 ; Evans v. Jones, Kay, 2!) ; Earl of Kinnoul v. Money, 
 3 Sw. 202 (/)). 
 
 {(i) Forsyth v. Drake, 1 Gr. 223 (IhSO). 
 
 (e) Per Sir H. Strong, C.J., in Collins v. Cunningham, Cunningham 
 V. Drysdale, 21 S. C. R. at p. 14() (18i)2). 
 
 if) Anderson v. Stevenson, 15 O. R. 503, 572 (1888). 
 (<j) Tarn v. Turner, 39 Chy. D. 45() (1888). 
 
 (//) Boyd, C, in Martin v. Miles, 5 O. R. at p. 415 (1893) ; citing 
 Jones on Mortgages, s. 106(5. 
 
 ((') lb. at p. 416; citing Pearce v. Morris, L. R. 5 Ch. App. p. 230 ; 
 Faulds V. Harper, 2 O. R. 411. 
 
PARTIES DEFENDANT. 
 
 45 
 
 may redeem if he desires to do so, or in case of default 
 of payment be ordered to deliver up possession (/). 
 
 Mortgagee May Accept Tenant. — Of course, if it 
 is not intended to set the lease aside, it is not necessary 
 to make the lessee a party. 
 
 In cases where a long and improvident lease (such 
 as ought to be set aside) turns up after the beginning of 
 ])rocoedings, the easiest plan would be to apply under 
 Rule 190 to have the lessee added as a party. 
 
 Railway Company in Possession. — "This is a fore- 
 closure suit, and the railway company being in posses- 
 sion of a portion of the mortgaged premises, were proper 
 and necessary parties to the suit " (A:). 
 
 R.8.O., 1887, c. 170, 8.20(25), enacts: "25. The com- 
 pensation for any lands which might be taken without the 
 consent of the proprietor, shall stand in the stead of such 
 lands; and any claim to or incumbrance upon the said 
 lands or any portion thereof shall, as against the com- 
 pany, be converted into a claim to the compensation, or 
 to a like proportion thereof, and they shall be respon- 
 sible accordingly whenever they have paid the compen- 
 sation, or any part thereof, to a party not entitled to re- 
 cover the same, saving always their recourse against 
 such party." 
 
 The compensation mentioned is that to be ascer- 
 tained under section 20 of the Act, and "it is for the 
 company to entitle themselves to possession, or to de- 
 fend themselves from further proceedings by ascertain- 
 ing and paying the amount of the compensation " (/). 
 
 The mortgagor does not represent his mortgagee for 
 purposes of the Railway Act of Ontario. He can deal 
 only with his equity, leaving the mortgagee to have sepa- 
 rately ascertained his compensation for lands taken (m). 
 
 U) Canada Permanent Loan and Savings Society v. Macdonnell, 22 
 Gr. 4G1. 
 
 (A) Per Burton, J. A,, in Scottish American Investment Co. v» 
 Pnttie, 20 A. R. 398 (1893). 
 
 (1) lb. at p. 402. Per Osier, J.A. 
 
 (m) Re Toronto Belt Line Railway Co., 26 0. il. 413 (1895). 
 
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 46 
 
 FORECLOSURE OF MORTGAGES. 
 
 A mortgagee brought an action for trespass against a 
 railway company wliicli had dispossessed liim of some 
 vacant lands he had entered under his mortgage. Held, 
 entitled to recover value of lands as damages, to be held 
 as security for his mortgage moneys, and mortgagor en- 
 titled to redeem in respect of the damages as he would 
 have been in respect of the lands (»). 
 
 Execution Creditor. — Though ordinarily execution 
 creditors are made parties in the Master's office, this is 
 not the correct course where the execution antedates the 
 mortgage. In that case the execution creditor should be 
 a party to the writ. " The execution is prior in point 
 of time to the plaintiff's mortgage, and if the plaintiff 
 seeks to have it postponed, he is not entitled to have 
 the question disposed of in the Master's office or upon 
 motion, without the defendant's consent. The defendant 
 is entitled to have the question tried at the hearing of 
 the action " (o). 
 
 Mortgagee Who Has Parted With His Interest. 
 — A mortgagee who had been in possession, but assigned 
 his interest to his co-mortgagee, is not a necessary 
 
 pai-tyC/^). 
 
 B. DEFENDANTS ADDED IN MASTER'S OFFICE. 
 
 Besides the discretion allowed the Court under Rules 
 190, 103, 20(5, to add parties, there is a long-established 
 usage by which the Master adds in his office "all such 
 persons as appear to have any lien, charge or encum- 
 brance upon the property in question, subsequent to the 
 mortgage in question " (</). , 
 
 Classes of Persons Added.— The classes of per- 
 sons thus added comprise cliiefl}' puisne mortgagees, lien 
 holders (including mechanics), and execution creditors. 
 
 (n) Delaney v. C. P. R. Co., 21 O. R. 11 (1890). Street, J. 
 (o) Lally V. Lonf?hurst, 12 P. R. 510 (1888). Street, J., leave given to 
 Bet aside judgment and amend. 
 
 ij)) Russell V. Robertson, 6 C. L. T. 118. 
 ((/) Rule 746. 
 
iliMI 
 
 PARTIES DEFENDANT. 
 
 47 
 
 These will be dealt with somewhat fully under Rule 74G. 
 We may, however, profitably insert here some para- 
 graphs on tlie subject. It is to be noted that a person 
 may be added in one capacity, e.g., judgment creditor, 
 without being bound in another capacity, e.g., mort- 
 gagee (/•). 
 
 Assignee of Subsequent Incumbrancer. — The as- 
 signee (including assignee in insolvency) of a second 
 mortgage, etc., is a necessary party, and the assignor (if 
 assignment absolute) ceases to be so. except in cases 
 where tlie assignment was made pendente lite (,s). And 
 generally an incumbrancer pendente lite is not neces- 
 sary (/). 
 
 Second Mortgagee, Representatives of. — The 
 lieirs (real representatives) of a deceased mortgagee of 
 an equity of redemption are not necessary parties to a 
 suit of foreclosure by tii" prior mortgagee — the pro])er 
 party being the personal representative of such mort- 
 gagee (ii)- 
 
 Judgment Creditors of Subsequent Incum- 
 brancer.— In Darling v. Wilson (r), Spragge, V.-C, held 
 that the plaintiff should have been made a party on the 
 ground that his execution against lands attached upon 
 the moi'tgage, and that he, as the execution creditor, was 
 a derivative mortgagee in invitum, his execution creat- 
 ing a cliarge n[)on the mortgage. " It is suggested," 
 said liis Lordship, " that it is a writ against goods, not 
 against lands, that would attach upon a mortgage, it 
 being a security for money; but whatever may be the 
 case, if the mortgage itself, as a security for money, were 
 to be talven in executic x it is a fi. fa. against lands that 
 
 (r) Crooks v. Watkins, 8 Gr. 340 (ISfiO). 
 
 (x) See Daly v. Kelly, 4 Dow. 43.") ; Wood v. Surr, 19 Beav. 551. 
 
 (t) Soo Wiltsie on Foreclosuro, &s. iri(j-174. 
 
 (n) Grimsliawe v. Parka, 6 L. J. 142 Chy. Cf. Taylor v. Stead, 1 Chy. 
 Ch. 74. See further, Wiltsie on Foreclosnre, s. 172, heirs, devisees, legatees 
 and annuitant of deceased subsequent lienor not necessary ; s. 173, execu- 
 tors and ndministrators necessary. 
 
 (r) IG Gr. at p. 257 (18G9). 
 
 I 
 
 :•;! 
 
 M 
 
 I u ' 
 A 
 
 i 
 
TF~- 
 
 Eia 
 
 III: 
 
 I: 
 
 
 4S 
 
 FOUECLOSUKE OF MORTGAGES. 
 
 is the proper process for a judgment creditor to issue 
 in order to place liiniself in a position to charge the lands 
 of his debtor in this Court; so, at least, I have always 
 understood to be the received doctrine of the Co,urt. It 
 is true that the plaintiff is '^ae de[jree removed from the 
 mortgagee, but so is any derivative mortgagee " 
 
 Judgment Creditors of the Mortgagee. — " Esten, 
 V.-C, said he thought the judgment creditors of the mort- 
 gagee were necessary parties to the cause; but that they 
 might be made parties in the Master's office " (w). 
 Doubtless, where the mortgage has been seized by the 
 sheriff", and attached by him in the registry oQice, the 
 execution creditors would still be proper parties. 
 
 Mortgagor in Derivative Mortgage. — P., a debtor 
 of the plaintilf, deposited with him certain mortgages 
 as security. The plaintiff filed a bill against the owners 
 of the equity of redemption of one of the mortgages for 
 payment or foreclosure; the defendant, at the hearing, 
 objected that 1». was a necessary party, but the Court 
 overruled the objection, as it had not been taken by 
 answer, and P. might be ordered to be made a party in 
 the Master's office (x). 
 
 Assignees of Mortgagee, Where Foreclosure of 
 Derivative Mortgage. — Where a mortgage was made 
 by A. to E. T., and transferred by him to AV. T., and by 
 him mortgaged by way of deposit to the plaintiff, W. T. 
 in his answer stated that he was not interested in mort- 
 gage which belonged to E. T., and was assigned to one 
 K. B. Though W. T. cjnseuted to withdraw his answer, 
 the Court held that E. T. and R. B. were necessary 
 parties and refused to pronounce a decree in their ab- 
 sence (//). 
 
 Mortgagee of Tenant of Mortgagor.— Where a 
 mortgagor subsequently leased part of the mortgaged 
 
 (if) Sanderson v. Ince, 7 Gr. 383 (1869). 
 
 (x) Jones V. Bank of Upper Canada, 12 Gr. 429. 
 
 iy) Vankleek v. Tyrrell, 8 Gr. 321 (1860). 
 
mmi 
 
 PARTIES DEFENDANT. 
 
 4d 
 
 property, and one of the two owners of the lease niort- 
 ga}j;e(l his interest therein, sueh niortgaj^ee was made a 
 party in tlie Master's ottiee to a suit bv the original mort- 
 gagees to foreclose their mortgage (z). 
 
 ^roRTGAGKKS OF Traok FfXTiRES. — Tenants owning 
 trade fixtures may apparently remove them as against 
 the mortgagee of their landlord, and mortgagees of these 
 iixtiures could not be ])roperly added as ])artics to the 
 foreclosure action. Hut where the mortgagor procured 
 an undivided inteivst in the trade tixtur<'s of his tenants, 
 it was held that his interest would go to increase the 
 mortgagee's security, and that mortgagees of the trade 
 fixtures c(uild be jiropeily added in the Master's oftice as 
 incumbrancers (a). 
 
 
 
 C. PRIOR MORTCAOEE. 
 
 Prior ^Iortgac.kk. Party to Kkdhmi'tiox Not 
 FoRECLosuRiL. — *■ As a general rule a. bill can only be 
 filed against a mortgagee for the purpose of redeeming 
 his mortgage, B\it that does not necessarily exclude 
 tlic right of obtaining from other parties under the same 
 bill relief consequent on such redemption. Thus, where 
 (»nc of two or more j)ersons, interested in the Cipiity of 
 redemption, files a bill to redeem, tlu' decr<'e after pro- 
 viding for the paynu'nt of the mortgage, may }»roceed to 
 carry out the equities arising therefrom as between tln^ 
 other parties '' (//|. In fact, the owners of the equity 
 should Im' made parties (c). 
 
 To RKDKKNf PRlOk M()RTr,A(]K. RoTIT MoRTGAC.KS 
 
 Mist Rk Ovkrdlk. — It is a condition j)rcced('nt to a 
 
 i 1 
 
 ;! I 
 
 Mil 
 
 (i i 
 
 {z) McMaster v. Demmery, 12 Gr. IKH (ISfifi). Mowat, V.C. 
 ('i) London and Canadian Loan Co. v. Tnlfoid, 8 I\ R. 150 (187!»), 
 Trotidfoot, V.C. 
 
 {!)) Rotiers v. Lewis, 12 Gr. 2.">7 (IHdO), Tlie bill (writ or statement 
 of claim) should pray redemption, but see Pearson v. Campbell, 2 ("by. 
 Ch. 12; National Bank v. United Iland-in-IIand Co., 4 App. Cas. S'.tl 
 
 (i87'.n. 
 
 (c) Lonf.! V. Long, IG Gr. 239 (18t',9). 
 
 H.F.11.--4 
 
 j 
 
 't 
 
 
 J 
 
 
 
 
 
 i ■ 
 
 ' 
 
 1. 
 
 r : ■• 
 * ■ 1 
 
 i] 
 
 
 ^i^ 
 
 
 
 i 
 
 % 
 
 [■ 
 
 mi 
 
 Ljii 
 
 
I7W 
 y 
 
 50 
 
 FORECLOSURE OF MORTCJAGES. 
 
 r 
 
 subsequent mortf^agee biinginfc an action to redeem a 
 prior mortgage that both mortgages should be over- 
 due ((/). 
 
 Redemption ]May Be Combined With Other 
 Oauses of Action. — Where a subsequent ineunibrancer 
 prays redemption, he may also impeach an alleged sale 
 of the lands under the power of sale in the prior mort- 
 gage, as also a sheiitt's sale of a portion of the pre- 
 mises, the purchasers being made defendants ((■). 
 
 Prior Mortgac.ee in Possession Acquiring Equity. 
 — Where the lirst mortgagee accpiired the interest of the 
 mortgagor, and entered into possession, he receive'^ more 
 rents and protits than would have paid his claim as mort- 
 gagee. In a redemption suit brought by Ihe si'cond 
 mortgagee, the tirst mortgagee was not held account- 
 able for the surplus over his claim, for he was taken to 
 liave received that in his cai»acity as owner [[). 
 
 1'RIOR :>rORTGAGEE, RiGIlTS OF, WllEN CONSENTING 
 
 to ]?e 1'artv. — Where a prior mortgagee was made a 
 jtarty and did not object, and sale was held, the proceeds 
 were applied to the satisfaction of his mortgage. The 
 I)roceeds not proving sufficient for even the prior mort- 
 gage, the incumbrancer conducting the sale applied to 
 havi' his costs paid out of the fund in preference to the 
 prior mortgage ; his application was refused with 
 costs if/). 
 
 Special tJiRcuMSTAXCES. — Formerly there was a 
 rule ((.'on. Rule :{(>5), now omitted as unnecessary, to 
 the effect that a prior mortgagee was not to be made a 
 party, except under special circumstances to be alleged 
 in the statement of claim. No doubt special cii'cum- 
 stances are as much within the discretion of the Court 
 as if the rule were still in existence, 
 
 [d) Parsons V. Bank of Montreal, 15 Gr. 411 (1808). In this case 
 there were two prior mortf^af^es. 
 
 (e) McLaren v. Fraser, 15 Gr. 23'.t (1808). 
 (/) Steinhoff v. Brown, 11 Gr. 114 (1805). 
 io) Grange v. Barber, 2 Chy. Ch. 189. 
 
I'AUTIES DEFENDANT. 
 
 51 
 
 Special Circumstances; Deed Absolute in Form. 
 — The fact that the prior inortfjaj^e takes the shape of 
 ii deed absolute in form is a special circumstance: "It 
 would be A-roii};', and in contravention of the order, to 
 nuike a i)rior incumbrancer a party unless in order to 
 redeciU him, excei)i under .^peciai circumstances, Tim 
 two defcndaJits have made this necessary by putting; 
 li.'s secunty in an unusual form; one not expressing 
 its bare character, and which would bar plaintift's 
 remedy if it stood unimpeachcd. The rifjht of plaintiff, 
 as second mortj^agee, is to have the option of redeeming; 
 K. or of foreclosing or selling subject to his mort- 
 gage "' (Z^. 
 
 The execution creditors of tlu' person to whom the 
 deed absolute in form is made should be made parties 
 defendant to the Avrit in the action (j). 
 
 (h) Moore v. Hobson, 14 Gr. 703 (18C8). 
 
 (i) Glass v.Freckleton, 10 Gr. 470 (18(14); followed in Lally v. Lons- 
 luirst, 12 P. It. 510. Cf. Darling v. Wilson, 1« Gr. 2'w (1808). 
 
 r 
 
 
 :ii 
 
 
 M 
 
 \Ui. 
 
 i 
 
52 
 
 FORECLOSURE OF MORTGAGES. 
 
 V. JUDGMENT. 
 
 A. JUIKJMENT ON PH/KCIPE. 
 
 When Entitlkd to rR.iccii'E »1udgment. — If the 
 writ is indorsed as provided in Kule 141, and the parties 
 are sui juris U/). tlie phiintiff is entitU'd under Huh' 
 59(5 to a praecipe j«idj»nienl in the followinj; eases: 
 
 (1) W'lHM'e the defendant does not appear. 
 
 (2) Wliere llie defendant by his statement of dt*- 
 fenee admits the execution' of the mort^ajife arul other 
 facts, if any, entitling- tlie ])laintilf to judj?ment (/>). 
 
 (,'{) Where the defen«hint dischiinis any interest in 
 the mortj;aj;e<l premises. 
 
 (4) Wliere no statement of defence is delivered. 
 (;")) Where notice is tiled and served disputinjj; the 
 amount of the plaintitf's claim only. 
 
 (t>) Where in his app<'arance the defendant states 
 that he disjtutes the amount of the plaintitf's claim 
 only {(■). 
 
 Where -Jlixi.me.nt Extekkd. — Where the action is 
 l»e;?un in a local ottice the pra'cipe judj^ment must be 
 entered there, for it will be known there if appearance 
 is entered or not, and whether the jud}»nient may be jtro- 
 perly sij^ned as on default ((/i. 
 
 ('/) See Itiilc .")!(.'>, where some clcfeiidiints infants; and cf. War- 
 nock V. rricnr. 1L' I'. J{. 1M;4 (1SS7). mlnlt Innatic. 
 
 th) An jidniission of niakinj: tlie nmrtKHKt'. !ircMnii>iinitMl by u 
 denial of otlu'r facts, will not entitle to a praecii)e .iudjiniont. lloss 
 V. Vader, ;{ Vhy. VAi. l*.*?)'. (ISTl). 
 
 (c) This was added to overcome the ditliculty raised in Kice v. 
 KinKhorn, 17 V. U. 1 (ISJCi. Cf. Mahoney v. Ilorkins. 14 P. K. 
 117 (IS'.)l). 
 
 ((/) Chamberlain v. Armstroiifr, !) V. It. 212 (1882); Dongall v. 
 Win.urn, 1 Chy. Th. I{. 1. '.''). 
 
JUDGMENT. 
 
 53 
 
 J)i:feni)Ants On- of Jcuisdiction. — It is a jioneral 
 rule ii(»t to fon'flose an absent dcft'ndaut (r), and wlici-e a 
 I»ai't.v t'nlitlcd to one tliird of Ihe equilv was absent 
 abroad a dccrt'o was refused (/). In some eases service 
 hy advertisement has been allowed (//). 
 
 The ruh's for serviee out of llir jnrisdieticm are set 
 out in Knies Klli, el se«|. It apjM'ars that no order allow- 
 in;;- serviee is neeessarv in foreclosnre (//). 
 
 KiirjicF (ii\i;n i\ ru.Kcii'K .FrDCMKNT. — The plain 
 litl" nnder a pru'eipe jnd}i,nient is entitled to the relief 
 for which a claim may be endorsed npon the writ nndei- 
 Kiile 141. Tlu' tendency of the de«isions is to limit the 
 relief to the claims that mij«ht be made nnder Knh' 1 41, 
 an<l actnally ar«' so made(/). At any rate, it seems the 
 ollicer may refuse to sif^n judgment, and leave the jtlain- 
 lirt' to apply to the <'onrt for his remedy (/). 
 
 H. .ITDOMKNT FOR FOUKCLOSURE AND PER- 
 SONAL PAYMENT. 
 
 Okdkr for I'kusonai. J'avmknt. — Even jtrior to the 
 jibrop;ation of Con. Rnle :U1. an order for jtersonal pay- 
 ment mij^ht be combined with an order for fore- 
 ehtsure (/,); where both forms of relief were expressly 
 elaimed (/). 
 
 OKDFR for rKRSOXAI. PaVMI:NT. l.MMKDlATi;. — The 
 
 payment is not to be i»ostponed for six months aft<'r the 
 
 ut Locky V. Dancer, ;{ Moll. !(«►. 
 
 (0 <'iiil<lick V. Cook, IV2 licav. 70; cf. Huiuoru v. Nicholson, 
 5 L. J. N. S. Gh. 203; cf. Smith v. Boucher 1 Hm cV G. 72; 10 
 .Tur. 11.-.4; Thiir^rood v. Cane. 11 W. U. 'J'.)7. 
 
 ((/) Sec IJnles 14(5. I(i7: cf. Leclunere v. Clami). .'io ],. .T. Ch. 
 CmI: !> W. K. SCO; liondon Monetary Advance Co. v. Hean. IS 
 L. T. X. S. -MU: Hyde v. I.ar^'c, V.) L. 1{. K(|. 4S; 'Si W. U. 'SJL. 
 
 (/iH'haml.erlnin v. Arnistronjr. t> 1'. U. '2V2 (1SS2). 
 
 ii) .See (Jee v. Bell, ^.'j Cliy. D. 1(!0 (1SS7), delanlt .ind>,'ni.nt 
 liniited to terms of writ; Brierly v. Ward, 1."( Jur. 277 (1S.")0). I'^ore- 
 (losure al)solutc not granted. Cf. Faitlifidl v. AVoodley, 4;{ Ciiy. 
 I>. 287 (1889), where statement of claim asks account. 
 
 (/) See Cases under Rule ofXt. 
 
 (A-) Cf. Rule 141; Dymond v. Croft, ;? Chy. D. '.12. 
 
 (/) Gibbon v. Walker, 38 L. T. N. S. 217. 
 
 ■ ( 
 
 I 
 
 :l\ 
 
 ' It 
 
!^ 
 
 M 
 
 FOUECLOSUKE OK MOimJAOES. 
 
 repoil, but in to be uu iuimcdiate ]*tiyiiieut or a puyiueiit 
 w'ithiu Hiicli time uot beiug iiuniediate, uh the Court 
 thiuks rif;ht. e.fj;., within one month (m). 
 
 Ki'i'KCT OK Kkikkkm K ON Immkuiate Paymkn't. — 
 If the mortj^jijiee asks a reference to the Master, ilie 
 registrar cannot tsike tlie account, but tlie amount due 
 by the defenchint on tlie covenant will be also referred 
 to the Master, and made fortliwith payable after the 
 report (/«). 
 
 Foreclosure After Execution on IMcrsonaf^ 
 Judgment. — Where it is desired to avoid opening fore- 
 closure an«l to exhaust the remedy of execution on a 
 personal judgment before proceeding to obtain fore- 
 closure absolute, the judgment may be drawn after the 
 following form: 
 
 "The order directed the mortgagor within one 
 numth after the date of the judgment to pay the 
 to the plaintitf; then that an account should be taken 
 of what was due to the plaintiff under and by virtue of 
 his mortgage, and lor his taxed costs of the action, and 
 in taking the account regard was to be had to the 
 amount (if any) which the plaintiff might have received 
 under the previous direction for payment. Then fol- 
 lowed the ordinary ju'ovisions lor redemption and fore- 
 closure, six months for redemption being allowed to the 
 K(;cond mortgagees, and a further period of one month 
 to the mortgagor '' (o). 
 
 Default Judgment Where Statement of Claim 
 Asks Account. — Order " for payment by the defendant 
 of the amount which shall, on taking the account, be 
 found due from him upon his covenant within a month 
 from the date of the certiticate " (/)). 
 
 (m) Farrer v. Lacy, li."* (Jhy. D. <]45 (1SS.'{). 
 
 \n) North of Scotland Oanadiau Mortgawo Co. v. Board, 9 P. 
 U. .14U (1H8;{). 
 
 («) Hunter v. Myatt, 28 Chy. D. 181 (1884), the form iu Grundy 
 V. Urice, Sotou on Docrccs, 4th Ed., vol. ii.,p. 1036 (No. 2), modified. 
 
 (/)) Faithfull V Wordley, 4:{ Chy. D. 287 (1889). 
 
c. 
 
 JUDOMENT. 55 
 
 JIJIKJMEXT FOH FOHF.CLOSIJUK AND DE- 
 LI VKKY OF mSSKSSIOX. 
 
 Dkvki.oi'Mknt of thic Ordkk for PoSSHSStOX. — ** Wo- 
 tai'«* tlu> .ludicjilun' Act. or tlu' AdminiHtratiou of .lus- 
 tico Act, the jilnintilV, by a pro(('(Mlin}i; in (lie forcclosun* 
 suit iiflci' Ji llnal jiulunicnl in foreclosure, could, ^'V 
 jii'occss of law, enforce tlie delivery of poMwession to liini 
 l»,\ tlie defendant. Tlial was after llie final fore<'losui'e. 
 and it must be observed as to it, that it was not the ob 
 ject of the suit to enforce that r<'niedy; the object of 
 tlie suit was to bar the defendant's rijj;ht of redemption; 
 and the delivery of |)«»ssession was enforced after judj;- 
 ment for the plaintiff on the nmtters really in litijjation 
 in the suit, where the decision showed that the plaint ifl" 
 was entitled to the ])ossessi(m. It was j^iven to him as 
 a ri}»ht necessarily in«ident to his recovery in the matter 
 which was really in contest in the suit. 
 
 " Since the Administration of Justice Act there has 
 been the pow<'r to award execution by h.ab. fac. pos. 
 while the foreclosure suit is yet open and pending;, that 
 is. tipon the ]>laintitT obtaininjjj the preliminary judjj:- 
 nient, as ui)on default of ai>pearance, for instance. That 
 jiractice is <'ontinued by tlu» Judicature Act, and the 
 difference, and the only difference, that need be men- 
 tioned, is that now the jlaintitf is entitled to the writ of 
 jtossession upon obtaining; the preliminary judjfmeut in 
 the suit; whereas und(«r the old (Chancery practice the 
 plaintiff was entitled to jiossession upon the tinal fore- 
 closure only." (q). 
 
 Okdkr for Possession Usually Asked ix Writ. — 
 It is usual to claim the order for delivery of possession 
 in the writ, so that it will be included in the original 
 order (/•). Even where the writ does not ask the order 
 for possession, the order fpr foreclosure absolute may 
 
 (■'/> Seymour v. Di-Marsh, 11 1'. R. 472 (188(]), Dalton, M.C. 
 (/•) Imperial Louii ami Investment Co. v. Boulton, '2'2 Ht. 121 
 
 I M 
 
 ; III 
 
 '■ ,i 
 
56 
 
 FORECLOSURE OF MORTfJAGES, 
 
 inrludc it (.s). The coiiHs will not put the itlaintitr to 
 tile exj^'use (►f biinynnj^ another action for the i)iirj)ose 
 of reioverinfif possession (/). Jiut the i»laiutilf cannot 
 insist on signing judgment on prjecipe under Rule 
 
 Sii'PLEMEXTAL OuDKR i-oK lN)SSKSsi()N. — Where tin* 
 decree by oversight contained no direction as to giving 
 nj) possession, a supph-niental order was made, but on 
 pavment of costs (r). Such an order should pi-ojierly be 
 moved for in Court, not Chambers (^«;). 
 
 Pdssession Snori.i) Jiic Askkd WiriiorT I)i:r,.\v. — 
 The mortgagee should ajtjily piomptly for the order for 
 ]iossession in a mortgage action. Whei'e more than 
 three years el'ipsed between the tinai order and an a])])li- 
 <ation for the delivery of possession, the Court required 
 an attidavit showing the circumstanc<'s of the jtossession 
 since the final iMder. and that the defendant had never 
 relincpiished possessiim i.ij. 
 
 Not (Jkaxtki) K\ Paktk. — Where the order is not 
 included in a jtra'cipe judgment, a motion for delivery 
 of possession should be made on notice (//). 
 
 Against Whom Okdick ]>ikk(ti:i!. — Tlie rule 1ms 
 be<'n laid down that the defendant must be shown to be 
 in i)Ossession, and that nc* (n<ler will l)e ma«le against a 
 
 (.v) Best V. Ai.pli'uatc. .'!7 Cliy. I>. 4'.* (ISST), fullowiiif; Suiter 
 
 V. Kdpar, W. N. ISSii, p. 47: I-acuii v. T.vnvll, \V. N. 1S,S7 i». 71. 
 
 ("f. l/dzior V. Itiiiiiscv, t! (Jr. •>'2'.\ (ts."'>7l. .Icukiiis v. Ki(l(j;lcy, ;{ H. 
 Ol'S; 41 W. U. r.S,->. 
 
 tt) K.-ith V. Diiy, :«» Cliy. I). 4.".:.' dSSSi. 
 
 00 Sec riicrill v. FoH.t's, S I'. U. 40S dSSOi. 
 
 r) Miison V. Seiiey, - Cliv. Cli. .'io. Hut set; I^azitT v. Hainst-v. 
 
 (.dr. .•{•j;{ (1S.->7|. 
 
 ur) lit. 
 
 (J) Irvinn V. Miinii. 1 VAiy. (Mi. 1*40 (1S(;4). ("I". Ilodf^kinson v. 
 l''riMicli, 1 Cliy. VA\. 2'2'.\: atlidavits ti> lie tiled sliiiwiiifr iiiiirt;.'a>:or 
 in possession. 
 
 I//I Huckley v. Ouillelte. 11 Cliy. Cli. 4:!!t (lS(;fti. Cf. Wiilker v. 
 Miitthews. 1 Cliy. Cli. )1',\2. iioti<'e liy imreliasur at m.^rtgage sale: 
 Hodfe'kinson v. Froiuli, 1 Chy Cli. 201. 
 
JUDiJMENT. 
 
 67 
 
 :l 
 
 tcnani or lliiid i>ai'1y in ])oss('ssi«>n. m>\ a ]»aiiy io the 
 <iiijs(' (:j. iioi* <'V«Mi ajjaiiisl a iiumc Ircspassrr (f/). 
 
 An ovdci* fop delivery of possession is only made 
 ;if;ainst i»ersons, not parties, wlieu tliey liave ac(niir"(l 
 possession pendente lite from a ]»ai'ty to Ihe suit, and 
 have no pietenee of haviii}; a paramount title, tlionjili 
 I lie rule may be somewhat hi'oader in the ease of re- 
 ceivers and se«|uestratoi's (/>). 
 
 All applii'ation for an orjlei* for possession cannot 
 be made the means of trying' the v\*xh\ to jtossession be- 
 tween a landlord and his tenant, or a trespasser. Whore, 
 tliei-efore. a mort^-a^^or's tenant had attorned to tin* 
 iiiortj^a^'ee, and afterwards such ti'uant left the premises, 
 and lliey f<dl into the hands of another party, an order 
 foi- possession aji'ainst such jtarty was I'efused {<■). 
 
 I). JrJKJMKNT A(JAINST INFANTS. 
 
 llciw ()iiT.\ixi:i). — liy J{ule ;")•>') a judj>nient. \vlier(t 
 some of the defendants are infants and net defence is 
 set ui>. is to be apjdied fm* in Chambers upon notice to 
 the jiuardian ad litem, etc. 
 
 In cases (of infants) not coming- within liiile ")!)."». 
 jndjiinent would be (ditained on motion under Huh? <»(►!>. 
 
 IxoriRv Wi!i:tiii:k Safjc ok Fohkclosiki-: Mokk 
 Mi.m:i-1( lAL. — It is a matter of coui's«' to f^rant a n'fer- 
 eii •('. where infants are <-oncerned. for the piii-pose of 
 an in(|uiry whether a sale oi foreclosure is ukmc to their 
 benefit (>/). 
 
 WiiKRK ]{i:fi:ki:\(i-: Disi'I-.nsi.d With.— A reference 
 may be dispensed with (ll if the };uar<lian cons<'nts (f); 
 
 <:) M'lvciizii' V. Wijririiis, 12 Cliy. (Mi. ;H>1 ilSC.Jti. ("f. Hank nf 
 AIi>ii1i-c!il V. Ivi'tclmm, 1 Cliy. ("li. 117, nliofc tciiiiiHy lM">:jni aftiT 
 iiKpit^'aKf Kivt'ii: Tinst iiiid Lojiii Co. v. Sturt. <! I'. It. Ho. 
 
 I'/l Irviim V. Mumi, 1 Cliv. <'li. IMO. Ct". Sr..it v. Hlink. .". Cliv. 
 
 rii. :vs', (isTii. 
 
 ('» Hank .f M.mtrnil v. Wiilliioo. K! (ir. 1S4 (1SU7), iDllowod in 
 Trust iiiiil Loan ( "o. v. Start, U 1*. U. !I0 (IST.'Sl. 
 ( Scott V. Hlack, .-t ("liy. Cii. :!'_»;{. 
 
 («/) I>ii(lh«y V. Ht'i-czy, 1.", (!r. 1H (ISCT): sco Craliiiiii v. PaviM, 
 li »'liy. (Ml. '24. 
 
 (f) iMiclloy V. BciHzy, si-.pra. 
 
 ;i 
 
 I ' 
 
I? ■!" .r 
 
 68 
 
 FOllECLOSUllE OF MORTGAGES. 
 
 (2) if the OoiUi't is satisfit'd by attklavit as to the proper 
 jndjTiuent (/). 
 
 Thus, in Wolvcrlianipton and Statfordsliire liankinfjj 
 ( ■(). V. (^('oi'<>e ((/). the secuiity beinjj; insutticient, and tlie 
 def<'ndant's counsel not askin;? liberty to redeem, coun- 
 sel for the plaintiffs uiovimI for judj^nient in default of 
 l)leadin}i;, and aslved for a judjiuient for ininiediaie fon;- 
 ch)Hur(' absolute. Ihe plaintiffs beinp; willinjj to pay do- 
 fendant's costs (/<). North, J., said that an affidavit must 
 be made by the j^uardian of the infant statin}? that in 
 his opinion it would be for the infant's benefit that the 
 I»roposed order should be made, and showing; the grounds 
 of his opinion. There must also he fuller evidence of 
 the value <d" the property. Tlie order asked for mi}?ht 
 then be made, l)ut it would not be drawn up until this 
 evidence was produced to the ( 'ourt.-' 
 
 IxFAXT, Trust Estatk i.v, Also liKXEFiciAL Ix- 
 TKKi:sT. — In Foster v. I'arkeri/) th(^ estate of the mort- 
 j?a};or descended to his infant heir-at-law upon trust to 
 sell. In the foreclosure d(Mree, as drawn up, six months 
 after cominj? of ajje was allowed. A motion was made 
 to vary the decree by adding? a de<-laration that in case 
 the plaintiffs were not redeemed within si.v months the 
 infant should be a trustee for tlieni and that his mother, the 
 executrix, be ordered to convey on his behalf. The 
 motion succeeded. 
 
 K. RKLIEF OUTSIDI': OF USUAL JUDtJMENT. 
 
 iN.irXfTtOX Al'TKK JlDCMKNT I'OR FoKIXT-OSlRi:. — 
 
 After (lecree in a foreclosure suit, a mort}j;aj;or in pos- 
 session be<>an to commit waste; he was restrained by 
 injunction, thouj;h no injunction was ])rayed by tin? 
 bill (/). 
 
 if) li». 
 
 (f/) L'4 Chy. D. 707. 
 
 (//) As lictwecn solicitor and cliont accordiiiir to foiin in Seton, 
 4tli Ed , vol. ii.. |.p. 711. 714: Croxon v. Ia-vit, V2 W. U. SM; Bcnnctr 
 V. Harfool. HI W. U. 4l'S. 
 
 t(».S (Miy. D. 147 (l.S7,S), .l.'ssel, MM. 
 
 (/MJoodniaii v. Kine, S Heav. .■{7!) (1S4.">). 
 
JUrXJMENT. 
 
 59 
 
 When Mortgagor Dirkcted to Deliver Up Deeds. 
 — Tlic Court will not diriMt tho delivery up of the title 
 deeds by the niortj^iifjfor to the iiiortgajjee in case of fore- 
 rlosure. exeei)t where tluM-e is a covenant to deliver them 
 (»n default of payment (A). 
 
 Mortgagee Not F^xtitled to Sale in Guise oe 
 Partitfox. — A mortf»aj,^'e. who has not perfected his 
 tilh^ by foieclosure or otherwise, cannot take advantajje 
 of I{iile *,)'){} (<'on. Itule !)SJ)| to make a summary applica- 
 tion for (partition or) sale (/). 
 
 Xo Partition' Agaixst Wile oe ^Fortgagee. — A 
 deci'ce for ])artition has been held not properly incident 
 io a foreclosui'e oi' redemption suit, in such a way that 
 I he owners of the eipiity of redemi»tioii could be allowed 
 to insist on it ajiaiust the will of the mortjiajyee, who 
 liad no interest in the (luestion (in). 
 
 MoxEVs IN Recefver's Hands. — " I cannot see any 
 sjiccial circumstances in the present case, and I am not 
 disposed to ado]»t a course which will enable the plaiii- 
 litT to i»osti»one the passin;jf of the receiver's accounts 
 till after the foreclosure, and then to put into his pocket 
 money in the receiver's hands at the date of the certiti- 
 < ate, which ouj^ht to have been broujiht into the account 
 witli the mortj^ajj^or " (//). 
 
 Hix i:i\ER Api'ointed; How Not to Reopen Fore- 
 
 ci.osrKK. — See 
 brij-ht (/>). 
 
 Rai'ber 
 
 •leckells (o». Lusk v. Se- 
 
 :'l 
 
 i 
 
 • 1". 
 
 iii(. 
 
 i/.i Wisfiiiaii V. Westlan.l, 1 V. \- .t. tlT itS-Jli. 
 
 (i) Mcreditli, .1., in Mnllitfiin v. llcmlcrsliott, 17 1*. 1{. '227 tlsiic,), 
 fiilluwiiin TiNiiii V. Sinitli (lit'fni'c Spra^ri.'*'.. <'.. 14tli April, lS7.~i, not 
 ii pciitt'il). See further Ii!i|iliinti> v. ScinntMi, S A. It. .V»T; l''iill v. 
 KlidiifA, t) W. U. SCI. 
 
 uin Watkins v. Williams, .'{ ^tacn. A: (J. t'.L'--' (1S.-.1); IP, .Tiir. ISl. 
 
 (h) Nortb, J., in Cheston v. WoUs, [1S03J '2 Chy. ir.l; (t2 L. J. 
 Cliy. 4P»8; not foilovvinfj; form in <.'ol<'nian v. Llewi'Uin, '.'A i'h.v. 
 D. UX 
 
 ill) 11S!>;{|, W.N. Jtl. 
 
 (/') [WM], W. N. I.'i4. 
 
.-^»-„.-„-.^.,. m 
 
 U IS I 
 
 <J0 
 
 FORECLOSURE OF MORTGAGES. 
 
 1 t 
 
 F. FORMS OF JUDCIMENT IN SPECIAL CASES. 
 
 It niJiy be useful to {Jfive the terms of some judg- 
 ments tliat have been gianted in various eases, even 
 tliough by tlu' provisions of Kule ('>(l(> tlu* directions in a 
 judgment do not re(|uii'e to be so specitie as onee was 
 flu* rule. 
 
 SeI'ARAT]': MoRTGAOKS ox SkPAUATK T'ROrKRTIKS. — 
 
 A mortgagee having separate nu>rtgages by the sanie 
 mortgagor (m two ditferent estates can only foreclose 
 <*a(h separately on non-i)ayment of what is secured on it. 
 In a case where the mortgage on tlie one property was a 
 legal, and on the other an ecjuitable mortgage by deposit, 
 the decree directed the Master to take an account, etc., 
 *' ilistinguishing what is due on such deposit from what 
 is due on the mortgage indentures" (//). 
 
 Mortgage of Txdivided Interests. — A. and li., A. 
 owing oiu' undivided third and l^. two-thirds of a free- 
 hold estate, mortgaged the whole estate to (\ Form of 
 decree: "Let the Master state what shall be found due 
 to the plaintiff' for ]»rinciiial, interest and costs as afore- 
 said, and divide the same into three etpial parts; and 
 u[Kui the <lefendant A. ]»aying unto the said plaintitf one 
 of such ecpial third ]»arts within three months after the 
 said Master shall have nuide his subse(iuent report 
 therein, let the jdaintifl" assign the one undivided third 
 |)art of the said mortgaged jtremises and comprised in 
 the indenture of mortgage, etc., to the defendant A., (U* 
 t(( whom he shall direct; in default of such payment A. 
 to stand foreclosed "; and similarly for the two-thirds (/*), 
 
 Where Egurrv Sold axd Mt)RTGAGEi) 1?A(K. — A. 
 and li. nuntgaged to (\, and afterwards sold and con- 
 veyed the same ju'operty to I)., receiving back a mort- 
 gage for the pJirchase money, which exceeded the amount 
 
 iy) liolnics V. TnriitT. 7 llii. 'MM (1S4;{I. 
 
 oi Thonicycnift v. Crockett, 7 .lur. 712 (1S4:{). A qnostioii of 
 tiiikiiif; iiroS(> in this cnsc lietwecii (". and a snlisciniciit initunliraiwer 
 of A.'s interest. Cf. form in HiKKins v. Frnnkis, 10 Jar. '.V2X (1S4«!); 
 in I J. .1. N. S. Ch. :{2U. 
 
JUDGMENT. 
 
 ()1 
 
 duo to C. A., without H/s authority, assigned this moit- 
 iiiXiH' to (\ l»y way of furtlu'i' security for the debt due 
 TO hiiu by A. and \\. On a bill by H, ajjjainst all parties, 
 it was held that the proper decree was the same as if 
 the purchasei" had been the orif^inal owner, and had ex- 
 ecuted the first niortj^a^e to (\ and the second niortjjaj^e 
 to A. and H. (.s). 
 
 \Vlli:i<K PoKTION Ol- KnllTV Soi.l) AND liAr.AXCl': Kk- 
 
 MoincACKi). — S"e IN'rkins v. \'anderli|» (/». 
 
 DisiTTK AS TO OwNKKSiiiP OK EoiiTY. — Wlu're there 
 is i\ dispute as to the ownership of the equity of re- 
 demption, the ilecree should usually contain a direc- 
 tion to the Mastei' to in^piire as to the ownership before 
 ii day is appointed f<M' payment in). 
 
 Act 
 
 ON Bv Skcond M()ktc.A(;i:I': Acaixst First.— 
 
 Proper form (»f judji:inenf is, that in default of the plain 
 tiff redeeminji. the action is to stand dismissed with 
 
 costs (/•). 
 
 SrnsicoiKXT Ixci MHUANc i:k (Jaixixc J*UloKl'r^•. — 
 ^^'here. in a foreclosure suit, a subseijuent incumbrance!' 
 was held to have priority, by reascui of the possession of 
 deeds, and the first mortj^au'ee elected not to re<leem him. 
 tlic bill was dismissed anainsl him only, and as to the 
 oilier incumbrauceis there was the usual foreclosure 
 
 (icci'cc (//•). 
 
 -MoKicAcoK .loixixc AS S^■ul-:^^ ix Ki uriii:i< Mokt- 
 <;\(;i:. — Where L.. whose estate was already moi'tj;a;ied 
 to the |»laintilV. joined l{. as liis surely in a morl^ia^e to 
 the iilaintitV of both their estates for a further sum of 
 iti.oOl), i( was held that " tiie plaintitV beiny- entitled to 
 both tile debts, there must be an account taken of what 
 
 (x| (iniliiiiiio V. AiHltTsoii. I.'t Cr. ISlt dStiS). 
 (H tl (ir. 4SS (ISCmI. 'riio Huts in tliis case tirt- iin'a,i:crly statot, 
 Jiiiil ilii not seem ti» warrant llif (iccfiH'. 
 
 uo ("a.vliy V. Iloilffsiiii, i:{ «!r. i:{:{ (ISCiTl. 
 (ci llall.'tt v.. Fur/..'. .'{I Cliy. D. 'M'2 ilSS.".). 
 ur) La.vanl v. .Maud, 10 I-. T. N. «. 738, 
 
 M 
 
 ! f I 
 
 ■',t 
 
 I if! I *! 
 
 
 ■■ 
 
 
 
 
 
 
 ,■- 
 
 
 
 
 :■;; 
 
 
 
 
 
 
 
 
 \ ' 
 
 1 
 
 ' 
 
U2 
 
 FUUECLOHUllE OF MOllTGACJES. 
 
 is duo to him iipou' cacli of theiu; and upon payment of 
 both L.'s cstak' is to be redeemed, but li.'s estate must 
 be subject to the £«>,r)00 only '' U). 
 
 Where Moktciagee Was Tristee IJesiues. — The 
 jihiintitls in tlie first suit claimed foreclosure; the plain- 
 titt" in the second suit was the mortgagor, Avho claimed 
 set-off against the mortgagee as a trustee liable to ac- 
 count. The Court decided: " I shall do that which it is 
 competent for me to do, take a middle course. If the 
 l>laintiff in the second suit will pay into Court the amount 
 of the mortgages and the Interest due, I will make one 
 decree in both causes, according to the tenor of the prayer 
 of the bill in tl;e second cause, and suspend the decree of 
 foi-eclosiire ' both acco,unts are taken. If the plain- 
 
 tiir in the .-^f i ; it shall decline to pay the money into 
 Court, 1 shall m.ike a decree of foreclosure in the first 
 suit and a •^. pnrate decree for an account of the trust in 
 the second " (//). 
 
 Dower liARRED in One Mortc;age Oxlv. — Where a 
 mortgagor has executed several mortgages, in one only 
 of which his wif«^ joins, the proper decree in an order of 
 foreclosure against the widcnv and the devisees of the 
 mortgagor, is one in the usmil form against them all. 
 ^^'ith a declaration that upim payment of the mortgage 
 executed by the widow she shall, if she chooses, be let 
 into her dower (,c). 
 
 Widow Claim i.nc Dower Taramolxt to Mort- 
 gagee. — Where £400 of the debt was free from dow«'r 
 but £St)0 of it was created after the widow became en- 
 titled and without her joining, the minutes of decree 
 read: " Usual decree of foreclosure against both the 
 defendants as to all the securities. Declare that, sub- 
 ject to the i)ayment of £40(1 and the interest thereon, 
 and so mu<h of the costs of this suit as relate to the £4(){), 
 
 (.r) AlwDith Y. Huhiuson, 2 Beav. 287 (ISHO). 
 
 (y) Dodd V. I..v(lall, 1 Ila. 833 (1842). Sec form of decree, ib„ 
 at II. 34(». 
 
 (c) Tliiboilo V. Collar. 1 Gr. 147 (1850). 
 
JUD(iMENT. 
 
 68 
 
 A 
 
 \]w (Icfcndiint, L. (5„ as bclwccn Imt iind the i»ljiinlifT, is 
 cndtlcd 1() dowci- out of the inoi'(j«ii};«'(l estate. Liberty 
 to tlie i»laintitl" and to tlie defendant L, <r. to apply" (//). 
 
 Wjierk Monkvs i\ J{iai:i\i:R's Hands Not (\\i<uiF.n 
 Jxru AccoiNT. — "Let any jtersons redeeniiiiff tlie ])i'0- 
 niises under the provisions of this order, or the jdaintilf 
 in the event of foreelosnre, b(> at liberty to ajjply to the 
 •tudfi^e in < Chambers for ])ayinent and transfer of any 
 iiioney (or the annuities) in (^ourt to tlu; credit of the 
 action or in the hands of the receiver " (//). 
 
 Ll'.mi' Sl'm Allowed jsv rL.\i\iii-|- i-or Ki:nts to 
 Be CoLLECTiCD. — It would not be fail' to the nu)rtji'aj;'(U' 
 that the niortji.aj'ce should receive interest on the nu)rt- 
 'fi'd'^i' debt, and also what nuiy come into the receiver's 
 hands during' the six months allowed for red(>mption. 
 The plainlitls oujiht to be charjicd with what (if anything) 
 shall have been paid intoCouit by tin? receiv('r and such 
 sum as shall b<' in the receiver's hands at the date of the 
 certilicate. and you may add. "and also such a sum (if 
 any) as the plaintiH' shall submit to be charged with in 
 respect of I'ents and ]»rotits to come into the receiver's 
 hands ]»ri()r to tlu' or<lei' for foreclosure absolute" (c). 
 
 MonTAiiLjc .Mort(;a(;i:: 'Form of Judgment. — The 
 ■word "foreclose" should not be omitted from a judg- 
 nu'ut for foreck)sure of an LMjuitable mculgage id). 
 
 Equitable Moktcacic : Vicstinc. Order. — liv a 
 foreclosure decree on an e([uitabh' nutrtgage, the UKU-t- 
 
 un .Tones v. (Jritlitli, *_' Colly. lioT (lS4."i. 
 
 (/>) Di'awii \iii in accordance with Colcnian v. Llcwcliin, .'U Cli. 
 I>. t4.". (ISS(i), and .stronjrlv disapiirovod in Cheston v. Wells (lS!».'b, 
 -' V.h. ].->l. 
 
 (c) North, .T., in Sinnnons v. lilandy, itS'.tT) 1 Vh. lit. varying 
 form in Seton's .ludjrnients, ,")tli Ed., vol. iii., ii. 121-12. See liarlier 
 V. .leckells, W. N. (1S!K{), Ul : l.nsk v. Selirinht. W. N. (ISill) VM: 
 Ciivisly V. «;(.d\vin (lSU:5i. ;jS Sol. Jonr. 10; Blaiberg v. (Jatto (IStXJt, 
 KKl Iv. T. .lour. 441. 
 
 ((I) L(>es V. Fisher, '22 Chy. D. 2S:\: 'M W. ]{. >M. See also 
 Veottinm v. IJeed, W. N., flStM!), p. .'!<>,'{. 
 
 ! ■■•: 
 
■H 
 
 64 FOUECI^OHUIIE OF MOUTfiACES. 
 
 gat;oi' WiiH (Iccliii'cd a ti'iislco, mikI an ordor was madt' 
 vcsHnt; tlu' cstat*' in the nM)rl},MK<'«^' </')• 
 
 WlIKRK 1>KHT PaYAISI.K UY I NSTAF.M K NTS WITHOUT 
 
 Acceleration.— S«M' C'rreoncmnh v. LitiU'iM/). 
 
 MOUTGACKI) I'RKMISI'S OlT OF .1 IRlSDrCTION.— I'affct 
 
 V. Ede, L. K. 18 Eq. US. 
 
 S(M' furtlior iho fin-nis of jndfjnicnt or decree Kivoii 
 in ApiK'ndix to Kules, in a|»i>t'«dix to Fisliei- on .>rortj'ajie, 
 and in Seton on lU'crees in liis cliapter on mortpijjes. 
 
 (r) Lechmen' v. (Mniiip, 'M Hcav. 21S nSOl). 
 (f) 1.1 ("hy. D. m (1.S80). 
 
 
 
INTKltKST 
 
 6') 
 
 VI. INTEREST. 
 
 Interkst IMi'I.iki) p.v Moktgac.k Dei'.t. — Mortpi^o 
 debts. le<;al or (Minitablc. bcai- interest, thoujih not ex- 
 pressly reserved [a). Interest may. however, be excbided, 
 as by an express jiroviso for redenijition on i)aynient of a 
 specifie principal (l>), without any further i)rovision or 
 reference as to Ihe interest (r). 
 
 IxTKRiuST Acciu'KS FROM l).\v TO I)AV. — '* Interest on 
 a niortjiajjfe becomes due from day to day " ((/). Thus a 
 proviso for interest i)ayabl(' half yearly is exjtlained as 
 follows: "The interest beinji; payable half-yearly, but 
 the half year's interest not beinj; one entire thinji', but 
 accruing de die in diem and so due. thoup^h not i)ayable 
 until the end of the half vear bv arranuement between 
 the debtor and creditor (c). 
 
 Whkx Accrual of Interest Stops. — There are a 
 number of instances where the runninj;" of interest may 
 be 8topi)ed by tender (/') or otherwise: — 
 
 yk 
 
 ' I 
 
 i 
 
 {(I) See He Iverr's I'olicy, L. U. S lOii. ;{;n (ISC.O). iillowiiij; 4 per 
 • t'lit., followiiifjr Carcv v. Uoyiie, ."• Ir. Cli. li. 104. Sec also Aiidii., 4 
 Samid. S7(i: I.eiiiiiinl v. lii.'ketts, L. U. 14 Kij. 'J!>; Ex p. Ilcrtzel. :? 
 
 I>i' «;. & .1. 4(i4. Hut see Hei.l v. Wil 
 
 !» I'. ]{, ICC; Ashtoii V. 
 
 I>;iltoii, li Cull. .")(■».">, (Miutrji. I'or Hnle as t<i cliaiTt^ on iaiids see 
 Siewiirt V. N(>t)le. Vorn. & Seriv. ."(liS; Iviluiurruy v. (Jreery, '2 Salk. 
 -yAH: Bill-well v. Tarker, li Ves. :{t;4. 
 
 (h) Thoinpsoii V. Drew, l-'O Keav. 4!> (lS."»r.). 
 
 luiiitoii. MO lieav. ~t'2 (ISCd), where ileeil 
 
 ((■) See Ashwell v. St 
 
 recited a>:reeiiieiit to secure money " with interest," hut pruviso for 
 rcd'eniption was silent as to interest: interest held payable at leiial 
 r.Mte. See McDcrniott v. Kecnan, 14 O. U. ('»S7. printed words " with 
 interest " struck out in proviso. 
 
 ((/) Lord Hardwicke in Wilson v. Hnrinan, 2 Yes. (Sen.) tiTli 
 (17.".). 
 
 (r) Sir 1{. T. Kindorsley, V.C., in Re Rop'r's Trusts, »! .Tur. 
 
 N. s. i.-^n.-i (isr.o). 
 
 (f) Cf. Knnpp V. Bower, 17 Gr. G05. 
 
 H.F.M. — 5 
 
 m 
 
 1 
 
 
 1 
 
 ' ''• 1 
 
 i! 
 
it 
 
 66 
 
 F()HEL'L()^SUUE OF MOUTOAfJES. 
 
 Thus where the inorlKJiK^'*' '"'^ miuk' a (Iciiumd cnll- 
 infjj in the whoh* principal and interest, payment, or a 
 tender of i)aynient, in terms of the demand will be siilli- 
 fieut(^). 
 
 In ease of an action for foreclosure or sale, the de- 
 fendant may, before judf^ment, have I lie action dismissed 
 by payinj; into Court the amount then due for piincipal, 
 interest and costs (//). 
 
 When the wronjjful act of the mort^ajiee has caused 
 delay in the i»ayment or satisfaction of the mortj;aj:;e, in- 
 ter(>st will not be allowed duriu}; the period of delay (0- 
 
 When for any reason, such as his mislayinj; the 
 deeds, the mortjj:ajiee cannot j^ive a discharge on the day 
 ai>pointed, and thereby causes delay, he is not entitled 
 to subseipient interest (y). 
 
 W'lere interest was payable in advance, and niort- 
 f^af^ee sold before day of payment, allowed only interest 
 to completion of pnrchase (/,). Where interest was pay- 
 able in advance on 1st April and October, and niorl- 
 }Xa«jees jjroceeded witli action for sale, date of repay- 
 ment was tixed in July and interest to then allowed, but 
 not the payment in advance due on April lst(/). 
 
 Where the mort<;af;ee consented to a sale in an ad- 
 ministration suit, held that out of proceeds of sale he 
 was entitled to only six months' interest from the date 
 of his consent if paid within that time, and to interest 
 to the day of payment if paid afterwards (w). 
 
 ((/) Se(> U. S. (). ISO". ('. I'^l, s. .'U. for Ciises where rljrlit to 
 reiU't'iu (lisimted, see Sharpiicll v. liliiko. 2 K(i. ('a. Alir. ((04; Kiii- 
 iiiiinl V. Trolloiie. 42 Ch. 1). CIO (ISSO). See further, Letts v. 
 IlMtchiiis. I.. K. i;? K(i. 17U; He Alcock. 2.'? Cli. D. .-{72. 
 
 (//) See Ruh> ;?SS. Cf. Lord MhUWeton v. Elfot, 15 Sim. r.;'.l ; 
 Strachan v. Miirney, t» Gr. lilH. 
 
 (I) Thornton v. Court, 3 De (J. M. i^- C. 203. 
 
 (/) Lord Aliddh^ton v. Eliot, 15 Sim. 531 (1847); James v 
 Rnniscy. 11 Ch. D. :r»S (1870). 
 
 (A) Banner v. Berridue, 50 L. .T. Ch, G30. 
 
 (/) Trust & Loan Co. v. Kirk. 8 P. R. 20.3. Ilolmestod, ReRis- 
 trar. 
 
 (m) I>av V. Day. 31 Reav. 270 (1802); cf. Ro Moss, 31 Ch. D. 90; 
 Smith V. Smith. 1801, 3 Ch. 550. 
 
IN'I'EUEST. 
 
 97 
 
 Arcordinj; to tho En^'lish t-ascs, the Itankruptcv or 
 liciuidation of (he nioi'ljia^^or iiiny stop the accrual of 
 interest (/;), uiilcss l»,v special arraujicint'iit between tlie 
 estate and tlie niortjia^iee (/»). 
 
 InTKKKST ox .MoUTCACliE'S DiSnURSEMENTS. — WlU'IV 
 
 the nioi'Ipagee is allowed for expenditures on repairs (/i), 
 or laslin}^: improvements, or for oilier moneys expended 
 for the Itenelit of the estate, he nniy he allowed inten-st 
 on such expendihires; the usual rate, in the absence of 
 stipulation, bein};' the "current interest of the coun- 
 try "(7). The expenditures in such cases are added to 
 the mortjj:ajj;e debt, and treated as further advances 
 ciiarji'ed on the niortj;a^"ed lands (/•). 
 
 Sonu> of the exi»enditures on which interest has been 
 so allowed are: — 
 
 For works authorized by the morti^a^t; deed (s). 
 
 For the renewal cd" i)olicie8 of insurance (/). 
 
 For the renewal of leases (//). 
 
 Foi' i)aynu'nt of taxes (c). 
 
 For costs incurred in defendinjf niort^ajior's title (1/1; 
 but not for costs that, the niortj;aj;ee has taxed ajjjainst 
 tlie niortjj:af;or (.c). 
 
 (/M Set" Kx .>. Kensington, 2 M. tV- A. ;5(M>; Kx p. Liil.lpock, i) 
 •Iiir. (N. S.( sr)4; Kx \). Hiiil^cr, t Ves. Km: K\ ]k ("hit. 11 ("li. I>. 
 <!-; ICx !•. Hiitli, L'-J ("li. I), -ino (1S.S2», niorljiaKe to ImildiMK' society. 
 
 ('>) Iv\ p. I<(Misiii>;ton. siipi'M. 
 
 i/M See ciisos colloctt'il, Solon on DetToes, 4tli F.d.. lOSO. 
 
 (</) <.>iiarr.'ll v. Hocktunl. 1 Madil. iit p. I'Sl ilSKi). Hut see 
 I-'islhT. r.th I'M., s. tSto. 
 
 U-) Set- (locrcc in Wcbl. v. Korke, 2 Sell. iV T-of. CiTC (^S^n\). 
 iv| Sec Norton V. ('oopor. 'St I.. J. Cli. ILM, t-xpuniliturc on niino. 
 tt\ S('i> for life policies Itelleniy v. Hrickenilen, t K. iV- .1. tuO; 
 - .lo. iV: II. i;>7; lI(i(l;:son v. IIo(l>:son. U Keen, 704. 
 
 (»» S(>(> T.acon v. Mcrtins. 'A Atk. 4; Wolley v. Drajr. - Anst. 
 ■>o1: Manlove v. Kale, 2 Vern. S4; "» Kac. Atn-. TM. 
 
 ir) See tvndwlcs v. Cliapnian, Seton on Decrees, 4tli I'](l., at \)\). 
 1070. lOSO. 
 
 (//•) See Tiodfroy v. Watson, l\ Atk. ."IS; Wnnnnan v. Bowker, 
 S Reav. .'{('..I; l':xors. of Ferpus v. Gore. 1 Sell. iV: Lef. 107, covenant 
 to indemnify against inennihrance. 
 
 (■r) Eardley v. Kniglit, 41 Cb. D. 537 (1889). 
 
 1 
 
 1 
 
 'j 
 
 I 
 
 ^hlii 
 
 1 • 
 
es 
 
 fOUKCLO.Sl'HK OF M(>UT(;A(iE.S. 
 
 Akkeaus of Intkkkst; Jlow Many Years Ciiarge- 
 AMLE. — There is a distinction Ix'twecn tlio rjiso of a niort- 
 nafjfce scclvin^ to recover ai-reai's of interest by action (//> 
 or distress, and tlie case of a niortj^aj^ee seeldnj; to re- 
 tain the arrears out of a sui'pliis after sale (z), or to re- 
 ceive tlieni ln'foi'c sntferin}^ redemption (n), or when 
 added as a party in tlie Muster's ottice {h). In the former 
 case, section 17 of K. S. (). 1S!)7, e. 12J), appli( <; tlie latter 
 case is now jjoverned by .Ki Vict., c. 17 (K. S. (). ISOT. 
 c. 71'. s. 1 (1) //). 
 
 Stipulations for Inckkask]) Hatk. — It is a common 
 device of conveyancers to insert in the proviso for re- 
 demption, say " interest at seven per cent." and to 
 qualify this by a rider that " in ease of prompt payment 
 on the days and times aforesaid, the rate of interest will 
 be reduced to six per cent." This cart-before-the-horse 
 method is etVective, whereas if the real rate were first 
 stated, and the increased rale afterwards, the Courts 
 would relieve ajiainst the penalty (c). 
 
 Where the ju'oviso is drawn in the approved fashion, 
 the mortjiaj^or, in order to j;et the reduced rate, must 
 actually make the payments at the stipulated times. 
 Thus, a mortj;aj;'ee in possession will be allowed the 
 
 ill) Foreclosure of rejilty, see Uoiiml v. Bell, M} Keav. TJl ; 
 Sinclair v. Jackson, 17 lUav. 40."»; Sluiw v. .lolmson, 1 Dr. A: >>ni. 
 411': as to reversioiiaiy property. Smith v. Hall. \) Ch. D. 14;i; 
 Vincent v. (Joint.', I J. iV: l-at. <i!l7. Hut see .lonl'an v. Youui,', ISTS, 
 W. N. li.-.O; Wlieeler v. llowells, :i K. & T. 1!>S. 
 
 (C) Ke Marshtield. ;U Ch. D. 721 (1.S.S7), approving' Kdnnuuls 
 V. WauKh. L. U. 1 K.i. 41.S: cf. Sutton v. Sutton. 22 t'h. I), ."til: 
 Feanisidv? v. I'lint, 27 ("h. !>. ."!». For Caiunlian cases, see l^'ord v. 
 Allan, !."> (Jr. .^>(i."): Ilowern v. Hradhurn, 22 (Jr. ".Hi; Allan v. 
 McTnvish. 2 A. U. 27S: Macdonald v. :SIacdonald. 11 (>. R. 1S7: 
 McDonald v. Elliott, 12 O. U. !>S; :<Ic(;ullouKh v. Svkes, 11 V. 
 K. IVM. 
 
 (a) Se(> Edmunds v. Waugh, L. K. 1 Eq. 421; cf. Delaney v. C, 
 
 r. R. 21 o. R. 11 (isni). 
 
 (h) See Cireenway v. Bromficld. {) Ha. 201 (ISH"), distiuKuishint; 
 Harrison v. Dinpman, 2 Dr. & War. 20.'). 
 
 (r) See Walliufrford v. Alutual Society, f) Ai)p. Cas. 702 (1,SS0>: 
 Strode v. Tarker. 2 Vern. :UC>; Hollis v. Wvse. ilv. 280; cf. Re 
 Houston, 2 O. R. ,S4; Waddell v. McColl. I4" Or. 211, held not a 
 penalty: Totten v. Watson. 17 Or. 233; Brown v. Deacon. 12 Gr. 
 im-. Bennett v. Foreman, 15 Gr. 117. 
 
IN TEUKST. 
 
 60 
 
 hi^hcv rate alllu)njj;h there wjih no inteivst in arrear 
 when lie took ixhsscssioii, and whetlier he took possrssion 
 by ai*i'an}i;enient with the niortj;fa{j;oi' or otliei*wis«' ('/). 
 
 (.-OMMissioN ()\ Akkkars. — A Commission cliarfje*! 
 on unpaid instalments of interest may be allowed to pass 
 scrutiny. "In my upinion the contract to pay commis- 
 sion is a tiling' wiiolly si ](arat<' from the contract to pay 
 interest. Tlie payment is called by a separate name; 
 whether it be an accurate name or not, it is tlu' name 
 wliich the parties have adop(«'d i'or themselves. Tin; 
 ajireement is thai if tlie borrower does not pay llie inter- 
 est innutually, he will pay £1 per cent, njjon what he 
 oiijiht lo have paid \intil lie does jtay, and the case does 
 not coine within tlie juinciples of the cases in Vernon, 
 nor witliin that of Wallis v. Smith (>). It is a distinct, 
 separate, substantive contract to pay something;' in case 
 the borrower makes (h'faiilt. That is not an a^'reement 
 in the natur(? of a penalty " (/'). 
 
 Intkrkst jx Akrkaks ()!■ IxTF.RF.ST. — It is common 
 in moi'tjiajjes to insert a provision that '' interest in 
 arrear shall bear interest at the rate aforesaid." Such 
 provisions are valid i;/); as also are a<ii-eenients to pay 
 comjiound interest, entered into after the arrears are 
 due (//). 
 
 The debtor must have entered an af^reement on tlie 
 subject before the Court will allow interest to be charj^ed 
 
 ' ' 1 
 t 
 
 A 
 
 '1 
 
 1 ; 
 
 ■h; 
 
 (</) Bright V. Cninpboll, 41 Cli. D. :?S8 (188'.)); cf. Union Hank »t 
 l.nmldn V. InKnuu. 1C> Cli. 1). .":'.; ('ocldmrn v. Kuwards, 18 Ch. I). 
 t'.': Stiinh(>ii(> V. MiiiuuTs. 2 Eden, lit?; Mellcrsh v. lirowu, 4") Ch. D. 
 
 (r) 1>1 Ch. D. 24;?. 
 
 if) Kacon, X.V.. in (Jenonil Credit .-I'.id Disoonnt Co. v. GlegK. 
 •Jli Cli. I). .-.r»:{ (1883); cf. Bucknell v. Vir'kory. (t4 L. T. 701. 
 
 ill) Clarksoii v. Ilt-ndtTson. 14 Cli. 1). .'MS (ISSO). Soe Downey v. 
 I'arnell. - (>. R. 82. wlicrc' doulil(> rate oharfred on nrrciirs. For 
 iiiiistriiction liinitin;; cfl'eft of sucli a provision sec Wilson v. 
 Cnnii.hcll, 8 I'. K l,-»4. 
 
 (/I I See r.c.rd Ossulston v. Lord Yarmontb. Salk. 440: Thornhill 
 V. lOviuis, 2 Atk. ;{;}0; Mainland v. Upjohn, 41 Ch. D. 12(5; Ex p. 
 Bevan. 1) Vi«s. 22.3. 
 
 Mf, 
 
 ■ 1 iiii 
 
 ■ 1 
 
 : " i , 
 
 ■-| i ' "1 ; -t 
 f ■ 1 
 
 M',,1 1 
 
 

 
 I 
 
 70 
 
 FORECLOSURE OF MORTGAGES. 
 
 11 * 
 
 on the arrears (r). But it seems that such an agreement 
 is implied in a mortgage to a bank to secure the balance 
 of a current account (j). 
 
 Agreements made after the arrears are due have 
 always been closely scutinized by the Courts, and the 
 present practice of the Courts seems to be against com- 
 pounding interest (k). 
 
 Effect of Assignment of Mortgage on Arrears. — 
 In some of the older cases the concurrence of the mort- 
 gagor, in an assignment of the securit; , was taken as 
 sutHcient to make the interest then due into principal (/). 
 15ut the tendency- of the ('ourts is against this view [m). 
 
 Interest on Loan to Repay Prior Mortgages. — 
 A mortgagee authorized to pay otf a prior encumbrance, 
 not yet payable, cannot treat it as paid off and charge a 
 higher rate of interest on the amount to be paid, unless 
 he sets apart the amount of the encumbrance and notities 
 the mortgagor (/;)• 
 
 K.\TE Chargeable After Maturity of Loan. — It 
 was popular with conveyancers in Ontario until lately 
 (when the rates of interest fell below the legal rate of 
 six per cent.), to insert a parenthesis in the proviso for 
 
 (H See Proctor v. Cooper, Pre. Ch. IKi; Parker v. Btitcher, T^. li. 
 
 3 Imj. H\2; Daniell v. Sinclair, (> App- <'ii«. 181. A mere notice from 
 the niortniifree tiiat lie will charge interest is not, withotit the assent 
 of the mortpapor, snliicient: Thouii)sou v. Leith, 4 .lur. N. S. lO'.H 
 (1858). 
 
 (/) Crosskill v. Bower. :\2 Beav. Sfi: Xntional Bank of Austra- 
 lasia V. Hand in Hand Co., -1 A. C. '.V.)l. Alitor, where the sum 
 secured is not a current account hut a specific sum: Stewart v. 
 Stewart. 27 L. K. Ir. 351; London Bank of Australia v. White, 
 
 4 A. C. 413. 
 
 (k) See Cottrell v. Finney, L. R. !) Ch. 'A'2 (1S74), commenting on 
 Lord Chesterfield v. Lady Cromwell, 1 E(|. Ca. Abr. L'S(i. 
 
 (/) See Ashenhurst v. James. 3 Atk. 271: Mangles v. Dixon, 3 
 n. L. C. 7.37; Chambers v. Goldwin. 9 Ves. 2."')4. 
 
 im) Cottrell v. Finney. L. R. 9 Ch. .")41. See further, McCarthy 
 V. Llandaff, 1 Ba. & Be. 375, written consent of mortgagor; Brown 
 V. Barkliam, 1 P. Wins. (1.52, assent of mortgagor to account; cf. Ue 
 Errington. 1804, 1 Q. B. 11, transfer of estates of mortgagor and 
 mortgagee. 
 
 ()i) ^fanley r. The London Loan Co.. 23 A. R. 1.30; 20 S. C. R. 
 443 (ISnC)): cf. Edmonds v. Hamilton Provident and Loan Society, 
 19 O. R. 077; 18 A. R. 347. 
 
JMI 
 
 INTEREST. 
 
 71 
 
 r' 
 
 ademption, that interest at the stipulated rate should be 
 payable after as well as before maturity or default. The 
 reason for this precaution was, that (in the absence of 
 special provision), interest, after the maturity of a loan, 
 is awarded as if it were in the nature of damages for the 
 breach of the covenant to pay at the date of maturity; 
 and the Courts have followed the rule of allowing the 
 " usual commercial value of money," i. c, the legal rate 
 (o). The rate in Canada in such cases is six per cent. (/)). 
 
 Interest Duuixg the Six Months' Period. — "The 
 sum which the [chief clerk] finds due is the principal 
 with interest up to the date of the certificate to which, 
 according to the invariable practice, he adds interest for 
 six months from the date of the certificate (</), and re- 
 demption is to take place on payment of that sum with 
 costs at the expiration of the six months. The reason is 
 plain. The mortgagor has six months allowed him to 
 find the money, and the mortgagee has six months to 
 find out how to place it. It is a fixed rule of the Court, 
 and not a matter of bargain, and there is no precedent 
 for allowing the mortgagor to redeem within tlie six 
 months on i»aynient of a less sum. The practice is so 
 well settled that it is not surprising that no authority is 
 to be found on the subject " (r), 
 
 Interest, How Computed When Successive Ter- 
 lODS of Redemption. — Where there are successive mort- 
 gages and the order provides; for successi^'e periods of 
 redemption, if one puisne mortgagee makes default and 
 
 (o) lie l{(.1)t>rts. 14 Cli. I). .'2 (ISSO). Si-e Mellorsh v. Brown, 4') 
 Cli. 1). 22."); lie Horner. Fooks v. Horner (IS'.Mi). 2 Uli. 1). !!)(»; 
 Price V. (Jreat Western Hail. Co., If, M. eS: W. 244; Ex p. Kurlier, 
 17 Ch. D. ]<.»1. 
 
 (p) People's Loan & Deposit Co. v. (Irant, IS S. C U. 2r>2 (ISOOV. 
 St. .lolin V. Rvkert. 10 S. ('. It. 27S. See further. Credit Foncier v. 
 Schiiltz. i;{ C." L. T. 2C.1; Sinionton v. (Jrahnni, S P. I{. A'X>: Arcli- 
 liold V. Hnildinj: & L. Asso'n. It! A. U. 1; Powell v. Peek, IT. A. 
 It. i:{S; MeDonal.l v. Elliott. 12 O. U. '.)H. 
 
 ((/) At what rate? Same rate ns niortt,'a>,'e provides : see 
 Mlddlehury v. Stevens, 1.'? (). H. 29. 
 
 ()•) Hill V. Rowlands, 1S!)7. 2 Ch. mi, per Chitty. L..T.; semble, 
 the case woiikV stand differently if application made before decree. 
 
 M« 
 
 : 
 
 i :i 
 
 '■ir ■ 
 
 'iiii 
 
 U 
 
Iff 
 
 tp 
 
 li 
 
 72 
 
 FOUliCLOSUllli OF MOUTGAGES, 
 
 is foreclosed, in taking the account against tlie next per- 
 son entitled to redeem the interest is calculated not 
 merely on the principal and costs, but JiTso on the inter- 
 est found due from the person who failed to redeem. 
 The principle is that the sum found in the report for 
 principal, interest and costs is considered as '* one 
 accumulated consolidated sum " (s). But there is some 
 authority for stating that the rule in Ontario is not to 
 allow the compounding of interest unless the mortgage 
 provides for it (/). 
 
 Interest, How Computed When Period for Re- 
 demption Enlarged. — The Court will not, as a rule, 
 impose it as one of the terms of enlarging the period for 
 redemption that interest shall be paid on the aggregate 
 amount (u). 
 
 The tendency of the Courts is against the compound- 
 ing of the interest (v). 
 
 (8) Elton V. Cnrtois, 19 Ch. D. at p. 53 (1881), following Bick- 
 hani V. Cross. 2 Ves. Sen. 471; Harris v. Harris, ',\ Atk. 1'2'2 (after 
 report, only the legal rate of interest allowed); cf. Grattan v. 
 Donetiiil Ll. * G. lenip. Plniik. 3i;i; (Jriu/.e v. Hunter, 2 Ves. J. 
 ir>S); Bennett v. Edwards, 2 Vern. 'W2: Jacob v. Earl of Suffolk, 
 Mos. 27; I'erkyns v. Bayuton, 1 Bro. C. C. 574 (discretion as to 
 compounding interest l)etweon inortgage and bond or legacy): ^Ic- 
 Master v. llector, 8 ('. Ij. .T. 284, interest on prior incumbrance 
 paid off. 
 
 (0 See Holmested & Langton, at p. 237. 
 
 ill) Wilkinson v. (Miarlcsworth, 2 Bcav. 470 (1840), follow«!d in 
 Whitfield V. Koberts. 7 .Tur. N. S. 1208 (ISdl). See older case, 
 Bruere v. Wharton, 7 Sim. 483. 
 
 (r) See Whatton v. (.'raddock, 1 Keen. 2<>7; Brewin v. Austin, 
 2 Keen, 212 (18.'^8). nicu'tgagee asking payment in administration 
 suit; Brow!i v. Barkham, 1 P. W. (153, account admitting interest 
 signed by mortgagor. 
 
IMPUOVEMENTS. 
 
 73 
 
 VII. IMPROVEMENTS. 
 
 1 1 
 
 \ 'm 
 
 Limited Right to Charge for Improvements. — 
 ** It was said on behalf of the appellants that a mort- 
 gagee is not entitled to charge for iniprovenientw. but for 
 repairs only. That was stating the rule too strongly 
 against mortgagees, though their right to charge for im- 
 provements is no doubt subject to important restric- 
 tions " (fl). 
 
 Mustn't Improve Mortgagor Out of His Estate. — 
 ** Snch repairs as are necessary for the support of the 
 property he will be allowed for. lie will not only be 
 allowed for repairs, but he will be also allowed for doing 
 that which is essential for the protection of the title of 
 the mortgagor. Further, if he has got the c(msent of 
 the mortgagor, or has given him notice, in which he 
 accpiiesces (//), then he may be allowed for sums of 
 money which ai'e laid out in increasing the value of the 
 property; but he has no right to lay out money in what 
 he calls increasing the value of the property, which may 
 be done in such a way as to make it utterly impossible 
 for the mortgagor with his means ever to redeem; that 
 is what has been termed improving a mortgagor out of 
 his estate " (c). 
 
 (a) Mowat, V.CJ., in Carroll v. Robertson. 1", Gr. nt n 17.'> (IHdH). 
 See Tiiitdii, (.irt'i'ii, cti-., v. Tipton, Moat, etc., Co., 7 V\\. 1). 1U2; 
 Hliickfonl V. Diivis, L. K. 4 Cli. ii(»4. nioiinintf of "all just allow- 
 ances"; Schofield v. Jjockwood, It .Inr. N. S. 7.'i.S; Murphy v. Meade, 
 1 .lones, Olio. 
 
 iM ("f. Ex p. Smith. He Cuniington, :{ Mont. &: A., ti;{; 2 Dea. 
 i'M. But si'f rowoll V. Trotter, 7 .Fur. N. S. IMIC (ISC.li. 1 l>r. &: 
 Sni. ;WS, the fact of improvements not Itelnn d'one with knowledge 
 or consent of mortgagor is no rt-ason they should not lie allowed. 
 Notice to the niortuaKor is only material when the expenditure is 
 nnreasonahle, to show acquiescence: Sh»'pard v. .I(Uies, 21 Ch. D. 
 4»;!t (I882J. 
 
 (r) Sandon v. Hooper, (1 Heav. at p. 248 (1S4.'$); cf. .Tortin v. 
 South Eastern Hallway Co., 2 Sm. •& (J. 48: IS .lur. .12."); (] Do G. 
 M. & (J. L'7(»; Trimleston v. Il.imill, 1 Ba. & «. 885; Ex p. Smith, 3 
 M. & A. 03. 
 
 m 
 
 ,; -: 
 
 i, , 
 
 .1 ' 
 
 ili 
 
 -.1; 
 
 
H 
 
 74 
 
 FOllECLOSUllE OF MOllTOAGES. 
 
 
 il 
 
 More Liberal Allowance When Sale Set Aside. — 
 *' Improvements made by a defendant, under the belief 
 that he was absolute owner, are allowed far more liber- 
 ally than to a mortgagee who knew himself to be such 
 when he was spending his money (d); and Davey v. 
 Durant (e) is an express authority that improvements by 
 persons in possession, under an irregular exercise of a 
 power of sale in a mortgage, fall within this rule " (/"). 
 
 This does not apply to the case of a purcha.>Jer hav- 
 ing notice of an outstanding equity of redemption not 
 foreclosed (g). The rule as to more liberal allowance does 
 not nppb' to the case where the mortgagee improving 
 was also tenant for life (/(). 
 
 How Allowance Calculated. — " Wliere improve- 
 ments are claimed beyond those a mortgagee is ordin- 
 arily entitled to make, the rule appears to be not to 
 allow, in respect of these additional improvements, more 
 than the increase in value which has been the result of 
 the expenditure" (i). But, if the increase in value is 
 greater than the cost, the lesser amount governs (;). 
 
 ((/) Cf. Thorno v. Xewinaii, Finch, 38; Fee v. Cobinc. 11 Ir. Eq. 
 II. 4(M!, contriu't for rodooinable intiTcst; Mulhallcn v. Marnui, 3 
 Dni. & War. 317, dwd set aside for fraud; (Junimcrson v. Banting, 
 IS (Jr. r»l(! (1871). The rule does not operate in favor of a imr- 
 chaspr from a niortfiafior thinlvinj; the niortjiano was disoharKcd: 
 Roaty V. Shaw, 14 A. U. (!(M»; or in favor of a purchaser failing to 
 complete his purchase: Re Yajigic. 1 Chy. Ch. 52. 
 
 (r) 1 D. & .T. 534; cf. McLaren v. Fraser, 17 Gr. ,".07 (1870); 
 Shaw V. Tims. IJ) CJr. 4{Ki (1872), citing Parkinson v. Hanbury, L. 
 R. 2 E. & L, App. 1. 
 
 (f) ^[owat, Y.C., in Carroll v. Robertson. 15 (Jr. at p. 17<i (ISCS); 
 citinjr also Ex jiarte Hunhes, (» Yes. (il7, 025; ^IcKenzie v. York 
 Buildinj: Co.. 8 R. 1'. C. 42. See further, Bevis v. Boulton. 7 «r. 30; 
 AYilliamson v. Seaber, 3 Y. & C. Ex. 
 
 ((/) Russell V. Romanes, 3 A. R. 035. See Swan v. Swan. 8 
 Price, 518, as to impi-ovements bv part owner; commented' on 
 Leslie V. French, 23 (^h. D. 504. 
 
 (70 Sec Dixon v. Peacock. 3 Drew. 288; Xewlinp v. Abbot, Yin. 
 Abr. Account (D.A.), 8 p. 185; (Jubbins v. Treed, 2 Sch. &: Lef, 
 214; Sharshaw v. (Jibbs, Kay, 333. 
 
 ((■) Carroll v. Robertson, supra, citinp Nual v. ITill, 3 II. L. 800; 
 Smith V. Bonnisteel. 13 C.r. 35; Morley v. Matthews, 14 (Jr. 5.-.^. 
 Cf. Bevis V. Boulton. 7 C.r. 41 (1858); Henderson v. Astwood, 
 1804, A. C. 150. 
 
 (/■) Pepley v. Woods, 14 f!r. 47 (1807). See further, Blehn v. 
 Biehn, 18 Gr. 497. 
 
IMPROVEMENTS. 
 
 75 
 
 There is an exception in favor of a mortgagee who sub- 
 mits to redemption after having obtained a release of 
 the equity; he has a right to be allowed for all permanent 
 and lasting improvements, even if the estate did not 
 increase in value to the amount expended {k). 
 
 Should Improvements be Pleaded. — The English 
 practice is in favor of making the mortgagee plead his 
 improvements: "To entitle the mortgagee to an en- 
 quiry as to money laid out in lasting improvements, he 
 must state the outlay in his pleadings, and, without 
 necessarily proving the separate items, must give gen- 
 eral evidence of the expenditure (/), and that the works 
 a c prima iVcie improvements. If he proves what has 
 been laid out upon the different works, and that they are 
 lasting and proper improvements to the extent of the 
 iiionej' laid out, he will also be entitled to an account of 
 the expenditure " {m). Under our practice the Master 
 can act without any specific statement in the plead- 
 ings (mm). 
 
 How TO Object to Allo\v.\nce for Improve- 
 M i:\TS. — Where the mortgagee set up that he had made 
 improvements, it was held that the mortgagor seeking to 
 rt deem should have objected in his pleadings to the im- 
 provements as unnecessary and impropei*, otherwise he 
 was only entitled to the usual decree, with a direction 
 to allow for necessary repairs and lasting improvements 
 («). But see Rule 666. 
 
 Ti 
 
 
 V. 
 
 W 
 
 (A) Brotherton v. IletherinKton, 2.'? dr. IS" (lS7(i). 
 
 (/t Knowles v. Spenco. Mos. 2\H\: Murphy v. Meado. 1 .To. 020; 
 ptuii. (Jrecn, etc., Co., v. Tlptnii, Moat, cto.. Co.. 7 Ch. D. 102. 
 
 iiti) Fislior on Mortpiiue, .'itli Ed., 17S2, citing Saiidon v. Hooper, 
 Heav. 24(;: Shcpnnl v. .loiies, 21 Cliv. D. 4t'»lt: Iloujrhton v. 
 venoaks, etc., Co., 'Ali W. R. 341: Ilcnder.sou v. Atwood, 1S<»4, A. 
 
 l.-.O. 
 
 (WWII Sec Kiilo (JdC). 
 
 (II) Powell V. Trottor, 7 .Tur. N. S. 200 (1801); 1 Dr. & Sin. .TSS; 
 . lis to usual ilccroe. Neosnin v. Clarksou. 2 Ila. nt p. 170: 4 Ha. 
 : (^larrell v. Rickford, 14 Vcs. at p. 17!> (1S(»7). See also Mooro 
 
 Tainter, .Tur. WA: Saiidon v. Hooper, 20 Bcav. 0.3!>: Telly v 
 a then, 7 Ha. 351. 
 
 ' 1 ■ 
 
 
 
 
 
 '^1 
 
 
 ; i! 
 
 9f 
 
 ' 1 1 
 
 i 
 
 
 { ■ 
 
 
WW 
 
 76 
 
 FOllECLOSUllE OF MOI'.TGAGES. 
 
 The following r.re examples of improvements that 
 would be either disallowed wholly, or for which the 
 allowance would be reduced below the original cost. 
 
 Dwelling house built on the mortgaged premises 
 without the consent of the mortgagor {(.). But when the 
 doors and windows of a house are gone, the mortgagee 
 is justified in supplying these in order to put the estate 
 in condition for occupation (p). 
 
 The expense of unnecessarily (q) pulling down and 
 rebuilding a house (r). If the old buildings are incapable 
 of repair they will be valued as old materials only; other- 
 wise as buildings standing (s). 
 
 An expensive heating apparatus which had to be 
 abandoned as useless (/). 
 
 Erections made out of keeping with the style and 
 character of the place (u). 
 
 Improvements which depend in a measure for their 
 value oji the connection of the mortgaged estate with 
 otlur lands not included in the mortgage (r). 
 
 Wliere the mortgaged estate consisted of a grist mill, 
 and the mortgagee erected a carding and fulling mill 
 upon the premises, this was held not an improvement 
 such as the mortgagee could make without consent (w). 
 
 But the mortgagee may be allowed for improved 
 machinery in a mill, on showing that it was necessary 
 'n order to run the mill in successful competition with 
 
 (0) Harrison v. .Tniies, 10 Gr. 99 (18(53). 
 
 (I)) See Woodward v. riiillips, 14 Gray (Mass.) 132; Rowell v. 
 .Tcwott, 73 Mo. 3(tr». 
 
 ((/) ITiiiu'cossnrily: If lU'ccssary as e.g. to prevent a forfeiture 
 (Hardy v. Uevcs. 4 Ves. 4H()) allowance would he made. 
 
 (r) See Bridge v. Brown, 2 Y. & 0. C. C 181 (1843). 
 
 in) Sec Robinson v. Ridley. (5 Mad. 2. 
 
 (/) See Paul v. .Tohuson, 12 Gr. 479 (180(5). 
 
 (») II). at p. 480. 
 
 (1) Ih. at p. 480. 
 
 (Jf) Kerby v. Kerby. 5 Gr. 7iS7 (1850). 
 
IMPROVEMENTS. 
 
 77 
 
 other mills which conttain similar improved machin- 
 ery (x). 
 
 A mortgagee in possession of a mine, which is likely 
 to be much improved by a large expenditure, is hardly 
 entitled to make such expenditure, being not bound to 
 advance more than a prudent owner (//). The rule in 
 such cases seems to be that if the estate is as it stands 
 insufficient to meet the demands of the mortgage, the 
 mortgagee may open mines and cut timber, being charge- 
 able with net profits only ; but that if the estate is 
 sufficient the mortgagee opening mines will be charged 
 with gross receipts and disallowed the expenses of work- 
 ing (2). 
 
 Expensive trees and shrubs were not allowed at 
 their present value, but at the cost of bringing them to 
 tliis value, i'. e., the original price was allowed, and a rea- 
 sonable amount for care and cultivation (a). 
 
 Money paid for horse and cart and cow, to assist in 
 cultivation of land, disallowed (h). 
 
 After suit commenced no improvements will be 
 allowed other than such repairs as it would be the duty 
 of the party in possession to make in order to save the 
 property from deterioration (c). 
 
 Rule When Mortgagee Charged With Rent of 
 Improvements. — " It does appear to me unreasonable, 
 while charging a mortgagee with rents and profits re- 
 ceived by him from improvements made by himself, to 
 
 (r) Wolls V. Van Dyke, 100 Pa. St. XM). For alldwances for 
 niiiiutainiiiK church, see' Madison Av. ("hnrch v. Oliver St. Chnrch, 
 73 N. Y. 82. 
 
 (//) Rowe V. Wood, 2 .Tac. & W. .",:? (1S22). 
 
 (c) jMilh'tt V. Davev, .'U Bcav. 470 (1802). See also Hood v. 
 Easton, 2 (JilT. 092: 2 .Tur. N. S. 720. 
 
 (a) Paul V. .Fohnson, supra. 
 
 (h) See Sparhawk v. Wells, 5 Gray (Mass.) 423. 
 
 (c) Soo Hawn v. Cashion, 20 Gr. ,'IS (1873); O'Grady v. Mc- 
 Caffray, 2 O. R. 309 (1882), 
 
 i 
 
 m ' 
 
 ,i!«l 
 
 -! 
 
'W' 
 
 ff 1 
 
 78 
 
 FOKECLOSUllE OF MORTGAGES. 
 
 deny to him the cost of the improvements, at least to a 
 corresponding amount " {<!). 
 
 Second Mortgagee Cannot Improve as Against 
 First. — " A second mortgagee who enters into posses- 
 sion and does worlc by way of improvement on the mort- 
 gaged land, which may result in its protection and the 
 improvement of its value, is not entitled as against the 
 first mortgagee to any charge in respect of the money 
 so expended by him. If that were so we should have 
 in almost every case of a second mortgagee in possession 
 an inquiry whether any sum of money laid out in per- 
 manent improvements by the second mortgagee was not 
 to be deemed to be salvage " (e). 
 
 Improvemexts I5Y the Mortgagor. — Improvements 
 by the mortgagor, or owner, or lessee, of the equity enure 
 to the benefit of the mortgagee (/). 
 
 Improvements by Mechanics. — See R. S. O. 1897, 
 c. 153, ss. 7, 8 and 13. 
 
 id) ("onstable v. Guest, (i Gr. 512 (1858); of. Re Brazill, 11 Gr. 
 25.^ (ISOrt); MoCJregor v. McCJivgor. 5 O. R. G17 (1883); Muiisie v. 
 Lindsay, 10 P. K, 173 (1883). 
 
 ((') Fry, .T., in Landowners West of England and South Wales 
 liand Drainage and hu-losure Company v. Ashford, IG Ch. D. 411 
 (1880). 
 
 if) Cf. Jones on Mortgages, sees. G81, 779. 
 
IIENTS. 
 
 79 
 
 
 VIII. RENTS. 
 
 Amon<»; the more compk'X and ditticult mat tors to 
 be dealt with in the Master's ottice is the subject of 
 rents. In this eonuection IJennet says : " There are 
 .few questions more contested, where sucli an one arises 
 before the Court, as to the liability to be charged, and 
 the contest is generally transferred to the Master's 
 cilice as to the quantum of rent to be assessed " (a). 
 
 Two MODKS OF ClIAKGlNG MORTGAGEE WiTH KeNTS. 
 
 — There are two modes in which a moitgagee in posses- 
 sion may be charged with rents; one is with rents actu- 
 ally received, or which, but for wilful neglect and de- 
 fault, might have been received (/>); the other is with an 
 occupation rent (r). 
 
 Sums actually received should be kept separate in 
 Master's re])orts from those " which but for wilful neg- 
 lect,'' etc.; if for no other reason, this is to enable the 
 Court to deal better with questions that may be raised 
 as to costs (d). , ! : i 
 
 A. " BUT FOR WILFUL NEGLECT OR DEFAULT.' 
 
 Under Rule 007 the Master has power ''to take ac- 
 count of rents and profits received, or which, but for wil- 
 ful neglect or default, might have been received." l»y 
 Rule 000 this does not demand as a pre-re«]uisite any 
 
 {(t) Bennet'M Master's Office. 170. 
 
 (ft) roI<lw<>ll V. Hall, n r,r. no (lSrt2): rhni)lin V. Yonnjr. .^^ 
 I^eav. .T?0 (isri.*?), inortRaRc of a business; Purklnson v. Ilanhury, 
 2 L. R. IT. L. 1. 
 
 (r) ColdwoU V. Hall, supra. ,^ 
 
 id) Moodio V. Leslie, 12 Gr. 537 (18GG). 
 
 iU 
 
 ■,:1 
 
 ri'i^'i 
 
 •'M^Mii ; i 
 
 
 
 
 I 
 
 i' 
 
 1 
 
 \i 
 
 1 
 
 n . 
 
 
 n 
 
 
 I 1 
 
 
 i 1 
 
 
 Ij 
 
 ' A ■ 
 
 It 
 
 ni m 
 
T 
 
 11^' 
 
 80 
 
 FOllECLOSUllE OF MOHTOAOES. 
 
 M 
 
 I'; i , 
 
 Ktattment in tlie pleadings, or evideueo before judgment, 
 or dirc'tion in tlie judgment (c). 
 
 A Master's report is not <!oniplete if he merely re- 
 I'orts certain facts, and leaves it to the Court to say 
 whether there was wilful neglect or default. It is his 
 dut.v to make a finding one way or the other (/). 
 
 What Wilful Default Mkans. — "It is not merely 
 that the premises, if tenants could have been found for 
 them during all that jieriod, would have fetched the 
 rental that would have justilied chiirging it against the 
 defendants. The mortgagee in possession is not bound 
 to procure tenants at all hn/nrds or jvay tlie rent himself 
 if the premises be vacant; neither is he bound to hunt 
 up tenants, or do moie than any prudent owner of pro- 
 perty would do who had tenements to let. lie should 
 alwnys be ready to let them if a tenant offers himself, 
 and may be expected to use such ordinary means as any 
 owner of i)roperty adopts to make it known that these 
 are for lease; but he is not ex[>ected to consume his 
 time in searching out lessees. He should not be in- 
 ditt'erent, and thus kee]» the premises, as it were, out of 
 view and notice, for such conduct would render him 
 liable to a charge of negligence, and so of wilful de- 
 fault " ill). 
 
 Mortgagor's Tenant Failing to Pay. — Where the 
 tenant in possession, placed there by the mortgagor, had 
 promised to pay liis rent to the mortgagee, but had 
 failed to do so, the ('ourt held that the mortgagee was 
 
 i 
 
 ((') Soe Carpcntor v. Wood. 10 Gr. .3.')4 (ISC- 5). Cf. the EnRlish 
 practice in Kc Symons, 21 Chy. D. 7."»7 (1882); .Tob v. .Tob. Chy. 
 D. r)(J2; Mayer v. Murrav. 8 Chy. D. 424; Re Boweu, 20 Chy. D. 
 538; Barber v. Mackivll, 12 Chy. D. .")34. 
 
 (f) Wnhnsloy v. Bull, 2 Chy. Oil. .•?44. 
 
 (g) VaiilvOUKhnet. C. in ColdwoII v. Hall. Gr. 114 (1802); 
 8 T^ (;. L. .7. 9.3, citiiiK Hnphes v. Williams. 12 Ves. 493. Wraps v. 
 Denhnin, 2 Y. & C. 117. and followed by Blake, V.-C. In Morrlam 
 V. Cronk. 21 Gr. 00 (1874). Cf. KensuiRton v. Bouvorie, 7 De G. 
 M. & G. 134 (IKin); Metoalf v. Campion. 1 Moll. 238; Brandon v. 
 Brandon. 10 W. R. 287; Cocks v. Gray, 2 Jur. N. S. 1115; 1 Giff. 77 
 
RENTS. 
 
 81 
 
 never in iiossession, and could onlv be chiU'jfed in cjiMe 
 tile tenant liad actually paid him (//). 
 
 MOR'^GAOKK Ejl'XTIXO MoRTGAC.OR'S TeNAXT. — llut 
 
 where a mortgagee takes nowscHsion of the prc^niisi's and 
 evicts a tenant of the niortjiagor, who is willing to con^ 
 tlnuc in i)ossession and pay rent, the mortgagee will be 
 held a<-countabh* for rents dniing the whole perio<l of 
 his occupation (/). 
 
 MoRTGAGKK Makixg Easv Lkash TO Oaix A Smr: 
 Profit. — Where brewei-s. being mortgagees in jiosses- 
 sion of a public house, let with the tenant restricted to 
 their brew and none other, tliey were held accountable 
 foi' the additional rent that could have been got without 
 the resti'iction. but not for profit on the beer(y). 
 
 WlIERK ^foRTGAGEKS ^IaKE DEFECTIVE TrAXSFEK. — 
 
 Mortgagees who have jnit a third party into itossessi«)n 
 without just title (or under an arrangement inoperative 
 to transfer title), and in derogation of the mortgag«»r's 
 riglits, are accountable for the receipts of that third 
 party (/>•). 
 
 B. OCCUPATION RENT. 
 
 An occupation rent is charged when the mortgagee 
 is in the actual occujuition of the land, using and en- 
 joying it in the place of a tenant, and then he is charged 
 with such fair rental as a tenant might reasonably l)e 
 expected to giv<' for it, unless it can be shown that he 
 niade a larger profit (/). 
 
 Or, as defined by liennet, "an occupation rent is 
 n sum fixed by the blaster as an equivalent for liaving 
 
 (/() Waddell v. McColl, 14 (Ir. '2VA (IStW). 
 
 ((•) roiin V. I.orkwood, 1 tJr. .^»47 (IS-IO). 
 
 0') White V. (Mty of Tx)n«l()n Brmviiip Co.. .30 Oliy. D. .'^."•O (1SS.S). 
 
 (k) National Bank of Anstralasla v. I'nlted Ilnnd-ln-IIaud 
 Band of Hope Co., 4 App. Cas. 3!)1. 40!) (1S70). 
 
 (/) Coldwcll V. Hall, J) (Jr. 110 (1802), citing Trulock v. Rol.ev 
 1.") Sim. 2Cm; 2 Tliil. 395. " 
 
 H.F.M.— (i 
 
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 A 
 
 i I 
 
 f 
 
 ( 
 
 < 
 
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 ■ 
 
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 ! 
 
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w 
 
 82 
 
 FORECLOHUHE OF MORTGAtJEH. 
 
 licld, not lu'cj'SHiuily ilk-^'ally so, any Ikmihcs, IshkIh. U'ln-- 
 nicnts, etc., in rcsjU'ct of which then' >vsis no Huhslsiin^' 
 a^rt'cniont to pay a (h'tim-d rent, bnt to wliich the ('(lurt, 
 having dcciih'd that tho ociupant was not cntith'd for 
 liis own bcnctit, rcfi'i's it to the .Mastci' to as(«'rtain what 
 snni slionhl ho paid by the occupant for llu' enjoyment 
 of !«iuch premises" (///>. Hy 'Mir i»resent practice no 
 special direction of the Court Is necessary to authorize 
 the blaster to set an occiipation rent. 
 
 Occupation Kent Kixkoned to Day of Payment. 
 — The occujtation' rent should be charged, where the 
 mortgagee is still in occupation, not only up to the date 
 of the report, but up to the day appointed for pay- 
 ment [ti). 
 
 Stati'te of LiMiTAxroNS Does Not Affect Occu- 
 pation Kent. — A HMulgagee in poss<'ssion cannot set up 
 the Statute of Limitations as a bar to his being charged 
 with occupation rent (o). 
 
 Arrears of I.xterest Set Off Against Occupation 
 Kent. — " In this case the mortgagee has been in posses- 
 sion, and must be deemed to liave applied the rents, lirst, 
 in discharging interest, and then in sinking principal; 
 and the first rents received must be considered as ap- 
 ])lied to the dis<*harge of the arrears of interest due, 
 so far as the mortgagee was entitled to recover them, 
 whether for twenty years ip) or six years, according as 
 the mortgage deed did or did not contain a covenant 
 for the payment of the money " (</). "NMiile a mortgagee 
 
 (III) Bemiet's Master's OfHce, 17<>. 
 
 (II) I'ipo V. Shiifer. 1 Chy, Ch. 2.->l. Of. MoKihbon v. Williams, 
 24 A. K. 122 (1897). 
 
 («) Coldwoll V. Hall. 1) Gr. 110 (18(;2). But soe Rennet's Mas- 
 ter's OfHce. i)i>. 17(5, 177, citinj: Ueade v. Keade. .'» Ves. 740; Stack- 
 liouse V. Barnslow. 10 Ves. 4(K»: Druinniond v. Duke of St. .Vllians 
 ^ Ves. 43.3. See also Pettiward v. Tresoott, 7 Ves. .140. senib! 
 in oases of infants account commences from time infants' till 
 ai.'crued. 
 
 (p) Now ten years on any mort>;a>re made since 1894, see 56 
 Vict. c. 17 (Ont.): R. S. O. 1897. c. 72. s. 1 (1), (h). 
 
 Ui) Walton V. Bernard. 2 Or. 344 (1851), followed in Harrl- 
 snn V. .Tones, 10 Gr. 101 (1803). 
 
UENTS. 
 
 83 
 
 cannot hy actiou or distrt'SH i-ufoi'tt' his right lo more 
 thnii six y«'ars' arrcai'M of iuleivHt, yet he may be entitled 
 to more aH against a mortgagor s«M'king to redeem (/•). 
 
 Mortgagee Not CiiARGiiAnLE With Kext IJle iiv 
 Co-owxKR. — Whei-e, in a partition aetion, it was certified 
 that a certain sum was due from II., a co-owner of the 
 ]»ronerty, in respect of occuiiatioii rent, it was held tliat 
 tliis snm coidd not be set olf as against a mortgagee of 
 H.'s share, though it miglit have been against II. per- 
 sonally (.s). 
 
 Evidence as to Uccupatiox Ki.nt. — "The evidence 
 of surveyors, landholders, farmers, «'tc., in the neigh- 
 bourhood of the |>remiscH in respect of which the rent 
 is to be charged must be procured, and no bias in favour 
 of the tenant should aii[iear, as in cases where a party 
 is to be charged for the possession of that whicli he has 
 been in the habit of considering as his own, those of 
 Ills neighbours, who may be called upon for their evi- 
 dence as to its yearly value are more disposed to un- 
 derrate than increase that amount "(0- 
 
 ,iT. 
 
 
 1 
 
 m 
 
 m 
 
 C. RENTS AS ACCOUNTABLE TO SUBSEQUENT 
 INCUMBRANCERS. 
 
 Right of Subsequext Ixcumuraxcer to Occupa- 
 tion Kext. — " As betwe«'n mortgagor and mortgagee 
 there is no hard and fast rule which prevents tlie mort- 
 gagee from taking i»ossession of the premises mortgaged 
 at a fair and reasonable rent tixeil by agreement b(^- 
 tween them, ^a such a case this will ordinarily be the 
 measure of liability, because the mortgagee is tlien in 
 possession, not technically as a 'mortgagee in posses- 
 sion' by virtue of his mortgage title, but as under tlie 
 special agreement (h). Other considerations obtain, 
 
 (/•) SiH* I':<limiiHls V. Wnnjilu L. R. 1 E«i. 421 (lSt>»!), See Ilim- 
 tcr's Itoal ProiMM'ty Statutes, jip. 427. et seq. 
 
 is) Hill V. Hifkin [18t)7], 2 Ch. .".70. Heoklos v. Hicliles, W. X. 
 (1S!>2), ISS couimontt'd on. 
 
 (0 B iiiet's Master's Oflice. 17(!. 
 
 (") Citing Murray v. O'Dea. 1 B. & B. at p. 117. 
 
 ; 1} 
 
84 
 
 FORECLOSURE OF MORTfiAGES. 
 
 howovcr, whon, at t\w time of sncli an ai'i'an<i:ement, 
 llu'io is a snl)H('(|U('nt mortjjfa {?('<■ of the premises, who 
 has not assented to tlie dealing between tlie liist mort- 
 jiayee and the mortpifjjor. Tliis s>il»se(inent in(Mim- 
 hiancei" is not bonnd by the transacticui, and can claim 
 to have snch a rent «liarj;ed as would be a proper occu- 
 lta I ion rent (liarjjfeabU' aj^ainst a mortj-ajice in jtosses- 
 sion. Tlie reason for this distinction is ])lain. Tlu*^ 
 mortfiaj^or cannot make any arranj^ement for the quan- 
 tum of rent whicli would dero}i;ate from the ri}iht of the 
 subse<i,u«'nt incumbran<'er to reduce the i>rior security 
 by the ainount of a fair orcujtation reiit"(/). 
 
 Kkxts ('axxot He Ai'I'Lthd to an OttsidI': Dnrrr. — 
 >N'here a mort;j;ay(>r j^ave the mortpijjee an cn'dei* 
 in advance on the tenant, the rents to be aj»i)lied on other 
 liabilities than the mortj^aj;*', a purchaser of the eipiity 
 without notice was held entitled to have the rents so 
 advanced ajiplied in payment of th<' mortj^a^c debt iir). 
 
 Effect oi' Attorxmext <'r.ArsE. — An objection to 
 the use of ;3ttornm«'nt clauses in mortpiji:es has been 
 that these clauses mij;ht render the mort^ajiees liabhr 
 to subsecpient incumbrancers, as mortjiaji'ees in jtosses- 
 siiin, for what they had received or but for their wilful 
 default might have received (./•). liut in Stanley v. 
 Grundy (//) liac(m, V.('., said *' that he would not be 
 the first Judjje to decide that a mortgagee, whose moi-t- 
 gage deed contained an attonnnent clause was thereby 
 jdaced in the iM)sition of mortgagee in jtossession, and 
 liable to account on that footing. On the contrary, he^ 
 was of opinion that the attornment clnuse was merely 
 
 0) Koyl, <"., In Court v. Holland. 2'.> (Jr. 1!> (1.S81), dtiii^' 
 iiu'Kii V. Arrott, L. & (J. temp. Suk. 2-IC.. 
 
 (ir) (^Ihnour v. Urn'. 21 Or. 284 (1S74). (^f. West T^.iidoii Com- 
 inen-lal Hank v. Kellanto IVrniaiicnt Wtla. Soc, 2!> CA\y. D. ".r>4 
 (1SS,"»); first iiiortKa^'i'c permittiiij; iiiort;;aj:or to net Jinlniice of 
 piircliase money. 
 
 (r) As stated in Re Stockton Iron Furnace Co., 10 Thv. D. at 
 
 i). :!.-.n (1870). 
 
 (//> 22 Thy D. 47S ns,««). Of. Western District Rank v. Tur- 
 ner. 47 I.. T. N. S. 4m. 
 
RENTS. 
 
 an additional sociiiity for the inoitffafjoc as inncli for 
 tlie payment of principal as for the payment of int«M'- 
 est r^). A mortfjajfiM' Wiis not oblijjed to avail himself 
 of this elanse, and there was no jn'etence for sayinj; that 
 heeanse the mortfiajfe deed contained an attornment 
 <lanse, nnder which i>ossession had not l)een taken, tlie 
 mortjjafice was thereby fixed with all the liabilities of 
 mortj^a^'ee in i>ossession,"' 
 
 • 
 
 OccLPATiox AT A Loss. — \A'here the first mo.tfiajjees 
 had entered nnder a «'lanse in tlieir mortj;a^e and man- 
 ajjed the jtropei'ty at a loss, on beinj; held to account by 
 the second mortjiajiei*, tliey were held entitled tt- .>p 
 allowed the losses not only out of the rents but out of 
 the surplus proceeds of sale(f/|. 
 
 J! 
 
 '>im^ i 
 
 1). INTEREST ON RENTS. 
 
 Tader Rule <!(57 it is left to the Master " to take the 
 ai'connis with rests or otherwise." Prior to this rule 
 tlie Master was not at liberty to make rests unless spe- 
 eifirallv direi ted to do so bv the decree (/>). We mav 
 here jtrofilably consider the cases where account of rents 
 will be faken with rests as a};ainst mort^rajft'es. 
 
 Meaning of ''Taking the Account With Rests." 
 — lu Thompson v. Hudson (r) Lord Romilly, M.R.. j;ivcs 
 the following explanation: "The third exception is of 
 this cliaracter: it has been called lakinjx the account 
 with rests. It arises thus: The chief clerk has taken 
 tlie account in the usual way ajiainst a mortjiafice in 
 possession where no annual rests aiv directed. He has 
 set down the sums received in one column, the interest 
 <lue and the costs in a second column, and the ca|>ltal 
 delit in tile third; and at the conclusion of the account 
 he has deducted the sums received in the first column 
 
 I i\ 
 
 tz) C(. Ks p. Ilnrrlson. IS Cliy. D. t'J7 (IKSli; Kx p. I'limu-tt. 
 Hi ("hy. I>. '2'2i\ (IKSOi; Kx p. .lacksoii, 14 <'liy. !>. 72.". itssoi. 
 
 ('/) liompas V. Kiim. 'X\ <'liy. D. U7it (1.S,S»». 
 
 iM AVcl.l.er v. Hunt. 1 Mml.l. i:! (ISl.V). See als.. l{iil.. CCC. 
 
 ((•) li. U. 10 Ki\. 4J>S (ISH)). Cf. Thorney.Toft v. Cro.krtt. 2 
 
 TI. I-. C. USD (1848). 
 
 I 
 t 
 
 i 
 
 M 
 

 
 m 
 
 FORECLOSURE OB' MORTGAGES. 
 
 from tlie nj;fj»'^f?«'^te amount of the pi-incipal and the 
 interest and costs in the two other columns. The appli- 
 cant insists that, when the sums received in the first 
 column far exceeded the interest and costs due, the 
 balance should have been deducted from the principal, 
 and that it should have (which it has not) been set down 
 in part discharj^e of the pnncipal. As a {general rule 
 there can be no doubt that the chief clerk is Cv»rrect in 
 the manner in which he has taken the account." 
 
 Kests When Takex ix Accolxt for Rent. — ''The 
 ^Faster lias taken the account aj^ainst the defendants 
 with rests; this is wrouff, for I take it to b<' the settled 
 jtractice of the Court, up to this time at all eveuts, that 
 where a mortjjajfi'e enters, his money bein^ in arrear, 
 he is not liable to a«-count for the rents received by or 
 charjjeable aj^ainst him with rests, until he is paid off 
 in full " {(1). 
 
 " I have always understood it to be the settled course 
 of the Court not to direct an account with annual rests 
 a}j:ainst a mortjj;a^ee in possession, unless at the time 
 when he took possession there was no arrear of interest 
 due to him. I conceive the princii)le to be this: a mort- 
 tiaj^ee is not bound to receive payment of his debt by 
 driblets, but he has the rij?ht to do so if he thinks tit. 
 If he enters into possession when no arrear of interest 
 is due, he evidenc«'s his intent i«)n so to receive payment 
 «>f the debt, and the account, therefore, {joes with rests; 
 but if the interest is in arrear when he enters into pos- 
 session, the fact of his taking; possession affoi'ds no evi 
 dence of his intention to receive payment by driblets, 
 as he is driven to take the possession by the non-pay- 
 ment of the inteiest, and the account therefore {-oes on 
 till the whole debt has been satisfied " (r). 
 
 Rest Perhai's When No Arrears at Time of 
 Kntrv. — If, when the mort{?aj;ee entered into jtosses- 
 
 (f/> CohlwHI V. Hall. 1> (Jr. 110 (l.SC'J); S V C. L. .T. 0.^. 
 
 (r) Nelson v. H.mtli. :{ Dp<J. iV: .1. ll'.t (1S.-,S,. Hut s.-c Nafi(»iin! 
 Hnnk of Anstrnlnslii v. I'lilted lluinl-in-Iluiiil, 4 App. ('as. 4(K) 
 (1«7".M, for cxfi'ittloii. 
 
RENTS. 
 
 m 
 
 sion, there were no arrenrs of intorost, etc., then the 
 aci.'ount may be taken with rests from tlie beginning of 
 possession. Hut where there were arrears at the bejifin- 
 nin^j of jmssession, a rest will not be made at the time 
 of (lischarjiinf; the arrears {f). Arrears for which a note, 
 afterwards dishonoured, has been tiiven are reckoned as 
 still arrears (7). 
 
 But the Fact of No Aurears is Not Decisive. — 
 The mei-e fact of an arrear (^f interest beinj; or not beinji 
 due to the UKU'tpij^ec, when the nuulfia^ee takes pos- 
 session, is not decisive upon the t|uestion of rests, but 
 rej^ard must be had to all the accompanyinj; circum- 
 stances (/O- This is iKirticuIarly true of leaseholds: — 
 '• I hold it to be established, not only u[K)n principle, but 
 also by authority, that althouj^h a mortjjjajjee takes pos- 
 session (»f leasehold premises without a jienny of inter- 
 est beinj; in ai'rear, and although the first rents may 
 nuieh more than discharj'C the interest, still ther«' may 
 be circumstances which will induce this Court not to 
 take the accounts against him with annual rests, and 
 which peculiarly apply to the case of leaseholds; such 
 as, for instance, if he have a reasonable appi'ehension 
 that the property will j»o t<> ruin for want of the {ground 
 rent beiu}; paid, or that it will be forfeited by reason of 
 the insui-ance not beinp; paid, or that it will become di- 
 ljil)idat<*d by reason of thei proper repairs not beinpr 
 made *' (/). 
 
 And in general it may be laid down that wlu-rever 
 frcun the necessities of his position, it is necessary that 
 tlie mortjj;ajfee should, foi' his owu protection, take pos- 
 s'ssion, he is not charjreable with rests, and this even 
 thou;jh the mort^ajic was not in arrear (/). 
 
 (./)I>iivis V. May, lt> Ves. ."{H.". ilSl.-.i: Nelson v. Hootli. stiprii; 
 I'iiich V. Hrowii, '\ Hcav, 70 {tS40); Latter v. Dasliwood, (> t>[m. 
 4t;-_' (1S.'U). 
 
 if/i I>olisMu V. Laud, 4 Ded. & Sm. ."T.'t (1S."»IK 
 
 (/») Ilm-lork V. Siiiitli. 1 Coll. at p. 21>7 (1S44). Case wli.MV 
 nmrtyajree was liarassol hy lltiKatiitii. 
 
 (M Humiily, M.n., in I'at.li v. Wll.l, :W Rimit. 102 (IS(51). 
 
 i/> <Jor(lou V. lOaklns, H! Cr. :\W {\sm\. 
 
 ! i, 't 
 
 1 ^i 
 
 ^mI 
 
 I 
 
 I 
 
 M 
 

 «8 
 
 FOUECLOSUftE OF MORTGAGES. 
 
 Rest Whekl: Mortgage Deut Fully Kepaid. — After 
 niortffagei's have been paid iu full bv taking the rents 
 and protits, " they are, as was pointed out by the Master 
 of the Kolls in Wilson \. Metcalfe (A), persons who are, 
 in receiving the rents after their debt has been fully 
 paid, availing themselves of another man's money for 
 their own ,use and benetit, and they ought to be charged 
 with interest. In that case annual rests were directed 
 to be made from the time at which the mortgage debt 
 was fully i)aid " (/). This is, a fortiori, the case when 
 the mortgagee is not only over paid, but denies that the 
 mortgage is satisfied (ni), or resists redemption (//), or 
 sets up a title adverse to the owner of the equity (o). 
 
 Best Where Part oe Mortgaged Property Sold. 
 — Where a part of the mort<^aged property has been 
 sold, in taking an account against the mortgagee, who 
 has retained sale monevs bevond the interest and costs 
 due, a rest must be made at the time of the receipt of 
 the proceeds of sale, even though he may have en- 
 tered into i)ossession when the interest due to him was 
 in arrear. The same rule applies where two distinct 
 mortgages are held by tlu» same person who sells one 
 of the mortgsiged estates (/>). 
 
 Rest Where Arrears Capitalized. — Where a mort- 
 gagee in i)Ossessiou comes to an account with the mort- 
 gagor, by which all the arrears of interest are converted 
 into principal, leaving thereby no arrears, and he con- 
 (inues in i»ossession, the rent being more than sufficient 
 
 (k) 1 Ituss. .-.:{(). 
 
 (J,) Asliwortli V. Lonl. .'{($ (!h.v. D. ."»4."» (ISSTl. f'f. Lld.vd v. .Tones, 
 11> Sim. 4!H» (1S4L>»: guMiTcll v. Heck ford. 1 Mad. 274 (181(>). 
 (HI) Moutiioiiu'vy V. Callaiid, 14 Sim. 7!> (1S44). 
 (II) Crlppen v. <,V"ilvie. 1,1 (Jr. .">(tS (IStMH. 
 
 (o) liicnriM'nited Society v. Uichai'ds, 1 Dr. & W. at p. '.V.\4 
 (1S411; MoiitKonu'ry v. (3allaml, supra. Cf. Aitchison v. Coombs, (! 
 Gv. VA'.i. 
 
 (/)) Thomps.in v. Hudson. L. R. 10 Eq. 498 (IH70). Cf. Charles 
 V. .lones, .1.") ("liy. D. ."•44 (1.SS7). interest cliarK'ed on surplus jum- 
 i-eeds if retained iiy mortgagee. 
 
RENTS. 
 
 89 
 
 to keep down the iutorcst. the Court will direct annujil 
 
 rests (7). 
 
 MORTGAGKS WiTH MoNTHLV IXSTALMKNTS. — It is 
 
 jd'obiible that a p»od case r(nild bo luado out for takinj; 
 the account with rests aj^ainst the njortt;aj;eo in aii in- 
 stalment mortpijic wlien' the jtrincipal is iec4'ived back 
 on a sort of sinking fund jdan. In those niort};a}ies ihe 
 niortpjj;eo cannot well deny that he has ajj;reed to take 
 his ]»rincipal by driblets, and therefore is outside the 
 rule against rests. 
 
 Mode of Caixulatiox Wiierk Rests Ark Acxr- 
 Ai,LY Directed. — The sums which a mortj;aji:ee in pos- 
 session receives in respect of the mortjiajjed preuiises 
 at times intemiediate between the dates of the annual 
 rests must be applied when they <'xceed interest to the 
 reduction of the principal. h\ other W(U'ds. at the date 
 wiien the sum exceeding; the interest is received a new 
 lest is mad«', and the subsetpu'ut annual rests c<)mpute«l 
 from this date (/•). 
 
 How TO Api'eal Decision' of Master as to Rests. 
 — '' I have no doubt that tlu' Master has authority to 
 take the account with rests, under the ordinary refer 
 euce in a pro))er case; btit when he dei lines to charj-c 
 tlu- defendant in that way, if it were iuteiuled to api»eal, 
 he should have been reiiuired to reiM»rt ihe facts to en- 
 alile the Court to determine on the ju'opriety of his 
 decision. I doubt also the propriety of apjiealin^r <>u 
 such a subject. It w<)uld more propeily c(i\ue u|i on 
 further directions, if all the materials for the cousidera- 
 linn of the question were sju-ead out in tlie report " (.st. 
 
 E. COMMISSION FOR COLLECTION i)V RENTS. 
 
 Mortgagee Collectin(^. Persoxallv ('a\\»it 
 Charge Commission*. — " It has never been dcxubted that 
 
 («/) Wilson V. Clucr. :? Keav. i:'.ti ilS40). 
 
 (»•) Itiimiimtiin v. IlarwofMl. Turn. A: Uns. 477 ns2:5l. f'f. tlit^' 
 <l!iliurat(' systt'ni of tiikinj: tlic ncrouiit in Uaiiiinel v. Hoelini. 11 
 
 (k) rmndfoot, .T.. in Sirvowrinlit v. Lo.v>». 1 O. H. .^7." (1SS2>. 
 
 i/T 
 
 ) , 
 
 I ■! 
 
 
 ! 1 I 
 
 ■ ■ ■ ; 
 
 ! ^^! 
 
 -■ ■ -■: ; 
 
 . J 
 
90 
 
 FOllECLOSUllE OF MORTGAGES. 
 
 a mortgagee in possc^ssion is precluded from deriving 
 any profit by charging for his trouble, though liis ser- 
 vices may have benefited the estate; nay, although, had 
 he not rendered them, the services of another would have 
 been required, and would have cost the estate as 
 much (t). . . . This has been at other times expressed 
 by saying that the mortgagee in possession is a bailiff 
 without a salary, accountable to the mortgagor, but not 
 paid by him '• (»). He cannot even- stipulate for a com- 
 mission (r), especially if he be a mortgagee solicitor f/r). 
 For law relating to bonuses to mortgagee, see Gardner 
 V. 3Iunro (./•). 
 
 Commission to Bailiff Not Always Allowed. — 
 ** It is not a matter of course that a mortgagee can pay 
 an agent to collect the rents for him, though some of the 
 Judges in modern times have been inclined to show 
 great leniency in this respect " (//). 
 
 (/t Cf. LiinpstafTe v. Fi'iiwick. 10 Ves. 40r» (1805). 
 
 (hi L(>itli V. Irvint". 1 M. & K. nt p. 28(1 (1883), oitinj; Boni- 
 thon V. Ilockinoro. 1 ViTii. 3t(i (lC»8r»l; Godfrey v. WiUson. 3 Atk. 
 r»1S: Davis V. Demly. 3 Mad. 170; Quarrel v. liockford, 1 Mad. 
 2ti<.>. Cf. Barrett v. Hartley. I>. R. 2 Eq. 780 (18(5(5). 
 
 (I) IVeucli V. Baron. 2 Atk. 120. Cf. Clinmbpr.s v. Goldwin, 
 Ves. 271 (18(M». 
 
 ((f» Eyre v. TIukIios. 2 Chy. D. 148 (187(1). 
 (./•) 28 O. K. .37."» (ISfMl). 
 
 (//) .Tessel. M.R.. In T'nlon Bank of London v. Inftram, 10 Chy. 
 D. .'»3 (188(11. Stains v. Banks, 9 Jur. (N. S.) 1049, considered. 
 
master's repoht. 
 
 91 
 
 IX. MASTER'S REPORT. 
 
 m 
 
 'A 
 
 '■■It 
 
 Reports a\d Certificates. — A report " has been 
 (lefliied to be * a certitieate to the Court of the facts or 
 matters directed to be ascertained by him; or, how upon 
 examination tlit'.v ai)iK'ar to liim ; or of somethin;;: of 
 which it is his duty to inform the Court ' {(i), and he is 
 not warranted in reportiuj? liis opinion upon a question 
 of intention, the Court alone taking cognizance of that 
 (piestion " ih). 
 
 " In common parlance the term report is not used 
 with respect to the certiticate of any other officer of the 
 
 Court than a Master liut thougli we apply 
 
 the term report to the more lengthened productions of 
 a Master, and the term certiticate to h' shorter state- 
 ments, it is, I think, clear that all his reiwrts are certi- 
 ficates and all his certiticates are reports " (r). 
 
 Kinds of Reports and Certificates. — Bennett 
 divides reports into general, separate and special {fl). 
 
 A general report is that which comprises the con- 
 clusions the Master has come to upon all the subject 
 matters referred to him bv the decree. 
 
 A separate report is that which only embraces one 
 separate object of reference, and the conclusion the 
 Master has come to thereupon. 
 
 Sjiecial reports contain special circiimstances found 
 by the Master as a guide to the Court for some further 
 direction or decision upon those facts. 
 
 (a) Wyatt's I'rao. Uep. .377. 
 
 (/*) Bennett's Mnstor's Oflice. 17, citing Pitt v. Lord Camolford, 
 1 Ves. 8,3; .3 Bro. C. C. KiO. 
 
 (r) Chonnol v. Martin. 4 Sim. at p. 344 (183.3). 
 (rf) Master's OiTue, pp. IS. 19. 
 
 f'! 
 
 
 
 ■ i 
 
 
 ' 
 
 ■'■'■ 
 
 1 
 
 
 1 
 
 
 
 ' 
 
 
 ■ 
 
 
 . 
 
 
 
 
 
 t 
 
 
 i' 
 
 
 J 
 
 r 
 
 
 
h 
 
 92 
 
 FOUECLOSURE OF MOllTGAGES. 
 
 When Report Prepared. — As soon as the bearing 
 of any matter pendinjj; befoi-e the Master is completed, 
 he so informs the parties in attendance, and proceeds 
 with the preparation of his report or certificate (e). 
 
 Warrant to Settle Report. — Tlie Master will give 
 directions as to the service of the warrant to settle (/). 
 
 "It should be understood that no certificate, bv a 
 judicial officer of j»roceedinj!;s had before him, can jiro- 
 perly be settled where it is intended to be used as 
 evidence, unless in the presence of, or at least on notice 
 to, all the parties concerned " U/) : 
 
 Where service of a warrant cannot be made, it may 
 he dispensed with by order of a Jutlge in Chfunbers, the 
 practice bein;4 regulated by analogy to Rule 334 (h). 
 
 It is sometimes too late to raise n (piestion at the 
 settling of the report: "After the evidence on both 
 sides had been t'losed the defendant's solicitor, upon the 
 settling of the re[)()rt, for the tirst and only time raised 
 the question by objecting that no proof had been given 
 that the sums in (luestion were properly chargeable 
 against his clients." Held, that the Master was right in 
 overruling the objection (/). 
 
 The Master Should Draw His Owx Report. — 
 " It is a vicious practice for a Master or other judicial 
 officer, charged with a reference, to inform the successful 
 party that he is going to decide in his favour, and then 
 
 (>') Ifule C»S7. For applicMtlon t" lot In new ovidencc. before re- 
 IKirt siKnt'il. st'c !{«• Uitchic. Si-wory v. Uitcliii'. 2.'{ dr. d*!; after report 
 si;;ne(l, see O'lKinolnie v. Hcnihroff, ".• V. L. J. '•^^-. For ovidenoc in 
 such cases see ('arriidicc v. C'nrrlc, lit (Ir. ION; Mason v. Seney. iJ 
 (Jr. 14:5; Patterson v. Scott. 1 Gr. 582; "Watlilell v. Smyth, 3 Chy. 
 ("h. 412. 
 
 if) Itulo ()S7. 
 
 dl) He Uyaii v. Sinionton. 1^ V. K. 209 (ISSD). See further as 
 to time for service of warrant Sutlierlaml v. Itojrers, 2 Cliy. Ch. 
 I!t2. Bennett's Master's OtHce. p. 7: (Jreen v. Meastires. W. N. dSTit]) 
 T_'2: I.ee v. Siiirrock. W. X. (1S7C.) 220. 
 
 (/() See Smith v. Houston, l.l V. R. IS (1802). 
 
 (i) Ite Curry, Curry v. Curry. 17 V. 11. .^S0 (1S07K Street. .T., 
 citing' Wormsl.'y v. Sliirt. 22 Beav. ;i08; Re Lord, L. R. 2 Eq, 
 no.'l: McArthur v. Dndjreon. L. R. ir» Kq. 102; Meaohain v. Cooper, 
 Iv. B. 1<! Kq. 102; Bales v. Eley. 1 Ch. D. 473. 
 
master's report. 
 
 93 
 
 instruct him to draft tlie icitoit. Any ex parte conununi- 
 cation betwetni tlio Master and any of the litipints as to 
 his decisions is to be avoided, and wlien tlie case is ripe 
 for decision tlie blaster should give equal facilities to 
 both sides to Ivuow the result, and to be present at the 
 drawing or settling of the report. The Master should, 
 himself, draft the report, for which he is allowed proper 
 fees (y). 
 
 Report to he Filed. — A report should be filed be- 
 fore it is acted on (/.). or appealed from (/). It sliould be 
 filed in cases of foreclosure, at any rate before the day 
 fixed for jiaymentim). A dujtlicate may be filed in lieu 
 of the original (ii). 
 
 Some Things Which Report Should Contain. — 
 A Master's report should contain: 
 
 A statement of the names of all persons who have 
 been made jiartit^s in the ^Master's ottice, and who have 
 been served with notice or ajtiwintment (o). 
 
 The names of the parties who have made default (/y). 
 
 A statement of the priorities of the parties attend- 
 ing (7). Where the ownei'ship of an incumbrance is dis- 
 jjuted the Master may use his discretion whether he will 
 dispose of the disjtute himself or reiM)rt the incumbrance, 
 its i)riority as regards other incumbrances, and tlie dis- 
 pute between the claimants, so that the Court may give 
 proper directions lor determining tlie (iuesti(m (/•). 
 
 I 111 
 
 (h Knarr v. Brisker. K*. r. R. 'M'.i (WM). In this ciiso a lo.iil 
 Master, followiiifj; the iinicticc tlmt had iin-vaili'il in his office, re- 
 quested the solicitor to draw up tin' report and sijrned same. 
 
 (AM Set- Ktdes (iStl. (HIS, C.<t4. .IfUctt v. An«lers(.n, S V. It. :iS7. 
 
 (/) See Hayes v. Hayes, S I'. U. .")4(); cf. Iian>;try v. Dunioniin, 
 
 10 r. i{. 444.' 
 
 (»i) MiUs V. Dixon. 2 Cliy. Cli. .">o: if. -Mountain v. I'ortcr, 1 
 Chy. Ch. 207, eontirniation. 
 
 ill) Knle <5!»4. See Cai.sse v. Burnhnin, »', V. It. 201. 
 
 ('>) linles 7.')2, 740, 748. 
 
 (/*) Rules 7.'2, 749. 
 
 (<l) Rules 7.')2, im. 
 
 {}■) McDonald v. Wright, 12 Gr. 552 (18GG). 
 
 ii !»* 
 
? 
 
 94 
 
 FOULCLOSrUE OF MOUTOAOES. 
 
 The iiiuoimts of the tlaiins of llie pai'ties utteud- 
 i«K <•'<)• TIk* pi-iiiciital and interest and costs are to be 
 setth'd and taxed (/) by the Master [a). 
 
 A statement of any matters that may atteet the de 
 <ision of the (.'onrt on the (jnestion of costs (r). 
 
 The tinn's and phices fixed for payment l)y parties 
 seelviiifi' to redeem («•). 
 
 A certificate that the parties attendinj*' are tlie only 
 incumbrancers (.c). 
 
 So.MK TiiiNc.s AViiicii Master Should Not Do. — 
 Jt is not conji»etent to a Master to abstain from deciding; 
 any (piestion pr(>|M'rly comin}; before liim I'oi* liis de<i.sion, 
 and instead of decidinj; it, to snlmiit it It) the judj;nK'iit 
 of tlie Court (//). A Master is not functus otlicio until 
 he has reported on all the matters referred (:). 
 
 A Master is not recpiired to report upon matters 
 that have not been referred to liini (a). 
 
 A Master should not assume the functions of a 
 Court in deciding;: ujion the validity of documents (/^). 
 
 '' Alter the closing;' of a report the Master should not 
 certify as to any matter before him in the course of the 
 intjuiry ui)on whidi he has reitorted, unless called upon 
 to do so by tlu' Court. While tlie matter is still before 
 him he may, at the reijuest of any party, report specially 
 as to any matters which he may deem proper for the 
 infornuition of the Court; and all parties interested are 
 
 • (si Ituk" T.'Ii. 
 
 (0 But see Hules IKi". lUiS. 11(50. 
 (h) UuU's 750, 750. 
 
 (r) See Ljivin v. O'Neill. 13 Gr. 179 U807), question of priorities 
 not set forth. 
 
 (ih Rules 7.50. 7.5*5. 
 
 (./•) Uules 7.5:i. 749. 
 
 (//) Wiiliiisley V. Bull, 2 Chy. Cli. .'544. 
 
 (:) Rjie V. Oeddes. .'? Chy. Cli. 4(^8 (l.S71>. 
 
 (a) See Donll v. McIIreitli. 14 S. C. R. 739 (18S7); (Monster v 
 McLean, 10 (!r. .57(5 (lS(54t. 
 
 (/*t Re ^Innsie. 10 P. R. 105 (1884). IIo.lKins. M. O.: Bickfonl r. 
 Cfrand .lunction R. W. Co.. 1 S. C. R. 720; MeDonp.all v. Lindsay 
 Taper Mill Co., 10 P. R. 247 (1884), validity of mortgage. 
 
MASTERS IlEPOHT. 
 
 95 
 
 then before him to pii'st-nl their views, both as to llie 
 substaiHe ami form of tlie spcrial matter rejiuitcd. 
 After repoit, a ceitiHeate, iiiilesM called for bj* tlie Uouri, 
 is iirej^iilar and improjier " (r). 
 
 Kejjorts must not be prolix. Masters iimsl stu<lv 
 brevity in their reports)^/). To this end aceonnts. atli- 
 davits, t'tc., are not to be recited but referr<'d to hy dale, 
 etc. (('); and money paid or i)ayabl«' into or out of Court 
 is to be set fortli in tij^ures in a sclu'dule i/). "A Mas- 
 ter's rej>ort, like a decree in equity, or the entry of a 
 Judjiiuient at law, sliould, j;enerally speakin;;. l»e <*on- 
 lined to results, unless the Master is direcu d l>y tlu* 
 decree to state his reasons, and then he should do so 
 brietly •• (y). 
 
 A report should not be ante-dated (!i). 
 
 ((•) Siu-iiKf-o. ('., In Roselmtch v. Tarry. '27 <lr. 1!>!» (tSSO). 
 
 ((/I McCiirpir v. .Mrlviimoii, 17 (Jr. .'il'.j (1S70). 
 
 U') l{ul«' <kS!»; if. Sovereign v. Snvfri-ijrii. !."» (!r. ."ijt (ISC.Jij. 
 
 if) Itnlo (!!I0. 
 
 ('/) McCiUKar v. .McKiiinun, l.'> t!r. 1570 (tSf.S). Cf. Stmnj:. .1., in 
 Knolh V. Itiittt'. '-'1 S. (.'. It., at p. <!4:i (LSJUii; Mill.T v. filling. U 
 (i. H. I). 7.'{<!. But see (Jdrliani v (Jorliaiu. 17 <Jr. ;!vS('>, reasons tor 
 apiiointnient of solicitor to represent class. 
 
 (/i) (Jnnn v. Doble, 15 (Jr. (RIO (18tK>K Waildell v. MeCoU. 14 (Tr. 
 211 (1808). 
 
 :l 
 
 i 
 
 i 11 
 
 ![, , 
 
 ijii 
 
 & ■ 
 
TIW/IW ^ 
 
 M 
 
 FOllECLOsrUK OF M()UTOA(iKS. 
 
 I I 
 
 X. AMENDMENTS AND APPEALS. 
 
 i! 
 
 .1— AIM'KALS FROM .JUIKJMENTS, Kl'LIX(J.S ANJ) 
 
 UK POUTS. 
 
 AlMM'AI, FROM I'R.KCIl'E J UUGMENT FOR FoRIXLoSL'RK. 
 
 — Tlu' pi'0(«'(liin' in these iijutcjils is that hiid doun in 
 Knifs 7<>7, 7(»S('/). Jt was hehl tiiat to aiipcai Ironi or 
 vary a (Iccicc for foirclosuic (obtained on pra'ciin') att«'r 
 liie time for appeal liad expii-ed, h'ave to appear niiisl 
 tirst he obtained, altlionj^ii tlie party scMdvinj: to vary 
 tlie decree had been added in th*' Master's otlice nnder 
 the decree {h}. 
 
 Api'Kal from Ordfr or Hl'lint. of Mastf^r. — The 
 ]n'ocednre in appeals fr(»ni ollicers in ('hanibers is laid 
 d()wn in Kules 7<i7. 7<!S (ri. It imsbeen held in such cases 
 that the (hite of the rnlin}j;,an(l not of the ••ertilicate of 
 lulinj;, is what governs (^/). The ajtpeal is to a .hid};e in 
 Cliambers (r). I'arties sluMihl raise V(»rbally before the 
 [Master the points on which appeal is to be taken (/'). 
 
 Ai'i'KAi.s FROM Mastkr's Kei'ort. — N«>tice of an ap- 
 jieal from the report oi- certificate of a Mastei- must be 
 ^iveii within fonrteen days from the dat*' of service of 
 notice of tilin}; the^ report or certificate (//). 
 
 (II) Se." Huh' 5il() (1). 
 
 (h) Roe V. Stiiiifdii. I.'i (Jr. 1S7 (ISf.S). Tlie time for npiu'iil fur 
 ji imrly ■•iddt'd in tlif M;ist«'r's ottlcc is 14 dnys, soo Tlnlc r>(»l. 747. 
 See further Nciles v. Viiudyiic, 17 <}r. 14 (1870); Kiiue v. Klino' 
 :{ (Jhy, Ch. 7!> (1S7(»). 
 
 {(■) Vf. Mitchell V. Mitchell. '2'2 <!r. 2:?. 
 
 («/l Miuleiiiiiin V. (Jriiy, 12 I*. 1{. 4;{1 (l.HSS). C,(. Rule 7*17 iVi). 
 
 U) See Rule 7<i7 (1 1. Cf. Mnrkle v. ICoss, i;{ V. R. i:r> nsstO; 
 Re Fleniiuj: 11 1". R. 272. 
 
 (/) Rule llSS. Cf. liriKhani v. Suiith. IS Or. 224; fiuiieron v. 
 Lynes. 1 <'liy. Cli. 42; Ross v. IVrrault. 1.'? (Miy. 20(1. points not 
 raised on lirst iipiieiil. These points do not need to lie raised in 
 writiuu. Rule (5J)2. 
 
 tf/» Rule 7«'>!>. For ohs«>n of niotitin too Into, soo Oilos v. Mor- 
 row. 4 (). R. ('.40. vacntion; Sievewrijrlit v. Leys, V. R. 2(K». viica- 
 tion; Snowdon v. Huntingdon, 12 P. R. 1, vacntion; Ro (Jaliourio, liJ 
 r. R. 2r)2, leave to nppeal. 
 
AMKNDMKMS AND AI'l'KAI-S. 
 
 !»: 
 
 KKonsiTKS or Noiiti:. — The iiollcc should In ii 
 m'vcii clcjii* <liivs" not ire, and slumhl set out thr jiiouiuh 
 of appeal (//). 
 
 WuKN XoTUK Kr.TiKNAiii.i:. — A ncMicc of appeal 
 from a report or <ertitirate oi of the Master in Ordinarv 
 is to lie returnalile at the first sittiiijjs «>f the Divisional 
 Court I/I, for vrhich due noti<(' can be jiiven after the 
 expiration of the fourteen davs from notice of lilinj; (/li; 
 lh(> appeal in sueh cases shall (unless otherwise ordered! 
 he set down two clear da\s liefoi-c the iirst day of the 
 sillinys (/). 
 
 In other cases the appeal is (unless otheiwisi' 
 or<lered) t(> lie returnalile within one month fi'oin service 
 of notice of tiling- (///). and is to lie set down(/»i hefni-e a 
 .lud«;e ill <*ourt at latest the day hef«ire the motion is 
 leturnalile |H|. An appeal lies from a dud^e in Court 
 as from his jud;;nieiits in other cases (/»i. 
 
 What Mi'st }\\: Siinwx ox Ari'i.uAriox i-ok fiKwi" 
 lo Ai'i'i.Ai.. — On an ajiplitation for leiive t»» appeal it is 
 iM'ccssarv onlv to show : 1. That the delav is ex- 
 
 cusa 
 
 lile (7). 
 
 nicr niiilrr liis jiirisiiirtidii in Cliiuu- 
 
 iln Itiili's 77(1. 771. ('{. Ila.vcs v. II.m.vcs. S 1". 11. .'I(i, tlu' report 
 must first lie tiled. . 
 
 (/I .\iit rrniu liis ilecisimi nr n 
 tiers. See Rule 7U7. 
 
 I /I I''i)r law jtrlor tu (in Vict. c. 14 (Oiit.l s. ,s.s. jmil .")S \"ui. e. \'.\ 
 (Out. I s. 11. sfc Clarke v. .lauiie.sou, l> (". L. T. 1»7 ilSSiii. 
 
 lAi Kule 77(1 (It: (•>(• \"i<i. e. It Kiiit.i s. .SS. 
 
 l/l It'lle 77(1 CJl. 
 
 Uin Ilr.le 771 (ll. t'f. 'l"n\\ nsliip (if ( 'nlclicster Smitli v. N'alail, 
 •J4 S. ('. I{. CiL'-J; I're.lK.rn v. Viiu.iuseu, 1.". 1". H. L'Ct. 
 
 (»i I'"iir case where apjieal set liuwn mi tiehalf of oul.v uiu> ili'feii- 
 
 tlaut. 
 
 ce iiCWis 
 
 V. 'I'jiili.it St. (Jravel Koail <"..., Id V. U. 1.'; whorr 
 
 set ilowu on (lies lion, see MeCaw v. ronton, 11 l'. K. 3-S. 
 
 ill) UnU' 771 CJl. 
 
 (/»> Rule 7712. 
 
 ('/) ("r. Howe V. Wert, l.'l C T-. .T. (X. S.I 32<3; Dudley v. Borozy 
 .". Chy. Cli. SI; I'iukle V. Dale. 7 V. R. SVi. 
 
 U.K. M.— 7 
 
 iill 
 
 ii I't 
 
98 
 
 FOUECLOSUUE OF MOUTGAGES. 
 
 4- 
 
 2. That there are reasonable prima facie grounds of 
 appeal (r). 
 
 >s'otice mnst be given of the motion (s). 
 
 Persons Entitled to Appeal from Master. — To 
 appeal one must be an interested party; parties having 
 relates (/), or who have chosen to comply witli the re- 
 port (»). cannot appeal from it. So if a report deals with 
 matters of no practical importance to a party (c). or with 
 insigniticant amounts {w), an appeal will not be enter- 
 tained. 
 
 Result of Appeal. — V»'here an ai»peal is allowed 
 the Court may either make the correction in the report 
 by referring to it. in the order (.c). or refer back to tho 
 blaster, in which latter case the blaster cannot entertain 
 new claims (//), but may receive new evidence, unless 
 r(?stricted by the order (z). The order states the grounds 
 of appeal (a). 
 
 Matters Not Appealed from, — There should be no 
 alteration in the amount found due by the Master, when 
 such amount has not been appealed against (b). 
 
 When Court Will Review Evidence Taken Re- 
 fore the Master. — Where the Master has had the wit- 
 nesses before him, the general rule is not to interfere 
 with his decision as to the weight of testimony and 
 
 ()•) Niisli V. (Jlover, <! V. U. 12C.7. Hulnisted, R., cf. Thompson v 
 
 WalluT, 1 Cliy. Ch. lidC; McQiU'cn v McQuoon. 2 ("liy. (Mi. 417: 
 
 Dickson V. Avery. ;{ Cliy. Cli. 2'2'2; De Bhiqiiiore v. Armstrong, I) 
 
 C. L. .1. (N. S.I 3C..'?. 
 
 (s) Sep Ciido V. Npwliall, 1 Chy. Cli. L'OO. 
 
 (t) Thompson v. Luke, 10 Gr. 281 (ISCS). 
 
 (h) MitfhcU V. Mitchell, 22 Gr. 24 (187.')). 
 
 (I) McCarncr v. McKinnon, 17 Gr. .^)2,"> (1870). 
 
 I If) McQueen V. McQueen, 2 Chy. Ch. .344. 
 
 (.!■) Teeter v. St. John. 10 Gr. 85: see Fox v. BearMook. 17 Ch. 
 
 D. 420. as to nltering report itself; cf. Crooks v. Ktreet. 1 Chy. Ch. 
 78. as to error on face of rciiort, appeal unnocess.nry. 
 
 (//) See Romanes v. Hemes, 10 <!r. .5.'')3. 
 
 <i) Morley v. Mathews. 12 Gr. 4r..']; Williams v. Ilaim, 10 (Jr. 
 51)3. reference hack on single point. 
 
 Ut) See Downey v. Ronf, G V. R. SO. 
 
 (b) Gordon v. Gordon, 12 O. R. 503 (188C,). 
 
AMENDMENTS AND APPEALS. 
 
 99 
 
 ci'cdibilit.v of witnesses (V). unless the balance of direct 
 testimony and the circumstances point stronfjly to a 
 different conclusion (d). Where the Master has not seen 
 the witnesses the Court has as much opportunity of 
 judpufi; the evidc'uce as the Master (/•). 
 
 7i.— AMENDING JUD(!MENTS AND OTHER 
 PROCEEDINGS. 
 
 Clerical Errors. — Clei'i«al mistakes in jud;iinents 
 or orders, or errors arising 1 herein from any accidental 
 slip or omission, may at any time be corrected by the 
 Court or a .lud^c on motion (/'). 
 
 Where a cons<'nt judjiuicnt f()r foreclosure contained 
 terms that were not consented to, it was amended (//). 
 
 Amexdmf.nt WiiKKi-: tiiI', Wroxc; Rklikf (iivkn uy 
 Order. — Where an order for sale has been taken ()nt ex 
 parte by mistake in lieu of an order for foreclosure, the 
 Court will vacate the order foi" sale an<l j^rant an order 
 for foreclosure ex parte (//). 
 
 Amendment, Where Relief (1 ranted Til\t Mort- 
 (,\r,EF, Not Entitlicd to. — Where, on a bill jti-ayin^ fore- 
 closure only, a decree for sale was drawn up, with Ji 
 direction that the mortfiajjor should jiay any deficiency. 
 th(^ Court, at the instance of the mortjiiiffor, four years 
 afterwards amended the deci-ee by sti'ikin<; out this 
 direction, but ordered liim to pay the costs of the pro- ^ 
 ceedinjjs under the <lecreeo'). 
 
 (rt Sw rol.lwcll V. Iliill. !t Or. ll.">: Wnd.l.'ll v. Sin.vth. .S Ch. 
 Cli. 412: McArflmr v. rrittir. 2!) P.r. .'00; Day v. Browii. IS tJr. 
 
 <;sL 
 
 ((/) rimrd V. Myers. 1!> Gr. 3C(0 (ISTlM; Morrison v. Rnltiiison. 
 1!> (Jr. 4S() (lS72i: Armstn.nK v. Ciifrc li.". (Jr. 1; .'f. St. .lolin v. 
 Hykcrt. 4 App. K. 213. 
 
 (() Fiiwcctt V. Bnrwcll. 27 (Jr. 44.' dSScn. 
 
 ff) Hnlc t;4o. S.M- Kckcrsl.-y v. Kckcrslfy. W. N.. 1SS4. V.V.]. error 
 in order iirisiiiy from iui error in the <'liiet' derlv's eerliticiite. See 
 Skeiid V. Ilolliuid. !( ('. r.. T. ."i>. ninterin! .Mllerat ion. 
 
 <,'/) On petition, ^rereh.-ints T^ank v. (Irant. :\ Cliy. (Mi. C.4 (ISTMi. 
 See .\ttorney (Joneral v. Tondine, 7 CIi. D. 3SS; Davis v. Dnvis, 1.T 
 Cli. D. 801. 
 
 ill) Mprtillivrny v. Tanieron. 1 Cliy. Cli. 107. Vankonchnot. 
 
 (/> Cockenoni- v. llnllock, 12 (Jr. LIS (1SC,.-|. rrol)alily under Tlnlf 
 37S tlu niortpigee would In held entitled to the order for doficioncy. 
 See cases under that rule. 
 
 s 
 
 lilii- 
 
 t I 
 
 I (:m: 
 
■■■I 
 
 100 
 
 FOHECI.O.SUUE f)F MORTGAOES. 
 
 Amendment Where Judgment Omits Reference, 
 — Where the pliiintiff took the usual foreelosure ju«l;i- 
 irient, and liad his airount taken without a reference, 
 the Court alh»\ve<l tlie judgment to he amended, treating 
 all proceed in j;s under it (including; linal order) as a 
 nullity, and referrinj; to the Master in Ordinary (/). 
 
 Ami.xdmkxt of MtSDESCRii'TioN OF Land. — It may 
 be necessary to set aside the judjjment in order to correct 
 an error in describinjj: the morljiaj;ed land. Tiius, in 
 one case, after decree and report, the Court refused to 
 amend tlie mistake in the description of the property in 
 the l)ill 1^). 
 
 Such an application foi- leave to amend after judy;- 
 ment, if j^ranled at all. will not be jxranted ex j>arte (f)- 
 
 NN'iiKRK I'artifs Omi'iiicd. — In s(Mue cases where 
 necessary iiarties are (unitted. thev may be acbled under 
 
 Hule l!»(l(;//i. ^^'heI•e that rule is inapplicable the judii- 
 nient nuiy be set aside. 
 
 PURCIIASKl-iS O.MrrTKD oF VaRT oF KoiMTV. — After 
 
 decree pronounced in a suit of foreclosure, the plaintitl" 
 discovered that a j»ortion of the mortj;aged premises lunl 
 been sold by the niortjiaj;ni' before bill tiled. Held, in 
 
 accordance with decisions bv Ksten. \'.-( 
 
 l)er 
 
 Hlak 
 
 <-'., that the juirchasers of such poriicuis mijjht be brouj;hl 
 before the Cou't by amendment, and that the proper 
 mode of procei'din;-' was l)y petition, allhou^ih but for 
 those decisions he would have Ihoujjht a motion for that 
 purpose the juoper proceedinfj; (»)• 
 
 JrixiMFNT t'uKnnoRs Omfitfi). — A summary refer- 
 ence foi' forecl()sui'e had been made, and (ui pi'oceedin;.! 
 in the Master's othce. it was discovered that thei-e were 
 sevei-al I'e^'istered jud>,nm'nts a^'ainst defendants. On 
 
 0» Wiltfi-.'SM V. ('iM\vf..nl. IL' I'. It. C.^.S dSSS). 
 (A-l Linvrns.m v. Hn.klcy. l.'i {iv. TtSTi dSliiO. 
 (/I Kiuik of Montrfiil v. Tower. 2 Cliy. (Mi. 47. 
 inn iii'v ciiscs cited lliel'eniider. 
 HI) Kiiiiilile V. Moore, 1 Cliv. (Ml. .V.t. 
 
AMEXDMENTS AND APPEALS. 
 
 101 
 
 iho plaintiff's motion the decroo was amended bv insort- 
 in^ a direction to the Master to inquire and report upon 
 tlu' priorities, <'te., of ihe jud^jment creditors, on pay- 
 ment of costs, and with a reservation of furtlier direc- 
 tions (o). 
 
 Amf.xdmexts in- tiie Master's Office.— See Hughes 
 V. Rees (p). 
 
 See further, cases cited under Rule 100. 
 
 Limit to Amexdmexts.— The Court will not allow 
 such an amendment as will create an entirely <lifferent 
 iccord (7). 
 
 It is a jjeneral rule that amendments will not l)e 
 allowed after linal judj;nient (»). 
 
 SETTiXd Aside Ji'dcmext to Amexd Proceedixc.s. 
 — W liere jud};ment for foreclosure has been (d)tained it 
 sometimes hapncns that the mortgagee discovers tl:e 
 omission of some person who should have been a party 
 io tli<? action, and who cannot be properly added in the 
 Master's otVn'e. In such cases it has be«»n found the 
 more convenient juactice to allow the judgment to be 
 set aside and the proceedings amended. Tluu;, in Lally 
 v. Longhurst (.s). Street, .1., said: "Following the course 
 adopted in (ilass v. Freckleton (/). I allow the plaintltV, 
 if he desires to do so, to take out an ordei* setting aside 
 liis judgment and adding C. as a party to the action, and 
 he mav then make all such ann-ndments in his procc'ed- 
 ings as 1m' may be a«lvise«l, etc." 
 
 (oi Mofl'iitt V. Miinli. 3 <Jr. \*'>'\ ilS.'iii, rcfcrrtMl to in Ci>lo v. 
 Hall. 1.", P. K., at WA (ISS'.h. 
 
 i/»i ."> (>. U. »i.''»4; in 1». It. .•^01: O. K. IttS dSS.-). 
 
 (71 Sec Hiirrcll v. t^rossthwiiilc. !) 'ir. 41.'"J. 
 
 (n See Atli)nn'.v-({cii«Tiil v. Corimiiition of lUriiiiii>;hiiiii. ir» Cli. 
 !►. 4-J." ilSSdi; (Jwatkiii v. l>o\vliti>:. W. N. (ISSTi. :ii»S; l.nt soc 
 • Jiitlitlis V. I.oiulon iS: St. Kiitliiuiiits D.kU ('.... i:'. i}. H. 1>. li'M ; 
 Til.- I>iik.> ..f Hii((lon>:li. iSMi:. I'm. >'ol : Tlio Itiitator. l.stn:. P. tU. 
 
 (.VI V2 P. 1{. ."10 (1S.S,^). 
 
 (M m «;r. 470 (lS(;4i, Vankomu'luiot, C. 
 
 !^ 
 
 .;i 
 
 ■I' 
 
i 
 
 102 
 
 F-OHECUjSL'HE of MOItTOAGES. 
 
 XI. PERIOD FOR REDEMPTION. 
 
 Former Klle ; Plisne Inxumbrancers to He 
 Foreclosed Before Mortgagor. — The Court fornu'ily 
 would not make an order foreolosinp; absolutely and at 
 once puisne intunibranoers and u niortp»j?or (a). It was 
 held that in workinj; out a decree for successive fore 
 closurt' an order absolute to foreclose the person havinj;; 
 the lirst rij^ht to redeem must be obtained before the 
 account could be taken of subsequent interest, and costs, 
 and a time appointed for redemption by the person ne.\t 
 entitled to redeem {b). 
 
 Modern Rule: Six Months Allowed All De- 
 fendants. — "The established rule is that a mortjjjagor 
 has six months, and six months only, to redeem, and un- 
 ♦loubtedly, to my mind, it is an anomaly to say that a 
 mortj^u>,ftjr, Ity uuy dealinjis wiih the equity of redemp- 
 tion subseijuent to the Hrst mortjiaj^e. should be able to 
 j^ain for himself a rijj[ht to a further time to redeem. In 
 a complicated case, where the mortjjagor has so encuni- 
 bi'i'ed the e(|uity of I'edemption as to j;ive rise to ques- 
 tions of priority it is ilear, and I tak«' it to be settled 
 after the decision in Hartlett v. .Ueesirt by Sir .John 
 Komilly, which has often been follo\v«'d 01), that only 
 one lime is allowed for redemption, and that is not merely 
 as refiards iill the persons claiming to be incumbrancers, 
 or shown to be incumbrancers on the eipiity of redemp- 
 tion, incumbrancers therefoic of the mortgagor; but the 
 
 (fl) Whitl.mul V. Lynll, 8 Do G. M i\: (J. 3S3 (1S."U); 3 Sm. & G. 
 314. 
 
 (b) lb. S. C. 2 .Tnr. N. S. 071 (tS.'ir.). 
 
 (c) L. R. 12 Kq. 395. 
 
 ((/) Soo (}(>ii.>i-nl f'r<Mlit nn.l Discount Co. v. (Hogg, 22 C.h. l). TtlU 
 (]8S;{>; Smith v. OUUug. 2." Cli. D. 4(12 (1SS4). following Bnrtlctt v. 
 R<M's, supi-ii, ami nut follow inj: .^^wcct v. Comhlfy. 2'> Ch. D. 403 (n); 
 MiUunl Lif«_> AHHurnm-t' Socioty v, Lingley, 2t5 ("li. D. 080. 
 
m^ 
 
 
 PEHIOI) FOU REDEMPTION. 
 
 103 
 
 luoi'tgaROP himself has no further time allowed him to 
 redeem, and there is only one time allowed as against 
 all the defendants " ( -). 
 
 Exception ; Successivf. Periods Where Puisne 
 Mortgagees ITavr Proved (Claims. — " If, however, the 
 defendants in a foreclosure action have put in a defence 
 or appeared at the bar. and have proved their incum 
 brances, and there is no question of priority between 
 them, it does appear tliat the course of the ('ourt has 
 been to make a judgment allowing successive periods 
 for redemption, which, when examined in principle, will 
 be found to be a judgment not only in favour of the 
 plaintilT, but a judgment as between tlie co-defendants. 
 In order, to my mind, for the Court jtroperly to malce 
 such a judgment as tluit, the defendants must appear 
 and either prove or hav«' sutlicient admission of tlieir 
 incumbrances in order to entitle the defendants asking 
 tor it to such a judgment as between the co-defendants. 
 In my opinion the nu)rtgag(U' is not entitled to ask at 
 all for such a judgment. It is the right of tlie puisne 
 niorigagees " (/). 
 
 In Tarroll v. Hopkins (V/) it was thought the better 
 practice to give judgment creditors successive days of 
 redemjition acccordiiig <o their priorities, but of neces- 
 sity as short a time would be given to each as would be 
 compatible with the ends of justice, in ordei' that net 
 unnecessiirv delavs might be thrown in tiu' wav of a 
 plaintitf bringing his suit t<> a tinal conclusion. Sin< e 
 the Creditors' Helief Act tlie praclici' of giving execi.- 
 ti(m creditors liluMty to redeem according to their 
 luiorities does not seem applicable (/;). 
 
 m 
 
 ■;1 
 
 i 
 
 i»i riiitty. .T., in riiitt V. M.ihI.1. 127 Cliy. ]). •_M^' (1SS4i. Set 
 fiirtluT, I>ol)l(' V. Maiilc.v. 2S Ch. I). (HM ilss."»i. one poriod vluTe 
 imiu' of lU'fciMlanls iippt'nr on motion lor jmlKnit-nt. 
 
 (r» (Miitty. J., in IMatt v. Mendol, 27 Cli.v. 1>. 248 (lS8i). 
 
 (f/) 4 V,i: 4ai (1S.-4I. 
 
 (h) S.H' Hiirvcy v. M<-N.'il, 12 V. U. ;?t'.2; D:nv8oa v. MofTiitt. 11 
 O. II. 4N4; He Hokstiil. IV 1'. I{. 201 ( LSSKJ). 
 
 1 11 
 
SSSBBl^^^B 
 
 
 104 
 
 FOUECLOSUllE OF MOUTGAOES. 
 
 Cases Where Successive Periods Allowed. — In 
 tlie case of Mutual Life Assurance Society v. Langley (i), 
 Tearson, J., said: "I will j-ive six months for redemp- 
 tion to the defendant Langley, and one period of three 
 months afterwards for all the other defendants. My opin- 
 ion is in favour of lixinp^, as a general rule, one period 
 of redemption; the practice of giviiij; successive periods 
 has been found very inconvenient. I do not think I was 
 wronj; in my decision in Smith v. Olding (;'), but the prt;- 
 sent case is a very peculiar one, and, therefore, I allow 
 the additional three months'' {k). 
 
 In Sinithett v. Hesketh (/) the plaintiffs were lirst 
 mortfijajjees, a jointress the second incumbrancer, the 
 plaintiffs the third mortfjagees, and there were several 
 subsecpient incumbrancers. After statinj; that " the 
 tendency of the Court now is certainly much jjieater 
 than it was to prevent foreclosure suits continuing for 
 years, with successive opportunities for redemption 
 given to the parties," North, J., made an order giving 
 the jointress six months, and in case she did not re- 
 deem, three months to the subsequent incumbrancers; 
 and in case she did redeem, giving three months to the 
 plaintiffs as third mortgagees, and a third peri«>d of three 
 months to the subse(iuent incumbrancers. His Lord- 
 ship disclaimed the duty of proceeding to sort out the 
 .subsequent incumbrancers. 
 
 Where Oxk Incumrranxer Kkdeems, Pfriop for 
 Foreclosure Against Others. — ^^■here, by bis report 
 under a foreclosure decree, the Master appointed a time 
 for all the subsecjuent incunibrancers who proved before 
 him to redeem the plaintiff, one of *hom at the time 
 appointed i)aid the amount ami to«»k an assignment — 
 Held, that tlie incumbrancers who did not redeem were 
 entitled to three months" furthei' time before the co- 
 
 (0 2G Ch. D. at p. 002 (1S84). 
 
 (j) 2-t Ch. D. 402. 
 
 (Ai As to pxtrn p«»riod allowed, cf. Rulo 393. 
 
 (0 44 Ch. D. 101 (ISOm. 
 
PERIOD FOR REDEMPTION'. 
 
 10.-) 
 
 defendant could obtain a final foreclosure apainst 
 them (/«)• 
 
 Periods Allowed After Six Moxtiis. — Hesidrs 
 the ordinary jM'riod of six months (n) various periods 
 have been allowed after the expiration of the six months. 
 
 By Rule 393, when it becomes necessary to fix a 
 date for redemption after the lapse of the first period of 
 six months, the further time allowed shall be one 
 month [o). 
 
 Ten days (/;), where i)laintitT omitted to attend for 
 payment. 
 
 Three months was a common period; as where the 
 mortfiaffee had received rents {q), or where successive 
 ]ieriods were allowed (/). 
 
 Where the suit became abated between the date of 
 the report and tlie time fixed by it for j)ayment by sub- 
 sequent incumbrancers, on an application for a final 
 order for foreclosure, it was refused, and a new day was 
 appointed, allowiuff the incumbrancers an additional 
 time for payment, eciual to the time the suit remained 
 abated (,<). 
 
 Period Mentioned in Decree Shortened r.v Mas- 
 ter's Report. — Where the decree allowed six numths 
 for payment, and the Mast«'r's report fjave six weeks 
 instead, this was held an irrejiularity (/). 
 
 I'eru t Shortened for 3Iort(jAgc>k"s IIenefit. 
 
 — A mortji;aj'()r cannot claim to redeem on an earlier day 
 
 I > ' 
 
 iml AnliiK'h v. Wilstm, 2 L. .1. N. S. 1270. Cliy. ("li!iint>.. Viiii- 
 kontrliiH't, ('. 
 
 (u) Soo Rnlo 303: Pint v. Mondd. 27 Ch. D. 24S; Ilonro v. 
 Stephens. 32 Cli. D. 15M. 
 
 (0. Cf. Jonnor— Knst v. Xoedliam. 32 Cli. D. .'84 (ISSC.t. <lisliii- 
 miislii'd ColeniiU) v. Llcwclliii, 34 Ch. I>. 14t!. 
 
 (;il Sec IDiKht's v. Williiims, 1 Ktiy (Api".) iv. 
 
 iqi Biichnnnii v. Oroonway, 12 Boav. 3r>."j U849). 
 
 u) Si'i' Anlaiu'h v. Wilson. 2 C. L. .T. (N. S.) 270; Sinithctt v 
 Hfsketh, 44 Ch. D. 101 (1890); Mutunl Life Ass. Soc. v. Lnniiloy, 
 2t! Ch. D. (;92 (1SS4). 
 
 (.^1 Biutiiir V. Wiiy. S 1». K. l.'.S. Hlalu', V.C. 
 
 tt) .Johnston V. Johnston. 9 P. R. 259. 
 
 
 r 
 
»', 
 
 106 
 
 FOUFX'l.OSUUE OF MOin(JA<;E.S. 
 
 i 
 
 than the day lixt'd for payiiR'Ht without his payiiij,' the 
 full interest up to the day fixed {u,). 
 
 Time Allowed After Ahoktive Sale.— The Court 
 will not restrict itself to a period of one month after an 
 abortive sale in caseH where the amount to be raised is 
 very large and the i>roi>erty of ^n-ixt value and dittieult 
 to convert!/), liul*. ',\\r,\ does not appear to apply to 
 cases of speedy foreclosure. 
 
 (n) Hill V. nowliinds. 1S!»7. li Cli. 3t>l. 
 
 ('■) S...' S<jirl..ti V. Hiriicy. l.'. I». 1{. :^S.3 (lS<t;{(. .lisiMissins <Joo(JnlT 
 V. Rnn-Dws, 7 Or. 44!>; (Jirdlostouo v. (Jiinu, 1 Chv. Cli. 212- Cnmn- 
 Ik'11 v. Iloljland, 7 Ch. D. ItiO. 
 
PROOF OF MOHTGAfJE ACCOUNT AXD NOX-rAYMENT. 107 
 
 XII. 
 
 PROOF OF MORTGAGE ACCOUNT 
 AND NON-PAYMENT. 
 
 A.— PROOF OF MORTGAGE ACCOUNT. 
 
 MoRTGAc.i-: Accolxt; lluw Oudinauilv Proved. — 
 The production of tlu* inoitfjfnfjje and the ordinary atli- 
 davit by tlie luilder of tlic niortfiagt', stating the simount 
 due, is prima facie evidence, and tlie onus is on the mort- 
 gagor or other party entith'd to redeem, to adduce evi- 
 dence to reduce tlie amount (o). 
 
 The parties are prima facie bound by tlie amount 
 stated in tlie mortgage as being the true debt, and the 
 Master should take the account on that footing, and not 
 go behind the statement in the mortgage in the absence 
 of evidence to impeach it [b). 
 
 If the holder of the mortgage produce books or other 
 evidence in support of his altidavit of the amount due, 
 though the books do not appear to support the atlidavit, 
 still, unless by cross examination on the books, or other- 
 wise, the allegations in his altidavit are disproved, it will 
 stand unimpeached, and the Master should act oh it (c). 
 
 (a) Ellii.tt V. Iluutor, '-^4 Gr. 430 (ISTO); Court v. Holland, 8 V. 
 n. '2V,\ (l.SSOi; Wiirn'ii v. Taylor. !l Cr. ."O (l.Sf.li); vW Markle v. 
 Uoss, 13 r. H. 13.') (1880), plaintiff not t-alltMl on to prove non-pa.v- 
 nifiit ol! iiittMH'st. Tor proof of niortKajio docd sec Innian v. Par- 
 sons. 4 Madd. 271, pr<iof of han<l\vritinK of snbscrihinf; witness 
 sutlicifiit proof of cxocntion of niortpajre; Heath v. ("rcalock, L. R 
 10 rii. 22. copy of niortjiaKO admitted as proof; of. Itulos tt7r», (>7G, 
 Waldy V. (Jray. L. R. 20 Eq. 23S. drafts held soo<l secondary 
 evidence of niortKajres; Jacobs v. Richards, ."> Do G. M. & (r. .".', 
 lunatic mortgagor. 
 
 ih) rollo<k v. Perry. 5 (Jr. 501 (185(5). Cf. Minot v. Eaton. 4 
 li. J. Cli. 134, mortgagee not bonncl to prove payment of consider- 
 Tition. 
 
 (c) Hancock v. Manlson. 10 Gr. 483 (18G4). Cf. Rule 074. as to 
 hooks being prima facie evidence. 
 
 It;',' >'| 
 
' > * «ui''a>ajLUJiiijB 
 
 I' 
 
 108 
 
 FOUECLOSLHK (»F MoUTlJAdFX 
 
 1*1 
 
 m I 
 
 Proof by Assicnkk m- Mortc.ac.i:. — lly Kiilo I'tl (ho 
 statciiH'iit of llu' moi'ttJiij,"' jucoiint uihUm' tlu' oatli of the 
 assij,'ii«'«', is siinicu'iil i)iiiiia facie fvideiicc of the state of 
 ai'funiit. 
 
 It is not iiecesHary foi* the assi;;iiee of a iiioi'tj^a^e 
 to show what coiisich'iatioii he yav«' for the moi'tna^^e. 
 Nor is it uecessai'v thiit the plaintilT shcMild have ^iveii 
 a cash cousideintioii — tlie fact of his iiiciirriiij; a liability 
 is sutlicient (<l). 
 
 Affid.wit Siiori.i) Snow How Monfy Advan'CED. 
 — " It is projier for tlie Master, and incumbent upon 
 him in all cases where the bill has been taken pro eon- 
 fesso^ a^'ainst the niortj;a^or. even if not in all cases, 
 which, however, would be desirable, \o reqiiire the plaiu- 
 titf \o show h(»w the money was advanced, and not 
 merely what remains due " (c). 
 
 Parol Evidfnck to Snow Trvf. Amount Ad- 
 VAXCKi). — Wheie the amount advanced is less than the 
 sum stated in tin* morl},Mp;e, the mort;ia};or is at liberty 
 in the Master's ollice \o show the true sum advanced, 
 with a view to re«lucin;,' his liability (/'). When the mort- 
 jiaj;ee is dead, before the fac<' of the mortj^ajje is altered 
 there should be clear evidence by which to act (7). 
 
 Parol Kvii)i:.v(|-. to Show True Pi'ui'osf of 
 Secirity. — It is competent to the parties (including an 
 assi;,'nee of the UKutgaye) (//), if tin* mortj^age has not 
 been made for the purjiose ap|>arent on the face of it, 
 to show by parol evidence the real object for which it 
 
 (<n KiiiKsmill V. (JanliKM-. 1 O. S. :^-J.' (lS4t)). See Holt v. Mill, 
 2 ^'^■nl. -'T!>. ciisc wluTt' lliinl iniirlnii^'cf m'ts iissinmiu'iit of tirsi. 
 
 Ki Stcrliii;; v. Uilov. It (Jr. :it p. :\Mi (IStiL'i. (;f. Miiiot v. Katon. 4 
 L. .1. Cliy. 134. 
 
 (f) Ponn V. Lookwood, 1 C,r. .'47 (lS.")ni, not porniittod to show 
 that contrart usurious. 
 
 ui) F'rnsor v. Locic. 10 C.v. 207 ilSr)3). ! 
 
 (h) McIii*^yro v. Thonipsou, infra. ' 
 
I'KOOF OF MOUTOAOE ACCOUNT AND NON-I'AY.MENT. 10!) 
 
 wiiH exctntcd, c.j,'., Iluit it wiis iiitfiidcd to stTuic a llttjit- 
 iiij^ balanced); or was held as senility for a iiofei/i. 
 
 Affidavit iiy Offkku of Tompaxy. — See Consoli- 
 dated Investment and Insnrance Socit'ty v. l)odd(/.i, 
 
 15.— PliOOF OF NON-PAYMHxNT WITHIN TIME 
 FIXED FOR IIEDEMPTION. 
 
 WiiKx Affidavit Madf. — The attidavil of non-pav- 
 nient slionld be made after the day the money is duei/i. 
 
 Affidavit iiv Ac.fnt ok Solicitou. — Whei'e the 
 atVulavit of non-payment is made by an a^^ent of tlu' 
 j)laintilT it should state that he is anthoiized to receive 
 the money (»/). 
 
 Wh(»re the usual atlidavit of non payment is made 
 by the ajjfent of the plaintiU" his autiiority need not be 
 produced (//). 
 
 Where the jdaintilf resides out of the Jurisdiction, 
 the atlidavit of non-i>ayment beinj;' made by an a^«'nt 
 of the i»Iaintitr, it must be shown where the custody of 
 the mort^jfaj^e has been (o). 
 
 Where the plaint ItT resides out of the jurisdiction, 
 and the allidavit as to non-payment is made by his soli- 
 citor, it must be shown that the jilaintitT has no other 
 aj-ent within the jurisdiction authorized to receive the 
 money {p). 
 
 Where a mortj^a^jee had become bankrupt, and he. 
 with his assi}j;nees had lile<l a bill to foreclose, a tinal 
 order was jj;ranted, although one of the assiuiiees bciiiu 
 absent had not executed the power of attorney to re- 
 
 (I) StcrliiiK V. Kih'.v. '.> (Jr. 34C. (lSt;'_»). Cf. Ingles v. < Jih-lirist. in 
 (Jr. 301 (lS(i3), where .iniount ro-tuirrowiMl on old niortjjiiK'e. 
 
 (;■) Mclntyro v. Thompson, G (). li. 710; Bro\vnlt'(> v. Cnnnin^;- 
 liani. 13 (Jr. 'tSn (isr.7); Morrison v. Uoldnson. 1S> C.r. 4S0 (isTl'i. 
 
 (A-) y W. 11. I'J. 
 
 (/) Blong V. Kennt'tly, '2 Chy. Cliiuutt. ■l.")3. Ti\yl<pr, Secretary. 
 
 (in) Towers v. Merrini.m, 1 Cliy. Chnnilt. 'Jli't. Viinkou^rhnet. C 
 
 iii) Uii.ielitfe V. iMiffy, 1 Chy. Chiinih. 302. Mowat. V.(\ 
 
 (o) Hiie V. Sliiiw. 1 Cliy. Cliiinih. '-'00. Spraut'e. C See fiirthir, 
 Itocksey v. Else, 18!tl, W. \. (i't. atlidavit by agent of one plaintiff 
 and by other plaintiff travelling abroad. 
 
 (/),i Taylor v. Cuthbert, 1 Chy. Chaudj. 240, Spragge, C. 
 
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 110 
 
 FORECLOSL'UE OF MORTGAGES, 
 
 ceive the mortgage money, oi- make affidavit of non-pay- 
 ment iq). 
 
 Where a moi-tgage was made to secure a partner- 
 ship debt, a final order was granted, although one part- 
 ner had not executed a power of attorney to receive the 
 mortgage money, or made affidavit of non-payment, it 
 appearing that such partner was and had been for some 
 time resident out of the country, and had never inter- 
 fered in tlie mortgage transaction in any way (r). 
 
 Company's Ac.ext. — On an application by a com- 
 pany for a final order for sale, the affidavit of the officer 
 of the company as to non-payment should show that he 
 is the proper officer to receive the mortgage money {s). 
 
 Affidavit by Co-mortgagees. — Where co-mortga- 
 gees are made co-plaintiffs, ii\e affidavit as to non-pay- 
 Mient, to obtain a final ord • (ihould be made by all !;f 
 them (0. 
 
 liAXK Certificati f),- '• >>' rAY;\[EXT. — The bank 
 certificate of non-j avinfmt aho" ;: made by the cashier, 
 or other like officer. A certifi^'at«: of the accountant, as 
 such, is not sufficient (it). 
 
 The manager of a bank where mortgage money is 
 directed to be i)aid should certify that the money has 
 not been paid before, as well as on or since the day ap- 
 pointed ()•). 
 
 Effect of Affidavit Siiowixg Possession. — On 
 application for a final order, the plaintiff should show 
 that he has not been in possession or in receipt of the 
 rents and profits (ir). 
 
 (q) Lyman v. Kirkpatrick, 2 Gr. 625. 
 (»•) Counter v. Wylde, 1 Gr. 538. 
 
 (s) The Wi'storn Assurance Co. v. Capreol, 1 Cliy. Chanib. 227, 
 Si)raK«e, C. 
 
 (0 Annis v. Wilson, 1 Oiy. Chanib. 217. Spragge, C. 
 (u) Campbell v. (Jarrett, 1 Cliy. Chamb. 25.^. Spragge. C. 
 
 (lO Farrell v. Stokes. 1 Cliy. Chamb. 201.— Esten. For effect 
 of omission of date in Bank Manager's certificate, see Collins v. 
 Denison, 2 Chy. Ch. 4G5. 
 
 (HI Scott V. McDonell, 1 Chy. Chamb. 193, Spragge, C. For 
 what alHdavit should sliow, see National Permanent Mutual Benefit 
 Building Society v. Roper, 1892, 1 Ch. 54. 
 
ii 
 
 PROOF OF MOfiTGAGE ACCOUNT AND NON-PAYMENT. Ill 
 
 Where the usual affidavit of the pUiintiff shown 
 that he has beeu in occupation of the property, it must 
 be referred bade to the Master to talie a new account, 
 set an occupation rent, and appoint a new day for pay- 
 ment, although the plaintiff in his affidavit swears that 
 he was in occupation merely as caretaker, and has re- 
 ceived no rents or profits (a). 
 
 Attendance for Payment. — Rule 095 provides that 
 "■ where the Master is directed to appoint money to be 
 paid at some time and place he shall appoint the same 
 to be paid into some bank," etc., etc. Under this prac- 
 tice it would hurdly be necessary for the mortgagee to 
 have some one in attendance at the time and place aj)- 
 pointed. There are a number of English and Canadian 
 cases which show the inconvenience of appointing a 
 place other than a bank. For instance, it was connnon 
 to appoint the " chapel of the Kolls Yard between 12 and 
 1 o'clock." The Courts in such cases were called upon 
 to decide that a mortgagee who had arrived within an 
 hour of the time (y), or had attended a portion of the 
 appointed time {z), or had attended by agent with power 
 o^' attorney (a), or by an agent without such authority (6), 
 was entitled to foreclosure absolute. In cases where 
 through mistake or some other cause the mortgagee 
 omitted to attend at all, the proper course was to ap- 
 point a new time and place for payment (c). Under the 
 system of payment into a bank a new time and place 
 might have to be appointed where the bank or agency 
 named had been closed in the meantime (d). 
 
 (jc) Ciimnu'r v. Toinlinson. 1 Cliy. Cliiunh. li;?r>, ViinUonghiU't. C. 
 
 (y) Knox v. Simmons, 4 Bro. C. C. 443; see Bernard v. Norton^ 
 10 L. T. N. S. 183. 
 
 1^) Anon. 1 Colly. 2~:\: Lcclinu'rc v. rinni]). :}1 Beav. "iTS, c;r. 
 Mitchell V. Hayes, 5 L. J. 232; 1 Cliy. Ch. ~)i]. 
 
 (a) Hart v. Hawthorne, 42 L. T. 7!>. Cf. Evans v. ParUer, 2 Gr. 
 555, executor alone attending. 
 
 (b) Cox V. Watson. 7 Chy. D. VM: Macrae v. Evans. 24 W. K. 
 55; King v. Hough, 1895, W. N. tiO; but see Gurney v. Jackson, 1 
 Sm. tS: G. App. xxvi. 
 
 (V'» See Hughes v. 'Willianis. 1 Kay (^Api).) iv., where 10 days 
 the time. 
 
 (d) King V. Connor, 1 Chy. Ch, 274, agency of Bunk of Upper 
 Canada dosed. 
 
 m 
 
 i? • 
 
 Ei: ; m 
 
 i;i 
 
 il'l 
 
 1 1 r' 
 
112 
 
 FORECLOSUUE OF MORTGAGES. 
 
 XIII. OPENING FORECLOSURE AND 
 STAY OF PROCEEDINGS. 
 
 m 
 
 A.— OPENING FORECLOSURE 
 
 COVENANT. 
 
 BY ACTION ON 
 
 Previous Payment in Full IJars Foreclosure. — 
 " It is decided that if a debt is secured by the mortgage 
 of a real estate, and also by eovenaut and" by bond, the 
 mortgagee may pursue all his remedies at the same 
 time. If he obtains full payment on the bond or cove- 
 nant, the mortgagor is, by the fact of payment, entitled 
 to redeem the estate, and foreclosure is prevented or 
 not allowed " {a). 
 
 Previous Payment in Part Does Not Bar Fore- 
 closure. — " But if the mortgagee obtains only part pay- 
 ment on the bond or covenant he may go on with his 
 foreclosure suit, and giving credit, in account, for that 
 which he has recovered on the bond or covenant, he 
 may foreclose for non-payment of the remainder " (h). 
 
 Suing on Collateral for Part of Money. — Suing 
 at law for part of the mortgage money, for which the 
 note of a third party had been given as collateral secur- 
 ity, was held not to open the foreclosure, such suit being 
 brought before foreclosure completed (r). 
 
 Suit on Covenant After Foreclosure Opens 
 Same. — "On the other hand, if he obtains foreclosure 
 first and alleges that the value of the estate is not suffi- 
 cient to satisfy the debt, he is not absolutely precluded 
 from suing on the bond or covenant. But it is held 
 tliat by doing so he gives to the mortgagor a renewed 
 
 (a) Lang<liile, M.R., in Lockhnrt v. Hardy, 9 Bcnv. nt i>. 355 
 (1S46). 
 
 (h) lb., p. 356. 
 
 (c) ^lills V. Chonte. 2 Chy. Chamb. 374, Tnylor, Secretary. 
 
OPENING FORECLOSURE AND STAY OF PROCEEDINGS. 113 
 
 right to redeem, or, in other words, opens the fore- 
 closure; and, consequently, upon the commencement of 
 an action against him on the bond after foreclosure, the 
 mortgagor may tile a bill for redemption, and upon pay- 
 ment of the whole debt secured by the bond, he is en- 
 titled to have the estate back again and the securities 
 given up, and I conceive that after foreclosure the Court 
 w ill not restrain the mortgagee from suing on the bond, 
 provided he retains the mortgaged estate in his own 
 power, ready to be redeemed in case the mortgagor 
 should think fit to avail himself of the opening of the 
 foreclosure (d). 
 
 Terms ov Redemption in Such Case. — The recoverv 
 of a judgment against defendant after final order opens 
 the foreclosure and lets the defendant in to redeem. In 
 such a case the Court made an order giving time for re- 
 deeming, that part of the order being acquiesced in; put- 
 ting the defendant on terms to pay subsequent interest 
 and costs, and that writ of assistance issue without 
 further order if default made in payment at time 
 named (e). 
 
 Principles of Opening Foreclosure. — "I appre- 
 hend that the rules as to opening the foreclosure are 
 founded on this, that in this Cov t the mortgagor, if he 
 does not pay the whole debt, may lose the whole estate, 
 however valuable; but that if he does pay the whole 
 debt he is entitled to have the estate restored to him, and 
 it seems to follow that the mortgagee, having got the 
 estate, is not to proceed against the mortgagor for full 
 payment if he cannot restore the estate " (f). 
 
 Where Mortgagee Cannot Restore Estate. — '* If, 
 however, the mortgagee has sold the mortgaged pro- 
 
 (d) Lockhart v. Hardy, 9 Benv. at p. 35G (184G). 
 
 (e) Mills V. Choate, 2 Cliy. Ch. 433 (18GU), Taylor, Socrctary. 
 (/) lb., at p. 356. 
 
 H.r.M. — 8 
 
 1 . ■ 
 
 i- IJ 
 
 l;n 
 
 fr".H 
 
114 
 
 FOUECLOSUUE OF MOllTGAGES. 
 
 Mil 
 
 perty. a Court of Equity will interfere to restrain in ac- 
 tion on the covenant " (g). 
 
 Thus, in Perry v. Barker (h), the estate having been 
 sold some years before by the mortgagee, and the de- 
 ficiency being small, the Court said: *' If there was any 
 probability that this mortgagee could get the estate back 
 again he ought to have a time limited for that puri)ose; 
 then he ought to tender a conveyance, and the mortga- 
 gor should have a given time to redeem; but under the 
 circumstances of this case, the mortgagee's demand 
 being so inconsiderable the proper decree is an injunc- 
 tion." 
 
 Where Mortgagee Can, But Won't Restore 
 Estate. — " I incline to think that the mortgagor is not 
 entirely helpless. I should think that if prepared to 
 pay off the mortgage debt after final order, he might 
 notify the mortgagee of the fact, and desire to be 
 informed whether it would be received, and that there- 
 by the mortgagep would be put to his election. If he 
 consented to receive it, there would be redemption. If 
 he refused a Court of Equity, I should say, would find 
 no difficulty in restraining him from afterwards suing 
 for the mortgage debt"(t). 
 
 Costs of Opened Foreclosure. — Where a mort- 
 gagee, having foreclosed and sold, wished to prove in 
 an administration suit, he was forced to rescind the sale, 
 and prove only for his principal and interest, the costs 
 of the foreclosure suit being disallowed (y). 
 
 B.— OPENING FORECLOSURE BY RECEIPT OF 
 
 RENTS. 
 
 Receipt of Rents Before Default. — It has been 
 decided in a number of cases that receipt of rents by a 
 
 (fi) StirliiiK. .T.. in Kinnaird v. Trollope. 3i) Chy. Div. at p. C42 
 (1888), following Lockhart v. Hardy, supra. 
 (ft) 13 Vcs. 198 (1806), 
 
 (I) :\rnnsi'n v. lliuiss, 22 Or. 283 (1875), Spragge, C. 
 (i) Ilaynes v. Haynes, 3 Jur. N. S. 504 (1857). 
 
'W3 
 
 OPENING FOllECLOSUUE AND STAY OF PUOCEEDING.S. 115 
 
 mortgagee in possession in the interval between the re- 
 port or certificate and the day fixed for payment opens 
 the account and prevents foreclosure, and that a new 
 day must be fixed for redemption (A). The receipt of 
 rents will not permit a mortgagee to make an aftidavit 
 " that the said sum still remains due and unsatisfied." 
 
 Receipt of Rents After Default But Before 
 Final Order. — In Constable v. Howick (/) rents were 
 received before the aftidavit was sworn, but after the 
 day fixed for payn>ent. The Vice-(Jhanc<-'llor {m) did noi 
 think a further account necessary, and made a final 
 order. 
 
 Rece'.'T of Rents Where Successive Periods of 
 Redemption. — Where successive periods of redemption 
 had been fixed, and the mortgagees had received rents 
 before the expiration of the time allowed the mortgagor, 
 but after the time for redemption allowed the puisne 
 mortgagee (though before a final order was obtained 
 against him), Kay, J., said: "I think it was irregular to 
 fix a further day for redemption by the mortgagor until 
 the puisne mortgagee had been finally foreclosed, but I 
 have no difficulty in holding that the receipt of moneys 
 for rent by the plaintitt's after tlie time fixed for redem[»- 
 tion by the puisne mortgagee, and before final judgment 
 
 I 4 
 
 m 
 
 (fc) Buchauan v. Greenway, 12 Beav. 355 (1849), directs new 
 term for redemption to be fixed, not exceeding 3 months; Ellis v. 
 Griffiths, 7 Beav. 83 (1844); Alden v. Foster, 5 Beav. 592 (1842); 
 (Jarlicli V. .Tackson, 4 Beav. 154 (1841); Allen v. Edwards, 21 W. 
 R. 471. 
 
 (I) 5 Jur. N. S. 331 (1858). Cf. .Tenner— Fust v. Needham. 31 
 Ch. D. at p. 503 (188G); National Permanent Mutunl Benefit Build- 
 ing' Society v. Koper, 1892, 1 Cli. 54, form of nllidavit of non-pay- 
 ment discussed. 
 
 (m) See his comments on this case in Prees v. Coke, L. R. Ch. 
 650 (1870). Cf. Portman v. Smith, 2 C. L. .T. (N. S.) 1(57, Mowat, 
 V.C. in Chy. Ch.: in such cases the niort^'iiKor should lie scrvt'd witii 
 notice of motion for final order. But see Greenshields v. BlacKwood, 
 1 Chy. Ch. 00, in which Constable v. Howick seems to be doubted; 
 case where plaintiff merely entered into possession. 
 
w 
 
 110 
 
 FOllECLOSUUE OF MORTGAGES. 
 
 ^i!, 
 
 ill 
 
 had been obtained, did not open tlie foreclosure va re- 
 gards him; tlierefore the projjer order to nialce now will 
 bo to foreclose him absolutely, and to direct an account 
 against the mortgagor " (n). 
 
 Rents Taken in by Keceiver. — There is a general 
 rule tliat in ordinary cases where a receiver receives rents, 
 between the date of the certiticate or report and the day 
 fixed for redemption, those rents should be taken into 
 account and a further period of a month should be al- 
 lowed for redemption (o). This rule may, by being ex- 
 tended, become a serious inconvenience to a mortga- 
 gee. Thus, it was argued in Hoare v. Stephens (/;). in 
 which TurLLU'-Fust v. Needham was not followed, "that 
 the result of such a decision will be that the plaintiff in 
 a foreclosure suit can never get a final order of fore- 
 closure at all, for he will find himself obliged to render 
 perpetual accounts; he cannot stop the receiver from 
 receiving, and the defendant may object to his being 
 discharged." 
 
 How TO Avoid Further Accounting. — Where there 
 was a special proviso inserted into an order for fore- 
 closure " that any person redeeming, or in the event of 
 toreclosure the plaintiftls should be at liberty to api \y 
 in Chambers for the payment or transfer to them of the 
 money which might be in Court or in the hands of the 
 receiver," default being made by the person entitled to 
 redeem, the Court made an order for foreclosure abso- 
 ^ute and for payment of the money to the mortgagees (7). 
 
 For procedure after receipt of rents by notice of 
 credit, see Rule 387, and notes thereunder. 
 
 (n) Webster v. Patteson, 25 Ch. D. G28 (ISM). 
 
 (o) S«'t' .Tenner— Fust r. Needhnni, 31 Ch. D. .WO: .32 Ch. D. 582 
 (188G); as distinguished in Coleman v. Llewellin, 34 Ch. D. 143. 
 
 (p) 82 Ch. D. 1J)4 (188()). See Ellenor v. Nagle, 1895, W. N.. 
 IGl, where rents received not sufficient to cover expenses. 
 
 («7) Coleman v. Llewellin, 34 Ch. D. 143 (188G); Jeuner— Fust v^ 
 Needham, 31 Ch. D. 500; 32 Ch. D. 582, distinguished. 
 
OPENING FOUECLOSUUE AND STAY OF PllOCEEDINGS. 117 
 
 C— STAYING PROCEEDINGS. 
 
 Before Judgment. — By Rjile 388, if the dofondant, 
 before judgment, pays into Court the amount then due 
 for principal, interest and costs he may have the action 
 dismissed (/). 
 
 After Judgment. — By Rule 389, after judgment, 
 but before final order, the defendant, on payment into 
 Court, nuiy have j)roceedings stayed {s). 
 
 The Money Must Be Paid. — As a general rule the 
 defendant is not entitled to have the action stayed on 
 the terms of a future payment. Until the money is ready 
 the applicatioE is premature (Ic). 
 
 What Amount to be Paid. — Where there is no 
 acceleration of principal, the interest on mortgage money 
 is computed up to the day named for payment in the 
 mortgage, and not to the time of making the applica- 
 tion (v). 
 
 Person Applying Must Be Entitled to Redeem. — 
 See McDonald v. Doray (r). 
 
 Stay on Motion by Puisne Mortgagee. — In Challie 
 V. Gwynne (iv), a motion was made after answer, but 
 before hearing, on behalf of D. L. H., a puisne mort- 
 gagee, substantiuliy to stay proceedings on payment to 
 
 (r) See notes to Rule 388. 
 
 (s) See iiotos to liules .'380, 390. For proceedings on subsequent 
 dofiult see Itules 3!)0, 31)1; Straclmn v. Devlin, 1 Gr. 8. form of 
 order. 
 
 (/) See Paynter v. Cnrew, 1 Kay. xxxvi. (1854); 18 Jnr. 417. 
 See furtlier, Uniake v. Itoehford, 1 Moll. 21(5; Doe d. MoKenzie v. 
 Rutherford. 1 U. C. R. 172. 
 
 («) See Strachan v. Mnrne.v, (i Ur. 378. For cases of accelera- 
 tion, see notes to R. S. O. cni». 12t>. clause 1(!. soiled. B. 
 
 (v) 11 U. C. R. 318. 
 
 iir) 1 Ka.v, Ai)p. xlvi. (184<»). Tliis appears to have lieen li.v 
 consent of all parties. The other defendants do not appear to have 
 any status to object to the application for a stay by one defendant, 
 Bee Paviiier v. Carew, 1 Kay, xxxvi.; cf. Reeves v. Glastonbury 
 Canal Co.. 14 Sim. 351. 
 
 n 
 "i 
 
 \w, 
 
 ill) 
 
 ■■■'I, 
 
 lili 
 
 . f 
 
 1 
 
 •ni 
 
118 
 
 FOUECLOSUllE OF MOUTUAGES. 
 
 the plaintiffs of the amount, etc. The order made was 
 upoii payment, etc., the bill to be dismissed against all 
 the defendants except D. L. H.; if the amount not jiaid 
 within the time, it to be deemed that no order made on 
 the application, and in that case D. L. H. to pay the 
 costs of the application. 
 
 Stay on Motion by Plaintiff Himself. — In Brooks- 
 bank V. Higginbottom, Bent v. Buckley {x), a decree 
 was made in a suit for the administration of a mort- 
 gagor's estate. The mortgagee afterwards filed a fore- 
 closure bill, but subsequently obtained full payment in 
 the administration suit. Held, that he was entitled to 
 stay proceedings in his own suit and to have the costs 
 of it. 
 
 D.— ENLARGING TIME FOR PAYMENT. 
 
 Motions to Enlarge. — Applications for extending 
 the time for payment may be made in Chambers (y). 
 
 The time was extended in the following cases: 
 
 Where the Mortgagee was at Fault. — In a case 
 of mortgage for purchase money, where the existence of 
 a first mortgage ^which the mortgagee-vendor had cove- 
 nanted to pay off) prevented the mortgagor-purchaser 
 from raising a loan to pay the balance secured (2). 
 Similarly where an improper advertisement by the 
 mortgagee's solicitors prevented the mortgagor selling 
 to raise the money, the time was enlarged six months, 
 and costs were refused the mortgagee (a). 
 
 Where Good Prospects of Being Able to Pay. — 
 Where the defendant showed that he had sold for £300 
 and the mortgage debt was only £250, and that he ex- 
 pected to receive payment in full in a few months, the 
 
 (x) 31 Bonv. 25 (lSr>2>. Cf. Matthews v. Mntthows, 45 L. .T. Ch. 
 711; Tnylor v. Mostyn, 25 Ch. D. 48 (1883). 
 (;/) Anon, 4 Gr. Gl (1853), motion refused. 
 (z) G. Mortgagee v. V. Mortgagor, 2 Chy. Ch. 33. 
 (a) Gilniour v. Myers, 2 Chy. Ch. 179. : 
 
OPENING FOUECLOSUUE AND STAY OF PUOCEEDINOS. 119 
 
 timo was extended {h). The mortgagor will bo put on 
 such terms as will appear to indemnify the mortgagee 
 (f); and an application before final order will be more 
 leniently dealt with than one after (^O- 
 
 Whe'xe the Value is Being Greatly Increased. — 
 Six mo'iths further time was given on an application 
 before the day for payment, it being shown that the pro- 
 I)erty would in the meantime be greatly enhanced in 
 value by the construction of a contemplated railroad (e). 
 
 (6) Ford V. Steeples, 1 O. S. 282. 
 
 (c) Calmac v. Diirie, 2 Chy. Ch. 304, order directing payment on 
 fU'oouiit. piiyincnt of costs of iip])liciiti<in in » week iiiiil foniponnd- 
 ing of interest, time extended; Street v. Rellly, 2 Chy. Ch. 270j 
 Brewer v. Austin. 2 Keen, 211; Whitfield v. Koberts, 7 Jut. N. S. 
 1208; Holford v. Yale, 1 K, & J. 677; Howard v. Macarn, 1 Chy. Ch. 
 27. 
 
 (d) See Patch v. Ward, L. R. 3 Chy. 212. 
 
 (e) Cameron v. Cameron, 2 Chy. Ch. 375 (18G9). 
 
 k 
 
 1. 1 
 
 ,.,|i 
 
if I 
 
 IP'"' 
 
 180 
 
 I'oIlECLOSUHL OF MOUTGAOES. 
 
 XIV. FINAL ORDER. 
 
 How Final Order Outained. — A motion for a flnal 
 order of foreclosure is an ex parte proceeding; it is un- 
 necessary to serve notice thereof even on infant owners 
 of tlie equity of redemption wlio liave answered {a). 
 
 It does not always happen, however, that a final 
 order will be granted ex parte or at all. 
 
 Thus, after a lengthy period has elapsed after the 
 day appointed for payment, it is necessary to give notice 
 of the motion for the tinal order (/;). 
 
 Where a party entitled to a final order of fore- 
 closure neglects to apply until nearly two years after 
 his right to the order first accrued, the order will not 
 be granted ex parte (r). 
 
 A motion for final order may be refused. Thus, 
 where the decree was erroneous, the Court refused to 
 make a final order on default of payment {tl). 
 
 '■ Where it appeared that several unnecessary parties 
 were added in the Master's office, the motion for final 
 order was refused, and the costs tlius caused were de- 
 ducted from the plaintiff's bill; the amount then appear- 
 
 P 
 i! 
 
 '1 
 ■I ' 
 
 (a) Henderson v. Cowan, 1 Chy. Chnmb. 297— Mowat, V.C. 
 These motions are usually (iit Toronto) made befoi-e the Master in 
 Chambors on an affidavit of non-paynuMit. etc. For oase where a de- 
 fendant had absconded, see White v. Courtney, 1 Chy. Ch. G6. See 
 Whitbrcad v. Lyall, 8 De G. M. & G. 383, as to foreclosure of puisne 
 incumbrancers before mortgagor. 
 
 (b) Kirchoffer v. Stafford, 2 Chy. Chamb. ."i2. Taylor, Secre- 
 tary. Cf. Drummond v. Anderson, 3 Gr. 150; Frees v. Coke, L. R. 
 6 Ch. Api). 050 (1870), some explanation required of delay. 
 
 (c) Ardagh v. Orchard, 2 L. J. N. S. 303.— Chy. Chamb.— Taylor, 
 Secretary. 
 
 (d) Commercial Bank v. Graham, 4 Gr. 419. 
 
FINAL ()HI)I:H. 
 
 121 
 
 infj duo was ordorod to be \>.\'h\ in two wofks, or in do- 
 fanlt forocloHuro ir). 
 
 Whoro tho nnionnt socnrod by niortua^o was loss 
 than £10 (boinj; only flS.H.'i) a final order wan rofnsod i/i. 
 
 A final order of foioclosuro had boon obtained in a 
 suit where tho true position of parties was not disrlosed. 
 or material I'aots had been niisroprosontod, and a bill 
 was subso(iuently filed to enforce a elaini a^iMust tlio 
 I)arty bonofi<'ially interested as ]daintiiT in that suit. 
 The Court refused to nuiko a decree other than would 
 have been proper had the true position of the parties 
 to that suit been stated (//), 
 
 What is Foreclosure Absolute? — In foreclosure 
 proceedings " the Court made various orders — interim 
 orders fixing a time for payment of the money — and 
 at last there canu* the final order which was called fore- 
 closure absolute, that is, in form, that the mortgaj-or 
 should not be allowed to redeem at all; but it was f(Miu 
 only, just as the original deed was form only; for the 
 Courts of Equity so.n decided that, notwithstanding the 
 form of that order, they would after tiiat order allow 
 the mortg.i^or to redeem. That is although the order 
 of foreclosure absolute appeared to be a final order of 
 the Court, it was not so, but the mortgagee still renuiined 
 liable to be treated as mcsrtgagee, and the mortgagor 
 still retained a claim to be treated as mortgagor, sub- 
 ject to the discretion of the Court. Therefore, every- 
 body who took an order for foreclosure absolute knew 
 that there was still a discretion in the Court to allow 
 the mortgagor to redeem " (h). 
 
 \i 
 
 /'] 
 
 !i| 
 
 ((■) Rioo V. Broolis. 1 Chy. Chiiinb. 71. Wnkc. X.(\ C'f. HiKjrar 
 V. Wny, 8 P. R. ir)8, Bliilvo, V.C., whcro suit bpcnme almted. 
 
 if) Sl.snv V. Fivody, S L. J. N. S. UW. ^'f. Gilbi'it v. Braitli- 
 wait, 3 Chy. Ch. 413. 
 
 (flf) Wilson V. Hodgson, 14 CJr. 543. 
 
 (7i) Jessol, M.R., in Campbell v. Holylnnd, 7 Ch. D. ir.H. 172 
 (1877). Followed in Johnston v. .Johnston. 9 P. R. 205 (1882); see 
 Trinity Colh-jre v. Hill. 2 (). ]{. .'^48 (ISS.'V); 10 A. U. U!»: IMatl v. 
 ]Mendel. 27 Ch. D. 248. For effect on Statute of Limitations, see 
 Heath v. Pu>;h, Q. B. D. 34.'. For effect of release of equity 
 before final order, see Reynoldson v. Perkins, Ambl. 5Go. 
 
 I 
 
 1 
 
122 
 
 FOUECLOSURE OF MOUT(JiAGES. 
 
 \\ 
 
 "As is said in Thornhill v. ^Fanniufv, the relations 
 of mortgagoi" and mortgagee in this Court are anoma- 
 lous. This Court loolcs at the estate from first to last 
 as only a pledge for the debt. The mere fact of an 
 order absolute for foreclosure being obtained does not 
 necessarily prevent the Court from rescuing the estate 
 from the mortgagee. Indeed the order absolute 
 amounts to little more than an authority by the Court 
 to the mortgagee to deal with the property as his own. 
 When he in any way as such owner alters his relation 
 to it, he adopts it as his own and foregoes his debt, and 
 neither he nor the mortgagor afterwards can treat it 
 as a niere pledge for the debt, and insist that the latter 
 is subsisting. Until this is done the niprtgagee is in no 
 way bound to take the property for his debt, notwith- 
 standing the order for foreclosure, lie may treat this 
 as a nullity and sue at law for his mortgage money (i). 
 Can he, therefore, insist that it is final as against the 
 mortgagor, when there has been no change otherwise in 
 their relations, no change in the property or the use of 
 it? It is a matter of discretion to grant indulgence to 
 a mortgagor '' (j). 
 
 The rule in Ontario as to re-oi)ening after final 
 order is necessarily less elastic, and less lenient to the 
 mortgagor than in England. The circumstances of this 
 Province, and our way of dealing with lands make it 
 important that the final order should have some finality, 
 so as to encourage the improvement of land which has 
 been foreclosed (A). 
 
 FixAL Order Good Umil Set Aside or Opened. — 
 A final order is good until set aside. Thus the Courts 
 will not go behind the final order on a motion for de- 
 livery up of possession. The mortgagor, if he thinks the 
 
 (il Cf. l»aisk'.v V. Brodily, 11 T. R. 202. But see Munsen v. 
 Hauss, 22 Gr. 279, for rights of mortgagor. 
 
 (;•» VankougliiK't, C, mi Piatt v. Asliliridgo. 12 (Jr. 100 (1805; 
 followod Trinity College v. Hill, 2 O. R. 348; 10 A. R. 99. 
 
 tk) Trinity College v. Hill, per Bo>d. C, nt 2 O. R. 351; per 
 Patterson, .T.A., at 10 A. R. 108. 109. For rule in Nova Scotin, 
 see Chisliohu v. Kenny. Ki Feb.. 1S95, Cassels' Dig. 5-10. 
 
FINAL OHDEU. 
 
 123 
 
 final order improperly granted, being at liberty to move 
 to set it aside (/)• This does not apply, however, to a 
 case where the foreclosure is opened ipso facto by pro- 
 ceedings taken upon the covenant, in which case, any 
 person interested !u the equity of redemption and en- 
 titled to redeem might bring a redemption action with- 
 out first setting aside the final order [m). 
 
 Solicitor for Plaintiffs Caxxot Re-open Order 
 FOR Defendants. — Where a firm acted for the plaintitYs 
 in foreclosure, it seems that another firm afterwards 
 formed, and containing a member of the former firm 
 cannot act for the defendants to set af.ide the fore- 
 closure, even although two of the plaintiffs concur in 
 the application and only the third objects («)• 
 
 The following reasons have in various cases in- 
 fluenced the Court in the direction of re-opening a fore- 
 closure after final order: 
 
 The fact that, under the circumstances, no injustice 
 .will be done to the mortgagee in question by opening 
 tlie foreclosure, and granting a short day to the mort- 
 gagor to pay the debt, interest and costs (o). 
 
 The fact of the whole or the greater part of the pro- 
 perty being still in the possession of the mortgagor ip). 
 
 The fact that the estate in question was an estate 
 in reversion not in possession (q). 
 
 The fact that the mortgagor had a reasonable excuse 
 for not redeeming at the proper time, and that he has a 
 good prospect of paying the mortgage debt if time be 
 given him (/). 
 
 (?) Mills V. Chonte, 2 Cliy. Ch. 374 (18G9). 
 (ml Clmlticld v. ("iiiiiiiiiKliimi. I'.'i O. H. Ui.'J (ISUJi. 
 («) Boultou V. The Don nnd Dnnforth Kord Co., 1 Chy. Ch. 329. 
 Mowiit. \'.('. 
 
 (0) VimkouKhiu't, C, in Wnddell v. McColI. 2 Chy. Ch. tJ2; 
 MowHt, V.C.. in Plntt v. Ashbridgc, 12 Gr. 105 (ISOot. 
 
 (/)) rintt V. Ashbridgo, 12 Gr. 105 (1S05). 
 
 if]) Ciimpboll V. Ilolylnnd, 7 Cli. D. IGG (1877). 
 
 (r) Johnson v. Ashbridge, 2 Chy. Ch. 251. 
 
 m 
 
 ■ •\r ■ 
 
 ■ .t 
 M 
 
 I 
 
 |l ' 
 
■■PI 
 
 Wain *- 
 
 124 
 
 FORECLOSURE OF MORTGAGES. 
 
 n:- 
 
 ?1 
 1 
 
 The fact of the mortgagors coming promptly or 
 within a reasonable time [s). In deciding what is a rea- 
 sonable time, regard must be had to the nature of the 
 property (/); also the amount of money to be raised, and 
 the source whence the mortgagor expected to raise it 
 (n). Where the mortgagor is illiterate and ignorant the 
 time may be reckoned from the period when he knew of 
 his rights (r). 
 
 The fact that the money for redemption had been 
 paid into Court although credited to the wrong suit (h). 
 
 The fact that the value of the property had a much 
 greater value than the amount of the mortgage (.r). But 
 this will not be sufficient ground where the mortgagor 
 has been negligent and the mortgagee forbearing (y). 
 
 The fact that the property has increased in value {z). 
 
 The fact that a very high rate of interest is being 
 charged («). 
 
 The fact of the mortgagor being an illiterate and 
 ignorant man, without legal advice, and misunderstand- 
 ing the nature of the proceeding {b). 
 
 (s) See .Tohnston v. Johnston. 9 P. R. 259 (1882); Boulton v. 
 Don and Danforth lioad Co., 1 Chy. Ch. 335; Cameron v. Lyues, 
 1 Chy. Ch. 42. 
 
 (0 Campbell v. Holylnnd, 7 Ch. D., at p. 172, difference between 
 estate in possession and reversion. 
 (H) lb. 
 
 (r) See Tlatt v. Ashbridge, 12 Or. 105, Mowat, V.C. Where 
 the acticin to redeem wiis IS months iiftei" tinal order, but ri'cently 
 after the mortgagor was aware of his position. 
 
 (If) Jolinston V. Johnston, 9 P. R. 259 (1882). 
 
 {x) Piatt V. Ashbridge, 12 Gr. 105 (1805), i>roperty three times 
 the value; Johnston v. Johnston, 9 P. R. 2G(> (1882). 
 
 (//) Miles V. Cameron. 9 I*. R. 502 (1883), Dalton, M.C. Cf. 
 Brothers v. Lloyd. 2 Chy. Ch. 119, Yankonghnet, C; Johnson v. 
 Ashbridge, 2 Chy. Ch. 251. 
 
 (^1 See Beaton v. Bnnlton. 1891. W. N. .'{(». In this ease the 
 property increased in value by the death of a person after the last 
 day for payment, but before foreclosure absolute. 
 
 (o) Piatt V. Ashbridge, 12 Gr. 105 (1805). 
 
 ih) Piatt V. Ashl>ridge. 12 (Jr. 105 (1S(;5>. mortgagor had no soH- 
 oitor, and the only paper served was the bill. Cf. Trinity College 
 V. Hill, 10 A. R. 9!> (1SS4). where the defendant served was about 
 ninety years old, and of feeble intellect, unfitted to transact business. 
 
FINAL OUDEK. 
 
 125 
 
 The fact that the owner, who purchased the equity 
 after the institutiou of tbe suit, had no notice of any 
 proceedings until after the final order (c). 
 
 The fact that there was an irregularity, such as 
 could not be waived, as an erroneous order appointing 
 the official guardian, guardian ad litem of a lunatic (J). 
 
 Purchasers From the Mortgagee After Fore- 
 closure, — Jessel, M. K., says, " there are purchasers and 
 purchasers," and takes as opposite cases where a pur- 
 chaser buys a freehold in possession after the lapse of 
 a considerable time from the tinal order, with no notice 
 of extraneous circumstances, and where he buys within 
 twenty-four hours afler final order an estate of mucli 
 greater value than the incumbrance {c). 
 
 Some of the grounds upon which a purchaser may 
 defend his purchase against redemption are: 
 
 That the decree and final order are upon the face 
 of them regular (/). 
 
 " If a purchaser at a sale by the Court ' has a right 
 to presume that the Court has taken the steps necessary 
 to investigate the rights of the parties, and that it has 
 on that investigation properly decreed a sale,' it does^ 
 appear to me upon principle that a purchaser from a 
 party, in whose favor the Court has decreed final fore- 
 closure, has the like right to presume that the Court 
 has taken the like steps, and has, upon investigalion, 
 properly decreed final foreclosure. Again to refer to the 
 langiiage of Lord St. Leonards, while there would be no 
 wrong in holding a purchaser bound by what appears 
 upon the face of the decrei' or other order which may 
 be said to constitute a link in his chain of title, it would 
 
 (c) Ililliiinl V. rsmiiiliell, 7 <!r. W (1Sr.n>. 
 
 (rf) Soo Warwick v. Tritnir, 12 V. U. 204 (18S7). 
 
 (c) Cnnipboll v. Holylaud. 7 Ch. D. 106 (1877). Cf. Johnston 
 V. .Tohnstou, 9 P. R. 2~>',), purchase 4 days after order. 
 
 if\ (Jnnii V. Noble. ir» (Jr. (i(ir{ (1S0!)I. Quaere, what if errors or 
 irregularities not appearing in face of docrce or order, but discover- 
 iilile UDou inspection of papers. Distinguished, Johnston v. Johnston, 
 P. R. 259. 
 
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 12G 
 
 FOUECLOSUUE OF MORTGAGES. 
 
 be quite ' another ' thing to hold him bound to look into 
 that which was not discovered by the Court; which 
 the Court had passed as correct and regular; and 
 upon which the Court had founded its decree or 
 order " {g). 
 
 That the purchaser had no notice of any alleged 
 irregularities (/<). 
 
 In McLean v. Grant {i). The plaintiff being owner 
 of land, after having mortgaged it, emigrated to Austra- 
 lia, and subsequently remitted money to his agents here 
 to pay ofif the incumbrance; but, they applied the money 
 to their own use. Subsequently the assignee of the 
 mortgage proceeded to foreclose, in which suit an ans- 
 wer was put in on behalf of the i)laintiff, but without his 
 knowledge or consent, admitting the allegations of the 
 bill, and that the full amount of principal and interest was 
 due. AVhercupon a final order of foreclosure was in due 
 course, obtained; and the plaintiff in that suit conveyed 
 to defendant A. for f 1,002, the value of the property; 
 and on the same dav defendants M. and S., as attornevs 
 to the plaintiff, conveyed the premises to A., who was 
 ignorant of any fraud in the matter. The plaintiff hav- 
 ing returned to this country, and ascertained the frauds 
 which had been practised upon him, filed a bill against 
 his agents and the purchaser A. Held, that the plaintiff, 
 so far as the purchaser was concerned, was bound by 
 his answer, and was not entitled to relief as against 
 him; tliat the fact of the purchaser having heard before 
 his ])urchase that the plaintiff had remitted money to 
 pay the mortgage was not sufficient to charge him with 
 notice that the foreclosure was wrongful; but, in view 
 of the fraudulent conduct of the attorneys, the Court 
 
 (fir) Spraggc, V.C, in Giinn v. Doble, 15 Gr. GG2 (ISGO), di^^clls- 
 sinfi Rpiinet v. ITimiill. 2 8. & L. 577; ColrlouKh v. St;'nun. 3 Byl. 
 ISC; Bnwen v. Ev.ins, 1 J. & Lat. 178. Cf. Collins v. Denison, 2 
 Chy. Ch. 4G5. 
 
 (7i) r.nnn v. Doblo, 15 Gr. G(53 (1339). 
 
 (i) 20 Gr. 7G. 
 
FINAL ORDEll. 
 
 127 
 
 made a decree against them for the amount realized on 
 the sale of the land, and directed them to pay the costs 
 of the suit, including the costs of the purchaser. 
 
 That the purchaser had paid his purchase money 
 before the action was brought to redeem him (;). 
 
 It is possible that a sale to a bona fide purchaser, 
 after foreclosure, may be upheld as an exercise of the 
 power of sale in the mortgage, although the foreclosure 
 itself is improperly obtained and Avoidable {k). 
 
 When the purchaser bought before final order, the 
 foreclosure was opened, the purchaser being taken as 
 knowing the circumstances of the case (1). 
 
 When a purchaser took relying on an order " sub- 
 ject to General Orders 114, 115, 116, the foreclosure was 
 re-opened on payment of principal, interest and the costs 
 of the mortgagees and purchaser, together with the costs 
 incurred by the purchaser in connection with his pur- 
 chase of the property (;»). 
 
 Where the decree gave the mortgagor six months 
 to pay, while the Master only gave him six weeks, held, 
 "this was an irregularity, which between the parties 
 might have been waived, but, which was sutHcient to 
 notify the purchaser of something unusual in the pro- 
 ceedings, and that he could not rely on the final order 
 alone " (n). 
 
 A verbal lease was not considered sufficient disposi- 
 tion of the property to x^i'^vent re-opening the fore- 
 closure (o). 
 
 (;■) Gunn v. Doble, 15 Gr. GG3 (18G9). 
 
 (fc) «ee Kelly v. Imperial Loan, 11 S. C. R. 516 (iS85), Strong 
 niul Henry, .1.1. , dissenting. The case is nut ('onsideretl jiu un- 
 doubted inilhorily. hiit has bei-n followed in Chatfield v. Cunninj,'- 
 hiini, 23 O. II. 153. Cf. Carver v. Kiehards. 27 lieav. 4SS. 
 
 (I) Campbell v. Holylaud, 7 Ch. D. 106 (1877). 
 
 (hi) Trinity College v. Hill, 10 A. K. lU) (1S84). 
 
 (»i) .Tolinston v. Johnston, P. 11. 205 (1S82I. !i purchaser is iden- 
 tified with his solicitor as to all information the solicitor has. 
 
 (0) Piatt V. Ashbridge, 12 Gr. 105 (1865). 
 
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 128 
 
 FOUECLOSUUE OF MOllTGAGES. 
 
 Day to Show Cause in Foreclosure Against 
 Infants. — A judgment (p) or final order (q) of foreclosure 
 should reserve a day for infant defendants to show cause. 
 
 In Wolverhampton and Staffordshire Banking Co. 
 V. George (r), a judgment for an immediate foreclosure 
 absolute was granted against an infant, the plaintiff 
 offering to pay the defendant's costs, and the defendant's 
 counsel not asking liberty to redeem; the Court being 
 first satisfied that the security was insufficient. 
 
 When an infant stands solely as a trustee he is not 
 entitled to have the six months after coming of age to 
 sihow cause (s). Neither is he where the judgment was 
 made against an ancestor and revived as against him, 
 the ancestor having died before final order (/). In such 
 cases of revivor the infants are restricted to the defences 
 set up by the ancestor (w). 
 
 (p) Mcllor V. Porter, 25 Chy. D. 158 (1883), case of equitable 
 niortpagp. 
 
 (fj) London & Canadian Loan and Agency Company v. Everett, 
 S r. R. 4S9 (1881). Cf. Mair v. Kerr, 2 Gr. 223 (1851). See furtlier 
 Gray v. Bell, 4G L. T. N. S. 521. 
 
 (»•) 24 Chy. D. 707 (1883). Cf. Croxon v. Liver, 10 Jur. (N. S.) 
 87; Bii:son v. Scott, Seton, Dec, 5th Ed., 828 
 
 is) Foster v. Parker, 8 Chy. D. 147 (1878); Lake v. Mcintosh, 
 7 Gr. .532 (1859). 
 
 (t) Sutherland v. Dickson, 2 Chy. Ch. 25. 
 
 (H) Burke v. Pyne, 2 Chy. Ch. 193. , 
 
JOSTS. 
 
 129 
 
 XV. COSTS. 
 
 Rule as to Mortgagee's Costs. — " The Court in 
 settliug the account between a mortgagoi' and mort- 
 gagee will give to the hitter all that his contract, or the 
 legal or equitable consequences of it, entitle him to re- 
 ceive, and all the costs properly incurred in ascertain- 
 ing or defending such rights, whether at law or in equity 
 ... In Detillin v. Gale (o), Lord Eldon says, that 
 he ought to be indemnified to the extent that he acts 
 reasonably as mortgagee; which must mean reasonably 
 with respect to such rights as his mortgage title gives 
 him {!)). A mortgagee does not in terms contract for 
 costs, but the rule is that all costs which he, being mort- 
 gagee, properly incurs in relation to his security, are to 
 be allowed him " (c). 
 
 Right of Mortgagee to Costs is Founded on Con- 
 tract. — The right of the mortgagee to costs is not the 
 ordinary claim of a successful litigant to be reimbursed 
 his outlay of costs, but is a claim founded on the mort- 
 gage contract, and is not to be forfeited except for mis- 
 conduct (d). 
 
 (a) 7 Vcs. 583, 585. Cf. Barnes y. Racstor, 1 Y. & C. C. C. 403; 
 Lord Middleton v. Eliot, 15 Sim. 531; Dunstan v. Patterson, 2 Ph. 
 341; V. Trocothick, 2 Yes. & B. 181. 
 
 (b) Dryden v. Frost, 3 My. & Cr. G70, 075. 
 
 (c) National Provincial Bank v. Gaines, 31 Chy. D. 592 (1880). 
 Cf. Be Griffiths, Jones & Co., 32 W. K. 350; 53 L. J. Cli. 303. soli- 
 citor and client costs. Bank of New South Wales v. O'Connor, 14 
 A.. C. 273. 
 
 (d) See Cotterell v. Stratton. Jj. R. S Ch. .302: Tnrner v. Han- 
 cock. 20 Ch. D., at p. 304 (1882): McDonnell v. McMahon. 23 L. R. 
 Tr. 2S3; Re Kninht, 20 Ch. D. 82; Charles v. .Tones. .3.3" Ch. D. SO; 
 Ho Beddoe. (1893) 1 Ch. 547; White v. City of London P.rew(>ry Co., 
 42 Ch. D. 237 (1889), proviso limiting sums to be recovered on mort- 
 gage does not affect costs and expenses. 
 
 H.r.M. — 9 
 
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 130 
 
 FORECLOSURE OF MOllTGAGES. 
 
 An assignee of the mortgage stands as regards 
 costs in the place of the mortgagee (e). 
 
 Right of Mortgagee as Against Puisne Incum- 
 brancers.— The mortgagee is entitled as against a 
 second morigagee to have the costs of suit added to the 
 mortgage debt and charged upon the estate, but not to 
 an order that the second mortgagee shall pay the costs 
 of the suit (/■). A second mortgagee may, however, be 
 ordered to pay so much of the costs of suit as have been 
 occasioned by his disputing the plaintiff's right to sue (g). 
 
 The Court will not compel a mortgagee who holds 
 several mortgages from the same party on the same land 
 to proceed only in one action for the foreclosure of one 
 of the mortgages, as the decree for redemption and re- 
 conveyance is at the mortgagee's risk; but his bringing 
 more than one action may influence the discretion of 
 ilie Court as to costs (//). 
 
 A special order will not be granted, directing the 
 Master to enquire as to the necessity of bringing two 
 suits of foreclosure respecting two mortgages between 
 the same parties, as the Master ha., jurisdiction to make 
 such enquiry, and disallow the whole bill without any 
 special direction, under the common order to tax (i). 
 
 Higher or Lower Scale. — Where a bill is filed to 
 foreclose in respect of a demand uot exceeding £50, the 
 
 (e) See Clare v. Wooil. 4 Hare 81 (1844), case judgment creditor. 
 See Stnrgess v. Pitner. 11 U. C. C. P. 102, right of assignee of 
 mortgage to collect costs from mortgagee; Masson v. Roblin, 2 O. 
 S. 41, right of mortgagor against assignor of mortgage. 
 
 if) Frazer v. Jones, 5 Ha. 483 (1840. Cf. Philips v. Davis. 7 
 Jur. 52; Langton v. liangton. 18 .Tur. 1092; 1 .Tnr. N. S. 1078; Pol- 
 lock V. Liinds Improvement Company, 37 Ch. D. GG8 (1888). 
 
 (ff) As in Tildesley v. Lodge, 3 Jnr. N. S. 1000 (1857). Cf. Wise 
 V. Wise, 2 Jo. & Lat. 403. For priority of costs where second mort- 
 gagee brings prior suit and Itoth suits consolidated: see Allan v. 
 McDougall, U. C. L. J. 64. 
 
 (h) Noble V. Line, 5 L. T. 1G3, Chy, Ch., Esten. 
 
 (i) In re Atkinson and Pegley, solicitors, 1 Chy. Ch. 193, Van- 
 koughnet, C. 
 
COSTS. 
 
 131 
 
 plaintiff will be entitled to his full costs if it appear that 
 there is any incumbrance beyond that sum (;). 
 
 Mortgagees Have Been Held Entitled to: 
 
 The costs of preparing a legal mortgage, where there 
 was a mortgage by deposit and agreement to execute 
 legal mortgage (Ji-). 
 
 The costs of a correspondence with the mortgagor 
 on the subject of a legal mortgage that he had agreed 
 to execute (/). 
 
 The costs of correspondence with a surety who had 
 given a promissory note for part of the debt {m). 
 
 The costs of an action for the recovery of the mort- 
 gage debt (n). It has been held that a mortgagee may 
 bring foreclosure the day after default, and though such 
 a course may be extremely sharp, he is entitled to his 
 costs (o). 
 
 The costs of a successful appeal (/)). 
 
 Costs incurred for the bona fide purpose of preserv- 
 ing the mortgaged premises from clef«truction or dilapida- 
 tion iq). 
 
 Costs of Joint Mortgagee. — Where a mortgagee 
 joined his fellow-mortgagee as a defendant, he was held 
 entitled to charge the costs of both mortgagees (/•). 
 
 Costs of Consolidated Mortgages. — Where mort- 
 gages can be consolidated, .he costs of proceedings to 
 
 0"> Hymnn v. Roots. 11 Gr. 202. But soe ConuoU v. Currnn, 
 1 Chy. Ch. 11. 
 
 (k) National Provincial Bank v. Caines, 31 Chy. D. .')82 (1880), 
 
 (0 National Provincial Bank v. Gaines, 31 Chy. D. 582 (1880). 
 
 (m) National Provincial Bank v. Gaines, 31 Chy. D. .^82 (1880). 
 
 (//) National Provincial Bank v. Gaines, 31 Chv. D. 582, (1880). 
 not allowed in this case bocanso of the peculiar order for taxation. 
 
 (o) Bennett v. Fornian, K^ Gr. 117. 
 
 (/)) Adflison v. Cox, L. R. 8 Ch. 70 (1S72). But see Brownloe 
 V. Cunningham, 13 Gr. 580, M'here appeal only partially successfiil. 
 
 (q) Dallas v. Gow, 1 Chy. Ch. 05, SpraRge. Cf. Weir v. Taylor, 
 1 Chy. Ch. 371. 
 
 (r) Daveliport v. James, 7 Ha. 249 (1847). But see Ontario 
 V. Wiernaker, 13 Gr. 443. 
 
132 
 
 FOllECLOSUUE OF MOUTOAOES. 
 
 11 
 
 foreclose both op all ecnrities may be charged on each. 
 But where the mortgages cannot be consolidated (he 
 costs of an action to foreclose them must be apportioned 
 ratably between the estates (s). 
 
 The costs of an action against a person who had 
 joined the mortgagor as surety in a bond for the mort- 
 gage money, although the fruit of the action was lost 
 by the insolvency of the surety (/). 
 
 The Costs or IIis Own Trustee. — Where a trustee 
 for a mortgagee is made defendant to a foreclosure suit 
 the plaintiff pays his costs and adds them to his own («). 
 
 A first mortgagee is entitled, as against the holder 
 of the equity, to add to his debt his costs necessarily 
 incurred in a suit to redeem, which was brought by a 
 second mortgagee and dismissed (r). Nor will he be de- 
 prived of his costs of a subsequent foreclosure (or re- 
 demption action), as aojainst the mortgagor himself, for 
 not having taken the procedure under Rule 302 {v). 
 
 Where a mortgagee has been put to expenses de- 
 fending the title to the estate (not merely his title to 
 the mortgage), the defence being for the benefit of all 
 parties interested, he is entitled to charge such expenses 
 on the estate (w). 
 
 The costs of an abortive sale, provided the mort- 
 gagee in conducting it has not been guilty of negli- 
 gence (.t). 
 
 (s) Do Caux V. Skipper, 31 Cli. D. OS") (188(]), ovorniliiiK C'liip- 
 ham V. Audnnvs, 27 Ch. D. 079. Johnstono v. Cox, 1J> Cli. D. 17; 
 Batcholor v. Middloton, Ila. 8G; lie Lovo, 29 Ch. I). 348. 
 
 (/) Ellison V. Wright, 3 Russ. 458 (1827), foUowoil in National 
 Provini'ial Bank v. Gainos, 31 Chy. D. 582, in preference to Lewis 
 V. John, 9 Sim. 300 (ISI'mS), mortgagee not entitU'd as against devisees 
 to action for mortgage money against executrix; and Merriman v. 
 Bonner, 10 .Tnr. N. S. 534 (1804) 12 W. R. 401. 
 
 (h) Browne v. Loekhart, 10 Sim. 420 (1840). 
 
 (r) McKinnon v. Anderson, 17 Gr. 030; 18 Gr. 084 (1871). 
 
 (ic) Parker y. Watkins, 1 John, 133 (1859). 
 
 (x) Farror v. Lacy, 31 Chy. D. 42 (1885). 1 
 
 Ki 
 
COSTS. 
 
 133 
 
 Mortgagees Have Heen Held Not Entitled to : 
 
 Costs of Unnecessary Search of Title. — The 
 costs of investigating the title will not be allowed where 
 by the contract the mortgagor only agreed to mortgage 
 his estate and interest. In which case it was unneces- 
 sary to look into the title any further than to see in what 
 form the mortgages ought to be drawn (/y). 
 
 Unnecessary conveyancing costs, as by executing 
 several powers of attorney {z). 
 
 Loss of deed or vouchers may disentitle a mortga- 
 gee to costs or to some portion thereof (,»; 
 
 Costs of disputing right to redeem may be disal- 
 lowed (&). 
 
 Costs of Litigation Not Concerning the Other 
 Parties. — A mortgagee cannot charge on the estate ex- 
 penses he has been put to, not in defending the title to 
 the estate, but in defending only his title to the mort- 
 gage, unless the litigation was with the consent of the 
 parties interested in the equity (c). 
 
 Unsuccessful Litigation Not Authorized. — The 
 costs of unsuccessful litigation undertaken without the 
 approval of the mortgagor will not be allowed, as where 
 the mortgagees made a distress upon goods seized by 
 the sheriff, and in the litigation that ensued were 
 mulcted in costs (^0- 
 
 (y) Nnxional Trovincinl Bank v. Gaines, 31 Chy. D. 582 (188G). 
 
 (z) Soe Goodhue v. Carter, 1 Chy. Ch. 13, Blake, V.C. 
 
 («! McDonald v. Hinie, 15 Gr. 72; cf. Price v. I'rlce, 15 L. J. 
 Ch. 13. 
 
 1^) Kirkhnm v. Smith, 1 Ves. 257; Teulon v. Curtis, Vounjr.,', 010, 
 Cf. Sturjross v. Pitner, 11 U. C. C. P. 102, charging mortgagor with 
 money not advanced; rights as between assignor and Mfsssijuee of 
 Uiortgf.ge. 
 
 {<•) I'lijker V. Watkins, 1 John, 133 (1850). 
 
 id) ^^'ells V. Trust & Loan Co., 9 O. II, 176 (l8Si), Boyd, C, 
 citing Peers v. Ceely, 15 Beav. 209 (1852); Cocks v. Gray, 1 Giff. 
 77; P.vike v. O'Connor, 4 Ir. Ch. R. 418, But hoe Addison v. Cox, 
 8 Ch, App. 76, where mortgagee successful on appeal. 
 
 r r 
 
 t * . 
 
 ,J 
 
 Jl 
 1 j: 
 
 I ill I 
 
 h ii\ n ■ 
 
^ 
 
 184 
 
 FOUECLOSUUE OF MOUTOAOES. 
 
 Or where the mortgagee brought an action for spo- 
 ciflc performance against a purchaser, which was dis- 
 missed with costs (e). 
 
 Mortgagee May Be Disallowed Costs of Refer- 
 ence. — Where a plaintiff in suits for foreclosure or sale 
 aslis for a reference to the Master to enquire as to other 
 incumbrances, he takes such reference at the peril of 
 costs, if there are in reality no other incumbrances (f). 
 
 Costs of Foreclosure Suit After Tender. — As a 
 general rule in foreclosure suits the mortgagee adds 
 costs to his security; but where the mortgagor has 
 tendered the amount of the mortgage money and in- 
 terest prior to the commencement of the action, then the 
 mortgagee coming to foreclosure must pay the costs of 
 the suit ig). 
 
 Commission. — A commission on a sale, over and 
 above the expenses of the sale, will not be allowed a 
 mortgagee; he cannot stipulate for an advantage not 
 strictly belonging to the contract of mortgage {h). 
 
 Mortgagees Have Been Ordered to Pay Costs. — 
 " As regards the costs, it takes a strong case to deprive 
 a mortgagee of costs, but if he misbehaves himself ()) 
 he may be refused costs, or even ordered to pay them (y). 
 
 (e) Peers v. Ceeley, 15 Beav. 209 (1852). 
 
 if) Hamilton v. Howard; Burnside v. Lund, 4 Or. 581, 
 
 («/) Broad v. Selfe, 9 Jur. N. S. 885 (1803); Cornwall v. Brown, 
 3 Gr. 033; McLean v. Cross, 3 Chy. Ch. 432; see Bank of New 
 South Wales v. O'Connor, 14 A. C. 273 (1889); Greenwood v. Sut- 
 cliffe, 1892, 1 Ch. 1; also R. S. O. 1897, c. 121, s. 31. 
 
 (70 Broad v. Selfe, 9 Jur. N. S. 885 (1803). See further under 
 heading Rent. 
 
 (I) As to acts not amounting to misbehaviour, see Loftus v. 
 Swift. 2 Sch. & Lef. (>57; Alexander v. Simms, 20 Beav. 123: Re 
 Walls, 22 Ch. D. 5; Norton v. Cooper, 5 De G. M. & G. 728; Wilson 
 V. Metcalfe, 3 Mad. 45. 
 
 (}) Cotton, L..T., in Hall v. Heward. 32 Ch. D. 43G (1880). 
 Cf. Taylor v. Baker. Dan. 82; Cliff v. Wadswoith, 2 Y. & C. C. C. 
 598; Johnson v. Williamshurst, 1 L. J. Ch. 112. 
 
COSTS. 
 
 135 
 
 A mortpaRce may be ordered to pay the coHts of 
 improperly reHiHting a claim to redeem (A-); as by Betting 
 up a collusively obtained foreclosure (/). In audi cawes 
 the mortj?agee will be decreed to pay so much of Uie 
 costs as was occasioned by his resistance {m). 
 
 A mortgajfee having omitted to give credit on the 
 deed, or in his books, for payment to him by the mort- 
 gagor, his executors, after his decease, claimed a large 
 sum to he due on the foot of the mortgage. The mort- 
 gagor tendered a certain amount, saying that he was 
 willing to pay any additional sum that might appear dee 
 after giving him credit for the alleged payments. A 
 bill was afterwards tiled to foreclose, and on taking the 
 account a sum of between i'2 and £3, over and above the 
 amount tendered, was found due. The Court ordered 
 the plaintitf to pay costs («). 
 
 A mortgagee making unfounded charges of fraud (o) 
 or claims that he cannot establish (/>), may have costs 
 given against him. 
 
 Where there is a balance found against a mortga- 
 gee, and he refused to account, ho may be ordered to 
 pay costs (</). 
 
 Where a mortgagee files a bill to foreclose, and a 
 question arises at the hearing whether he has not re- 
 ceived sulticient to pay otf the incumbrance before the 
 commencement of the suit, the costs will be reserved (r). 
 
 (A) Soe Hfiulorson v. Astwood, 1894, A. C. 1G2; Sqiiiro v. Tar- 
 dof, U(i L. T. 243; Hall v. Heward, 32 Ch. D. 430 (188(i). Cf. 
 Mocatta v. Miirj,'atroya, 1 P. Wins. 3l>3, mortgagee not allowed 
 to oiu-rate his security ^vith costs of unjust defence; Baker v. Wind, 
 1 Ves. 100; Credland v. I'otter, L. K. 10 Ch. 8. 
 
 (0 Harvey v. Tebbutt, 1 Jac. & Wal. 11>7 (1870). 
 
 (i/i) lb. Cf. Price v. Berrington, 7 Ha. 304; Harryman v. Col- 
 lins, 18 Beav. 11. But see Roberts v. Williams, 4 Hare 129; National 
 Bank of Australasia v. United Hand-in Hand Co., 4 App. Cas. 391. 
 
 (h) Cornwall v. Brown, 3 Gr. (333. 
 
 (o) See Cockell v. Taylor, 15 Beav, 127 (1852). 
 
 (p) Montgomery v. Calland. 14 Sim. 81 (1844). 
 
 (q) Tanner v. Heard, 23 Beav. 555 (1857). Cf. Sandon v. 
 Hooper, (> Beav. 24(;; Powell v. Trotter, 1 Dr. & Sm. 388; Hin- 
 nington v. Harwood, T. & 11. 477; Morris v. Islip, 23 Beav. 244; see 
 Snapg V. Frizell, 3 Jo. & Lat. 383. 
 
 (r) Gooderham v. DeGrassi, 2 Gr. 135. 
 
 (■'ill 
 
 , i 
 
 ;i. 
 
 i -' 
 
 ■I' 
 -\ . 
 
 il 
 
 ■[■ 
 
 1: . 
 
136 
 
 FOUECLOSUllE OF MOUTOAGKS. 
 
 
 Costs of Amending Judgment. — See Moffat v. 
 March (s). 
 
 Profit Costs to Solicitor -Mortgagee. — A solici- 
 tor-mortgagee is entitled to costs out of pocket, but not 
 to profit costs {t). And where there are two mortgagees, 
 one being a solicitor who acts for both mortgagees, the 
 same rule applies, both as to litigious business and busi- 
 ness done out of Court (n). 
 
 A solicitor cannot even charge his client with profit 
 costs for the preparation of a mortgage from the client 
 to himself {v). 
 
 Partner of Solicitor-Mortgagee. — The rule does 
 not prevent the partner of a solicitor-mortgagee from 
 receiving remuneration. Either there must be an agree- 
 ment that the partner will take the whole costs (m), in 
 which case full costs will be allowed, or in the absence 
 of such an agreement, the share that would fall to the 
 solicitor-mortgagee must be deducted from the bill (.i). 
 
 Foreign Mortgagee Has to Give Security. — 
 Where a defendant had, by answering, waived his right 
 to security for costs, and the plaintiff assigned his in- 
 terest in the mortgage, the subject of the suit, to a party 
 resident out of the jurisdiction, — Held, that the defen- 
 dant was entitled to security for costs against the new 
 plaintiff. The fact that the suit was a foreclosure suit, 
 was held not to disentitle the defendant to the order for 
 security against the plaintiff, although a mortgagor, he 
 disputing that anything was due, and the Master being 
 directed to inquire "what, if anything, was due "(?/). 
 (s) 3 Gr. 1G3 (l8r>*'V 
 
 (t) Selat«^r v. Cottam, 3 Jur. N. S. 030 (1853); Re Wallis 25 Q. B. 
 D. 17f5. 
 
 (hi Re Doody. (1803) 1 Chy. 129; following Sdator v. Oottam, and 
 Re Wallis, supra, and overrulinp In ro Donaldson, 27 Chy. D. 544, 
 and Cradock v. Piper, 1 ^' ac. & G. 044. 
 
 {v) In re Roberts, 43 Chy. D. ,^)2 (1889). 
 
 (if) In re Doody, (1893) 1 Chy. 129. Clack v. Carlon, 7 Jur. N. S. 
 441. 
 
 (a-) In re Doody, (1893) 1 Chy. 129. per StirliuK, J., not appealed 
 from, hut see ib., at p. 134, et seq.; cf. Christophers v. White, 10 
 Bcav. 524 (1847). 
 
 (i/) Thompson v. Callagan, 3 Ch. Ch. 15. • 
 
-» 
 
 
 
 
 
 ■p 
 
 
 
 1 
 
 
 
 PART II. 
 
 THE 
 
 RULES OF PRACTICE RELATING TO FORECLOSURE 
 
 ^ITH OASES AND ANNOTATIONS. 
 
 ill 
 

 %•■ 
 
 ■f' 
 
 
 i ■ 
 
 
 
 
 
 >• 
 
 
 
 1 
 
 
 
RULES OF PRACTICE RELATING TO 
 FORECLOSURE. 
 
 141. A claim for the foreclosure of a mortgage, or for the 
 sale or redemption of mortgaged property, or for immediate 
 delivery of possession, or for immediate payment, shall be in- 
 dorsed in accordance with the forms in the Appendix, Part II., 
 sec 6, applicable thereto. Con. Rule 248. Rules of 1st Jan., 
 1896, 1438. 
 
 This is in substitution for tlie following: 
 
 [248. Where the claim is for the foreclosure of a mortgaj^e or 
 the sale of mortgaged property, and the plaintiff desires an order 
 against a defendant for the immediate delivery of possession, 
 or for immediate payment, the writ must, in addition to the 
 ordinary notice, be indorsed with a further notice to the effect 
 of such of the forms in the Appendix hereto, Part I., sec. vi., 
 as are applicable to the case. J. A. Rule 17. J 
 
 [1438. Rule 248 is amended by adding the following clause: — 
 
 («) Where the claim is for the foreclosure of a mortgage or for 
 
 the sale or redemption of mortgaged property, the claim is to be 
 
 indorsed in accordance with the forms in the Appendix, Part II., 
 
 sec. 6, applicable thereto.] 
 
 The indorsement should contain a description of the 
 mortgujred lands (n). 
 
 Dr.sTiN'CTioN Between' Writ and Counter-claim. — 
 *' I am of opinion that the order foi' immediate payment 
 and immediate possession may be inserted in the judg- 
 ment, although not asked for in the counter-claim. The 
 case of a counter-claim is ditlereut from that of an 
 original writ " (?>). 
 
 Oi) See Rules, Form !> (d) and (o); Rules of 1st .Tfui.. ISiUi. Xo. 
 l."0!! iiuil ir>()7; Canada Lande^l Credit Co. v. Callii^lian, Ko.vd, ('.. 
 2t{ Oet., 18S1 (Ilolniested & Lanj;t.m. at p. 2Sii). 
 
 (',i) Ferguson, J., in Klein v. Union Fire Ins. Co., .'{ (). R., at p. 
 
 200 aS!83). 
 
w 
 
 140 
 
 FORECLOSURE OF MORTGAGES. 
 
 i': 
 
 176. (1) A defendant appearing to a writ in actions other 
 than upon a mortgage or for the recovery of land, may in his 
 appearance, or by notice served within four days thereafter, 
 state that he disputes only the amount claimed; and he need not 
 file any further defence; and the plaintiff may proceed to take 
 an account of the amount due to him before the officer with 
 whom the judgment is to be entered on four clear days' notice, 
 and judgment may be signed for the whole amount due as in 
 default of a defence. Rules of 1st Jan., 1896, 1443. 
 
 " In Actions Other Than Upon a Mortgage." — 
 The rule prior to this amendment jjave some little trou- 
 ble in mortgage actions. Thus where the defendant 
 entered an appearance under O. J. A. Rule G8 (Con. Rule 
 299), limiting his defence to one item in the particulars 
 indorsed on the writ, it was held that a statement of 
 claim was unnecessary, and a judgment signed upon it 
 for default of statement of defence was set aside with 
 
 costs {('). 
 
 189. A surety for the payment of a mortgage debt, may be 
 made a party *c an action for the sale of the mortgaged pro- 
 perty. Con. Rule 304. Chy. O. 427. 
 
 Change of Wording. — " A surety for the payment 
 of a mortgage debt," for ** Where any person is surety 
 for the payment of a mortgage debt, s)ich person." 
 
 Surety, Tlaintiff's Rights Against. — The mort- 
 gagee cannot have a personal judgment against an as- 
 signee of the equity who has assumed the mortgage, 
 unless the assignee is in privity with the mortgagee (</). 
 
 A mortgagee who has transferred the mortgage and 
 covenanted that if default were made in payment of the 
 mortgage money, is not a surety within the meaning of 
 the rule (r). 
 
 Slketv, Rights as Against Plaintiff. — Where the 
 surety is by the terms of his agreement only liable for a 
 
 U-) Peol V. White. 11 r. R. 177 (lSSr>). 
 
 («/) riarkson v. Scott. 2't Gr. 373 (1878), and other cases cited 
 under Rules 378 nn.l 3SG. 
 
 (r) Clarke v. Best, 8 Gr. 7 (18G0). 
 
RULES OF PRACTICE. 
 
 141 
 
 i 
 
 deficiency on the sale of the property, he is entitled to 
 have the proi)erty realized before he can be proceeded 
 against (/). 
 
 SuRETv, Rights as Against Prixcipal Debtor. — 
 In Campbell v. Kobinson (</) the mortjijafior was held 
 entitled as against his co-defendants (purchasers of the 
 equity assuming the mortgage) to an order for them 
 to pay such sum as might be found due the plaintiff 
 under his securities and to pay the mortgagor's costs. 
 
 It was held in Seidler v. Sheppard (//), that where a 
 mortgage is given by a surety on his own property, the 
 principal is a necessary party to a suit for the fore- 
 closure of the mortgage. 
 
 190. (1) Whore one or more of the persons interested in tlie 
 equity of redemption are already defendants, and it is made to ap- 
 pear to the Court or a Judge, either upon motion for that purpose 
 or at the trial or other disposition of the action, that by reason of 
 their number or otherwise, it is expedient 1o permit the .action 
 !o proceed without the presence of the other persons interested 
 in the equity of redemption, the Court or Judge may make 
 directions accordingly, and may order such other persons to be 
 made parties in the Master's Office after judgment. 
 
 (2) Where after judgment it appears that persons are in- 
 terested in the equity of redemption besides those who are 
 already parties, the Court or Judge may order such persons or 
 any of them to be made parties in the Master's Office upon such 
 terms as mr.y seem just. See Con. Rule 306. 
 
 This is in substitution for the following; — 
 
 [.SOU. Where it appears conducive to the ends of justice that 
 parties interested in the equity of redemption should be allowed 
 to be made parties in the Master's Office, by" reason of the 
 parties so interested being numerous 'or otherwise, the Court 
 may direct that parties so interested be made parties in the 
 Master's Office, upon sueh terms as to the Court or a Judge seems 
 
 .I'^'^i 
 
 i , 
 
 if) Teeter v. St. Jn!iii. 10 Cr. S.') (imn). 
 
 (II) 27 Gt: u;U (ISSO), followed in Cliamlierlain v. Sovais, 28 Gr. 
 
 404 nssi). 
 
 ill) 12 Gr. 45G (ISGG). 
 
 . : I 
 
 ;1 
 
mr 
 
 U2 
 
 FOKECLOSL^UE OF MOU'J'GAGE.S. 
 
 fit; such order to be made only where one or more parties In- 
 terested in the equity of redemption are already before the Court. 
 Chy. O. 438.J 
 
 General Rule as to Holders of Equity. — ** Tho 
 gt'iicral rule appears to be that when after niortgage,s 
 being given the equity of redemption is severed, so that 
 different persons are entitled to red i^m iu respect of 
 different parcels, these different persons must be made 
 parties '' (/). The Court thought all necessary parties 
 should be brought before the Court at the hearing, and 
 was " opposed to the introduction of any practice of add- 
 ing such parties for the first time in the Master's office, 
 merely to remedy defects arising from the carelessness 
 and negligence of the plaintiffs in the suit"(/). The 
 Courts still require that the plaintiff shall exercise due 
 dili^^ence iu framing his proceedings: *' If parties will 
 not take the trouble (more or less according to circum- 
 stances) to bring the proper parties before the Court, 
 they have only themselves to blame; but they have no 
 right to east that labour upon the Court; and turn it 
 into a Court of inquiry for thc'ir conver.ience " (k). 
 
 Tlie following are some of the classes of persons 
 added under the rule: — 
 
 Purchasers of a Portion of the Mortgaged 
 Estate, — Added in Humble v. ^Moore (/). 
 
 Widow Entitled to Dower. — See Faulds v. Har- 
 per, infra. 
 
 Mother of Intestate.— In Faulds v. Harper (w) 
 the mother of a child of the mortgagor, which child 
 had died intestate, was directed to be added in the 
 Master's office. 
 
 Mortgagor t!y Deposit of Mortgage.— Where P., 
 being a debtor of the plaintiff, deposited with him cer- 
 
 (/) Burldey v. Wilson, 8 (Jr. DC.C. (1S(]1). 
 U) Paterson v. Holland, 8 Gr. 238 (1800). 
 (A-) Portnian v. Paul, 10 dr. 4.">8 (18(>4). 
 U) 1 riiv, Ch. m. 
 
 R. 40;> (1882); 9 A. R. 537; 11 S. C. R. 639. 
 
UULES OF PRACTICE. 
 
 143 
 
 tain mortgages to secure the indebtedness, and the plain- 
 tilf took foreclosuiv proceedings on the mortgages, an 
 objection taken at the hearing that P. was a necessary 
 party was met by a reference to tlie present rule(//). 
 
 The Court will not always add a party under this 
 rule, e.g.: — 
 
 Devisees by Will. — The Court refused to add under 
 this rule the devisees where the plaintiff had sued the 
 heir-at-law, and subsequently learned of the existence 
 of the will (o). 
 
 "Either T'pon Motion," Etc.; Form of Applica- 
 tion. — In Rumble v. Moore (/>) the Chancellor thought a 
 motion to amend (q) would be tlie proper course, but 
 granted an order upon petition. The present rule is 
 liberal in its tenns. 
 
 Notice of Application to Add. — An order to make 
 persons interested in the equity of redemption parties 
 to the suit in the Master's office will not be granted ex 
 parte; notice should be served on the owners of the 
 equity of redemption already before the Court, but not 
 on those proposed to be added (/). 
 
 '' In the Master's Office." — The application under 
 chuise (2) must be made while the suit is in the Master's 
 office, i.e., before final order (.s). 
 
 For appeal from order under this rule, see Rule 747 
 and cases thereunder. 
 
 QiESTioNs Between Co-defendants. — The Court 
 is aver.xe to determining questions between co-defend- 
 ants in which the plaintiff has no interest (/)• In 
 
 (H) .Tones v. Bank of X. C, 12 Or. 429 (ISCGk 
 
 (0) Portman v. rnul, 10 Gr. 4."8 (1864). 
 
 0>) 1 Thy. Ch. 59. 
 
 ((/) Cf. Harrison t. Crier. 2 Cliy. Ch. 440 (1800^. 
 
 (/•) Penner v. Canniff, 1 Chy. Cli. .3.'I. M.nvat, V.-C. Rut in 
 Cummins v. Harrison, 1 Chy. Ch. .'?C(9, Sprajij-'o, V.-C, pranted an 
 order ex parte. 
 
 (s) Street v. Dolan. ^ Chy. Ch. 227 (1871). Cf. Munieipality of 
 Orford v. Bayley. 1 Chy. Ch. 272. Not necessarily ho fore judg- 
 ment; see terms of rule. 
 
 (0 Robinson v. Dohson. 11 Gr. .*^57 (ISO.'*). 
 
 41] 
 

 144 
 
 FORECLOSUBE OF MORTOAOES. 
 
 Riimsey v. Thompson (h), as between rival claimants to 
 the equity, the Ooiirt tooli the one prima facie entitled 
 to redeem, with liberty to the other to establish his light 
 to redeem, and ordered that the report of the Master 
 iihould not be delayed pending the inquiry. But in Cay- 
 ley V. Hodgson (r) it was thought that the decree in such 
 cases should refer it to the Master to inquire who is 
 "Utitled to the ecpiity of redemption before fixing the 
 day for payment. 
 
 193. Trustees, executors and administrators, may sue and ba 
 sued on behalf of, or as representing the property or estate of 
 which they are trustees or representatives, withoirt joining any of 
 the persons beneficially interested, and shall represent them; but 
 the Court or a Judge may, at any time, order any of them to be 
 made parties in addition to, or in lieu of, the previous parties. 
 Con. Rule 309. J. A. Rule 95. 
 
 Changes in Wording. — '* Persons beneficially in- 
 terested " for '' parties beneficially interested in the 
 trust or estate " ; " shall represent them ■' for '* shall be 
 considered as representing such parties in the action "j 
 "any time" Cor "any stage of the proceedings"; "any 
 of them" for "any of such parties"; "made parties in 
 addition " for " made i>arties to the action either in ad- 
 dition"; "previous parties" for "previously existing 
 parties thereto." 
 
 See cases under chapter " Parties Defendant," sub- 
 title " Trustees and Cestuis Que Trustent." 
 
 Inquiry as to the Infant Cestuis Que Trustent. 
 —In Dickson v. Draper, where there were infant benefi- 
 ciaries. Mowat, A'.-C, said: "I thinlc the decree in the 
 present case should contain the usual reference to the 
 Master to inquire whether a foreclosure or sale will be 
 more for the benefit of the infants; and should author- 
 i7,e the Master to make the infants parties, if, under the 
 
 • % 
 
 ((0 S Gr. 372 (18G0). 
 
 (r) 13 Gr. 433 (1807). For practice in ploadinR asaiust ro-de- 
 feudaut. SCO Furness v. Booth. 4 Chy. D., 580; Steel v. Dkkson^. 
 4-2 L. T. N. S. 7G5. 
 
m 
 
 RULES OF I'UACTICE. 
 
 145 
 
 circumstances that may be (shown to him, he sees tit to 
 do so '' {If). 
 
 194. Where, in an action or othor proceeding, it appears that 
 a deci'used person who was interested in ihe matters in question 
 has no personiil representative, the Court or a Judge may either 
 proceed in the absence of any person representing his estate, or 
 may appoint some person to represent tlie estate for all the pur- 
 poses of the action or other proceeding, on such notice as may 
 seem proper, notwithstanding that the estate in (pn'stion may 
 have a substantial interest in the matters, or that there may be 
 active duties to be performed by the person so appointed, or 
 that he may represent interests adverse to the plaintiff, or that 
 there may be embraced in the matter an administration of the 
 estate whereof ri'presentation is sought; and the order so made 
 and any orders consequent thereon, shall bind the estate of such 
 deceased person in the same manner as if a duly appointed per- 
 sonal representative of such person had been ii party to the 
 action or proceeding, and had appeared therein. Con. Rule 310. 
 R. S. O., 1877, c. 49, s. 9. 
 
 Changes j\ Wording. — " It aijpcai's "' for "it is 
 made to appear'*; '* personiil representative" for ''legal 
 personal representative"; "his estate" for " the estate 
 of the deceased person " ; " on such notice as may seem 
 proper" for "on such notice to such person or persons, 
 if any. as the Coui't thinks lit, either six'cially or by pub- 
 lic advertisement," and "in tlie same manner as if a duly 
 appointed personal I'epresentative had been a party" 
 for " in the same manner in every respect as if there had 
 been a dul}'^ api)ointed legal personal representative of 
 such person, and such legal personal re])resentative had 
 been a party"; " a^^d had ai)i)ear('d ther<'in " for "and 
 had duly appeared and had submitted his rights and 
 interests to the protection of the Court," 
 
 195. (1) Where probate of the will of a deceased person, or 
 letters of administration to his estate, have not been granted, 
 and representation of such estate is required in any action or 
 proceeding in the High Court, the Court may appoint some 
 person administrator ad litem. See Con. Rule 311. Rules of 1st 
 Jan., 1896, 1444. 
 
 (h) 11 Or. ,'?<'.2 (18G5). 
 
 H.F.M. — 10 
 
 !|l 
 
 ;[ 
 
 ' M ' I 
 
146 
 
 FOllECUJ.SUUE OF MOUTOAOEH. 
 
 This is in substitution for the following: — 
 
 [311. Where no probate of the will of a deceased person, op 
 letters of ndrainistratiun to his estate, have been granted by a 
 Surrogate Court, and represeuLation of such estate is required in 
 any action or proceeding in the High Court, the Court may 
 appoint some person administrator or administrator ad litem 
 (according as the case may require) to the estate; and the person 
 so appointed shall give the security required from, and have the 
 rights, authority, and responsibility of, an administrator or ad- 
 ministrator pendente lite (as the case may be), appointed by the 
 Surrogate Court, but the Court may dispense with such security. 
 
 (o) Where a general administrator is appointed under this 
 Rule, the same fees shall be payable in stamps as would be 
 payable to the Crown, or to the Judge of the Surrogate Court, 
 under any Act then in force, upon the grant of administration of 
 an estate of the same value made by the Surrogate Court. 
 
 (h) Where administration is granted by the High Court under 
 this Rule the [Registrar(l)] shall forthwith transmit by ma'l to 
 the Surrogate Clerk, a certified copy of the grant; and in case the 
 grant is with will annexed, he shall, at the same time, also 
 transmit to the said clerk a certified copy of the will; and the 
 Surrogate Clerk shall make similar entries in respect of the 
 documents so transmitted as he makes in respect of particulars 
 furnished to him under section 14 of the Revised Statute respect- 
 ing the Surrogate Courts. 48 V. c. 13, a. 11.] 
 
 Scope of Rule. — ** I do not think that by Rule 311 it 
 is intended that the business of the Surrogate Court 
 should in a large measure be transferred to or done in 
 this Court. I think the intention was to -provide for 
 necessities arising in the progress of an action, that is to 
 say, where representation of an estate is required in tlie 
 action, and there has not been carelessness or negligence 
 on the part of the party who may require the appoint- 
 ment made under the provisions of the rule; and I do 
 not think the provisions of the rule can properly be ap- 
 plied to a case in which the party seeking to avail him- 
 self of them was aware from an early period that he 
 
 (1) " The Clerk of the Crown and Pleas " for Registrar. Rnlo 
 
 1444. 
 
RULES OF PllACTICE. 
 
 147 
 
 would require suoh roprosentation, aud simply chose 
 not to talie the trouble or undergo the little expense of 
 obtaining it in the ordinary way in the proper Court in 
 that behalf " (.7). 
 
 Cases Where Administrator An Litem Appoint- 
 ed. — In Cameron v. rhillips(//) the testator (the mort- 
 pioor) left no personal estate at all nor any lands ex- 
 cept the equity of redemption sought to be foreclosed, 
 which equity was of no value, so that the executor 
 named did not take probate of the will. T'nder the cir- 
 cumstances the Court api)ointed the executor (with 
 his consent) administrator ad litem, dispensing with 
 securit}'. 
 
 In Re Chambliss and Canada Life Assurance Co. (2) 
 the application was made before the action was brought. 
 It was granted. 
 
 For form of order see Cameron v. riiillips (a), Re 
 Chambliss (?>). 
 
 A "local judge" has no jurisdiction to appoint an 
 administrator under this rule (c). 
 
 263. Where any party makes default In delivering a state- 
 ment of defence, or subsequent pleading (Including pleadings in 
 counterclaims), within the time limited therefor, in cases where 
 interlocutory or final judgment cannot be signed, the opposite 
 party may, at any time before the pleading is filed, upon proof of 
 the default, by praecipe to the officer with whom the pleadings 
 are filed, require him to note that the pleadings in the action 
 are closed as to the party in default; and thereupon the officer 
 shall enter such note in the pleadings book accordingly, and 
 
 (.r) ^loir V. Wilson, 13 V. R. 33 (18Sf»), followed in Ford v. 
 Liinde.l Ranking and Loan Co., 13 P. R. 210. 
 
 (//) 13 P. R. 78 (188!t). Cf. Miulnron v. Riv(>tt, 7 C. L. T. 202. 
 Poat V. Gott. not followed in Aylward v. Lewis (1891), 2 Ch. 81: 
 W. X. 188.->. 4(!. 
 
 (^) 12 P. R. 049 (1888), distinRuishod in Meir v. Wilson. 13 P. 
 R. 33; Ford t. Landed Bankinj; & Loan Co.. 13 P. R. 210. 
 
 (ff) 13 P. R. at p. 142. 
 
 (h) 12 P. R. tit p. 0.")0. Of. D.nvis v. Chanter, 2 Ph. 54') (184fi) 
 Faulkner t. Daniel, 3 Ila. 199 (1843). 
 
 (r) Robinson v. Wlltse, before Ferguson, J., Oct. 19tli, 1894. 
 
 1 
 
 I 
 
 i ' i 
 
 'J 
 
 I ■ 
 i • 
 
 i \ 
 
 ill 
 
fin 
 
 FOllKCLOSl'lll'; OK M()UTOA(ii;M. 
 
 1: ''v 
 
 thi'icaftcr no pleading by llio party in dcrauU Hhall be rocelvcu 
 or tiled without the order of a Judge. Con. llule ai)3. iliiles 23rd 
 June, 1894, 1324, amended. 
 
 ('HANOI'S i.N WoUDixt;. — Tlio words " iiic'liuliii<; 
 l>l«'ji(liiiys in coiiiiloiclaiiiis " jiic new. 
 
 AnAI.OCV to Ull.K LMl:{ I.V .MoKTCACK Ac.TIOX. .NFol^t' 
 
 A'. Liiiiihif/) wjis iin iiclioii upon a iiuM(«iiij::i', llio pljiiiililV 
 clitiiniii;; foicclosmc, itosstssioii and iiaymciit. Theft? 
 wt'ic one liundird and sevciity dcfciidaiils. Of these 
 only ei<ilil appealed. The plaintill" Jipitlied io the Ite- 
 ^iHtijif of the Clianeei'y Division upon ])iiecipe to sij"ii 
 jnd^Mnenl jijiainst lliose of (lie defendants who had not 
 sippeai'ed, the jn-tion not heitij,' in such ji posilion that 
 jiidj-iiient eonld be sonjihl Jij^ainst those of (lie d»'feiid- 
 inits who had appeai-ed. The liep;istfaf nili'd that this 
 could not be done unless the phiinlitV abandoncMl or dis- 
 continned (he action as ajriiinst the defetidaiits who htitl 
 jippeiired. I'ef I'.oyd, ('.:'" Hy analogy to Kiile .'{0:5, I 
 difect that ihe ollicer is to note that the i)leadinf»s ai'e 
 closed as to the pai'ties who have not appeared, and tliiit 
 the cause intty be broiijj;ht on its to them without further 
 notice when judj^inent '.s sotij;ht in the action."' 
 
 The ollicer has no power to close the pleadinfjs be- 
 fore tlie end of (he day (l\ o'clock), thoiif>li the day be 
 Saturday (c). 
 
 332. In any action by a mortgagee or other person having a 
 charge on real property for foreclosure or sale, and to which 
 action any judgment creditor of the mortgagor or of the person 
 liable to the charge, is a defendant, personal service on such de- 
 fendant shall not be necessary, and it shall be sufficient to serve 
 his solicitor in the action ia which the judgment hits been re- 
 covered, with the process of the Court, whether the same bo an 
 office copy of the judgment or decretal order, or any other order 
 or notice which by order of Court may be directed, and whether 
 the same be issued by the Court or by any officer thereof. Con. 
 Rule 465. 
 
 ((/) 1.". V. ]{. !) (1802). 
 
 (r) Lloyd v. Ward, K{ P. 1{. 2.38 (1880). 
 
Ii< 
 
 KULES OF PRACTICE. 
 
 Uf) 
 
 "362. CJnless otherwlHe directed by the Court or a JikIkc, tins 
 time of the Long Vacatlun, or of the ChriatmaH Vacation, hIiuII 
 nut 1)(' reckoned In the computation of tlie tlmoa appolntcil or 
 uliowt'd by these Rules for filing, aniendlnB, or deilveriMK any 
 pleading, or in the times allowed for the following purposes: 
 
 (it) Appeals to Judge In Chambers; 
 
 CO Reports becoming absolute; 
 
 ((•) Moving to discharge an cider under Rules 398 to 402; 
 
 ((/) IMdvini,' to add to, vary, va" set aside a judgment by a 
 parly served therewith; 
 
 (r) Doing an act or taking a proceeding in appealing to the 
 Court of Appeal, or to a Divisional Court, except in County Court 
 appeals." Rules 23 June, 1894, 1.331. Rules of 1 Jan., 189(5. 14.11. 
 
 Changes in Wordixg. —"(/>) Koports " foi* "(6) Mas- 
 ter's roports." 
 
 378. A mortgagee may claim foreclosure of the equity of re- 
 demption or a sale of the mortgaged premises, and in either case 
 Ija.ment of the mortgage debt by iiny party personally liable 
 th'Tefor. New. See Con. Rule 347. 
 
 (i 
 
 This nilc is in siibstiliilion i'of Con, Hiilc .'?4T. Tho 
 last claiist' si'cius ('om-lsclv to rover three thiiifjs: 
 
 <1) Personal jn(l;;nient on the eoventint. 
 (2| An Older for the deticieney on a sale. 
 (M) A jiuljtinent jilso against a surety of the niort- 
 ga«oi'. 
 
 Coti. Knle ;U7 ajjparently only covered the latter 
 two remedies, which appear also to be covered by Kules 
 180 and .'{8({, q. v., and notes therennder, 
 
 [347. Instead of a fori'closure a mortgagee may pray 
 for a sale of the mortgaged premises, and th.a.t any balance of 
 the mortgage debt remaining due after such sale may be paid 
 by the mortgagor, or any surety for payment of the mortgage 
 debt who is a party to the action, and the same may be adjudged 
 accordingly. Chy. O. 426.] 
 
 FoRF.CLOSURE OR Sale. — In this country it is com- 
 petent to a mortgagee in every case to pray a sale in- 
 
jrrr- 
 
 l\^ 
 
 |l: 
 
 |; 
 
 
 
 ' 
 
 .'1 
 
 ■*■■■ 
 ^ - 
 
 
 k 
 
 i 
 
 ■t 
 
 1 
 
 1 
 
 
 150 
 
 FOHECLOSUUE OF MOllTGAGES. 
 
 stead of a foreclosure (/). It does not follow, however, 
 that the relief askedi will always be granted, for there 
 are some cases where foreclosure, not sale, is the appro- 
 priate remedy, and other cases where sale will be 
 ordered, but not foreclosure. 
 
 Cases where sale refused: — 
 
 I. Where Land is Out of Jurisdiction. — Where 
 the mortgaged premises lay in Manitoba, Boyd, C, said: 
 *' The mortgagor can be foreclosed because such a decree 
 acts upon tlie person, and not upon the land directly!//). 
 But any extension of this doctnne, such as putting the 
 machhiery of the Court in motion to effect a sale of land 
 in another province, would be a mischievous novelty'' ()). 
 
 II. Subsequent Incumbrancer \s Plaintiff. — '' It 
 is true that a subsequent incumbrancer, who is brought 
 into Court by a prior one, has a right to obtain a sale 
 upon iH'oper terms; but that is a very difl'erent case 
 from that of a subsequent incumbrancer nmking a prior 
 one a part^ to a suit. In the latter case we would not, 
 I think, be justified in relaxing the rule which limits his 
 right to rcdem]>tion of the earlier security " (/). 
 
 III. Equitable Mortgagee, — An equitable mort- 
 gagee by deposit is not (or was not) entitled to sale []c) 
 unless the deposit was accompanied by an agreement 
 to execute a legal mortgage (/). The sale, in such cases, 
 however, could be asked by a subsequent incumbrancer 
 or the mortgagor (nt). 
 
 (f) Meyers v. Harrison, 1 Gr. 45G (1850), the Kiiglish practice 
 and eases consideretl. 
 
 (/() ro{,'et V. Ede, L. R. 18 Eq. 118. 
 
 (i) Strange v. Radford. 15 O. R. 14*5 (1887). 
 
 (/) Campbell - McDougall, 5 A. R. 515 (1880); G S. C. R. 502 
 (1881). 
 
 (k) .lames v. James, L. R. 10 Eq. 15i5; Trvoe v. Bury, lb. 
 153 (H). 
 
 (I) Backhouse v. Charlton, 8 Chy, D. 144 (1878) ; York 
 Union Banking Co. v. Artley, 11 Chy. D. 12(15 (1879), a considera- 
 t!'>n of these two cases will lead us to the belief that the e.\ception 
 swallows uj) the rule. 
 
 (»j) Kerr r. Bebee, 12 Gr. 204 (1800), citing Moore v. Terry, 
 1 Jur. N. S. 120. 
 
IIULES OF PRACTICE. 
 
 151 
 
 IV. Sale Not Granted in Absence of Interested 
 Parties. — Where the bill prayed a foreclosure, and some 
 of the parties interested were not before the Court, the 
 Court refused to decree a sale (»)• 
 
 A bill of foreclosure having taken " pro confesso *' 
 iigaiiist some of the defendants under the general orders 
 of the Court, was not considered a reason for decreeing 
 a sale as against those defendants (o). 
 
 Cases where foreclosure refused: — 
 
 I. Against the Crown. — Foreclosure will not be 
 allowed as against the Crown, but a sale may be decreed 
 with the consent of the Crown (/>), but not without it 
 the legal estate is in the Crown (r/). The Court may 
 order a sale, but has no jurisdiction to direct the Crown 
 to convey (r). " If a decree were made for sale, the in- 
 terest of the Crown might thus be wholly vested in the 
 purchaser, but if foreclosure be asked the Court can, on 
 default, only order that the plaintiff be at liberty to 
 enter into possesssion of the mortgaged i)remises, and 
 hold and enjoy the same, and receive the rents and 
 profits thereof until the Crown think proper to re- 
 deem (.S'). 
 
 In the minutes of decree for foreclosure granted in 
 Bartlett v. Kees (/) is the following: "This decree is to 
 be also without prejudice to the rights of the Crown 
 as regards the leasehold premises comprised in the 
 plaintitl's mortgage security; and in case of such fore- 
 closure as aforesaid, it is ordered that the plaintiff be 
 
 (h) Bethiine v. Cuulcutt, 1 Gr. 81 (1849). 
 
 (0) lb. 
 
 (/)) RoKers v. M.iule. 1 Y. & C. C. C. 4 (1841). See Prosoott 
 V. Tylor, 1 .lur. 470 (18;{7> where Crown did not consent. Imt was 
 dismissed, li .Tur. 870, where the Crown declined either to chilm or 
 disclaim. 
 
 ('/) Hodjie V. Atty.-Gen., .'} Y. & C. 342; 8 L. .T. N. S. Ex. 
 Eq. 28. 
 
 (>•) Hancock v. Attorney-G.'neral. 12 W. R. 509 ; 10 Jur. 
 N. S. 557 (1804). Cf. Anon., 4 Ir. Eq. R. 701. 
 
 is) Vankoughnet, C, In Dnnn v. .\ttornev-General. 10 Gr. 
 482 (18«;4); Re e v. Attorney-Genernl, 2 Atk. 223 (1741). 
 
 (0 L. R. 12 Eq. 397 (1871). 
 
 A 
 
 
 liiiii 
 
 ! ! H 
 I 
 
 
 !r, 
 
 
 ■ 
 
 
 
 
 
 
 ■\ 
 
 i :i 
 
 i 
 
152 
 
 FOUECLOSUllE OF MOUTGAGES. 
 
 at liberty to hold the last -mentioned leasehold premises 
 until the Crown shall think tit to redeem the same, and 
 that the plaintiff be at liberty to apply in Chambers for 
 a sale of such leasehold premises.'' 
 
 II. rLKDGK OF Chattels, — In Carter v. Wake (u) 
 A. deposited with U. certain Canada railway bonds as 
 security for a debt. On a bill filed for foreclosure or 
 sale it was held that It. was entitled to an order for sale 
 only. On the other hand, a mortgagee of chattels is en- 
 titled to a foreclosure, and where a party held a mort- 
 gage on chattel property and also mortgages on real pro- 
 perty, the Court refused to make a decree for sale of the 
 chattels, and of foreclosure as to the realty (r). 
 
 III. Trust for Sale. — Where tiie mortgage is in 
 the form of a trust for sale, sale and not foreclosure is 
 the proper remedy (7). 
 
 Cases where neither sale nor foreclosure allowed: — 
 
 I. Mortgagee of Kailwav. — A mortgagee (or judg- 
 ment creditor) of a railway company cannot ust' the 
 remedies of sale or foreclosure to enfoi'ce his demand. 
 His remedy is to have a manager or receiver ap[)oint- 
 ed (ir). It is doubtful if a vendor, with an unpaid lii*n, 
 is entitled to a sale or foreclosure of the lands sold to 
 the railway (,/•). 
 
 ^Iav Tray for a Sale, Where? — An application for 
 sale may be made in Chambers, where tlie judgment 
 
 ((0 L. K. 4 Chy. I). (>0r» (1877). 
 
 (r» Cook V. Fl 1. r> (Jr. AVt'A (1Sr»(!>. Quiu>rp— fan a iii(>rty:a,i;eo 
 
 of real estate liave sale of one portion and t'oredosnre of remainder? 
 
 (If) I'aton V. Wilkes, S (;r. at p. 2r>7 (ISCO). 
 
 (»•) (Jalt V. Erie iV: Niagara Uy. ("o.. 14 (Jr. 4!t!) (ISC.Si. .ou- 
 sideriii;.' I'otts v. Warwick and l?irniin;:hain Canal Xavi>:ation Co., 
 1 Kay, \iV2: Knrncss v. Tlic Catcrliani Hallway Co., l-Ti Heav. »n4; 
 Peto V. The Welland Hallway Co.. !> (Jr. 4"): Walker v. Ware. 
 Hodhain and linnliiiKford Uy. Co., 1 T>. U. Kq. 10.") (Vendor's lien): 
 Martin v. London. Chatham & Dover Ry. Co., 1- .Tur. N. S. 775 
 (equitable niortjiajtees). 
 
 (,/•) (Jalt V. Erie. ete.. supra, considering Pell v. Northampton 
 and liunhury .Ttniction IJy. Co.. veinlor's lien (receiver appointed); 
 Kishop of Winohester v. Midhauts Uy. Co., 2 L. U. Eq. 17 (re- 
 ceiver). 
 
hfii 
 
 RULES OF PRACTICE. 
 
 153 
 
 directs foroclosnro on default of payment; and it is not 
 necessary to ai)peal from the judgnveut to obtain the 
 order for sale (//). The mortgagor, however, may be 
 allowed the usual time to redeem, and should be served 
 with thi! order directing sale (z). 
 
 Speedy Foreclosure. — ^TA'here a. sale had proved 
 abortive the Court ordered the defendant to pay the 
 amount within' a month, or in default foreclosure ((/). 
 And where the bill asked either sale or foreclosure a 
 decree was drawn up directing sale, and if that should 
 prove abortive then foreclosure (/>). This speedy fore- 
 closure, after the preliminary of an abortive auction, 
 can be obtained on notice of motion to the mortgagor (c). 
 
 In Girdh'stone v. tlunn(r/) the motion was heard in 
 Chambers; the order was made absolute as against a 
 defendant consenting and allowing three months to the 
 other defendant. It is possible the present I'ule allow- 
 ing one month where time is extended would be ap[)lied 
 to this ease (<). 
 
 379. (1) The Court iiiiiy direct a sale of the property instead 
 of u foreclosure of the equity of redemption on such terms as 
 may seem just; and without previously determining the priori- 
 >:ngfi.' hnving Won orentftl after writ issued (Init not sorvi'd), sec- 
 ties of incumbrancers, or giving the usual or any time to redeem. 
 Con. Rule 348. Chy. O. 428. 
 
 (2) This Rule shall apply although judgment of foreclosure 
 may have been entered. New. 
 
 CiiAxr.ES OF WoRDixG. — '' Sucli tcmis as may seem 
 just ; and " for " such terms as the Court thinks fit; and 
 if the Court thinks fit." 
 
 Clau.se (2) is new. 
 
 (//) So(> Ilt.lniested iV: Liiiiirtoii, ."iST. 
 
 (c) Trust & Loan Co. v. Hcyiiolds, L' Cliy. ("Ii. 41 (ISC.C). 
 (f/) (Joodall V. Knrrows. 7 <Jr. 44i> (IS.Md. In this case the 
 defendant had fislicd for tlio sale. 
 
 (M Itlachford v. Oliver, 3 (Jr. IVM (ISC.O). 
 
 (CI Odell V. Doty. 1 Ciiy. Ch, 207. Not ex parte. See Garratt 
 V. AIcDonald, 11.. .'I.T.. 
 
 ((/I 1 riiy. Ch. LML'. 
 
 (c) See Rule 393. 
 
 ^'i 
 
 I 
 
 ;i \ 
 
 In 
 
 i. 
 
 Birr 
 

 im 
 
 FOIJECLOSUUE OF MOUTGAOLS. 
 
 ; 
 n 
 
 " The Usual or Any Time." — '' Under oni* orders 
 there can be no doubt that the period appointed for re- 
 demption may be limited to less than tlie six months 
 usually given to mortgagors, or, indeed, a sale may be 
 ordered forthwith; but, then, some evidence must be 
 adduced to show that the Court would be acting in 
 furtherance of justice in restricting the rights of the 
 mortgagor " (a). 
 
 Some arguments for shortening time are: — 
 
 (1) Tljat the plaintiff and all the incumbrancers, 
 save the mortgagor, want a speedy sale(/>); or that the 
 mortgagor consents without the other incumbrancers 
 consenting (c). 
 
 (2) That the mortgage has been in arrear for many 
 years and interest is still unpaid ((/). 
 
 (3) That the six months would bring the sale on in 
 an unfavourable month of the year for an advantage- 
 ous sale {('). 
 
 (4) That owing to some special circumstance the 
 present is a very favourable time to make a sale (/). 
 
 (5) That the mortoatre estate is insuthcient to I'eal- 
 ize the claim and is deteriorating, and will be in a worse 
 position in six months (g). 
 
 (0) That the mortgagor is unable to use the land (//), 
 or is very poor and without the means of redemption (»). 
 
 (7) That the mortgagee is in great need of the 
 money (/). 
 
 {(I) Rigney v. Fuller, 4 Gr. 198 (1853). 
 (b) Xowmnn v. Selfo, 33 Bcnv. at p. 523 (1804). 
 (<;) Where the mortt»at,'or consented, the consent of the incumbran- 
 cers was thouf^ht unnecessary, lb. 
 ((/) Newman v. Selfo, supra. 
 
 (e) Ih. 
 
 (f) Swift V. IMintor. 27 Gr. 217 (1879), immefliato sale ordered, 
 owing to the buildinp of a railway the purchasers could sell the tim- 
 ber for construction, and thus would be likely to bid higher. 
 
 (g) Rigney v. Fuller, supra. 
 (//) Swift V. M inter, supra. 
 
 (/) Cayley v. Colbert, 2 Chy. Ch. 431 (18C9). 
 
 (;) Swift V. Minter, supra. ' ^ ' 
 
IIULES OF PIIACTICE. 
 
 165 
 
 Somo insufficient reasons are: — 
 
 (a) That the plaintiil is anxious to obtain his 
 claim (/,). 
 
 (l>) That tlie subsequent incumbrancers ask sale 
 after their period for redemption expired (/). 
 
 (c) That the mortgage estate will not realize sufli- 
 cient to pay the incumbrances thereon (»/). 
 
 ExTEXDiXG THE TiME After Shortexixg It. — The 
 Court may extend the time again to the defendant on 
 condition of his paying into Court a reasonable sum (//). 
 
 Where the Judgmext For Immediate Sale Ob- 
 tained. — In Cayley v. Colbert (o) an order for immediate 
 sale was granted in Chambers, on the motion of the 
 guardian, and without the consent of the mortgagor. 
 Ordinarily, however, it will be the Court giving judg- 
 ment on the action that will order the sale. The report 
 of the blaster certifying that an immediate sale would 
 be beneficial is not in itself sufficient (/>). 
 
 380. Whore a request for a sale is made by a subsequent 
 incumbrancer, or by the mortgagor, or by any person claiming 
 under them respectively, the party making the request is to 
 deposit in Court the sum of $80 for the purpose of covering ex- 
 penses unless otherwise ordered by the Court or a Judge. Con. 
 Rule 349. See Chy. O. 429. 
 
 On.TECT OF Depo.sit.— The money is jwiid into Court 
 to indemnify the first mortgagee, who does not want 
 the sale, against the costs he may incur; in the event 
 of the costs equalling or exceeding the eighty dollars he 
 is entitled to the whole deposit (7). 
 
 (k) Rigney v. Fuller, 4 C.r. 198 (18-).'?). 
 
 (/) Trust & Loan Co. v. Reynolds, 2 Cliy. Ch. 41. 
 
 (Ill) Rifrncy v. Fuller, stipra. Rut sec AVulvorlianipton & Stnf- 
 fordshiro Ranking Co. v. George, 24 Ch. D. 707 (1883); inimediiite 
 foreclosure. 
 
 (/() Newman v. Solfe, supra. 
 
 (0) 2 Chy. Ch. 431 (18(i!>). 
 
 00 Ruell V. Fisher, P. R. 51 (1873). 
 
 (*/) CorsoUis V. Tatman, L. R. 4 Eq. 157 (lSt)7). 
 
156 
 
 FORECLOSURE OF MOIITOAOES. 
 
 |1 
 
 It appears that tho moncv is also applicable as an 
 indcninity to the siibscqnont iucumbi'ancers (thouf;!! con- 
 sentinj^ parties) where the flrs't niortj^ajiee is paid in full 
 but the proceeds of sale are not sntlicient for the sub- 
 sequent incumbrancers (r). 
 
 |S(). — Tlie Court will not incn^'jse this sum although 
 the costs will probably be in excess of same (.s). The 
 plaiiititf can. if lie wishes, throw the onus on the defen- 
 dant under Rule ;{S:?. 
 
 The Court May Dispense With the Deposit. — 
 Where, ujion inquiry, a sale is thonght for the benefit 
 of infant defendants the Court will, or may, order it 
 without a deposit it). 
 
 Some Insufficient Reasons for Dispensing With 
 Deposit Are. — (1) That nn- ''"ant is a trustee (n). 
 
 (2) That the seen i'i<^ J . a.-"-le(r). 
 
 (3) That defendant io tViliing to conduct sale bim- 
 self itc). 
 
 381. Wher(> a defeiulant by \vi: \n ... motion for foroclosure 
 desires a sale, but does not otherwise desiro t:) cpfend the action, 
 he shall, within the time allowed for appearance, file a memo- 
 randum, entitled in the action to the following effect: 
 
 " I desire a sale of the mortgaged premises instead of fore- 
 closure." 
 
 And he shall attach thereto a certificate of tho Accountant 
 to the effect that he has deposited in Court to the credit of the 
 action, the sum of $80 to meet the expenses of the sale. Rules 
 of 1st Jan.. 1896, 1441, amended. 
 
 Tlie rule as oi'iginally stated was as follows: — 
 
 ((•) (Jzowski V. Beaty, S I". I{. 14(; (l,S7i». Blake, V.-C. 
 
 (s') Cruso V. Close, S 1». H. .'{:{ (ISTlt). See London & Canadian 
 L. iV: A. Co. V. INIorrison. 7 V. U. 4.".0. " Keasonable sum." 
 
 (t) Bank of Upper Canada v Scott. (5 (Jr. 4.">1 (1S.").S); Lawrason 
 V. ritzfierald, tt (Jr. ."{71 ilS(!2). This does not seem to apply where 
 the mortjrajiee is suImk for ejeetmeut. West«'rn Canada Loan and 
 Savings Co. V. Dunn, !» I". It. .">87 (ISS.'J). 
 
 (II) See Machell v. Canu)l>eU, "> U. C. L. .T. 117. 
 
 (/■) Thompson v. Maoanlay, .'5 Chy. Ch. Ill (1.S70). 
 
 («•) Taylor v. Walker, 8 Gr. ,-,00 (1801). 
 
 11' 
 
KULES OK I'JlACriCE. 
 
 157 
 
 1441. Rule 286 is amencliHl by adding the following cliiuse: — 
 
 (b) Where a defendiint in an action for the foreclosure of ji 
 mortgage desires a sale instead of foreclosure, he shall, within 
 the time allowed for appearance, file a memorandum to the fol- 
 lowing effect, entitled in the action: 
 
 " I desire a sale of the mortgaged premises in the plaintiff's 
 writ of summons mentioned, or a competent part thereof, instead 
 of foreclosure." 
 
 And he shall attai-h thereto a certificate of the Accountant 
 to the effect that he has deposited, in Court to the credit of the 
 action, the sura of $80 to meet the expenses of the sale. 
 
 Trustee Not Exempt From Deposit. — The trnstoe 
 of a nioi'tfiJij^cd estate asking' a sale in a suit for foi-c- 
 olostirc is not I'clcjiscd from the itaynu'nt of tlio nsual 
 deposit rcMjuiri'd on such a docroo (./•). 
 
 Deposit Does Xot Depexd ox Ixsufficiexcv of 
 Seclritv. — After a decree of foreclosure defendant ap- 
 plied in Clianibers for an order for sale, llie jtroperty 
 inortjias'ed bein*;- worth .fl.OOt*, and the niortjiaj;-e being 
 for fl57; and that the nstial deposit nii<;ht be dispensed 
 with. The secretary consid<'red the fi;enei'al or<ler im- 
 perative, and refused the application (//). 
 
 382. An incumbrancer made a party in the Master's Office, and 
 desiring a sale of the mortgaged premises, shall make the neces- 
 sary deposit therefor before the Master's report is settled, where- 
 upon an order may be issued on pr£ecipe directing a sale of the 
 mortgaged premises instead of a foreclosure, and thereupon the 
 Master shall compute subsequent interest, and appoint a time 
 and place for payment; and all subsequent proceedings shall 
 be had and taken as if the judgment bad been in the first in- 
 stance for sale. Con. Rule 350. Chy. O. 4.")6. 
 
 CiiAXGES IX WoRDixG. — '' Aiid dcsiiMnji" '" for "and 
 entitled to and desirinp; "'; " shiiU make" for 'Ms to 
 make"; ''shall comjiute'' for "is to coin])nte"; "time 
 and ])lace'' for "time and place, or tinu's and i»laces"; 
 
 (.)■) ^rncholl V. Campbell. .'. L. .7. 117 (Cliy.). 
 
 (//) Thompson v. IMncaulay, 3 Chy. Ch. Ill (1870). 
 
 i 
 
 > 
 
 
 > i 
 
 ^im 
 
 im\ 
 
 |:| 
 
 ; 
 
 ' 1 
 
 I ■ 
 
 ii 
 
 ;!hIH 
 
158 
 
 FOIlECLOSUllE OF MOU'J'GAGE.S. 
 
 % 
 
 " shall be li.ad and taken " for " are to be taken and 
 had"; "first instance for sale" for "first instance a 
 judgment for sale." 
 
 Equitable Mortgage. — A subsequent incumbrancer 
 is entitled to a sale upon the usual tenns where the plain- 
 tiff is an equitable mortgagee by deposit of title deeds, 
 as well as where the mortgage is by deed {z)- 
 
 383. If before or upon the deposit being made, the plaintiff 
 prefers that the sale be conducted by the defendant desiring the 
 sale, he may so elect ; and he shall thereupon notify the defend- 
 ant of such election. The notice may be according to Form No. 
 76. Con. Rule 351. Chy. 0. 430. 
 
 Changes in Wording. — " Deposit being made " for 
 " deposit to obtain a sale being made "; " shall thereupon 
 notify" for "is thereupon to notify"; "according to 
 Form No. 70 " for " to the effect set forth in Form No. 
 32 in the appendix." 
 
 Defendant Cannot Demand to Conduct Sale. — 
 A defendant cannot get out of making a deposit by 
 offering to conduct the sale. He is not entitled to take 
 the conduct of the sale out of the plaintiff's hands (r/). 
 Tlie object of Ihe order was to enable the Court to grant 
 the defendant that indulgence upon the consent of the 
 plaintiff in cases where the plaintiff desired to bid at 
 the sale. 
 
 384. Upon the plaintiff filing in the office in which the pro- 
 ceedings were commenced a note of such election, and proof of 
 service of such notice, the defendant making the deposit shall 
 be entitled to a return thereof. Con. Rule 352. Chy. O. 431. 
 
 Changes in Wording.— " The proceedings were 
 commenced" for "appearance is required to be enter- 
 ed"; "shall be entitled '' for "is to be entitled." 
 
 385. In default of payment according to the report in a fore- 
 closure or redemption action, a final order of foreclosure may be 
 granted against the party making default on an ex parte appli- 
 cation. Con. Rule 353. Chy. 0. 451. 
 
 (z) Korr v. Bebee, 12 Gr. 204 (18GG). 
 
 (ff) Taylor v. Walker, 8 Gr. 500. V 
 
 iri, 
 
RULES OF PRACTICE. 
 
 159 
 
 Changes in Wording. — " Payment according to the 
 report " for '' payment being made according to the 
 report." 
 
 386. If the purchase money is insufficient to pay what has been 
 found due to the plaintiff for principal, interest, and costs, sub- 
 sequent interest, and subsequent costs in an action for sale, the 
 plaintiff (where the mortgagor or person liable to pay the debt 
 is a defendant, and such relief is claimed), shall be entitled, on 
 an ex parte application to the Court or a .Judge, to an order for 
 the payment of the deficiency. Gon. Rule 354. Chy.O. 455. 
 
 Changes in Wording. — " If the purchase money 
 is'' for "in the event of the purchase money being"; 
 " the mortgagor or person liable to pay the debt " for 
 " the mortgagor "; " claimed " for " prayed for "; " shall 
 be entitled, on an ex parte application to the Court or a 
 Judge, to an order " for " is to be entitled to an order 
 ex parte." 
 
 The Mortgagor or Person Liable. — The mortga- 
 gor may, by assigning the equity of redemption, acquire 
 an equity resembling that of a surety. While the mort- 
 gagee, by dealing directl3' with the assignee, may treat 
 him as the party primarily liable, and, by extending the 
 time for payment of the mortgage without the assent 
 of the mortgagor, may release the latter from his lia- 
 bility (/,). 
 
 An attempt was made in Thompson v. Warwick (c) 
 to extend this jirinciple: T. bought from K., assuming a 
 12,000 mortgage and giving Lack a |700 mortgage. W. 
 bought from T., assuming both mortgages. W. sold 
 to H., who assigned for benefit of creditors. K. had 
 taken from IT. a covenant to ])ay the I^TOO mortgage on 
 demand. W. contended that he was discharged from 
 liability to T. by this covenant. The Chancellor held 
 that W. w%as not discharged, there being no contract ta 
 pay between W. and K., and therefore no such personal 
 
 (h) Mathers v. ITolliwoll, 10 Cr. 172 (180.3). 
 
 (t) Decided March 27th, 1894, Boyd, C; affirmed 21 A. R. G37. 
 
 I 
 
 !S 
 
 M: 
 
 
 1 nn'j 
 
p 
 
 160 
 
 FOUECLOSUKE OF MOUTtJAOES. 
 
 oblijiiitiuu as existed in Matlu'i's v. llclliwell (</), and 
 also that if the relatiouship of i)rin(ii)al and surety ex- 
 isted between W, and K. there had been no siieh eliauj^e 
 of liability aiisiny from ll/s covenant as would prejudice 
 tlie surety. 
 
 AVlierc the surety is by the terms of his aj^reement 
 only liable for a d<'ticiency in the sale of the i)roperty, 
 he is entitled to have the jtroperty realized before he 
 can be jtroceeded aj^'ainst (a). 
 
 Okdku for Dki'icikxcv; Liaimlitv ok Assignee. — 
 The order for navnient of the deticiencv is to be against 
 the original mortgagor or person liable, i.e., the person 
 with whom the mortgagee stan<ls in privity (/"), and not 
 against the assignee of the eciuity: " I'revious to the 
 orderly) under consideration a mortgagor had no right, 
 legal o!" equitable, to compel an assignee of the ecjuitA* 
 of rediMiiptiou to pay the mortgage debt. Now the ob- 
 ject of the order was not to create a new liability. Tiie 
 Court had ne itower to do that. The object was to give 
 the mortgagee the same relief hei'e that he could have 
 obtained by action at law upon the covenant. That is, 
 a personal decree against the mortgagor (//). 
 
 Li AiiiLiTv OF AssiGXEE. — As agaiust an assignee of 
 the e(iuity, the mortgagee has not ( ven a lien on the 
 mortgage ju-operty for the deticiency when the assignee 
 becomes the purchaser at the sale (/). 
 
 As, however, the mortgagor is entitled to enforce 
 the }»ayment by his purchaser of a mortgage assumed, 
 and for that purpose has a lien upon the land (y), it is 
 worth while, in cases where the mortgagor is execution 
 
 (d) 10 Gr. 172 (IRfiM). 
 
 (r) Teeter v. St. .Tohn, 10 Gr. 8.". (1803). 
 
 (/■) The la<-k of j)rivity saves the assifruee as ajiaiust the mort- 
 papree. Clarkson v. Scott. 2.') Ur. .'JT.'J (1878). Cf. Nonis v. Mead- 
 ows, 28 (U: IVM (1881): alHnned. 7 A. R. 2:57. 
 
 (it) I.e. the rule embodied In Con. Unle ."it". See Rule 378. 
 
 (//) Tnriil)ull V. S.vnunoiids. G Gr. 01.') (1S."iS). Cf. Christie v 
 Dowker. 10 Gr. 109 (18G3): 10 U. C. L. J. 161. 
 
 (/) Forbes v. Adanison, 1 Chy. Oh. 117. 
 
 (J) Hamilton Provident Loan Co. v. Smith, 17 O. R. 1 (1889). 
 
! 
 
 I 
 
 RULES OF PUACTICE, 
 
 161 
 
 proof, to take from him an assijj;nment of his riphtd 
 against the purchaser (/,•). 
 
 See furtlier, notes under Kules ISO, 378. 
 
 LiAniLiTY OF Mortgagor Where No Personal 
 Covenant. — There is some authority for stating; Ihat a 
 mortgafree may hold a mortgagor personally liable, although 
 there is contained in tlie mortgage no exjjress covenant 
 to pay, — that there may be an implied covenant or the 
 existence of a debt. Sudi a covenant will not be im- 
 plied (or a debt sufflcient to sue on) by the mere execu- 
 tion of a mortgage containing an acknowledgment of 
 the receipt of the mortgage money (/). Nor is the pro- 
 viso sufflcient that if the mortgagor pay the money by a 
 certain day he shall have back his money (;//). There 
 must be evidence given of a loan or debt (»). 
 
 As the Act respecting mortgages of Real Estate (o) 
 provides when the covenant to i)ay will be implied, i.e., 
 when the mortgagor *' conveys and is expressed to con- 
 vey as beneficial owner," it is possible that the terms of 
 this statute would have to be complied witln before a 
 covenant to pay would be implied. 
 
 387. (1) Where the state of the account ascertained by a 
 judgment order or report, is changed by payment of money, re- 
 ceipt of rents and profits, occupation rent, or otherwise, before 
 the final order for foreclosure or sale is obtained, the plaintiff, 
 or other party to whom the mortgage money is payable, may 
 (either before or after the day appointed for payment) apply ex 
 parte to the Court or a Judge to fix by reference to a Master or 
 otherwise the amount to be paid in lieu of the amount previously 
 ascertained or (where the day appointed for payment has not 
 
 (A-) Cf. Walker v. Dickson, 20 A. R. p. 101 (1802). 
 
 (0 See London Loan Co. v. Smyth, 32 C. V. .130 aS82). 
 
 (w) Hall V. Morley, 8 U. C. R. 584; Poarman v. Ilyland, 22 
 U. C. R. 202 (18G2); Jackson v. Yeomans, 11) U. C. C. l\ 804 
 (18(59): the words "in three equal payments to be respectively 
 made " hisufficient. 
 
 («) Jackson v. Yeomans, 28 U. C. R. 307 (18G9); 39 U. C. R. 
 280 (1870), verbal promise. 
 
 (o) R. S. O. 1897, c. 121, s. 5; R. S. O. 1887, c. 102, s. 5. 
 
 H.F.M. — 11 
 
 m\ 
 
 ■ 
 
 
 1 
 
 
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 :i* 
 
 " 
 
 
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 \-- ■ 
 
 w 
 
 i.rH 
 
 ;l' 
 
1G2 
 
 FOUKCI.OSUHE OF MOUTUAOEH. 
 
 !l, 
 
 arrived) may give notice to the party by whom the money 1» 
 payable, that he gives him credit for a sum certain, to be named 
 In the notice, and that he claims that there remains due in re- 
 spect of such mortgage money a sum certain, to be also named 
 in the notice. See Con. Rules 355, 357,. Chy. O. 457, 459. 
 
 (2) "Where the application is made after the day appointed 
 for payment, and in other cases If the Court or Judge so directs, 
 a new day for payment shall be appointed. New. 
 
 (3) Where notice of credit has been given. If the sums named 
 therein appear proper to be allowed and paid, the final order 
 may be granted without further notice. But the party to whom 
 the notice of credit Is given may apply to the Court or a Judge 
 to fix by reference to a Master or otherwise the amounts proper 
 to be allowed and paid Instead of the amounts ni<'n- 
 tioned In the notice. See Con. Rules 35G, 358. Chy O. 458, 
 460. 
 
 Riilo .'?S7 Is n oonsolidntioii of four rules 355-358, 
 with a new clause (No. 2). 
 
 On.TFXT AND Time of Notice. — The advantage of 
 giviujj notice is that it ohviates Ihe necessity of haviiio; 
 a new account taken and a new day fixed for jiay- 
 ment (/>). The notice to he ol avail, must be served be- 
 fore the day fixed for payment, otherwise the Court will 
 direct a new account to be taken and a new day ap- 
 pointed ((/). 
 
 388. In an action for foreclosure or sale, or for recovery of 
 possession of any mortgaged property, for default in the payment 
 of interest, or of an Instalment of the principal, the defendant 
 may, before judgment, move to dismiss the action upon paying 
 into Court the amount then due for principal, interest and costs. 
 Con. Rule 359. Chy. 0. 461. R. S. O., 1877, c. 51, s. 71. 
 
 Changes in Wording. — '* Foreclosure or sale," for 
 " the foreclosure or sale of the equity of redemption in 
 any mortgajjed property"; "possession of any mort- 
 gaged property" for " possession thereof." 
 
 (;)) See Con. Rule 350. Now comprised in clause 3. 
 
 (,(/) Knottlnger v. Barber, 1 Chy. Ch. 258. See also Con. Rule 
 357. 
 
 t ,'■ 
 
11UJ,KS OK IMIACTICK. 
 
 103 
 
 Acceleration ok Principm,. — In the iihscnco of 
 nny specific a^'rccincnt in the inor(p»f;e, the in()rlf,'aj,'ce 
 is entitled to call in his \vliol<> piinciiml on the niort- 
 jjof^or's (lefanlt in jiajin^ an inslalniont of interest or 
 jirincipal (/). In case there is an express stipulation, 
 the terms of the stipulatit)n must be complied with. 
 TliuB, wliere tlie stipulation provided for acceleration in 
 case the mortnajior "shall niortjia^c or otherwise suifer 
 the said premises and lands to he morlj;ajj;ed or incum- 
 bered, or become liable to sale for taxes," it was held 
 that an assijinnient in insidvency. thoujih voluntary, was 
 not such an incumberinji' as entitled the mort^ajice to 
 call in Ids money (.f). Where the clause provided for 
 default for six montlis, it was held that the six mcmths 
 had to run before the mortj?aj;eo was entitled to com- 
 lueuce foreclosure proceedings (/). 
 
 To take advantage of an acceleration clause, the 
 niortfraj^ee must exercise liis option of calling; in tlie 
 money (//). If he exercises his option, he cnnnot refuse 
 to take his whole mortj-ajje debt(>), and is not entitled 
 to six montlis' interest in lieu of notice («), though he 
 might otherwise be so entitled (.c). 
 
 Kelief has been given against acceleration wJiere 
 tliere was a lire, and the plaintilf received more from 
 the insurance company than would cover the arrears (//). 
 
 {)•) Cainoioii V. Mcliae, 'A (Jr. ;*>i;> (1S5"J), SpniKj,'!', V.-C, diss, 
 (s) McKay v. McFarlane, 1!» (Jr. 'M^t (1S72). 
 (0 Parker v. The Viiie^'ruwcrs' Associaticui, 2."! (Jr. 170 (ISTl!). 
 ill) McLaren v. Miller, 20 Gr. (>]7 (1874), whore nujrtyaj^i'e aftor- 
 wards sought to reckon interest as if whole principal sum overdue. 
 
 (t) Cruso V. liond, !» T. K. 1 11 ; 1 (). U. .'Wl flS,S2). DrunniKuid 
 V. (jiuickard, cited in CJreen v. Adams, 2 Cliy. ('h. 124, overruled. 
 
 iic) Letts V. llutchlns, L. 1{. 1.'! Eq. 17(5 (IS71): Trust and Loan 
 <.:o. V. Kirk, 8 1'. K. 20,*! (ISSO); Re Alcock. 2P, ('hv. I). .'572. ("f. 
 He Houston, 2 O. U. 84 (1SS2): Arcffhold v. IJuildinir an.l Lo.ui 
 Association. l(j A. R. 1; Re Moss. Li-vy v. Sewlll. .'U Cliv. D. 90; 
 Johnson v. Evans, (51 L. T. X. S. 18. 
 
 (.r) I'rior to i'l Yict. c. 1."), s. 2. the niortg.'igee overdue was 
 entitled to si.v months' notice, or interest on being repaid. Now there 
 must be an express stipulation. 
 
 (y) Gemmell v. Brown, 7 P. R. 381 (1878). 
 
 t 
 
 m 
 
164 
 
 FOUECLOSUUE OF MOllTGAGES. 
 
 ill 
 
 " The Defendant May." — It is doubtful to what 
 t'xtent this relief can be applied to the case of a pliiiutitf 
 seeking redemption, or that the Court has power either 
 by this rule or by its inherent jurisdiction to relieve 
 against penalties or forfeitures to restrain the mort- 
 gagee from insisting on payment in full upon default 
 being made (z). 
 
 At any rate, the mortgagor is not entitled to any 
 six months to redeem; if the relief is granted at all, the 
 money will be ordered payable within a short time (zz). 
 
 *' Before Judgment." — The procedure in cases after 
 judgment is laid down in Rule 389. 
 
 *' Due for Principal, Interest and Costs." — " It 
 is clear, we think, that a defendant could not be re- 
 quired to pay a fractional part of an instalment under 
 this order. No part of an instalment falls due until the 
 time fixed by the contract for payment of the whole. 
 The same principle appears to us to api)ly to the pay- 
 ment of interest. It is payable on a fixed day, and until 
 that day arrives nothing is due. The order must be con- 
 fined therefore to the payment of the interest due on the 
 last gale day (a). 
 
 389. In an action for the purpose and under the circumstances 
 specified in Rule 388, a defendant may move to stay the pro- 
 ceedings in the action, after judgment, but before sale or final 
 foreclosure or recovery of possession of the mortgaged property, 
 upon paying into Court the amount then due for principal, inter- 
 est, and costs. Con. Rule 360. Chy. O. 462. 
 
 Change in Wording. — ^The words " by the i)lain- 
 tiffs " struck out after 'hnortgaged property." These 
 words appear to have been struck out as unnecessary; 
 
 (:) Tylee v. Hiiitoii. .'{ A. U. nt p. 00 (ISTS). But see Dnrnvn v. 
 rrnlick. LM (Jr. VM (1S74); Moore v. Merritt, (5 (Jr. .'").'»0: Knnpp v. 
 Cameron, (! Cr. .^kV.); McLaren v. Mullen. 20 (Jr. (J.17: General Credit 
 and Discount Co. v. fJlecsr. 4S L. T. N. S. 1S2. Cf. Roltertson v. 
 Iletherlnfrton, 8 C. L. T. 141; rule not appllcalile to sale under 
 power. 
 
 Uz) Dornyn v. Frallck, supra. 
 
 (a) Strnchnn v. Murney, Gr. 378 (1858). ' • , 
 
liULES Ob' PRACTICE. 
 
 165 
 
 not for the purpose of allowing this rule to be applied 
 to the case of a redemption suit (h). 
 
 Stay Proceedings. — Where an order under thi.s 
 rule is " obtained and acted upon, no further steps can 
 be taken in the cause until another payment becomes 
 due " ((•). 
 
 3!tO. Where an application is made to stay tho proceedings 
 under Rule 389, the judgment may afterwards be enforced, by 
 order of the Court, upon subsequent default in the payment of a 
 further instalment of the principal, or of the interest. Con. Rule 
 361. Chy. 0. 463. 
 
 Upon Subsequent Default. — Where after a stay 
 of proceediufjs, another gale of interest has fallen due 
 and default is made, " the proper order is to direct the 
 whole sum to be i)aid with liberty io defendant to pay 
 what shall be found to be now payable, and stay of pro- 
 ceedings upon such payment being made '' ((/). 
 
 391. In a redemption action, on default of payment being 
 made according to the report, the defendant shall be entitled on 
 an ex parte application to the Court or ,a Judge to a final order 
 of foreclosure against the plaintiff, or to an order dismissing 
 the action with costs to be paid by the plaintiff to the defendant, 
 forthwith after taxation thereof. Con. Rule 362. J. A. Rule 333. 
 
 Change in Woudkng. — "Shall be entitled" for 'Ms 
 to be entitled"; ''to the Court or a Judge" for "in 
 Cliambers." 
 
 392. In a redemption action where the plaintiff is declared 
 foreclosed, directions may be given either by the final order fore- 
 closing the plaintiff, or by subsequent orders, that all necessary 
 inquiries be made, accounts taken and proceedings had for re- 
 demption or firecloaiire, or redemption or sale, as igainst any 
 subsee.uent incumbrancers, or for the adjustment of the relative 
 rights and liabilities of the original defendants as amonj^ them- 
 selvei-j, and such order shall have the same force and effect as a 
 judgment obtained by the original defendant. Con. Rule 363. 
 J. A. Rule 334. 
 
 ih) St'O Note uudor Rule .'ISS. 
 
 (r) rarroij v. Hopkins, 4 C.r. 4.MI (18.^4). 
 
 (d) Strachnn v. Devlin, 1 Chy. Ch. 8. 
 
 i 
 
 
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 Mt 
 
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 166 
 
 FOllECLOSUUE OF MORTGAGES. 
 
 Object of Rule. — This rule is for the convenience 
 of the mortga<j;oe defendant. He need not take advan- 
 tage of it unless he chooses, and will not be deprivt'd of 
 the costs of a subsequent action brought by hini for 
 foreclosure after the dismissal of the action to re- 
 deem (('). 
 
 Dismissal of Bill to Redeem. — '' Tlie dismissal of 
 a bill to redeem otherwise than for want of prosecution, 
 operates as a foreclosure (/). Even where the bill did 
 not pray redemption, but a decree for redemption was 
 issued upon it, a subsequent dismissal of tlie bill was 
 held to operate as a foreclosure (g). This sort of fore- 
 closure does not appear to apply to the case of an equit- 
 able mortgage by deposit (//). 
 
 Action to Redeem by Second Mortgaoee. — The 
 foreclosure of a second mortgagee who has brought ac- 
 tion to redeem will not foreclose the mortgagor, who is 
 entitled to have a day appointed for payment (/)• '^^^^ 
 second mortgagee's action may be dismissed (with costs) 
 as against both prior mortgagee and mortgagor (/). 
 
 393. In mortgage actions when it becomes necessary to fix a 
 date for redemption after the lapse of the first period of six 
 mouths, the further time allowed shall be one month. Rules 23rd 
 June, 1894, 1316. 
 
 396. Where by reason of marriage, death or bankruptcy, or 
 any other event occurring after the commencement of an action 
 and causing a change or transmission of interest or liability, or 
 by reason of any person interested coming into existence after 
 the commencement of the action, it becomes necessary or de- 
 sirable that any person not already a party should be made 
 a party, or that any person already a party should be made 
 a party in another capacity, in order that the proceedings in 
 the action shall be carried on between the continuing parties 
 
 (e) McKinnon v. Anderson, 18 C.r. 084 (1871). 
 
 (f) Inman v. Wcarinp, 3 De(}. & S. 7:V.\. 
 
 (g) Cornwall v. Henrind, lU C.r. 338 (1S(5('.». 
 (//) Mnrslinll v. Shrewsbury, I.. U. 10 Chy. 250. 
 (0 McKinnon v. Anderson, supra. 
 
 0) Ilallett V. Furze, 31 Chy. D. 312 (1885). ^ ' 
 
 1 '' 
 
KULES OF PRACTICE. 
 
 167 
 
 
 and such new party, may be obtained on praecipe, upon an alle- 
 gation of such change, or transmission of interest or liability or 
 of such person interested having come into existence. Con. Rule 
 622. J. A. Rule 385. 
 
 Ill Mitcliell V. Barrett (A) the plaintiff, a mortgagee, 
 brought action for foreclosure. R., a subsequent in- 
 cumbrancer, redeemed the plaintiff, being in turn 
 liable to be redeemed by an incumbrancer subsequent to 
 him. R., proceeding under this rule, took out an order 
 of revivor. Held, that the order was not improperly 
 issued, and that the costs thereof should be allowed. 
 
 595. In an ordinary action for redemption, foreclosure or sale 
 where the defendants, or some of the defendants, are infants and 
 no defence is set up, the action shall not be set down to be heard 
 in Court ; but after the statements of defence are filed, or after 
 the time lor filing the same has expired, the plaintiff upon filing 
 affidavits of the due execution of the mortgage, and of such other 
 facts and circumstances as entitle him to judgment, may move 
 for Judgment in Chambers, upon notice to the guardian ad litem 
 of the infants and the other defendants' solicitor, if any. Con. 
 Rule 717. Chy. O. 434, 645, 640, 
 
 Changes in Wording. — "Shall not be set" for 
 *' is not to be set''; "heard in Court'' for "heard in 
 Court by way of motion for judgment"; "upon filing" 
 for " is to file "; " may move " for " and is to apply." 
 
 " Some of the Defendants." — See Fullerton v. 
 Keely (/). 
 
 Are Infant Defendants Always Entitled to In- 
 quiry? — "On motion for decree, his Hon. V.-C. Spragge 
 decided that infants, defendants, are not entitled as a 
 matter of course, to an inquiry as to wliether a sale or 
 foreclosure is most to their benefit, bui that some 
 grount' , must be shown, and directed an atiidavit to be 
 filed. There appears to be some difference of opinion 
 upon tills point, the general understanding ianong the 
 
 (/.) M C. L. T. 2G5 (188.'}), Boyd, C. 
 (0 9 L. J. N. S. 54. 
 
 m 
 
 : 11 
 

 
 168 
 
 FOUECLOSUUE OF MOUTGAGES. 
 
 w\ 
 
 profession being different from the view above ex- 
 pressed " (m). 
 
 In Dudley v. Berezy (;<), Mowat, V.-C, decided that 
 the rule is to grant a reference as of course, but that the 
 reference may be dispensed with if the guardian con- 
 sents, or the Court is satisfied by affldavit as to the pro- 
 per judgment. 
 
 Master Must Keport His Finding. — "When there is 
 a reference ordered, the Master must report a sale to be 
 beneficial for the infant before a final order for sale will 
 be made (o). 
 
 The deposit of eighty dollars required to be paid in 
 as a deposit on a sale, will not always be dispensed witli 
 in favour of infant defendants (/j). 
 
 Rule Inaitlicaule to Case of Lunatic Adult. — 
 In case of an adult defendant being of unsound mind, 
 there is no jurisdiction to award a judgment in Cham- 
 bers. The motion for judgment in such a case will be 
 under Rule 001) (<y). 
 
 596. (1) Where the writ has been endorsed, as provided by 
 Rule 141 and the defendant fails to appt-ar, or by his statement 
 of defence admits the execution of the mortgage and other facts, 
 if any, entitling the plaintiff to a judgment, or where the de- 
 fendant disclaims any interest in the mortgaged premises, or 
 where no statement of defence is delivered, or where notice is 
 filed and served disputing the amount of the plaintiff's claim 
 only, or where in his appearance the defendant states that he 
 disputes the amount of the plaintilT's claim only, the plaintiff 
 may sign judgment, in which may be included, where claimed, 
 any relief for which a claim may be Indorsed upon the writ 
 under Rule 141. 
 
 (2) The reference in such cases, when required, shall be to 
 the Master-in-Ordinary or a Local Master. 
 
 (//*) Graham v. Davis, 2 Chy. Ch. 24. 
 
 (II) la Gr. 141 (18«57). 
 
 {(>) Edwards v. Burliiif;, 2 Chy. Cli. 48. See 2 L. J. N. S. 302. 
 
 (/)) Western Cniiadn Lonn and Savlnps Co. v, Dunn, 9 P. R. 
 r.87 (188."?). But see Lawrasoii v. FltzBernld, 9 Gr. 371 (18G2); 
 Bnnk of U. C. v. Scott, (! (Jr. 451 (1858). 
 
 ((?) Wariiock v. Prleur, 12 P. R. 204 (1887). 
 
1 
 
 If 
 
 UULES OF PllACTlCE. 
 
 169 
 
 
 (3) Where the Indorsement on the writ claims foreclosure, 
 and the defendant files a notice requiring a sale and a certificate 
 of the deposit of the sum of $80 as required by Rule 381, the 
 judgment shall be for sale together with such other relief, if any, 
 as the plaintiff is entitled to, upon the indorsement. 
 
 (4) Where in the defendant's appearance or otherwise a 
 notice disputing, the amount of the plaintiff's claim only Is filed, 
 the defendant filing the same shall be entitled to four days' notice 
 of the taking of the account. Where no reference as to Incum- 
 brances Is desired, such account may be taken by the ofllcer sign- 
 ing judgment ; and where a reference as to Incumbrances Is de- 
 sired, then by the Master to whom the action is referred. The 
 finding of the officer taking the account as to the amount due 
 on signing judgment shall be subject to appeal to a Judge In 
 Chambers in the manner prescribed by Rule 767, and such ofllcer 
 shall have power to direct a stay of procet'dings until the time 
 for appealing has expired. 
 
 (5) When a reference as to incumbrances is directed in a 
 case where a notice disputing the amount of the plaintiff's claim 
 has been filed, the judgment shall direct that the defendant filing 
 such notice shall have four days' notice of the taking of the 
 account. 
 
 (6) A judgment m.ay be signed under this Rule, whether the 
 defendant has been served personally or otherwise ; but where 
 the writ has not been personally served, the claim of the plaintiff 
 shall be duly verified by affidavit which shall be filed with the 
 ofllcer taking the account. Con. Rule 72t;. Rules 23rd June, 1894, 
 1349. Rules 1st Jan., 189G, 1476. 
 
 "Admits the E-xecutiox and Otiii:r Facts." — 
 Where the defendant's jins\v<'r admitted the execution 
 of the mortfjage bnt (h-nitd an alh'jjed aj^i'eeiuent as to 
 interest and set np a tender, it was hehl to be not a ease 
 for a jnd{];nient on pra'cipe (r). 
 
 Ordinary Rkliki- Ciranted I'xder this Rtle. — 
 The efiect of the ruh? is that the officer is to issne on 
 praecipe a jndfyment eqnivaU'nt to the decree tliat for- 
 merly the Court would have made pro confesso (.s). 
 
 (/•) Ross V. Yader, li Cliy. Cli. 2.'{(5 (1871). 
 (s) Klrkpatrkk v. Howell, 22 Gr. 04. 
 
 
 * u 
 
 w 
 
 ;V 
 
p 
 
 
 
 \ 
 
 170 
 
 FOllECLOSUllE OF MORTGAGES. 
 
 Tbe Court will grant the ordinary relief (/), and is 
 averse to granting more than the ordinarj^ relief {u). 
 Thns where immediate foreclosure was asked in case 
 the defendant did not appear, the Court only granted an 
 ordinary foreclosure decree (v). 
 
 No Injunction on Pr/ECIpe. — It is necessary to go 
 to Court to obtain a judgment continuing an injunc- 
 tion (ic). 
 
 Rule 141 Should be Followed. — Where the in- 
 dorsement on the writ does not comply with the terms 
 of Hule 141, the Registrar, or oflQcer, might refuse to 
 enter judgment on priecipe (x). 
 
 "Where no Reference as to IxcuMnRAxcKs, etc." 
 — This alternative method of taking the account seems 
 to be in accordance with the rule in North of Scotland 
 Canadian Mortgage Co. v. Beard (y/), where Boyd, C, 
 reluHed to niiike a direction to the Registrar to take the 
 account where there was a reference as to incum- 
 /)rancers. 
 
 Amending or Setting Aside Judgment. — A judg- 
 ment or decree not made on the merits, but only in con- 
 sequence of default, is in the nature of a technical difti- 
 culty, and a motion to set it aside can properly be made 
 in Chambers (z). 
 
 When an action is commenced in a local ollice, judg- 
 ment for default of appearance or pleading must be 
 entered in the local office (a). 
 
 (0 See I'iilk V. Clinton, 12 Ves. 48. Cf. Watts v. Hyde, 2 Ph. 
 ■iOO; I'aye \ , Cooper, IG Beav. 390. 
 
 (h) See 1-nst and Loan Co. v. McCarthy, 3 C. L. T. 200 (1883), 
 \vhi're the Coart ordered the Registrar to issue the usual praecipe 
 judgment. 
 
 {(•) I'at(>y V. Flint, 27 W. R. 595; 40 L. T. 051. 
 
 (ic) King V. Freeman, 1 Chy. Ch. 350. 
 
 (x) I'herill v. Forbes, 8 P. R. 408 (1880). 
 
 (V) 9 P. R. 540 (1883). For English rule see Farrer v. Lacey, 
 25 Chy. D. 030 (1883); Lees v. Fisher, W. N. 1880, 12. 
 
 (z) Kline V. Kline, 3 Chy. Ch. 79 (1880); or to have it varied, 
 Nelles V. Vandyke, 17 Gr, 14 (1870), 
 
 (rt) Chamberlain v. Armstrong, 9 P. R. 212 (1882), 
 
RULES OF PllACTICE. 
 
 171 
 
 609. Unless It Is otherwise provided, the judgment of the 
 Court may be obtained by motion for judgment. Con. Rule 748. 
 J. A. Rule 315. 
 
 Any sii)ecial relief outside of the ordinary foreclosure 
 judjjment must be obtained by motion under this rule. 
 
 Injunction, How Applied for. — There is no power 
 to continue an injunction by a pivecipe judfjjment; it is 
 necessary to go to the Court (h). 
 
 I'erson of Unsound Mind as Defendant. — Where 
 one of the adult defendants in a mortgage action is of 
 unsound mind, the plaintilf is not entitled to a priecipe 
 judgment under Rules 595, 59G, but must move under 
 Rule 009 ((•). 
 
 019. Judgments for foreclosure or sale of mortgaged pro- 
 perty where a reference is required, shall, after the proper recit- 
 als hitherto in use, direct, in general terms, that all n 'cessavy 
 Inquiries be made, accounts talten, costs taxed, and proceedings 
 had for redemption or foreclosure (or for redemption or sale, as 
 the case may be), and that for these purposes the cause is re- 
 ferred to (naming the Master); and a judgment so expressed shall 
 bo road and construed as if the same sot forth the particulars 
 contained in Rules 744 to 755 and Rule 385. Con. Rule 776. Chy. 
 O. 441. 
 
 •* Where a Reference is Required.'' — The m(u*t- 
 gagee cannot obtain a reference by a supplemental 
 or interlocutory order. Where a plaintilf recov- 
 ered the usual foreclosure judgment, and his account 
 was taken without a reference, and a final order of fore- 
 closure ol)tained, having discovered a subsequent in- 
 cumbrancer he petitioned th(^ Court for an order refer- 
 ring the matter to the Master, etc. Street, J., said: "1 
 am of opinion that the judgment itself, upon which the 
 whole proceedings are founded, must be amended so as 
 to convert it into such a judgment as is authorized by 
 Rule 770 before the plaintiff can obtain the relief he 
 asks. The only reference authorized by the rules in 
 mortgage actions, where the result is intended to be the 
 
 {!)) King V. Froemnn. 1 Chy. Cli. :^'}0. 
 (c) Wnrnock v. I'rieur, 12 T. R. 204. 
 
 
 1 
 
 
 
 ' 1 
 
 
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 n 
 
 ^■^w 
 
 *.j; 
 
 
Bin 
 
 III: 
 
 Hi! 
 
 172 
 
 FOHECLOSUllE OF MORTGAGES. 
 
 foreclosure of a right, and where the parties to be fore- 
 closed are to be added by the Master, is a reference by 
 the judgment ; there is no authority to make such a 
 reference by an interlocutory order. If the plaintiff 
 desires it, the present judgment may be amended under 
 Kules 780 and 781 ((/), but this will necessitate the open- 
 ing the whole matter, and the reference must proceed, 
 treating the former judgment and the proceedings under 
 it as a nullity; because under the existing judgment the 
 amount was ascertained by the Court itself, while under 
 the judgment, if amended, the Court refers to the ISIaster 
 in Ordinary the question of the amount (r)." 
 
 " In General Terms." — Special provisions have 
 soiTTetimes to be incorporated in these judgments to 
 meet peculiar cases. Thus in Kunisey v. Thompson (f) 
 there were two rival claimants to the equity of redemi)- 
 tion, and Spragge, V.-C, provided for their case: "I 
 think a decree may be made in this shape, referring it to 
 the ^faster to take the usual accounts and to report; 
 res^erving the right to redeem in the usual terms to M., 
 with a proviso tliat if in the meantime, that is before 
 the day appointed for payment, T. shall establish his 
 right to redeem, instead of ^I., then shall he redeem, as 
 to which a reference to the ^Master; but the INlaster not 
 to delay his report upon the account pending the in- 
 quiry." 
 
 In Peers v. Allen (f/), where the defendants pleaded 
 a tender, the Master was directed to take an account of 
 the amount due, and to ascertain and state whether any 
 tender had been made to the plaintiff on account of the 
 mortgage, and when; further directions and costs being 
 reserved (h). 
 
 U1) Now n^O niul 041. 
 
 (r) WilKioss V. Cnnvford. 12 P. R. G(18 (1888). 
 
 (f) s dr. :nr> (isno). 
 
 (g) Peers v. Allen. 19 Or. 98 (1872). 
 
 (//) Cf. Oooderliain v. DeGrassI, 2 Gr. 135 (18.')0), payment 
 pleaded, costs reserved. 
 
' 
 
 HULKS OF PllACTICE. 
 
 173 
 
 " Is Referred to (Naming the Master)." — The ])I)iin- 
 tiff has, prima facie, a ri^ht to have the reference di- 
 rected to the Master resident in the county wherein the 
 writ is issued (/). 
 
 635. (1) Every judgment, whether pronounced in Court or 
 Chambers or entered by default, and every order pronounced in 
 CovV shall be entered at full length in a book to be kept for 
 thai purpose by the officer issuing the same. Rules 23rd June, 
 1894, 1354. 
 
 (2) Judgment in causes and matters commenced in the cen- 
 tral office and all orders made in Court in Toronto, shall be en- 
 tered in the central office. Orders made in Chambers in Toronto, 
 shall be entered in Chambers as heretofore. See Con. Rule 20, 
 and Rules 1st Jan., 1896, 1400. 
 
 (3) All such judgments, and subject to the preceding clause, 
 nil such orders, as require to be entered in a cause or matter 
 commenced in a local office, shall be entered in the office in 
 which the cause or matter was commenced. See Con. Rule 20 
 and Rules 1st Jan., 1896, 1400. 
 
 636. Orders of course, ex parte orders and orders made in 
 Chambers, shall not be entered in full, except: — 
 
 Orders declaring persons Lunatics ; 
 
 for the Sale of Infants' Estates ; 
 " for Payment of Money 'nto or out of Court or out of 
 
 an estate or fund ; 
 " for Foreclosure or Sale ; 
 
 " for continuing proceedings upon death or transmis- 
 sion of interest ; 
 " for the Confirmation of the Report of a Master or 
 Referee ; 
 Vesting Orders ; 
 and such other orders as may from time to time be directed to 
 be entered. Con. Rules 546, 773, 774, amended. J. A. Rule 583. 
 Chy. O. 195, 594. 
 
 Effect of not Entering Order. — An order not 
 properly entered is an imperfect and iiTcgular order (j). 
 
 (i) Mncarn v. Gwynno. 3 Or. 310 (1S.'»2). not npj)li('al)l»' to cases 
 of aduiinistration; Tlionipson v. Fairbairn, 10 P. R. 533. 
 
 0") Re :^Iorphy, 11 P. R. 32 (188G). 
 
 
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 , !:) 
 
m 
 
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 174 
 
 FOIIECLOSL'RE OF MOUTOAOKS. 
 
 Although orders are frequently never drawn up, yet 
 unless they are drawn up and entered an attachment 
 cannot issue for disobedience to them (A). There is 
 authority foi savin}? that any proceedings, however in- 
 advertently had, upon a decree or order not entered, are 
 irregular and voidable (/). But where the order was 
 subsequently entered, the Court refused to upset what 
 had been' done on the faith of the order (jyj)- 
 
 An order that has been lost before entry may be 
 redrawn (/»). 
 
 637. The Entering Cli-rk shall note In the miirgin of the judg- 
 ment or order book the day of entering a judgment or order, 
 and shall at the foot of tho judgment or order note the same 
 date, and the book in which the entry has been made and the 
 pages of such book. Con. RuU- 775. Chy. O. 32. 
 
 646. The Court or a Judge may, at any stage of the pro- 
 ceedings in a cause or matter, direct any necessary inquiries or 
 accounts to bo made or taken, notwithstanding that some special 
 or further relief is sought, or some issue to be tried, as to which 
 it may be proper that the cause or matter should proceed in the 
 ordinary manner. Con. Rule 551. J. A. Rule 244. 
 
 Changes in Wording. — '' That some special " for 
 " that it may appear that there is some special "; " some 
 issue '• for " some special issue." 
 
 744. Upon a referenc" under a judgment for foreclosure or 
 sale [or redemption of mortgaged property] the Master shall 
 in<|uiri; and state whether any person, and who other than the 
 plaintiff, has any lien, charge, or incumbrance upon the land and 
 premises embraced in the mortgage security of the plaintiff, 
 subsequent thereto. Con. Rule 124. Chy. 0. 442. 
 
 CiiANGKS IN Wording of Kulk. — The words " or 
 redemption of nioitgaged property" are i ew. The 
 words " in the writ or jdeadings mentioned," which for- 
 merly were before the word " .subsequent," have been 
 
 (/■•) Bnlliird V. Toniliiison. M L. J. Ch. 05G; 31 W. R. 5G3. 
 
 (I) Tolsoii V. .lervis. S Roav. 304 (184.'). 
 Oh) Ue Morpliy. supra. 
 
 (II) Ex p. Deau of St. Raul's, 18 W. R. 724. 
 
RULES OF phactict; 
 
 175 
 
 struck out. *' Tho Master kIuiII " was fonncrlv "the 
 Master is to." " I'erson " was " person or persous." 
 
 Upon a Rkference. — Where the iuor(Ki>^'«»''« hcinj; 
 the sole defendant to the writ, consented to ininudiate 
 foreclosure, Mowat, V.C, refused a refeience as to sub- 
 secjuent incumbrancers, saying: '* The reference respect- 
 ing otlier incumbrancers is only made as incidental to 
 the reference necessary in ordinary cases for the fore- 
 closure of the mortgage, and when the latter reference 
 is not made the former I think cannot be made eitlu'r. 
 If there are other incumbrancers, the plaintilT must tile 
 a new bill against them (o). 
 
 A Judgment for Forixlosure or Sale. — This will 
 include the case of an acti(m brought to enforce a me- 
 cliauic's lien: ** A person entitled to a lien for security 
 for a debt has been regarded as a mortgagee and his 
 suit to enforce his lien has been regarded as a moit- 
 gnge suit. Foim No. of the Orders of 18.')! is the form 
 of a bill of complaint 'by a legal or efpiitable mortgagee 
 or person entitled to a lien as security for a debt, seek- 
 ing foreclosure or sale or otherwise to enforce his secur- 
 ity.' And form 34 under the present Kules is also ex- 
 pressly adapted to the case of a plaintitT enforcing a 
 lien "(;)). 
 
 " Who Other Than the Plaintiff." — There is no 
 profit in getting a I'eference as to other incumbi'ancers 
 if there are none. Where the plaintiff obtains a refer- 
 ence as to other incumbrancers " without being pre- 
 pared with evidence to show that Ihere are other incum- 
 brancers, he must i)ay the costs of the reference in case 
 it shall appear to the Master that at the time of making 
 the decree there were no incumbrancers on the property 
 other than the one in question in the cause ''(</). 
 
 (o) Taylor v. Ward, l.T Gr. 590 (1807). 
 
 (;)) Slncleiinan, .T.A., In Cole v. Hall. 13 T. R. 103 (1889). Form 
 34 is now Form 77. 
 
 (q) Hamilton v. Howard, 4 Gr. 581 (1854). 
 
 "I 
 
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 i* 
 
 l- ^l 
 
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 I, 
 
1 
 
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 It 
 
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 170 
 
 I'OKKCLOSUIll': OF MOllTOACKS. 
 
 The cvidciKc the pliiintin' hIkhiIcI \w prcpart'd with 
 is iMcnlioiU'd in J{ule 745. Where tiiciv are no other 
 iiunmltraiuers the form of jiulj^ment would hv simihu' 
 to that ^iveii in the appendix to tlie Kules as No. 154. 
 
 It: is well to note, however, that there are otiier 
 nialters for wiiieh it is sonietinies necessai'v to liavo a 
 reference, sneh as the (piestion whetlu'r foreclosure or 
 sale would be the more benelicial. It is for the taxinj; 
 o nicer to refer to the papers before the Master, and de- 
 termine from them whether the proceedings (or part of 
 (hem) were unnecessarily taken (/•). 
 
 " Sunsi'orE NT Tiikhkto.'' — The Master's oltice is not 
 the i)roper forum in which to attack the jiosition of a 
 prior incumbrancer. Thus in Lilly v. Langhurst (n) there 
 was an execution in the sherilf's hands prior to the i)lain- 
 titT's mortgage, and the plaintiff obtaining the ordinary 
 foreclosure judgment carried it into the Master's ottice 
 and had the execution creditor added as an incum- 
 brancer. The Court held that the plaintilf was not en- 
 titled to have the <|uestion of i)riority disposed of in the 
 Master's ottice, or upon motion, without the execution 
 creditor's consent, the creditor being entitled to have 
 the question tried at the hearing of the action. The 
 plaintilf, however, was allowed (following Glass v. 
 Freckleton (7) ) to take out an order setting aside his 
 judgment and adding the execution creditor as a party 
 to the action, with liberty to make the necessary amend- 
 ments to his ])roceedings, in order to have determined 
 the (juestion of ])riority. 
 
 In White v. lieasley (/O it was somewhat broadly 
 stated "that the settled practice requires all judgment 
 creditors to be brought before the Court in the Master's 
 office, and tluit the ends of justice will be best attained 
 
 0) Soo Piinly v. rnrlts, 9 P. R. 424 (ISS.*?). 
 
 («) 12 P. R. .''.10 (ISSSt. Stroet, .T. Of. Ranlc of >[ontrenl v 
 Ilnffiicr. 10 A. R. 51)2; Cassels' Dig. 288, clistinKuislunl Cole v. Hall 
 13 P. R. at p. 105. 
 
 (/) 10 (Jr. 470 (1804). 
 
 (») 2 Gr. GOO (1851). 
 
 
 illi 
 
Ul'LES OF PIIACTICE. 
 
 177 
 
 l)^- adlicriiig to that practice." This statomeut, however, 
 is to be taken as lelenlng to subseciiieut incumbraiicers, 
 not lU'ioi" ones (r). 
 
 SUI1SEuIM:NT IXCL'MIIRANCEKS NOT TO 1!K DeI'EN- 
 
 DANTS TO Whit. — '* So liniily cslabllslu'd did this piac- 
 tic«! Iwcome of maliiug siibseqiieiit iiicuiiibi-aucers parlies 
 in the ]\raster's ofllce, and not in the first instance that 
 it came to be rej^arded as an iinpi opiiety in practice, an 
 abuse of the procedure of the C'liurt, to ilJHiet^iinl it; mid 
 in .laclvson v. llainuKUid (/r) llie taxinj; oflli-er disallowed 
 to the plaintilV the costs occasioned by a violali(»n of 
 the rule, and this rulinji- was approve«l of by the 
 Court " (x). 
 
 745. The plaintiff Bhall bring Into tho Master's Offlco ccrtl- 
 lifjiios of liic Rf'giHtrar find Sliorlff of the connty wh(»reln the 
 property lies, setting forth all the incumbrances which affect the 
 proi)erty in the writ or pleadings mentioned, and such other 
 evidence as ho may be advised. Con. Rule 125. Chy. O. 413. 
 
 CiTANGF.s T\ Wc^RDiXG. — "Shall biin^ '' for "is to 
 brin^"; "of the l^e<iistrar" for "from the Kejjistrar "'; 
 " property lies " for " lands lie." 
 
 RkGISTUATFOX of JfDGMF.XTS ; EXF.CrTIOX TRFDr- 
 
 tors of Till'. ^foRTGAGKK. — The Rejristrar's certilicate will 
 show whether the mortp;a}i:e debt has been attached, 
 and will therefore determine whether the crt^ditors of 
 th(» mort};ae;ee should be made i)arties in the Master's 
 office (//). Formerly, when it was tbe rule to re<;ist(M' 
 judfjuients, it was held necessary to make the jud};- 
 ment creditors of the mortp^afrce ]iarties either to the 
 bill or in tlie Piaster's office (z). 
 
 (r) r.)Ie V. ir.Mll, l.'{ r. R. at p. ion (ISSO). 
 
 (If) s r. R. ir>7. 
 
 (.r) Cole V. Hall. l.T T. R. at p. 103 (ISSO). 
 
 0/) See R. S. O. 1S07. c 13fi. ss. 2, .^S. .-)1. .^2; o. 51. ss. 97-100; 
 no Vict. c. .^> (Ont.). See Crosbie v. Fenn, 2G Or. 283, as to attach- 
 ing order. 
 
 (z) Sanderson v. Ince, 7 Gr. 383 (1859). 
 n.F.M. -12 
 
 i^ 
 
 
 ;iii(: 
 
 !'.;■ 
 
P ! 
 
 !•' 
 
 17H 
 
 FORECLOSUUE OF MOUTGA(JES. 
 
 'i 
 
 "' 
 
 « 
 
 Tho law as to the ivpistration of jiulp;mont8 prior to 
 ISOS invited tlio registration of judfj^nionts of all sorts 
 if the amount exeeeded forty dollai*s, but was amended 
 bv 31 Vict. e. 20, s. :V.\. The present provisions relatinj; 
 to the rejiistry of jud{j;ment, and other Court proceedinjjs. 
 will be found in the Registry Act, ISn.'l, ss. 2, 38. 51 54; 
 53 Vict. c. 33 (Ont.). (Vaeatin}; Lis Pendens); ;-.S Vict. c. 
 12, s. 31 (Ont), (Alimony judgments); and 50 Vict. c. 5. 
 
 What Writs Includkh ix Sheriff's Certificate. 
 — Questions as to tlie prop«'r and timely renewal of fl. 
 fa.'s will arise less fre(iu«'ntly now since the passaj?*' of 
 57 Vict. c. 2(5. and HS Vict. c. 13. s. 31, allowing the re- 
 newal of writs prior to th<' expiration of three years, 
 instead of one year. 
 
 Tt has been held that tlie withdrawal of a writ from 
 the sheritT's hands for tlie jiurpose of renewal is not 
 such a withdrawal as destroys the priority of the writ. 
 The time occupied in obtainiu}; the renewal and replac- 
 iiijr tlu' writ in the sheritT's han<ls must be no lonjjer 
 than could reasonably be recpiired for the purpose (/fV 
 Where there was six ujonths' delay, even thoujjh caused 
 by mistake, it was held that the writ lost its priority (b). 
 A stay of writ by direction to the sheritl" has been held 
 a withdrawal (r). 
 
 Ckktifvcate of Sheriff; Where Chattels Reat.. — 
 Tt was held in Sparrow v. Champa^^ne {,]) that a chattel 
 interest in realty was seizable under a writ of tl. fa. 
 floods. This beinj; the case in actions to foreclose a 
 leaseliold ])roi»erty, it would 1m» n<'cessary to i>roduce a 
 certitlcato from the sheritl" as to the }::oods. Since 1st 
 January, 1S95, all writs of execution (except from the 
 
 Ui) As in Meiioilly v. McKoiizie, 3 E. & A. 20!>, wlu're tlic time 
 was oiilv ir> (lays. cf. Mulr v. Muiirot>, '2l\ V. C. U. l.'W; l{o\vt> v. 
 Jnivia. 13 IT. C. C. P. 4J)tS. 
 
 (ft) He IIiin«> and Ledley, 13 V. U. 1 (1880). 
 
 (r) Trust and lionn Co. v. CutlilxM-t, 13 Or. 412. 
 
 ((/) r> U. O, C. p. at pp. 309 nnd 400. 
 
 f\\, 
 
RULES OF PHACTICE, 
 
 179 
 
 h). 
 •Ul 
 
 \{o\ 
 fa. 
 n 
 i\ 
 
 Division Court) comprise both goods and lands (c). 
 There does not, however, apiK'ar to be any compulsion 
 on the sheriff to inchide both in one certiticate for ono 
 fee. 
 
 Datk to Which Ckrtificates Brought Down ; 
 Intkrests AcyuiRKi) Pkxdkxtr Lite. — It is possilile ( /) 
 but not necessary ((/), to add in tlie Master's ortice as 
 jiarties defendant, persons wlio liave ac(piir<>d an in- 
 terest i)endente lite; and in a case wliere such persons 
 liad an inter»'st other than the one so acquired, tlu' order 
 was rescinded adding them as " parlies to a foregone 
 judgment ]>y wliicli their rights were concluded"!//). 
 
 The inference is therefore that the certilicatea 
 should cover the day of the issue of the writ. 
 
 746. The Master shall direct iill such persons iis jippear to 
 have any lien, charge or incumbrance upon the property in ques- 
 tion [subsequent to the mortgage In question] to be made par- 
 ties to the iicthm, and to be served with a notice according to 
 Form No. 77. Con. Rule 126. Chy. O. 444. 
 
 (JiiAXGKS IN WoKDixo. — " Sluill direct" for *' is to 
 direct"; ** appear" for "appear to him"; "property in 
 question " for " estate in (piestion "; " according to form 
 No. 77 •' for " in the form No. 34 in the appendix." 
 
 The words " subsecpient to the mortgage in ques- 
 tion " are new. 
 
 All Such Persons, etc. — This includes the general 
 class of "subsequent incumbrancers (/), and those ap- 
 pearing in any way to be likely to belong to that class. 
 The object of the notice is that those appearing to be 
 
 (r) !'.7 Vict. r. 20 (Ont.>. si. 
 
 (f) Liiidsiiy V. TUnk ..f Montn-!il, i;5 (Jr. at p. 0(5 (1S07). 
 
 (;/) I{(il)S()ii V. Aruuo, L'."> (ir. 40? (1S7S), wlicro st'ccmd mort- 
 pacc liaviiiK' Ix'i'U crcfited nftt-r writ issiu'd (Imt not scrvoiU. soc- 
 niid nKirtKiiK't'c held to tiil<f snl).jecf to lis pcndt-ns. Cf. Tyler v. 
 Thonuis, L'.'> Hoav. 47; H»-llamy v. Saliine. .*? .Tnr. N. S. 4'.»:i: 1 1). & 
 .1. .^>C.O; Price v. rrl<««, Ia H. .^"> Cliy. P. 207; Walll)rld«e v. Martin. 
 2 Chy. Cli. 27."», case of jndcnieiit creditor. 
 
 m Abel! V. Tarr. P. H. .'04 (ISS.!). Cf. Bank of Montreal 
 V. Wallace. 13 Gr. 184 (1807). 
 
 ^ 
 
 rV 
 
 ■n 
 
 
 i«i 
 
 |: 
 
 li J! 
 
 i:ill 
 
W: f 
 
 m -ill 
 
 180 
 
 FOllECLOSUUE OF MOllTGAUES. 
 
 ; 
 
 creditors may have an opportunity of discussing tlie 
 question wlietlier tliey liad a lien on the mortgaged pro- 
 perty, ratlier tlian that it should be determined behind 
 their backs (;). They become parties from the date of the 
 notice, not from the date of its service (A). 
 
 Classes of Persons Added in Master's Office ; 
 Execution Creditors. — The notice is given to those 
 appearing upon the sheriff's certificate as having writs 
 in his hands (/). Simple contract creditors of a mort- 
 gagor have no right of redemption (m). 
 
 Service on the execution creditor may be effected 
 either personally or bj' serving his solicitor in the ac- 
 tion in which judgment has been recovered (n). 
 
 Unregistered Subsequent Incumbrances. — Where, 
 under a direction to bring in his account, the mortgagee 
 brought in several orders on him signed by the mort- 
 gagor, to be paid out of the purchase money on the sale 
 of the property, the Master in Ordinary treated these 
 orders as " eqiiitable assignments of or liens on the i)ur- 
 chase money, and operating as a charge on the lands, or 
 their proceeds, in favour of the holders." He directed 
 these holders to be made parties defendant (o). 
 
 REGisTKREn Subsequent Incumbrancers. — Subse- 
 quent mortgagees should be made parties in the IMas- 
 
 (i) Not prior iiicumhnmcfrs, see new words added; ala ) see 
 under Uulc 744, supni, and cases there cited. 
 
 (/) HIake, V.-C, In Canada Landed Credit Co. v. McAllister, 
 21 <lr. -M\ (1874). 
 
 (A) Sterling v. Caniphell, 1 Chy. Ch. 147. 
 
 (/) Canada Landed Credit Co. v. McAllister, 21 C,r. '^m (1874), 
 creditors i)rlor to assijrnnieut In Insolvency; Cole v. Hall, 12 P. R. 
 .^)S4; I.T r. 1{. KM), execution creditor subsequent to mechanic'!^ 
 lienholder, wliose 00 days had expired. See under Rule 74r) for ex- 
 ecution creditors of uiortKanee. 
 
 (HI) Nhhol V. Allenhy, 17 O. R. 27.'> (ISSO). 
 
 (»») Rule .^.^2. 
 
 (o) Canadian Rank of Comnierco v. Forbes, 10 P. R. 442 (ISSTi). 
 Ilodffins. MO. 
 
 (/)) Nelson v. Cochrane, 1.1 P. R. 70 (1880). Calt, C..T. Case 
 of woman suing for arrears of annuity charged on land. 
 
RULES OF PRACTICE. 
 
 181 
 
 ter's office, and not subjected to the expense of a trial 
 by being made parties to the writ (p). 
 
 Heirs of Deceased Subsequent Mortgagee. — 
 Wliere a subsequent mortgagee is deceased, his personal 
 representatives are the proper parties to be added (7), 
 and, semble, costs incurred by adding the real represen- 
 tatives would be disallowed (/•). 
 
 Heirs or Deceased First Mortgagee. — If it is 
 necessary to add the heirs of a deceased mortgagee in a 
 suit brought for foreclosure by his executors or adniinis 
 trators, this can be done in the Master's ottice (i-). By 
 Kule 193 trustees, executors and administrators may sue 
 or be sued without joining any of the parties beneficially 
 inlerested, but the Court has a discretion to join such 
 parties at any stage of proceedings (/). Under K. S. O. 
 1S97, c. 121, 8. 11, which appears to be an amplitication 
 of C. S. U. C. c. 87, s. 5, suggested by the decision in 
 Kobinson v. IJyers (/), it is probable in the light of that 
 decision that there would be no sufficient reason to add 
 the heirs («). 
 
 Representatives of Deceased Partner. — ^Where a 
 mortgage is taken in tlit^ name of one partner to secure 
 a partnership debt, and a bill is filed to enforce the 
 security, the rt nrescntatives, real or personal, of a de- 
 
 <eased partner are not necessjiry parties (r). 
 
 Mechanics' Lienholders. — These, when subsequent 
 to the mortgage, are to hv added in the Master's office (w). 
 
 Co-tenants of Tenant in Common. — These have 
 no right of redemption!.)). 
 
 ('/) Tnylor v. Stocad, 1 Cliy. CIi. 74. 
 
 (r) 11... citiiiK Wliitlii V. lliilli.liiy, 4 D. & W. 2t!7. 
 
 (s) liawrcnce v. II\iiu|ilnirs. 11 C,i: liOU. 
 
 (/) Kohlnson v, Hyers. !> <;i-. ."iT'J (ISti'J). 
 
 (M) Si'o fnrtluT, I{. S. O. l.S!>7. v. 127. ss. 3 & 4: (50 Vict. c. 14 
 (Out.), ss. 2!), .'U; Dilko v. Donulns, 2('. (Jr. 1)9; .'» A. U. (i'.\\ (irlrn- 
 slinwp V. rnrks, (5 U. C. L. .T. 142. 
 
 (I) Stoi»lieiis V. Simpson. 12 (Jr. 4m (1800. 
 
 iir) .Tncksoii v. Ilnmiiioiid, S V. H. l."»7 (1S79). 
 
 (r) NIool V. Allcnhy, 17 O. R. 27.'» (1S89). 
 
 m 
 
 M 
 
 ■A. 
 
 . 
 
 'if 
 
 IM 
 
 . :t-l 
 
r 
 
 11 -' 
 
 1': : . 
 
 ; 1 
 
 
 182 
 
 FOIIECLOSUJIE OF MORTGAGES. 
 
 Person in Dual Capacity. — In Crooks v. Wat- 
 kins (//) it was held that joininjj: a person in the Master's 
 office in the " totally distinct character as judgment 
 creditor " did not affect his title as mortgagee. 
 
 747. Any party served with a notice under Rule 746 may ap- 
 ply to the Court at any time within 14 days from the date of the 
 service to discharge, or to add to, vary, or set asido the judg- 
 ment or order making him a party. Con. Rule 127. Chy. O. 
 445. 
 
 Changes in Wording. — Tlie words after discharge 
 have been re-arranged: the}- read " to discharge the order 
 making him a party, or to add, to vary, or set aside the 
 judgment." 
 
 I'RioRiTV Lost by not Moving Against Order. — 
 In McDougall v. Lindsay Paper Mill Co. (z), the Master 
 considered that the [daintiff's moitgage, though prior in 
 date to Ihe executions in the sheritl's hands, was defec- 
 tive in not being ralitied by the sliareholders, the mort- 
 gaging company. " As a s[>ecial circumstance, he reports 
 that tliese creditors, ln'ing all subsequent to the making 
 of the jdaintiff's mortgage, were made parties as subse- 
 quent incumbrancers, but that from the evidence before 
 him it appears that they were entitled to i)riority over 
 the plaint itT. The Master has virtually abrogated the 
 judgment, which i)roceeds upon an adjudication that the 
 plaintiffs are mortgagees of the eoujpauy, having a lien 
 upon their land, and a right to realize the same by a sale 
 of the mortgaged ])remises. And to this adjudication 
 all the siibsequent incumbrancers who are made parties 
 in the blaster's office assent, because they take no steps 
 to move against, vary, or set aside the judgment, they 
 were therefore bound by it in the same wa}' as if they 
 had been made parties originally, had nmde default in 
 setting up any defence, and had sulTered judgment to be 
 recovered in favour of the plaintiff " (f/)- 
 
 (i/) S (Jr. .'MO (1S(50). 
 
 {:) 10 r. R. at I). •J4".> (1S,S4». rofcrre.l to Rowland v. Biirwell. 
 12 r. R. COT: <•.••. Wiley v. Ledyard, 10 P. R. 1.S2. 
 
 Ui) I'er Hoyd. ('. Tiu' Chami'llor in this case considers the 
 pffec-t of McDonald v. RogiT, «.) IJr. 75 (ISOlij. 
 
RULES OF PllACTlCE. 
 
 183 
 
 To THE Court. — ^Tlie limitation " to the Court,'' 
 applies to the party added. These appeals would be to 
 a Judf^e of the High Court in Chambers (^), as appears 
 by Kule 7G7, which pui-porta to comprise Kule. 1400, 
 amending Con. Kule Si«; 51) Vict. c. 18 (Out.), s. 3 (t). 
 
 In some older cases, also, the appeal seems to have 
 been heard in Chambers (d), or by the Master himself (c). 
 Jn the latter case, lioyd, M.O., said of the party added: 
 *• No object can be gained in keepiug him any longer as 
 a party to the suit, and 1 think it is competent for me, 
 upon the new facts now disclosed, to discharge my order 
 making him aparty"(/). 
 
 Within 14 Days. — It is not sutlicient that notice be 
 given within the 14 days, the motion itself must be actu- 
 ally made within the 14 days, unless leave is obtained 
 to move subseiiueutly (y). 
 
 A defendant having a prima facie case can apply for 
 leave in Chambers (/<), or to the Court [i). 
 
 To DiscHARGic THE OuoiiR. — lu McDouald v. 
 Roger (/■) an incumbrancer who objected to the order of 
 I)riority iu which he was placed appealed from the find- 
 ing of the Master, and the Court considered this the 
 more convenient course to adopt, although it was open 
 to him to have moved to discharge the Master's order. 
 
 Jioyd, C, says of this case: '* In that there was a 
 deviation from the ordinary practice for the sake of 
 convenience, but I am against extending that case so as 
 to allow parties to play fast and loose in the Master's 
 
 (/(» Hut see 58 Vict. c. 13 (Out.), s. 1 1 U & 2). 
 ((•) Cr. Tice V. Myers. 3 C. L. J. 10L». 
 ((/) .MtJiitKoiuery v. Slioi-tis, ;{ Cliy Cli. C!) ^18701. 
 («■) Kline v. Kline, li Cliy. Ch. 101 (.LSTlj. 
 
 (i/l .liicksoii V. Gardiner, 2 Chy. Oh. .^R": Mrllroy v. Iliiwke, 
 .''» Cliy. (Ml. «>(! (1870). leave to move uriinteil by Court; He .Muller, 
 12 (}i-. 72; Harris v. Meyers, 1(» tJr. 117 (180U); Uoe v. Stantou, 13 
 Cr. K57 (I8(i8). 
 
 (h) Ho.\ V. Uridgeniun, P. U. 234. 
 
 (i) Mellroy v. llawke, supra. 
 
 i;- ! : 
 
 I 
 
 it; 
 
 i 1 
 
 S: 
 
 
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184 
 
 FORECLOSURE OF MOUTOAGtS. 
 
 'jl 
 
 1:i 
 
 office, when they come in to get the benefit of a de- 
 cree " (A:). 
 
 748. The Master, before he proceeds to hear and determine, 
 shall require an appointment according to Form No. 7S, to be 
 served upon all persons made parties before the judgment or 
 order. Con. Rule 128. Chy. O. 446. 
 
 Changes in Wording. — " Shall require " for '* is to 
 require "; " according to Form No. 78 " for " to the effect 
 set forth in Form No. ii5 in the appendix"; "upon all 
 persons'' for "upon incumbrancers"; "judgment or 
 order" for "judgment." 
 
 Formerly it was the rule that the Master was to 
 exercise a discretion in requiring notice to be given to 
 the defendants of proceedings, where a bill had been 
 "taken pro confes.«o " (?). As a general rule notice was 
 required to be served on the mortgagor whenever the 
 plaintiff proved a claim in addition to that alleged in 
 his bill, or whenever subsequent incumbrancers were 
 added (w<). 
 
 749. Where a person who has been duly served with a notice 
 under Rule 746 or with an appointment under Rule 748, neglects 
 to attend at the time appointed, the Master shall treat such non- 
 attendance as a disclaimer by the person so making default ; 
 and any claim of such person shall be thereby foreclosed, unless 
 otherwise ordered, upon application duly made for that purpose. 
 Con. Rule 129. Chy. O. 447. 
 
 Changes in Wording. — " A person " for " any per- 
 son"; "shall" for "is to"; "person" for "party"; 
 "any claim" for "the claim"; "unless otherwise or- 
 dered " for " unless the Court orders otherwise." 
 
 0) «r, 75 (1802). 
 
 (A) McDouRall v. I-indsny Tapor Mill Co., 10 T. R. at p. 2r»l 
 
 (1884). 
 
 (0 Robinson v. Whitcoml), 20 Gr. 415 (1873). 
 
 (ni) McCormick v. MoCormiok, V. R. 208 (1874). See further, 
 Perrin v. Davis, 3 Or. 101 (lv852); StraHmn v. Miirney. Gr. 284 
 (1857): Rnohnnan v. Tiffnnv. 1 Gr. 08 (18.-0); Wnlsh v. Bourke, 1 
 Gr. 105 (1850): Hawkins v. .Tnrvis, 1 E. & A. 240 (1847); Baby v. 
 WoodbridBo. 5 U. C. L. J. 07. 
 
m 
 
 RULES OF PUACnCE. 
 
 1S5 
 
 As A Disclaimer; Inaction Sufficient. — The Enj;- 
 "lish rules as to disclaiiner as laid down in Ford v. Earl 
 of Chesterfield (n), and cited in our Canadian case of 
 Hall V. Park(o), are: 
 
 First. That in suits for foreclosure or redemption of 
 mortgages, when a defendant disclaims in such a man- 
 ner as to show that he never had and never claimed an 
 interest at or before the tiling of the bill, then he is en- 
 titled to his costs. 
 
 Secondly. If a defendant having an interest shows 
 that he disclaimed, or offered to disclaim before the in- 
 stitution otf the suit, tlu^n also he is entitled to his costs. 
 
 T'hirdlv. That when a defendant having an interest 
 allows himself to be mad(? a party to the suit, and does 
 not disclaim or otter to disclaim till he puts in his an- 
 swer or disclaimer, in that case he is not entitled to his 
 costs. 
 
 To this Hall v. Park, supra, adds: "Put had thi? 
 English rule been dllTerent, the defendants could not 
 have had the costs in this Court, because here inaction 
 is equivalent to disclaimer. A defendant who does not 
 appear in cases of this sort is ther«>by foreclosed. Now, 
 that being the settled i)ractice, it is clear, 1 think, that 
 a defendant who adopts the useless and i pensive 
 course of filing a disclaimer must bear his own costs." 
 
 Unless the Court, etc. — It is a principle that a 
 l>arty who has had ample opportunity of coming in to 
 prove, and has neglected to d«» so, must take the conse 
 quence of his laches, and will not be allowed to disturb 
 the position of the other creditors (/>). Thus in Cameritu 
 V. Wolfe Island Co. (r/) an aj^plication to come in and 
 prove was granted only after inqtiiry had shown that no 
 
 ' ll 
 
 ; i 
 
 i ' 
 
 (H) 1 Ilnro. ;nO; <f. I-'onl v. Wliito. IC, lleav. 120. 
 
 (o) (5 (Jr. .'»."» (lsr»S). TIh' partM's fiUnu disrlniiiiers in tills case 
 were jiidcriicnt cretUtors atldeil In tlie Master's oflice. Cf. Lewin v. 
 .Tonos. r.l r.. T. N. S. .V.). 
 
 f/») Hull V. Fnlconpr. 11 .Tur. N. S. L't (ISCm). 
 
 (f/) r. P. n. 01 (IST.'l). Ilolmested, U. 
 
 ;1 
 
 -il 
 
 ■m 
 
r 
 
 186 
 
 FOUECLOSUKE OF MOUTfUGES. 
 
 m 
 
 other incumbrancers would be prejudiced, and that the 
 only opposition was on the part of the debtor. 
 
 Similarly in liecher v. Webb (r), the delinquent in- 
 (Mimbrancer was admitted only on explaining his neglect 
 to come in, and on his undertaking to rank after a puisne 
 incumbrancer who had already proved his claim. 
 
 It is true that in Ross v. Stevenson (.s) an incum- 
 brancer who had proved on one mortgage was let in to 
 prove on another, and consolidate. But in that case the 
 parties i)rejudiced were solicitors, who were aware of 
 the existence of the second mortgage. 
 
 Application Duly Made. — In Cameron v. Wolfe Is- 
 land Co. it), Holnhsted, R., considered the application 
 jtroperly made in Chambers. This of course would be 
 in cases where the Master's report is completed, until 
 which lime the application would be to the Master. 
 
 750. When all parties have been duly served, the Master shall 
 tako an account of what is due to the plaintiff, and to the othor 
 Incumbrancers (if any), for principal money and interest ; and 
 tax their costs, and settle their priorities ; and appoint a time 
 and place, or times and places, for payment according to the 
 practice of the Court. Con. Rule 130. Chy. O. 448. 
 
 Changes in Wording. — "Shall" for "is to"; "the 
 other" for "such other"; "incumbrancers" for "in- 
 cumbrancer or incumbrancers"; "and tax" for "and 
 to tax to them"; "and appoint" for "and also to ap- 
 l)oint." 
 
 751. On any proceeding for foreclosure by, or for redemption 
 against an assignee of a mortgagee, the statement of the mort- 
 gage account, under the oath of such assignee, shall be sufficient 
 prima facie evidence of the state of such account, and an affidavit 
 or oath shall not be required from the mortgagee, or any inter- 
 mediate assignee denying any payment to such mortgagee or 
 Intermediate assignee, unless the mortgagor or his assignee, or 
 
 (/•) 7 P. R. 445 (1879). 
 
 («) lb.. 2f'. (1S77). See further Sterling v. Campbell, 1 
 Ch. 147, great delay In service of notice. 
 (0 r. R. 91. 
 
 Chy. 
 
UULES OF I'UACTICE. 
 
 187 
 
 the party proceeding to redi'i'm, donli's by oath or nffldavlt the 
 correctm'ss of such statement of account. R. S. O., 1897, c. 102, 
 s. 11. 
 
 752. The Master's report shall state the names of all persons 
 •who have boen made parties in his office, and who have been 
 served with the notice or appointment hereinbi'f»>ro provided 
 for, and the names of such as have made default, and [shall set 
 forth the amount of the claims and] priorities of such as have 
 attended, and these latter shall be certified as the only incum- 
 brancers upon the property. Con. Rule 131. Chy. O. 449. 
 
 CiiANGKS IX Wording. — " Sluill '' for "imist"'; and 
 "arc to"; "shall set foriii the ainonnt of the claims 
 and priorities" for " must settle the priorities, etc.''; 
 "property" for "estate." 
 
 753. Subsequent accounts shall, from time to time, be taken, 
 subsequent costs taxed, and necessary proceedings had, for re- 
 demption by, or foreclosure of, the other parties entitled to 
 redeem the mortgaged premises, as if specific directions for all 
 these purposes had been contained in the judgment. Con. Rule 
 132. Chy. O. 452. 
 
 CiiANGF.s i\ Wording. — '* Siibseciuent accounts" 
 for "all subsequent accounts"; "shall" for "are to"; 
 "])arties" for "i>art.v or parties." 
 
 SunSKQUENT ACCOUXT.S; iNSfRANCE PREMIUMS. — In 
 
 liethune v. ('alcutt(jO. after several of the subsecpient 
 incumbrancers had been foreclosed, the plaintilT paid an 
 additional sum for insurance, and in takinu: the account 
 consequent on the last of such foreclosuics, the Master 
 had allowed the additional preniliim paid for insurance 
 together with interest on it, and added il to the amount 
 found due by his report. The item was allowed by th«' 
 Court. 
 
 754. If the judgment directs a sale instead of foreclosure on 
 default in payment, then on default being made, and an order for 
 sale obtained, the property shall be sold, with the approbation of 
 
 (ii) .'{ (ii'. (548 (IS.'*.*}), there was a provision in the mortuaue 
 deed for liisiiranoo, otherwise the item would not be allowed; see 
 Bcaty V. Hluke, 5 Gr. at p. 300 (1855). 
 
 II: s!« 
 
 ,'' 
 
 I 
 
 > i\ 
 
 i t 
 
 t|.i 
 
 
188 
 
 FOUECLOSUHK OF MOUTOACJES 
 
 O 
 
 !1'' 
 
 i 
 
 the Mnster, who shall settle the conveyance to the purchtiaor In 
 case the parties differ about the same; and tho purchaser shall 
 pay his purchase mcmey into Court, to the credit of tho action, 
 subject to further order. Con. Rule 133. Chy. O. 453. 
 
 CllANGF-S IN WORDINT.. — " PrOjMM't V slmll " foi' " pi'C- 
 
 miKCs arc to"; " wlio nliall setll*'" for "and ho is to 
 FCttIo''; '• inn'cliascrs sliall" for * purchasers arc to"; 
 "further order" for "the fiirther order of the Coiirl." 
 
 Thk TKKMtsKs AKI-: TO luc Soi.i). — Thc sale shouhl al- 
 ways !»<' of only so much of the niortjjaj^ed prenilscs as 
 will sufllce to satisfy (lie nior(},'a};c debt (/). There should 
 be only one advert isenicnt. and one sale, the portion of 
 property last sold by the niortfjagor to be the first of- 
 fered for sale (n). 
 
 Where the defendants think that a certain portion 
 will be sufficient, they may attend the settling; of the 
 advertisement, and see that a reservation is inserted, or 
 attend the auction and notify the audience of the reser- 
 vation or bid on the lots that should not be sold (j*). 
 If. however, there is mare aetually sold than suttieient 
 1o realize the debt, an innocent purchaser will be pro- 
 tected in his bargain (//). 
 
 755. The purchase money, when so paid, shall be appliod in 
 payment of what has been found aue tc tho plaintiff and the 
 other incumbrancers (if any), according to their priorities, to- 
 gether with subsequent interest, and subsequent costs. Con. 
 Rule 134. Chy. 0. 454. 
 
 Changes in Wcjrding. — "Shall be applied" for "is 
 to be applied"; "other incumbrancers" for "other in- 
 cumbrancer or incumbrancers." 
 
 Execution Creditor Since Creditors' Relief 
 Act. — The application of the Act is that after paying 
 the mortpagee his principal, interest and costs, the bal- 
 ance is to be divided ratably between the execution 
 
 (r) Barker v. Eccles, 17 Gr. at p. 281 (IS70). 
 (ir) lb. 
 . (.r) Reaty v. Radenhnrst, 3 Chy. Ch. at p. 34G (1871) 
 (V) lb. 
 
IIULES OF IMIACTICE. 
 
 180 
 
 crt'ditoi's and uny other cxcculion creditoi'8 who may 
 come in before the Master on his calling for such chiims 
 before report on sale (c). 
 
 75G. Lpou a reference iimlor a Judgment for redemption, the 
 Master shall, without any spocial direction, take an account of 
 what is due to the defendant for principal money and interest 
 and his costs shall be taxed, and a time and place for payment 
 f'.ppointed according to the practice of the Court. Con. Rule 135. 
 •T. A. Rule 332. 
 
 Changes in Wording. — " Tlio Master shall " for 
 ''the Mijster is to"; "costs shall" for "costs are to"; 
 " place for piiyment appointed " for " place or times and 
 places ap[K)inted for payment "; " practice of the Court " 
 for " i)resent practice of the Court in that behalf." 
 
 Redf.mption not Allowed Except on 1'ayment. — 
 The jjeneral rule is that a sale by a mortjiaf^ee will be 
 restrained only on ]tayment into Court by the morlj^ajior 
 of the amount which the mortfjajiee sweais to lie due to 
 him, but this does not apply where the Court can see on 
 the terms of the deed that this amount cannot be due on 
 the security (a). Nor does it apply wheie the mortj^agee 
 was the solicitor for the mortj?a}jor (6). 
 
 Redemption, Disputed Kigfit to. — AVhere there is 
 a dispute as to the rlKht t(> rcdcon), the party seeking; 
 redemption may obtain an order restrainiufj the mort- 
 j^agee from assigning the mortgages and dealing with 
 the legal estate until the hearing. Such order will 
 be in the form of an injunction against "transferring or 
 assigning the mortgage secuiiti<'S " and from "con- 
 veying away or otherwise dealing with the legal 
 estate in the hereditain<'nts comprised in the mortgage 
 securities, or parting with the title deeds relating 
 
 <s) Boyd, C, ill Harvey v. McNeil. 12 V. R. 3(52 (ISSft). 
 
 Seinlile— Old form of decree In foreclosure Kiviu« exeiution 
 creditors as snhsecpient ineuniltraiicers iil)(>rty to redeem according 
 to their priorities, is no longer applicable. 
 
 (n) Ilickson v. Darlow. 23 Ohy. D. 690 (1883). 
 
 (ft) Macleod v. Jones, 24 Ohy. D. 289 (1883). 
 
 : i 
 
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 190 
 
 F(JUECL()SUHE of MOU'KJAOEH. 
 
 i: 
 
 f 
 
 Ihoroto " iintn the lM>ariiiK of the cause or the further 
 <»r(]i'r of the ('ourt (c). 
 
 757. Where the Judgment Is for redemption or foroclo8urt\ 
 or redemption or sale, aiich procoedlnga are in such coso to be 
 thereupon had, and with the same effect as in an action for fore- 
 closure or Hale, and In such case the last Incumbrancer ihall be 
 treated as th»» owner of tho equity of redemption. Con. Rule 136. 
 J. A. Rule 335. 
 
 Cn.wc.KS IN' WoRnixo. — ".ludfjuieut " for ''order"; 
 " shiill be treated " for " is to lie treat«'d." 
 
 Mkaninc. of ".\i<r-: to"; Qi'.kkk. — Wlien so many 
 times the jtlirases "is to" and "an* to" have been re- 
 jdaced by '' sliall," wh.v is it left "are to be thereupon 
 had "? * 
 
 758. [Subject to the provisions of section two of the Act re- 
 specting Mortgage's of Real Estate] in nn action for fore- 
 closure or Bale upon payment by the defendant, or in 
 an action for redemption upon payment by the plain- 
 tiff, of the amount found due. the plaintiff or defendant 
 shall, unless the judgment otherwise directs, assign and convey 
 the mortgaged property in question to the defendant (or plain- 
 tiff, as the case may be), making the payment, or to whom he 
 may appoint, free and clear of all Incumbrances done by him, 
 and deliver up all deeds and writings in his custody or power 
 relating thereto, up(m oath, and in case of a corporation the affi- 
 davit shall be made by the officer thereof having the custody of 
 such deeds and writings. Con. Rule 137. J. A. Rule 336. 
 
 CifAXGES IN WoRDiXG. — Tile clause " Subject — Real 
 Estate " is new. 
 
 "Upon Paymknt i?v." — The niortjrap'e may fiet the 
 money out of Court either on consent or by making a 
 motion at his own costs. The reason is that " the party 
 paying in the money should have an opportunity of rais- 
 ing any objection to the payment out thereof (such as 
 the non-delivery of the title deeds to which he might be 
 entitled on such payment) on any motion the party en- 
 titled to the money might find it necessary to make " (J). 
 
 (e) Rhodes v. Burkland. 1(5 Rear. 212 (1852). 
 (d) Bernard v. Alley, 2 Chy. Ch. (U (ISGti). 
 
IIULEH OF PllACTICE. 
 
 191 
 
 " Plaintiff or Dkfkndant." — Inrliid(>A ji jiMl^nuMit 
 oiM'ditor, who should be n-ady to iiHHigii his jnd^incnt 
 to a Hul)Ko(|ii(>nt iiH'unibranccf nMlcciiiin^ him {v). 
 
 " Assir.M ANO CoWKV." — A moi'tfjjijior oi- olhrr per- 
 son i'('«hM'iiiinf; is not coinpcMcd to iicccpt a statuloiy dis- 
 charge, but has a v\ii\\{ to obtain (at his own r\|)cns('> 
 from the moi'tf^a {?«'•' a deed of i'<'oonvoyan((' of the mort- 
 iiiXiH' promisi >. including a covonant ajjainst incum- 
 brances if). (»•' lie may. if he prefer, take a vesting' order 
 instead of the discharfj;e {(/). 
 
 "To TIIK DF.KFNnAXT, KTC, MAKING TUF. rAVMF.XT."^ 
 
 — -If more than one defendant makes the payment the 
 reconveyance is to the one liavinj; tlie ])rioi' ri};lit to 
 redeem (h). If the def<'ndant making: the payment is 
 not tlie one havin;; priority, (\'^., if he is tlie mortfjaj^or, 
 and there is si second mortfja^ee or assijjjnee of tlie 
 0(|uity, the conv<'yance to him must puard the ri^lits of 
 the otliers interested (i). 
 
 Where there are several mortpajjors, the mortfjajjee 
 must not convey to one only to the injury of the 
 others (/). 
 
 " At.l Df.fds," etc. — The party redeeminj; is entitled 
 to the delivery of his title deeds before the money is i)aid 
 out of Court (/,), and may therefore refuse his consent 
 to i)ayment out and attend on any motion of the mort- 
 jjajjee for that purpose!/). 
 
 (f) Hmik III" Itritisli Nortli Amcricii v. Monn', 8 (Jr. -ItU (ISCO). 
 
 (f) MfLomiiin v. McLean. 27 (Jr. ."I (1S7!»». 
 
 (!l) Kills V. Kills. 1 Chy. (.'h. 'J.'.". 
 
 (//) Tei'viiii V. Smith, 20 Cliy. D. 724 (1SS2). 
 
 (/■) S.'.> rfurct' V. Mollis. Tj. U. .-» Chv. 227 (lS<V.t): Kliiiian) ;. 
 
 Tioiioi)o. '.\u rii. D. c,:\r, dsss): iiov,] v. r.-tiif. l. u. ii> k.|. is2: 
 
 7 <'liy. .'?!t2 (1S72): llamilton I'mvliliMit L. & I. To. v. Siiiilli, 17 
 
 (). K. 1 (l.SSSj. 
 
 (/) Maumis V. Qiieonslnnd Nntioiial Bank. .V. Thy. D. 2.'; .'iT 
 Cljy. I>. 4tl(i (1SS,S): case of trust proitcrty. 
 
 (/O Weeks V. .^toiirteii. 11 .Tiir. \. S. 27S (18(m). 
 
 (/) Bernard v. Alley, suprn. 
 
 I, 
 
192 
 
 FOiJECLOSUUE OF MOllTCSAGES. 
 
 '! ' 
 
 Wlien? a inortgngco loses tlu' inortfjfaj^o deod he is 
 hound, at his owu expense, (o furnish the inortf^agor with 
 HUili evideuee of the h)ss as tiie nu)rt}j;ajj;or nuiy reiiuire to 
 produce in future dealinj|;s lespeiting the property; and 
 with an indemnity against any demand tiiird persons 
 \ni\y have aetjuired by deposit of the deed or otherwise 
 to tlie money or any part lliereof (»/). 
 
 Upon Oath. — Tliis seems imperative. In Weeks v. 
 Stourton (//), we llnd tiu» following statement: "In the 
 ju'esent case we have the ''ommon decree directing and 
 fixing tlu' time and i)lace and delivery up on oath of the 
 security and all documents, etc., and in default that the 
 premises should lie sold. Now, on consulting gentlemen 
 accustomed t() these* matters, they state that they never 
 knew an instan<'e where the altidavit question has arisen; 
 si ill it is usual to have one, and no doubt the mortgagor 
 can HMjuire it. but it nnist be at his ova expense, the 
 costs of such atVidavit not being included in the bill of 
 costs which is taxed before the certificate. IJut if the 
 morigagor docs requiic it, he should give tlu' mortgagee 
 notice, an<l then when the costs are taxed prospectively 
 tlu' costs of the aflidavit will be iiicluded and certilied 
 as unpaid. 1 do not sjjy that notice nuist necessarily 
 be given, but it would be very convenient." 
 
 In this case the sudd(Mi request for an aflidavit was 
 probably convenient to tlu» moitgagor, for it mutle the 
 Court enlarge the day of i>ayment a fortnight. 
 
 846. A judRnient for tho recovery or for the delivery of the 
 possession of hind mny bo enforced by ■writ of possession. Con. 
 Rule 8fi8. J. A. Rule 341. 
 
 D(ii:s Rrr.E S40 Appt.y to Forf.ci.ost'rf.? — It has 
 been held that an order for foreclosure absolute is not a 
 judgment within the meaning of this rule (o). But it 
 
 (m) McDonnld v. Hlme. !.'> Gr. 72 (1868). 
 
 (n) 11 .Tur. N. S. 278 (1865). ' ] 
 
 (o) Wood V. Whenter. 22 Chy. D. 281 (1882). 
 
HULKS OK PllACTICK. 
 
 19.'J 
 
 would apiK'iif dial (lie onlcr for delivery of posscsHioii 
 Ikmii^' a ju(l};iiu'nt in so many It-rniH for IIh' rocovny or 
 for the (k'livt'iy of (he pOKstsHion of the land, and wiiich 
 Ih now usually incorporated in a forecIoHure judgnM'Ut, 
 would 1m' within the rule (/>). 
 
 847. Where by any jiKJgnient nny person therein named is 
 directed to deliver up imssession of any lands to some other pcr- 
 8«)n on or at any speeifled time after being served with the Judg- 
 menl. the person prosecuting the same shall, without any further 
 order for that purpose, be entitled to issut- out a writ of possession 
 on filing :m afHd.ivit showing due service of the judgment and 
 that the same has not been obeyed. Con. Rule 8t;!>. J. A. Rule 
 380. 
 
 M.ATF.RiAi, ON Which to Oht.mn' Wkit.— The afll- 
 davits in support of a motion for a writ of assistance (r/) 
 did not recpiire to allej^e a refusal to n'Wi' p<>ssession up 
 to th(^ tiiiu; of m:ilvin;>; the motion, hut merely during the 
 time limited for compliance with the order to givi' up 
 pos.session ir). 
 
 Wiii:\ Ni:\v Writ May iik Sukd Oct. — Where tln' 
 plaintitV had heen put in possession of laiul under a writ 
 of possession, which was thereupcm returne«l by the 
 sherilf an exi'cuted and the <lefrn«lant less tlien a year 
 afterwai'ds r<j;aine<l i»ossession and Uept the ]>laiiitilT 
 out, no change having (»ccurred in the tith> in the mean- 
 time. Held, that the plaintitV was entitled to a new 
 writ of possession (.s). 
 
 848. A writ of possession shall have the effect of a writ of 
 assistance as well as of a writ of habere facias possessionem. 
 Con. Rule 861. J. A. Rule 381. 
 
 (/») See lb. 
 
 («/) Now iiicorponitcd iu a writ nf posscsslmi. Sn' Uiij'' MIS. 
 
 (»•) \Vi'l)st.'r V. Taylor, IS .Inr. SiHt (1S.->1|. 
 
 (h) Ti tor v. Weller. 3 (". L. T. .".I (iss;ti. Cf. St!i(ii(...li- v. 
 
 Walsh, Ir. K. U (^ U. 1>. 444. See Mcneniiolt v. .Mchcrniott. 4 
 P. H. y.Vi; I'Mwnnls v, ll.Min.-lt, .". IV U. H'.l ; Duo d. IVck v. Iloo. 
 2 U. C. R. U7, as to defendant retakiu),' possession. 
 
 H.r.M.— 13 
 
rt 
 
 JM 
 
 FOUECLOSUUE OF MOUTGAOES. 
 
 A8 far as leall.v goes, the writ of possession has su- 
 pei'!*e(Jed Ihe writ of assistance (t). 
 
 1167. All bills of costs or disbursements in actions for the 
 administration, or partition, or for the foreclosure, redemption, 
 or sale of mortgaKed premises, and all bills in other actions where 
 the amount is to be paid out of an estate or out of a fund in Court, 
 or in which any inJant. lunatic, or person of unsound mind is in- 
 terested (or which is to bt> paid out of any estate in which any in- 
 fant, lunatic, or perstm of unsound mind is interested), shall be 
 revised by one of the Taxing Officers at Toronto, before the 
 amount thereof is inserted in any certificate, report, judgment or 
 order. Con. Rule 1207. J. A. Rules 439 and 593. 
 
 <'ii.\N'(;i:s IX WoRDiNT,. — "For tli*' inlniinislratioii or 
 j)artiti()ii " lor '* broii^xlit for the aduiinish'.ition of an 
 • Htalc or for paitilion "; "is to be j>aid " for " shiill he 
 pavalile"; "slitill he levisiMl " for "are 1o he revised"; 
 " jii(lp;iiieTil or oi(h'i'" for "order or jiuljiiiieiit." 
 
 Find ix Coirt. — I cannot lind anv salisfactory 
 jiroinul for hohliii;;' lliat the expression "a fnnd in 
 Coiiit " has a leehnieal nieanin«;, wliieli makes il mean 
 somei liinj; dilfeieiil from ** a sum of money in ( 'otirt " in). 
 ('onse(|tieiitly, in llie ehisses of etises mentioned in litis 
 seetion wherein there are moneys in Court out of which 
 the phiinlitV's «osls are made payahh> by I he terms of an 
 order, the deleiidanls are enlith'd to a levision by a ta.\- 
 iiig (dfieer al Toro ito before a cerlifh'ale of Hie amount 
 is },'iven ((•). 
 
 For Ihe prineiph's on wliieli eosts are taxed In such 
 cases see Brown v. liurdeli (/r). 
 
 11(18. In any such case no s\iin is to be inserted in the re- 
 port of a I.o<iil Master or other officer as taxed and allowed for 
 costs, until such revision by a Taxiuj^ Oflicor : but In a case of 
 
 (7) Wyiiiiiu V. KiilK'lit, :«) Chy. I>. Km (ISSS), not ho ns to chat- 
 tels. S.'e also Hull V. Hall, 47 L. J. Ohy. OSO. 
 
 til) ('onslni'ua v. London IMrc Inn. Co., l.'J 1'. H. nt p. 44. 
 Street, .1. 
 
 (I) lb. 
 
 (») 40 Chy. D. 244 (1888). - , 
 
RULES OF PRACTICE. 
 
 195 
 
 P 
 
 urgency a writ of execution may bo issued to levy debt or coatc, 
 or both, upon the order of a Judge, subject to the future revision 
 by the Taxiuu Officer. Con. Rule 1210. Chy. O. 313. 
 
 1169. Pending a revision, judgment may be entered and 
 execution issu(>d, unless tho Court or a Judge otherwise orders ; 
 and in case of an execution being so issued, if the amount taxed 
 is reduced on revision, the parly entitli'd to tht» costs shall forth- 
 with give notice of the reduction and of the amount thereof to 
 the Sheriff or other officer in whose hands the execution had been 
 placed ; and the amount struck off on the revision shall be de- 
 ducted from the amount indorsed on the execution. Con. Rule 
 1211. J. A. Rule 439 (rf). 
 
 1170. A Local Master or other '.ocal officer shall forthwith, 
 iilter taxing any such bill of costs, transmit the same by mail to 
 Torontit, addressed to the proper Taxiiif» Officer, and he shall 
 allow in the bill the postage for the transmission and return of 
 the bill ;ind shall prepay the same ; and shall allow in the 
 bill tho sum of one dollar as a fee for the revision of the bill by 
 tho Taxiuf,' Officer at Toronto, ;md a law stamp for that sum, with 
 postage stamps for the postage, shall be paid at the time of tax- 
 ation ]>',' the party procuring the bill to be taxed ; and the Local 
 Masiot or other officer shall transmit with the bill to tlio Taxiii<» 
 Officer at Toronto, the law stamp, and the necessary stamps for 
 postage on the return of the bill. Con. Rule 1208. Chy. O. 311. 
 
 For Appeal from Local Master's Taxation. — &>oo 
 Grant v. Grant (//), Crowo v. Steeper (.-). 
 
 1171. The Taxiu}4 OfHcer at Toronto, upon receiving the bill 
 of costs, shall examine the same, and mark in the margin such 
 sums as appear to him to have been improperly allowed, or 
 to be questi«»nabie ; and he shall revise the taxation either ex 
 parte, o'- upon notice to the Toronto agent of the solicitor whoso 
 bill is in question, as he may see fit ; but he shall notify such 
 agent (if any) in all casts where the taxation is not clearly 
 erroneous, or where the amount in question is so large as in the 
 judgment of the Taxiii}^ Officer, to make such no'tification proper. 
 The notification may be by appointment mailed to the address 
 of the agent (if any). If upon the revision the sums disallowed 
 
 (.r) 10 P. U. 40 (188.*$). 
 [y) 2 C. L. T. 88 (1882). 
 
 (z) Keim v. Yeagley, P. 11. 60 (1873). Cf. Re Robertson, 24 Gr. 
 555 (l»77). 
 
 - , I 
 
 III' 
 
I 
 
 196 
 
 FOUECLOSUllE OF MOUTOA(iES. 
 
 ■\- ■ 
 i. 
 
 i:i I 
 
 amount to one-twentieth of the amount allowed upon tax- 
 ation, the Taxing Officer shall add to the amount taxed ofT the 
 amount of postages, and the sum of one dollar aforesaid, and 
 shall thereupon re-transmlt the bill so revised to the Local Mas- 
 ter or other officer. Con. Rule 1209. Chy. O. 312. 
 
 "Tmpropkrly Allowed." — This includes items ini- 
 p/operly (lisullowcd; the tnxinp: oflicei* has a {;«'iiei'iil 
 powei' of revision (a). 
 
 For limits of taxinfj master's discretion, see Ed- 
 wards V. Pearson (?>); Keim v. Yeagley (r). 
 
 (a) Kolm V. Yengley, P. R. 60 (1873). 
 24 Gr. .'i.^).! (1877). 
 
 (h) [\ C. L. T. 504 (1883). 
 
 (t) Supra. 
 
 Of. Re Rohertson, 
 
^^ 
 
 HI : 
 
 PART III. 
 
 A COLLECTION OF STATUTES 
 
 ASD SEOTIOHS OF STATOTES IN FOSOE IN ONTARIO 
 
 AND EELATINQ TO THE LAW OF MOETOAGES 
 
 WITH OASES AND ANHOTATIOHS. 
 
pill 
 
 m 
 
R. S. O. 1897, CHAPTER i2r. 
 
 An Act respecting Mortgages of Real Estate. 
 
 ISTEIirnETATION, 8. 1. 
 
 Paut I.,b8. 217. 
 
 OltMOATION TO TRANSFEK MOnXOAOK, 
 
 B. 2. 
 ISSPKCTION OK TITLE DEEDS, B. 3. 
 ApI'I-ICATION of INS17HAXCE MONEY, B.4 
 ImI'MED COVENANTS, 88. 5-7. 
 IIeLKABK ok KyUITY OF KEDEMl'TION, 
 
 88. HIO. 
 AsSI(lN.\fRNT IIY KXKCt'T0K8. 
 DiSCIIAIUIE OF MOnrOAOE MAY BE 
 
 made at any time, 8. 12. 
 Effect of advance on joint ac- 
 count, 8. 13. 
 
 ReCEIPTH of MOUTOAOKE oil HCR- 
 VIVOU OK TWO oil MOIIE MOItT- 
 (lAOEKS, ETC., TO HE EFFECTUAL 
 DIBCIIAItUES, a. 14. 
 
 RiOHT OK MOIlTdAflEE TO DIBTIIAIN 
 LIMITED, 88. 1.5, Ifi. 
 
 Payment akteii dekault without 
 
 NOTICE, 8. 17. 
 
 Paiit II., 88. iH-ao. 
 
 POWEK OK 8AI.E AND INCIDENTAL 
 POWEllH TO HE IMPLIED, 8H, 
 18-'2!>. 
 
 Taxation ok costs, b8. 30-.H2. 
 
 Paiit III., hs. 31-31. 
 
 Restuiction ah to piioceedinos on 
 
 MOIiTOAOKB, 8. 31. 
 
 Payment in teiims ok notice to he 
 
 accepted, 8. 32. 
 Dekence of purchase for value 
 
 WITHOUT notice, 8 33. 
 
 Time within which ceiitai.n bales 
 may i>e questioned, b. 34. 
 
 H! 
 
 ;'s 
 
 'Iji 
 
 If ER MA.IKSTY, hy Jind with the advice Jiiid coiisout 
 ^ ^ of tln' LojfisJjitivr Assembly of tiie I'rovince of 
 Ontario, enacts as follows: — 
 
 I. Where the words following occur In this Act thi'y shall be 
 construed In the manner hereinaft»'r mentioned, unless a con- 
 trary Intention appears: — 
 
 (1) " Property " includes real and personal property, and 
 any debt, and any thing in action, and any other right or 
 interest. 
 
 (2) " Land " Includes tenements and hereditaments, cor- 
 poreal or incorporeal; and houses and other buildings; also an 
 undivided share in land. 
 
 (3) " Conveyance " Includes assignment, appointment, lease, 
 settlement, ar ^er assurance and covenant to surrender, 
 made by deed, o.. a sale, mortgage, dt-mlse, or settlement of 
 
 ni!^ 
 
 \\ 
 
 ii-~" 
 i I 
 
200 
 
 I'OllECI.OSUllE OF MOllTOAOES. 
 
 Hi 
 
 i;l ' 
 
 any property, or on any other dealing with or for any property; 
 and " convey " has a moaning corresponding with that of con- 
 veyance. 
 
 (4) " MortgMg«' " includes any charge on any property for 
 securing money, or monoy's worth; and "mortgage money" 
 means money, or money's worth, secured by a mortgage; and 
 " mortgagor " includes any person from lime to time deriving 
 title under the original mortgagor, or entitled to redeem a 
 mortgage, according to his estate, interest or right, in the 
 mortgaged property; and "mortgagee" includes any person 
 from time to time deriving title under the original mortgagee. 
 
 (5) " Incumbrance " includes a mortgage in fee, or for a less 
 estate, and a trust for securing money, and a lien, and a charge 
 of a portion, annuity, or other capital or annual sum; and 
 " incumbrancer " has a meaning corresponding with that of in- 
 cumbrance, and includes every person entitled to the bi-neHt 
 of an incumbrance, or to require payment or discharge thereof. 
 R. S. O. 1887, c. 102, s. 1. 
 
 The (loJinitions hero are taken from 44 & 45 V. v, 
 41 (Imp.), 8. 2. 
 
 In the Im])(M'iiil Act, at tlie end of the definition of 
 " inort^u}?ee," the following ftn'tlier definition oecurs: — 
 *' and mortj;aj;<'0 in poMsession is for tlie purposes of this 
 Act a mortgagee wlio, in riglit of the mortgage, has en- 
 tered into and is in possession of tlie mortgaged pro- 
 perty." Wliicli our Legislature has omitted. 
 
 The various meanings that have been assigned to 
 "mortgage" and "incumbrance" may be found t'ollect- 
 ed in Stroud's Judicial Dictionary, at pp. I5S-, 482. 
 
 TART I. 
 
 8. (1) Where n mortgagor is entitled to redeem, he shall, by 
 virtue of this Act, have power to require the mortgagee, instead 
 of giving a certificate of payment or re-conveying, and on the 
 terms on which he would be bound to re-convey, to assign the 
 
h) 
 
 ACT UKSl'ECTINfi MOUT(JA(JE.S OF IlKAL ESTATE. 
 
 201 
 
 mortgage debt itiul convey the mortgaged property to any third 
 person, as the mortgiigor directs; and the mortgagee shall, by 
 virtue of this Act, be bound to nsslgn and convey accordingly. R. 
 S. O. 1887, c. 102, 8. 2 (1), 
 
 (2) The right of the mortgagor under this section to require 
 an assignment, as aforesaid, shall belong to and be capable of 
 being enforced by each incumbrancer, or by the mortgagor, not- 
 withstanding any intermediate incumbrance; but a requisition of 
 an Incumbrancer shall pr(>vull over a requisition of the mortgagor, 
 and as betv«".u incumbrancers a requisition of a prior incum- 
 brancer shall prevail over a reciuisition of a subsequent incum- 
 brancer. fiO V. c. 15, Sched. A. (23). 
 
 ASSIC.NMKNT ()!•• MoKTC.ACK IN Lll-X' OF Re-CONVKV- 
 
 ANCi:. — The ^jjciu'ral ('licet of lliis sect ion \h to supple 
 mciit lli«' iii(nl}j;iij,f()r's i'i;!;lit to a rc-coiivovancr, by a 
 li^ht to an assinimu'ut of the inoilfjia^c dcltl. Tin- law 
 aH to I'c-c-onvryaiirc is tlms slated by Itytliewood & .lai- 
 Jiiaii(((|: " Wlicie a lejjal seciiiity is icdccnn'd hy tlu* 
 mortjjtafior, or hy any oliici' pt'isoii fiaiininji: uiuh'i' him 
 as a siihst'qucnt niorl;xa;i(M' of otln'i'wis*', tiic niorlj;a};«*(' 
 iiinsl sariTiidt'f, or rc-coiivcy llic proptTly to tla* jK'rson 
 rcdei'iiiiiiji, lice from iiiciimhianccs hy llic m(»i'l^a}j;«'(', or 
 any person claimiiii; nn<h'i' liim, and ninst (U'liver np all 
 deeds an«i donimcnis relating to the properly: and, if 
 re(inired, verify sneli delivery hy allidavit " (^). 
 
 The same authors also say(r): ''Formerly a mort- 
 ;;aj;;ee oonld not bo compelled to assi};n the security 
 either to the mort};;af;or or a new niortfj;a;;»'e on redemp 
 tion, or to a purchaser on payment of the mort^aj;*' <lol»t 
 out of the i>rocoeds of a sale of the property; he was 
 merely bound to re-convey to the owner of the etpiily 
 of redemjition " ((/). 
 
 Ui) ('..nvoynncinn. Vol. III. (4tli Kd.) llHrt. 
 
 ih) Citiiig foi this latter statement, Wcciis v. Slotirton, 11 Jur. 
 N. S. 1»TS (lS(5.-»). 
 
 (r) Vol. Ill, (1th Ed.)lMJ2. 
 
 (»/t Citing Smith v. (Jreeii, 1 Col. HCa (1844); Dunstm v. ratter- 
 ton, 2 I'h. 341 (1847). 
 
202 
 
 FOUECI.OSl'UE OF MOimiAOKH. 
 
 '■)1|. 
 
 I ' 
 
 WnKRi-: A MoRTOAr.oR is K\titi-i:i) to Rkokkm. — 
 *' Murt);iiKor in here used in tlu* wide si'iise iiientioiied 
 ill He<'(i(»ii 1 (4). Moi't^a^e iH jiIho UHed in its wide seiiMt' 
 aceordiiiK to tlie siini(> Hection. TIiuh, in an Kii^MhIi 
 cHHe (f'), it wiiH ]M'(»vided in tlie artieleH (»f aHsocialion of 
 a coiiipan.v tliat tli(> ('(Miipany Hlionld liave a tlrsl lien on 
 tlie Hluires of each iiieiiitM'i* for IiIh debts to the coinpany. 
 TliiM lien was held to lie a eliar^e within the iiieanin^ 
 of Hi'ttion -(/"i; and «'onseinieiitly Hertion !')(//) applied, 
 and entitled a shareh(d«l(>r to re(|iiire the ronipany, on 
 payment of the siiiii due, to asHi^n the debt an<l their 
 lien on the HhareH to IiIh nominee. 
 
 Ok (ilVINC. A t'KKTIlMCATK OF PaYMKN'T. — Tlu'SO 
 
 words are not in the Imperial Act, but have been in- 
 serted in our own, with refer«'nce to a section in our 
 I{e;>istrv Act ili). \l\ section 7t» of that Aci ;i crrlitlcate 
 in the form jirescribed, when re;;istered, "shall be as 
 valid and etVectual in law as !i release of the imMt}j;aj;e, 
 and a conveyance to the imirt^ajjor, his heirs, etc., of 
 the ori;;iniil estate of the moi'tjiat;<M'." 
 
 Ok |{i:-( ().\\ I'.V'.nc. — Teevan v. Smith (i), is a deci- 
 sion on this si'ction which has ;jiven rise to c<uisiderable 
 per]dexity, and at the same time contains much valuable 
 matter; .lessel, M.K.: — "When we come to look at that 
 section it appears to me quit<' plain what the iiieanin^ 
 of it is. We must renu>mber what the law was before 
 that Act WHS passed. A mortj,oi<;oi' had only a ritrjit to 
 redeem ami to have ji re-conveyance on paynu'nt of the 
 morl^a};e debt. Ih'iice a ditticulty arose, for lenders 
 were willing to advance money if they could have a 
 transfer of the niortnajje security, but were not williii}^ 
 to take a security directly from the mortjjaj^or, dreading 
 
 ((■) KviTitt V. Automatic WoiKliiiiK Miuhine Co., L. U. 1S!)1», ;{ 
 
 Ch. not). 
 
 if) Our s. 1 (J). 
 
 Ul) Our H. U. 
 
 {h) U. S. O. 1807. c. 130, s. 76. Cf. s. 12 of this Act. 
 
 (0 liO Cli. D. 71M (1882). 
 
ACT HESPECTINO MOKTOAOES OF HEAL E.STATE. 203 
 
 intermediate inounibrnnces. At that time the debt was 
 not transferable, 8o that a power of attorney wan neces- 
 sary; therefore the old decisions were rijjht, in hiyin); 
 down thut a mortgajfee was not to be re(jnired to run 
 the risk of b(>inf; made liable to costs, which he mi^ht 
 be, if he transferred the debt to a third person. Now 
 the dittlculty has been ^ot rid of, bv making tiie debt 
 transfi'rable at law, so that no power of attorney is n'- 
 quired, and all ^I'ound of objection on tlie jiait of the 
 mortjiajjee to transfer the security is taken away. It 
 can do him no harm in any way. 
 
 "Then, what are the words of the l.Tth section of 
 the Act of ISSl? It says, 'where a mortfiaj^or is en- 
 titled to redeem.' Every mort^a{j;or is entitled to re- 
 deem, but there is a ditfereuce in their rijjhts. Where 
 there is one mortj;a}j;or and one mortjia^Cf, tlicre, of 
 course, his ri^ht to redeem is absolute. IJut where there 
 are several suc<'essive mortpajjes, the mortj^af^or can 
 redi-em the next to him witliout redeennn}; any other; 
 but, if he wishes to redeem any anterior mort};ajj;e, he 
 must also redeem all who are between that mortj^ajiee 
 and himself. ... So that the words ' where a mort- 
 gagor is entitled to redeem ' really includes every mort- 
 gagor, except a mortgagor who is precluded by some 
 special term in his mortgage-deed from redeeming with- 
 in a specific time. 
 
 "Then it says, 'he shall have power to reipiirc the 
 mortgagee instead of re-conveying,' etc. . . . It is 
 only " instead of re-conveying.' The section assjimes 
 two things: First, that the moitgagee is bound to re 
 convey to the person applying to him; and sccoiully, that 
 tlie transfer is to be instead of a re-conveyance. Then 
 see how it works. AVlu're therc^ are first and second 
 mortgagees, and the first mortgagfe has notice of tlie 
 second, when he is paid oft' he becomes a trustee of the 
 legal estate for him. The word 're-convey' is tlu? pro- 
 per word to use; it is strictly a re-conveyance. If the 
 first mortgagee is paid off by the mortgagor, he is not 
 
 lit, 
 
 
 
 i 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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204 
 
 FOllECLOSUllE OF MOllTGAGES. 
 
 'I 
 
 l!!!: 
 
 ht' 
 
 ,„^ 
 
 bound to re-convey the estate to him; but, if he is paid 
 off by the second mortgagee, he is bound to re-convey 
 to him. The second mortgagee is a mortgagor under 
 the definition of the Act. He is an assign of the mort- 
 gagor and is entitled to redeem. It appears to me tlmt 
 no person can avail himself of the 15th section {j), who 
 is not entitled to call for a re-conveyance of the estate 
 from the mortgagee. The Act never intended to effect 
 any change in the person who was entitled to call for 
 a reconveyance " (/i). 
 
 In the same case of Teevan v. Smith, Lindlej-, L.J., 
 says: ''Then the 15th section says, 'instead of re-cou- 
 veying ' ; that is the key to the whole section. The 
 mortgagor there niP' •: be some one who has the right 
 to require a re-convc- ?'uce. If that be the true view it 
 makes an end of ih-i whole controversy. The second 
 mortgagee scf'':*^ to ob' n and has in fact obtained, a 
 re-conveyance; l)\it the ) igagor says, ' No, I will have 
 the first mortgagee transfor the estate to my nominee.' 
 I am of opinion that he has no such right as he claims."' 
 
 The justness of the above decision as between the 
 second mortgagee and the mortgagor was unquestion- 
 able, but the effect uf the decision appeared to go further, 
 and to permit the first mortgagee to insist on foreclosing 
 or selling unless paid, and, at the same time, to refuse 
 to transfer or re-convey, except to the second mortgagee. 
 The effect of this was, that no advance could be ob- 
 tained to pay off the first mortgage without paying off 
 all. This has been remedied by the Conveyancing Act 
 of 1882 (Imp.) (/), the provisions of which we have adopt- 
 ed in sub-section (2) above. 
 
 Teevan v. Smith is distinguished in Queen's College 
 V. Claxton (?»)» where a first mortgagee was held bound 
 
 0") Our 2iul section. 
 
 (k) Soo Mnrson v. Cox, 14 Ch. D. 140 (1879). 
 (0 45 & 40 Vict. c. 39, s. 12. 
 
 (m) 25 O. R. 282 (1894). following Kinnnird v. Trollope, 39 Cb. 
 D. 030. See Wheeler v. Brooke, 20 O. R. 90 (1895). 
 
ACT RESPECTING MORTGAGES OF REAL ESTATE. 205 
 
 to execute an assignment to the nominee of a grantee 
 of the equit}', notwithstanding subsequent incumbrances. 
 
 In Stark v. Keid (n) the second morrgage was given 
 not by tlie mortgagor in the first, but by their grantees. 
 The first mortgagees in possession toolc over the second 
 mortgage. Held, that they could not tack the second 
 to the first, but must re-convey on payment of the first. 
 
 If a first mortgagee convey so as to defeat a second 
 mortgagee, of whom he has notice, it seems he will be 
 liable to the second mortgagee (o). 
 
 On the Terms. — In Alderson v. Elgey (p), John 
 Elgey was tenant for life, under settlement of 12th 
 March, ISGl, and, by order of the Court of the 27tli July, 
 1883, it was declared that if the mortgaged premises 
 were redeemed by him they were to be held by him upon 
 trusts corresponding Avith the uses and limitations de- 
 clared by said settlement. 
 
 Chitty, J.: "After that order, John Elgey comes 
 and asks for an order, that Waterson should transfer the 
 mortgage simply to the nominee of John Elgey, and the 
 question is, whether Elgey is entitled to the order. 
 
 " Taking the language of the section, I consider the 
 words, ' on the terms on which he should be bound to 
 re-convey ' do not refer merely to the amount of princi- 
 pal, interest and costs, but to ' the terms ' generally, 
 because if the legislature intended simply to refer to 
 principal, interest and costs, it would have been very 
 easy to say so. On the face of the order of the 27th 
 July, 1888, it appears to me that John Elgey is not en- 
 titled to, and could not get, an unconditional re-convey- 
 ance, he can only get a re-conveyance on terms. The 
 
 (n) 20 O. K. 257 (189.'), following Kinnaird v. Trollope, 39 Cli, 
 D. (J3(!. 
 
 (o) S('i> Wost Loiuloii Com. Bank v. Reliaiioe BUIb. Sue, 27 
 Ch. D. 187: 20 Cli. D. 954 (1884). Cf. McMillan v. McMillan, 21 
 A. R. 343 (1894) 
 
 (p) 2G Ch. D. 507 (1884). 
 
 .'•^i 5 
 
 AM 
 
 III 
 
 f ' ' i! 
 
 ic,fl 
 
 (;: ) 1 
 
 ! 1 '■ 
 
Ilf|!> \ 
 
 206 
 
 FOllECLOSUllE OF MOUTUAGES, 
 
 terms are th.it the trust should be affixed to the lejjal 
 estate which he would take on the le^al conveyance. It 
 appears, therefore, that any transfer he might propose 
 m-.ist be a transfer corresponding with the deed." 
 
 In Smithett v. Heskith, under the present section 
 (as amended by the Imperial Act of 1882), the convey- 
 ance and assignment were ordered to be made to trus- 
 tees to preserve the rights of certain incumbrancers (q). 
 
 Our Canadian case of Gooderliam v. The Traders' 
 Bank (/•) contains some valuable matter on the subject 
 of this section: 
 
 (1) As TO What Covenants May Be Required in 
 THE Assignment. — " So far as the form of conveyancing 
 under this Act is concerned, nothing more can. in my 
 o[>inion, be insisted on, than the covenant vaich is 
 usual from trustees, viz.: that against incumbrances. 
 The other covenant as to what is secured by the mort- 
 gage is at best of little use. If more is exacted by the 
 mortgagee on redemption than is due, as between him 
 and the mortgagor, there is the right to recover this 
 without a covenant, and the covenant establishes 
 nothing against the mortgagor, who is not a party to 
 the transfer." 
 
 (2) As TO THE Form of the Conv^eyance. — "The 
 form of the conveyance depends upon the circumstances. 
 In a case where the money was paid by one who had not 
 the whole equity of redemption. Lord Hatherly said it 
 should be drawn in such a manner as that there should 
 be very little difficulty upon the subject afterwards, and 
 there should be expressed on the face of the conveyance 
 a statement of some kind with reference to the exact 
 position of the parties, showing that the person so re- 
 deeming, having only a partial interest, is to hold, sub- 
 ject to the rights of redemption of all the parties wlio 
 
 (q) 44 Vh. D. ir.2, 103 (1890). 
 
 (I) IG O. R. 438 (1888), per Boyd, C. 
 
^ 
 
 ACT llE.SPECTINa MORTGAGES OF HEAL ESTATE. 
 
 207 
 
 ii 
 
 hold other interests: Pearce v. Morris, L. R. 5 Ch. at p. 
 2.'U. See also Boyd v. l*etrie, 7 Ch. at p. ',id'2. In proper 
 technical shape ^he instrument should be framed so as 
 to assign tlie mortgage debt and interest and the full 
 benefit of the securities, collateral and otherwise, held 
 for the same, and then to convey the estate subject to 
 such right and equity of redemption as subsists in the 
 premises by virtue of the mortgage transferred " (s). 
 
 (.*?) The Collateral Securities. — "It is of moment 
 to provide for the securities, and refer to them specifi- 
 cally in a schedule, or otherwise, because they might be 
 separated from the mortgage itself, and so give rise to 
 great complications: Morley v. Morley, 25 lieav. 25:^; 
 Walker v. Jones, L. R. 1 P. C. 50. . . . The securi- 
 ties, when delivered or endorsed, would have to be held 
 by the person redeeming on precisely the same terms 
 as they Avere held by the bank." 
 
 (4) To Whom Transfer to Be Made. — " I deem it 
 of no importance that this transfer is drawn to the sub- 
 sequent mortgagee himself, and not to a third person 
 as expressed in the Act. The transferee is to be a nomi- 
 nee of the person redeeming, and, if he chooses to have 
 the transfer to himself the n. jrtgagee cannot object.'' 
 
 (5) For Form of Order, see report of same case at 
 p. 445. 
 
 (3) This section does not apply in the case of a mortgagee 
 being or having been in possession. 
 
 (4) This section shall have effect notwithstanding any stipu- 
 lation to the contrary. R- S. O. 1887, c. 102, s. 2 (2, 3). 49 V. c. 20, 
 
 s. 7. 
 
 How Person Paying First Mortgage May Lose 
 Priority. — See McLeod v. Woodland (/). 
 
 (s) Cf. Hartley v. Burton, L. R. 3 Chy. 3G5 (1S08), as to recitals 
 in the conveyance. 
 
 it) 25 O. R. lis (1894), distiiifinishing Brown v. McLonn, 18 
 O. R. 533, and Abell v. Morrison, 10 O. R. 009. 
 
208 
 
 FORECLOSURE OB' MORTGAGES. 
 
 Mortgagee in Possession, — As our Ontario Legis- 
 lature Las omitted the definition of "mortgagee in pos- 
 session" : qutere, what does that expression mean? 
 
 Where a luortfraoee is in possession he may be com- 
 pelled to re-conve}', but not to assign to third persons (u). 
 
 :t. (!) A mortgagor, as long as his right to redeem subsists,, 
 shall, by virtue of this Act, be entitled from time to time, at 
 reasonable times, on his request, and at his own cost, and on 
 payment of the mortgagee's costs and expenses in this behalf, 
 to inspect and make copies or abstracts of, or extracts from, the 
 documents of title relating to the mortgaged property in the 
 custody or power of the mortgagee. 
 
 (2) This section applies only to mortgages made after the 
 1st day of July, 1886, and shall have effect notwithstanding any 
 stipulation to the contrary. R. S. O. 1887, c. 102, s. 3. 49 V. c. 
 20, s. 8. 
 
 Eight of Mortgagor to Inspect Deeds. — The 
 former rule on the subject-matter of this section, ar 
 the extent of that rule are well expressed in Patch v. 
 Ward (v): " There can be no doubt of the wisdom of the 
 rule that a mortgagee or purchaser is not bound to pro- 
 duce his title deeds and may resist the production of all 
 deeds which are muniments of title. 
 
 " lUit this rule does not extend to the mortgage 
 deed itself, as to which different considerations prevail. 
 It is the mortgage deed which conveys the property by 
 way of pledge, and which contains the proviso for re- 
 demption by virtue of which the mortgagor is entitled 
 to redeem the property. The mortgage deed, therefore, 
 is as much the evidence of the mortgagor's title to re- 
 deem as it is of the mortgagee's estate " (w). 
 
 In an English case, however, where the plaintiff was 
 a director of the mortgagor-company, it was held that 
 the present section (.r) did not give him, through that 
 
 00 Stark v. Roid, 2G O. R. 257 (1895). 
 
 (r) L. R. 1 Eq. 439 (1865). 
 
 (»•) Cf. Ex. p. Cnldecott, Re White, Mont. 55 (1830). 
 
 (j?) Conveyancing Act, 1881, s. IG; 44 & 45 Vict. c. 41 (Imp.). 
 
 
i 
 
 II 
 
 ACT 11ESPECT[NG MOllTGAfJES OF REAL ESTATE. 200 
 
 company, a right to see a siibsidiar.v mortgage which 
 was executed since the Act came into force (//). 
 
 The first day of July, 18S(), was the date fixed for 
 the Act 4f) V. c. 20 (Out.), to come into force. 
 
 4. (1) All money payable on an insurance to a mortgiigor 
 shall, if the mortgagee so requires, be applied by the mortgagor 
 in making good the loss or damage in respect of which the money 
 is received. 
 
 (2) Without prejudice to any obligation to the contrary im- 
 posed by law or by special contract, a mortgagee may n>quire 
 that all money received on an insurance bo applied in or towards 
 the disc? ^rge of the money due under his mortgage. R. S. 0. 
 1887, c. 102, s. 4. 49 V. c. 20, s. 9. 
 
 Application' of Ixsi'uanxe ^Ioxkv. — Tlie meaning 
 of this seel ion lias been thoroughly worked out by our 
 Court of Appeal in Edmonds v. The Hamilton Provident 
 and Loan Societ3'(2). 
 
 " The origin of the section appears to be the Im- 
 perial ' Conveyancing and Law of Property Act, 1881,' 
 s. 23, s.-ss. (3), (4). There is this dilTerence in the lan- 
 gujige of our Act, which I t^.iink should make no dif- 
 ference in the construction; the former reads: 'All 
 moneys received on an insurance effected under the 
 mortgage deed or under this Act' ; while our Act is, 
 ' All money payable under an insurance to a mortgagor.' 
 The clause in the English Act is found in connection 
 with many special provisions as to the mortgagee's 
 power to 'insure, which are not in our Act, and which 
 were substituted for those of Lord Cranworth's Act 
 (18(50), 23-24 V. c. 145. 
 
 "The latter were not adopted by us until 1879. 42 
 V. c. 20, and are retained in s. 18 of U. S. O. (1887) c. 
 102. 
 
 0/) Burn v. London and South Wales Coal Co., W. X. ISOO, at 
 p. 2nn. 
 
 (i) IS A. R. 3G7 (ISOl). 
 
 H.F.M. -14 
 
 :ir 
 
210 
 
 FOllECLOSUllE OF MOIITOAOES. 
 
 i!-i;i 
 
 " So far as sub-section 1 is ooncernetl it was, witli 
 US at least, merely declaratory of the iuortj^aj?ee's rijj;ht 
 under the ' Metropolitan Building Act,' 1-4 Geo. III. c. 
 78, s. 8:^: Stinson v. Tennock, 14 Gr. G04; Carr v. Fire 
 Assurance Association, 14 O, K. 487 (a). 
 
 " It gives the mortgagee the right, where an insur- 
 iince is effected by the mortgagor, even where there is 
 no covenant on his part to insure or a covenant to in- 
 sure niei'ely but not to assign the policy, to require the 
 money to be ajtplied by him in making good the loss or 
 damage (b). 
 
 " Sub-section 2 confei's on the mortgagee a new 
 right, namely, the right to recpiire that all moneys re- 
 ceived on an insurance (possibly only an insurance 
 effected under the mortgage) shall be applic^d in or to 
 wards the discharge of the money due under the mort- 
 gage. 
 
 '' The salvo in this sub-section, * without prejudice 
 to any obligation to the contrary* imposed by law,' seems 
 to have lost its significance, now that the Metropolitan 
 Building Act is ' not to be deemed to be in fo"ce with 
 regard to property in this I'rovince ': The Insurance Act, 
 K. S. O. (1887), c. 107 s. 155 (50 V. c. 2G, s. 154). An 
 obligation imiwsed by special contract means, I think, a 
 special contract in relation to the insurance." 
 
 Rights of Mortgagee to Insurance Moneys. — 
 From the above case of Edmonds v. Hamilton Provident, 
 we may conclude that the mortgagee has three principal 
 rights with regard to the insurance moneys. 
 
 1st. He may require the insurance moneys to be 
 applied towards reinstating the property injured. 
 
 2nd. He may require the insurance moneys to be 
 :ipplied towards the discharge of moneys due under the 
 mortgage. 
 
 (a) Cf. Ex parte Gorcly, 4 D. J. & S, 477 (18C4). 
 
 {h) Loes V. Whitoley, L. R. 2 Eq. 143 (18GG) cited and considered 
 ns no longer law. 
 

 ACT UESl'ECTINO MOUTGAGES OF HEAL ESTATE. 211 
 
 Jjrd. lie lujiv hold tbu iiiwuraiKc inoucvs as collateral 
 st'cui'ity in lieu of the property destroyed [cj. 
 
 IXSL-RANTK MoNEVS IIliLU AS COLLATKRAL. — It SeeUlS 
 
 lliat if he holds the moneys as collateral, he is still en- 
 titled to receive his interest (d), and instalments of prin- 
 cipal Avithont abatement, and to jtursue his other 
 remedies {c.ij., distress) in case of default (c); until, at 
 any rate, the debt is reduced to an ecjuality with the 
 insurance money, when he must apply tlie latter pro 
 tanto, from time to time, to subsequently maturing pay- 
 ments. The insurance moneys lield as collateral should 
 be invested, and tlie mortgagee is acconntable for the 
 profits (/■). 
 
 It is left doubtful whether, in case tlie mortgagee 
 elects to apply a portion of the insurance money to the 
 overdne moneys, he would be under any obligation 
 to apply the balance upon any instalment thereafter 
 falling due {[/). It seems, however, that, while the mort- 
 gagee is not compelled to apply the moneys to the pay- 
 ment of the principal and interest as they accrue, 
 neither, on the other hand, has he the right to apply the 
 moneys to principal and interest not yet due (//). 
 
 Can Mortgagees Consolidate for Purpose of 
 AiiSORBiNG Ixsuran'ce Moxevs? — In Ke Union Insur- 
 ance Company (?"), there were a lirst mortgage ; a 
 second mortgage to the same mortgagees; and an 
 
 ((•) lb. at pp. 349, 357, SOS. 
 
 (tl) lb. at p. 350, citing Austin v. Story, 10 Gr. 30G (1803), f.ud 
 otluT authorities. 
 
 (e) II). at p. 309, discussing Corhani v. Kingston. 17 O. It. 4.'i2 
 (ISSO). Tliis latter case is referred to in Barber v. Clark, 20 O. K. 
 
 to be 
 ir the 
 
 sidercd 
 
 (/) lb. at p. 307. 
 ((i) lb. at p. 349. 
 Ui) lb. at p. 309. 
 
 (/) 23 O. K. tVi7 (I ft!)3K citing nnrbain v. Kint'ston. 17 O. R. 484; 
 Frontenac Loan Co. v. Hysop. 21 O. It. 577; Edmonds v. Ilaniiltou 
 Provident and Loan Society. 18 A. R. 307; Howes v. The Dominion 
 Fire and Marine Ins. Co., 8 A. R. G49; Anderson v. The Siugeen, 
 IS O. R. 355; Mitchell v. The City of London Ass. Co., 15 A. R. 
 202; Cummins v. Fletcher, 14 Ch. D. 711. 
 
 A 
 
i 
 
 212 
 
 I'cjiiLCLosuiti; oi'" Moi{r(JA(ii:s. 
 
 iiiHiii'iincc ottVc'ti'd on ssonie buihliiii's. which the* 
 second nioilj^ji^c included ovei' and above what the flvst 
 inclnih'd. Tiie i)olicy (lalcen out bv a purchasei' of tlu; 
 e(|uil,v) ccuitained tiie usual provinion: "Loss, if any, 
 Iiayable lo tiie nioi'ljiaji'ee.s, as their interest nii^lit 
 ai»i»ear." File havinj; occurred, and there beinj-- a sur- 
 l)lus of insurance moneys over the sum due on the second 
 mortgage, which was in default; the mortgagees claimed 
 to a]»i)ly that surplus on their first mortgage, which was 
 also in default. The mortgagees were unsuccessful, tho 
 doctriue of consolidation not being api)licable to tliis 
 case (;■). 
 
 For further notes on insurance in relation to mort- 
 gages, see under c. 12(5, clause 12, Infra (k). 
 
 •5. There sliall, in the several cases in tliis scctiou ineu- 
 tioiu'd, be deemed to be Included, and there shall in those several 
 cases, by virtue of this Act, be implied, covenants to the effect 
 in this section stated, by the person, or by each person, who 
 conveys, iis far as regards the subject-matter, or share of subject- 
 matter expressed to be conveyed by him, with the person, if one, 
 to whom the conveyance is made, or with the persons jointly, if 
 more than one, to whom the conveyance is made as joint tenants, 
 or with each of the persons, if more than one, to whom the con- 
 veyance is made as tenants in common, that is to say: 
 
 {(i) In a conveyance by way of mortgage, the following cove- 
 nants by the person who conveys, and is expressed to 
 convey as beneficial owner (namely): 
 For payment of the mortgage money and interest, and' 
 observance in other respects of the proviso in tha 
 mortgage; 
 Good title; 
 
 .il! 
 
 !!M 
 
 0) In a case where the policy read: — " Loss, if any. payable to 
 B. . . . his interest therein being as niort>ra>ree," R. was heltl 
 entitled to l>riii>r action on the policy in his own name: Brush v. 
 JEtmx Insurance Co.. 1 Old. 4.')!) (1S(]4). 
 
 (A-^ See further McKenzio v. ^tna Insurance Co.. Russ. Eq. 
 Dec. ."^40 (1.S70). case where niortjrapor insured on his owu account 
 ami refused to assign policy; Troop v. Mosier. Buss. Rq. Dec. 189; 
 Wyniiin v. Imperial Firo Ins. Co.. 20 N. S. R. 487 (1887). how far 
 niortjTiisee can sue on policy issued in nnnu' of mortgagor: Gaskiu 
 V. riicenix Ins. Co.. All. 420 (1800). whore mortgagee insures his 
 interest, effect of foreclosure or release of equity. 
 
 
 I, i 
 
I It 
 
 ACT UEsi'P:cTiN'<i M()iiT(iA(ii;s oi-' |{i:al i:stati;. 2I:{ 
 
 Right to convey; 
 
 That, on (h'fault, the mortgagee shall have quiet possession 
 
 of the land, 
 Free from all incumbrances; 
 That the mortg.igor will exi'cute such further assurances of 
 
 the said lands as may be requisite; and 
 That the mortgagor has done no act to incumber the land 
 
 niurtgaged; 
 According to the tenor and effect of the several and resi)ective 
 
 torma of covenants .fr the said purposes set forth in 
 
 Schedule 13. to The Act respecting Short Forms of 
 
 Mortgages. 
 
 Tlif (limjit'r of tislnj; this rt'iid.v-iiiiKlc stvlc of con- 
 vcyaiu'inj;- is illtistTjitod h\ an Kiij;lish case. Kx i»ai'l(' 
 Slanl'oi'd (/»: A bill of salo was jiivcn l>y wliicli llic 
 grantor i)iii{»ort(Hl to assij^n the chattels "as bonofuial 
 ownor." The Imperial " Hills of Sale Act of ISSI' '' ])ro- 
 vidos (s. !)) (hat a bill of sale " shall be void unless made 
 in aecoi'dance with the form in tho schedule to this Act 
 iimiexed." The result of the use of the words " as bene- 
 licial owner'' was to imi»ort into tlie bill of sale the 
 coven.'uit in section 7, par. (c), of tlie Imperial Convey- 
 anciufi: Act of 1881 (/»)• The Court, therefore, found 
 itself " compelled to say, that the imi)or(alion of such a, 
 covenaut into the bill of sale would j«ive to the bill of 
 sale a lep,al etTect beyond that involved in the use of the 
 simple sclieduled form.'' Ac<*ordinp:ly, the bill of sale 
 was declared void. 
 
 AcTiox ox Implied Oc^vkxaxt F(Mi Quiet rossE>- 
 siox. — An action for possession may be maintained on 
 the implied covenant for <iuiet i)ossession on (h'fault; 
 and when the covenant is read into the mortjiaj^e (h'e<h 
 inu'suant to section 5, the ri^ht of the uiortfiaj>or to 
 hold possession under a re-demise clause, ceases to exist 
 on default, Avithout any notice to quit (/;). 
 
 (/) 18 Q. 1^. 1). 2.-)!) (18S()). 
 
 im) Corrospondinjr to our present section, par. (a); our Lej^isluture, 
 liowever. liaviiijj; adopted the short form covenants. 
 
 (h) Agricultural Savings and lioan Company v. Lanj^ford, Trial 
 Court, Rose, J., March 10th, 181)7. 
 
 ..«< 
 
 I ■ 
 
 !ii' 
 
 >i '1 
 
 tf- 
 
w 
 
 2U 
 
 FOllECLOSUllE OF M()in(JA(ii:s. 
 
 (h) In a convcyaiice by way of mortgage of leasehold pro- 
 perty, the following further covenant by the person who 
 conveys, imd la expressed to convey, as beneflclnl owner 
 (namely): 
 
 Thiit the lease or grant creating the term or estate for which 
 the land is held is, at the time of conveyance, a good, 
 valid, and effectual lease or grant of the land conveyed, 
 and is In full force, unforfeiti'd, and unsurrendered, and 
 in nowise become void, or voi<l!ible, and that all the rents 
 reserved by, and all the covenants, conditions and agree- 
 ments contained in the lease, or grant, and on the part of 
 the lessee or grantee, and the persons deriving title under 
 him to be paid, observed and performed, have been paid, 
 observed and performed, up to the time of conveyance; 
 
 And also, that the person so conveying, or the persons 
 deriving title under him, will, at all times, as long aa 
 any money remains on the security of the conveyance, 
 pay, observe and perform, or cause to be paid, observed 
 and performed, all the rents reserved by, and all the 
 covenants, conditions and agreements, contained in the 
 lease or grant, and on the part of the lessee or grantee, 
 and the persons deriving title under him, to be paid, 
 observed and performed, and will keep the person to 
 whom the conveyance is made, and those deriving title 
 under him, indemnified against all accidents, proceedings, 
 costs, charges, damages, claims and demands, if any, to 
 be incurred or sustained by him, or them, by reason of 
 the non-payment of such rent, or the non-observance or 
 non-performance of such covenants, conditions and agree- 
 ments, or any of them. R. S. 0. 1887, c. 102, s. 5. 49 V. 
 c. 20, s. 13 (1 c, d). 
 
 O. In a mortgage, where more persons than one are expressed 
 to convey as mortgagors, or to join as covenantors, the implied 
 covenants on their part shall be deemed to be joint and several 
 covenants by them; and where there are more mortgagees than 
 one, the implied covenant with, them shall be deemed to be a 
 covenant with them .jointly, unless the amount secured Is ex- 
 pressed to be secured to them in shares or distinct sums; ia 
 which, latter case the implied covenant with, them shall be 
 deemed to be a covenant with each severally in respect of the 
 share or distinct sum secured to him. R. S. O. 1887, c. 102, s. 6. 
 49 V. c. 20, s. 14 (1). 
 
Pf 
 
 to 
 of 
 or 
 ee- 
 V. 
 
 a 
 
 k.'X- 
 
 iu 
 bo 
 the 
 
 6. 
 
 ACT HESI'ECTINO M(>in'(iA(iES OF HEAL ESTATE. 
 
 2 If) 
 
 Joint an'h Skvf.rai. Covenants. — Addison siiys (o): 
 "Of joint and s 'veral liabiliticH c.v contractu. ' Each parly 
 to a joint contract,' observes I'arke, It., ' is severally 
 liable in one sense, i.o., if sued severally, and he 
 does not plead an abatement (;>). he is liable to jKiy the 
 entire debt; but ho is not severally liable in (he same 
 sense as he is on a joint and several bond, \vhi<'h inslrn- 
 nient. thonyh on one jtiece of |tarciiment or papei', in 
 etl'ect compi'ises the joint bond of all antl the several 
 bonds of each of the obli^iurs' (7). It may be laid down 
 as a ;;«'neral rule that, whei'ever several persons aj-i'ee 
 to perform a particular act, they are bound, joinily and 
 not severally, in the absence of express words creating; u 
 •several liability. 
 
 "If two (»r more persons, who have j(»ined toj^ether 
 in a contiact, 'Covenant severally,' or become! 'severally 
 bound,' it is (in the absence of exi)ress words implyi;.^ a 
 Joint liability) the s;.imo as if each of the covenantoi's 
 had executed a. separate bond on the same parchment (;). 
 
 ''If A. lets land to B. and C, and they covenant, 
 jointly and severally, with tlu! lessor, to i>ay the rent, or 
 the liUe, they are sureties for each other for the du!» 
 jterformance of the contract: and it is as competent for 
 each of them to covenant for the other as it is for it 
 stranger to covenant for both, which is a common 
 thing" (.s). 
 
 " More Mortgagees Than One." — The utility of 
 the clause in section as to more than one mortgagee 
 will be chiefly manifest in partnership law, where it is 
 of importance both to the partners and ^0 their creditors, 
 to be able to determine what is to be regarded as part- 
 nership property (otherwise called '* joint estate "), and 
 
 (0) Law of Contracts, 0th Kd., 300 (1S1V2). 
 
 (p) See our Rule 283. 
 
 (q) King V. Iloare, 13 M. & W. 50.1 (1844). 
 
 ()•) Citing Newton v. Blnnt, 3 C. B. G81 (1840); Beaumont 
 
 2 Burr. 1190 (17G1). 
 
 Greathead, 2 C. B. 494 (1840) 
 (s) Citing Enys v. Donnithorne, 
 
 I 
 
 ■.^pf'l 
 
 ^'i 
 
 ,1; 1 1 J 
 
m 
 
 I 
 
 -1'^ 
 
 216 
 
 FOUECLO.SUllK OF MOllTGAGES. 
 
 what is to be rc^aidod as tlie separate property of each 
 partuer (/). 
 
 See our Kule 23G. as to brinj-ing both joint and 
 separate cUums apiiust the same defendant. 
 
 7. The preceding two sections apply only to mortgages made 
 after the 1st day of July, 1886. R. S. O. 1887, c. 102, s. 7. 49 V. c. 
 20, ss. 13 (6), 14 (2). 
 
 The first day of July, ISSC, was the date for 41» Vict, 
 c. 20, to come into force. 
 
 8. Any mortgagee of freehold or leasehold property, or any 
 assignee of such mortgagee, may take and receive from the 
 mortgagor, or his assignee, a release of the equity of redemption 
 in such property, or may purchase the same under any judgment, 
 or decree, or execution, without thereby merging the mortgage 
 debt as against any subsequent mortgagee or person having a 
 charge on the same property. R. S. 0. 1887, c. 102, s. 8. R. S. O. 
 1877, s. 99, s. 1. 
 
 9. In case such prior mortgagee, or his assignee, acquires the 
 equity of redemption of the mortgagor in the manner aforesaid, 
 no subsequent mortgagee, or his assignees, shall be entitled to 
 foreclose or sell such property without redeeming, or selling, 
 subject to the rights of such prior mortgagee, or his assignee, in 
 the same manner as if such prior mortgagee or liis assignee had 
 not acquired such equity of redemption. R. S. 0. 1887, c. 102, s. 9. 
 R. S. O. 1877, c. 99, s. 2. 
 
 lO 'I'he preceding two sections shall not affect any priority 
 or claim which any mortgagee may have under the Registry 
 Laws. R. S. O. 1887, c. 102, s. 10. R. S. O. ".877, c. 99, s. 3. 
 
 Merger of SEcrKiTii-S. — In tlie Canadian case, 
 Emmons v. Croolcs (;/), wlierc a tliird mort«iaoee. wlio 
 took liis mort^ajic witliout notice of tlie second niort- 
 jiaj-e, obtained tin assijinment to himself <»f the first 
 mortfiafie after he had notice of the second, and then 
 ])urchas('d the interest of the mortf>ajior. it was held, 
 followinji- the case of Parry v. Wrij-ht (v). that the first 
 and third mortoa^ies had merged, and that the second 
 was the only existing incumbrance. 
 
 (0 See Tiindley on Partnership. 5th Ed., Book III., c. 4. 
 (/() 1 ("!r. !.'!» (1S.10). 
 (r) 1 S. & S. SCO (1S23). 
 
]'!] 
 
 :!'■:! 
 
 ACT JlESl'EC!IN(i Ml)UT(jiAUE.S OF llEAl. ESTATE. 
 
 217 
 
 ■d 
 
 I 
 
 Origin of I'kksext Sections. — lii tlie followiuj^ 
 vcar afttM" this decision appeared the original of tliese 
 present sections witli tin? preamble: "'AVhereas it is ex- 
 pedient that I'elief should be atlorded to mortgagees ol 
 freehold and leasehold property in certain cases in 
 Avhich they are not sulliciently protected by law'' («). 
 
 It is noticeable Ihat the original sections contained 
 the dangerous clause: "or to purchase the same under 
 any power of sale in his mortgage;" wliich was ex- 
 punged by :'»!> N'ict. <•. 7 (Ont.). 
 
 Comparison OK Ol'r Law With That in Knciland. — 
 In Elliott V. .layne (.r), Spragge. \'.('.. says: "It is to be 
 observed that the law in ('ana<la goes further in allow- 
 ing the ownei' of an estate to keep alive a charge u]ion it, 
 than does the law in England. It allows tliat which 
 both Sii' William (Jrant and Sir J, S. Knight IJruce 
 agreed could not be done in England — namely, that one 
 jiurchasing an efpiity of redenipti<»n can set u|» a prior 
 mortgage of his own; and it is (piite in accordance with 
 the ])rinci|»le of our law to hold that the pui'chaser of an 
 equity (if redemption, not Ix'ing an incuml>rancei\ may 
 get in a UKU'lgage and hold it against subseipieiit in 
 cumhranc M's." 
 
 I\i:i.i:asi-: oi' Im.umtn' Not a Mfrci-.k. — In Hart v. 
 McQuestin (//), the moi'tgagee took a release of the ('(piity, 
 ihe consideration being tlie amount of princijial and 
 interest, "and in satisfaction thereof." Nevertheless, it 
 was held, under the Act (14 & l." \'ict.), that the security 
 i)t the first moi-tgagee was not thereby merged, and that 
 the only relief a subse(iuent incumbrancer was entitled 
 to, was that of redeeming the first mortgagee \:). 
 
 Hr 
 
 (»t 14 iK: l."i Vift. c. ■!."» (Ciiii.). 
 
 U) 11 (!r. 41.". (ISC..-.). 
 
 (y) '2-2 (iv. rX', (ISTr.i. 
 
 ('t In s.-iid ciiso iiro tlisciisscd Bui-liloy v. 
 nSC.lt; Elln.tl V. .Taync, siiprii; Finliiyson v. 
 (1S()."(); liarkcr v. Ecdcs. 17 <!r. »;:r. (ISTO); Mini otlicr t-asos. See 
 also Kcatv V. (Joodcrliam. i:{ (!r. ;>17 (ISC.T). Cf. the Maiiitoha oiiso, 
 Di-aii and Cliai.tt-r St. John's v. MacAitliur. .'5 W. L. T. 170 (1802). 
 
 Wilson. S (Jr. ."00 
 Mills. 11 (Jr. 218 
 
w 
 
 218 
 
 FOIIECLOSUUE OF MORTGAGES. 
 
 ^Hi 
 
 ll , 
 
 II 
 
 How LoxG IS ^loRTGAGE Dkbt Kept Alive? — In 
 Wo.ivcJ* V. Vandusen {<i), Si)i'a};pje, C, says: *' Sections 
 1 & 2 of c. 09, R. S. O. [h), define the position of a niort- 
 gaj-i't' wlio has acqnired the eqnity of redemption. 
 . . . . I do not know whether it has been deter- 
 mined, that nnder the eonclndinf; words of section 2 the 
 mortjiaji'e debt is kejtt alivt; only for sndi time as it 
 wonld have been kept alive as aj;ainst the mortjjjagor, 
 if the assignee has not acqnired tin? eqnity of redemp- 
 tion. It is not necessary to determine the point in this 
 case." 
 
 Effect of Purchase hy Mortgagee at Sheriff's 
 Sale. — While the pnrchase by a niortgiii-ee' at a sheriff's 
 sale of the eqnity will not merge the mortgage debt as 
 against a snbsequent incnmbrancer, yet it will do so as 
 against the mortgagor. Thns 11. S. O. 1897 c. 77, s. 32 
 (r), says: " Jint, in the event of the mortgagee becoming 
 the purchaser, he shall give to the mortgagor a release 
 of the mortgage debt." The etfect of this provision is 
 considered in Woodruff v. Mills (d), as being to work a 
 satisfaction of the mortgage. 
 
 Extent to Which Doctrixe of Merger Aff::ct- 
 ED. — The etfect of this legislation is to abolish the doc- 
 trine of merger only as between prior and subsequent 
 incumbrancers. The general doctrine is not affected. 
 
 This ;j,('nei-al doctrine may be found ir. Trywhitt v. 
 Tyrwhitt (/•), where Sir John Komilly, M.K.. says: "The 
 rule is this : — Prima facie the charge merges in the 
 inheritance, but the presumption may be rebutted if it be 
 shown that the intention of the owner of the charge was, 
 that it should not merge. Three tests are usually applied 
 for the purpose of ascertaining whether the owner of the 
 charge intended that it should merge in the inheritance 
 
 id) 27 Gr. 480 (1880). 
 
 {h\ Oiir in'csfut sections S & 9 
 
 (c) 11' Vict. c. 73 (Can.). 
 
 ((/) 20 U. V. U. ni (1800). 
 
 (c) 32 Boav. 249 (1803). L '; 
 
V' I 
 
 ACT llESPECTING MOUIGAOES OF REAL ESTATE. 219 
 
 at tlio time wlien he became entitled to the absolute 
 interest of the char}»e. First, any actual expression of 
 that intention; secondl^j when the form and character 
 of the acts done are only consistent witli the Iceeping 
 the charge on foot; and thirdly, such an intention may 
 be presumed, when, though a total silence in all other 
 respects pervades the matter, it appears that it is for 
 the interest ol' the owner of tin; charge that it should 
 not merge in the inheritance," 
 
 In North of Scotland .Alortgage Co, v, T'dell (/"), 
 Hagarty, (\.T., says: — '" rr;)m all the authorities I gather, 
 that in the simple case of the mortgagee taking a convey- 
 ance of the ecpiity of redemption, the ordinary presump- 
 tion is, that the charge, as against the mortgagor, is 
 merged or incapable of being enforced, at least so as to 
 call for evidenc(? to show a contrary intent or result " ((j). 
 
 HtLE AS TO Mi:k(.kk. — The whole rule on tiie sub- 
 ject of merger (except as relates to the prioriti^'s oL' two 
 incumbrancers) is brietly put by Osier, .1., in North of 
 Scotland ^lortgage Co. v. German (/(): '* Whether there 
 Avas a merger of the mortgage debt is a question of in- 
 tention. What the intention of the parties was. is a 
 (luestion of fact '' ((). 
 
 11. Where a person entitled to any freehold land by way of 
 mortgage has departed this life, and his executor or adminis- 
 trator has become entitled to the money secured by the mort- 
 gage, or has assented to a bequest thereof, or has assigned the 
 mortgage debt, such executor or administrator, if the mortgage 
 money was paid to the testator or intestate in his lifetime, or 
 on payment of the principal money and interest due on the 
 
 (0 4(i T'. ('. 
 
 U. ,^)U 
 
 (1 
 
 SSl>l. oitiuK 'I 
 
 yrwliitt 
 
 v. Ty 
 
 •wliitt, sup 
 
 ra , 
 
 lIocMl V. lMiillii)s. 3 Be 
 
 IV. 
 
 ."ii;'. ti8-ii); 
 
 Forbes 
 
 V. "Mo 
 
 ffatt 
 
 18 V 
 
 es. 
 
 384 (1811), and 
 
 other cns(>.s. 
 
 
 
 
 
 
 ((/) I''o1!<)W(m1 
 
 iu Itrit 
 
 Sll 
 
 vV: Can. L. & 
 
 I. Co. V 
 
 . Willi 
 
 .iins, 
 
 15 0. 
 
 K. 
 
 3(1!) (1888). 
 
 
 
 
 
 
 
 
 
 (h) 31 U. C. 
 
 c. r. 3 
 
 r»5 
 
 (1880), 
 
 
 
 
 
 
 (/( For flirt! 
 
 er inforniiition on the 
 
 ■^iibiect of mercer, 
 
 see ^r 
 
 ac- 
 
 dMna!<l v. Rnlliv 
 
 int. 10 
 
 A. 
 
 1{. .-82 (1SS4 
 
 : Fef-'K 
 
 V. IIol 
 
 son. 
 
 14 n. 
 
 K. 
 
 2T2 tlS87): Can 
 
 leroii V. 
 
 ( 
 
 ilison. 17 O. 
 
 R. 233 
 
 (18S!» 
 
 i; L 
 
 iquidution 
 
 Estates rurcliase Co. v. 
 
 ^^ 
 
 ilioiiKlihy, 1808, A. C. 
 
 321, 
 
 
 
 

 
 1"' 
 
 
 vi 
 
 
 '.i '■ 
 
 
 ip^ 
 
 : 1 
 
 :220 
 
 FOUECLOSUllE OF JIOllTGAGES. 
 
 mortgage, or on receipt of the consideration money for the 
 assignment, may convey, assign, release or discharge the mort- 
 gage debt and the mortgagee's estate in the land ; and such execu- 
 tor, or administrator shall have the same ])ower as to any portion of 
 the lands on payment of some part of the mortgage debt, or on 
 any iirningcnient for exonerating the estate, or any part of the 
 mortgage lands, without payment of money; and such convey- 
 ance, assignmenl, release or discharge, shall be as effectual as if 
 the same had been made by the i)erson having the mortgagee's es- 
 tate, li. S. O. 1887, c. 102, s. 12 ; c. 110, s. IG. R. S. 0. 1877, c. 
 99. 8. 5. 
 
 Oric;in of Section. — This section is taken from .'52 
 V. e, 10 (Ont.l, s. 2. That enactment omits the words 
 "or leasehold'' after "freehold"; adds the words 
 " or on receii)t of the consideration money for the assijin- 
 ment," and the word "assi}>n"' after ''may convey"; 
 and substitutes the words "the estate" after ''exon- 
 erating" (instead) of "the whole"; but, in other re- 
 siiccts, is identical with 14 & 1.") Vict. c. 7 (Can.), s. 8. 
 
 The origin of this legislation is the Imperial Act, 7 & 
 8 Vict. c. 7(), s. 0, which is represented in Canaihi by 12 Vict, 
 c. 71, s. 1). The form of that enactment shows what the 
 object and necessity of it was: "When any person en- 
 titled to any freehold land by way of mortgage has, or 
 shall have, departed this life, and his executor or admin- 
 istrator is, or shall bi-, entitled to the money secured by 
 the mortgage, and the legal estate in such land is, or 
 shall be, vested in the heir or devisee of such mort- 
 gagee, etc." 
 
 The object, then, was to enable the party entitled to 
 receive the mortgage money to re-convey the legal estate 
 to the mortgagor, instea<l of having to obtain the signa- 
 ture of the heir-at-law or other custodian of the legal 
 <istate. 
 
 This section was repealed by the above Act of 14 & 
 15 Vict., and its ])lace supplied by section 8 of that Act. 
 •which, in turn, was superseded by the present enactment, 
 as alreadv shown above. 
 
ACT JtEHPECTING MOUTGAGES OF HEAL ESTATE. 221 
 
 Li:asi:ii()M)s; How Affkcted, — The woi-d '' loaso- 
 hokl,'' in 14 & 1.1 Vict., was quite iinut'cessai'y, as thcie 
 was no occasion, in case of a niortgafiu of lcaseln)lds, to 
 reeonvcy any " Icj^al estate," the same being vested in the 
 lessor 01' owner of the reversion. 
 
 ASSIGXMKXT OF ^loRTGAGE ]{Y EXECUTOKS, — Tlie 
 
 words antliorizing tlie assignment of a mortgage wliich 
 have already been mentioned as inserted by '.\'2 V. 10, 
 were intended to obviate a dilliculty that arose in Kobiu- 
 son V. IJyers (y), where the plaintitf claimed to be the 
 assignee of the exeeiitors of the niortgMgce. and as such 
 sought foreclosure. The Chancellor (N'ankoughnel) 
 objected that the statufr (/,), while giving power to re- 
 lease or convey the legal estate, did not give any power 
 to sell or assign it. 
 
 Sale of ^Ioktgage r.v Exfcitoks. — Macbeth v. 
 ^lacbeth is a case bearing on the subject of sale, by 
 mortgage given to the testator, taking the purchaser's 
 notes payable to himsell' or order, it was held that this 
 in law amounted to a recei])t of the original debt, mak- 
 ing the executor chargeable with the mortgage as an 
 asset in possession (/). 
 
 Bequest of Ixdi-.htedxess ox a Mortgage. — A 
 rather interesting point arose in Archer v. Severn {in). 
 The facts were: — .1, S. directed his executoi's to cancel 
 and entii'(dy release the indebtedness of his son W. S. 
 upon a mortgage made by him to the testator, such re 
 lease to opei'ate and take etfect immediately on and 
 from the testator's death. \V. S. was also indebted to 
 the testator on a promissory note and for goods to the 
 amount of about |.'^74(). W. S. demanded a discharge 
 of the mortgage from the executors, and they refused 
 
 ;r 
 
 M 
 
 the same. 
 
 claiming to be 
 
 (Utitled 
 
 to 
 
 ])aym( 
 
 nt of 
 
 the 
 
 other 
 
 inde 
 
 btedness before g 
 
 iving a d 
 
 isc 
 
 large. 
 
 The t 
 
 nd- 
 
 (}) 
 
 r,i. 
 
 r)72 riS(52). 
 
 
 
 
 
 
 (A-) 
 
 ('. r 
 
 V. C. c. ST. s. .': 14 
 
 & ir, V. r 
 
 7, 
 
 s. S. 
 
 
 
 (H 
 
 2(5 1 . 
 
 r. R. .-.40 nsr,7). 
 
 
 
 
 
 
 (m) 
 
 12 
 
 >. K. 01.-, 14 A. R. 723 HSSS). 
 
 
 
 
 
 
 n\ 
 

 222 
 
 FOUECLOSUllE OF MOilTGAGES. 
 
 inj,' of the Court (n) was in favour of W. S. It was also 
 hold, following Northey v. Northey (o), that, though at 
 law the assent of the executor is necessary to the vesting 
 of a specific legacy (in this case the bequest of indebted- 
 ness being a specific legacy), yet in equity he will be 
 decreed to deliver it, being considered there as a bare 
 trustee. In other words, if an executor (as in this case) 
 refuse his assent without cause, he may be compelled 
 to give it (p). 
 
 Discharge, uv Executor, of Mortgage by Himself 
 TO Estate. — In Beaty v. Shaw (q), F. and W. were ex- 
 ecutors, and F., to secure a djbt owing by him to the 
 estate, executed a mortgage to W. After W.'s death 
 intestate, F. sold the mortgaged land to M., and executed 
 a discharge as sole surviving executor. It was held 
 that the discharge had not the etfect of releasing the 
 land. 
 
 13. Every certificate of payment or discharge of a mortgage, 
 or of the conditions therein, or of the lands or of any part of the 
 same, or of any part of the money, by the mortgagee, or his 
 assignee, his heirs, executors, administrators, or assigns, or any 
 one of them, at whatsoever time given, and whether before or 
 after the time limited by the mortgage for payment or perform- 
 ance, shall, if in conformity with The Registry Act, be valid, to 
 all intents and purposes whatsoever. R. S. O. 1887, c. 102, s. 13; c. 
 110, s. 17. R. S. O. 1877, c. 99, s. 6. 
 
 Scope of This Section. — This section was deemed 
 of such importance by the Rcvisors of our Ontario 
 Statutes that they inserted it in two places; R. S. O. 
 1887, c. 102, s. 13, and c. 110, s. 17. Its nieanino-, which 
 at first sight Avould seem alarmingly wide, is really very 
 much restricted by the w'ords " if in conformity with 
 the Registry Act." The certificate of discharge, accord- 
 ing to that Act, must be executed by the person " en- 
 titled by law to receive the money and to discharge the 
 
 (ii) liiirton, .T.A., dissenting. 
 
 (o) 2 Atk. 77 (1740). 
 
 (/)) 12 O. R. at p. (522. 
 
 (q) 14 A. R. GOC (1888); 13 O. R. 21. 
 
 : 
 
1 
 
 ACT ULSPECTING MOUTGAGES OF HEAL ESTATE. 223 
 
 Tnort«;ago," and must be in the form of Schedule L to 
 that Act, or to the like ettect (/•). 
 
 liE Valid to All Ixtexts and Puri'oses What- 
 soever. — Tliis is ex[)lained by the last portion of section 
 70 of tlie Kegistry Act (/•). 
 
 " And the same shall be deemed a discharge of the mortgage, 
 and the certificate so registered shall be as valid and effectual in 
 law as a release of the mortgage and as a conveyance to the 
 mortgagor, his heirs, executors, administrators or assigns, or any 
 person lawfully claiming by, through or under him or them, of the 
 original estate of the mortgagor." 
 
 Tlie mortgagor, or otlier party entitled to redeem, h 
 not obliged to accept the statutory discharge, but may 
 insist on having, at his own expense, a reconveyance of 
 the mortgaged lauds, including a covenant against in- 
 cumbrances (s). 
 
 If the mortgagor is satisfied to take the statutory 
 discharge, he must see that it is registered, if he wishes 
 it to operate as a reconveyance (/). It is not the execu- 
 tion merely of the certificate of discharge, but that and 
 the registration together, which amount to a reconvey- 
 ance (?/); and the reconveyance takes elfect from the 
 day of registration (c). 
 
 Formerly it was a distinct advantage to a new mort- 
 gagee or purchaser to retain the discharge of the old 
 mortgage in his vault, for he might, at any time before 
 registering the discharge, obtain an assignment of the 
 satisfied mortga4;e («), in case such assignment might be 
 found necessary to protect him against mesne incum- 
 brancers (.r). 
 
 {)■) R. S. O. 18!)7, c. l.SO, s. 70 ; see also ss. 77-7'J. 
 
 (s) IMcLeniiiin v. McLenn, 27 fJr. .^>4 (ISTOi. 
 
 it) He :SIo()re, S V. 1{. 471 (187.S); see this case for effect of dis- 
 clniiner by niort>:afree, and of coiisi'iit of his sulicitnr. 
 
 (h) In re Music Hall Block, 8 O. K. 2'2o (1884): cf. Lee v. 
 Morrow. 2.' T^ ('. R. (>04 (IHOC). 
 
 ((0 Inu»erial Bank v. Metcalfe, 11 O. R. 4(i7 fl880). 
 
 («?) Under s. 2 of this Act. 
 
 (x) R(«(> Trust & Loan Co. v. (Jallagher, 8 P. R. 97 (1879). But 
 see R. S. O. (1897), c. 13G, s. 7G. 
 
 .M 
 
 ■ 1 i ■ ■,- 
 
 • , ti 
 
1 r ' 
 
 1 
 
 : j 
 
 
 Hll, 
 
 :! I! 
 
 224 
 
 FOUECLOSUItE OF MOUTOAGliS. 
 
 1,:, I 
 
 The discharge uutil its registration operates merely 
 as a receipt (//), and not being under seal, does not oper- 
 ate an estoppel (:). 
 
 Tlie statutory discharge is a conveyance of consider- 
 able power; it seems the discharge of a niortgage in fee 
 simple made by a tenant in tail reconvevs the land to 
 the mortgagor barred of the entail {a). 
 
 The mortgagor cannot defeat his conveyance of the 
 c(|uity by j)aving otf the mortgage debt and getting a 
 certificate to that elTect and registering it; he would 
 strengthen the title of his assignee, not defeat it (/'). 
 
 lit. (1) Where in a mortgage or an obligation for payment of 
 money, or a transfer of mortgage or of such obligation, the sum, 
 or any part of the sum, advanced or owing is expressed to be 
 advanced by or owing to mor(> persons than one out of money, or 
 as money, belonging to tlnni on ,a joint account, or where a 
 mortgage, or such an obligation, or such a transfer is made to 
 more persons than one, jointly, and not in shar.<s — the mortgage 
 money, or other niduey or money's worth, for the time being due 
 to those persons on the mortgage or obligation, sliall be deemed 
 to be and remain money or money's worth belonging to those 
 persons on a joint accoi.nt, as between them and the mortgagor 
 or obligor; and the receipt in writing of the survivors or last 
 survivor of them, or of the personal representatives of the last 
 survivor, shall be a complete discha.ge for all money or money's 
 worth for the time being due, notwithstanding any notice to the 
 payer of a severance of the joint account. 
 
 (2) This section applies only if and as far as a contrary 
 intention is not expressed in the mortgage, or obligation, or 
 transfer, and shall have i-ffect subject to the terms of the mort- 
 gage, or obligation, or transfer, and to the provisions therein 
 contained. 
 
 ()/) II). 
 
 (ct Big.'i.iw V. Stiiley, 14 U. C. V. V. 27(5 (18(14). 
 
 (<i) I.awlor V. Lawior. 10 S. C. li. V.H (1SS1): but soo Carter v.. 
 fJnissett. 14 A. R. (kS.", (ISSS), and I?ooth v. Alcock, L. "R. 8 Ch, 
 fi(13 (1873). 
 
 (h) TA>e V. II<nves. 30 X\ C. R. 202 (1870). See further, on the 
 subject of disolinrge of mortgngo. Smith v. Elliott, 25 Gr. (1878) ; Im- 
 perial Bank V. Metcalf. 11 O. R. 4(>7 (1886), as to presumptions where 
 deed and discharce reeistered the same day ; Dilke v. Douglas 5 A. R. 
 03 (1880), as to discharge by surviving mortgagee. 
 
 r 
 
 ir. 
 
ACT llESPECTING MORTGAGES OF REAL ESTATE. 225 
 
 .<>' 
 
 V. 
 
 t'h. 
 [he 
 
 (3) This section applies only to a mortgage, or obligation, or 
 transfer made after thi> 1st day of July, 1886. R. S. O. 1887, c. 102, 
 s. 14. 49 V. c. 20, s. 15. 
 
 14. The bona fide paymi-nt of any money to and the rocelpt 
 thereof by any person to whom the same is payable upon any 
 express or implied trust, or for any limited purpose, and such 
 payment to and receipt by the survivor or survivors of two or 
 more mortgagees or holders, or the executors or administrators 
 of such survivor, or their or his assigns, shall effectually dis- 
 charge the person paying the same from seeing to the application 
 or being answerable for the misapplication thereof, unless the 
 contrary is expressly declared by the instrument creating tlie 
 security. R. S. O. 1887, c. 102, s. 15. R. S. O. 1877, c. 99, s. 7. 
 [See also c. 129, s. 9.] 
 
 Effect of Section 13. — Section 13 has had a cer- 
 tain elfect on the law as existing in England, but it is 
 not so easy to see what effect it has had on the law in 
 Ontario, which already was greatly in advance of the 
 English law. It is our duty, however, to try and explain 
 the state in which the law has been left, after the intro- 
 duction of the present section into our statutes, which 
 introduction was effected by the wholesale adoption of 
 clauses from the Imperial Conveyancing Act of 1881 k), 
 with little or no regard to what the Ontario Statutes 
 already declared. 
 
 To begin with, there are well known in law two 
 ordinary ways in which more than one person may hold 
 property together, nameh-, as tenants in common and as 
 joint tenants. Now the estate of joint tenancy is chietly 
 distinguished from the other estate by its characteristic 
 of survivorship. This peculiarity of survivorship has 
 the advantage of simplifying the transfer of jtroperty, 
 but is considered inequitable as between beneficial 
 owners. 
 
 With Regard to Purchases, Etc.- Our Legislature 
 has, except in the case of trustees, considered the estate 
 
 ((') See I'^isher on Mortgage, 5th Ed., s, 1513, for discussion of 
 English Law. 
 
 n.K. >t. — It 
 
 ^ll* 
 
f 
 
 220 
 
 F(M«ECLOSUUE OF MOUTOAGES. 
 
 Li :! 
 
 of joint tciijincy as a tliiiij^ not to bo favoured. Accord- 
 ingly wc havii a section as follows: — 
 
 " Where by any letters patent, assurance or will, made and 
 executed after the first day of July, 1894, 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 ^olnt tenants, unless an Intention sufficiently 
 appears on the face of such letters patent, assurance or will, 
 that they are to take as joint tenants." ((/). 
 
 With Kegaru to Mortgages. — Whether or not a 
 mortgaj^e would be included in the word assurance in 
 the precediufv section, there is no doubt tliat in equity 
 the Courts in construing mortgages leaned to tenancies 
 in common. Thus in Morely v. Bird (e) we find the ^Mas- 
 ter of the Kolls saying: '' So if two people join in lending 
 money upon a njortgage, ecjuity says it could not be the 
 intention that the interest in that should survive. 
 Though they take a joint security eticli means to lend 
 his own and take back his own. But that was never 
 extended to grants." 
 
 Now this e(iuitablc doctrine renders it very incon- 
 venient to a mortgagor to take a loan from more than 
 one lender; as in the case of the detith of either he is put 
 to the trotible of finding out the representatives of the 
 deceased to pay them as well as the survivor, instead of 
 merely having to deal with the survivor alone. 
 
 This has been remedied in Ontario in a very exten- 
 sive manner, as we learn from Dilke v. Dotiglas (/): "We 
 have already quoted the terms of section 9 of chapter 90, 
 C. S. U. C. (12 V. c. 71, s 10) {(j), upon which the appel- 
 lants mainly rely. It will be remembered that it makes 
 the bona fide payment to, and receipt by, the survivor of 
 several mortgagees, or the executors or administrators 
 
 ((/) R. S. O. 1807, c. 119, s. 11. 
 
 (f) 3 Vcs. 031 (1797). 
 
 (f) r» A. R. 70 (1880). 
 
 (ff) Our present section 14. 
 
ACT UESl'ECriN(i MCJllTOAGES OF KEAL ESTATE 
 
 227 
 
 of such siii'vivor, an rrt'cctiuil disohai'jjc to the porsou 
 paviiij; the saiiu' fioin the duty of swing to the applica- 
 tion, or bt'injj answerable for the misapplication thereof. 
 This clause was borrowed from a corresponding one in 
 the Imperial Act. 7 & ^ V. c. 7(>, which, however, was 
 repealed by S & !) V. c. 1(K», and it was after this repeal 
 that the mortgage under adjudication in Matson v. Den- 
 nis, 10 Jur. N. S. 4(11, was made. This rejteal was no 
 doubt dui' to the consideiations ]>ointed out by Mr. Itel- 
 lenden Ker, in his well known lettei- to ti." Lord Chan- 
 cellor. In his opinion the real inconvevience to be 
 remedied arose in the case of the death of one of the 
 several trustees who had lent money ujton a mortgage. 
 We may «inot<' the {tassage from the letter which con- 
 tains his comments upon tlie provisions witii wliich we 
 are now concerned: "It was to remove this inconveni- 
 ence that the clause in «iueslion was framed; but it goes 
 far beyond the evil in (juestion, by maldng tlie r('cei])t!4 
 of the survivor of all mortgagees wlu» are at law joint 
 tenants suthcient. Now in practice many persons not 
 trustees, etc., talvc securities in joint tenancy; and it 
 would seem very inexpedient thus to repeal generally 
 the salutary (Mpiitable rule as regards these sec\irities, 
 and to allow the survivor to jtossess liimself of the whole 
 funds without the concui-rence of the rejiicsentatives 
 of the other equitable tenant in common.' The j)rompt 
 repeal of the section ]»roves that this view of its inex- 
 pediency jirevailed witli Parliament. Hut our Legisla- 
 ture must have thouglit tliat different considerations 
 were applicable to the circumstances of this country, 
 for the clause was enacted here four years after its re- 
 peal in England. We ni»prehend that thei-e is no 
 doubt that the construction which ^Ir. Kellenden Ker 
 indicates is the correct one. The surviving mortgagee 
 could already have given a receipt valid in a Court of 
 law; the statute freed the person paying from any 
 equitable obligation to see to the application of the 
 money. Thus the survivor became, as far as the jterson 
 paying was concerned, the person entitled, both at law 
 
 '\v 
 
w 
 
 w 
 
 228 
 
 FOUECLOSUUE OF M<)KT(JAUE.S. 
 
 
 iii: 
 
 and in ('(jiiitv, \o ifccivc the inoiu'.v and to j;iv<' an cfTcc- 
 tnal discliar^c from Ihc d('l>f. 'l\y that we ninst tlicn 
 i'oui)I(' tiK' (iOdi Hcction of :\2 V. c, 1(1 (//), wliich niakt's 
 a i('j;lst('r<'d ('crtiflcatc, cxt'cntt'd by the iM'ison cntitU'd 
 by hiw to n'ccivo the money and dlscharjjc the mort- 
 ga^c, as valid and ctfcctnal in hiw as a rclfaHc of snch 
 nioi'tpiji*' and a convcyanrc to the mortgagor. It is im- 
 l)ossibl«' to draw any othri* conclnsion tlian that tiu' 
 registration of a ccrtitirate given by tlie survivor npon 
 payment of the debt, elTectnally disrhai'ges the mort- 
 gage and revests the h'gal estate. The wliole tenor of 
 the statntory reguhition exclndes the supjMisition that 
 the survivor was authorized to receive the money and 
 discharge tlie debt witliout being empowered to recon- 
 vey the legal estate.'' 
 
 CiiANCK Effectkd hy Sfxtion 1.'?. — Now what does 
 the i)resent section 1'? add to this state of the law? A 
 good deal of the i)hraseology of that section is explained 
 by reference to a very common clause inserted by Eng- 
 lish conveyancers in mortgages to trustees, somewluit 
 as follows: " Witnesseth that in consideration of the 
 sum of now paid to the said mortgagor 
 
 by the said mortgagees (out of money belonging to them 
 on a joint account), the receipt whereof is her<-by ac- 
 knowledged, etc." This form of clause is an expedient 
 by which trustees (1) obtain the advantage of survivor- 
 ship, and (2) do not disclose the trust (/), which dis- 
 closure would, in equity, render the mortgagor liable to 
 see to the api)lication of his payments. 
 
 lioth the sutticiency of the recei[)t of the survivor 
 and the non-liability to see to the application of pay- 
 ments have been secured to the mortgagor in England 
 by the Conveyancing Act of 1881 (y), sections 30 and (51; 
 
 ih) His l^ordship nioiint the 00th section of 31 V, c, 20; It. S. O. 
 (1SS7) c. 114. s. (M); now 11. S. O. 1897, c. 13C.. s. 70. 
 
 (/) As to tlu> iinportiinoo of which non-disclosure even now, see 
 Bvthewood & .Tnrnian. Convoj-ancinj;, 4th l.tl., Vol. III., pp. 849, 
 097. 
 
 0) 44 & 45 Vict. c. (Imp). 
 
ACr IIKSPECTINCJ MOUTOAfiEH OF IIKAL KSTATE. 220 
 
 tlie latter ln'iiifj our pi'CHciU section l.'{(/i). Itui ns both 
 these same privih'^cs are already seciired in Ontai'io by 
 the jtresent sectiiMi 11, what new rij;ht has seetion l."{ 
 added in this Trovince? 
 
 To answer this (piestion, let ns ajjain refer to the 
 jndjiinent in Dillie v, l)ouj,'las (/): — " Hnt the statute (m), 
 in terms only refers to the bona fide payment of money. 
 It does not expi-essly extend its jjrolection to a niort- 
 ^aj^or who, instead of actually jiayinj; the debt, chooses 
 to enter into scnne dill'erenl ari'anj;<Mnent for securlnji; it. 
 It is ui'jicd that the substituted mortj;a}ie bein^ iini|>le 
 secuiity, it is e(|uivalent to payment, but we do not feel 
 at liberty to jdace such an t'xtended construction upon 
 tile statute. Its natural and obvious ini|)ort is that the 
 relaxation of the doctrine of e«iuity shall be c(mllned to 
 cases of actual j)ayment of money, and thei-e is nothing; 
 either in the words or the spirit of the Icf^islation which 
 would warrant us in j^ivinji; tlie same < tiect to the accept- 
 ance of another security as to a i-eceipt of money." 
 
 Now the last clause in section \'.i, siib-section (1), 
 certainly is more liberal than section 14 as interpreted 
 alio',-e. for it makes the receipt in writin«j; of the survivor 
 a complete discharjie. t^o that in this ri'spect some- 
 thinji has been added by the inti'oducti(ui of section i:?. 
 
 To Slmmari/.k. — A. The receipt of any survivinj:; 
 mortfia^ee (or his representative) with bona tide pay- 
 ment to him is an etTectual discharj^e. K. Tiie receipt 
 of a surviving^ niortji;aj'ee (or his representative) under 
 a nioi'tjj;a}'e containinj; a " joint account '' clause (,/))> is 
 a complete discharp;e whether the payment is in nioney 
 or in some other form. 
 
 The provisions of 22 & 2.'^ Vict. c. :',.■) (Imp.), s. 23, 
 and 23 & 24 Vict, c 14."), s. 131), which correspond to our 
 
 ik) 49 Vict. 0. 20, s. ITi, which caiuo into force 1st thiy of July. 
 
 1S8<;. 
 
 (/) .'> A. R. .at p. 77 (1880). 
 
 (m) Prosont section 15. 
 
 («) Such ns nlrendy given above. 
 
 ..«"> 
 
230 
 
 FORECLOSUUE OF MOllTGAGES. 
 
 I'i 
 
 present section 14, and which like tliat section only re- 
 lated to the payment of money, have been repealed in 
 Enji^huid by the ampler provision in section 'Mi of the 
 Conveyancinj; Act of 1S81 (o). 
 
 Will Courts Go liEiiixD "Joint Accorxx " 
 Clause. — The nse of the words " as between them and 
 the mortg:aj!;or or obligor," in section 14, is to be care- 
 fnlly noted; for it has been decided tliat while the Couit 
 will not f?o behind the ''.joint account" clause when 
 dealin}? witli the rights of the mortj-agor, yet as anions 
 the mortfta^ees themselves the Court will go behind 
 that clause and look into the real nature of the trans- 
 action (/;). Thus, in Ke Jackson, Smith v. Sibthoi'jx' (7I. 
 the Court, notwithstandiufj the evidence that the etfect 
 of the joint account clause was exi)lained to the mortua- 
 gees, held that they were tenants in common. As it 
 was very cleverly put in the argument in this latter 
 case: "The joint account clause is mere conveyancing 
 machinery, its ol)ject being only to facilitate the dealing 
 with the pro|)erty, and though a purchaser nmy not be 
 entitled to go behind it, it is not conclusively binding 
 on the persons interested in the money." 
 
 15. The right of a mortgagee to distriiin for interest in arrear 
 upon Ji mortgage, sliall Lo limited to the goods and chattels cf 
 the mortgagor, and as to such goods and chattels, to such only as 
 are not exempt from seiziu'G under execution. This section shall 
 not apply to mortgages existing on the 25th day of March, 1886. 
 R. S. O. 1887, c. 102, s. 16. 49 V. c. 29, s. 3. 
 
 Hi. (1) As against creditors of any mortgagor or person in 
 possession of mui.i,iged premises under a mortgagor, the right, 
 if any, to distrain upon the mortgaged premises for arrears of 
 interest or for rent, in the nature of or in lieu of interest under 
 the provisions of any mortgage to be executed after the 23rd day 
 of April, 1887, shall be restricted to one year's arrears of such 
 interest or rent, but this restriction shall not apply unless some 
 one of such creditors shall be an execution creditor, or unlesis 
 
 (o) 44 & 45 Vict. c. 41 (Imp.). 
 
 (p) In ro Ilarnian & U. R. Ry. Co., 24 Ch. D. (1883). 
 
 iq) 34 Cli. I). 732 (1887). 
 
'i':-k 
 
 ACT RESPECTING iMORTGAGES OF REAL ESTA'l'E. 
 
 •231 
 
 •Vi 
 
 there shall bo an assignee for the general bcnoflt of such creditors 
 appointed before lawful sale of the goods distrained, nor unless 
 the officer executing such writ of execution, or such assignee 
 shall, by notice in writing to be given to the person distraining, 
 or his attorney, bailiff, or agent, before such lawful sale, claim 
 the benefit of thf said restriction, and in case such notice is so 
 given, the di.,...iinor shall relinquish to the officer or assignee thQ 
 goods distrained, upon receiving one year's arrears of such in- 
 terest or rent and his reasonable costs of distress, or if such 
 arrears and costs shall not be paid or tendered he shall sell only 
 so much of the goods distrained as shall be necessary to satisfy 
 one year's arrears of suoh interest or rent and the reasonable 
 costs of distress and sale, and shall thereupon relinquish any 
 residue of goods, and pay any residue of moneys, proceeds of 
 goods so distrained, to the said officer or assignee. 
 
 (2) Any officer executing a writ of execution, or an assignee 
 who shall pay any money to relieve goods from distress under 
 t'lp next preceding sub-section, shall be entitled to reimburse 
 himself therefor .>ut of the proceeds of the sale of such goods. 
 
 (3) Goods distrained for arrears of interest or rent, as afore- 
 said, shall not be sold except after such public notice as is now 
 required to be given by a landlord who sells goods distrained for 
 rent. R. S. 0. 1887, c. 102, s. 17. 50 V. c. 7, ss. 36-38. 
 
 Distress and Attokxmext. — There are two soiiie- 
 wluat siiiiilai" powers Hint have been eoiniiionly in- 
 serted iu mortgages with a view to alVordinj; the niort- 
 {i'agee a speedy mode of enforcing the pay men t of liis 
 interest, instead of liis being imt to Hie necessity of 
 taking jiossession of the premises by means of an «'ject- 
 ment. These two powers are: (1) a i)ower of distress 
 for arrears of rent(/|; and {'!) an attornment chnise (>). 
 
 Operation of Section 15. — Section 15 seems in- 
 tended to deal with tlie simple power of distress. We 
 tind that view taken of it in Edmonds v. Hamilton I'rovi- 
 dent and Loan Society (/), where it is said: " Then as to 
 
 (/•) A mere i)()Wer of distress may be given in a mort>:a;,'e wilii- 
 out ereatiiiK a tenaney: Chapman v. Beecham. :'• A. iV K. N. S. 
 723 (1S41.'). 
 
 (.s) See Bythewood & .Tarman, 4th Md., Vol. III., OHO. 
 (0 18 A. U. .'{47, 3r>0 (IStH); Corhaiu v. Kingston, 17 O. U. 432 
 <1HS5», considered. 
 
232 
 
 FORECLOSURE OF MORTGAGES. 
 
 I I 
 
 the seizure of Leslie Edmonds' goods. If the distress 
 was for interest simplieiter under the terms of the mort- 
 gage, the clause authorizing the distress would amount 
 to a license only, and would not warrant the seizure of 
 the goods of a stranger. That was always the law. al- 
 though there was at one time some difference of opinion 
 on the siibject, and I think that the clause to be found 
 in the Act respecting Mortgages, K. S. O. (1887), c. 102, 
 s. IG, must be confined, as its language plainly imports, 
 to distresses of that kind, and though perhajis unneces- 
 sary, was intended ex abundante cautela to remove 
 doubt upon the subject " («). 
 
 Attorxmext (.'lause. — An attornment clause may 
 be of either of two kinds: (1) It may be a mere sham, a 
 mere contrivance and device to give the mortgagee an 
 additional benetit in the event of the mortgagor's bank- 
 ruptcy (r), or (2) it may be a bona tide contract for the 
 creation of the relation of landlord and tenant between 
 the mortgagee and mortgagor {w). 
 
 This distinction has been fully discussed in our 
 Supreme ('ourt in Ilobbs v. Ontario Loan and Deben- 
 ture Company (.r). 
 
 " The reality of the tenancy between n)ot'tgagor and 
 the defendant company depends in the tirst plac<' on the 
 sulliciency of the lease as a matter of conveyancing, and 
 in the next place on the bona tides of the transaction. 
 
 '' The latter point has usually been tested in Eng- 
 land in the light of the bankruptcy law. Here we have 
 no bankruptcy law at present, but it does not therefore 
 follow that the intention with which the lease is made 
 is to be disregarded. Creditors may be taken advant- 
 age of in other ways than those expressly forbidden by 
 the bankruptcy laws, and the right to challenge one of 
 
 («) Cf. FrooniKii v. Edwards. 2 Exoh. 732 (1848). 
 (r) Ex imrto Williiims. 7 Ch. D. 143 (1877). 
 
 (n) Ex pnrtc Voisoy. 21 Ch I). 453 (18821. St-o Tnist & lionn 
 C(i. V. I.nwrason. (5 A. U. 28(5 (1881). 
 
 approving 
 
 (.r) IS S. C. R. .'>42 (181)0); 
 Lucas, 44 U. C. R. 100 (1870). 
 
 Superior I^onn & S. Co. v. 
 
m 
 
 US 
 1 I 
 
 ACT UESPEC'l'ING MOUTGAGES OF HEAL ESTATE. 
 
 233 
 
 .«Bl 
 
 these leases is not oontined to creditors. Some of the 
 ordinary incidents of the relation of landlord and tenant 
 are fitted to produce injustice, and the person affected 
 by them must have the rijjht to question the reality of 
 the relationship. A notable example is the rij;ht to dis- 
 train the }j;oods of a stranp;er, which still exists in On- 
 tario thouj,^h modified by statute, K. S. O. 1887, c. 102, 
 ss. K), 17. 
 
 " Kearsley v. I'hillips (//) is an instance of the exer- 
 cise of (hat ri}iht under the attornment clause in a mort- 
 p;aj?e, and in the case Ke Willis {z), one of the Lord Jus- 
 tices refers to that power as a reason why an attorn- 
 n»eiit is more beneficial to a mortj>agee than a mere 
 power to enter and distrain {a). 
 
 '' It cannot be deni<'d that a mortjjagor competent 
 to contiact will be bound by whatever barj-ain he volun- 
 tarily nuikes with his mort}i;aj;ee, and in attorniu}' ten- 
 ant to him, may if he jdease, a};;ree to pay him rent at 
 a hifihcr rate than a stran}:;er would be likely to fiive for 
 the premises, but when the (piestion is whether there is 
 an honest intention to create the rtlationsliij) of land- 
 l(trd and tenant or whether a tenancy is absolutely cre- 
 ated in order to cover some other purpose, we can pro- 
 perly, and without interfering- with the freedom of con- 
 tract, consider the terms of the lease as a part of the 
 evidence bearing on the fact of intention." 
 
 Section IG is evidently intended to apply to the 
 case where a bona fide relation of landlord and tenant 
 has been created by the nu)rtgage. This we may infei* 
 fi'oni the third sub-section, which recjuires ilie same 
 imblic notice of sale by a mortgagee as by a landlord; 
 and from the close similarity of section 1(5 to section 42 
 of the Imperial Itankruptcy Act, IS.s:?, by which it seems 
 to have been suggested (//). The effect of both enact- 
 
 (1/) 11 g. B. I). (i2l (]S,S3). 
 
 (^1 21 Q. B. D. 384. S'J'j (1888). 
 
 ((i\ Sw also Daulmz v. Liivinutoii, 13 Q. R. D. 347 (1884^ Unit 
 V. Comfort. 18 Q. B. 1). 11 (1887), us to offoct of attorniiu'iit. on the 
 prarticp of indorsing writs. 
 
 {h) 40 & 47 Vict. c. 52 (Tnui.) h. 42. 
 
 ;ir 
 
w 
 
 234 
 
 FORECLOSUllE OF MOllTGAGES. 
 
 !;* 
 
 
 -If 
 
 ,: \ 
 
 u 
 
 merits is to limit the riglit, wliicli tlie mortgagee-land- 
 lord bad of distraining all goods found on the premises, 
 to one year's arrears of rent or interest, in cases where 
 creditors pursuing their remedies would be prejudiced 
 by such distress (c). 
 
 Disadvantages of an Attornment. — An attorn- 
 ment clause, wliile it has the advantage over a mere 
 distress clause in respect to the seizure of the goods of 
 strangers, has certain disadvantages; of which the chief 
 is the risk that such a clause will render the mortgagee 
 liable (as mortgagee in possession) to account as against 
 subsequent incumbrancers for rent received, or which 
 but for wilful default might have been received (d). 
 
 How Far Attornment Binds Heir of Mortgagor. 
 — See Scobie v. Collins (c). 
 
 Distress for Interest on Goods of Stranger. — 
 See Miller v. Imperial Loan & I. Co. (/'). 
 
 Attornments to Two Mortgagees. — Following the 
 iinalogy of Ex parte Punnet t (//), we may say that an 
 attornment to a second mortgagee is not invalid because 
 of a prior attornment to a tirst mortgagee; and if the 
 amount of the rents tixed by the two attornment clauses 
 is a fair rent of tlie property, valid distresses may be 
 levied by both mortgagees under their attornment 
 clauses. Of course, such distresses will be subject to 
 the present section IG. 
 
 Forms of Distress and Attornment Clauses. — 
 There are innumerable shades of difference in these, but 
 it may be useful to give a few general samples: — 
 
 (c) Si'o Ex parti' Hill. (5 Cli. D. ()3 (ISll); Ex parte Williams, 
 7 Ch. D. 1;{S (INTT). But tho mortgagee is in a rather worse posi- 
 tion tlian tlie landlord: see In re Laneashire Cotton Spinning Co., 
 3r» Ch. 1). (I.'it; (INST). 
 
 id) lie Iron Furnaee Co.. 10 Cli. D. 35G (1S79). But see Stanley 
 V. Urnndy, 22 Ch. D. 47S (1883). See also article by A. H. Marsh, 
 ii.C in »> C. L. T. 2(r». 
 
 (f) L. li. (lSt).->) 1 Q. B. 375. 
 
 (f) 11 INfan. Ti. I{. 247; IG C. L. T. 298. 
 
 (o) 1<> Cli. D. 220 U880); following Morton v. Woods, 4 L. R. 
 Q. B. 293 (18r.9). 
 
ACT UKSPEUTING MOIlTfJAOES OF REAL ESTATE. 235 
 
 Distress Clausk. — The form in claiiHt' 15 in the 
 .sc'IuhIuIo to the Act rospcctinfi' Short Foi-nis of Moitj^Mgt.s 
 is a distress chuiso, and has been (M)nstrni'd as a mere 
 license to talvc the floods of tlie mortfjaj^'or (/O. 
 
 An Attokxmext Clause is in some sndi form as 
 llie following: — "And for tlie consideration aforesaid, 
 ihe mortgagor hereby attorns and becomes tenant from 
 year to year (/) to the mortgagee of the premises hereby 
 conveyed, or so nincli and such part or parts thereof as 
 are in the occupation ol' tlie mortj;agor at the yearly rent 
 of dollars, clear of all deductions, to be paid 
 
 by ecjual half-yearly payments on the day of 
 
 and day of in every year (i.e.. the days 
 
 lixed for paymenl of interest) during the continuance of 
 this security " {j). 
 
 SiiA.M Attorxmext. — As an extreme example of a 
 sham attornment, Ex \nn'te Williams (/,) nuiy be in- 
 stanced; the mortgage was to secure £.■)"),()()(), the rent 
 reserved was £20,000; ''it was clearly intended only as 
 a sham rent '' (/). 
 
 17. (J) Where default has been made in the payment of any 
 principal money secured by any mortgage made subsequent to the 
 1st day of July, 1888, according to the terras and conditions there- 
 of, the same may be paid at any tinu' thereafter without previous 
 notice to the person entitled to receive the same, and without the 
 payment of any interest in lieu of such notice; Provided always, 
 that if in or by the said niortj^a^e or otherwise tliere has been 
 any express agreement with respect either to such notica or to 
 interest to be paid in lieu thereof, such agreement shall be bind- 
 ing and have the same effect as if this section had not been 
 
 [ID Trust iV Loan Co. v. Lawriisoii. C A. U. 'JS(! (ISSl); Klinck 
 V. Ontario liidi strial Loan Co., lit U. U. .">(;.") i ISSS). 
 
 (/) See 111 re Threlfall, 1(J Vh. I >. 1274 (ISS(t). 
 
 fj) l'\)r form iv easef* of iiiortKUKe by joint tenants and tenants 
 in connno... see Kx parte IVirke. L. U. 18 K(i. iJSl (1874). 
 
 (A) 7 Ch. 1). lys (1877). Cf. Ex parte .Tackson, 14 Cli. D. 725 
 (1880). 
 
 (/) The attornment clause is not intended to enable mortRagee 
 to repay himself tile capital advanced: Hampson v. Fellows, L. U. 
 i; Eq. r>7."> (18t!8). As to the effect of Bills of Sale Acts on attorn- 
 nu'nt clauses, see Mumford v. Collier, liu Q. B. D. 279 (ISOO). 
 
 IS 
 
 
w 
 
 w 
 
 286 
 
 FORECLOSURE OF MORTGAGES. 
 
 ,:!(( 
 
 ii : i 
 
 passed; Provided moreover, that this section shall not bo held as 
 applying to any default in the payment of principal nionoy that 
 may have become due or payable only by reason of some di'fault 
 made in the payment of interest money secured or payable by or 
 under any such mortgage, or by rcasr of some default made in 
 the payment of any instalment of principal money, or any portion 
 of any instalment of principal money secured or payable by or un- 
 der any such mortgage, but shall be held as applying to any such 
 instalment in respect of which default has been made as afore- 
 said 
 
 (2) Any rule, question or matter of law and equity affecting 
 or arising out of any default in the payment of money secured by 
 any mortgage mad(> on or prior to the said 1st day of July, 1888, 
 shall in all respects, and for all purposes, be adjudged and deter- 
 mined as if the provisions of this section had not been enacted. 
 51 V. c. 15, s. 2. 
 
 CiiAxcK Effkctki) i!V Skction 17. — The law pre- 
 viously to the 1st July, 1888, may be stated as follows: — 
 
 A inoi'tfjcaf^ee, whose money was not paid on the day 
 appointed by the mortsaye was entitled to six calendar 
 months' notice previously to beinj^ paid (ni). This was 
 a practice resting upon custom; and the custom is 
 founded on this, namel^y, that it is but fair that the 
 party who has lent his money upon the security, should 
 have a reasonable opportunity, before the transaction 
 is put an end to, of linding some other security on which 
 he may lay out his money when it has been repaid to him()i). 
 It afterwards became the practice to treat six months' in- 
 to'est in advance as ecjuivalent to six months' notice. 
 
 WiiKX ^Mortgagee Not Entitled to Notice. — It 
 seems that when the mort}j;agee gives notice demanding 
 payment, or takes proceedings for the recovery of the 
 money (which is equivalent to a demand) previous notice 
 was (and is) not requisite (o). 
 
 (>!>! lliinner v. Priestly. 10 Poav. .^71 (185.31. See Archilialil v. 
 ''• idiiiK ar.a Loan Assoo. 15 O. P. 2^7: Hi A. U. 1 (1888). 
 • I'.rowne v. Poeldiart, 10 Sim. 4U4 (1840). 
 
 ' -linnner v. BerridKO. 18 Ch. D. 254 (1881); Matson v. Swift, 
 5 J ii r>r-) (18411. followed in Ro Houston. 2 O. VC. 84 (1882); Letts 
 '..-•. .ins, L. H. 13 Eq. 17G (1871); Paynter v. Carew, IS .Tur. 
 411 vi&64). 
 
-^ ii 
 
 ACT RESPECTING MORTGAGES OF REAL ESTATE. 
 
 237 
 
 It was held, however, that the rule requiring notice 
 or interest applied where the mortgagee gave a notice 
 requiring payment on a particular day, if the money was 
 not then paid [p). 
 
 The consent of the mortgagee, during an adminis- 
 tration suit, to a sale amounted to acceptance by 
 him of notice to pay otf, and he was not entitled to six 
 months' interest in lieu of notice, but only interest for 
 the period which intervened between the actual pay- 
 ment off and the expiration of the six mouths from the 
 time of such consent being given (q). 
 
 The effect of the present enactment is of course to 
 dispense with the notice, or interest in lieu of notice, 
 hitherto required when default Wiis made in Uie pay- 
 ment of the i)rincipal as it fell due. 
 
 First Proviso. — The effect of this proviso is to 
 allow any express agreement by the parties on the sub- 
 ject of notice to be binding. Doubtless, unless the ex- 
 press agreement disclosed a contrary intention, the 
 former rule would apply, that when the mortgagor 
 soiight to pay, some notice, and when the mortgagee 
 called in the money, no notice would be required. 
 
 Second Proviso. — The sense of this proviso is not 
 so plain as could be desired; but the evident intention 
 is to deal with what are called acceleration clauses. 
 TImis there is generally a clause in a mortgage such as 
 " Provided in default of payment of the interest hereby 
 secured, the principal hereby secured shall become pay- 
 able" (/). Properly this clause is enforceable only at 
 the option of the mortgagee {s); but to remove any mis- 
 apprehension the Legislature has inserted the second 
 proviso, the effect of which is as follows: — 
 
 (1) When an instalment of principal has fallen due, 
 the mortgagor may, after default, without notice, etc., 
 pay that instalment (not the whole principal). 
 
 (p) BnrtU'tt V. rrnnkliii. 15 W. II. 1077 (18(57). 
 
 (q) Dity V. Day, 31 lieav. 270 (18(52). 
 
 (*•) Cf. Criiso V. Bond. 1 O. R. 384; P. 11. Ill (1881). 
 
 (s) 11. S. O. 1897, c. 12G, Sched. B.. clause IG. 
 
w 
 
 M" 5 
 
 288 
 
 FOltECLOSUUE OF MORTGAGES. 
 
 (2) The default of some interest, or of an instalment 
 or portion of an instalment of principal, gives no right 
 to pay oir the whole principal without notice, ete., unless 
 the mortgagee has detinitely exercised his option of ac- 
 celeration. 
 
 For Kule Allowing I»ayment Oi-f Whex Mort- 
 gage Matures More Than Fine Years From Date.— 
 See K. S. C. c. 127, s. 7; 53 Vict. c. 34 (Can.), s. 1. 
 
 if 
 
 TART II. 
 
 Part II. of this Act represents Tart II. of Lord 
 Cranwortlfs Act (/), which part lias been repealed in 
 England by the Conveyancing Act, llSlSl (u), and its place 
 supplied by sections 10 et seq. of the last mentioned 
 enactment. Even after such repeal in England it has 
 been held that in the case of a mortgage executed before 
 ISSl, the powers under Lord Cranworth's Act can be 
 exercised since 1881 (c). 
 
 As we have elsewhere more fully discussed the sub- 
 ject of I'ower of Sale in a work specially devoted to that 
 branch of law (/r), we may refer the reader to said work 
 for further information besides what properly can be 
 inserted under the succeeding sections of this Act. 
 
 18. Where any principal money is secured or charged by 
 deed executed after the 11th day of March, 1879, on any heredita- 
 ments of any tenure, or on any interest therein, the person to 
 whom the money shall, for the lime being, be payable, his execu- 
 tors, administrators and assigns, shall at any time after the ex- 
 piration of four months from the time when the principal money 
 shall have become payable according to the terms of the deed, or 
 after any interest on the principal money shall have been in 
 arrear for six months, or .after any omission to pay any premium 
 
 (0 23 & 24 Vict. 0. 14r> (Imp.) ss. 11-24. 
 («) 44 & 45 Vict. 0. 41. 2nd Schedule, Part III. 
 (i) Re Solomon & MoaKhor's Contract, 40 Ch. D. 508 (1889). 
 (ir) Treatise on Tower of Sale (1802); The Carswoll Co.. 
 (Limited). 
 
ACT HESPECTIN'O MOllTOAOES OF HEAL ESTA'lE. 
 
 21V.) 
 
 ,«bi 
 
 Co. 
 
 on any insurance which, by the terms of the deed, ought to lie 
 p.'iid by the person entitled to the property subject to the charge, 
 have the following powers, to the same extent (but no more) as if 
 they hiid been in tevms conferred by the person creating the 
 chiirge, namely: 
 
 1st. A power to sell, or concur with any other person in 
 selling the whoh' or any part of the property by public auction 
 or private contnict, subject to any reasonable conditions he may 
 think fit to mnke, .and to rescind or vary contracts for sale, or 
 buy in and re-sell the property, from time to time, in like manner. 
 
 2nd. A power to insure, and keep insured, from loss or 
 dam;ige by fire, the whole or any part of the property (whether 
 affixed to the freehold or not) which is in its nature insurable, 
 and to add the premiums paid for such insurance to the principal 
 money secured at the same rate of interest. R. S. O. 1887, c. 102, 
 s. 18 ; 51 V. c. 15, s. ;}, part ; 42 V. c 20, s. 1. 
 
 The nth day of ^[arcli, 1870, Is the date of assiMit 
 to 42 Vict. e. 20 (Out.), by wliicli Part 11. of tli(> itrcscnt 
 Act was oi'if]^iiially enacted in Ontario. There arc two 
 powers contained in tlie i)resent section, wliich are en- 
 tirely distinct and wliidi we may deal with separately 
 in this order: 1st, the power of sale; 2nd, tlie power 
 to insnre. 
 
 1. FowER OF Sale. — The period of defanlt after 
 which salt? may be had under this Act has been nnder- 
 ^oinjj: a jiiadiml diminution. Thus Lord ('ranworth's 
 Act, section 11, reads, *' at any time after the exi»iration 
 of one year froiii tlie time when such princijial money 
 shall have become payable"; 42 Vict. c. 20 (Ont.), s. 1, 
 replaced one year by six months; still later, The Mort- 
 gage Amendment Act, 1888 (.?), has replaced six montlis 
 by four months. 
 
 The period for arrears of interest is still six months 
 as in Lord Cranworth's Act. 
 
 2. The Power to Insure. — This power is to come 
 into force " after any omission to pay any premium on 
 any insurance which by the terms of the deed ought ta 
 
 (a) 51 Vict. c. 15 (Ont.) s. 3. 
 
m 
 
 i' 
 
 240 
 
 FORECLOSUIIE OF MOUTGAOES. 
 
 % i 
 
 I' • 
 
 be paid bv tlio jxTson entitUHl to the i)roi)erty subject to 
 the chai'tje." Hut in ()utj.'''o the usual insurance clause 
 in accordance with which such premium " o\ijj;ht to be 
 paid " is based on clause 12 in the schedule to the Short 
 Forms of Mortpi^es Act(//); and as the latter part of 
 that clause vests a fuller power in the mort}j;a}?ee to 
 insure than that conferred by this section; and as a<- 
 cordins: to section 28 of this Act such a power already 
 existing in the deed precludes the operation of the 
 l)0\ver conferred by the present section, the result is 
 that the power to insure under the present section is a 
 matter ol" very little consequence or value. 
 
 19. Reci'lpts for purchase money given by the person or 
 persons exercising the power of sale by the preceding section 
 conferred, shiill be sufficient discharges to the purchaser, who 
 shall not be bound to see to the application of the purchase 
 money. R. S. O. 1887, c. 102, s. 19 ; 42 V. c. 20. s. 2. 
 
 Compare this section with section 14 preceding" ; 
 and see notes thereunder. 
 
 20. (1) No sale as aforesaid shall be made until after two 
 months' notice in writing has been given to any subsequent in- 
 cumbrancer, and to the person entitled to the property subject 
 to the charge and to such incumbrance, the notice to be given 
 either personally or at his usual or last place of residence in this 
 Province, which notice may be given at any time after any de- 
 fault in making a payment provided for by the deed. R. S. O. 
 1887, c. 102, s. 20 (1): 51 V. c. 15, s. 3, part. 
 
 (2) In case of the death of the person entitled subject to the 
 charge, .and of his interest therein passing to infant heirs or 
 devisees, the notice shall be given as aforesaid to liis executors 
 or administrators, as well as to his heirs or devisees, as the case 
 may be. 
 
 (3) The notice for aoi infant heir is to be served upon his 
 guardian, and is also to be served upon the infant himself, if 
 over the age of twelve years. R. S. O. 1887, c. 102, s. 20 (2-3); 42 
 V. c. 20. s. 3. 
 
 Section 12 of Lord Cranworth's Act had six months' 
 notice; 42 Vict. c. 20, s. 3, has three months' notice ; 
 
 (l/) R. S. O. 1897, c. 12G. 
 
ACT llESl'ECTING MOUTGAGES OF HEAL ESTATE. 
 
 241 
 
 il 
 
 t 
 
 which ill turn has bcou shoiteut'd to two inoutlis' 
 notice (z). 
 
 The words " to any subsecpient incumbrancer and 
 to the person entitled," etc., leave no doiibt as to notice* 
 being due to the " assigns •' of the mortgagor. The 
 words " either personally or at his usual or last place 
 of residence " contain an ambiguity. " His '" may be taken 
 1o refer to " the person entitled to the proi)erty," so that 
 jiosting up a notice (or leaving it) at the moitgagor's 
 residence mav be taken to be good service on the 
 
 assigns 
 
 [a). 
 
 The words "at any time after any default" allow 
 the notice to run concurrently with the period o£ de- 
 fault. 
 
 Notice to Executors, etc. — Ditliculties may ai-ise 
 in this connection where no administrators have been 
 appointed (b). 
 
 The mode of notice to an infant heir (sub-section li) 
 was suggested by the absurdity of the then, and (ai)art 
 from this Act) present condition of the law on this sub- 
 ject. This condition of the law has been stated in Itart- 
 lett V. Jull {(•), wliere the mortgagee served the widow 
 and the administrator of tlie mortgagoi". with a notice 
 addressed to her as widow, instead of serving the parly 
 properly entitled, a child of three years. The sale was 
 set aside as he had served a person who "had nothing 
 to do with tlie matter.'' 
 
 81. When a sale has been effected in professed exercise of the 
 powers hereby conferred, the title of the purchaser shall not be 
 liable to be impeached on the ground that no case had ari.sen to 
 authorize the exercise of such power, or that such power has been 
 improperly or irregularly exercised, or that no such notice as 
 
 (x) By 51 A'ict. c. 1.^) (Out.) s. 3. 
 
 (a) Soo IMajor v. Ward, 5 Ha. 598 (1S47); O'Donnhoo v. Whltty, 
 2 O. R. 430 nSS3). 
 
 <h) Sop Parkinson v. Hnnbnrv, L. R. 2 H. L. 18; Aylwnrd v. 
 Lewis. L. R. (1801) 2 Ch. 87. 
 ((■) 23 Or. 140 (1880). 
 
 H.K.M.— 1(5 
 
Pf 
 
 i 
 
 p 
 
 
 242 
 
 FOUl'X'LOSUUE OF MOllTCJAOKS. 
 
 nforesald has been given; but iiny person daninifled by any f;uch 
 unttutboilzcd, inipi'ui)er, or Irregular exercise of such power, shall 
 have his remedy against the person selling. R. S. O. 1887, c. 102, 
 B. 21; 42 V. c. 20, s. 4. 
 
 This is llic liiltcf ])ortion of soction l.'J of Lord 
 f'l'jinwoilli's Act. TIh' object of tin* •'naclinciit in to 
 prcvciil llir scttiiij; aside of sale., on aecoiinl oi' iirefju- 
 lai'ilies in llie sale i»r(H'eediiij;s. The s<'((ioiJ does not 
 j;o so far, however, as to protect a i)nrcha8er who is 
 aware of such irre}i:ulari(ies((/). 
 
 33. The notice of sale may be in the following form or to the 
 following effect: 
 
 I hereby require you on or before the day of 
 
 18 (a day not less than two calendar months from the service 
 of the notice, and not less than six months after the default), to 
 pay off the principal money and interest secured by a certain 
 indenture dated the day of 18 , and expressed 
 
 \i be made between (here state parties and describe mortgage 
 property), which said mortgage was registered on the day 
 
 of (and if the mortgage has been assigned add: and has 
 
 since become the property of the undersigned). And I hereby 
 give you notice that the amount due on the said mortgage for 
 principal, interest, and costs respectively, is as follows: (set the 
 saane forth). 
 
 And unless the said principal money and interest and costs 
 are paid on or before the said day of , I shall 
 
 sell the property comprised in the said indenture under the 
 authority of the Act entitled An Act respecting Mortgages of 
 Real Estate. Dated the day of 18 . R. S. 0. 
 
 1887, c. 102, s. 22; 58 V. c. 19, B. 1. 
 
 This may bo noted as one of the meritorious fea- 
 tures of the present enactment, namely, that ii indicates 
 what will be considered a proper form of notice of inten- 
 tion to sell the mortf;aji:ed property. 
 
 33- The notice of sale of lands may be registered in the 
 registry office of the registry division in which the lands are 
 situate, in the same manner as any other instrument affecting 
 
 (rf) For effect of snie by uiortgaKco to himself and then to third 
 person, see Henderson v. Ashwood, Ii. R. (1894) A. C. loO. 
 
'lllffi 
 
 ACr llESl'ECTIiNO M(Jin'fJA(iKS OF HEAL ESTATE. 
 
 243 
 
 
 Ithc 
 lare 
 
 [ing 
 
 the land, and such registration shall have thf aanio fffoct, and 
 the duties of the registrjir in rosixHl of tht> same sliall be as in 
 the case of any other registered instrument, and the fee to be 
 paid 6uch registrar for registering the same shall be fifty ceuts. 
 R. S. O. 1887, c. 102. 8. 23; 42 V. c. 20, s. 6. 
 
 '24. (I) 'I'he affidavit for the purpose of registering the notice 
 shall be made by the person who siived the same, and shall 
 prove the time, plaee, and manner of sueh service, and thai the 
 copy delivered to the registrar is a true eopy of the notice served. 
 
 (2) A c(ri)y of such registered not loo and aflldjivit, certified 
 under the hand and seal of office of the registrar, shall, in all 
 cases be received as prima facie evidence of tlio facts therein 
 stated. R. S. O. 1887, c. 102. s. 21; 42 V. c. 20. s. 7. 
 
 Those provisi(nis ms to n'j^islry iirc provisions tliat 
 should be exleiuled to all ciiHes ol" the exercise of a i»(»\ver 
 of sale, whether iiiuler this A(!t or olherwise. The sale 
 paper:' in eases to which this Act does not apitly, may be 
 deposited with the IJej^istrar under K. S. (). 1S!»7, c. l.''>7, 
 but such deposit does not inii)i'ove the value of such sale 
 papers as evidence (c). 
 
 *2Si. The money arising by a sale effected as aforesaid shall 
 beapplied by the person receiving:: the, Hauie, as follows : Firstly, 
 in payment of all the expenses incident to the sale or incurred In 
 any attempted sale; secondly, in discharge of all interest and 
 costs then due in respect of the charge in consequence whereof 
 the sale was made; and thirdly, in discharge of all the principal 
 moneys then due in respect of such charge; and the renldue of 
 such money shall be paid to the subsequent incumhriincers 
 according to their priorities, and the balance to the person 
 entitled to the property subject to the charge, his heirs, execu- 
 tors, administrators, or assigns, as the case may be. R. S. O. 
 1887. c. 102. s. 25; 42 V. c. 20, s. 8. 
 
 Section 14 of Lord Cran worth's Act does not con- 
 tain the provision for payment to the subse(|ueiit incum- 
 brancers accordinjT to their priorities. Of course the 
 payment to the assijjns of " the person entitled to the 
 property subject to the charge " may be taken as cover- 
 ing subsequent incumbrancers; but it is better to dis- 
 
 (c) R. S. O. 1897, c. 137, s. 11. 
 
!i! ; 
 
 244 
 
 FOUECLOSUllE OF MOUTGAGES. 
 
 II 
 
 J 
 1 ! 
 
 1 ■ ' 1 
 
 !! ■■ 
 
 
 tinctly recognize the rights of the subsequent incum- 
 brancers as regards the surplus. These incumbrancers- 
 are those already discovered by the preliminary searches 
 made by the vendor under power ; (/) and any others 
 who may notify and prove their claims to him. 
 
 Failing, subsequent incumbrancers known to him^ 
 the mortgagee may pay over the surplus to the person 
 entitled to the property, subject to the charge under 
 wliiclx sale was had. Payment may have to be made 
 to the mortgagor — to a subsequent purchaser — or to an 
 assignee in insolvency (g), as the case may be. In any 
 event, in the absence ol notice to the contrary, the mort- 
 gagee is entitled to pay over the surplus to the apparent 
 owner of the equity of redemption ih). 
 
 2«. The person exercising the power of sale hereby con- 
 ferred shall have power by rteed to convey or assign to and vest 
 in the purchaser the property sold, for all the estate and interest 
 therein, which the person who created the charge had power 
 to dispose of. R. S. O. 1887, c. 102, s. 26; 42 V. c. 20, s. 9. 
 
 There have been several decisions under section 15 
 of Lord Cran worth's Act; to which this present section 
 corresponds: 
 
 In Re Solomon Meagher's Contract (i), an equitable 
 mortgage was created by deed, containing an agreement 
 that, when called upon, the mortgagor would execute 
 to the lenders a legal and proper mortgage with power 
 of sale and all other powers, provisos, and agreements 
 usually contained or inserted in mortgages. The mort- 
 gagees contracted to sell the premises under the power 
 of sale in Lord Cranworth's Act, and an application was 
 made under the Vendor and Purchaser Act to determine 
 whether b. tag equitable mortgagees they could make 
 an effectual conveyance. It was held that they could. 
 
 (/) Si'o Ro Al.itott V. Mcdcalf, 20 O. R. 299 (1891); Bloor v. 
 Bank of U. C. 2 O. S. 31 (1844). 
 
 (fir) Cf. Calloway v. Peoples, 54 Ga. 441. 
 
 (h) Harper v. Culvert, 5 O. R. 152 (1884). 
 
 «) 40 Ch. D. 508 (1889). »> 
 
 'I, 
 Mil 
 
■^1 
 
 .1<""II 
 
 ACT RESPECTING MORTGAGES OF REAL ESTATE. 24.5 
 
 Where there was a mortgage, by demise, of lease- 
 holds, it was held that the mortgagee could, under sec- 
 tion 15, sell the lease to a purchaser (y). 
 
 37. At any time after the power of sale hereby conferred 
 shall have become exercisable, the person entitled to exercise 
 the same shall be entitled to demand and recover, from the 
 person entitled to the property subject to the charge, all the deeds 
 and documents in his possession or power relating to the same 
 property, or to the title thereto, which ho would have been 
 entitled to demand and recover if the same property had been 
 conveyed, appointed, surrendered, or assigned to and was then 
 vested in him for all the estate and interest of which the person 
 creating the charge had power to dispose of; and where the legal 
 estate shall be outstanding in a trustee, the person entitled to a 
 charge created by a person equitably entitled, or any purchaser 
 from such person, shall be entitled to call for a conveyance of the 
 legal estate to the same extent as the person creating the charge 
 could have called for such a conveyance if the charge had not 
 been made. R. S. O. 1887, c. 102, s. 27; 42 V. c. 20, s. 10. 
 
 28. So much of Part II. of this Act as provides for a power to 
 sell shall not apply in the case of a deed which contains a power 
 of sale (except as in the next section provided); and so much of 
 this Act as provides a power to insure shall not apply in the case 
 of a deed which contains a power to insure, nor shall any of the 
 provisions of Part II. of this Act apply to any deed which con- 
 tains a declaration that Part II. of this Act is not to apply there- 
 to. R. S. O. 1887, c. 102, s. 29; 51 V. c. 15, s. 4; 53 V. c. 27, s. 1; 
 42 V. c. 20, s. 12. 
 
 " Except as in the Next Section Provided. — 
 Prior to 51 Vict. c. 15, s. 4, this section was a severe 
 stumbling-block to any use being made of the powers 
 of sale conferred by this Act. It is chieiiy in cases 
 where the mortgage already contains express powers, 
 which for some reason ttirn out to be unavailable, that 
 the implied powers given in l*art II. of this Act would 
 
 (j) 19 W. R. 694 (187"). See further Re Ho(1hoii & Howes, 35 
 Ch. D. ()(!« (1887). n cn.so under tlie Convoy. Act. 18S1; and IW 
 Richnrdson, L. R. 12 Eq. ."iaS; l.'} Eq. 142 0871), for ofToct of sootion 
 15, whore the nu tgngor was roRlsterod with an indefensible title 
 under 25 & 2G Vict. c. 53 (Imp.), s. 17. 
 
 m 
 
Stt' I 
 
 246 
 
 FORECLOSUllE OF MORTGAGES. 
 
 |; ' 
 
 1 
 
 i ■ 
 i , 
 
 I'll 
 
 
 !;! 
 
 
 be called into use. The 32nd section of Lord Cranwortli's 
 Act and tbe 19tli section of the Conveyancing Act, 1881, 
 are both more liberal in this respect; the statutory power 
 taking effect subject to the special stipulations in the 
 deed. 
 
 2ii. — (1) Whenever a mortgage made in pursuance of the 
 Act respecting Short Forms of Mortgages contains a power of 
 sale in the form No. 14, in column one of Schedule B to the said 
 Act, the mortgagee, his heirs, executors, administrators or as- 
 signs may, in exercising the said power, in lieu of taking the 
 proceedings provided for by the said form No. 14, column two, 
 take proceedings under and have the benefit of the provisions of 
 Part II. of this Act, except that such power shall not be exercis- 
 able until after at least four months' default, and at least two 
 months' notice, or such longer periods as may by the power 
 contained in such mortgage be fixed therefor, and the said Part 
 II. shall apply to a sale made under such power. 51 Vict. c. 15, 
 s. 4. ' 
 
 (2) Whenever a mortgage purporting to be made in pur- 
 suance of the Act respecting Short Forms of Mortgages con- 
 tains a power of sale which provides for a sale without notice, the 
 mortgagee, his heirs, executors, administrators or assigns may 
 take proceedings to sell under and sell and have the benefit o£ 
 the provisions of Part II. of this Act as fully and effectually as. 
 if the mortgage had not contained a power of sale. This sub- 
 section shall be held to apply to all mortgages whether hereto- 
 fore or hereafter made. 53 Vict. c. 27, s. 1. 
 
 Effect of Above Sub-sections. — These enactments 
 are intended to amend the law as elucidated in Re Gil- 
 christ and Island {k). 
 
 To summarize their effect, we may say: — 
 1. That on four months' default as to principal (or 
 six months' default as to interest), there is a power of 
 sale — after certain proceedings mentioned in Part II. of 
 this Act — in any mortgage not containing an express 
 power of sale; 
 
 (A) 11 O. li. 537 (188G). See iufrn under II. S. O. 1897, c. 126, 
 clause 14. 
 
m 
 
 ACT RESPECTING MORTGAGES OF REAL ESTATE. 
 
 247 
 
 iil- 
 
 2. That in any mortgage made in pursuance of the 
 Short Forms Act, and containing a power according to 
 the form therein, the above power of sale may be exer- 
 cised optionally; and 
 
 3. That, when in a mortgage purporting to be made 
 in pursuance of the Short Forms Act, there is a power of 
 sale without notice, the mortgagee may exercise the 
 above power as if none other existed; but 
 
 •4. That, where the mortgage does not purport to be 
 made in pursuance of the Short Forms Act, and yet 
 contains a power of sale that for some reason is not 
 safely available, there is no such power of sale implied 
 as above; and also 
 
 5. That, wliere the mortgage does i)uii)ort to be 
 made in pursuance of the Short Forms Act, but its 
 power of sale clause is excluded from the beneflt of that 
 Act for some othci* reason than the excision of the pro- 
 vision for notice, there is no such power of sale implied 
 as above. 
 
 JtO. The mortgagee's costs may, without an order, be taxed 
 by one of the Taxing Officers of the Supri'me Court of Judicature, 
 or by the local Master, at the instance of any party interested. 
 R. S. 0. 1887, c. 102, s. 28. 
 
 Tax.\tk)\ of Cg5ts of Sale. — Section 30 is some- 
 what indefinite ou the point whether sucli taxation may 
 take place after the mortgagee's costs have actually 
 been paid to the solicitor. 
 
 Independently of section 30 the matter is dealt with 
 in the Act respecting Solicitors (/), sections 45-40, which 
 makes special provision for the case where a person 
 not being chargeable as the principal parly is liable to 
 pay or has paid any bill, etc. The effect of section 30 is 
 to dispense with the necessity for an order. 
 
 Section 30 is not expressly or clearly limited to the 
 l»owers conferred by the present Part II. It has been 
 
 (/) K. S. O. 1897, c. 174. 
 
 Ml* 
 
!=• !(1 
 
 248 
 
 FOUECLOSUJIE OF MORTGAGES. 
 
 held to apply to mortgages made before as well as after 
 its enactment {m). 
 
 ik 
 
 m 
 
 PART III. 
 
 31. (1) In order to prevent the making of unnecessary and 
 vexatious costs in respect to mortgages, it is liereby enacted tliat, 
 wliere pursuant to any condition or proviso contained in a 
 niortgjige tliere has been made or given a demand or notice either 
 requiring payment of the moneys or .any part thereof secured by 
 such mortgage, or declaring an intention to proceed under and 
 exercise the power of sale contained in such mortgage, no fur- 
 ther proceedings and no action either to enforce such mortgage, 
 or with respect to any clause, covenant or provision therein con- 
 tained, or the lands or any part thereof thereby mortgaged shall, 
 imtil after the lapse of the time at or after which, according 
 to such demand or notice, payment of the moneys is to be made, 
 or the power of sale is to be exercised or proceeded under, be 
 commenced or talcen unless and until an order permitting the 
 same shall first be had and obtained eliher from the Judge of a 
 County Court or from a Judge of the High Court. 
 
 (2) Such order may be obtained ex parte, but only upon such 
 affidavits and proof as will satisfy the Judge that it is reasonable 
 and equitable that the proposed action or proceeding should be 
 allowed to be taken and proceeded with. 
 
 (3) Such aflldavit or order may be entitled as follows: — 
 
 " In the matter of a mortgage purporting to be made 
 between (describing the parties thereto as in the mortgage) and 
 bearing date on the day of ." 
 
 (4) This section shall not apply to proceedings to stay waste 
 or other injury to the mortgaged premises, and the costs of any 
 application thereunder shall be in the discretion of the Judge. 
 R. S. O. 1887, c. 102, s. 30; 47 V. c. 16, s. 2. 
 
 Pursuant to Any Condition or Proviso Con- 
 tained IN A Mortgage. — This means that the mortgage 
 must provide for notice before this section applies: 
 The Act upon which this statement of defence is based, 
 was passed after the execution of these mortgages; but 
 
 « 
 
 (m) Ferguson v. English & Scottish Inv. Co., 8 P. R. 404 (1881). 
 
ACT llESPECTIXG MORTGAGES OF HEAL ESTATE. 249 
 
 as there is no clause limiting its application to mort- 
 gages subsequently executed, it is applicable to the pre- 
 sent case if there is any condition or proviso contained 
 in these mortgages pursuant to which any demand or 
 notice requiring payment, or declaring an intention to 
 proceed tinder and exercise the power of sale has been 
 made " {n). 
 
 Xo Further Proceedings. — An advertisement 
 iinnouncing that the mortgaged land will be offered for 
 sale, is a '* further proceeding'-: "I am of opinion that 
 the advertisement complained of is a proceeding within 
 the meaning of the words ' no further proceedings ' in 
 s. 30 of U. S. ()., c. 10-, and that under the circumstances 
 of the case, it is a proceeding that is forbidden by that 
 section. I think the order f(U' the injunction was rightly 
 made for anything that appears here. The order sliould, 
 I think, be continued as asked till the 24tli November'' 
 ((>). The defendants in this latter case seem, in a mea- 
 sure, to have been the victims of the Kevisors; for 47 
 Met. c. 1(5, s. L*. has " no furllier proceedings at law or in 
 0(|uity"; and if that phraseology had been allowed to 
 stand it is not certain that an advertisement of sale 
 under ]H»wer would have been held a proceeding. 
 
 The ftdlowing decision of Dalton, M.C, in l*erry v. 
 Perry (p) explains itself: — "The notice of sale is dated 
 
 on I'nd .May. Tlie writ was issued on .'{rd May 
 
 Kow this is within the very words of the Act — and its 
 spirit. The notice was dated the 2nd. the writ issued 
 on the :h(l, and both were served on the ."'.rd. Then 
 a notice had been given, and a further itrocei'ding at 
 law had, before the lapse of time mi'utioned in the 
 
 ill) ('iiiiada I'criniiniMit v. Tfi-ltT, 1!» O. U. l."S dSSlM; the niort- 
 giigo in (iiU'stion liiiviiij; n iirovision for silc witlnmt notice. 
 
 (o) Smith V. Hrown, 'Jo (). U. Kit! (ISiMti; nn interim injunction 
 had lu'en granted liy (Jait, ('..!., upon tiie ex jiarte application of tlie 
 plaintiff. 
 
 (p) 10 1'. K. L'7.') (1S84». As to nnilliplicity of actions see further 
 In ro Flint and .Tellelt. .S V. U. 'Ml ilSSOi: Hiy v. McArthur. S 
 P. II. 321 (I.SSn); Merchants Bank v. Si)arkes. '2H (Jr. 108 (Ts,SO»; 
 Beatty v. O'Connor, ") O. U. 731 (1884). 
 
 . 
 

 \ 
 
 ,1 
 
 250 
 
 FOllECLOSUUE OF MOUTGAOES. 
 
 fk 
 
 notice, and a suit has been commenced before such lapse 
 of time, without any judge's order authorizing tlie same. 
 
 '* It ought not to be supposed by any one tliat serving 
 the two papers togetlier could defeat the statute. The 
 Aery object is to prevent all other proceedings while the 
 notice is running. It is not necessary under the statute 
 to fulfil the very words of it that one of the acts should 
 be prior to the other. Both acts may be done together 
 and yet the statute be violated. I must set aside the ser- 
 vice of this writ, ^ith costs; and I stay all proceedings 
 in this suit upon payment of the debt and interest, and 
 of the costs of the writ, but without any costs of the 
 copy or service of the writ, and without allowance of 
 any costs of the noti' e. The costs of this application 
 to be set off, SbO fo hey will go, against the plain- 
 
 tiff's costs." 
 
 Where a mortgngeo, after serving notice of motion for 
 summary judgmeut oi^ the ^ . 'enant. served notice of 
 sale, and, afterwards, befiiv Vie^King of motion, gave 
 notice of abandonment of sale notice (and all costs 
 thereunder), Falconbridge, J., enlarged the motion for 
 judgment until after the thirtj' days mentioned in the 
 notice of sale (q). 
 
 H2. When such doniand or notice requires payment of all 
 moneys secured to bo paid by or under a mortgage, the party 
 making such demand or giving such notice shall accept and 
 receive payment of the same if made as required by the terms 
 of such notice or demand; and if there be any dispute as to the 
 costs payable by the person by or on whose behalf such payment 
 is either made or tendered, then such costs shall, on three clear 
 days' notice to such person by the person claiming the same, be 
 taxed and ascertained by the clerk of a County Court, or by a 
 local master aforesaid, and thereupon and in such case, if within 
 ten days after said costs have been so taxed and ascertained, pay- 
 ment of said moneys and costs are duly made or tendered to the 
 person entitled thereto, or to his solicitor or agent in that behalf, 
 the same shall be deemed and taken to have been paid or ten- 
 dered, as the case may be, within the meaning of such notice or 
 
 (f/) Lyon v. Kyorsou, 17 V. R. 51G (1897). 
 
ACT RESPECTING MORTGAGES OF REAL ESTATE. 251 
 
 demand, and jn compliance therewith. R. S. O. 1887, c. 102, s. 31; 
 47 V. c. 16, s. 3. 
 
 This section has several effects: — 1. It uiaiies an 
 exercise by the mortgagee of his option to accelerate 
 {i.e., require payment of all moneys secured), definite 
 and final (r); 2. It effectually settles any claim the mort- 
 gagee might possiibly have for six months' interest in 
 lieu of notice; and 3. It provides machinery for settling 
 the troublesome and uncertain item called *' costs." 
 
 JIJl. The purchaser In good faith of a mortgage may to the 
 extent of the mortgage (and except as against the mortgagor, 
 his heirs, executors, or administrators), set up the defence of 
 purchase for value without notice in the same manner as a 
 purchaser of the property mortgaged might do. R. S. O. 1887, 
 c. 102, s. 32; R. S. O. 1877, c. 95, s. 8. 
 
 The object of this enactment seems to have been to 
 remove a point of difference that existed among our 
 eludges. Thus in Smart v. McEvvan {s), we find Strong, 
 V.C., saying: — "The plaintiff's equity being established, 
 it binds the defendant, although he took the transfer 
 of the mortgage from Orde without notice and for 
 value; for I adhere to my decision in the case of Kyck- 
 man v. The Canada Life Assurance Conipan^^ (/), found- 
 ed on the authorities there quoted, that an assignee of 
 a mortgage cannot set up a defence of purchase for 
 value without notice.'' This view of things was differ- 
 ent from that taken by Vankoughnet, C, in Muir v. 
 Dunnett (?/), and by Mowat, V.C, in Totten v. Doug- 
 las (r). 
 
 The present enactment came into force in 187(5 (;/). 
 Since the passing of the enactment there have been sev- 
 eral decisions bearing on the subject. In Wright v. 
 
 (r) Cf. Cruso v. Bond, 9 P. R. Ill; 1 O. R. 384 (1882). 
 
 (s) IS Gr. (i24 (1871). 
 
 (/.) 17 Gr. 550 (1870). 
 
 (m) 11 Gr. 85 (18(54). 
 
 (r) 15 Gr. 120 (1808); see 18 Gr. 341. See fnrthor London Loan 
 Co. V. Smyth. 32 U. C. C. P. 't'iO (1882); Sanders v. Malsburg, 1 
 O. R. 178. 
 
 (w) 39 Vict. c. 7 (Out), s. 10. 
 
252 
 
 FOUECLOSUUE OF MOUTOAGES. 
 
 pi 
 
 
 v- 
 
 1 ] 
 
 ! 
 
 \ 
 
 
 ! 
 
 1:, - 
 
 1 
 
 
 
 I 
 
 
 ' 
 
 i I 
 
 Leys (.i), there was the double defence of purchase for 
 value without notice, and the Statute of Frauds ; iu 
 Bridges v. Keal Estate Loan and Debenture Company 
 {y} there was the double defence of purchase for value 
 without notice, and of the provision contained in 11. S. O. 
 1887, c. 114, s. 83. llerchmer v. Elliott (z) is a case 
 where, from the circumstances of fraud in which the 
 Assignment of mortgage was originally obtained, the 
 Court considered it void even in the hands of an in- 
 nocent purchaser. 
 
 *' Except as Against the Mortgagor," Etc, — " It 
 has never been seriously' supposed that in such a case 
 the assignee could claim by reason of his being a pur- 
 chaser for value without notice of the real agreement, 
 to hold the mortgagor liable to the full amount of the 
 money consideration stated in the mortgage (a)." The 
 general rule is that the assignee takes subject to the 
 equities between the original parties to the mortgage (&). 
 
 JI4. No sale made prior to the 23rfl day of March, 1888, shall 
 be doclarod to be invalid on the ground or by reason only of the 
 same having beon made in pursuanco of a power of sale con- 
 tained in a mortgage where such power has been exercised by 
 an assignee of such mortgage instead of the original mortgagee, 
 unless within two years after the making of any such sale, pro- 
 ceedings have been taken to declare the same to be invalid or 
 irregular; but nothing in this section contained shall be deemed 
 or construed to confirm any such sale which for any other reason 
 or any other ground might be set aside, or declared irregular or 
 invalid; nor shall anything herein contained afi'ect any proceed- 
 ing, suit, or matter, adjudged or determined before or pending 
 at the said date, or brought within three months thereafter. 51 
 Vict. c. 15, s. 5. 
 
 (j-l S O. I{. 88 (1885). 
 (//) 8 O. 11. 403 (ISS.-^). 
 (r) 14 O. 1{. 714 (1887). 
 
 (rt) I'ressey v. Trotter, 20 Gr. 101 (1878); see further Egleson v. 
 Howe, 3 A. K. 500 (1879). 
 
 (h) Wilson V. Kyle, 28 Gr. 104 (1880). 
 
ACT RESPECTING SHOUT FOUMS OF MOllTGAGES. 253. 
 
 R. S. O. 1897, CHAPTER 126. 
 
 An Act ixspecting Short Forms of Mortgages. 
 
 HEK MAJESTY, by aud with the atlvico aud cuusent 
 of the Legishitive Assembly of tlie rroviiice of 
 Ontario, euaets as follows: — 
 
 1. Where the words following occur in this Act or in the 
 schedules thtreto, they shall be construed in the manner here- 
 inafter mentioned, unless a contrary intention appears: 
 
 (1) " Lands " shall extend to all freehold tenements and 
 hereditaments, whether corporeal or incorporeal, or any undi- 
 vided part or share therein respectively; 
 
 (2) " Party " shall mean and include any body politic or 
 corporate as well as an individual. R. S. O. 1887, c. 107, s. 1. 
 
 3. Where a mortgage of real property in Ontario, made 
 according to the form set forth in Schedule A., annexed to this 
 Act, or any other such mortgage expressed to be made in pur- 
 suance of this Act, or referring thereto, contains any of the forms 
 of words contained in column one of Schedule B., to this Act, 
 and distinguished by any number therein, such mortgage shall 
 be taken to have the same effect, and be construed as if it con- 
 tained the form of words contained in column two of the said 
 Schedule B, and distinguished by the same number as is annexed 
 to the form of words used in such mortgage; but it shall not be 
 necessary in any such mortgage to insert any such number. R. S. 
 O. 1887, c. 107, s. 2. 
 
 St, Any such mortgage or part of such mortgage which fails 
 to take effect by virtue of this Act, sh.a.11 nevertheless be as 
 effectual to bind the parties thereto, as if this Act had not been 
 made. R. S. O. 1887, c. 107, s. 3. 
 
 4. The schedules hereto, and the directions and forms there- 
 in contained, shall be deemed parts of this Act. R. S. O. 1887, c. 
 107, s. 5; R. S. O. 1877, c. 104, s. 6. 
 
 .J 
 
 11 
 
 V 
 
 ifilfe 
 
 M 
 
w 
 
 i' 
 
 254 
 
 FOUECLOSUUE OF MOUTGAGE8. 
 
 SCHEDULE A. 
 
 (Section 2.) 
 
 FORM OF MORTOAQE. 
 
 This Indenture, made the day of one 
 
 thousand eight hundred and , in pursuance of The Act 
 
 respecting Short Forms of Mortgages, between (here insert the 
 names of parties and recitals, if any), witnesseth, that in con- 
 sideration of of lawful money of Canada, now paid by 
 the said mortgagee (or mortgagees) to the said mortgagor (or 
 mortgagors), the receipt whereof is hereby acknowledged, the safd 
 mortgagor (or mortgagors) doth (or do) grant and mortgage unto 
 the said mortgagee (or mortgagees), his (her or their) heirs, 
 executors, administrators and assigns, for ever, all (parcels). 
 
 (Here insert provisos, covenants or other provisions). 
 
 In witness whereof the said parties hereto have hereunto set 
 their hands and seals. 
 
 [R. S. 0. 1887, c. 107, Schedule A. 
 
 SCHEDULE B. 
 
 (Section 2). 
 
 DIRECTIONS AS TO THE FORMS IN THIS SCHEDULE. 
 
 1. Parties who use any of the forms in the first column of 
 this schedule may substitute for the words " mortgagor " or 
 " mortgagors," or " mortgagee " or " mortgagees," any name or 
 other designation; and in every such case corresponding substi- 
 tutions shall be taken to be made in the corresponding forms in 
 the second column. 
 
 2. Such parties may substitute the feminine gender for the 
 masculine, or the plural number for the singular, in any of the 
 forms in the first column of this ^chedule; and corresponding 
 changes shall be taken to be made in the corresponding forms 
 in the second column, 
 
 3. Such parties may introduce into, or annex to any of the 
 forms in the first column, any express exceptions from or other 
 express qualifications thereof respectively; and the like excep- 
 tions or qualifications shall be taken to be made from or in the 
 corresponding forms in the second column. 
 
 m 
 
!|P 
 
 ACT UESPECTINO SHOUT FOUMS OF MORTGAGES. 255 
 
 Column 1. 
 
 1. And tho 
 sai(l(A.B.), 
 wife of tho 
 said niortga- 
 por, lifreby 
 oarsi lier 
 dower in the 
 said hinds. 
 
 FORMS OF COVENANTS, ETC. 
 
 Column 2. 
 1. And the said (A. B.) wife of the said mortgagor, 
 for and in consideration of tho sum of of 
 
 lawful money of Canada, to her in hand paid by the 
 said mortgagee, at or bi'foro the sealing and delivery 
 of these presents, the receipt whereof is hereby ac- 
 knowledged, hath granted and released, and by these 
 presents doth grant and release unto the said mort- 
 gagee, his heirs, executors, administrators and as- 
 signs, all her dower, and right and title which, in 
 the event of her surviving her said husband, she 
 might or would have to dower, in, to, or out of the 
 lands and premises hereby conveyed or intended so 
 to be. 
 
 ,vttl 
 
 • 
 
 Effect of Wife's Bar of Dower in Mortgage. — 
 The wife of a mortg.Tgoi", who has joined in the mort- 
 gage for the purpose of barring her dowei", to the ex- 
 tent of the mortgage only, has the right to redeem dur- 
 ing her husband's lifetime, and is a necessary party to 
 an action of foreclosure in the first instance. And 
 where she was not so made a party, and judgment of 
 foreclosure was recovered in her absence, she was. 
 after judgment and report, added as a defendant upon 
 her own petition, and permitted to redeem or i)ay off 
 and obtain an assignment of tlie mortgage [a). 
 
 Dower in Surplus. — Held, tliat the wife is entitled 
 to dower out of the surplus after a mortgage sale, com- 
 puted on whole unincumbered value of land {h). 
 
 The Act 58 Vict. c. 25 ( •), is to the same effect ; there 
 being an exception where the mortgage is for unpaid 
 purchase money. 
 
 («) Blong v. Fitzgerald, 15 V. II. 407 (Doc. 1S93), Rose, .T.; 
 Pratt v. Bunnell, 21 O. R. 1, considered; tliis latter iV iin oxcoodingly 
 important case on the subject of dower in mortgaged property, 
 and collects tho cases pro and con. 
 
 (h) Gemmill v. Nellyan, 26 O. R. .SU7 (18<)5). 
 (c) lb, 8. 3. 
 
 ■i "' i l 
 

 if; 
 v'l.: 
 
 ■ 11 
 
 [ 
 
 250 
 
 FOllECLOSUUE OF MOllTGAfJES. 
 
 Reformation of Instrument by Insertion of Bar 
 OF DowEU. — See Jk'Uainy v. lJiulj,'erow {d). 
 
 R'KjId to (lower out ofcjiiit!/ of redemptlun : — Seo Ke 
 Luckliui'dt (</'/). 
 
 Column 2. 
 2. Provided always, and thi'se presents are upon 
 this express condition, that if the said mortgagor, 
 his heirs, executors, administrators or assigns, or 
 any of them, do and shall well and truly pay or 
 cause to Be paid unto the said mortgagee, his execu- 
 
 Cohimn 1. 
 
 •2. I'lD- 
 
 vidwl : This 
 
 ni(irt«ivg<( to 
 
 Ix' void on 
 
 luiyiin'tit of 
 
 (anioiint of 
 
 principal 
 
 niont-yjof 
 
 lawful money tors, administrators or assigns, the just and full sum 
 
 \viUMnt.'rV.Ht °' (amount of principal money) of lawful money or 
 
 at (rate of in- Canada, with interest thereon, at the rate of (rate 
 
 terest) per . , ^ .^ . ^1.1 „ 1 
 
 cent, as fol- of interest) per cent, per annum, on the days and 
 
 lows : (terms times, and in manner following— that is to say 
 of principal (terms of payment of principal and Interest), with- 
 
 nnd intere,st) out any deduction, defalcation or abatement out at 
 
 and taxes 
 
 and perform- the same for or in respect of any taxes, rates, levies, 
 
 sTuit'lv- charges, rents, asHessments, statute labour or other 
 bour. Impositions whatsoever already rated, charged, as- 
 
 sessed or imposed, or hereafter to be rated, charged, 
 assessed or imposed by authority of Parliament or 
 of the Legislature, or otherwise howsoever, on the 
 said lands and tenements, hereditaments and pre- 
 mises, with the appurtenances, or on the said mort- 
 gaged', his heirs, executors, administrators or as- 
 signs, in respect of (he said premises, or of the said 
 money or interest, or any other matter or thing re- 
 lating to these presents, and until such default aa 
 aforesaid shall and will well and truly pay, do ana 
 perform or cause or procure to be paid, done and 
 performed, all matters and things in this proviso 
 hereinbefore set forth, then these presents and 
 everything in the same contained shall be absolutely 
 null and void. 
 
 Construction of Proviso for Redemption. — In 
 Coleman v. Hill (e), the facts were these: — W. H. con- 
 
 (d) 24 O. R. 278 (1893). 
 
 (dd) 29 O. R. Ill (1898). 
 
 (c) 10 O. R. 172 (1885). ' :.: : r 
 
""T" 
 
 ACT RESPEOTIXfJ SHORT FORMS OK MOIITGAOES. 257 
 
 vi'vcd liis fni'in to liis son find took back from liim a 
 inort^jiffc on it. witli a jiroviso foe rcdcniplion on pny- 
 inont of .|t,(>(M), willioul inlcirsl, in manner following,': 
 To jia.v W. II. and A. II. liis wife, dnriny I heir joint, lives, 
 ^.'{00 a year, and to continne lo make the said payments 
 to the sni'vivor dnriny his or lier life; and one year after 
 tli<" dealli of l)olli lo pay his brothers and sislers !|;?(M) 
 each at the times thei-ein mentioned, which words wero 
 inserted in writinji. the rest of the inslnimeni beinj; in 
 piint. The qnestion arose, was the son entillt'd to a 
 discliar;;e on payment of the nel snni of .f l.ddO? IJoyd, 
 (" : "It is impossible to }j,ivo literal elTect to all the jiarls 
 of the morluaji'e in (piestion. The defeasance clause 
 njton i)ayment of !ij!4,000, without interest, is (piile 
 irieconcilablr witli the jtarticidars rej^fardin;; the pay- 
 ments which the morl^aj^c is mad<' lo secure. . . . 
 I infer that !|?4.(M)(> was mentioned as a good round sum 
 to be expressed in the deed as the i>ric(> of tlie land con- 
 veyed to the son; but it was in truth no more tlupi th<' 
 nominal c(uisideration inserted for the sake of bicvity, 
 according' to a not unusual practice among c(mveyancers 
 when printi'd forms are used to keej) down the «'xpense. 
 It is nmnifost that neither of the parties could have 
 treated this as the real consideration, having regard to 
 that Avritten part of the mortgage which should, as a 
 general rule, carry more weight than the printed part 
 with the blanks fornuilly filled up: ^IcKay v. Howard^ 
 G O. 11. l.'{7." 
 
 Proviso Extexdtno liEvoxn Fi\f. Years. — A 
 mortgagor, with a proviso for repayment of principal 
 Oiter five years, is under K. S. C. c. 127, s. 7, entitled 
 to a (iisdiarge at the expiration of five years, upon 
 payment of the principal and interest togetlier with 
 three months' additional interest (/"). 
 
 (f) In Ro rarkor, Tarker v. Tarker, 24 O. R. 373 (1894) 
 Armour, C.J. 
 
 H.K.M.— 17 
 
 
 S! 
 
 > 
 
 
 1 
 
 
 
 r 
 
 
 
 *■; 
 
 
 
 ^.1 
 
 
 
 1 
 
 ■ 
 
 
 t-, 
 
 
 
 s. 
 
 
 
 • 
 
 (■ 
 
 
 
 '.; -' 
 
 \ 
 
 
 
If i 
 
 1^1 ' 
 1? ' 
 
 T;i . 
 
 
 ri 
 
 258 
 
 Column 1. 
 
 3. The 
 
 said iiiort- 
 giigor cove- 
 iiunts witli 
 the H.iicl 
 mortgagt't'. 
 
 FOUECLOSUllE OF MOllTGAGES. 
 
 Column 2. 
 3. And the said mortgagor doth hereby, for him- 
 self, his heirs, executors and administrators, cove- 
 nant, promise and agree to and with the said mort- 
 gagee, his heirs, executors, administrators and as- 
 signs, in manner following, that is to say: 
 
 4. That 
 the mortga- 
 gur will pay 
 the mort- 
 gage money 
 
 4. That the said mortgagor, his heirs, executors, 
 
 administrators or some or one of them shall and will 
 
 well and truly pay or cause to be paid unto the said 
 
 anTinte'ivst, mortgagee, his heirs, executors, administrators or 
 
 and observe assigns, the said sum o; money in the above proviso 
 the above 
 
 proviso. mentioned, with interest for the same as aforesaid, 
 
 at the days and times and in the manner above 
 limited for payment thereof, and shall and will In 
 everything well, faithfully and truly do, observe, 
 perform, fulfil and keep all and singular the pro- 
 visions, agreements and stipulations in the said 
 above proviso particularly set forth, according to 
 the true intent and. meaning of these presents, and 
 of the said above proviso. 
 
 The Personal Covenant to Pay. — Some proposed 
 changes in nioi'tgage law, cbicti.v with a view to the 
 abolition of the above covenant, were before the Ontario 
 Legislature in its session, 57 Viet., but do not seem to 
 have been favorably received, and did not pass. 
 
 Formerly the breach of such a covenant created a 
 debt good for twenty years; but by 5() Vict. c. 17, the 
 period has been reduced to ten years, tlie last mentioned 
 enactment appears in R. S. O. 1S97, <•- 72, s. (1) I//): — 
 
 (//) " Actions upon any covenant contained in any indenture 
 of mortgage, made on or after the first day of July, 1894, within 
 ten years after the cause of such actions arose." 56 V. c. 17, s. 1. 
 
 Si'MMAUV Jrnr.MENT ON Covenant. — What is sulli- 
 cient special indorsement? See Monro v. IMke (7). 
 
 Si'iNc. For Interest in Divtsion Coi^rt. — Instal- 
 ments of interest in arrear may be sued for in the Divi- 
 
 (1;) 15 P. R. 1G4 (1893). 
 
suHi- 
 
 ACr RESPECTING SHORT FORMS OF MORTGAGES, 259 
 
 sion Court as they come due, if not in excess of the 
 amounts provided in the Division Courts Act. But if 
 a number of instalments are allowed to fall in arrear 
 separate suits could not have been maintained for them 
 so as to bring the case within the jurisdiction of this 
 Court (h). This, however, was changed by 60 Vict. c. 14, 
 s. 5(0, so that separate suits are maintainable; but the 
 machinery of judgment summons is forbidden (j). 
 
 Covenant Under Corporate Seal. — When a com- 
 pany has power to covenant, a covenant under the cor- 
 porate seal is good, and the other formalities necessary 
 to execution need not be inijuired into (/.). 
 
 Covenant to Pay " Punctually." — See Leeds and 
 Hanley Theatre of Varieties v. Broadbent. 
 
 Covenant by Church Trustees. — See Beaty v. 
 Gregory (0. 
 
 Case Where Land Must be Resorted to Before 
 Proceeding on Covenant — See Wilson v. Fleming (m). 
 
 Column 1. Column 2. 
 
 5. That the 5. And also, that the said mortgagor, at the time 
 
 of the sealing and delivery hereof, is, and stands 
 solely, rightfully and lawfully seised of a good, sure, 
 perfect, absolute and indefeasible estate of inherit- 
 ance, in fee simple, of and in the lands, tenements, 
 hereditaments and all and singular other the pre- 
 . raises hereinbefore described, with their and every 
 of their appurtenances, and of and in every part 
 and parcel thereof, without any manner of trusts, 
 reservations, limitations, provisos or conditions, 
 except those contained in the original grant thereof 
 
 Ci) "Re C'lnrk v. Barber. 2(1 O. R. 47 (IS'.M); f..ll..\vod Ro Me- 
 Don.vld v. Dowdnll. 28 O. R. 212 (1S07); but see Re Ball v. Bell, 
 11). 'iOI. 
 
 ((•) Now R. S. O. ISni. e. CO, s. 79 (2). 
 
 (/■» r.l Vict. 0. ir.. s. 2. 
 
 Ik) Shepiinrd v. Bonanza Nickel Mininp Co.. 2.% O. R. liOo (1894). 
 
 (1) 28 O. R, 00 nsm): 24 A. R. 325. 
 
 (m) 24 O. R. .^S8 (1S9.'^>. In Atnnro v. Orr, Divisional Court. 
 Oct. Stli. 1800. spares in covenant left blank for personal pronoun; 
 d«>fence that plaintiff held out non-personal liability. 
 
 niortgagfir 
 ha.s a good 
 title ill fee 
 simi>le to the 
 said lands. 
 
WT 
 
 260 
 
 ,1, 
 
 * 
 
 i 
 
 t 
 
 
 •i; 
 
 
 
 
 Column 1. 
 
 FOllECLOSUllE OF MOUTGAGES. 
 
 Column 2. 
 from the Crown . or any other m.ittpr or thing to 
 alter, charge, change, incumber or defeat the same. 
 
 Of the effect of siicb a covenant as the present one. 
 No. 5, by way of estoppel, Strong, J., in Trust and Ijoiin 
 Co. V. Ruttan (>/), says: "This mortgage deed of the lOth 
 April, 1855, although it contains no recital, comprises 
 the usual absolute mortgagor's covenants for title. 
 Now, for upwards of forty years it has been held in 
 Tapper Canada that covenants for title, especially the 
 usual covenant that the granting party is seised in fee 
 at the date of the deed, a covenant which this deed con- 
 tains in the absolute, not in the ordinary restricted 
 form, are as effectual in working an estoppel as a recital 
 to the same etTect would have been. The cases to which 
 I refer, and which are always referred to as the leading 
 cases on this point, are three: Doe Hannesey v. ^Meyers 
 (o). Doe Irvine v. Webster (/?), McLean v. Laidlaw {(/). 
 Whether these decisions attributing to the covenants 
 the same efficacy as positive certain recitals are right 
 (r) it is now too late to inquire, as the i>rinciple has 
 become a fixed rule of the law of the property in the 
 Province of Ontario, too well established therein to be 
 shaken." 
 
 Column 1. 
 
 <i. And that 
 he hiVH tile 
 riffht to con- 
 v»'y the said 
 hinds to the 
 naid mortga- 
 gee. 
 
 Column 2. 
 6. And also that the said mortgagor now hath in 
 himself good right, full power and lawful and abso- 
 lute authority to convey the said lands, tenements, 
 hereditaments, and all and singular other the pre- 
 mises hereby conveyed or hereinbefore mentioned 
 or intended so to be, with their and every of their 
 appurtenances unto the said mortgagee, his heirs. 
 
 ("» I S. C. It. 584 (1877); followed in Casselman v. Cnsselnum, 
 
 9 O. R. 448 (18S.->). 
 
 (o) 2 O. S. 424 (1832). 
 
 (p) 2 U.C. K. 224 (184.-)). 
 
 ((/) 2 U. V. K. 222 (184.'i). 
 
 ()•) "Tlio Enftlish cases show that n ooveiinnt is not sufllrient to 
 work an estopiiel " per Proudfoot, J., in Cnsselninn v. Cnsselnian, 
 supra, citiiiK Hcnth v. Cronlock, L. R. 10 Ch. 22 (1874); Crofts v. 
 Middleton, 2 K. «nH ,T. 194 (185(5) ; General Finance Co. v. Liberator, 
 
 10 Ch. D. 15 (1878). 
 
ACT RESPECTING SHOUT FORMS OF MORTGAGES. 261 
 
 Column 1. Column 2. 
 
 executors, administrators and assigns, in manner 
 aforesaid, and according to the true intent and 
 meaning of these presents. 
 
 7. Andthat 7. And also, that from and after default shall 
 on (lefault , , , , > . , 
 
 tlie moitga- happen to be made of or m the payment of the said 
 
 mesliall sum of money, in the said above proviso mentioned. 
 
 liav« f|uict ' 
 
 ]i(.sscssii)n i.f or the interest thereof, or of any part thereof, or of 
 
 fmdT"' °^ '" ^^^ doing, observing, performing, fulfilling or 
 
 keeping of some one or more of the provisions, 
 agreements or stipulations in the said above proviso, 
 particularly set forth, contrary to the true intent 
 and meaning of these presents, and of the said pro- 
 viso, then, and in every such case, it shall and may 
 be lawful to and for the said mortgagee, his heirs, 
 executors, administrators and assigns, peaceably 
 and quietly to enter into, have, hold, use, occupy, 
 possess and enjoy the aforesaid lands, tenements, 
 hereditaments and premises hereby conveyed or 
 mentioned, or intended so to be, with their appurte- 
 nances, without the let, suit, hindrance, interrup- 
 tion or denial of him the said mortgagor, his heirs 
 or assigns, or any other person or persons whomso- 
 ever. 
 
 Distinction liKTWEEN Powers Conferred nv No. 7 
 AND No. 14. — A coniparisoTi of the effect of the prosont 
 jiioviso and of proviso No. 14, infra, is admirably si't 
 foi'th in the foUowinfi: extract from the decision in 
 IJrcthonr v. Hrooke (s) : — " When tlie mort}>a}j;('(' took 
 ])ossession tlie interest was in arrear, and the estate of 
 the mortgagor was in law, at an end. Ills right to jios- 
 session then ceased, as the contract between the }»arties 
 jn'ovided. For the mortgage under the Short Forms 
 Act, also contained the covenant (No. 7, p. DOS) that in 
 defanlt The mortgagee shall have (]uict possession. That 
 is not repugnant to the latter clause No. 14, as to notice 
 recinired before the mortgagee can enter on and lease 
 or sell. The action intended in the latter clanse is not 
 the mere taking possession under the secnrity for the 
 
 (a) 23 O. 11. 3(51 (1803). Boyd. C. 
 
 'm 
 
 
262 
 
 FORECLOSURE OF MORTGAGES. 
 
 •?, 
 
 i:.: 
 
 1' 
 
 
 i''! 
 
 
 , . 
 
 1 
 
 i 
 
 
 
 
 :t 
 
 
 1. ■ 
 
 
 (i 
 
 
 purpose of keeping down the interest, but tlie entering 
 on tlie land to lease or sell in such wise that the right 
 of redemption shall be postponed or destroyed. The 
 effect of the earlier provision as to default in giving the 
 right to enter without notice, or to take possession if it 
 can be peaceably obtained, is seen in such cases as 
 Doe d. Garrod v. Olley, 12 A. & E. 481, and Lowe v. Tel- 
 ford, 1 App. Cas. 414. 
 
 " Being then, upon and after the default, entitled to 
 possession, it was, in my opinion, competent for the 
 mortgagee to rent the land so as not to Interfere with 
 the right of the mortgagor or the plaintiff to redeem. 
 If the security' was scanty as I find, and the interest was 
 in arrear, then it was con)petent for the mortgagee to 
 make the best provision he could for his own safety; 
 even to the cutting down of trees; and if so, he could 
 confer that power upon others under him, subject always 
 to the right of the owner of the equity of redemption to 
 call both to an account at the proper time. 
 
 "The power of leasing also exists when the mort- 
 gagee takes possession, though his lease may not bind 
 the owner of the equity of redemption. A lease so 
 made, in case of sufficient security, if not made pursuant 
 to the 14th proviso, would be subject to the right of the 
 mortgagor to pay up arrears of interest and resume pos- 
 session. Itnt that manner of relief is not asked, nor 
 would it serve the purpose of the plaintiff' in this case; 
 but were it the precise point of contention, I should 
 question the right of the mortgagor to obtain it in the 
 case of a scanty security, when the mortgagee has been 
 compelled to protect himself by making the most provi- 
 dent lease possible." 
 
 Column 2. 
 8. And that froe and clear and freely and clearly- 
 acquitted, exonerated and discharged of and from 
 all arrears of taxes and assessments whatsoever due 
 or payable upon or in respect of the said lands, 
 tenements, hereditaments and premises or any part 
 thereof, and of and from all former conveyances. 
 
 Column 1. 
 
 8. Vrw 
 froiii all in- 
 cumbraiiceH . 
 
'' T^l 
 
 ■im 
 
 ■ ^'3 
 
 '■in 
 
 ACT RESPECTING SHORT FORMS OF MORTGAGES. 263 
 
 Column I. Cidiiwn '2, 
 
 mortgages, rights, annuities, debts, judgments, ex- 
 ecutions and recognizances, and of and from all 
 manner of other charges or incumbrances whatso- 
 ever. 
 
 The covenants for title in a mortgage differ from 
 those in a deed of grant in being absohite covenants, not 
 restricted to tlie acts of the covenantor. 
 
 Column 1. 
 
 t». And tliiit 
 tlu' siiid 
 
 will I'xeeiitc 
 siu-li furtlicr 
 assiiraiict's 
 (if till' siiid 
 liuids iis may 
 be requisiti'. 
 
 A 
 
 Column 2. 
 9. And also, that from and aftor default shall 
 happen to be made of or in the payment of the said 
 sum of money in the said proviso mentioned, or the 
 interest thereof, or any part of such money or in- 
 terest, or of or in the doing, observing, performing, 
 fulfilling or keeping of some one or more of the pro- 
 visions, agreements or stipulations in the said above 
 proviso particularly set forth, contrary to the true 
 intent and meaning of these presents and of the 
 said proviso, then and in every case, the said mort- 
 gagor, his heirs and assigns, and all and every other 
 person or persons whosoever having, or lawfully 
 claiming, or wlio shall or may have or lawfully 
 claim any estate, right, title, int(>rest or trust of, in, 
 to, or out of the lands, tenements, hereditaments 
 and premises hereby conveyed or mentioned or in- 
 tended so to be, with the appurtenances or any part 
 thereof, by, from, under or in trust for liim the said 
 mortgagor, shall and will, from time to time, and 
 at all times thereafter, at the proper costs and 
 charges of the said mortgagee, his heirs, executors, 
 administrators and assigns, make, do, suffer and 
 execute, or cause or procure to be made, done, suf- 
 fered and executed, all and every such further and 
 other reasonable act or acts, deed or deeds, devices, 
 conveyances and assurances, in the law for the fur- 
 ther, better and more perfectly and absolutely con- 
 veying and assuring the said lands, tenements, 
 hereditaments and premises, with the appurtenances, 
 unto the said mortgagee, his heirs, executors, ad- 
 ministrators and assigns, as by the said mortgagee 
 his heirs and assigns, or his or their counsel learned 
 
 J: Si 
 

 ¥ 
 
 ■m 
 
 264 
 
 Column 1. 
 
 10. And 
 also that tlic 
 said iiKirt- 
 giiffor will 
 product' tlic 
 title deeds 
 tnuiiieriited 
 liereiinder, 
 and allow 
 Co)iies to lie 
 
 made at the 
 fxi)eiiso of 
 the mort- 
 gagee. 
 
 11. And 
 that the said 
 mortt^a^or 
 has dont no 
 act to in 
 cnmlier tiie 
 xaid Lauds. 
 
 FOUECLOSUUE OF MOUTGAGES. 
 
 Column 2. 
 in the law, shall or may be lawfully and reasonably 
 devised, advised or required, so ns no person who 
 shall be required to make or execute such assur- 
 ances shall be compelled, for the making or execut- 
 ing thereof, to go or travel from his usual place of 
 abode. 
 
 10. And also, that the said mortgagor and his 
 heirs shall and will, unless prevented by tire or othiT 
 inevitable accident, from time to time, and at all 
 times hereafter, at the request and proper costs and 
 charges in the law of the said mortgagee, his heirs, 
 executors, administrators or assigns, at any trial or 
 hearing in any action, or otherwise as occasion shall 
 roqufie, produce all, every or any deed, instrument 
 or writing hereunder written for the manifestation, 
 defence and support of the estate, title and posses- 
 sion of the said mortgagee, his heirs, executors, 
 administrators and assigns, of, in, to or out of the 
 said lands, tenements, hereditaments and premises 
 hereby conveyed or mentioned or intended so to be, 
 and at the like request costs and charges shall and 
 will make and deliver, or cause or procure to be 
 made and delivered, unto the said mortgagee, his 
 heirs, executors, administrators and assigns, true 
 and attested or other copies or abstracts of the same 
 deeds, instruments and writings respectively, or any 
 of them, and shall and will permit and suffer such 
 copies and abstracts to be examined and compared 
 with the said original deeds by the said mortgagee, 
 his heirs and assigns. 
 
 11. And also that the said mortgagor hath not 
 at any time heretofore made, done, committed, ex- 
 ecuted or wilfully or knowingly suffered any act, 
 deed, matter or thing whatsoever whereby or by 
 means whereof the said lands, tenements, heredita- 
 ments and premises hereby conveyed or mentioned 
 or intended so to be, or any part or parcel thereof, 
 are, is or shall or may be in any wise impeached, 
 charged, affected or incumbered In title, estate or 
 otherwise howsoever. 
 
ACT UESFECTINfJ SHOH'I' FORMS OF MOUTGAGES 2G5 
 
 tM 
 
 lands to the 
 iuiionnt ufnot 
 It'H.s than 
 currency. 
 
 Volimn 1. Column 2. 
 
 12. And 12. And also that the said mortgagor or his heirs 
 
 that tlm said gj^j^jj ^^^^ ^j,j forthwith insuro, unless already iu- 
 
 nun'tffagoi' 
 
 ■will insure surod, and during the continuance of this security 
 
 *n tliesaid^** '^*^''l' iJ^^^i'^d against loss or damage by Are, in such 
 proportions upon each building as may be required 
 by the said mortgagee, his heirs, oxecutors, ad- 
 ministrators or assigns, the messuages and buildings 
 erected on the said lands, tenements, hereditaments 
 and premises hereby conveyed or mentioned, or in- 
 tended so to be, in the sum of of lawful 
 money of Canada, at the least, in some insurance 
 office, to be approved of by the said mortgagee, his 
 heirs, executors, administrators or assigns, and pay 
 all premiums and sums of money necessary for such 
 purpose, as the same shall become due, and will on 
 demand assign, transfer and deliver over unto the 
 said mortgagee, his heirs, executors, administrators 
 or assigns, the policy or policies of assurance, re- 
 ceipt or receipts thereto appertaining; and if the said 
 mortgagee, his heirs, executors, administrators, or 
 assigns, shall pay any premiums or sums of money 
 for insurance of the said premises or any part there- 
 of, the amount of such payment shall be added to 
 the debt hereby secured, and shall bear interest at 
 the same rate from the time of such payments, and 
 shall be payable at the time appointed for the then 
 next ensuing payment of interest on the said debt. 
 
 The most coinniou form of mortj^agoo insurance in 
 Canada is to take out a policy in the njune of the mort- 
 }?afi;oi', and to append to it a slip such as the follow- 
 
 ing:— 
 
 "At the request of the assured, the loss, if any, 
 under this policy is hereby made i)ayal»le 1o (name of 
 mortgagee) as (his, etc.) interest may api»ear." 
 
 Mortgage Clause in Policies. — It is usual, how- 
 ever, to insert a mortgage «'lause to which the respective 
 rights of the mortgagee and the insurer are made sub- 
 ject by adding the words, " subject to the conditions of 
 the above mortgage clause." 
 
IW,- I j 
 
 It- - I ' 
 
 2G6 
 
 FOllECLOSUUE OF MOIlTGAfJES. 
 
 t I 
 
 ml 
 
 ?ii 
 
 "This clause is a special stipulation, operative 
 only between the insurance coiiipany and savings banks, 
 or other money loaning institutions or individuals to 
 which it may be conceded, usually accompanying a 
 mortgagor's policy when loss thereunder is made pay- 
 able to such parties as mortgagees, and intended as a 
 protection against any acts or omissions on the part of 
 the insured, the mortgagor, by which the insurance 
 might become invalid to such mortgagor; in which event 
 the policy would continue to cover the interests of such 
 mortgagees, though the insured may have set fire to the 
 premises, or otherwise wilfully caused loss. Thus, as 
 the mortgagor has no interest in the clause — it not be- 
 coming oi)erative until his legal interest in the insurance 
 shall have entirely ceased — it is difficult to conceive 
 why it should, as in the present practice, form one of 
 the stipulations attached to his policy, which was not 
 the custom in the earlv davs of the use of this clause, 
 which then, very probably, was considered and treated 
 as a separate transaction altogetiier. 
 
 " The first use of this clause was by the Mutual Life 
 Insurance Company of New York, early in 1860. It 
 was very exacting upon the companies, entirely nulli- 
 fying maii3' of the most saving stipulations of the policy 
 as issued to owners directly. This form soon became 
 common among other loaning institutions, and for many 
 years subsequent this clause was a source of much vexa- 
 tion and annoyance to the companies and the Courts as 
 well, until some of the more prominent offices refused 
 to write them. From time to time, however, improve- 
 ments were introduced into the clause, such as the right 
 of cancellation by the company theretofore denied, con- 
 tribution, etc., under which the fact that the companies 
 had some rights that these grasping mortgagees should 
 respect was recognized " (/). 
 
 The form of "mortgage clause" adopted by the 
 Underwriters' Association of Canada is the following: — 
 
 % 
 
 ■ 
 
 
 1 
 
 (t) GriswoUl: Fire Underwriters' Text Book, 2nd Ed., 304. 
 

 ACT RESPECTING SHORT FORMS OF MORTGAGES. 267 
 
 " It is hereby provided and agreed, tliat tl>e insiir- 
 nnce, as to interest of tlie mortgagees only therein, sliall 
 not be invalidated by any act or neglect of the mort- 
 gagor or owner of the property insured, nor by the occu- 
 pation of the premises for purposes more hazardous 
 than are permitted by this policy." 
 
 " It is further provided and agreed that the mort- 
 gagees shall at once notify said comi)any of non-occupa- 
 tion or vacancy for over thirty days, or of any change 
 of ownership or increased hazard that shall come to 
 their knowledge, and that every increase of hazard, not 
 permitted, by the mortgagor or owner, shall be paid for 
 bj' the mortgagees on reasonable demand from the date 
 such hazard existed, according to the established scale 
 of rates for the use of such increased hazard during the 
 continuance of this insurance. 
 
 " It is also further provided and agreed, that when- 
 ever the company shall pay the mortgagees any sum for 
 loss under this policy, and shall claim that as to the 
 mortgagor or owner no liability therefor existed, it shall 
 be at once legally subrogated to all right of the mort- 
 gagees under all the securities held as collateral to the 
 mortgage debt to the extent of such payment, or at its 
 option, the company may pay to the mortgagees the 
 whole principal due or to grow due on the mortgage, 
 with interest, and shall thereupon receive a full assign- 
 ment and transfer of the mortgage (»), and all other 
 securities held as collateral to the mortgage debt, but 
 no such subrogation shall impair the rights of the mort- 
 gagees to recover the full amount of their claim. 
 
 "It is also further provided and agreed, that in the 
 event of the said property being further insured with 
 this or any other ofltice, on behalf of the owner or mort- 
 gagee, the company, except such other insurance when 
 made by the mortgagor or owner shall prove invalid, 
 shall only be liable for a ratable proportion of any loss 
 or damage sustained.'' 
 
 (m) And are not lioiind to rodnco the socr.rity by the amount 
 pnid: Wcstiiincott v. Hanloy, 22 Gr. 382 (1875). 
 
 :!,; 
 
 
 : ! 
 
 1;-! ; ( 
 
 ' 1 
 
 ' IP' ' 
 
 ilM: 
 
268 
 
 FOllECLOSUUE OF MOUTOAGES. 
 
 
 fir 
 
 i.'ta 
 
 f:. 
 
 (1 :': ' 
 
 
 ^^M 
 
 
 II, > 
 
 I ! 
 
 ill: 
 
 p. 
 
 Wlioro the policy said 'Moss, if siuy, payable to M. 
 fls his interest may appear." Wilson, C.J., said: "The 
 interest of ilie plaintitf, referred to in the policy, is 
 his interest as mortgagee, for although the fact of his 
 lieing mortgagee is not stated, it may be averred under 
 the term, 'as liis interest may appear '" (r). 
 
 Effect of Covkxant Without Formal Assigx- 
 MKNT OF I'oLiCY. — A coveuaiit to insure for the benefit 
 of an ineumbrancer ojierates as an ecpiitable assignment 
 of the policy of insurance when effected. Therefore 
 where a moi-tgagor enters into such a covenant it is not 
 necessary, in the interest of the mortgagee, that an as- 
 signment of the policy or interim receipt should be actu- 
 ally nuide; it is sufficient if the insurers in case of loss 
 have notice of the fact before settling with the mort- 
 gagor, and if after being notified of the rights of the 
 mortgagee they pay over the insurance money to the 
 mortgagor or a transferee of the policy or receipt, they 
 <k> so at their peril; and such payment will be no an- 
 swer to a suit at the instance of the mortgagee («). 
 
 "And if the Said Mortgagee . . . Shall Pay 
 Any rREMiUMs." — If the mortgagee charges the mort- 
 gagor with the i)remiums and undertakes to procure the 
 insurance, he is, in case through his neglect to pay the 
 premiums the policies lapse, liable to the extent the in- 
 surance company would have been, had the policies been 
 continued by the jtayment of the premiums (.r). 
 
 Separate Insuraxce by Mortgagor and Mort- 
 gagee. — AVhei'e there is separate insurance in Favour of 
 mortgagee and mortgagor, the latter is not ')ound by 
 a settlement of the loss between the former aud the in- 
 surance company (//). 
 
 (r) Mitclit'Il V. City of London Firo Insurnnco Co., 12 O. R. 
 723 (188(5). 
 
 (ic) Givot V. Citizens' Insurnnco Co., 27 Gr. 121 (1870). 
 
 (j-) Sonlo V. Union Bank, 4n Biirb. (N.Y.) Ill; S. C. .^0 How. 
 Pr. 105. 
 
 (y) rrittic v. Connecticut Fire Ins. Co., 23 A. R. 440 (1800). 
 
f Tn 
 
 Column 1. 
 
 13. And 
 
 tlie said 
 inortgaR'or 
 tlotli releuHo 
 t(i tilt- said 
 
 ACT RESl'ECTINa SHORT FORMS OF MORTGAGES. 2G1> 
 
 MouTCAtnc OK Mill With Maciiinekv. — See Water- 
 0U8 Engine Works v. MeiJauu (:). 
 
 KiGiiT OF SuuROGATioN. — Wlu'Te till' nioiM gjigt'c in- 
 sures the property in his own niinie, it seems tliat the 
 company lias no riglit to call niton him alter payment 
 of the policy to assign his mortgage (o tliein(r/j. lint 
 where (he mortgagor insures and the policy is assigned 
 to the nioi'lgagee, the cmnpany is entitled to an assign- 
 ment (h). 
 
 Column 2. 
 
 13. And the said mortgagor hath rcli-ased, re- 
 
 mlsi'd and for ever quitted claim, and by these 
 
 presents doth release, remise, and for ever anit 
 
 nuirtKapt'o claim unto the said mortgagee, his heirs, executors, 
 
 all his clainis administrators and assigns, all and all manner ot 
 upon the 
 
 right, title, interest, claim and demand whatsoever, 
 
 of, unto and out of the said lands, tenements, here- 
 ditament and premises hereby conveyed or men- 
 tioned, or intended so to be, and every part and 
 parcel thereof, so as that neither the said mortgagor, 
 his heirs, executors, administrators or assigns, shall 
 or may at any time hereafter have, claim, pretend 
 to, challenge or demand the said lands, tenements, 
 hereditaments and premises, or any part thereof, 
 in any manner howsoever, subject always to the 
 said above proviso; but the said mortgagee, his heirs, 
 executors, administrators or assigns, and the said 
 lands, tenements, hereditaments and premises, sub- 
 ject as aforesaid, shall from henceforth for ever 
 hereafter be exonerated and discharged of and from 
 all claims and demands whatsoever which the said 
 mortgagor, his heirs or assigns, might or could have 
 upon the said mortgagee, his heirs, executors, ad- 
 ministrators or assigns, in respect of the said lands, 
 tenements, hereditaments and premises, or upon the 
 said lands, tenements, hereditaments and premises. 
 
 .oVIi 
 
 said lands 
 subject to 
 the said pro 
 viso. 
 
 ■ 
 
 ¥ 
 
 
 
 (z) 21 A. R. 480 (1894). 
 
 (a) Provincial Insurance Co. v. Recsor, 21 Gr. 290 (1S74); 3S 
 
 r. c. R. 3r.7. 
 
 (b) Burton v. Goro District Mutual Fire Insurance Co., 12 Gr>. 
 150, nffirmed on appeal 1875. 
 
ill. 
 
 i^ii- 
 
 ; 
 
 
 
 
 
 1 
 
 II 
 
 1 " 
 
 . i 
 
 270 
 
 Column 1. 
 
 U. I'n.- 
 Vliled tllilt 
 till- Htviil 
 
 FOllECLOHUllE OF MOIlTOAaES. 
 
 Column 2. 
 14. Provided always, and It la hereby di'cliired 
 and agreed by and between the parties to these 
 
 iiinrtKiiK<<' (.n presents, that If the said mortgagor, his heirs, cx- 
 
 tit^fiiidt of ^ , , . 
 
 imyiiitiit for ecntors or administrators, sliali make default in any 
 
 iiioiitlis, payment of the said money or interest or any part 
 jiiiiy oil ' 
 
 iiotiuf Of either of the same, according to the true Intent 
 
 eiit.r on iiiiil jjnd meaning of these presents, and of the proviso 
 tliimiid In that behalf hereinbefore contained, and 
 
 "'""• calendar mom lis shall have thereafter elapsed with- 
 
 out such payment being made (of which default, 
 as also of the continuance of the said principal 
 money and interest, or some part thereof, on this 
 security, the production of these presents shall be 
 conclusive evidence), it shall and may be lawful to 
 and for the said mortgagee, his heirs, executors, 
 administrators or assigns, after giving written no- 
 tice to the said mortgagor, his heirs or assigns, of 
 his intention in that behalf, either personally or at 
 his or their usual or last place of residence within 
 this Province not less than previous, with- 
 
 out any further consent or concurrence of the said 
 mortgagor, his heirs, or assigns, to enter into pos- 
 session of the said lands, tenements, hereditaments 
 and premises hereby conveyed, or mentioned or in- 
 tended so to be, and to receive and take the rents, 
 issues and profits thereof, and whether in or out of 
 jiossession of the same, to make any lease or leases 
 thereof, or of any part thereof as he shall think fit, 
 and also to sell and absolutely dispose of the said 
 lands, tenements, hereditaments and premises here- 
 by conveyed or mentioned, or intended so to be, or 
 any part or parts thereof, with the appurtenances, 
 by public auction or private contract, or partly by 
 public auction and partly by private contract, as to 
 him shall seem meet, and to convey and assure the 
 same when so sold unto the purchaser or purchasers 
 thereof, his heirs and assigns, or as he, she or they 
 shall direct and appoint, and to execute and do all 
 such assurances, acts, msuters and things as may 
 be found necessary for the purposes aforesaid, and 
 the said mortgagee shall not be responsible for any 
 
''""I I 
 
 ACT IlKSPECTINO SHOUT FOIIMH OF MOUT<iA(;KS. 271 
 
 ,.n- 
 
 Column 1. Column 2. 
 
 loss which may arls«' by reason of any such lenslng 
 or sale as aforesaid milfss the same shall happen 
 by reason of his wilful neglect or default; and It Is 
 hereby further agreed between the parties to these 
 presents, that, until such sale or sales shall be made 
 as aforesaid, the said m<irtgagee, his heirs, executors, 
 administrators or assigns shall and will stand and 
 be possessed of and interested in the rents and pro- 
 fits of the said lands, tenements, hereditaments and 
 premises, in case he shall take possession of the 
 same on any default as aforesaid, and after such 
 sale or sales shall stand and be possessed of and 
 Interested In the money to arise and be produced 
 by such sale or sales, or which shall be received by 
 the mortgagee, hla heirs, executors, administrators 
 or assigns, by reason of any Insurance upon the said 
 premises or any part thereof, upon trust In the first 
 place to pay and satisfy the costs and charges of 
 preparing for and making sales, leases and convey- 
 ances as aforesaid, and all other costs and charges, 
 damages and expenses which the said mortgagee, 
 his heirs, executors, administrators or assigns, shall 
 bear, sustain or be put to for taxes, rent. Insurances 
 and repairs and all other costs and charges which may 
 be Incurred In and about the execution of any of the 
 trusts In him hereby reposed, and In the next place to 
 pay and satisfy the principal sum of money and Inter- 
 est hereby secured or mentioned, or Intended so to be, 
 or so much thereof as shall remain due and unsatis- 
 fied up to and Inclusive of the d,iy whereon the said 
 principal sum shall be paid and satisfied; and after 
 full pr yment and satisfaction of all such "3>ims of 
 money and interest as aforesaid, upon this further 
 trust that the said mortgagee, his heirs, executors, 
 administrators or assigns, do and shall pay the sur- 
 plus. If any, to the said mortgagor, his executors, 
 administrators or assigns, or as he shall direct and 
 appoint, and shall also in such event, at the request, 
 costs and charges In the law of the said mortgagor, 
 his heirs or assigns, convey and assure unto the said 
 mortgagor, his heirs and assigns, or to such person 
 
 lSi 
 
272 
 
 FOllECLOSURE OF MORTGAGES. 
 
 ■ 
 I 
 
 : I 
 V. 
 
 Hi .1 
 
 ■1 ;i 
 
 
 111 
 
 Column 1. Column 2. 
 
 or persons as he shall dlroct and appoint, all such 
 parts of the said lands, tenements, hereditaments 
 and premises as shall remain unsold for the pur- 
 poses aforesaid, freed and absolutely discharged of 
 and from all estate, lien, charge and incumbrance 
 whatsoever by the said mortgagee, his heirs, ex- 
 ecutors, administrators or assigns, in the meantime, 
 so as no person who shall be required to make or 
 execute any such assurances, shall be compelled for 
 the making thereof to go or travel from his usual 
 place of abode; Provided always, and it is hereby 
 further declared and agreed by and between the 
 parties to these presents, that notwithstanding the 
 power of sale and other the powers and provisions 
 contained in these presents, the said mortgagee, 
 his heirs, executors, administrators or assigns, shall 
 have and be entitled to his right of foreclosure of 
 the equity of redemption of the said mo? tgagor, his 
 heirs and assigns in the said lands, tenements, here- 
 ditaments and premises as fully and effectually as 
 he might have exercised and enjoyed the same in 
 case the power of sale, and the other former pro- 
 visos and trusts incident thereto had not been 
 herein contained. 
 
 The cffoct of the itrcscnt chnise and of Iho dcoisions 
 thereon lias been eonsidered by the author in another 
 >vork nioie fully than can lu'itincntly be done here (r). 
 We ujay. however, ^ive the j^ist of the decisions bearinj^ 
 on this clause. 
 
 PowKR OF Salk Without Noticf:. — In Re Gilehrist 
 and Island (J) the niortpi^e purporting to be in accord- 
 ance with the i)resent Act contained the followinfj; pro- 
 viso: "Provided that the said niortfjajjee, on default of 
 payment for two months, may, without p;ivinp any 
 notice, enter on and lease or sell the said lands." As- 
 i:;i?rnees of the mortgage attempted to sell under this- 
 
 ic\ Treiitise on Tower of Sale at pp. 315-54. 
 (fl) 11 O. R. 537 (1880). 
 
ACT RESPECTING SHORT FORMS OF MORTGAGES. 273 
 
 power. But it was held that they could not confer a 
 good title, as in construing this power resort could not 
 be had to the long form iu column two, inasmuch as 
 notice was dispensed with, which was not a mere ex- 
 ception from, nor qualiticaticn of, the short form in 
 column one, but an abolition of one of its most ini- 
 portt? it terms. Accordingly, the power being left to its 
 own force no one but the persona designata, i.e., the 
 original mortgagee, could exercise it (c). 
 
 A still stricter view has been taken in an article In 
 the Canadian Law Times (/), attempting, with consider- 
 able force, to show that powers of sale without notice 
 are merely void, as offending against the rules of equity 
 in two particulars; they fetter (if they do not actually 
 destroy) the equity of redemptit)n, and they fall within 
 the category of unconscionable bargains ((/). 
 
 New Trustke in a liETTER Case Than an Assignee. 
 — A new trustee stands in tlie place of the former trus- 
 tees (A), and can exercise a power of sale (though not 
 in conformity with the Short Forms Act), not as an as- 
 signee of the estate but as if appointed a trustee by the 
 deed creating (he trust (i). 
 
 In Re British Canadian Loan and Investment (Com- 
 pany and Kay(y) the power was: 'M'rovided that the 
 company on default of payment for two months nuiy, 
 without any notice, enter on and lease or sell the said 
 
 (c) See Cap. 121, s. 29, for the present state of law aa to such powerB. 
 
 {f\ 13 ('. li. T. 3(>, by Mr. A. ('. (Jalt. citing rcoith''s Loan '& 
 Deposit Co. V. (irant, IS S. C. R. 2(!2 (ISDO); Story on Eq. fOlO; 
 Kelli'y V. IniiK-rial I.oun Co., 11 S. C. 11. "jlti (l.SSr.); Cinada I'cr- 
 ninncnt v. Tot-tor. 1t> C). U. (iSS!»»; rarkinson v. llanlniry, 1 
 I>r. & Sni. 143 (lS«;n); .T«'nkins v. Jom-s, 2 (Jiff. l>i> (ISCOi, Toonu's 
 V. ('onset. .'{ Atk. 2(11 (174.^»): Jenninjrs v. Ward. 2 Vern. .VJO {170.'>); 
 Hrond V. S.'lfe. 11 W. U. lo:?(5 (1SC,3); Barrett v. Hartley. L. It. 
 2 Kq. VXt (IS(Mi); Miller v. Cook, L. U. 10 E(i. 041 (1S70); Salt 
 V. Manpiess .)f Xorthninpton. I^. R. 1892, A. C. 1, and fomo of the 
 odses cited iinder the present clause. 
 
 ((/) See Chatfield v. CunninKhnni. 23 O. R. 1.1^ (IS! CJ), where 
 the power was a power exercisable without notiop, 
 
 ih) By R. S. O. 1897. o. 12«, s. 4. 
 
 <t) Re r.ilniour and White. 14 O. R. 004 (1SS7). 
 
 (}) 10 O. R. 15 (1888), Street, J. 
 
 I'.K.M.— IS 
 
 
 •! BM 
 
 
 Sf 
 
 ■ i 
 
 'I 
 
 ■* 
 I 
 
 i, 
 
 ; I 
 
 I 
 
274 
 
 FOUECLOSUUE OF MORTGAGES. 
 
 I' 
 ii ,'.■ 
 
 i' 
 
 
 liuidtt." After more than two months' defjiult the niort- 
 j^UKt'OH entered, and after liavin); done so made the con- 
 tract for isale, and served notice of exercising the power 
 of sah' on some of the subsequent incumbrancers per- 
 sonally and upon the solicitors of others: Ueld, that if 
 the Act were applicable, the power of sale was properly 
 exercised; if the Act were not applicable, then, takin<; 
 the words in their strictest sense, the vendors had done 
 all that the power reijuired; and tiie fact that they did 
 jiive notice to some of the subsequent incumbrancers 
 did not oblijje them to give notice to all. 
 
 Nf.ckssity for Entry on the Land. — In Clark v. 
 Harvey (A) the power was: ''Provided that the mort- 
 gagee on default for one day nuiy, without any notice, 
 enter on and lease or sell said lands." The question 
 arose, could the power be exercised before entry nmdo 
 upon the land. (Jalt, C.J., held that the case was dis- 
 tingtiishable from lie Gilchrist and Island, and that an 
 entry was not necessary prior to sale. On an appeal the 
 Court was equally divided. The opinions of the Judges 
 in this case are valuable as showing the very opposite 
 methods that may be employed in interpreting instru- 
 ments that purport to be made in pursuance of the Short 
 Forms Acts. 
 
 Power Exkrcisahle on One Month's Default. — 
 In Ke dreen and Artkin (/) the i)Ower was: "Provided 
 that the said mortgagee on default of payment for one 
 month may, on giving notice in writing, enter on and 
 lease or sell the said lands." It was held that the sub- 
 stitution of "one month" for " months" was not 
 a material vanation in the form, and that the assignee 
 could make a good title. 
 
 Tn Harry v. Anderson (m) the power was: "Provided 
 that the said mortgagees on default of payment for one 
 
 (A) 10 O. It. l.W (ISSS). 
 (/) 14 O. U. («>7 (18S7). 
 (m) 18 .\. R. 247 (1891). 
 
ACT RESPECTING SHORT FORMS OF MORTGAOES. 275 
 
 month may, on ten days' notice, enter on and lease or 
 sell the said lands. And provided also that in ease de- 
 fault be made in payment of either principal or interest 
 for two months after any payment of either falls due, 
 the said power of sale and entry may be acted upon 
 without any notice. And also that any contract of sale 
 nuide under the said power nuiy be varied or rescinded. 
 And also that the said mortgaf^ees, their heirs, execu- 
 tors, administrators and assij;ns, may buy and resell 
 without being responsible for any loss or deficiency on 
 resale.'' It was held, Burton, J.A., dissenting, that the 
 power of sale could be validly exercised by the assigns 
 of the mortgagees. 
 
 Exercise of Power of Sale Cannot Be Treated 
 AS A Nullity. — In Tatterson v. Tanner (//), the mortga- 
 gees sold under power to one of the original mortgagors, 
 who had disposed of his equity. The purchaser having 
 refused to carry out his contract, Ihe mortgagees did 
 not insist upon his doing so, but tried to fall back on 
 his original covenant. Mr. Justice Street, however, de- 
 cided as follows: "The mortgagees, having exercised 
 their power of sale and entered into a contract to sell 
 the mortgaged premises, cannot be permitted without 
 some sufficient reason to treat the sale as a nullity, and 
 fall back upon their mortgage as if the exercise of the 
 power had been a mere matter of form. See the statu- 
 tory form of the power of sale at p. 972 of the Kevised 
 Statutes of Ontario." 
 
 " Mortgagor, His ITeirs or Assigns." — Execution 
 creditors of the mortgagor are " assigns" (n). 
 
 "At His or Their UsrAL or Last I'lace of Ue- 
 siDENCE." — This permits substitutional service at the 
 residence, though the mortgagor may be within the 
 jurisdiction. But even if such is not the proper con- 
 struction of the statute, it is a matter so doubtful that 
 
 (n) 22 O. R. 306 (1802). 
 
 (o) Re Abbott and Modonlfe, 20 O. R. 299 (1891). 
 
 4 
 n 
 
 ■ !! I 
 
276 
 
 FOUECLOSUllE OF MOllTOAOES. 
 
 J!''ll 
 
 m 
 
 I'l P\ 
 
 r i 
 
 1 
 
 3' I 
 
 the solicitor who bona fide acted on that view of the 
 statute should not lose his costs of so effecting ser- 
 vice (p). 
 
 "Not Less Than Previous." — See Grant v. 
 
 Canada Life Ass. Co. (q). 
 
 " To Sell and Absolutely Dispose of." — See 
 IJeatty v. O'Connor (r), Rodburn v. Swinney (s), Smith 
 V. Spears (0, Stewart v. Kowson («). 
 
 Sale En Bloc. — See Aldrich v. Canada rernmnent 
 Loan and Savings Co. (v). 
 
 " By Public Auction or Private Contract." — In 
 the case of Chatfield v. Cumiinghani (»•) it was held 
 that a sale by private contract, after a foreclosure, 
 which had been opened by action on the covenant, was 
 a valid exercise of the i)ower of sale, a i)revious attempt 
 to sell by public auction having proved abortive. 
 
 "To Pay and Satisfy the Costs." — See Re Crerar 
 and Muir (.r), Re McDonald, McDonald and Marsh (;/), 
 Re Cronyn, Kew and Jietts (2), O'Donohoe v. Whitty,, 
 cited supra. 
 
 "And Shall Pay the Surplus." — See Green v. 
 Hamilton Provident Loan Co. (a). Harper v. Culbert (fc),. 
 
 U)) O'Donohoo v. Wliitty, 2 O. R. 424 (1882), 20 C. L. J. 140. 
 
 (f/) 2J) rjr. 2.">(! (ISSl), wlu'n notice concurrent with default. 
 
 (»•) r> O. K. T.'ll (1884), partly cash, partly credit. 
 
 (h) K; S. C. II. 25>7 (1888). sale on credit by agent under power 
 of attorne.v. 
 
 (0 22 O. It. 28(J (1802). sale by way of exchange. 
 
 (h) 22 O. U. .-»33 (185)2), attempt to sell timber alone under 
 power. 
 
 (v) 24 A. R. 10.T (1807), 27 O. R. 548. 
 
 (ir) 2.^ O. R. ir^n (1802). Street, .T., following Carver v. Rich- 
 ards. 27 Beav. 488; Kelly v. Imperial Loan Co., 11 S. C. R. 516. 
 
 (t) 8 P. R. no (1870), taxation by subsequent mortgagee. 
 
 (;/) 8 P. R. 88 (1879). no taxation where costs already paid. 
 
 iz) 8 P. R. ,372 (1880), ditto. 
 
 (a) 31 C. P..^74 (1881), nature of claim to surplus. 
 , (b) 5 O. R. 152 (1883), payment to apparent owner of equity^ 
 
 III 
 
ACT RESPECTING SHOUT FORMS OF MORTGAGES 277 
 
 He Croskerry (r), Discher v. Cauada Permanent L. & S. 
 Co.{d), Maclennan v. Gray (f). Ko Kiufjsland (/), Boulton 
 V. Kowhuul {(j), Keddick v. Traders' IJank of Canada (//). 
 
 For distinction between the powers of taking pos- 
 session and leasin};: nnder proviso No. 7 and proviso No. 
 14, see notes under No. 7, supra. 
 Cohinin 1. 
 
 15. Pro- 
 vided tliat 
 the inortKa- 
 geeinay (\in- 
 train for ar- 
 rears of in- 
 tere.st. 
 
 Column 2. 
 15. And it Is fiirthor covenanted, declared and 
 agreed by and between the parties to these presents, 
 that if the said mortgiigor, his heirs, executors oi* 
 administrators, shall make default in payment of 
 any part of the said interest at any of the days or 
 times hereinbefore limited for the payment thereof, 
 it shall and may be lawful for the said mortgagee, his 
 heirs, executors, administrators or assigns, to dis- 
 train therefor upon the said lands, tenements, here- 
 ditaments and premises, or any part thereof, and," 
 by distress warrant, to recover by way of rent re- 
 served, as in the case of a demise, of the said lands, 
 tenements, hereditaments and premises, so much of 
 such interest as shall, from time to time, be, or re- 
 main in arrear and unpaid, together with all costs, 
 charges and expenses attending such levy or dis- 
 tress, as in like cases of distress for rent. 
 
 Written v. Printed Provisions. — In McKay v. 
 Howard (i), tlie niortjiajje was in the statutory form 
 except that immediately after the printed covenant for 
 jiayment, the followinj; words were inserted in writing: 
 *' It being understood, however, that the said lands only 
 shall in any event be liable for the payment of the mort- 
 gage." The distress clau.se remained unerased in its 
 
 ic) 1(! O. U. Ii07 (1888), dower in surplus. See also under Coven- 
 ant No. 1. supra. 
 
 Ul) 18 O. U. 273 (IRSOK dower in surplus. 
 
 ic) 1(5 A. U. 224 (1889), (see the Ontario I)i>,'. r»(!l), dower iii 
 tsiu'plus. 
 
 (/) 8 P. U. 77 (1879). payment into Court. 
 
 ({/) 4 O. II. 720 (188.1). costs in action for account of surplus. 
 
 (ft) 22 O. II. 449 (1892), jurisdiction of County Courts ns to 
 surplus. 
 
 (0 O. R. 135 (1883). 
 
 ill 
 
 i;J3. 
 
 >iti 
 
 i'i 
 
 m 
 
278 
 
 B'ORECLOSUUE OF MORTGAGES. 
 
 usual place, viz., after the covenant. The question then 
 arose, could the mortgagee legally distrain? Boyd, C. — 
 " The mortgage in this case is in the usual printed statu- 
 tory short form, with certain written additions. There 
 is the distress clause printed, but there is a prior written 
 clause providing that the mortgagees shall look to the 
 land alone for payment. These are inconsistent and 
 contradictory provisions, so that the question arises 
 which shall prevail. For two reasons the earlier con- 
 trols, both because it is the first in tlie deed, and because 
 it is in writing. The principle of construction is thus 
 laid down by Lord Ellenborough in Robertson v. French, 
 4 East, at p. I'AG: 'If there should be any reasonable 
 doubt upon the sense and meaning of the whole, the 
 words superadded in writing are (»ntitled to have a 
 greater etl'ect attributed to them than to the printed 
 words inasmuch as the written words are the immedi- 
 ate language and terms selected by the parties them- 
 selves for the expression of their meaning, and the 
 printed words are a general formula adapted equally 
 to their case, and that of all other contracting parties 
 upon similar occasions and subjects ' (;). 
 
 ''Again, the rule of law is that in the construction 
 of deeds where several parts are irreconcilable, the first 
 shall prevail, the reverse being the rule as to wills, where 
 the last governs " (A). 
 
 Column 1. 
 
 16. Pro- 
 vided that in 
 default of 
 th*' piiynifnt 
 of the inter- 
 C'Ht lif rcby 
 secured, the 
 principal 
 hereby se- 
 cured shall 
 become pay- 
 able. 
 
 Column 2. 
 
 16. Provided always, and it is hereby further ex- 
 pressly declared and agreed by and between the par- 
 ties to these presents, that if any default shall at 
 any time happen to be made of or in the payment of 
 the interest money hereby secured or mentioned, or 
 intended so to be, or any part thereof, then and in 
 such case the principal money hereby secured or 
 mentioned, or intended so to be, and every part 
 thereof, shall forthwith become due and payable in 
 
 ()) Sop further Cumm v. Tyrie, 4 B. & S. 713; Clark v. Wood- 
 rnflf. 83 N. Y. .^18, also cited by Boyd, C. 
 
 (k) Boyd, C. ib.. at p. 137, citing Burton on Real Property, 
 8th Ed, p. 173: Bennett v. Foreman, ir> Or, 117 (1808). 
 
■i 
 
 ACT UESFECTING SHOUT FORMS OF MOUTGAGES. 279 
 
 Column 1. Column 2. 
 
 effects, to all intents and purposes whatsoever, as If 
 the time herein mentioned for payment of such 
 principal money had fully come and expired, but 
 that in such case the said mortgagor, his heirs or 
 assigns, shall on payment of all arrears under 
 these presents, with lawful costs and charges in that 
 behalf, at any time before any judgment in the pre- 
 mises recovered, or within such time as, by the prac- 
 tice of the High Court, relief therein could be ob- 
 tained, be relieved from the consequences of non- 
 payment of so much of the money secured by these 
 presents, or mentioned, or intended so to be, as may 
 not then have become payable by reason of lapse of 
 time. 
 
 Acceleration Optioxal, But Mortgagee Hound 
 BY His Option. — " It is a Kot>d I'l't^' to appl.v as far as 
 possible in all i)ioee(Mliuj;s, that whci't? anything is 
 sought by a party he should be treated as prepared to 
 reeeive what he asks for (/)... In the case of a 
 mortgage seeiiiity if the plaintiff seeks (o recover for 
 overdue interest alone, let him do so. If to get in the 
 whole sum upon the default, then let him claim that " (m), 
 
 " Upon default in payment of interest »r money 
 secured by a mortgagor, the mortgagee ha » the right 
 to call in the mortgage debt, and proceedings could only 
 be stayed on payment in full being made: Cameron v. 
 McRae, a Gr. .'ill; Goodvvith v. North, 11 J. B. Moo. 
 491. To mitigsite the harshness of this rule (Jeneral 
 Orders 4(H and 1(52 (//) were passed in 1S5:?, which em- 
 powered the Court to grant relief in such cases upon 
 payment of the sum actually in urrear whether of prin- 
 cipal or interest: Knapp v. (Jameron. Or. 5t5:i. The 
 statutory covenant providing for tin' payment of the 
 principal in default of payment of interest («) merely 
 
 (/) Cf. 11. S. O. 1897, c. 121, s. 32, supra. 
 
 (m) Boyd. ('.. in Cniso v. Bond, 1 O. U. 384 (1882). Overruling 
 Dninuiiond v. (Jnickiinl, 2 Cliy. Ch. 134. 
 in) Hules 3.S.S. 380. 
 (o) The prest-nt coven mt. 
 
 fiiH 
 
 ''. J 
 
 m 
 
 ^31 
 
I ' 
 
 Si'. 
 If .! 
 
 280 
 
 FOUECLOSUllE t>F MOllTOAOES. 
 
 gives expression to that which was the hiw of the Court, 
 and is not intended to interfere witli the elfect of the 
 general orders: McLaren v. Miller, 20 (h-. 039. The 
 general orders were passed in ease of the niortjiagor, 
 so as to enable him to repair the forfeiture incurred at 
 51 less cost than the whole amount secured by the in- 
 strument, unless it was actually overdue by lapse of 
 time. J>ut except in this regard the law was otherwise 
 unchanged, and the Court always had jurisdiction to 
 stay proceedings upon payment of the full amount <»E 
 the plaintitl's claim for debt, interest and costs in mort- 
 gage, as well aii in other cases: Praed v. Hall, 1 S. & 
 S. 331; Laurence v. Humphries, 11 Gr. 2il" (p). 
 
 Rkijkf Against Accelkuation. — The above deci- 
 sion left considerable ambiguity as to whether a Court 
 of Equity would relieve against the acceleration of the 
 pnncipal. Thus Hagarty, C.J., Q.15., said: "I do not 
 clearly understand the exact state of the law on this 
 subject in our Court of Chancery, looking at the cases 
 from Knap)) v. Cameron, (> Gr. iiWi). . . . down to 
 Cruso v. Itond, and Tylee v. Hinton. I fully concur 
 with the exjjression of opinion of Moss, C.J.A., at p. GO, 
 of Tylee v. Hinton "(ry). 
 
 The opinion referred to is: "If it is a part of the 
 bargain made upon a sale of lands that the unpaid 
 balance of the purchase money shall be secured by a 
 mortgage providing for payment by instalments if these 
 paynuMits are nuide punctually, but accelerating the pay- 
 ment in the event of default, I am not at present able 
 1o perceive that the Court of Chancery could, either by 
 virtue of the general order or its inherent jurisdiction 
 to relieve against penalties and forfeitures, restrain the 
 vendor from insisting upon payment in full upon default 
 being made (r). 
 
 (p) Boyd, C. in Cruso v. Bond, 9 P. R. Ill (1881). 
 iq) (Jrahiiin v. Boss. (5 O. B. 154 (1883). 
 (r Tjlee v. lliiiton. 3 A. R. tJO (1878). 
 
 '? i 
 
ACT RESl'ECTING SHOUT FOHMS OF MOHTfiAfiES. 281 
 
 *' The Judicature Act (s) pave the Ili},'h Court juris- 
 diction to relieve against penalties, forfeitures, etc., but 
 the acceleration of the princii)al does not seem pnu'erly 
 to come under the scope of such relief. As Kni<>;ht 
 Bruce, Ii..J., says in Sterne v. lte«k(/): ' Tlu' deed pro 
 vides for pavnient of the debt bv inslalnients . . . 
 and further i»rovided that in a certain event payment 
 of the debt should be accelerated. It did not provide 
 that the anu)unt payable should be increased, but only 
 provided that instead of being paid at futun* periods 
 with inleii'st up to those periods it should become pay- 
 able at once with interest up to that time. To a pro- 
 viso of such a nature none of the principles of ecpiity 
 relating to relief in the case of penalties are in my oj>in- 
 ion a]tplicable.' " 
 
 A similsir view is taken in Wilson v, Campbell (»). 
 
 ACCKI.KKATION FOR OtHKK CaUSKS TiIAX NdN-I'AV- 
 
 MEXT. — In <Irahani v. Koss (r) the default was in the 
 building of a log house within one year, there being a 
 provision for acceleration in the event of such default. 
 It was held that the plaintilf could insist ()n a " forfei 
 ture of the extended terms of payment" and that tlie 
 Court could noi give relief. " I do not see how e(|nity 
 can relieve against this breach. No compensation <iin 
 be either estimated or awarded to the plainiitT in n'- 
 spect of such a default. Relief is given against forfei- 
 ture for non-payment of I'ent, and in ceitain cases f»»r 
 neglecting to insure. I have found no case in which 
 a default like tiie present has been relieved against "i/c). 
 
 Column 1. Ciilmini 2. 
 
 17. Pro- 17. And provided nlso, and It is hereby further 
 
 until default f>xP''<?S8ly declared and agreed by and between the 
 
 («) R. S. O. 1«97, c. 51, 8. 57, (3) 
 
 (t) 1 De G. J. & S. 50.-) (1864), cited in Graham v. Rosa, supra. 
 («) ]-. I'. U. l>.->4 (181)3), Boyd, C. 
 (!•) (! (). U. l.')4 ClHSn). 
 
 (if) I'er Hasiaity. r..T.. Q.B.. ih.; (Jrahnni v. Ross, is followed 
 in Wilson v. Campbell, 15 P. R. 2r)4 (1S5«), by Boyd, C. 
 
 111 
 
m ' 
 
 
 ■i 
 
 
 
 ^^1 1 
 
 
 
 
 ■■'11 
 
 
 ji' i'i 
 
 If _ 
 It 
 
 'is 
 
 V, ! 1 ti! 
 
 282 
 
 Column 1. 
 
 of payment 
 the inurt- 
 unf^or Mtiiil) 
 niivtt (|uit)t 
 (KmHeHHion uf 
 tilt) said 
 lancU. 
 
 FOUECLOSUUE OF MOllTOAGES. 
 
 Column 2. 
 parties to these prec^nts, that until default shall 
 happen to be made of or in the payment of the said 
 sum of money hereby secured or mentioned, or in- 
 tended so to be, or the Interest thereof, or any part 
 of either of the same, or the doing, observing, per- 
 forming, fulfilling, or keeping some one or more of 
 the provisions, agreements or stipulations herein 
 set forth, contrary to the true intent and meaning 
 of these presents, it shall and may be lawful to and 
 for the said mortgagor, his heirs and assigns, 
 peaceably and quietly to have, hold, use, occupy, 
 possess and enjoy the said lands, tenements, 
 hereditaments and preuiiseB hereby conveyed or 
 mentioned, or intended so to be, with their and 
 every of their appurtenances, and receive and take 
 the rents, issues and profits thereof to his own use 
 and benefit, without let, suit, hinderance, interrup- 
 tion or denial of, or by the said mortgagee, his heirs, 
 executors, administrators or assigns, or of or by 
 any other person or persons whomsoever lawfully 
 claiming, or who shall or may lawfully claim by, 
 from, under or in trust for him, her, them or any 
 or either of them. R. S. 0. 1887, c. 107, Schedule B. 
 
 yit 
 
 1^ 
 
FREE GUANTH AN'D HOMESTEADS ACT. 
 
 X83 
 
 ,,.rtS 
 
 R. S. O. 1897, CHAPTER 29. 
 The Free Grants and Homesteads Act. 
 
 10. Neither the locatoe, nor any one claiming under him, 
 shall have power to alieniite (otherwise than by devise) or to 
 iiiortgago or pledge any land located as aforesaid, or any right 
 or interest therein before tho issue of the patent. li. S. O. 1887, 
 c. 25. 8. 16. 
 
 20. Except as provided in the next sect ion, no alienation 
 (othorwlsv> than by devise), and no mortgage or pledge of the 
 land, or oi any right or interest therein by the locatee after the 
 183110 of the psMcnt, and within twenty years from the date of the 
 location, and during the lifetime of the wife of the locatee, shall 
 be valid or of any effect, unless the same be by deed in which 
 the wife of the locatee is one of the grantors with her husband, 
 nor unless such deed is duly executed by her. Provided that 
 where a transfer or charge of land registered under Th«' Land 
 Titles Act is made, such transfer or charge may be made without 
 seal. R. S. O. 1887, c. 25, s. 17; 52 V. c. 20, s 3. 
 
 PowKR T(3 MoRTGAGK. — For effect of provision in 
 Act resi)('(tin{>; Ilcii' and Devisee (Joniniission, s. 28, see 
 Watson V. Lindsay (a). 
 
 Power to Dedicate Roads. — See Rae v. Trim {b). 
 
 Locatee May Sue For Trespass. — See Hriiyea v. 
 Rose (c). 
 
 Locatee. — For case of fraudulent locatee, see 
 McLure v. Black ((/). For case of transfer of purchaser's 
 rights, see Holland v. Ross (e). 
 
 (a) 27 Gr. 353; G A, R. COO (1881). 
 (6) 27 Gr. 374. 
 
 (c) 19 O. R. 433. 
 
 (d) 20 O. R. 70. 
 
 (e) 19 S. C. R. 5G6. 
 
 M 
 
284 
 
 FOUECLOSUltE OF MOUTfJAOES. 
 
 R. S. O. 1897, CHAPTER 51. 
 Tlie Judicature Act. 
 
 i 
 
 11 ^! 
 
 26. The High Court shall also, subject as in this Act men- 
 tioned, havt' the like Jurisdiction and powers as by the laws of 
 England were on thi' 4th day of March, 1837, possessed by the 
 Court of Chancery in England, in respect of the matters herein- 
 after enumerated, that is to say: 
 
 (1) In ail cases of fraud and accident; 
 
 (2) In all matters roiating to trusts, executors and ad- 
 ministrators, co-partni'rship and account, mortgages, awards, 
 dower, infants, idiots, lunatics and their estates; 
 
 (3) To stay waste; 
 
 (4) To compel the specific performance of agreements; 
 
 (5) To compel the discovery of concealed papers or 
 evii'ence, or such as may be wrongfully withheld from the 
 party claiming the benefit of the same; 
 
 (6) To prevent multiplicity of suits; 
 
 (7) To decree the issue of Letters Patent from the 
 Crown to rightful claimants; 
 
 (8) To repeal and avoid Letters Patent issued erroneously 
 or by mistake, or Improvidently, or through fraud. 58 V. 
 
 c. 12. s. 22. 
 
 27. The rules of decision in the said matters in the last 
 preceding section mentioned shall, except where otherwise pro- 
 vided, be the same as governed the Court of Chancery ., Eng- 
 land, in like cases, on the 4th day of March, 1837. 58 V. c. 12, 
 a. 23. 
 
 4th Day of March, 1837. — Date when the Court of 
 Chancery erected in Upper Canada. 
 
 U.'. ' 
 
THE JUDICATUHE ACT. 
 
 285 
 
 ,.»|S 
 
 dH, The Law to be admlnisterud in Ontario, as to the matteni 
 next hereinafter mentioned, shall be as followB: 
 
 (4) A mortgagor entitled fur the time being to the 
 possession or receipt of the rents and proflts uf any land, as 
 to which no notice of his Intention to take ixjssession or to 
 enter into receipt of the rents and profits thereof shall have 
 been given by the mortgagee, may sue fur such possession, 
 or sue or dlctrtin for the recovery of such rents or profits, or 
 to prevent or recover damages in respect of any trespass or 
 other wrong relative thereto, in his own name only, uniesa 
 the cause of action arises upon a lease or other contract made 
 by him jointly iVith any other person, and In that case he 
 may sue or distrain jointly with such other person. 58 V. c. 
 12, s. 53 (2-4). 
 
 (JliANGK Kl'FF.CTni) HY Suil-SECTION 4. — Bfforo the 
 pnwsiiifi of this section a mortpijior couhl uot sue a ten- 
 ant in ejectment. He niiji;lit (listi'ain for rent in tlie 
 name of and as tlie baililT of tlio mortga}j;ee (/'). 
 
 ExriTLKi) Fou TiiK Ti.MF liicrxc. Etc. — For construc- 
 tion of these words, see IJennett v. Ilii^^lies iy). 
 
 No XoricK OF His Ixtkniiox. — The oontinnance of 
 a tenant in possession after snrii notict? does not make 
 him a tenant of the mortf^agee (//). 
 
 In His Own Namic Only. — A mortjjaj^or in receipt 
 of rents and i)rofits has a sutlicient interest to enable 
 him to maintain an action for an injunction to restrain 
 an injury done to tlie mortfjajfed property without 
 joiniufj; the mortgagee (/). 
 
 07. The instituting of an action or the taking of a proceed- 
 ing, in which action or proceeding any title or interest in land 
 Is brought In question, shall not be deemed notice of the action or 
 
 (f) Sec Fisher on ^Mortpige, 5th Ed., 874. See also Walsh v. 
 Lonsdale, 2 Cliy. D. U. 
 
 ((/) 2 Times, Kep. 715. 
 
 (ft) Towersou v. .Tackson. 1801. 2 Q. B. 4M4 (overruling I'nder- 
 hay V. Read, 20 Q. B. D. 209), followed in Imperial lioan & Invost- 
 niont Co. v. Cleghorn, before Master in Chambers, Sept. 13th^ 
 1897. 
 
 (i) Fairclough v. Marshall, L. R. 4 Lx. Dlv. 37 (1878). 
 
 . ■ ! 
 
 l! 
 
286 
 
 FOUECLOSUUE OF MOHTOACiES. 
 
 .1 
 
 liil I 
 
 proceeding to any person not being a party ther«'to, until In 
 cases where the land Is n-glstered under The Land Titles Act a 
 caution Is registered under that Act, nor In other cases until a 
 certificate, signed by the proper officer of the Court, has been 
 n'glstered In the Registry Office of tho registry diviHion iu 
 which the land is situate, which certificate may be In the follow- 
 ing form: 
 
 " I certify that in an action or proceeding in the High Court, 
 between A. B., of , and C. D. of , some title 
 
 or interest is called in question in the following land (describing 
 It)." 
 
 Dated at (stating date and place). 
 
 But no certificate shall be required to be registered in any 
 action or proceeding for foreclosure or sale upon a registered 
 mortgage. 56 V. c, 21, s. 53. 
 
 
 ahWBMUBa 
 

 wm 
 
 THE COUNTV COURTS ACT. 
 
 287 
 
 R. S. O. 1897, CHAPTER ^^. 
 The County Courts Act. 
 
 2:1. Subject to the exceptions contained in the last preced- 
 ing section, the County Courts shall have jurisdiction. 
 
 (8) In actions for the recovery of or for trespass or injury to 
 land wh«'re the value of the land does not exceed $200. 
 
 (11) In actions by a legal or equitable mortgagee whose 
 mortgage has been created by some instrument in writing, or a 
 judgment creditor, or a person entitled to a lien or security for a 
 debt, seeking foreclosure or sale, or otherwise, to enforce his 
 security, where the sum claimed as due does not exceed $200. 
 
 (12) In actions by a person entitled to redeem any legal or 
 equitable mortgage or any charge or lien, and seeking to redeem 
 the same, where the sum actually remaining due does not 
 exceed $200. 
 
 Equity Jl'Risdictiox. — A rounty Court lias juris- 
 diction, wliatovor the amount of a nioitv;aj^»M*'s claim 
 at the tim(» of the exercise of a itower of sale, to enter- 
 tain an action for the recovery of an allej^ed surphis 
 derived from the sale, and not e.\ceedin<i .|LMK>, althoufjli 
 the existence of the surplus is denied ij). 
 
 LiiCN IToLDKK V. IMuoR M( HiTCAGiiii. — See Ilutson v. 
 Valuers (Jl). 
 
 Leg.xcy Cii.xroki) ()\ Land. — See Kuslin v. Brad- 
 ley (/). 
 
 (I) lleddick V. Traders' Hniik ..r ranndi\. 'J'J O. U. -110. See 
 Ro McOnuiin v. y\v(i»n>\u. 121 O. U. 'JS!». 
 
 (k) 10 A. 11. ^Tl^, iiciidii not to l)e t'litiMtiiini'il i,i Coiiiily Cnnrt. 
 Cr. Second v. Trnmm. 20 (). U. 174: .lacol.s v. Hoiiinson. If, P. 
 R. 1. 
 
 (M 27 O. n. 119 (ISWl. 
 
288 
 
 FOUECLOSUUE OF MOlllGAGES. 
 
 Jrl 
 
 R. S. O. 1897, CHAPTER 60. 
 
 The Division Courts Act. 
 
 70. (1) A cause of action shall not be divided Into two or 
 more actions for the pnri)08e of bringing the same within the 
 jurisdiction of a Division Court, and no greater sum than $100 
 shall be recovered in any action for the balance of an unsettled 
 account, nor shall any action for any such balance be sustained 
 where the unsettled account in thi' whole exceeds $400. R. S. O. 
 1887, c. 51. B. 77. 
 
 (2) Where a stini for principal, and also a sum for interest 
 thereon, is due and payable to the same person upon a mortgage, 
 bill, note, bond, or other instriiment, he may notwithstanding 
 anything in this section contained, but subject to the other pro- 
 visions of this Act. sue separately for every sum so due, 60 V. c. 
 14. 8. 5. 
 
 Tlu'iT have Im'cii ii imniltcf of cji.^^os iiivolviujf tlic^ 
 (|U('sti()n of Jiiri.><(lielinn in suits foi* arivars of iiilcrost 
 (M* principal {nn. Tlirsc iniL'stions have been set nt rest 
 liv siib-seclion two above. Hiil I lie main object of snin<; 
 la llie Division Coiirl has been dcslroved by <!1 \'iel, 
 <•. 1 
 
 n, s. 1'. 
 
 2. Where a judgment has been recovered in an action in 
 the Division Court which, but for the cnactnieiit of llie Sth sec- 
 tion of chapter 14 of (>0 Victoria. n<iw sub-section 2 of section 79 
 of the Division Courts Act. could not h.-ive been recovered In 
 the Division Court, the Court or .Judge shall not commit the 
 d«'btor to gjiol upon or in connection with a Judgment summons 
 when a judgment debtor could or would not have been com- 
 mitted to gaol upon or In respect of a judgment recovered in a 
 higher Court, or upon or by reason <if an examination upon a 
 Judgment summons Issued upon such last-nvntioned judgment. 
 
 (»i) See cases uutler U. S. O. 1SI)7, cap. l^tJ, sched. II, clttUBe 4. 
 
"flfrll 
 
 THE SE'rrLEI) ESTATES ACT. 
 
 R. S. O. 1897. CHAPTER 71. 
 The Settled Estates Act. 
 
 289 
 
 I'l. The Ciiiirt, if it rtcems it pronor nnrl conststont. with a 
 due n'K.ird for the interests of all parlies entitled under the 
 settlement, and subject to thi- iirovisions and restrictiims in this 
 Act contained, may from time to lime authorize a morfgaKc of 
 the whole or any part or parts, of any settled estate in the Pro- 
 vince, for the purpose of raising money to repair, rebuild or alter, 
 any existing buildings upon the said estate, or otherwise to build 
 npnn or improve the same; or for the purpose of raising money to 
 pay o'* and discharge wholly or in part any incumbrances exist- 
 ing thert'on; or to jiuthorize a sale of any part or parts of any 
 setth'd estates for the luirpnse of raising money to repair, rebuild 
 or alter, any existing buildings ui)on the remainder of such settled 
 (s; ices, or otherwise to build upon or improve the same; or for 
 ti.i- purpose of raising money to p.iy olT and discharge wholly or 
 in p;irt any incumbrances existing thereon; and such s.i'.' or 
 mortgage is to be authorized wherever the Court is of .ipinion 
 that the Interests of the estate, or any part thereof, or of the 
 parties entitled to the estates, or any part thereof, require. <tr 
 wiU be substantially promoted by such s.-ilc or mortgage. ')8 V. 
 c. 2(), 8. 15. 
 
 Irt. The Court, if it deems it proper and consistent, with a 
 due regard for tlie interests of :ill ])arties wlio are or who may 
 thereafter be entitled under tlic seltli'mcnt, and sublect to tixe 
 provisions and restrictions in this Act contained, niay sanction 
 any action, defence, petition to the Legislature, or oilier proiee<l- 
 Ings aji, tearing to tlu' Court necessary for the protection of any 
 settled estate, or may order that all or iiny part of the costs jind 
 exjienses in relation thereto he raised and paid by means of a 
 sale or mortgage of, or ch:irgc upon all or any part of the settled 
 estate, or be raised and paiil out of the rents and profits of the 
 settled estate, or out of any moneys, or Invi'stments represent- 
 ing moneys, liable to bf laid out In the purchase of heredita- 
 mentfi to he settled in the same manner as the setthd estale, 
 or out of the Income of sucli moneys or investments, or out of 
 any accumulations of rents, profits or Income. r>8 V. c. 20, s. IC. 
 
 II.F.M. -lit 
 
 r M 
 
 1 
 
290 
 
 FOUECLOSUHE OF MOllTGAGES. 
 
 
 Construction of Act. — The Settled Estates Act 
 w.'is intended to enable the Court to authorize such 
 powers to be exer«'ised as were ordinarily inserted in a 
 v/ell drawn settlement, and oiij^ht, accordingly to receive 
 ft liberal construction («). 
 
 81* On every sale, mortgage or dedication, to be effected as 
 hereinbefore mentioned, the Court may din-ct what person or 
 pi-rsons shall execute the deed of conveyance or mortgage; and 
 the deed or mortgage executed by such person or persons shall 
 take effect as If the settlement had contained a power enabling 
 such person or persons to effect such sale, mortgage or dedica- 
 tion, and so as to operate if necessary by way of revocation and 
 appointment of the use or otherwise, as the Court directs. 58 V. 
 c. 20. s. 21. 
 
 For Casi-:s Undkr Section 21. — See lie Hole ('A; 
 Eyre v. Saunders (/>); Scott v. lleisch (7); H«' Warner {r). 
 
 Hit, Deeds, mortgages, h'ases and other Instruments, executed 
 in pursuance of the exercise of any of the powers conferred by 
 this Act, shall not take effect until registered in the proper 
 registry or hind titles office where the lands are situate, and 
 in the case of leases the lease or duplicate to be registered shall 
 be executed by the lessee as well as the lessor. 58 V. c. 20, s. 32. 
 
 88. Nothing in this Act shall be construed to empower the 
 Court to authorize any lease, mortgage, sale, or other act beyond 
 the extent to which, in the opinion of the Court, the same might 
 have been authorized in and by the settlement by the settlor. 58 
 V. c. 20, s. C3. 
 
 30. After the completion of any lease, mortgage or sale or 
 other net under the authority of the Court, and innporting to be 
 in pursuance of this Act, the same shall not be invalidated on 
 the ground that the Court was not hereby empowered 10 authorize 
 the same. 58 V. c. 20, s. 39. 
 
 Ml 
 
 00 Ite Hooper. -JS O. U. 17!) tlSlMi). 
 
 («) ISC1S. W. N. 7<t, jnuiierty vested in eleven persons; Court 
 refused to order oin* to convey for all. 
 
 (/») 2S li. .T. Ch. 43. I,«>u!\l estate, outsttiinliiiiL' in iiioii flip's, 
 pnsscMl hy eonveyniiee. 
 
 (q) .?.1 1j. ,1. 4ns. Penth of one of two trustees dire<-teil to <oii 
 vey; new npiioinlinent. 
 
 (>■) 17 Ch. D. 711. Effeet of conveyance on siiocessloii duty. 
 
ACT RESPECTING LIMITATION OF ACTIONS. 
 
 291 
 
 40. (1) An order of the Court under any statutory or other 
 jurisdiction shall not, ns against a purchaser, be invalidated on 
 the ground of want of jurisdiction, or of want of any concurronci', 
 consent, notice or service, whether the purchaser has notice of 
 any such want or not. 
 
 (2^ 'i his section shall have effect with respect to any lease, 
 mortgage, sale or other act, under the authority of the Court, 
 and purporting to be in pursuance of this Act, or to be in pur- 
 suance of any former Act repealed or amended by The Settled 
 Estates Act, 1895, notwithstanding any exception in such former 
 Act. 58 V. c. 20, s. 40. 
 
 Efif.ct of iRRF.r.rL.XRiTiFS. — Soo Re Tlall Dare (n): 
 Iteiolt'V V. ('iii't(>p(/); He ClonjjlUj/); R»' Slicplieiud (ri. 
 
 (si '2\ ''li. 1>. 41. riinliiscr wcmld in niiy fvi-nl liiivt- guiil title 
 Sfc Uv ll»'wisli. 17 (>. U. 4r.4. 
 
 (/I 4 rii. 2^.2. 
 
 I If I 1.'> Kq. 2S4. 
 
 tr> 8 K(i. .'"(71 (ISniK. Iiidffrnsililo cstnle. i-xct-pt ns iiKiiinst !i 
 porsdii wlnisc (•oiwiirrciuc miKlit to liave ln'cu i\nd \v;is imt i.tilsiiin'il. 
 
 R. S. O. 1897, CHAPTER 72. 
 
 An Act respecting Limitation of Actions. 
 
 I. (I) The actions hereinafter mentioned shall be commenced 
 within and not after the times respectively hereinafter mention- 
 ed, that is to say: 
 
 (/() Actions uptin iiny covenant contained in any inden- 
 ture "f mortgage, made on or after the first day of .July, 1894, 
 within ten years after the cause of such actions arose. 56 V. 
 c. 17, 8. 1. part. 
 
 
 i ('•« 
 
 
 i J 
 
 1 
 
 pi 
 
 kiAf 
 
 
 il 
 
 
 ill 
 
 n 
 
 '■W 
 
292 
 
 FOllECLOSURE OF MORTGAGES. 
 
 •n 
 
 R. S. O. 1897, CHAPTER 77. 
 The Execution Act. 
 
 18. The sheriff or other offlcer having the execution of a writ 
 agninst goo-Js sued out of the High Court, or out of a County 
 Court, shall seizf any money or bank-notes (including any surplus 
 of a former execution against the debtor), and any cheques, bills 
 of exchange, promissory notes, bonds, mortgages, specialties, or 
 other securities for money, behmging to the person against whose 
 effects the writ of execution has issued, and subject to the provi- 
 Biuns of The Creditors' Relief Act, shall pay or deliver to the 
 party who sued out the execution, the money or bank-notes so 
 seized, or a sufficient part thereof, and shall hold such cheques, 
 bills of exchange, promissory notes, bonds, specialties, or other 
 securities for money, as security for the amount by the writ and 
 4'ndorseuient theredn directed to be levied, or so much thereof as 
 has not been otherwise levied or raised, and the sheriff or other 
 ofllcer may sue in his own name for the recovery of the sums 
 secured thereby, when the time of payment thereof has arrived. 
 R. S. 0. 1887, c. 04, s. 17. 
 
 lO. The payment to the sheriff or other offlcer by the party, 
 liable on such cheque, bill of exchange, promissory note, bond, 
 Bpecialty, or other security, with or without suit, or the recovery 
 and levying execution against the party m> liable, shall discharge 
 him to the extent of such payment, or of such recovery and levy 
 in execution (as the case may beV from his liability thereon. R. 
 S. O. 1887, c. 64, 8. 18. 
 
 2». (1) The word •' plaintiff" or the word " creditor " in this 
 secticm, includes any person aamed in a writ of execution as the 
 person for whom the levy is to be made. The word " defendant," 
 or the word " debtor," Includes any person of whose property the 
 money is directed to be levied. 56 V. c. 5, s. 1. 
 
 (2) In case a sheriff to whom a writ of execution is addressed 
 is informed on behalf of the i)lalntlfl, that the defendant is a 
 moitgagee of land, and that the mortgage Is registered, or that 
 
EXECUTION ACT. 
 
 2i»3 
 
 the defendant is entitled to recoive a sum of money charged upon 
 lands by virtue of any registered Instrument, and in case the 
 sheriff is required on behiilf of tho plaintiff to seize the mortgage 
 or charge, and is furnished in writing with the informiitlon neces- 
 sary to enable him to give the notice hereinafter mentioned, he 
 shall, upon payment of the proper fees, forthwith deliver or 
 transmit to the Registrar or Master of Titles in whose dfflce the 
 mortgage or other instrument is registered, a notice in the form 
 or to the effect following: 
 
 To the Registrar of (or as the case may be). 
 
 By virtue of a writ of fieri facias to me directed and issued 
 out of the High Court of Justice at (or 
 
 the County Court of the County of ), whereby 1 
 
 am commanded to levy against the goods and chattels of A. U. 
 the sum of $ , for debt, and $ for costs 
 
 lately adjudged to be paid by the said A. U. to C. D., besides the 
 costs of executions, I have this day seized and taken in execu- 
 tion all the estate, right, title and interest of the said A. \i. in a 
 certain mortgage made by X. Y. to the said A. B., and which 
 bears date on the day of and was registered 
 
 in the registry office for the County of on tho day 
 
 of A.D. as number (or the said 
 
 mortgage or other instrument may be describi-d in any other 
 manner by reference to dates, parties, and the land covered, as 
 will enable the notice to be recorded upon the lands therein 
 described), and in the moneys secured thereby, and this notice is 
 given for the purpose of binding the interests of the said A. 15. 
 under sections 23 to 28 of Tho Execution Act. 
 
 Dat«"d this day of 
 
 (Signed) M. N., 
 
 Sheritt of the County of 
 
 .'.tl V. c. n, ,s. 1'; tin V. V. \4, H. 5M». 
 
 (3) Upon registration of the said notice, the interest of the 
 execution debtor in the mortgage or other Instrument, and in the 
 lands therein described, and in the moneys thereby secured, and 
 in all covenants and stipulations for the securing of payment 
 thereof, shall »ie bound by the execution, and such registration 
 shall be deei be notice of the said execution and seizure to 
 
 all persons who may thereafter in any way nccjuire any interest 
 In the mortgage, lands, moneys, or covenants; and the rights of 
 
 m 
 
 iilu 
 

 \ 
 
 
 294 
 
 FORECLOSURE OF MORTOAfiES. 
 
 i i* 
 
 
 the shorlff and execution creditor shall have priority over the 
 rights of all such persons, subject, as regards the mortgagor or 
 person liable to pay the monry secured by the mortgage or 
 charge, to the next section of this Act. 56 V. c. 5, s. 3. 
 
 21. (1) A notice similar to the notice mentioned In the ni-xt 
 preceding section, or containing the like information, shall also 
 be served upon the mortgagor, or upon the person who Is llablo 
 to pay the moneys secured by the registered instrument; and upon 
 Buch service the person served shall pay to the sheriff all moneys 
 payable or which may become payable to the execution debtor. 
 
 (2) Service of such notice may be made personally, or by 
 leaving the same at the dwelling-house of the person to be served 
 ■with a grown-up person dwelling there, or by registered letter to 
 the proper address of the person to be served. 
 
 (3) Any payment mad«' after service of the notice, or after 
 actual knowledge of the seizure shall be void as against the 
 sheriff and execution creditor. 56 V. c. 5. s. 4. 
 
 Seizure oi* Mortg.vge to Locatee. — The intci-cst 
 of a locsitcc in a inortfiafjc, takon by him to socmu' jiart 
 of tile imi'cliasc money of land j:;rant('(l to him nndcr Ihc 
 Free Grants Act, is not cxcnipl from seizure («). 
 
 Sil. In addition to the remedies herein provided, the sheriff 
 may bring an action on such mortgage or other Instrument for 
 the sale or foreclosure of the lands covered by the mortgage or 
 other Instrument, and shall be entitled to a bond of indemnity as 
 in the cases provided for In section 21. 56 V. c. 5. s. 5. 
 
 26. Upon a writ of execution, notice whereof is registered 
 under section 23, expiring or being satisfied, set aside or with- 
 drawn, a certificate of such fact by the sheriff or the execution 
 creditor, or the order to set aside, as the case may be, may be 
 registered, and thereupon such seizure shall be vacated and 
 deemed at an end. 56 V. c. 5, s. 6. 
 
 27. The order of Court or the certificate of the sheriff shall 
 not require verification. The certificate of the execution creditor 
 shall be verified by the oath of a subscribing witness as In the 
 case of other Instruments affecting lands. 56 V. c. 5, s. 7. 
 
 i/ri Unnn v. Knott. 20 O. R. 2t»4: 10 O. R. 422. Sec Re Really 
 & Finlavson, 27 O. R. 042. Execution nmiinst patentee. 
 
^ 
 
 H'.^' 
 
 EXKCUrroM ACT. 
 
 205 
 
 2H. For the registration of any notice under section 23, or 
 of a certificate under section 26, the n'gistnir or msister shall be 
 entitled to a fee of 50 cents; and for every notice of seizure under 
 section 23 of this Act. the sheriff shall be entitled to a fee of $1, 
 5fi V. c. 5, 9. 8. 
 
 2W. Wherever the word " mortgagor " occurs in the next 
 succeeding three sections, it shall be read and constriied as if the 
 words " his heirs, executors, admlnistnitors or nsslgns, or person 
 having the equity of redemption," were inserted immediately after 
 the word " mortgagor." R. S. O. 1887. c. 64. s. L'l. 
 
 !IO. (1) 'I'he sheriff or other officer to whom a writ of execu- 
 tion agjiinst the lands and tenements of a mortgagor of real 
 estate is directed, may seize, sell and convey all tlie interest of the 
 mortgagor in the mortgaged lands and tenements. 
 
 (2) The equity of redemption in a freehold mortgage of real 
 estate sh'iil be salable under an execution agiiinst the l.inds and 
 teni'ments of the owner of the equity of redemption in iiis life- 
 time, or in the hands of his executors or administrators after his 
 death, subject to the mortgage, in the same manner as lands and 
 tenements can now be sold under an execution. R. S. O. 1887, c. 
 64, s. 22. 
 
 III. The effect of the seizure or taking in e.Kecution, sale and 
 conveyance, of mortgaged lands and tenements, shall be to vest 
 in the purchaser, his heirs and assigns, all the interest of the 
 mortgagor therein at the time the writ was placed in the hands of 
 the sheriff, or other officer to whom the same is directed, as well 
 as at the time of the sale, and to vest in the purchaser, his heirs 
 and assigns, the same rights as the mortgagor would have had if 
 the sale had not taken place; and the purchaser, his heirs or 
 assigns, may pay, remove or satisfy, any mortgage, charge or lien, 
 which at the time of the sale existed upon the lands or t«'nement3 
 so sold, in like manner as the mortgagor might have done; and 
 thereupon the purchaser, his heirs and assigns, shall acquire the 
 same estate, right and title, as the mortgagor would have 
 acquired in case the payment, removal or satisfaction had been 
 effected by the mortgagor; and on payment of the mortgage 
 money to the mortgagee by the purchaser, his heirs or assigns, 
 the mortgagee, his heirs or assigns, shall, if required, give to the 
 purchaser, his heirs or assigns, as his or their charge, a certificate 
 of payment or satisfaction of the mortgage, which certificate may 
 be In the following form, that is to say: 
 
 5 
 
 ill ' 
 
 1 
 
 
 •^l ! 
 
290 
 
 FOllECLOSUUE OF MOHTGAOKS. 
 
 i 
 ■ 
 
 1* 
 
 i 
 
 
 To the Registrar of the County of 
 
 1, A. B., of , do certify that C. D., of , who 
 
 has become the purchaser of the interest of E. F., of , 
 
 has Batisfled all money due upon n certain mortgage made by the 
 said E. V. to me, bearing date the day of , 18 , 
 
 and registered at of the clock in the forenoon (as the 
 
 case miiy be), of the day of , in the same 
 
 year (or as the case may be), and that such mortgage is therefore 
 discharged. 
 
 As witness my hand, this day of 18 . 
 
 (Signed) A. B. 
 
 E. H., of . 1^ 
 
 G. H., of . ) WitnesseB. 
 
 And such certificate shall be of the like effect, and shall be 
 acted upcm by registrars and others to the same extent as if the 
 same had been given to the mortgagor. R. S. O. 1887, c. t54, s. 23. 
 
 !tS. A mortgagee of lands and tenements so sold, or the 
 heirs or assigns of the mortgagee (being or not being plaintiff 
 or defendant in the judgment whereon the writ of execution 
 under which the sale takes place has issued), may be the pur- 
 chaser at the sah', and shall acquire the same estate, interest 
 and rights (hereby as any other purchaser; but in the event of 
 the mortgagee l)ecouiiu{» the purchaser, he shall give to the mcrt- 
 gagor a release of the mortgage debt; and if another person l)e- 
 comes the purchaser, and if the mortgagee enforces payment of the 
 mortgage debt against the mortgagor, then the purchaser shall re- 
 pay the debt and interest to the mortgagor, and in default of pay- 
 ment thereof within one month after demand, the mortgagur may 
 recover the debt and int»>rest from the purchaser, and shall have a 
 charge therefor upon the mortgaged lands. R. S. O. 1887, c. G4, 
 s. 24. 
 
 Efi'F.ct of Sixtion 32. — A purchase by a mortjjapce 
 at shei'ilT's sale may work a satisfaction of the mort- 
 gage (.r). 
 
 (j'l Woodruff V. Mills. 'JO r. C. R. 'A. See Van Xonnnu v. 
 McCiirty. liO V. C. C. V. 42. 
 
f 
 
 n-'-'T 
 
 \M 
 
 LAW AM) TUANSFIiil OF I'UorEllTV ACT. 
 
 2i)7 
 
 
 R. S. O. 1897, CHAPTER 119. 
 The Lav/ and Transfer of Property Act. 
 
 so* If any soller or mortgagor of land, or of iiiiy chattels, 
 real or pfrsonal, or chosee; in action, convt-yed or assigned to a 
 purchaser or mortgagee, or the solicitor or agent of any such 
 seller or mortgagor, conceals any settlement, deed, will or other 
 instrument material to the tith", or any incuml)rance, from the 
 purchaser or mortgagee, or falsifies any pedigree upon which the 
 title depends or may depend, in order to induce him to accept the 
 title offered or produced to hini, with intent in any of such 
 cases to defraud, such seller, mortgagor, solicitor or agent, sliall. 
 irrespective of any criminal liahility he may thereby incur, be 
 liable to an action for damages at the suit of th«> purchaser or 
 mortgagee, or those claiming under the purchaser or mortgagee, 
 for any loss sustained by them or either or any of tht>m, in con- 
 sequence of the settlement, deed, will or other instrument or in- 
 cumbrance so concealed, or of any claim made by any person 
 under such pedigree, but whose right was concealed by the falsifi- 
 cation of such pedigree; and in estimating such damages where 
 the estate is recovered from such purchaser or mortgagee, or 
 from those claiming under the purchaser or mortgagee, regard 
 shall be had to any expenditure by them, or either or any of 
 thorn, in improvements on the land. R. S. O. 1887, c. 100, s. 37. 
 
 OniixT OF This Sixtiox. — The object of this ciinrt- 
 nient is ('Xplaincd by its autlnu'. ImvaI St, Lcoiiiifds (//i. 
 "The hjst (Miiictmcnt (:) muh'r this head will JitToi'd a 
 ffi'eat safoniiard to ptinhascis and nun't}j:afi,(M's, and will 
 pi'otort tlic {>:r('at body of icspcttablc solicitors from tht' 
 a«ts of the few unworthy nK'Hibers of their own body. 
 
 "The words 'or niortj;aji;e«' ' were oniitte<l by mis- 
 take in the Commons; tliey are now supplied by 'S.l & 24 
 Vict. 0. ns, s. S." 
 
 315). 
 
 (.(/) Sugdeii (Lord St. Leonardst rroperty Statutes, 2nd Kd., 
 
 H 
 
 (r) 22 & 2.-^ Vict. c. 3.". (Imp.), s. 24. 
 

 
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 I 
 
 i^ 
 
 

 i 
 
 298 
 
 FOllECLOSUUE OF MORTGAGES. 
 
 In Smith v. Robinson (a) it was one of the conditions 
 of sale that the abstract of title should t'onunence with 
 an indenture dated the 3()th daj' of December, 1807, and 
 that no earlier or other title should be recjuired or in- 
 quired into by the purchaser. The following is an ex- 
 tract from this case: — Counsel for the defendant: "A 
 solicitor might make such a condition, knowing of the 
 existence of some prior incumbrance on the property, 
 and then, afterwards, voluntarily disclose the incum- 
 brance, and thus escape the penalties imposed by 22 & 
 23 Vict. c. 35, s. 24." 
 
 Fry, J., " Cosld he be liable to that penalty where 
 the condition \ s, .hat no title should be shown before 
 a certain date? " 
 
 Penal TV roF 
 1892, oiovides:— 
 
 ^Ai Fraud. — The Criminal Code, 
 
 370. Everyone is grity of an inilictablo offence and liable to 
 a fine, or to two years' imprisonment, or to both, who, being a 
 seller or mortgagor of land, or of any chattel, real or personal, 
 or chose in action, or the solicitor or agent of any such seller or 
 mortgagor (and having been served with a written demand of 
 any abstract of title by or on behalf of the purchaser or mort- 
 gagee before the completion of the purchase or mortgage) con- 
 ceals any settlement, deed, will, or other instrument material to 
 the title, or any incumbrance, from such purchaser or mortgagee, 
 or falsifies any pedigree upon which the title depends, with intent 
 to defraud and in order to induce such purchaser or mortgagee to 
 accept the title offered or produced to him. R. S. C. c. 164, s. 91. 
 
 («7l L. R. 1.3 rii. D. 148 (1879). 
 
PAUTITION ACT. 
 
 299 
 
 , >'i ' 
 
 R. S. O. 1897, CHAPTER 123. 
 
 The Partition Act. 
 
 M 
 
 5. All joint tenants, tenants in coinmon, and co-parceners, 
 all Jowresses and parties entitled to dower, tenants by the 
 curtesy, mortgagees or other creditors having liens on, and all 
 parties whomsoever interested in, to, or out of any lands in Ontario, 
 may be compelled to make or suffer partition or sale of the said 
 lands, or any part or parts thereof, iis hereinafter mentioned 
 and provided, and the partition may be had whether the estate 
 Is legal or equitable, or equitable only. R. S. O. 1887, c. 104, s. 5. 
 
 Mortgagees and Other Creditors IIavixg Liens. 
 — It is not easy at first si}j;ht to see what ctfect this can 
 have on tl»e rights of iiiort}j;aj?«'os. There is no (luestioii 
 tliat the parties interested in the equity of re(leni|>tion 
 may i)artition tlieir interests in any manner they please; 
 hut their partition will be subject to the rij^hts of any 
 mortj;ajj,ee hohlinjj the whole land as security for his 
 debt. As an absolute sale by the owner of the equity 
 of a portion thereof would not atfei t the mortjjafji'e's 
 rights, so neither would the partition by several owners 
 of the equity. 
 
 As between the mort{?aj?ors and the mortj^agees of 
 the whole property no (piestion of shares could arise; 
 the moi'tjfaftee owns the whole, subject to th<» right of 
 redemi)tion. It may, however, be the case that one of 
 several joint ownei's has mortgagi'd his undivided inter- 
 est (//); in which case, doubtless, his niort{;aj;ee would be 
 a necessai'y i)arty to any j)artition. 
 
 Similarly, the execution creditor of one of several 
 joint owners would be a^iecessary party to a partition. 
 
 The 44th section further provides, in ease of sahv 
 for ascertaining what creditors have specific liens " on 
 
 (b) Cf. Laplanto v. Seamen, 8 A. R. 557 (1883). 
 
. '.Ml 
 
 300 
 
 FORECLOSUUE OF MORTGAGES. 
 
 the whole estate, or any undivided interest or estate 
 therein of any of the parties by means of any mortgage,'' 
 etc. lint it is to be remembered that where the mort- 
 gagee of the whole estate himself is willing to make a 
 sale, he should be allowed to do so to save the expense 
 of partition proceedings (c). 
 
 221. (1) It shall not be compulsory, in the first instance, to 
 make any person having a lien on the estate, or any part thereof, 
 by decree, mortgage or otherwise, a party to the procet'dlngs, but 
 the petitioner may make such creditor a party, and, in such case, 
 the petition shall set forth the nature of the lien or incumbrance; 
 and if the lien or incumbrance is on the undivided interest or 
 estate of any of the parties to the petition, it shall be a lion only 
 on the share of such party; and such share or titite as the case 
 may be, shall be first charged with its just proportion of the costs 
 of the proceedings in partition in preference to any such lieu. 
 
 (2) If the person having the lien is not made a party to the 
 proceedings, his lien shall not be impaired or affected thereby. 
 R. S. O. 1887, c. 104, s. 21. 
 
 In Macdougall v. Macdougall (d), Yankoughnet, C, 
 says: ''If a mortgage be created by the owner of the 
 entire estate, partition can be had subject to that mort- 
 gage; but, if the owner of an undivided interest mort- 
 gage his legal estate in it, his mortgage must, I think, 
 be before the Court. He must join in the conveyance; 
 any extra expense occasioned by this should be borne 
 by the mortgagor (e). The mortgagor has chosen to put 
 the legal estate ouf of him. Surely when he seeks par- 
 tition he must bring that legal estate before tlie Court 
 for the benefit and protection of his co-tenants whom he 
 seeks to bind. 
 
 (c) See Carroll v. Carroll, 23 Gr. 438 (187G). 
 
 ill) 14 C.r. 2('.7 (18r.8). 
 
 («■) Citing Cornish v. Gest, 2 Cox. ^7. 
 
TllUSTEE ACT. 
 
 301 
 
 R. S. O. 1897. CHAPTER 129. 
 
 The Trustee Act. 
 
 10. Where, by any will coming into operation after the 
 eighteenth day of Srptember, 1865, or after the passing of this 
 Act, a testator charges his real estate, or any specific portion 
 thereof, with the payment of his debts or with the payment of 
 any legacy or other specific sum of money, and devises the estate 
 so charged to any trustee or trustees for the whole of his estate 
 or interest therein, and does not make any express provision for 
 the raising of such debt, legacy, or sum of money out of such 
 estate, the said devisee or devisees in trust, notwithstanding any 
 trusts actually declared by the testator, may raise such debt, 
 legacy or money, as aforesaid, by a sale and absolute disposition, 
 by public auction or private contract, of the said real estate or 
 any part thereof, or by a mortgage of the same, or partly in one 
 mode and partly in the other, and any deed or deeds of mortgage 
 so executed may reserve such rate of interest and fix such period 
 or periods of repayment as the person or persons executing the 
 same think proper. R. S. <" 1887, c. 110, s. 18. 
 
 Power to Sell a\d to Mortgage. — Shelford (/') 
 says : " A power of sale out and out does not authorize 
 a mortgage (r/); but a power of sale for raising a par- 
 ticular charge does {;/); so also, a power of sale to pay 
 debts implies power to mortgage (//). A power to mort- 
 gage does not give a power to sell (;); but it has been 
 held that a power to mortgage authorizes a mortgage 
 with a power of sale *' (y). 
 
 (f) Ronl Troperty f^tatntes. !»th Ed., 389. 
 
 ((l) StroiiRhill v. Anslcy. 1 I>. ^I. iV- <J. 04.'; Page v. Cooper, 
 10 Beav. 400. 
 
 (7i) Rail V. Harris. 4 M. & C 207: see Colyer v. Finch. ."> II. 
 L. C. 905; Corser v. Carlwright, I.. R. 7 II. L. 731. . 
 
 (i) Cook v. Dtnvsoii, 29 Reav. 128. 
 
 (j) Bridges v. Longiunn. 24 Beav. 29; Cook v. Dawson, 29 Beav 
 
 12S: Ro Channer's 
 4 Drew. 20. 
 
 "Will, 8 Eq. .'09; see Clarke v. Royal ranopticon, 
 
 : M ' ; i t; 
 
 
 \] 
 
 I il 
 
 5 
 
 fllll 
 
 '■' 
 
 'i 
 
302 
 
 FOllECLOSUUE OF MORTGAGES. 
 
 
 1!' 
 
 I 
 
 hi ' 
 
 17. The powers conferred by the next preceding section 
 shall extend to all and every the person or persons In whom the 
 estate devised is for the time being vested by survivorship, de- 
 scent or devise, or to any person or persons appointed under any 
 power in the will, or by the High Court, to succeed to the trustee- 
 ship vi'sted in such devisee or devisees in trust as aforesaid. R. 
 S. O. 1887, c. 110, s. 19. 
 
 IS. If a testator who creates such a charge as is described 
 In section 16, does not devise the real estate charged as aforesaid, 
 In such terms as that his whole estate and interest therein be- 
 come vested in any trustee or trustees, the executor or executors 
 for the time being named in the will (if any) shall have the same 
 or the like power of raising the said moneys as is hereinbefore 
 conferred upon the devisee or devisees in trust of the said real 
 estate; and such powers shall from time to time de^'olve to and 
 become vested in tte person or persons (if any) in whom the 
 executorship is for the time being vested; but any sale <> ; mort- 
 gage under this Act shall operate only on the estate ar interest 
 of the testator. R. S. O. 1887, c. 110, s. 20. 
 
 Executor or Executors. — This confers a power on 
 executors (A), but not on an administrator, with tlie will 
 annexed (/). This latter power is conferred by sec- 
 tion 22. 
 
 19. Purchasers or mortgagees shall not be bound to inquire 
 whether the powers conferred by the preceding three sections of 
 this Act, or any of them, have been duly and correctly exercised 
 by the person or persons acting in virtue thereof. R. S. O. 1887, 
 c. 110. s. 21. 
 
 20. The provisions contained in the preceding four sections 
 shall not in any way prejudice or affect any sale or mortgage 
 already made, or hereafter to be made, under or in pursuance of 
 any will coming into operation before the ISth day of September, 
 1865; but the validity of any such sale or mortgage shall be 
 ascertained and determined in all respects as if the said sections 
 had not been enacted; and the said several sections shall not ex- 
 tend to a devise to any person or persons in fee or in tail, or for 
 the testator's whole estate and interest charged with debts or 
 
 (k) Re Wilson, Pennington v. Payne, 5-1 L. T. GOO. 
 (0 Re Clay and Tilley, 10 Ch. Div. 3. 
 
 m 
 
Ol 
 
 TRUSTEE ACT. 
 
 303 
 
 legacies, nor shall they affect the power of any such devisee or 
 devisees to sell or mortgage as he or they may by law now do. 
 R. S. O. 1887, c. 110. s. 22. 
 
 21. Where there Is any will or codicil of any deceased person 
 (whether such wiU has been made, or such person has died before 
 or after the 1st day of January, 1874), any direction wlu'ther ex- 
 press or implied, to sell, dispose of, appoint, mortgag* , cumber 
 or lease any real estate, and no person is by the said will, or some 
 codicil thereto, or otherwise by the testator appointed to execute 
 and carry the same into effect, the executor or executors (if any) 
 r med in such will or codicil, shall and may execute and carry 
 into effect every such direction to sell, dispose of, appoint, in- 
 cumber or lease such real estate, and any estate or interest there- 
 in, in as full, large, and ample a manner, and with the same legal 
 effect, as if the executor or executors of the testator were ap- 
 pointed by the testator to execute and carry the same into effect. 
 R. S. 0. 1887, c. 110, s. 23. 
 
 33. Where there is in any will or codiv 11 thereto of any de- 
 ceased person (whether such will has been made, or such person 
 has died before or after the first day of January, 1874), any power 
 to any executor or executors in such will to sell, dispose of, 
 appoint, mortgage, incumber, or lease any real estate, or any 
 estate or interest therein, ^vhother such power is express, or arises 
 by implication, and where, from any cause, letters of adminis- 
 tration with such will annexed have been by a Court of competent 
 jurisdiction in Ontario committed to any person, and such person 
 has given the additional security required by section 58 of The 
 Surrogate Courts Act, such person shall and may exercise every 
 such power, and sell, dispose of, appoint, mortgage, incumber, or 
 lease such real estate, and any estate or interest therein in as 
 full, large, and ample a manner, and with the same legal effect 
 for all purposes, as the said executor or executors might have 
 done. R. S. O. 1887, c. 110, s. 24. 
 
 3St. Where there is in any will c r codicil thereto of any de- 
 ceased person (whether such will has V)een made or such person 
 had died before or after the first day of January, 1874), any power 
 to sell, dispose of, appoint, mortgage, incumber, or lease any real 
 estate, or any estate or interest therein, whether such power i3 
 express, or arises by implication, and no person is by the said 
 will, or some codicil thereto, or otherwise by the testator ap- 
 pointed to execute such power, and letters of administration with 
 
 J 
 
 ,1 :' 1^ 
 
 ;f 
 
 
 L 
 
m 
 
 ■ 
 
 11 
 
 304 
 
 FORECLOSUllE OF MOUTCAGES. 
 
 such will annexed have been, by a Court of competent jurisdiction 
 in Ontario, committed to any person, and such person has given 
 the iidditional security before mentioned, such porson shall and 
 may exercise every sucn power, and sell, dispose of, appoint, 
 mortgage, incumber or lease such real estate, and any estate or 
 interest therein in as f<ill, large, and ample a manner, and with 
 the same legal effect, as if such last named person had been ap- 
 pointed by the testator to execute such power. R. S. O. 1887, c. 
 110, s. 25. 
 
 R. S. O. 1897, CHAPTER .30. 
 The Trustees Investment Act. 
 
 Hi! 
 
 2.— (1) Trustees or executors having trust money in their 
 hands, which it is in their duty, or which it is in their discretion 
 to invest at interest shall be at liberty, at their discretion, to 
 invest the same in any stock, debentures or securities of the 
 Government of the Dominion of Canada, or of this Province; or 
 in securities which are a first charge on land held in fee simple, 
 provided that such investments are in other respects reasonable 
 and proper, and such trustees or executors shall also be at 
 liberty, at their discretion, to call in any trust funds invested 
 in any other securities than as aforesaid, and to invest the same 
 in any such stock, debentures or securities aforesaid, and 
 also from time to time, at their discretion, to vary any 
 such investments as aforesaid, for others of the same nature, 
 and any such moneys already invested in any such stock, deben- 
 tures or securities as aforesaid, shall be held and taken to have; 
 been lawfully and properly invested. 
 
 Mil 
 
m 
 
 UEAL FllorEUTV LIMITATION ACT. 
 
 305 
 
 R. S. O. 1897, CHAPTER 13^ 
 The Real Property Limitation Act. 
 
 4. No person shall make iin entry or distress, or bring any 
 action to recover any land or rent, but within ten years next 
 after the time at which the right to make such entry or distress, 
 or to bring such action, first accrued U> some person through 
 whom he claims; or if such right did not accrue to any person 
 through whom he claims, then within ten years next after the 
 time at which the right to make such entry or distress, or to 
 bring such action, first accrued to the person making or bringing 
 the same. R. S. O. 1887, c. Ill, s. 4. 
 
 FoKiiCLosuKn Action. — " I think it is too hUc now 
 to ai'ji:n(' tliat a forct'losure suit is not a suit for the 
 recovery of land " (/). 
 
 Reuemi'tion Actiox. — "If I am wron};- in holdinj;' 
 that under the words of our sttitute an action to redeem 
 is not, itroperly spealdn};, 'an action to recover hind' 
 within the previous section of the statute, 1 am content 
 to err in such j:^ood company as the hite Miister of the 
 Kolls, who so held in Kinsman v. Kouse, 17 Ch. Div. 
 107 '" (/»). 
 
 " I think it well, however, to add that, if T had to 
 choose between the decisions in Caldwell v. lliill (/(), and 
 those in Kinsnum v. Kouse [n) and Foster v. I'aterson (/>), 
 I should certainly have agreed with the learned Judges 
 
 (/) Ferguson, .1., in Kletrlier v. Uoddeii. 1 (). K. l«il' (ISS'J), 
 citing Heath v. ruK'h, <> (i- H. I). 'MTt; Wrixon v. Vizt', li I>r. <& 
 War. 104; and Ilarlock v. Ashberry, W. N. ISlh Feb., 1SS2, 10 
 Chy. D. r.3l>. See liarwi.k v. liiirwick, 21 CJr. 3t> (1ST4). See 
 Hugill V. Wilkinson, 'SH Ch. I>. 4.S0 ilSSSi. fori'dusurc siction uu an 
 t'Quitable charge on a contingent reversionary interest. 
 
 (m) Burton, J.A., in Faulds v. Harper, l» A. K. 550 tl884). 
 
 (»i) 8 r. C. L. .T. 42. 
 
 (o) 17 Ch. I). 107. 
 
 (p) 17 Ch. D. 132. 
 H.F.M.— 20 
 
 : t - I 
 
f 
 
 306 
 
 FOllECLOSUllE OF MOUTaAGES. 
 
 
 of the Divisional Court; for the reason that since the 
 two cases in 17 Chancery Division were decided, the 
 House of Lords has held, in Puj^h v. Heath (q), that a 
 foreclosure suit i» an action for the recovery of land. 
 This beinf; so, it follows a fortiori that a redemption 
 suit is also an action for the recovery of land " (?•). 
 
 5. In the construction of thia Act, the right to make an 
 entry or distress, or bring an action to recover any land or rent, 
 shall be deemed to have first accrued at such time as hereinafter 
 Is mentioned; 
 
 (7) Where any person is in possession or In receipt of the 
 profits of any land, or in receipt of any rent, as tenant at will, 
 the right of the person entitled subject thereto, or of the person 
 through whom he claims, to make an entry or distress or to 
 bring an action to recover such land or rent, shall bo deemed to 
 have first accrued either at the determination of such tenancy, 
 or at the expiration of one year next after the commencement 
 of such tenancy, at which time such tenancy shall be deemed to 
 have determined. 
 
 (8) No mortgagor or cestui que trust shall bo deemed to be 
 a tenant-at-will within the meaning of the next preceding sub- 
 section to his mortgagee or trustee. 
 
 OnjECT OF Sub-section 8. — A mortgagor, or cestui 
 que trust in possession, was, for some pnrposes, treated 
 in the Courts of Law as a tenant (s), and the object of the 
 present sub-section was to prevent ex majore cautela 
 such an interpretation of his possession from barring the 
 title of his mortgagee or trustee under sub-section 7. 
 
 Occupation of Cestui Que Trust. — The doctrine 
 that a cestui que trust, who is in possession with the 
 consent or even the mere acquiescence of the trustee, 
 must be regarded as his tenant-at-will, applies only to 
 
 (q) 7 A pp. Cas. 235. 
 
 (r) Strong, J., in Faulds v. Harper, 11 S. C. R. G55 (188G). 
 
 (s) See Tntridge v. Bero. 3 B, & Aid. 604 (1822); Doe Roby 
 V. Maisey, 8 B. & C. 7G7 (1828); Melling v. Leak, IG C. B. GGT 
 (18.";r)). mortgagor tenant by sufferance, not by will; Bird v. Wright 
 1 T. R. 378. See further, p. 131, supra. 
 
 I 
 
 ;1 1 ; 
 
n '• " B 
 
 UEAL IMtOl'EUTV LIMITATION' ACT. 
 
 307 
 
 i.»iii 
 
 the case when? the (;estui (|ue trust is the actual occu- 
 pant (/). 
 
 IT. No arrears of rent, or of interest In respect of any sum 
 of money charged upon or payable out of any land or rent, or lu 
 respt'ct of any legacy, or any damages in respect of such arrears 
 of rent or interest, shall be recovered by any distress, or action, 
 but within six years next after the same respectively has become 
 due, or next after any acknowledgment of the same in writing 
 has been given to the person entitled thereto or his agent, signed 
 by the person by whom the same was payable, or his agent. 
 R. S. O. 1887, c. Ill, s. 17. 
 
 Arhkars or- Uknt. — So lonj*' as the rehition of hmd- 
 h)r(l an<l tenant subsists as a h'}ial relation, tlie huul- 
 lord's ri.uht to rent is not bai'red by non-payment for 
 however Um^ a time. Tlie rifjlit to the rent is an in- 
 cident to tlu? reversion. Tlie Statute of Limitations 
 does not apply except indeed that by the present section 
 it i)revents the recovery of arr(»ars for more than six 
 years (v). 
 
 Skctiox 17 RkI'Krs Espfxiatja' to Rents Charged 
 ox Land. — In Pajji't v. Foley (v) it was considered that 
 the statute pertained more "to rents that are a char^t* 
 on the land than to mere conventional rents"; in other 
 words was not nu'ant to apply to rents reserved by a 
 sjiecialty. The object of the Act was to relieve land 
 from arrears of cliarjjes beyond six years, but not to 
 alfect the right to a i)ersonal action («). 
 
 Annuities. — In Sims v. Strachan (.r) it was held 
 that arrears of an annuity secured by a covenant in an 
 indenture might be recovered after six years. 
 
 (t) Moiling V. Lonk, IG C. B. r.OO (IS.",). 
 
 (m) Archbold v. Soullv, II. L. C. 375 (1801), per Lord Cran- 
 worth. See Webster v. Southoy, 30 Ch. D. 19 (18S7). 
 (r) 2 Biiip. N. S. OSS (1830). 
 
 («•) Hunter v. Noekolds. 1 Mao. & G. O.^jI (18.'>0); see Cox v. 
 Dolninn. 1 D. M. & G. .W2 (1S.'',2). Soo R. S. O. 1SS7. o. 00, s. 1 
 (l)ff. " Actions for rents upon an indenture of domise." 
 
 (t) 12 Ad. & Ell. .530 (18 tO). See further .Tnmes v. Salter, 3 
 Ring. X. C. r>32. as to dispute of title to annuity; Wheeler v. Howell, 
 .S K. & J. 180; Sinclair v. .Tackson, 17 Beav. 40.5; Vincent v. Going, 
 1 .T. & Lat. 697, annuity charged on reversionary interest. 
 
 m 
 
 Hi 
 
I 
 
 308 
 
 FOHECLOSUHE OF MOUTGAOES. 
 
 Annuities May Come Under Section 23 Ineha. — 
 See HukIh's v. Coles (//). 
 
 Personal Annuities. — An annuity ^'iven by will, 
 forming' no cliar^'O upon laud, but being personal onl.v, 
 is not within section 17 (z). 
 
 Money Payable Out of Land. — Where the interest 
 nior<gag('(l was the share of a married woman in tlie pro- 
 ceeds of lands devised ui)on trust for sale, that was held 
 to be " money i»ayable out of land " {(t). 
 
 Interest on Legacies Charged on Land. — Where 
 the legacy is a simple charge on the land the seven- 
 teenth section applies (/>); nnd in Thom[)son v. East- 
 wood ((■), where the legacy was not merely charged 
 upon the land, but considered an express trust (d), the 
 Court applied the principle of the Statute of Limitations 
 to the case and allowed only six years' arrears. 
 
 Time Whence Interest Kuxs on Legacy. — In a 
 case where there was no i)ersonal estate to satisfy Ji 
 legacy and it had to be realized out of the proceeds of 
 realty. North, J., said: " In the ordinary case the Court 
 has said that a certain rule is to be adopted in the dis- 
 tribution of i)ersonal estate, namely, that legacies are 
 to be paid within a year from the date of the testator's 
 death, from which time an unpaid legacy will carry in- 
 terest. It seems to me that the same rule ought to 
 
 (?/) 27 Cli. I). 231 (1884). Cf. FniiRis v. Grovcr, 5 Ha. 39; Fer- 
 guson V. Livingston, 9 Ir. Eq. II. 202. 
 
 (z) Roch V. Calleu, G IIii. 530 (184S). Cf. IW Asli\vi>ll. .Tolms. 
 112. 
 
 (a) Bowycr v. Woodmiin, L. R. 3 Eq. 313 (1807). But see- 
 Smith V. Hill, 9 Ch. D. 143 (187S), and the eases there discussed. 
 See also Bolding v. Lane, 4 Giff. .574. 
 
 (6) Hughes V. Williams, 3 Mac. & G. G13 (1850); Clmppel v. 
 Rees, 1 D. M. & G. 393. 
 
 (c) 2 App. Cns. 215 (1877). Ct. Re Walker, L. R. 7 Ch. 120 
 (1871). But see Re Blachford. 27 Ch. D. G7G (1884), where pay- 
 ment of legacy delayed until falling in of reversion. 
 
 (d) As to express trust, see section 24, infra. 
 
 I'll: 
 
"1-W-™ 
 
 !'H 
 
 REAL PHOPEUTY LIMITATIONT ACT. 
 
 309 
 
 d 
 
 V. 
 
 ai>i»ly in IIiIh (iise, and llic inlrrcst oujfht to t'oniincnoo 
 lo run after tlu' (.'xpinition of thai year" {<•). 
 
 IxTF-RKST ox ^[()1<T';a(;i:s. — Tlicr** is a distinction 
 between tlie ease of a. inoi'l^"aj;ee seeking to recovei* 
 arrears (»f interest by action (/') ov distress and tlie (!ase 
 of a niort^-a^'ee seelvin;;' to retain tlie arrears otit of a 
 surplus after sale (7), or to I'cceive tlieni befoi'e sulVerin;; 
 redeiui»tion (//), or when added as a party in the Master's 
 oHice (('). In the former case, section '7 applies; the 
 latter casi is now j^overned by ")(» \'ict. c. 17 {j\. 
 
 IxTKKF.ST ox MoRPCAc;!': OF I'kksoxai/i'V.- >v>ction 
 does not apjily: see Mellersh v. IJrown (/,). 
 
 ]\r()Xi:v Pafi) Ixto Court nv Hail\v\v, What 
 Arrears Out oi'. — "The next (piestion i>. to what 
 amount of a; roars of interest upon his mortj^ajijos i:- the 
 plaintitr entitled, and at what rate is it to be calcul.ited? 
 . . This is not an action to recover arrears of interest 
 in res[)e(*t of any sum of money charj^ed ujKni any land, 
 but an action of trespass, in which the value of lands, 
 
 ((•) lie Ki;;ii(.l(l. 4.j (,'li. 1). 4!J.S (1S1»(»). For ciiscs wlicrc tliis nil(> 
 (l<)(>s not iil'l'l.v. soo Ito Uicliiirils, Ij. K. S Eq. Hi) U>*<>i>l. ('"liiingont 
 Ic^racy to iiilaiit, conmiciitod on W. N. 1M72, ISO; Uo Wi.tiTs, 4'2 
 ("ii. 1). ."(17 (INS!*). Icpicy payahlo on dciith of tcniuit for lifo; liOnl 
 V. Lonl. L. It. '2 Cii. 7S2 (lStt7), h'Kiu-y iiayiihlc on tfrniiinition of 
 |i(>ii(linK Iiti;:iiti<in. 
 
 (f) Forcclosun> of realty, sec Konnd v. Hell. ISO Hcav. 1121. Sin- 
 olnir V. .Tackson. 17 Bcav. 40.">; Sliaw v. .Tolinson, 1 Dr. iV: Km. 412; 
 as to reversionary property. Smith v. Hill, J) Ch. 1). 14.'?: Vincent v. 
 (ioinj;. 1 .T. & L;it. (;'.t7. Itnt see .Jordan v. Younp, 1S7S, W. X. 230; 
 Wheeler v. Ilowells, .1 K. & .T. lOS. 
 
 («;) Ke Mnrshtield. 34 Vh. 1). 721 1887), aiiprovinK Kdnuinds v. 
 Wanjih. L. It. 1 Eq. 418. ("f. Sntton v. Sntton, 22 Ch. D. .Ill; 
 l*'earnside v. I'-lint. 27 Ch. D. ."»79. For Canadian cases, see I'^ord 
 V. Allan. l."> (Jr. .")»».'>: Ilowern v. Brailhnrn. 22 (!r. JMi; Allan v. 
 McTavish. 2 A. K. 278; Macdonald v. Maclonnld. 11 O. U. 187; 
 McDonald v. Elliott. 12 O. It. !)8; :McCnllonKh v. Svkes, 11 V. K. 
 337. 
 
 (1i) Redemption, see Edmunds v. Wangh. Ii. It. 1 Eq. 421. 
 
 (i) Reo CJreenway v. Rronifield. 9 Iln. 201 (1S,')7). dlstinjinish- 
 iTijr Harrison v. Dinjjnan, 2 Dr. & War. 2n.">. 
 
 0) Now It. S. O. 1897, 0. 72. s. 1 (1) (h). 
 
 ik) 4."» Ch. D. 225. Cf. Smith v. Hill, 9 Ch. D. 143, reversionary 
 interest in trust funds invested on mortgage. See Hodges v. Croy- 
 d«'n Canal Co., 3 Beav. 8(5. mortgagee of canal works; MoUish v. 
 Brooks, ib. 22, mortgagee of turnpike tolls. 
 
 - ^ ■ 
 
\ 
 
 JUO 
 
 FOKECLOSU HE OF MOUTGAGES. 
 
 nk 
 
 
 I) 
 
 i : 
 
 m '• 
 
 t>f which the plainiiff has boon forever deprivod, is recov- 
 orabU' as daniajfos, .'.Jid the damaj^es so to be recovered 
 wouhl be lield by hiiu, as the hnids were held, as security 
 for liis inortj'aKt' nioneys, and the niort<;agor would be 
 put to his red* mption in resju'ct of liis daniaj^cs so to bo 
 recovered, as he would have been in resi)ect to the lands 
 which those damages represented. 
 
 " The defendants have i)aid the value; of the lands 
 into Court, and the (juestion, therefoi'o, is what arrears 
 of interest the plaintill is entitled to retain out of these 
 nioneys in respect of his mortgage moneys; and this is 
 to be determined ui)on the same principles as if the bill 
 had been tiled by a mortgagor against a mortgagee in 
 possession to redeem the mortgaged lands. 
 
 " The words of the statute clearly do not include an 
 action by a mortgagor against a mortgagee to redeem 
 tiu' mortgaged lands, and the prin(ii)lo of the decisions 
 of Edmunds v. Waugh, L. 11. 1 Eq. ilS, and Ko ^larsli- 
 lield, :U (^1. I). 7Ul, shows that the statute does not 
 apply to such a suit. 
 
 " Is a mortgagee, who has boon in possession of 
 mortgaged lands from which no income was derivable 
 for nine years, to be entitled on redemption to only six 
 years' arrears of interest? I think it plain tliat the 
 sta'tute is only applicable when the mortgagee is seeking 
 to enforce i)ayment out of tho land of his mortgage 
 nionej' and interest, b}' action. 
 
 " The distinction between proceedings by a mort- 
 gagee and those by a mortgagor was pointed out by 
 A'ankoughnet, C, in Caldwell v. Hall, 9 (Jr. 110; and in 
 Ford v. Allan, 15 Or. 505, he followed Edmunds v. 
 ^Yaugh. 
 
 " I am of the opinion, therefore, that the plaintiff 
 is entitled to retain out of the moneys in Court the 
 mortgage moneys secured by both his mortgages, . . 
 and all arrears thereon, and that the interest on the 
 principal nioneys thereby secured must after the date 
 when they become payable bear interest at the rate of 
 
ill 
 
 REAL PROPERTY LIMITATION ACT. 
 
 311 
 
 of 
 
 six per cent, per annum onlj-. Grant v. Peoples' Loan iSc 
 D<'posit Co., 17 A. R. 85 " (/). 
 
 Interest on Money Secured nv Vendor's Lien. — 
 Interest was recovered for more than six years in Toft v. 
 Stevenson (m). 
 
 Interest on Judgment When Land Under Fi. Fa. 
 —liy section IIG of the Judicature Act {n), a verdict or 
 jud}?ment sliall bear interest from the time of the render- 
 ing of the verdict or of {Jjivinj; tlie jud}j;nient. It wouhl 
 seem that wlien a judj>nienl is secured on hind, it be- 
 comes a sum of nu)ney charged upon and payable out of 
 laud {()) within the meaning of section 17. 
 
 "The I'ekson isv Whom the Same "Was TAYAiiLE." — 
 *' These words do iu)t denote merely the persons who are 
 legally bound by contract to pay the interest, but all per- 
 sons against whom the payment of such arrears nuiy be 
 enforced by any action or suit, and by whom, therefore, 
 as they have a riglit to pay such interest in redemption 
 of their land, interest may be properly said to be pay- 
 able " (/O- 
 
 It was the intention '* to enact a plaiu and simple 
 rule that no person having a charge on lands shall re- 
 cover more than six years' interest on such charge 
 against any other person having an interest in the lands 
 without an aclvuowledgment in writing, signed by such 
 person or by some former owner from whom the interest 
 is derived " (q). 
 
 (I) Dcliiiu'y V. C. I'. ]{.. 21 O. R. 11 (1891), Armour, C.J. Sfc 
 ox])liiiiatii(ii of Edimuids v. Waugh in Ko Stoad'^ uiortgagod estatt's, 
 2 C'h. L). 7U5. Cf. Clarke v. Henderson, 14 Cli. D. 348, mortgage of 
 reversionary interest in fund in Court. 
 
 (»/i) 5 1). M. & (J. T;!."» (18,"»4), distinguisliing Ilodge.s v. Croydon 
 Cana". Co., a lieav. 8(5. 
 
 (»i) II. S. O. 1807, e. 51. 
 
 (o) Henry v. ►•<mith, 2 Dr. & War. 381 (1842). Cf. Vincent v. 
 CiOMig, supra. 
 
 (p) Lord Westbury in Bolding v. Lane, 1 D. J. & S. I.*]:! (18(5:5). 
 
 (q) lb. See Chinuery v. Evans, 11 II. L. €. 134 (18(54). 
 
 1 1* 
 
[ 
 
 i i 
 
 312 
 
 FOUECLOSUUE OV MOllTOAGES. 
 
 P 
 
 %' 
 
 l§. Where any prior mortgagee or other iucumbrancer has 
 been in possession of any land, or in receipt of the profits there- 
 of, within one year next before an action is brought by any 
 person entitled to a subsequent mortgage or other incum- 
 brance on the same land, the person entitled to such subsequent 
 mortgage or incumbrance may recover in such action the arrears 
 of interest which have become due during the whole time that 
 such prior mortgagee or incumbrancer was in such possession or 
 receipt as aforesaid, although such time may have exceeded the 
 said term of s'x years. R. S. 0. 1887, c. Ill, s. 18. 
 
 Explanation of Section 18. — '^ Inasimu'li as no 
 laches could bo iinptitod to tin' mort}j;a}?oc, who was mi- 
 able to KJ'i" possossioii by reason of a prior inciinibrau- 
 cer boinjJT in i)ossession, it was thought unjust to limit 
 such mortgagee to six jears of arrears, and he was en- 
 abled, therefore, to recover all the arrears which became 
 due during the time that possession of the land charged 
 was held by the prior mortgagee. No doubt the ex- 
 cei)tion is a very just one. Kut the reason of that ex- 
 ception is this, that when a prior mortgagee was bona 
 tide in poss<'ssion, then that possession excluded the sub- 
 seciiu'ut mortgagee from being enabled to recover rents, 
 or to recover lands, or to enter into possession. I»ut 
 it wotild be a. gross misapi)rehension of that section if 
 we were to api>ly it to a case where the legal holder of 
 a defunct or satisfied charge or incumbrance, or of an 
 existing charge or incumbrance, is not himself actually 
 in possession, or in receij)t of the rents and profits, but 
 where an indivi.ltnil is in tluit possession or iti that 
 actual recei]»t, who is entitled by a trust declared in 
 etpiity to the benefit of that outstanding charg«' or in- 
 cumbrance " (/■). 
 
 " The exception is where a man has one estate and 
 there are several incuiiibrances on it, and one of tlu* in- 
 cumbrancers enters into possession, then another cr(>di- 
 tor shall not be prejudiced by that possession, if he 
 
 (»•) Lord Westbury in Cliinnory v. Evans, 11 II. L. C. 13t» 
 (18G4). 
 
 HI 
 
■'^fi 
 
 REAL PROPERTY LIMI'I'A'I'ION ACT. 
 
 313 
 
 s, 
 
 5nt 
 
 if 
 
 of 
 
 an 
 
 ly 
 
 ut 
 
 at 
 
 in 
 
 in- 
 
 li- 
 
 1.W 
 
 come for relief within a year after the prior creditor has 
 been removed from the possession '' (s). 
 
 JiDGMKXT Creditor May liic the Prior Incum- 
 brancer. — '* S>i])pos(> a judfjinent creditor has the first 
 secnrity upon the estate and he {jets into possession, is 
 he not a ]»rior incumbrancer in possessitm within tliis 
 proviso? No one ca.ii dispute the point '" (/). 
 
 MOUTOAGKS AND CHARGES OX LAND. 
 
 lO. Whore a mortgagee has obtained the possession or 
 receipt of the pntfits of any liind, or the receipt of any rent com- 
 prised in his mortgage, the mortgagor, or any person claiming 
 through him, shall not bring any action to redeem the mortgage, 
 but within ten years next after the time at which the mortgagee 
 obtained such possession or receipt, unless in the meantime au 
 acknowledgment in writing of the title of the mortgagor, or of 
 his right to redemption, has been given to the mortgagor or s-omo 
 person claiming his estate, or to the agent of such mortgagor or 
 person, signed by the mortgagee, or the p(>rson claiming ihrougb 
 him; and in such case no such action shall be brought, but 
 within ten years next after the time at which acknowledgment, 
 or the last of such acknowledgments, if more than one, was given. 
 R. S. O. 1887, c. Ill, s. 19. 
 
 ^VIIAT IS A MoRTCAClC WlTIlIX Til IS Sia'iK i\ ?— It is 
 
 not material that the morl{;aj;e is in the form of a trust 
 for saleu/), and this section ap[>li('s not to land alone, 
 but also to the i)roc('('ds of a sale whether tinder 
 power (/) or under a (rust for sale (/r). 
 
 l*OSSESSION MfST l\\'. AccjllRI 1) I'.V Mo IM-C.ACEIC, QUA 
 
 MoRtcACEE. — "In the work of one of the earliest and 
 best commentators on the Statute of Limitations, that 
 
 (,s} Stiplcii, Ij.V., ill Viiici'iit V. (iitiii^r, 1 .1. iV Lat. Tttl (1S44). 
 holding that jndKiucnt creditor of rfUiaiudiTi.ian in fee not fntitled 
 to «'Xt'e|iti(>n while tenant for life in possession. See also Drought 
 V. Jones, 2 Ir. Kq. Uep. ',W\, eoniuiented on, Stigd. K. l\ Statutes, 
 14(! (»), Wiieeler v. Howell, .'{ Ku. & John. ll»8; Montgomery v. 
 Southwell, - t'onn. ^: Law, li(!;{. 
 
 (/) Henry v. Sndtli, li Hr. iV: War. IV.M) (1842); Sugden, L.C. 
 
 (i() Locking v. Parker, L. U. 8 Cli. IM) (1872). 
 
 (r) Chapnian v. Corpe. 41 L. T. 22 (187J»). 
 
 (ir) Ke Alison, 11 Ch. D. 284 (187t)). 
 
b : 
 
 
 
 II 
 
 lil l'- 
 
 :i|i 
 
 !( ! 
 
 314 
 
 FOUECLOSUUE OF MOUTGAGES. 
 
 of the late Mr. Hayes (a), a book which may be safely 
 quoted and acted upon as authority if any text writer 
 may be so trusted, in considering the 28th section of the 
 statute (//), that learned writer says: 'The possession of 
 tlie mortgagee must have been gained by him in that 
 character; if, therefore, he i)urcliase the equity of re- 
 demption, and enter into possession, he cannot set up 
 that j)ossession, as tlie possession of a mortgagee, in 
 answer to the claims of persons seeking to impeach his 
 title as ])urchaser.' And after citing cases he adds 
 further on: 'In order to constitute a case, within either 
 the new enactment or the old equitable doctrine, there 
 must be the diligence of a mortgagee on the one hand, 
 and the laches of a mortgagor on the other.' If this is 
 a corre<t statement of the law, and I accept it as such, 
 it is decisive in favour of the plaintiffs who, not having 
 lost their right to set aside the sale either by laches or 
 a('(piiesc(Mice, cannot be barred from redeeming by the 
 operation of the statute on a possession which was never 
 taken or held bv the defendants or their authors in the 
 character of mortgagees " (2). 
 
 Can Solicitor of Mortgagor Be Deemed Mort- 
 gagee IN Possession? — " If a solicitor, with or without 
 the consent of his client, pays off a mortgage debt of 
 his client, he does not thereby alter the relation between 
 them; nor, if he receives the rents can he be accounted 
 a mortgagee in possession '' (a). 
 
 The Possession of Mortgagees Passes to Their 
 Assigns. — In IJright v. ]McMurray (/y) it was held that 
 the benefit of the possession held by the mortgagees, 
 
 {x) Treatise on t'oiivfyiuicing, T'+h Ed., A'ol. I., p. 277. 
 
 iy) CoriTspoadiiij,' to picscnt sootiou, 19. 
 
 («) Strong,', J., in Faulds v. Harper, 11 S. C. R. 655 (1886.) Cf. 
 Hyde v. DiiUinvjiy, 2 Iln. "(28 (1S43), mortgiigee pureliasing interest 
 of tenant for life, liafferty v. Kini?, 1 Keene, 001 (1830), mortgagee 
 in possession qna purchaser of eciuity. 
 
 («) Ward-\-. Cart tar. L. II. 1 Kq. 2!) (180i>). Cf. Booth v. Tiir- 
 ser. 1 Jr. Eq. 11. '.Mi, as to pos.session by luisband as mortgagee of 
 wife's separate estate. 
 
 (h) 1 O. I{. 172 (1882). 
 
HEAL PUOPEUTY LIMITATION ACT. 
 
 315 
 
 Iti 
 
 without any written .icknowledgment of the mortgngor's 
 title, passed to the {grantees from the niortj^ajj^ees, and 
 coupled with their own subsecjuent possession for the 
 necessary jieriod conferred on them, by virtue of the 
 statute, a title absolutir as a};ainst the mortgagor. 
 
 DisrrN'CTiox lii-rwKF.N Rights of Entkv of ^Iort- 
 GACOR AND MouTCAc.Ki:. — lu the case of Cameron v. 
 Walker (r), the curious result was arrived at that a mort- 
 gagor might be barred by the statute, while his mort- 
 gagee could still be within llie statutory jx'riod. ''It 
 had been taken for grant* d in expressions used in some 
 cases (though n -t so decided) that if the statute has 
 begun to run in favour of the occupant prior to the 
 owner mortgaging the property, it will continue to run 
 as against the mortgagee. But the decision in Heath 
 V. Pugh, (> Q. li. 1). IM.'), and 7 App. Cas. '2:i~}, has placed 
 in clear light the relations of mortgagor and mortgagee, 
 and since the Judicature Act, the e(iuital)le doctrine 
 prevails. 
 
 " J{y that doctrine, the conveyance of the legal 
 estate to the mortgagee was regarded merely as security 
 for a debt, and ui)on the mortgagee's death, both debt 
 and security passed to the excculoi*. The interest in the 
 land is not in the mortgagee, but remained in the mort- 
 gagor. I'ossession might be taken by the mortgagee 
 upon default, but that is a very distinct and ditferent 
 thing from possession as owner of the estate. The tith^ 
 of the mortgagee is an equitable title; the right of pos- 
 session upon that mortgage title tirst accrues after the 
 making of the mortgage; and the Statute of Limitations 
 quoad possession of the land, can only run from that 
 time. 
 
 "The right of entry exercisable by the mortgagee, 
 is a very ditferent and distinct thing from the right of 
 entry still remaining in the mortgagor. If, before the 
 right of entry under the mortgage is barred by the sta- 
 tute, proceedings are taken to foreclose or sell under 
 
 (c) 10 O. R. 212 (1800). 
 

 316 
 
 FOUECLOSUllE OF MOllTGAGES. 
 
 
 Hi;- ii 
 
 the power of sale contained in the nioitj?ase, the comple- 
 tion of snch foreclosure or sale vests a new absolute 
 title as owner in the then holder of botli lej?al ande juit- 
 able estates reunited, from whicli would arise a new 
 point of departure in the runninji, of tlie Statute of Limi- 
 tations against any occupant of the land. 
 
 "The rifiht to proceed in ecjuity on tlu' mortj^age 
 would first accrue after the making of the mort<»ase, 
 and as soon as default arose, and it is an eminently rea- 
 sonable construction to give to the Statute of Linnta- 
 tions that the right to enter upon the land first accrues 
 to the mortgagee at tlie same time " (d). 
 
 Purchase From Mortgagee Uxder Power of 
 Sale. — " Under the authorities of Heath v. Pugh (r) and 
 Doe d. Baddeley v. Massey (/'), there appears to me 
 strong ground lor saying that the statute fiist com- 
 menced to run against the purchaser under this power 
 of sale, when he so acquired his title; but it is not neces- 
 sary to decide this " (//). 
 
 Effect of Sl'it for Admixistratiox of Estate of 
 Second Mortgagee. — Where an action was brought ft)r 
 administration of the estate of a second mortgagee it 
 was sought to sh(»w that this ojierated as a suit to re- 
 deem the first mortgagee (who otherwise would have 
 title by i)ossession) and so sto])ped the currency of the 
 statute in his favour. This view was not adojtted by the 
 Court, as in the first ])lace the first mortgage debt was 
 not the debt of the second mortgagee; and even "had 
 the case been otiierwise, it would by no means follow, 
 because a suit had been instituted which would arrest 
 the operation of the statute? against the debt, that there- 
 fore its operation in favour of the mortgagee against 
 the estate must be arrested. If the mortgagee is not 
 
 (d) II). per Boyd, C, at p. 221. Soo 13 C. L. T. 8.'). (Article 
 l)y Mr. A. C. Halt). 
 
 (c) 7 App. Cas. 235 (1882). 
 
 (f) 17 Q. B. 373 (1851). 
 
 (ff) FerKuson, J., in raniornn v. Walkor, 10 O. R. 220 (1800). 
 Soo 13 C. L. T. 121, 120 (lettor by Mr. LnscomI)o and editorial 
 thereon). 
 
T'^ 
 
 UEAL PUOPEllTY LIMITATION ACT. 
 
 317 
 
 a party, and the bill does not seek redemption, it is res 
 inter alios acta, and why should the niortgaj^ee's title 
 be atl'ected ? "' (/(). 
 
 What is Sufficient Acknowledgmknt by Mokt- 
 GAGKE? — Where a niorl^afice in i)ossession wrote to the 
 holder of the iMpiity: " Tiie amount due me .... 
 was as follows: . . . No part of that sum has since 
 been paid lo me, but the rents I have received have 
 merely kept d(>wn the interest," this was held a sulli- 
 cient acknowledj;uient to ^ive a new starling;' point to the 
 Statute of Limitations (/). 
 
 AcKXouEEDCMKXT To TiiiRi) Persox. — All ackuoAV- 
 ledjiinent by the mortfiJifi'ee of the title of the mortji'aj>or, 
 made to a third person, is of no benefit to the moitjia- 
 }^or(/); as where ;i mortjj;a<;ee in a deed to a purchaser 
 conveyed subject exjjressly to the eijuity of redemp- 
 tion (/.). 
 
 AccouxTS Kei't r.v M()Rtga(.J-E. — A jtoint was 
 raised but not decided in linker v. Weston (/), whether 
 the statutory bar was not defeated by the mortjiaji-ee 
 keepinji; accounts of the rents received by him from the 
 mortjiaj^cd in'emises. In Ke Allison (/») the foUowiiif; 
 statement was made in the arjiument: "The mort}4aj;'ee 
 in possession may, if he i)leases, continue to Ite so, and it 
 may be advantageous to him. Here he has kept ac- 
 counts as such, and that is i)ayment of interest under 
 section 40 " (/;). The niortfia^or was lield barred, but 
 the judj>inents do not treat of the jtoiiit in (]uestion. 
 
 (/() s (Jr. ;{40 (is(;(»). 
 
 (0 ^lillcr V. Itr.nvii. :? O. IJ. 210 (1SS2). Cf. tlio letters written 
 in liicliiinlsou v. Yoiin;:*'. L. It. 10 Va\. 127.") (INTO); Tlionipson v. 
 liuwycr. 11 AY. K. !t7r>; Tnildck v. Koltcy, IL' Sim. 402 (1S41). 
 
 (j) Kiitclu'lor V. Middloton, Ila. S.*^ (1S47). 
 
 (A) i:nciis V. DtMinison. I."^ Sim. .VS4 (1S4,']). Cf. Murlcwick v. 
 ITiir(linj,'Iiiim, 1') Cli. I). [].')!> (18S0), effoct of letter to biinkrupt mort- 
 piijror. 
 
 (0 14 Sim. 420 (184.'')). 
 (m) 11 Ch. D. 203 (1870). 
 (h) Our section 23. Citing Brocktehurst v. Jcssop, 7 Sim. -13S. 
 
 : w f 
 
r 
 
 318 
 
 . FOUECLOSUUE OF MOUTGACiES. 
 
 \^ 
 
 m 
 
 M 
 
 Possession of Part of Estate by Mortgagee. — 
 See Kinsman v. Konse (d). 
 
 (.'AN Time Bk Exticnded iiv Terms of Okiginal 
 Mortgage Contract? — See Aldcrson v. White (/>). 
 
 ,I)iSAi!iLiTii:s OF Mortgagor. — Sec Faulds v. Har- 
 per (7), Kinsman v. Kouse (/•), Forster v. Patterson (,s). 
 
 Effect of Baxkrii'Tcv ox ^Iortgagou's Kights. — 
 See ;Markwiek v. llar(lin«>liam (/). 
 
 20> In case there are more niortfiigors than one, or more 
 p-^rsons than one claiming through the mortgagor or mortgagors, 
 such acknowledgment, if given to any of such mortgagors or 
 persons, or his or their agont, shall be as effectual as if the same 
 had been given to all such mortgagors or persons. R. S. O. 1887, 
 c. Ill, s. 20. 
 
 The Equity of Kedemptiox is ax Extire Whole. 
 — In Fanlds v. ITarper (;/). where some of tlie persons inter- 
 ested liavin<j;been iindei' disabilities were entitled to re- 
 deem, it was considered that the mortji'ajice must suffer re- 
 deni]»tion of the whole i)i'o])erty on payment of the whole 
 mortfiajje debt : — " There is no prinoijde on which the 
 mortjiaj^e money could be apportioned in such a case, 
 and the mortfjiaj-ee coiiipelled to receive a proportionate 
 part accordinj;- to the value of that part of the estate 
 which the mortfja{»'or retained in ])ossession; and payinf]^ 
 the whole sum secured the mortjia<»()r can only have 
 justice done to him by having; returned to him the whole 
 security, I find nothing in the statute against this 
 mode of workiu}? out the redemption which is that au- 
 thorized by Kakestraw v. Bruyer (r). 
 
 ifi) 17 (Ml. I). 104 (ISSlt, net fcdlowed in Faulds v. Harper, 2 
 O. It. 4(»r>; see also Hood v. Easton, 2 Giff. G9L». 
 
 (/)) 2 De (J. & .T. S)7. lOJJ (1S,-.S). 
 
 ((/) 2 (). 1{. 405; 11 S. C. K. Gu5 (leSSO). per Strong, J. 
 
 0) Sui>rn. 
 
 (,s) 17 Cli. D. l.'^2 (ISSl). not followed in Faulds v. Harper. 2 
 O. IJ. 40.-). which follows rauldwell v. Hall, 8 V. C. U J.; 9 Gr. 110. 
 
 U) 1.-) Ch. D. 339 (ISSO). 
 
 (11) Tor Strong, J., 11 S. C. R. 65G (188G). See also lb., 2 O. 
 It. 411. 
 
 (r) Select cases in Ch. 55, Moscley, 189 (TJakestraw v. Fruyer). 
 
■'^ 
 
 IIKAL I'UOPEllTV LIMITATION ACT. 
 
 319 
 
 
 ate 
 
 his 
 
 H-, -i 
 
 81. In case there are more mortgagees than one, or more 
 persons than one claiming the estate or intrrest of the mortgagee 
 or mortgagi'es, such acknowledgment, signed by one or more ot 
 such mortgagees, or persons, shall be effectual only as against 
 the party or parties signing as aforesaid, and the person or 
 persons claiming any part of the mortgage money or land or 
 rent by, from, or under him, or them, and any person or per- 
 sons entitled to any estate or estates, interest or interests, to 
 take «'ffec,t after or in defeasance of his or their estato or estates, 
 interest or interests, iind shall not operate to give to the mort- 
 gagor or mortgagors a right to redeem the mortgage as against 
 the person or persons entitled to any other undivided or divided 
 part of the money or land or rent; and where such of the mort- 
 gagees or persons aforesaid as have given such acknowledgment 
 are entitled to a divided part of the land or rent comprised in 
 the mortgage or some estate or interest therein, and not to any 
 ascertained part of the mortgage money, the mortgagor or 
 mortgagors shall be entitled to redeem the saiuo divided part of 
 the land or rent on payment, with interest, of the part of ihe 
 mortgage money which bears the same proportion to the whole 
 of the mortgage money as th(> value of such divided part of the 
 land or rent bears to the value of the whole of the land or rent 
 comprised in the mortgage. R. S. O. 1887, c. Ill, s. 21. 
 
 ACKXOWLF.DGMKXT ]!V OXE OK TwO JoiXT ^foKT- 
 
 GAGEES. — See Kicliju'dson v. Yonpo ((/•), wliciv. Miu-h an 
 ackiiowk'dfjrinent hold inoixTativo. 
 
 23. Any person entitled to or claiming under a mortgage of 
 land, may make an entry or bring an action to recover such 
 land at any time within ten years next after the last p.-iyment of 
 any part of the principal money or interest secured by such 
 mortgage, although more than ten years have elapsed since the 
 time at which the right to make such entry or bring such action 
 first accrued. R. S. O. 1887, c. Ill, s. 22. 
 
 110. 
 
 O. 
 
 fer) . 
 
 Sit* No action or other proceeding shall be brought to recover 
 out of any land or rent any sum of money secured by any mort- 
 gage or Hen, or otherwise charged upon or payable out of such 
 land or rent, or to recover any legacy, but within ten years next 
 after a present right to receive the same accrued to some person 
 
 (tc) L. K. G Cb. 478 (1871). 
 
 I 
 
320 
 
 FOllECLOKUllE OF MOUTGAGES 
 
 capable of giving a discharge for, or relensi' of the same, unless 
 In the meantime some part of the principal money, or some 
 interest thereon has been paid, or some aclinowledgment of thi' 
 right thereto has been given in writing signed by the person by 
 whom tie same is payable, or his agent, to the person entitled 
 thereto or his agent; and in such case no action or proceeding 
 shall be bi ought, but within tt>n years after such payment or 
 acknowledgment, or the last of such payments or acknowledg- 
 ments, if more than one was made or given. R. S. O. 1887, c. 
 Ill, s. 23. 
 
 Okicix and Oi'.jKCT oi- Skc'iiox 1*2. — Scclion 2'2 was 
 t'liJU'lcd l»v llic Kcal J'l'opi'ily Aiiu'iidmcnt Act, 1S74, h. 
 12. Si)i'aj;j;(', ('., said of it: " Tlicro was no siieb pro- 
 vision in llic oii^inal Heal Proptriv Ai>(, i ^Yln, IV. c. 
 1; and llic Act, Hi Met. c. 121, was passed to ind'odnco 
 a siniilai' provision, the limitation then beinj»- twenty 
 years; tliis was in isr).'{. An Aet with the lilce provision 
 had been ]»assed in tlie lnii»erial I'ai'lianient in 1S;»7, 
 there liavinj;' been no stn-li j»rovision in tlie English l{eal 
 I'roperty Act of 1S:{;{, .*{ & 4 Win. IN', c. 27, so that the 
 le{;;islation in Canada npon this snbject followed and 
 conformed to the lejj,islation in the Imperial I*arliament. 
 The ImjK'i'ial Act of 1SM7, and onr own Act of IS~}',\, were 
 passed specially, as appears by the recitals, to clear np 
 donbts which had arisen npon the constrnction of the 
 Ijrevions Act " (.c). 
 
 CnA\(;E EfI'Kctkij kv Skction 23. — Under the old 
 Statnte of Limitations, 21 Jac. I., the possession of the 
 mort};ayor was if i)Ossible constrned as permissive and 
 not adverse; and therefore as not barrinj;- the mortpi- 
 gee. ]?nt even, ajtart from the ])resent section, it wonld 
 have been jtresnined (in the absence of facts rebutting 
 the ])resnini>tion, sncli as payment of interest or entry 
 by the mortgagee), that the mone^^ was paid at tlu? day, 
 and after the lapse of the statntory period the mortgage 
 wonld have been presumed to have been satisMed (//). 
 
 (ar) Hooker v. Morrison, 2S Cr. 372 (1881). Cf. Doe v. Williams, 
 5 Ad. & Kli. li!)7 (1831!). 
 
 (j/) Doe Dnnlop v. McNab, 5 IJ. C. R. 289 (1849); Doe McLean 
 V. Fish, ib. 295; Doe McGregor r. Ilawke, 5 O. S. 490 (1837). 
 
UEAL rilOPKHTY LIMITATION ACT. 
 
 321 
 
 T ' "1 
 
 i'l-; 
 
 (//I. 
 
 liOiin 
 
 Tho ])rin('i]>iil cluuific. tlu'ii. ctlVrtcd by socfion 2.'{ is to 
 
 stren^tluMi tlic |>r(>suin])ti«)ii of siitisfiirtioii iiiid also in 
 
 ffi'oal part to do away witli tlic rt'lincd (listiiictiou <»f 
 advci'so ri'oiii iionadvorsc i>osH<'Ssion. 
 
 S'lArrTic Oi'iCRATKS A l{l■.-n)^•\•I•:^■A^•( I', to Moutc.a- 
 cou, i:tc, — In aocoidancc willi llic piiiiciplcs laid down 
 by JosHcl, M.K., in Dawkins v. IN'nrliyn (:). it lias bct'ii 
 held that when tlie i'i;j;lit of aclioi for cnli-y or fort'- 
 t'losnro is lakni away, llio title of lln' niorljiaycc is ox- 
 tinfinishcd and by virtue of the stalnlo a ])arliain('ntary 
 re-conveyance of the whole rij^iit. title, estate and in- 
 terest of the n»orlj;a^ee is made to the niorl^a^'or or ills 
 assiji'iis (r/). 
 
 " ('i.AiMi.Nc, r\i)i;u A .MoKTCAdi;." — Where a pur- 
 chaser took a conveyance in which both niortj;aj{'or and 
 inort};aj;-ee joined, he was held to be a i)erson "claiming; 
 under a niort}j;aji'e " within liie nieaniii};' of section L'll (/*). 
 
 No Acnox : Foui-xf-osiki:: — Foreclosure beinj;- nn 
 action for the recovery of land, it was hehl that where 
 the niortjia^'ee ten years and <Mj;ht months after default 
 claimed ]»ayment of tlie niorljiaj-e debt, jjosscssion and 
 foreclosure, he was (Uily entitled to jud^Muent upon the 
 covenant (r). Uut where a decree of fcu'cclosurc was 
 obtained before the lapse of the statutoi'y j)eriod, and 
 an action for possession after (he lapse of the same 
 period, it was held that (he ri;;ht to brinj;- sucli an ac- 
 tion accrued at the dat<' of the decree i(/). 
 
 it 
 
 iz) U ("Ii. 1). IV22 (1S77). 
 
 (a) Conrl v. W;ilsli, 1 (». li. 170 (ISSLM, per U.i.vd. V 
 
 •itiiiK 
 
 Ilfiith V. I'mkIi. (! i-i. 15. I>. .'{4."). ;;(il. Set" Unity v. Diivis. K? Ir. L. 
 1{. -',\, !is Id cfTcct iif .•icl{ii(n\lt'(l^ni(Mit nrtcr 'itntiitory period, ("f. 
 Wiirriiijr v. Wnrriiif.', 5 Ir. Cli. K. <!; Iloiiiiin v. .\ii(lre\vs, 1 Ir. C 
 R. tor.; (ircKson v. Iliiidlcy, 10 .lur. :\s:\ dsic.i, cjisc cpf rcvcrsiuiu- 
 and tciiiint for life. 
 
 (l>) Doo Ttaddeley v. Mnssey, 17 Q. H. .'^7.3 (1S.->1). 
 
 (r) Flt'tcli.M- V. Kodd.Mi, 1 O. K. 1,-..- (1SS2). See Barwi.'k v. 
 Hiirwick. 21 (!r. :«) (1.S74); Ilarlock v. AslilK>rry. in Ch. D. r..*}!). 
 
 (<J) Pn>:li V. Ilea 111. 7 A pp. Cas. 2^5 (18.S2). Soo ITiiplll v. 
 Wilkinson. nS Ch. D. 4S0; !{<> T.ake. m L. T. 41(5; ITenry v. Smith, 
 2 Dr. & War. HSl, as to mortgage or reversionary intereHt. 
 
 •1 
 
 n.K.M. 
 
 i\ 
 
322 
 
 FOKKCLOSUUK OF M()Il'l(JA<;ES. 
 
 ft 
 
 !!' 1. 
 
 Action on tiii: Covkxaxt. — (Mir Courts in Ontario 
 luivc coiiHisk'iitly refused to consider the aetion on tlie 
 covenanl: as wiliiin section -•*{. Tlius Mr. Justice Hose, 
 in McDonald v. Elliott (c), says: "If I felt bound to con- 
 sider whetlur Sutton v. Sutton, L'2 Cli. D. nil, should 
 l»ind nie, there are sonu* (luestlons of interest which I 
 would wish to hear fully argued before ariivinp; at- a de- 
 cision, but I lind .Mr, .Iustic(i I'roiidfoot in Macdonald 
 V. Macdonald, 11 (K K. 1S7, at p. l!)(), declined to follow 
 Sut^cui V. Sutt(ui, and followed Allen v. McTavish, 2 A. 
 li. L'7S, as the tlecision of the hij^hest a]»|»ellate tribunal 
 of this Province " (/'). Even in Enj;land the statute does 
 not bar an action a};ainst a surety fcu' the ni(U't^aj;<>r on 
 a covenant (;/), or promissory note (//), or bond (/), 
 
 Satisfaction of Mortc.ac.f. Not Pkksitmkd Mi:uely 
 llECAUSF No Kk.mkdv on Covenant. — ''The mere fact 
 that the mortf?aj?ee could not recover the money on the 
 covenants contained in tlie mortf^a^e, because twenty 
 years had passed from the time fixed for its payment, 
 will not establish a payment so as to recouvey the lej;al 
 title to the mortfjayor " (y). 
 
 Judgment. — ''If the chanjj-e in the section to be pre- 
 sently noticed had not been made in the revision of 1887, 
 we should probably have found ourselves ctmpelled in 
 obedience to the general rule laid down by the Privy 
 Council in Trimble v. Hill, 5 App. Cas. .'U2, and City 
 liank V. liarrow, 5 Ap]). Cas. (504, to follow the case of 
 Jay V. Johnstone, [ISn.'V] 1 Q. H. 181), in which the Court 
 of Appeal, dealinfjf Avith a section verbally identical in 
 
 (r) 12 O. R. 98 (1886). 
 
 (f) But see 5(5 Vict. c. 17; now K. S. O. 1897, c. 72, s. 1 (1) (h), 
 supra. See jilso Roovos v. Butcher, [1891] 2 Q. B. 509, as to effect 
 of ncci'leiation clause. 
 
 (g) Re Frisby, 43 Ch. D. 106 (1889). 
 
 (h) Re Wolmerliausen, 62 L. T. 541 (1890), 
 
 (0 Re Powers, 30 Ch. D. 291 (1885). 
 
 <j) Mnhnr v. Fraser, 17 U. C. C. P. 414 (1867), decided before 
 enactment. 
 
 i 1' 
 
REAL PHOPEIITY LIMITATION ACT. 
 
 a2:J 
 
 1lii» respect with I lie secuoii of our Acl Jis i( form ly 
 slood, and also witli other Imperial Acts, similai- to 
 those ill force here, which were considered by our Court 
 in Jioice v. O'Loaiie, came to a conclusion diametrically 
 opposite \o that decision. In conlirmin;-' the statute 
 law revision of 1SS7, the Le^-islature has, however, 
 adopted the law as laid down in Itoice v. O'Loane (/r), by 
 omit t inn' the woi-d 'judj^nienL' alloj;t'th<'i- from section 
 '2'.i, aw revised in 1{. S. O. c. Ill, so that tlu-re is no lon;;ei' 
 anythin}^' in that section which in terms includes jud;;- 
 ments, t»r to which (he reasoniu};' of the Knulish decision 
 can ap|»ly. .lay v. Johnstone is also reported in | l.SJ)."{| 
 1 il. l\. -ol/), and ftdlows the case of llebblethwaite v. 
 Teever [ 1S!>1*J 1 Q. 15. ll!4. 
 
 "The only Limitation Act, thoiefore, which can np- 
 ply to a judgment rej'ardinj;' it as a specialty las to 
 which see the cases last cited and McMalion v. Si)encer, 
 i:{ A. I{. 4:{()) is K. S. O^ c. (>(», s. I " {m). 
 
 Cii.\kc;e for Locaf. Imi'Hoxkmkxts. — See llornsey v. 
 Monarch Investment Co. (?i). 
 
 Vendor's Lfkx. — A vendor's lien for purchase 
 money is within this section (o), 
 
 Mortgage to Seclre Purchase Monev. — See 
 Henderson v. Henderson (/O- 
 
 Where the purchase money is payable by instal- 
 ments the vendor's right of entry accrues on default of 
 payment of an instalment ((/). 
 
 (fr) 3 A. R. 107. 
 
 (/) Also in 11893] 4 R. lOfi. 
 
 (»h) Osier. .T.A., in Mnson v. Johnston, 20 A. R. 412 (1893). 
 
 (»i) 24 Q. B. D. 1 (1889), time runs from completion of work', not 
 apportionment of expenses. 
 
 (o) Toft V. Stephenson, 7 Hnre, 1 (1848). 
 
 (p) 23 A. R. 577 (1890), effect of payment and discharge in 
 givinp new stnrtinR point. 
 
 (q) Irvine v. McCaulny, 28 O. R. 92; 24 A. R. 440 (1897). 
 
 I 
 
 i 
 
w 
 
 i'':% 
 
 m 
 
 324 
 
 FOHECLOSUltl'; OF MOUTGAOES. 
 
 "Money Charged Upon ok Payaisle Out." — See 
 notes to s. 17, supra, also Bowyer v. Woodman (/), l{o<l- 
 dani V. Morlc.v (s), Ke Stephens (/)• 
 
 TvEGACY, How Far Within Section 215. — A legacy 
 is prima facie within section llli: "A le}j;ac.v does not 
 cease to be a legacy because it is subject to souic im- 
 plied 1 rusts. An executor was always in a loose sense 
 a trustee for creditors and legatees, since he held the 
 jxMsonal estate for their benelit and not for his own, 
 but such a trust does not take the case out of the statute. 
 An executor cannot be deprived of the beneiit of the 
 statute by showing that he is a trustee; it is necessary 
 to make out that he is an express trustee'' (//). 
 
 Legacy Not C'hakgI':!) on Land is Within Sixtjon 
 2'.\. — Not only legacies charged on land, but legacies 
 payable only out of personal estate are incbuh'd (r). 
 
 L]:(;acy Includes Kesipue or Share There(ji'. — 
 See ('hristian v. Devt-reux («). 
 
 CnAR(;i: of Debts Wiel Not ItEVivi: Barri:!) 
 Legacy. — Where a legacy unpaid by the executor has 
 
 (») li. H. '.i K(i. oK{ (1S(>7), iiilcrt'st in procfftls dl" hiiids devised 
 upon trust for siile. ("f. Miilluw v. IJij,';;, I^. It- l''^ l*''|. -l'"' dSTii. 
 distiii^'iiisiiiiif; I'awsey v. Hiirnes, UO L. .1. ("li. li'Xi (l!Sr>]), s. '2',\, dues 
 iiol ii|)|iiy to i>iirt of liiiids reiiniiiiiiiK unsold. 
 
 (s) 1 ])e (J. tV: ,1. 1 (I.S.'iT), money due on t\ liond is not witiiin 
 s 12;?. Cf. Moiley V. .Moiley, '> 1 >. M. & (J. (UO (IS.-m). 
 
 (0 4'A Cli. L). yU (ISS'.t), eiTeet of eluir^inj,' simple eontriiet delils 
 on hinds. 
 
 {II) Lindloy. T^.T., in Ite .l;ine Diivis. Kviins v. AFoore. (1S!H) '.\ 
 Ch. IV). 
 
 (r) tineplierd v. Dnke. !) Sim. r>(i7 (1S.".!»). followed in Henry 
 V. SndUi. i: Dr. A: War. .•'.'.•l (ISli;)). Cf. Ite Stephens, \:\ ("h. 1). 
 
 A^i (TRS!»); ("iidl.nry v. Smitli, L. H. 
 
 ]• 
 
 <l- 
 
 -!•_' (ISCdt). f.illowii 
 
 tt V. .Ii 
 
 4 ("1. iV: V 
 
 '.\S'2, >;ift in trust to eX(>eutor to p.'iy 
 
 delits !tnd le>riieies no imr to stntnte; Clioiiton v. Durlnini, L. Ii. 
 4 Cli. 4."..T (IS(iit), after iidministrntion of estate (>xeentors beeonie 
 tniftoes; Ilarconrt v. White. L'S lieav. .W!) (IStJO). (listinj,'nishinf: 
 Piiillips V. Munniufis, 2 Myl. & Cr. ^00, investinp; of h^^iicy as separ- 
 ate fund makes executors trustees; so too. tlie siKnin;.' of ;i deehir- 
 ation of trust. Tyson v. .TaeUson. r^O Beav. .'?«(! (IS(H). Tie T^owe. 
 C.I T.. T. ."SI (I.SS!)); Playfair v. ('ooi)er. 17 Reav. 1.S7 (1.S.-,.'5): T?ann<'r 
 V. Tlerridtro, 2S f'li. D. L'."t4 (1SS1). express and eonstrnetive trust: 
 
 Swain v. Hi 
 
 injri'm.'in. 
 
 L. 1{. 1.S91, ,T Ch. L'a.^. 
 
 (ir) 12 Sim. dictum, at j). 271 nS41). Cf. Prior v. ITornihh 
 2 ¥. & Coll. 200. 
 
"—SCO 
 ), Kod- 
 
 legacy 
 )('H not 
 me iiu- 
 L' seiiHt' 
 I'ld the 
 is own, 
 
 "itiltulc. 
 
 of tin* 
 cossary 
 
 lej^iifU'S 
 
 ,KKOl". — 
 ItARKKI) 
 
 (or has 
 
 devised 
 i; ilSTii. 
 :I>, (lues 
 
 )t within 
 
 net dcMs 
 
 (is«.n) :'. 
 
 n llcMiry 
 t Cli. 1>. 
 ollowiiij: 
 
 )!• to pny 
 
 m 
 
 s befonie 
 ntmisliiiip 
 as soi)i)r- 
 ;i decliir 
 [o liowc. 
 : T?nnner 
 ve tnist: 
 
 orniblow. 
 
 m 
 
 JILAL PU()1'P.UTV LIMITATION ACT. 
 
 325 
 
 been barred l>y lajiMe of time, a charge of debts by the 
 execntor in his own will will not I'evive the debt (./). 
 
 FoUMi'K l{ii,K AS TO TiK(^.ACM:s. — Formerly the Sta- 
 Inte of I.iniilalions did not apply to legacies bnt the 
 Conrts jKled on Ihe ]»rinciple, "that claims the most 
 soh'mnly established npon the face of them will be pre- 
 snmed to b<' satisfied after a. certain length of time "(//). 
 
 Li-.CAcv, l*Ki:si-.XT Kic.iiT TO l{i:ci:i\'i:. — "The right 
 to reeeive nu'ans tiie I'ight to receive from the executor 
 or administi'iitor or their rejtresentatives. and not from 
 the debtor to the estate, from whom the legatee or next 
 of kin has \u> right to receive. The right to a legacy, 
 and the right to receive a legacy, jire (as was ]»()inted (»ut 
 by Lord Homilly in Karle v. liellingham (;J, obviously 
 distinct rights. And the observation applies ('(jually to 
 a share of the residu(- of an int<'state's estate. J?nt the 
 enactments sjx'ak not merely of a right to receive, but 
 emphatically of a i»resenl I'ight to receive. The next of 
 kin have no ]»resent I'iglit to receive fi'om the adminis- 
 Iralor a reveisiouary asset belonging to the intestate 
 before i! falls into ]»ossession and is possessed by him, 
 noi" when he is compelled to take ]iroceedings to I'ecover 
 an outstanding asset before he recovers it oi* ol»tains 
 possession of it " [n). 
 
 l'Ki-:si;NT KiciiT to Ufxi: i\i:. — Ky the words '* a pi'e- 
 sent right to receive" 
 
 'e understood an immediate 
 
 (.V) rijii-'oll V. Jeff'Tsoii, \'2 Sim. l!(i (IS-ll). 
 
 (//) .tones V. 'rnrl>er\ ille. li \'es. .Inn. 11, VA (171>li), citsi' of delay 
 ul' over -to years; lli^Kins v. ("rawfonl, il». ."iTl (ITil."!!, arrears more 
 llian <I years; I'ickeriiiK v. Stainford, it>. "iSi! (lTlt.">), ohsorvations 
 on "stale dennnitls." ("ampliell v. Sandl'ord, - CI. «.V: l''in. -l.'O 
 (t.S.'M). la]ise of I'T years. 
 
 (c) lit l?eav. 'tis. 
 
 (a) Cliitly. .1., in Ke .loluison, Sly v. lUake. L'i> Cli. D. 071 
 (1SS.-,). ("f. Ilornsey v. -Monanli. HI (}. U. 1). 1<» (1S,S!»); IJenson v. 
 Mande, U .Mad. 1.^» (1S'.!1), immediat<' le^ai'y; liudlam. ';:•, i,. 'i'. ;>;i:; 
 (IS'.Ml, proceeds of re'crsionary int<'res( ; Adnms v. Karry, 2 Coll. 
 C. C. IMtO (ISl.-.l; Larkins v. riii|.|.s. ItST.'?! W. N. 207; Rriuht v. 
 Larciier, U7 Meav. 1.'{0 (1S.")!I), residuary interest in annnily; Fanlk- 
 ner v. Daniel. :\ Hare IttJt. LTJ (1S4:{|; llavenseroft v. Frisby, 1 
 Coll. C. C. 1C, (1SI1): I'rnnd v. I'rond. 11 W. U.IOl, leKn<M»>s sul.jeet 
 to piior eliar^es; Hol<ler<t v. Ilalpin, I'.t W. R. '.V2n (1S70); I'igKott 
 V. Jt'lTer.son, t2 Sim. ll(i (.1841), persons under disiiltilily. 
 
 f $ 
 
^r- 
 
 ' 
 
 326 
 
 FORECLOSURE OF MORTGAGE i. 
 
 :i 
 
 S ■! 
 
 !ii 
 
 ill ] 
 
 right without waiting for the happening of any fudiro 
 event {h). 
 
 After a Present Right Accrued. — In case of a 
 proviso for redemption, if the mortgagor shall '* on de- 
 mand •' pay the debt and interest fronj the date of the 
 deed the statute runs from the date of the deed, unless 
 the promise is to pay a collateral sum on demand, in 
 which case no right of action accrues \intil demand (r). 
 
 ]\I(JRTGAC.E WlTIIOUT Re-DEM1SE, WiIEX RlGlIT TO 
 
 Enter Accrues. — Whei'e a. mortgage does not contain a 
 redemise to the mortgagor, and no interest has been 
 paid in the meantime, the statute has been held to run 
 against the mortgagee from the execution of the mort- 
 gage (</). 
 
 Where Lands Vacant and No Re-demise. — The 
 presumption of i>ayment of the moi'lgag<' moneys after 
 the statutory jteriod docs not arise where the land was 
 vacant at the execution of the mortgage and the mort- 
 gage contains no re-demise clause; the mortgagee in 
 that case being deenu'd in possession of the land by 
 operation of law (c). 
 
 rAV.MEXT. jiv Whom Made. — In Lewin v. Wilson (/), 
 II. and W. each mortgagiMl some property to the obligee 
 of their joint and several bond, to secure the amount of 
 the obligation; the latter as between the debtors being 
 surety only, 11. being bound to pay principal and in- 
 terest and exj)ressly named as a person entitled to re- 
 deem l>oth mortgages. The question then arose were 
 payments by H. sulticient to bind W. so as to prevent 
 the running of the statute in his favour. The Judicial 
 
 {,b) Fiirniu v. Bcrosfonl, 10 CI. & Fin. IVU (1S4:](. Seo fiirtlu-r 
 Ryan v. Caniliio, '2 Ir. Eq. It. ;J84; Dillon v. Cniiso. li Ir. Eq. U. Si'. 
 
 (c) Ke Brown's Estate, | ISlC?] 3 U. 403; 2 Ch. 300, followiuK 
 Birlvs V. Trippet, 1 AVnis. Saund. 33rt. 
 
 (d) Soo 1)00 V. I.ijrhtfoot, 8 M. & W. 504 (1841). Ct. Doo v. 
 Giles, 5 Bins. 421 (182!t); Thorp v. Facey, 12 .Fur. X. S. 741 (1800). 
 
 (e) Mahar v. Eraser, 17 U. C. C. V. 408 (1807). Cf. Delnuey 
 V. C. P. U. Co.. 21 O. It. 11 (1S91). 
 
 if) 11 App. Cas. 039 (1880). 
 
HEAL PKOl'EKTY LIMITATIOX ACT. 
 
 327 
 
 Coinmittee, after reviewing the meanings given to " pay- 
 ment " in Harloclv v. Ashberry (r/), and Cliinnery v. 
 Evans (//), concludes: "In expounding the word 'pay- 
 ment ' learned Judges Jiave used such expressions as 
 were calculated to show in the case before them that 
 the payment relied on was or was not the payment 
 nus'int by the statute. In this case tlieir Lordshij»s tliink 
 it sutticient to say that i)aymenls made by a person who 
 under the terms of the contract is entitled to make a 
 tender, and from whom the mortgagee is bound to accept 
 a tender of money for the defeasance or redemption of 
 the mortgage, are itayments which by section 'M 0) give 
 a new starting point for the lapse of time. And II. was 
 clearly such a pei'son." 
 
 The coiicliision come to in llarlock v. Ashberry. 
 supra, was that a statutory ])aymeiit must be by a per- 
 son liable or at least entitled to pay. 
 
 The j)rinciple laid down by Gwynne., J., in the Su- 
 preme Court, that the only person by whom a payment 
 can be made \u stay the currency of the statute, is the 
 mortgagor or some person in i>rivity of estate; with him, 
 or the agent of one of them, was (pialitied by tiie Judi- 
 cial ('ommittee so as to include one who by the terms 
 of the mortgage contract is entitled to make pay- 
 ments (y). 
 
 (y) r.» I'll. I>. 530 (ISSlii, ciiso of payment by tenant. 
 
 (h) 11 II. L. C. lir», payniiuits by rooeivor appointed at instance 
 of mortgagee, 
 
 (I) V. S. N. ]<. e. 84. s. oO. Cf. section.s 22 and 23, nnin-n. 
 
 {)} Lewin v. Wilson, 11. Ai>i). Cas. t;i7 (1880). See furtlicr 
 Linscll V. Honsor, 2 Hing. X. (J. 245 UJ^I^'j)- Honian v. Andrews, 
 1 Ir. Cli. R. 1U(), i)aynients by mere stranger; ("liinnery v. Evans, 
 suju-a. piiyments liy receiver of mortgagor; (.'uckbnrn v. IMwards. 
 IS (Ml. I>. 457 (ISSll, per .Tessel. M.U.. receipts of mortgagee in 
 possessiuii do not constitute payments by nmrtgagDr: Staiey v. I'ar- 
 rett. 2<> li. .1. ("h. 321 (1857). suri)bis of annnity iissigned liy mort- 
 gagor as collateral hcdd sntticient to keep charge alive; Seager v. 
 Aston, ib. 302. paynuMits by stirety on collateral s(>cnrity: Ames v. 
 Mannering. 2t! B(>av. 5S3 (18.5in. payments by widow binding on 
 heir; Thwaites v. AtcDonongh. 2 Ir. E(i. K. 97 pnymonts for infants 
 in foroelosnre action. „ 
 
328 
 
 FOUECLOSURE OF MORTGAGES. 
 
 if 
 
 i;i 
 
 By Whom Payment May Be Made — Distinction 
 liETWEEN Sections 22 and 23. — In Trust aud Loan Co. 
 of Canada v. Stevenson (l), where a subse(iiient mort- 
 gagee took the property from the assignee in insolvency 
 and made payments on the first mortgage till within ten 
 years of the bringing of the action for foreclosure, it was 
 held that as the subsequent mortgagee was under the 
 circumstances primarily bound to pay olT the prior in- 
 cumbrances that, therefore, his payments kept alive the 
 plaintiff's rights. As expressed by INIaclennan, J.A. (l) : 
 *' The present action is also one of foreclosure, and 
 therefore we must hold tliat the case is governed hy sec- 
 tion 22 and not by sectiim 23 so far as there may be any 
 difference between the two sections as to the class of 
 persons by whom valid payment may be made of iirin- 
 cipal money and interest. It is true that in making the 
 revision of 18S7, section 23 was altered from the form 
 in which it had stood from the year 1834, when it was 
 first enacted, by the insm-tion in the second line of the 
 words ' out of any land or rent.' I think, however, these 
 Avords make no difference in a case of foreclosure, the 
 one section still relating to actions for the recoverv of 
 land, !uul tlni utlicr to actions for the recovery of 
 monev. It cannot now be contended that pavment bv a 
 mere stranger will do. lie must be a person who has 
 some right to pay, and whose payment the mortgagee 
 could not properly refuse." 
 
 IVwMKNTS BY Mortgagor After He Has Assigned 
 the Equity. — The assignee of an equity will not be de- 
 |»nved of the benefit of the statute by payments made 
 by the mortgagor (/»). On the other hand, it seems that 
 payments by the assignee will keep alive the action on 
 the covenants against the mortgagor {n). 
 
 (A) 20 A. K. (id (1802), rovorsing 21 O. K. 571; Osier, J.A., dis- 
 senting. 
 
 (/) At p. 80; citing Tit-win v. Wilson, supra. 
 
 (m) Ntnvbould v. Smith, 33 Ch. J). 127 (188(i). 
 
 («) Dibb V. Walker, [1893] 3 II. 474; 2 Ch. 429. 
 
■o^ 
 
 h 
 
 REAL I'llOPEUTY LIMITAriON ACT. 
 
 329 
 
 )V 
 
 , ilis- 
 
 Payments by Texant for Life of the Equity. — 
 See liai'clay v. Owen (o). 
 
 Effect of I'aymext, etc., nv Oxe Joixt Owxek 
 OF Equity. — See rears y. Lanjf (/;), followinj; Kodilam v. 
 Morley (q), where it was held that " where a part pay- 
 ment or payment of interest has been made wliich has 
 tile etVect of preserving any right of action, that right 
 will be saved, not only against the party making the 
 payment, but also against all other parties liable on the 
 specialty. 
 
 Agext to Pay Ixtf.rest. — Payments by one Avho 
 some time previously had acted as solicitor for the per- 
 son in ])ossession will not necessarily bind such person 
 without further proof of agency (/). 
 
 Pavmi:xt to Secoxd Moktgacjee by Solicitor of 
 First [Mortgacee. — Tuv/i-ne v. Ilurd (*), was a rather 
 curious case, where the tirst mortgagee sold under power 
 employing his solicitor to conduct the sale. The sur- 
 plus was taken to himself by the solicitor, who ke])t pay- 
 ing the interest to the second mortgagee as if the second 
 mortgage were still existing. After the statutory 
 j)eriod had run, the solicitor became bankrupt, and the 
 second mortgagee sought to assert that these payments 
 of interest kept the charge alive as against the lirst 
 
 (o) (iO L. T. 2l'3 (l.SSit), mortgage kopt alivo l>.v i)aynient by 
 toiiiiut for litV; (Jrcgson v. lliiullfy, 1(t .liii-. [iS'6 US4(;i. t'ftVot uL' 
 ti'iiaiit foi' lifo iulinittiii),' tli;it iiaynu'iits iiuule; I.uftus v. Swift, 
 li Sell. & Li'f. (i4l.' (ISCMJi. liiflifs of iiiortgiigci' lis UKaiiist Iciiinit 
 for life do not projiuliro iiiorlKiigci' as against ri'inaindt'rnian, fol- 
 lowed in Wrixou v. Vize. li l>r. iV: \Yar. •Jo:i (1SH.»). See fnrtlier, 
 Beelu'tt V. De la Conr, 11 L. U. Ir. ]ST. in Ke Fitzniaurice, 15 Ir. 
 C. I.. 11. 445. 
 
 (;>) li. K. 12 E(i. 41 (ISTli. See also Toft v. Stephenson, 1 D. 
 
 i\r. & a. 40. 
 
 iq) 1 De (J. &. .T. 1 (IS.")?!, but where tiie porlions ai-e sejiai-ahle, 
 see Dickinson v. Teesdah>, 1 D. J. iV S. '>'2 (ISCii:). devise sniiject to 
 eharge oi" dilits of one part to A. and another to B.. and iia>nient 
 by A. 
 
 0) Xewhonid v. Smith. ',][) Chy. D. V2' ilSSC); see 14 App. Cas. 
 423. This ease fnrther deals with the (inestion how far a iiayni'-nt 
 of interest entered in a diary by th.> deeeased mortgagee is after- 
 \\nrds admissible as a i»roof to prevent the enrrency of tlie stiitute. 
 
 (a) L. II. [181)3] 3 Ch. 530. 
 
 i 
 
 m 
 
 'f- U\ 
 
 
380 
 
 FOUECLOSUItE Ol" MOllTGAGES. 
 
 ': 
 
 ■: i 
 
 mortgagee. The Court, however, held the second mort- 
 gagee barred. 
 
 Pavmknt of Interest to Mortgagee — Third Per- 
 son IN Possession. — " Tlie defendant's counsel contend 
 that the enactment must be confined to the case where 
 the mortgagor has himself been and continued in pos- 
 session of the mortgaged ])i'einises, or might himself 
 maintain an ejectment against a tenant in possession; 
 and we are told that its object was to remove a doubt 
 whelhci', where the mortgagor had been allowed to rt?- 
 main in i)ossession more than twenty years after the 
 forfeiture of the mortgage by default in repaying the 
 mortgage money, although the interest on the mortgage 
 continued to hv, regularly paid, the mortgagee could 
 maintain an ejectment against the mortgagor or his 
 tenants, lint we must learn the object of the Legisla- 
 ture from the language of the statute; and it clearly 
 appears to have been, to nuik(^ mortgages an available 
 security, where they wim'c good and valid in their in- 
 ception, and the moi-tgagee. having received payment 
 of his interest, cannot be charged with any laches "'(/). 
 
 1)11 TKRI'IXCK UeTWEKN ]*AVME\T AND ACKNOW- 
 
 ledgmknt. — "It must be remembered that payment and 
 acknowledgment are two vei'y ditl'erent things. As re- 
 gards the })erson making them, acknowledgment may, 
 as jtointed out in liolding v. Lane (»), be made by a per- 
 son who, thotigh a party to the mortgage contract, has 
 ceased to have any sui)stantial interest in it, and has 
 nothing to lose by the acknowledgment; whereas, pay- 
 ment is certain to be made only by those who have some 
 duty or interest to pay. As regards the recipient, so 
 long as he is paid accoiding to the intention of the con- 
 tracting i)arties, he is in full enjoyment of his bargain, 
 
 (0 T.onl ("iiinphfll in Doo V-.xhwv v. Eyiv. 17 Q. B. oCO (1851), 
 S'iotcd in Hooker v. .Morrison. -'S (Jr. liTA (ISSl). Soo also Chiini- 
 hx-lain v. Cliirk. ib. 4r.(; (ISSl); Ford v. A^or. 2 ll. & C. 270 (I8ti3). 
 '■ "^ Rpc HcnmiinK v. Hliiiiton. 42 L. J. C. 1*. l."»S, payment after 
 li ;<«(' of period. 
 
 ill) 1 Do <J. .T. & S. 122. 
 
'^m 
 
 HEAL PROrEllTY LIMITATION ACT. 
 
 :v.n 
 
 and is not put upon any further assertion of his ri^jhts, 
 but not so if lie only receives acknowlcdfrmcnt. Jf. 
 tlierefoi-e, we find that the Lefiishiture lias used dilVerent 
 lanf,MU\«;e about the two eas<\s we must no( readily con- 
 clude tliat it has done so by accident or without mean- 
 ing' it "(/I. 
 
 IJv Whom A(.k\()\vi.k])(;mk\t May Be Uivkx.— 
 *'A11 (hat the Act reipiires is tliat sonu' acknowledji-- 
 nu'ut of the ri-ht to (he sum claimed shall have been 
 «iven in wridiij.'. sijined by (he person who represen(s 
 the estate out of which it is payable, «.r bv his aj-ent (>/•). 
 Thus an acknowledgment RivcMi j,y ,, (rustcc or his ajient 
 is su((ici<.nt ((> bind the (rust es(ate althouj.ii such ac- 
 knowledj«inent will not imj.osc upon (he (rus(e(' anv per- 
 sonal liability "(,»■). 
 
 AcKN-OWI.KIXiMKXT liV TkXANT FOR Ll FK.— See He 
 
 FKzmaiM'ice (i/). 
 
 AdKXc V. Proof o,,-._\vhile by sec{i()n LM (he ac- 
 knowledynient Kself must be in wridu}.-, it is not neces- 
 sary (or the authority of the a-ent to be a writ(en au- 
 thority. - The (piestlon of whether a person is an aj^ent 
 of th.. debtor, havino- authorKy (o nnike an acknow- 
 ledj-nient on his behalf is usually a mere (|ues(ion of 
 fact(:), but somedmes such aj^cncy will l)e inferred from 
 the reladon be(ween tlu^ par(ies, or oth.-r circum- 
 stances " (f/). 
 
 AcKxo\vLFi)(;MK.\rs TO Whom •/_>< The next cpu'S- 
 tion is whed.er i( is an acknowledgment to the j.ers.m 
 entitled thereto or his a-ent. The cases sliow that the 
 
 "■• I'«'wiii V. Wilson, tl Api.. Cms. C-J.". (ISSC). 
 ("•) J.onl St. .Tolin v. l?(inj,'lifoii, !l Sim. L'L'.". (1,s;}8). 
 
 •» ri 1 r •, • ''""■";-\ '" "•"^"■"- '«"t «'■" Asttmry v. Astl.urv, ISi.S. 
 - » M. 111. .•icknuwlwUMnci.t l,.v f tw,, ..xecutors 
 
 Jr. ISt.'"' ^'■" ^'''- ^'- ■*"'•'= "■" "''" '^''•'^'■" '■■ '•" '=' <■•""•• 1' I- li- 
 
 (z) CitinyUcw V. I'ctt.'t. 1 A'l. & E. loc, 1<)!» 
 
 W-"\,Vrn"^ "" ^^J"'";'"""^' ■♦I- '•"'"^' <:nV'c.Vv. Parkor. 1 Camp 
 
 ; I'' 
 
i-li 
 
 !! » 
 
 il I 
 
 i 
 
 
 ! 
 
 
 ■ 1 1 
 
 
 
 ■ -*^ 
 
 \ 
 
 832 
 
 FOllECLOSUUE OF MORTGAGES. 
 
 Court lias not, in that respect, rostrictcd itself within nar- 
 row limits. If it be made in a schedule!/^), aflidavit (c), 
 or jinHwer it is suflicient, altliou};h it may be naid tliat in 
 tiiose eases it is made to the Court and not to the jiarty. 
 The decisions are, I thinli, rij^ht; they proceed u]t<ui a 
 liberal, but yet a fair and just construction of the 
 statute" (//). 
 
 Will Ackxowlkdc.micnt to Moutc.ac.or uy Thikd 
 Phrson IX Possession' Save M(jhtc.a(;i:i:? — An acknow- 
 ledgment of title by a person in possession of land, given 
 to a mortgagor, is sullicient t(» ])revent the occupant 
 acquiring title under the statute, so as to bar tlu' rights 
 of the persons entitled, Fov tiiis purpose it is not 
 necessary that the iiMU'tgagor shouhl be acting as agent 
 of tlie mortgagee; the moi'tgag(»r f(M' such i)nrpose is a 
 person entitled under the statute (/')• 
 
 Ack\()\\i.i:i)(;mext, How Made. — I.y will, see Mil- 
 lingtou V. Thompson (/'). liy correspondence, »Ioslin v. 
 S. E. K. Co. ((/). 
 
 AcKxowi.i'.ncMEX'i' MrsT r.E Ixti:xtioxal. — There 
 is autlnu'ity for the i)i'opositi()n that for an acUnowh'dg- 
 inent to take a demand out of the statute it must appear 
 to have been nuide with a. view of rendei'ing tiie jiarly 
 making it liable to the demand, and it must have been 
 made to the party entitled to make the demand. Thus 
 where certain letters luul been written by one executor 
 not foi" the })urj)Ose of charging himself, but of throwing 
 the burden of payment on the co-executor, they were 
 held not an acknowledgment (//). 
 
 (b) Cf. BiiiTctt V. Rinuiiinh.'uii. 4 Ir. E(i. U. '>'M; Morroii^'h v. 
 Power, r> Ir. L. It. 4!»4; Iliiiicii v. Tower. S Ir. L. r)().".. 
 
 (r) Cf. Tristriun v. Ilarte. 1 Loiij: & T. ISC. 
 
 (d) Blair v. Xiijieiit. .*? .7. & L.-it. CTT (1S4(i). Snj,'(k>ii, L.C. 
 
 (c) Hooker v. Morrison, 28 CJr. 3(it» (ISSl). 
 
 if) 3 Ir. Ch. It. 23(5. 
 
 (o) r> D. ]M. & r,. 270 (lS.-)4). Cf. Vincent v. Willington. 4 Lonp. 
 & T. 4.^)(>. 
 
 (h) HoUiUKl V. Cliirk, 1 Y. & Coll. C. C. 1.-)l (1S42). moreover 
 llio letters were nddressed to the hnsbiuul of the party entitled 
 (leeeased) hefore he had taken out adininistration. Cf. Crenfell 
 V. Glrdlestone, 2 Y. & Coll. (570. 
 
■ ^ 
 
 y 
 
 Ml 
 
 lis 
 
 'I'O 
 
 V. 
 
 tor 
 Ml 
 
 HEAL PROPERTY LIMITATION ACT. 
 
 :}3:J 
 
 MOUTGAGOK AND MoUTdAClilJ TIIK SaMK. — St'C 'I'op- 
 
 luim V. Booth ((■). 
 
 Ei'i'!:cT oi" 1ns()I.\i:xcv of MoRTCAf.oK. — III Court v. 
 Walsh (y) it was argued that the «'llVtt of tlic Insolvency 
 of the luorl^a^oi- was to suspend the runninj;' of the 
 Statute of Limitations, and that the assignee became a 
 trustee for the henelit of all creditors. This was an- 
 swered by Hoyd, ('.: "To this T (juite aj^ree so far as the 
 |mortj;aj;ee| is a ci-editor under his covenants in liie 
 niort<;a}i'e, but it does not follow that the lien and secnr 
 ity of liie inoi'tj;a}i;ee on the land mortj;ajied is aiVected 
 by the insolvency. On (he contrary the reverse has 
 been held in Henderson v. Kerr, '2'2 (Ir. 1)!. and (here is 
 nothinji' in the facts of (his case to lead me to de|)art 
 from that audioritv. " 
 
 LucATi:i:s of tiik Ckowx — IOffixt of Issri'; oi- 
 Patents to ^[oKTr.AdoR ok Mort(;a(;i'.i:. — In Watson v. 
 Lindsay (/.), a locatee of the Crown nior(<;a^('d (he land 
 before (he issue of the patents. The <lilVeren( ell'ec(s of 
 issuinji the patents to the niort<;aj;or's representative 
 and to the niortffaji'ee are shown in (he judjiuient of 
 Osier, .I.A.: " Tln^ ]»lain(ilT"s counsel wei'e obli<;-ed (o 
 admit (hat as between mor(j;aji'ee and nioi'(^aj;'or (he 
 Statute of LiniKations was runninjf ajiainst Ihe formei- 
 before the patent was issue«l, so (hat if the full ]teriod 
 has elai)sed befoi-e the event hajipened, the i)laintitT 
 would have been wKhout remedy. If, indeed, (he pa(en( 
 had been issued (o (he ]»lain(ilV, (lu' moi-(j;a^ee, die 
 [)ossesslon of the mortjiajior would have been of no 
 avail to the latter, as lie co\ild not have been acfpiirin;^- 
 a tith^ by jiossession a;xainst the Ci'own or (he ^rau(ee 
 of the Crown : damieson v. TTacUer, IS V. C. 15. HOO : 
 
 a) ;?r> rii. d. cot nssit. rr. AVynno v. siIkmh. 2 riiiii. :*.(».", 
 
 (1S47). f.Msc wlicrc UKirlKiip'c iilso tiMKint for liCc; Biiiiis v. Nidiols, 
 Tj. R. 2 E(|. L'ri<! (ISOti). its to k'piie.v, whore It'Kiiti'c iind executor 
 tlio same iicrson. 
 
 (i) 1 O. 1{. 170 nSS2): .Mmrmod. !1 A. T{. 294 (ISS.".). Tf. byiill 
 V. Fluk«>r. ISia. W. X. 208, iicknowk'dgnu'iit by insolvent ixfWr 
 nssipnnu'iit. 
 
 a) A. R. 01 S (1881). 
 
 1 
 
 ir 
 
p!i 
 
 334 
 
 FOUECLOHURE OF MOUTOAGES. 
 
 Dowsctt V. Cox, i8 V. (\ }{. r)J)4; li«'^'ina v. Wisnicr, G 
 U. C. K. L'D:?; .Tat'kson v. Vail, 7 Wciid. 125; Cliilos v. 
 Calk, 4 nitt. (Kj.) T^U. Tlie land, however, was ffrantcd 
 to tho [)t'i'son in poHSt'swion, tin? icprcscnialivc of the 
 nioi'tsiiKoi', in whose favonr the statnte was admittedly 
 rnnnin}*'. On what idinciple, then, can that avoid the 
 Ktatute?" 
 
 21. No action, or other proceeding shall bo brought to 
 recover any sum of money or legacy charged upon or payable, out 
 of any land or rent, and secured by an express trust, or to recover 
 any arrears of rent or of interest In respect of any sum of money 
 or legacy so charged or payable and so secured, or any damages 
 in respp(;t of such arrears, except within the time within which 
 the same would be recoverable if there were not any such trust. 
 R. S. O. 1887, c. Ill, s. 24. 
 
 iv\i..\R(;i;.\ii;\T hv Exprkss Tur.sTS. — The former law 
 as to the erteet of exi)ress trnsts in relation to the 
 Statnte of Limitations will be fonnd in Lawton v. Ford 
 (/), in which it was tontended that certain terms when 
 created contained ex})ress trnsts; bnt that the express 
 trnsts beinj;- discharj.ied, the terms remained not as 
 trnst terms bnt as m(»rtj;af;'e terms, and, therefore, the 
 savinjj: as to an express trnst did not apply. The Court, 
 however, held that tin* statnte conld not rea<'h the terms 
 ^lnder the law as settled by the cases. The present sec- 
 tion removed what was felt to be a ftreat anomaly (m). 
 
 Effect of Trl'st for Salic a\d Payment of Debts. 
 — Where a testator j^ave all his property to trustees 
 " upon trust to sell and coniert the same into money, 
 and after payment thereout " of his just debts, etc., to 
 divide the same, etc.; and also declared that his real 
 estate was to be considered personalty from the time of 
 his death, a claim was made for a debt more than six 
 years old and less than twelve (the English period of 
 limitation for realty) and the question arose, what 
 
 (0 L. R. 2 Eq. 97 (18G0). 
 
 (m) See ib.. at p. lO."*. See also Hncles v. Coles. 27 Ch. D. 2.'^t 
 (1884): Edwards v. Warden, L. R. 9 Ch. 495 (1874); Fearnslde v. 
 Flint, 22 Ch. D. 579 (1883). 
 
REAL I'llOPEHTY LIMITATION AC'I', 
 
 385 
 
 Statute of LiinitiUioiis {^ovi'incd. Kay, .1., said: ''I can 
 have no doubt, whati'v«'r, that by tliis will, at least a 
 charjit', if not an cxitit'ss tniist, is trt'atcd for payment 
 of debts out of the inoceeds of tlie real estate, and it is 
 indilTerent now, as I have said, whether it is a ('har}i,(( or 
 a trust, because under the recent Act the time of 
 linutation is the sanu*, viz.: [twelve] years, whether it 
 be a charffo or a trust. . . . There nuiy renmin an- 
 other (|uestion upon which I will not ^ive an opinion 
 now. Accordinjj; to the series of cases which were con- 
 sidered in Allan v. CJott (/(), such a diiection as there 
 is here would nuike the debts payable ratably out of 
 the real and personal estate. It is (piite open to argu- 
 ment whether such part of the debt as in [iroperly 
 attributed to personal estate ouj;ht not to be consideretl 
 to be barred ('0- 
 
 Ito 
 
 [al 
 
 of 
 
 lix 
 of 
 at 
 
 V. 
 
 KlJl'lTALiLI': fl-AIM.S. 
 
 ito. — (1) Where any land or rent is vested in a trustee upon 
 any express trust, tlie rigiit of the cestui que trust, or any person 
 claiming tlirough liim to bring an action against tlie trustee or 
 any person claiming througli him, lo recover such land or rent, 
 shall be deemed to have fu'st accrued, according to thi- meaning 
 of this Act, at and not before the time at which such land or 
 rent has been conveyed to a purchaser for a valuable considera- 
 tion, and shall then be deemed to have accrued only as against 
 such purchaser and any person claiming through him. 
 
 (2) Subject to (he provisions of section 32 of the Trustee 
 Act, no claim of a cestui que trust against his trustee for any 
 property held on an express trust, or in respect of any breach uf 
 such trust, shall be held to be barred by any Statute of Limita- 
 tions. R. S. 0. 1887, c. Ill, s. 30. 
 
 Mortgagee i\ Possession, How Far a Trustee.— 
 A mortgajijee in possession is not in a fiduciary relation 
 
 in) L. I{. 7 Ch. 439. 
 
 (o) Re Stephens, Warburton v. Stephens. 43 Ch. D. Hf) (1S80) 
 Seo riayfair v. Cooper, 17 Bear. 187 (1853), as to legacies payable 
 out of personalty. 
 
830 
 
 FOIIECLOSUUE OF MOIITOAGES. 
 
 in nny such scuso as to make him a tniHtce within sec- 
 tion 'M) ii>). 
 
 MnuTCAcv. MY Way of Trtst rou SAr.i:. — A mort- 
 jfiifji' takinj; Iho fot-ni of a ti'ust for sah' is treated as a 
 niorlfjaj^e and not as an express trust; so that seelion 
 1!) applies (7). 
 
 F^. S. O. 1897. CHAPTER 134. 
 
 The Vendors and Purchasers Act. 
 
 « 
 
 3. In the completion of any contract of sale of land made 
 after the 10th day of Fel)rnary, IKTt!, the rlRhts and idjliRations 
 of vendors and purchasers shall (subject to any stipulation in 
 sucli contract to the contrary) be regulated by the following 
 rules, namely: — 
 
 (2) Registered memorials of discharged mortgages shall bi' 
 sufficient evidence of the mortgages without the production of tho 
 mortgages themselves, unless and except so far as such mem- 
 orials are proved to be inacc.irate; and the vendor sliall not be 
 bound to produce the mortgages unless they appear lo be in his 
 possession or r.ower. 
 
 ' 
 
 R. S. O. 1897, CHAPTER 137. 
 
 An Act respecting the Custody of Title Deeds. 
 
 
 9. (1) A receipt for payment of moni y made on any regis- 
 tered mortgage, bond, agreement, lease or any other rotjistered 
 instrument, may be deposited in the registry office in which the 
 original insii iinT<'nt is registered, but it shall not be necessary to 
 deliver any requisition with the receipt, or to pay any fee for de- 
 positing the same or the entries in respect thereof, except the sum 
 of twenty cents. 53 V. c. 31, s. 1. 
 
 (/>) See Ilickninn v. XIpsall, 4 Cli. D. 144 (ISTC), account of 
 rents and profits. 
 
 ((/) See Re Alison, Johnson v. IMonnsey, 11 Ch. D. 284 (1879). 
 See also Sands v. Thompson, 22 Ch. D. G14. 
 
I 
 
 LAND TITJ.ES ACJ'. 
 
 33; 
 
 i j 
 
 m 
 
 R. S. O. 1897, CHAPTER 1^8. 
 
 The Land Titles Act. 
 
 8.-(l) Any pers.m holding land on t.„st for sale, and any 
 rusteo, mortgage., or other i,or«<,n having a power of selling 
 land may authorize the purchaser to make an application to he 
 reg stered as first owner with any title which an owner is author- 
 ized to he registered with under this Act, and may consent to the 
 por orn.ance of the contract heing conditional on his helng so 
 
 mnselt apply to he registered as such owner with the consent of 
 l.e persons (if any) whose consent is required to the exercise hv 
 the applicant of his trust or power of sale. 
 
 (2) A mortgagee having a nower of selling land as aforesaid 
 may appiy to have the mortgagor or other person owning the 
 enuity of redemption registered as owner, with any title as afore- 
 
 (3) The amount of all costs, charges, and expenses properly 
 ncnrred hy such person, in or ahout the application, i.a 1 he 
 
 ascerta,ned and declared hy the Master of Titles, and .h he 
 Ueemed to he costs, charges, and expenses properly incurr d b; 
 
 wer r '" T "'""'°" '' ''' ^'"^^ °'' ^'^ P"— « Of hil 
 Hmself out of any money coming to hi„, under the trust or 
 power and he shall not he liahle to any account In e u I 
 respect thereof. R. s. O. 1887, c. UG, s. 8. 
 
 Mortgage by Administrator.-WIu.o A. an aclnnn- 
 
 tralnx moiigaged proDorty of the intostato, of which 
 
 She Avas the rosistered owner under the Act, to 15 <„ 
 
 pay her own debt to B. Held, that IVs. title wasnot 
 
 acquired by fraud, and could not be defeated (r). 
 
 Cases, ^'L!^r>^^ '' ^- ''■ ^'' - "-*-'« Torrens Title 
 H.F.jr.— 22 
 
 m 
 
 1 1 1 
 

 i 
 
 i ' 
 
 
 i 
 
 1 ' 
 
 } \ ■ 
 
 
 ii' 
 
 
 ■ 
 
 1;. i 
 
 i: " 
 
 
 llr 
 
 
 111:; 
 
 iii: 
 
 
 
 !^ 
 
 . 1 ; . ■ 
 
 
 
 
 
 1 
 
 
 
 1 
 
 1 
 
 - 
 
 i 
 
 yL 
 
 338 
 
 rOUECLOSUllE OF MOHTGAGES, 
 
 29.— (1) Where land is registered under this Act subject to 
 mortgages existing thereon at the time of the first registration 
 thereof, the mortgages shall be mentioned in the register of the 
 land in the Land Titles Office, in the same order as they are re- 
 gistered in the Refjistry Office, if such mortgages have been so 
 registered, or the dates of the respective registrations thereof 
 shall be stated; but this shall not be taken as an affirmation that 
 such mortgages rank in the order in which they were registered, 
 or in the order in which they are mentioned as aforesaid. 
 
 (2) Abstracts of all instruments dealing with such mortgages 
 shall thereafter be entered in the register of the land in the Land 
 Titles Office, and the entry thereof shall be deemed the registra- 
 tion of the instrument, and the rights of the parties interested or 
 c'aiming to be interested in any such mortgage, so far as it 
 affects land under this Act, shall, subject to sections 13 to 16 
 and 45 to 48 of this Act, be decided under the registry law, as if 
 the registrations in the Office of Land Titles had been made 
 under the Registry Act. 56 V. c. 22, s. 2. 
 
 ISO. — (1) Where, upon the first registration of land, notice of 
 any incumbrance affecting such land has been entered on the 
 register, the Master of Titles shall, on proof to his satisfaction of 
 the discharge of such incumbrance, notify in the prescribed man- 
 ner on the register, by cancelling the original entry or otherwise, 
 the cessation of such incumbrance. R. S. O. 1887, c. 116, s. 25. 
 
 (2) On the requisition or certificate of a mortgagee, whose 
 mortgage was entered on the register on the first registration of 
 the land, or the registered assignee thereof, or of the personal repre- 
 sentative of such mortgagee or assignee authorizing or certifying 
 the discharge of any part of the land therefrom or the discharge 
 of any part of the money thereby secured, the Master may note on 
 the register the discharge of such land from the mortgage, or the 
 dis ^arge of such part of the money aforesaid. 56 V. c. 22, s. 6 
 (2). ; art. 
 
 33.— (1) Every registered owner of land may, in the pre- 
 scribed manner, charge the land with the payment at an ap- 
 pointed time of any principal sum of money either witli or with- 
 out interest, or as security for any other purpose, and with or 
 without a power of sale to be exercised at or after a time 
 appointed. 
 
■wpl 
 
 ,1 
 
 ■3 
 
 LAND riTLKS ACT. 
 
 339 
 
 lose 
 li of 
 |pre- 
 ing 
 rgo 
 on 
 the 
 s. 6 
 
 >re~ 
 ap- 
 
 Hth- 
 or 
 
 Lime 
 
 (2) The charge shall be completed by the Master of Titles 
 entering on the register the person in whose favour the charge 
 is made as the owner of the charge, and the particulars of the 
 charge, and of the power of sale, if any. 
 
 (3) The Master of Titles shall also, if required, deliver to the 
 owner of the charge a certificate of charge, In the prescribed 
 form. 11. S. O. 1887, c. 116, s. 28. 
 
 Forms or Mor'ihi.agk. — Equitable mortgago by do- 
 posit. See I'luiupton v. IMuiiipton (.x). 
 
 Mortgage by absoltite deed. See Watson v. Royal 
 Permaiu'iit ISiiilding Society (/). 
 
 Odligatiox in Mortgage as to Particular Uses. — 
 See Mayor and Corporation of Brnnswiclc v. Dawson (?/). 
 
 Fi.\TiR]:s Covered by Mortgage. — See Anstral 
 Otis Co. (Ltd.) V. Andrew Kerr & Co, (Ltd.) (r). 
 
 ;H, — (1) Where a registered charge is created on land, 
 there shall be Implied on the part of the person being the regis- 
 tered owner of the land at the time of the creation of the charge, 
 his heirs, executors and iidministrators (unless there be an entry 
 on the register negativing the implication,) as follows: — 
 
 1. A covenant with the registered owner for the time being 
 of the charge to pay the principal sum charged, and interest, if 
 any. thereon, at the appointed time and rate; and all taxes, rates, 
 charges, rents, statute labour or other impositions theretofore 
 or thereafter imposed or charged on the land, and that in case of 
 dtfault all payments made by the owner of the charge may be 
 added to the principal, sum and bear interest. 
 
 2. A covenant, if the principal sum or any part thereof Is 
 unpaid at the appointed time, to pay interest half-yearly at the 
 appointed rate on so much of the principal sum as for the time 
 being remains i;npaid. 
 
 (2) Where any charge, whether under seal or not, is ex- 
 pressed to be made in pursuance of the Act respecting Short 
 Forms of Mortgages, or refers thereto, and contains any form 
 of words co'itained In clauses numbered 1, 2, 3, 7, 8, 12, 14, 15 or 
 
 ( ^ 11 Y. L. II. 733; Torrous Title Cases, Vol. I. 495. 
 U) 14 V. L. R. 2S3; Torrcns Title Cases, Vol. I. 185. 
 (it) r> V. L. 1{. (K.t 12: Ton-ns Title <'iises. Vol. I. 179. 
 (v) 12 A. L. T. 108; Torrci.s Title Cases, Vol. I. 390. 
 
 1^1 
 
 [ i 
 
"F" 
 
 rM 
 
 
 m In 
 
 340 
 
 FOHECLOSUUE OF MORTGAGES. 
 
 16, of column one, of Schedule B, to the last mentioned Act, or to 
 the like Effect, whether expressed in the first or third person, 
 such words shall have the same meaning and effect as the words 
 under the corresponding number in column two in the said 
 schedule; the directions in the said schedule shall also apply to 
 the said charge. R. S. O. 1887, c. 116, s. 29. 
 
 Construction of Implied Covenant. — See Wilkes 
 V. Kennedy (w). 
 
 Mortgagor's Right to Quiet Enjoyment. — See 
 Commercial Bank v. Breen (.r). 
 
 Mortgagor's Transferee Not Liable. — See Aus- 
 tralian Deposit and Mortgage Bank v. Lord (?/). 
 
 ?I5. Whore a registered charge is created on any leasehold 
 "land, there shall be implied on the part of the person being the 
 registered owner of such leasehold at the time of the creation of 
 the charge, his heirs, executors and administrators, unless there 
 be an entry on the register negativing the implication, as 
 follows: — 
 
 1. A covenant with the registered owner for the time being 
 of the charge, that the person being registered owner of such 
 leasehold at the time of the creation of the charge, his executors, 
 administrators and assigns, will pay, perform and observe the 
 rent, covenants and conditions by and in the registered lease 
 reserved and contained, and on the part of the lessee to be paid, 
 performed and observed; 
 
 2. And will keep the owner of the charge, his heirs, executors 
 and administrators, indemnified against all actions, suits, ex- 
 penses and claims, on account of the non-payment of the said 
 rent, or any part thereof, or the breach of the said covenants or 
 conditions, or any of them. R. S. O. 1887, c. 116, s. 30. 
 
 30. Subject to any entry to the contrary on the register, 
 the registered owner of a registered charge may, for the purpose 
 of obtaining satisfaction of any moneys due to him under the 
 charge, at any time during the continuance of his charge, enter 
 upon the land charged, or any part thereof, or into the receipt 
 of the rents and profits thereof, subject nevertheless to the right 
 
 (IP) 10 r. n. 204. 
 
 ((t) 15 v. L. R. 572; Torrens Title Cases. Vol. T. 407. 
 
 (V) 2 V. L. R. (L.) 31 ; Torrens Title C!aso8, Vol. I. 18«<. 
 
'^J 
 
 LAND TITLES ACT. 
 
 341 
 
 N 
 
 of any persons appearing on the register to be prior incum- 
 brancers, and to tlie liability attached to a mortgagee in posses- 
 sion. R. S. O. 1887, c. 116, s. 3L 
 
 Tenants of Mortgagor. — See Colonial Bank of 
 Australasia v. Kabbage (j); Loueb v. Ball (a); Taylor v. 
 Wolfe & Co. {b). 
 
 37. Subject to any entry to the contrary on the register the 
 registered owner of a registered charge may enforce a foreclosure 
 or sale of the land charged, in the same manner and under the 
 same circumstances in and under which he might enforce the 
 same if the land had been transferred to him by way of mort- 
 gage, subject to a proviso for redemption on payment of the 
 money named at the appointed time. R. S. O. 1887, c. 116, s. 32. 
 
 38. Subject to any entry to the contrary on the register, the 
 registered owner of a registered charge with a power of sale may, 
 at any time after the expiration of the appointed time, sell and 
 transfer the land (that is, the interest therein, which is the sub- 
 ject of the charge), or any part of such land, in the same manner 
 as if he were the registered owner of the land, to the extent of 
 the interest therein aforesaid. R. S. O. 1887, c. 116, s. 33. 
 
 Extinguishment of Mortgagor's Title ry Sale or 
 Foreclosure. — See National Bank of Australasia v. 
 Tbe United Hand-in-lland Co. (r); In re Sniitb ((/). 
 
 Notice of Sale to Mort(;agor. — See McDonald v. 
 Rowe (c); Gunn v. Land Mortgage liank of Victoria, 
 Limited (/'); National Bank of Australasia v. Tbe United 
 
 k) .") V. L. R. (L.) 4(VJ; To.ons Title C:isc?, -JIS; luisition v ith 
 retran! to niortminee. 
 
 («) ") A'. L. R. (L.) 1.-.7; Torrcns TitK> Cases, 42!). 
 
 (fe) 18 V. L. R, 727; Torreus Title Cases, 404; consent of mort- 
 g.'ipee to iU'tion by niortfraKor. 
 
 ('■) L. R. 4 A. C. oDl; interest passes only on rejjistrntion. 
 
 ((/) l.~> A. li. T. 85; Torrens Title Cases, Vol. I. r..^8. 
 
 (c) .3 V. R. (E.) 143; Torrens Title Cases. Vol. I. 238; notice 
 l)y niu-enistered letter; contents of notice; purchaser not bound to 
 inquire into notice. 
 
 (f) 12 A. L. T. 49; Torrens Title Cases, Vol. I. 229; notice to 
 deceased proprietor. 
 
 St 
 
 'm 
 

 
 "r 
 
 
 ft 
 
 
 
 it 
 
 
 W 
 
 ! 
 
 
 ill 1 
 
 
 P 1 1 
 
 
 11 ■ 
 
 
 
 1 
 
 ■If 
 
 (M 
 
 1.^ i 
 
 342 
 
 B'OllECLOSUUE OF MOUTCAGES. 
 
 Hand-in-Hand Co. (</); Matliieson v. The Mercantile, 
 Finance and Agency Company, Limited (/t). 
 
 Stay of 1'koceedings by Tender. — See Hervey v. 
 Ingles (0- 
 
 30. Subject to any entry to the cctntrary on the register, re- 
 gistered charges on the same land shall as between themselves 
 rank according to the order in which they are entered on the 
 register, and not according to the order in which they are 
 created. R. S. O. 1887, c. 116, s. 34. 
 
 40. — (1) Tho Master of Titles shall, on the requisition of ilie 
 registered owner of any land, and on duo proof of the satisfaction 
 of a charge thereon, or may on the requisition of the registered 
 owner of a charge or of his personal representative or on his 
 certificate of the satisfaction thereof, notify on the register in 
 the prescribed manner, by cancelling the original entry or other- 
 wise, the cessation of the charge; and thereupon the charge shall 
 be deemed to have ceased. R. S. O. 1887, c. 116, s. 35 (1); 56 V. 
 c. 22, s. 6 (1). 
 
 (2) The Master of Titles may in like manner notify the ces- 
 sation of any other incumbrance. R. S. O. 1887, c. 116, s. 35 (2). 
 
 (3) On the requisition or certificate of the registered owner 
 of ,a charge, or of the personal representative of such owner 
 authorizing or certifying the discharge of any part of the land 
 therefrom, or the discharge of any part of the money thereby 
 secureJ, the Master may note on the register the discharge of 
 such land from the charge or the discharge of such part of the 
 money aforesiiid. 56 V. c. 22, s. 6 (2), part. 
 
 ORD]i:R Directing Local Master to Notify Cessa- 
 tion OF Charge. — See Thibaudeau v. Miller (/). 
 
 50« Where registered land is transferred subject to a charg-^, 
 or in case the registered owner of land which is subject to a 
 charge subsequently marries, the wife of such transferee or 
 owner shall have the same rights in respect of dower as she 
 
 ((/) L. R. 4 A. C. 391; defects in notice; mortgage payable on 
 demand. 
 
 (h) 17 V. Ti. R. 271; Torrons Title Cases, Vol. I. 478; notice 
 of sale before registration. 
 
 (<) 5 W. W. & A'B. (R.) 125; Torrens Title Cases. Vol. T. ?,'M 
 
 (j) Before Cnrtwright, R., acting for Master in Chambers, 
 June 30th, 1897. 
 
!1 
 
 LAND TITLES ACT. 
 
 343 
 
 ;a- 
 
 or 
 ;he 
 
 on 
 ice 
 
 ■would have had if the legal estate had been transferred by an 
 ordinary mortgage and no others. 56 V. c. 22, s. 3. 
 
 ,"57._il) The registered owner of a chargo may, in the pre- 
 scribed manner, transfer sucli chargo to another person as owner. 
 
 (2) The transfer shall bo completed by the Master of Titles 
 entering on the register the transferee as owner of the charge 
 transferred. 
 
 (3) The Master of Titles shall also, if required, deliver to 
 the transferee a fresh certificate of charge. 
 
 (4) The transferor shall be deemed to remain owner of such 
 chargo until the name of the transferee is entered on the register 
 in respect thereof. R. S. O. 1887, c. 116. s. 47. 
 
 (.5) The registered owner of a charge may transfer a part of 
 the sum secured by the charge; and the part so transferred may 
 be given priority over the remaining part, or may be deferred, 
 or may continue to rank equally with it, as may bo stated in the 
 transfer. 53 V. c. 32, s. 6. 
 
 ftO. On the death of the sole registered owner, or of the sur- 
 vivor of several joint registered owners of any leasehold land or 
 of any charge, the executor or administrator of such sole deceased 
 owner, or of the survivor of such joint owners, shall be entitled 
 to be registered as owner in his place. R. S. O. 1887, c. 116, s. 50. 
 
 66. Unless where proceedings are (in the ra.se of a mortgage 
 or charge) taken under section 23 of the Execution Act, ihe 
 seizure of a mortgage, charge or leasehold land registered under 
 this Act, under any execution or othei writ, shall not affect the 
 same until the sheriff or other officer has lodged with the proper 
 Master of 'I'itles a certificate that he has taken such mortgage, 
 charge or leasehold land under an execution against the regis- 
 tered owner thereof; and such certificate shall state the number 
 of the parcel under which the land is registered and the name of 
 the owner; and shall be noted by the ^Master in the register. 53 
 V. c. 32. s. 7. 
 
 Effect of Execution' on Charges. 
 Wilkio (/.•). 
 
 (k) 2G S. C. R. 282 (1890). 
 
 -Soo Jellctt V, 
 
 m 
 
 4 
 
 TS, 
 
i 
 
 :1. 
 
 ! 
 
 . ■ 
 
 
 .11 \ 
 
 i 
 
 ■ ! 
 
 It 
 
 ,i'i 
 
 344 FOllECLOSUUE OF MORTGAGES. 
 
 SCHEDULE OF RULES. 
 
 (LAND TITLES ACT.) 
 
 25. — (1) The Instrument by which any charge of freehold or 
 leasehold land (Form 28) shall be made under section 33 of the 
 Act shall be left in the office, and the execution thereof by the 
 registered owner of the land shall be attested and duly verified. 
 
 (2) "Where it is desirable that an entry shall be made on the 
 register negativing the implied covenants referred to in sections 
 34 and 35 of the Act, or that any entry should be made on the 
 register, contrary to the powers given to a registered owner of 
 a registered charge by sections 36, 37 and 38, respectively, or 
 contrary to the provisions of section 39, as to the priority of re- 
 gistered eharpf^'' 'he application to be made in that behalf shall 
 state tht \):\r a ^ of the entry required to be made, and shall 
 be signed, a" i r ..:gnature attested and verified in the same 
 manner as is required with respect to the execution of the in- 
 strument ol ■ l\uige. 
 
 (3) Such verilicatinn mny, where practicable, be made by 
 the same affidavit as that verifying the execution of the instru- 
 ment of charge. 
 
 (4) In the event of a foreclosure or sale being enforced by 
 the registered owner of the charge, the Master of Titles shall, 
 upon the application of the person entitled to the benefit of the 
 foreclosure or sale, and on proper proof, make all necessary 
 entries in the register. The applicant is to leave with the Master 
 a draft of the entry which he considers himself entitled to. 
 
 Attestation of Mortgage. — Manager of bank hold 
 not iiicapaeitatt'd from acting as attesting witness to 
 mortgage to his bank (I). 
 
 36. — (.1) The instrument by which any transfer of charge 
 (Form 29) shall be made, under section 57 of the Act, shall be 
 left in the office, and the execution thereof by the registered 
 owner of the charge shall be attested and duly verified. 
 
 (2) A transfer of a charge may contain an agreement that 
 upon the payment of a sum of money therein named, or upon 
 the performance of any conditions therein stated, the charge shall 
 be re-transferred to the transferor. 
 
 (/) Blink of Viotoria v. McMichncl, 8 V. L. R. 11; Torrens 
 Title Cases, Vol. I. 40G. 
 
mr 
 
 LAND TITLES ACT. 
 
 345 
 
 to 
 
 (3) The insertion of such agreement in a transfer of charge 
 shall not affect the right of the transferee, while registered 
 owner thereof, to deal with the charge. 
 
 88,— (1) Where the cessation of a charge entered on the re- 
 gister is required to be notified under section 40 of the Act, and 
 the .application (Form 32) is not made or concurred in by the 
 registered owner of the charge, due proof of the satisfaction of 
 the charge shall be left with the application. 
 
 (2) The Master of Titles, upon being satisfied of the cessation 
 of a charge, shall, where convenient, notify the same by cancelling 
 the original entry, or shall otherwise enter on the register the 
 fact of such cessation. 
 
 (3) This rule shall, where applicable, extend to applications 
 to notify the determination of any lease or agreement for a lease 
 under section 72. 
 
 35* — (1) Where, upon the first registration of any freehold or 
 leasehold land, notice of an incumbrance affecting such land has 
 been entered on the register, the cessation of which is required 
 to be notified under section 30 of the Act, the applicant, in case 
 there has been any dealing with, or transmission of, or interest 
 created or arisen in, such incumbrance, not appearing on the 
 register, shall leave in the office an abstract of his title to make 
 the application and prove the same in the usual way, and the 
 matter shall be proceeded with in the mode provided in the cases 
 of examination of title on registration, subject to any special 
 directions of the Master of Titles. 
 
 (2) The Master of Titles, upon being satisfied of the cessa- 
 tion of an incumbrance, shall notify the same by cancelling, 
 where convenient, the original entry, or otherwise by entering 
 on the register the fact of such cessation. 
 
 (3) This rule shaJl where applicable extend to applications 
 to notify the determination of any lease of registered leasehold 
 land under section 31 of the Act, and to the cancellation under 
 Rule 27 of qualifications or exceptions. 
 
 41.~(1) A certificate of charge shall be under the seal of 
 the office, and may at the option of the applicant contain either a 
 copy of the entry on the registry of such charge, with a reference 
 to or a copy of the registered description of the land, or the same 
 l)artlculars as a land certificate. 
 
 n 
 
 It I 
 
 ■ 
 
 J. : 
 
 I:' •■ 
 
 ;i 
 
 ! 
 
346 
 
 FORECLOSURE OF MORTGAGES. 
 
 (2) Where a charge is transferred the Master, Instead of deliv- 
 ering a new certificate of charge, may write on the existing 
 certiflciito a nienioranduni showing Ihi' transfer, and the same 
 shall have the effect of a new certificate to the transferee. 
 
 4St. Every application for ft new land certificate, or office copy 
 of a registered lease, or certificate of charge to be granted, under 
 section 98 of the Act, shall bo supported by an affidavit of the 
 applicant, stating the fact that the former one has been lost, mis- 
 laid, or destroyed, and the circumstances thereof, and the new 
 certificate or copy shall contain a statement that it is granted in 
 the place of the certificate or copy lost, mislaid or destroyed. 
 
 CrsTODY OF Ckrtificatic of Ciiargf.. — Cases as to 
 allowin<>' title deeds to be in the hands of an owner in- 
 stead of an iiieunibi'ancei', tind thereby enabling the 
 owner to conreal tlie fact of an inenmbrance, are not 
 apijlicable to the cnstody of certificates of title (m). 
 
 ]NrORTGAGEE ^IfST PRODUCE CERTIFICATE TO A LLOW 
 
 Transfer of Equity. — S<'e In re Arniitage, Ex parte 
 Andrews (»). 
 
 R. S. O. 1897, CHAPTER 1^3. 
 
 The Mechanics' Lien Act. 
 
 i I, 
 
 ii: 
 
 '7. — (1) The lien shall attach upon the estate or interest of 
 the owner as defined by this Act in the erection, building, rail- 
 way, land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, 
 well, excavation, fence, sidewalk, paving, fountain, fish-pond, 
 drain, sewer, aqueduct, roadbed, way, fruit and ornamental 
 trees and the appurtenances thereto, upon or in respect of which 
 the work or service is performed, or the materials placed or 
 furnished to be used, and the lands occupied thereby or enjoyed 
 therewith, 
 
 (3) In case the land upon or in respect of which any work or 
 service is performed, or upon or in respect of which materials are 
 
 (m) Diftuni of Molcsworth. J., in Plnmptou v. riumpton, 11 
 V. L. R. 7.*?3; Torrciis Title Ciisos> Vol. I. 495. 
 
 ill) 17 V. L. R. 77: Torrens Title Cases, Vol. I. 393. 
 
•^T 
 
 MKCHANICS' LlEX ACT. 
 
 ;u7 
 
 placed or furnishod to be used, is incumbered by a prior mortgage 
 or other cliargo, and the selling vaJue of the land is increased by 
 the work or service, or by the furnishing or placing of the nui- 
 terials, the lien under this Act shall be entitled to ranlt upon such 
 increased value in priority to the mortgage or other charge. oO 
 V. c. 35. s. G (1-3). 
 
 8. Where any of the property upon which a Hen is given by 
 this Act is wholly or partly destroyed by fire, any money received 
 by reason of any insurance thereon by an owner or prior mort- 
 gagee or chargce shall take the place of the property so destroy- 
 ed, and shall be subject to the claims of all i)ersons for liens to 
 the same extent as if such moneys were realized by a sale of 
 such property in an action to enforce a lien. 59 V. c. 35, s. 7. 
 
 lit. — (1) The lien created by this Act shall have priority 
 over all judj^ments, executions, assignments, attachments, 
 garnishments, and receiving orders recovered, issued or made 
 after such lien arises, and over all payments or advances made on 
 account of any conveyance or mortgage after notice in writing of 
 such lien to the person making such payments, or after registra- 
 tion of such Hen as hereinafter provided. 
 
 (2) In case of an agreement for the purchase of land, and the 
 purchase money or part thereof is unpaid, and no conveyance 
 made to tlie purchaser, the purchaser shall, for the i)urposes of 
 this Act, and within the meaning thereof, be deemed a mortgagor 
 and the seller a mortgagee. 
 
 (3) Excepting where it is otherwise declared by this Act, no 
 person entitled to a lien on any property, or to a charge on any 
 moneys under this Act, shall be entitled to any priority or pre- 
 ference over another person of the same class entitled to a lien or 
 charge on such property or moneys under this Act, and each class 
 of lien holders, except where it is otherwise declared by this Act. 
 shall rank pari passu for their several amounts, and the proceeds 
 of any sale shall, subject as aforesaid, be distributed among 
 them pro rata according to their several classes and rights. 59 
 V. c. 35, s. 12. 
 
 Lien Holder v. PRroR ^rouTf;.\r,KE. — Tho remedy of 
 a lien holder apainst a prior niortjiiijiee is confined to 
 the increased value (o), which can hardly be ascertained 
 except by a sale (p). 
 
 (01 Dufron v. Horning, 2(1 O. K. 2.")2 (1S95). 
 (p) Patrick v. Walbourno, 27 O. R. 221 (189G). 
 
 'iM 
 
 1!j> 
 
 u t 
 
TT^ai 
 
 I 'i 
 
 348 
 
 FOllJiCLOSUUE OF MOllTGAGES. 
 
 R. S. O. 1897, CHAPTER 164. 
 The Dower Act. 
 
 rv 
 
 7.— (I) No bar of dower contained in any mortgago, or other 
 instrument Intended to have the effect of a mortgage or other 
 secur.ty, upon real estate, shall operate to bar such dower to any 
 greater extent than shall be necessary to give full effect to the 
 rights of tho mortgagee or grantee under such Instrument. R. S. 
 O. 1887, c. 133, s. 5. 
 
 (2) In the event of a sale of the land comprised in such 
 mortgage or other instrument, under any power of sale contained 
 therein, or under any legal process, the wife of the mortgagor 
 or grantor who shall have so barred her dower in such lands, 
 phall be entitled to dower in any surplus of the purchase money 
 arising from such sale, which may remain after satisfaction of 
 the claim of the mortgagee or grantee, to the same extent as 
 she would have been entitled to dower in the land from which 
 such surplus purchase money shall be derived had the same not 
 been sold. R. S. O. 1887, c. 133, s. 6. 
 
 (As to right to dower under The Land Titles Act, where land 
 acquired subject to a charge, or where owner after charging land 
 marries, see c. 138, s. 50,) 
 
 Bar of Dower in Second Mortgage. — Wliere a 
 first inort}:fa{?(' Avas made (the wifo not joining) but 
 not rt'f;istere{l until after a subsequent mortf;age, in 
 wLich the wife joined, it was held that the subsequent 
 niortgafjje beinj? paid off the wife was entitled to her 
 dower in priority to the first mortj^age (q). 
 
 Reform.\tion of Mortgage Deed. — A voluntary 
 deed of mortgage, from which a bar of dower was omit- 
 ted, will not be reformed at the instance of the mort- 
 gagee (r). 
 
 (q) Gray v. CouKhlin, 18 S. C. R. 553. 
 (r) Bellamy v. Radgerow, 24 O. R. 278. 
 
DOW Ell ACT. 
 
 349 
 
 8. — (1) In the I'vent of the land, comprised In anj mortgngo 
 or other instrument, executed on or after the 16th day of April, 
 1895, by which the mortgagor's wife barred her dower, being 
 sold under any power of sale contained in I he mortgage, or under 
 any legal process, the wife shall be entitled to dower In any 
 surplus of the purchase money arising from such sale, which 
 may remain after satisfaction of the claim of the mortgagee or 
 grantee, to the same extent as she would have been entitled to 
 dower in the land had the same not been solil; and the amount 
 to which she is entitled shall be calculated on the basis of the 
 amount realized from the sale of the land, and not upon the 
 amount realized from the sale over and above the amount of the 
 mortgage only. 
 
 (2) 'I'his section shall not apiily where the mortgage is for 
 the unpaid purchase money of the land; and nothing in this 
 section contained shall be construed to affect, by inii)lication or 
 otherwise, any question in the esse of mortgages executed before 
 the said 16th day of April, 1895. 58 V. c. 25, s. 3. 
 
 Dow KR IN Sl'ri'lus. — Soc'lioii 8 is apparently de- 
 sififiied to settle the moot point, whether the dower, to 
 which a wife is entitled out of the surphis, is to bo com- 
 puted on the full unincumbered value of the land (,s), or 
 on the amount of the surplus merely (/). JJut the section 
 just leaves the law where it found it; for Pratt v. Bun- 
 nell was a case of mort^a},^' to secui-e balance of pur- 
 chase mon.>y ((/), and ( Jemniell v. Xelli<;an is a case of 
 mortj.^aoo for a loan advanced. 
 
 CoNTRinuTioxs P.Y DowKKSS. — See lieid v. Keidjr) ; 
 Dobbin v. Dobbin ((/•); cf. Re Percy, Stewart v. Percy (.c). 
 
 9. — (1) A mortgagee or other person holding any money out 
 of which a married woman shall bo dowable under the preced- 
 ing two sections of this Act may pay the same into the High 
 
 (s) See (Jensinill v. Xelligaii, 20 O. R. 307. 
 
 U) See Tratt v. Bunnell. 21 O. R. 1; discussing Re Hague, 14 
 O. R. fU)0; Re Crosliery, 10 O. R. 207; :Martindale v. Clarksou, 
 A. R. 1. 
 
 («) Cf. Smart v. Sorenson, 9 O. R. 040, mortgage back for pur- 
 chase money; Re Hopkins, Barnes v. Hopkins, 8 P. R. 100. 
 
 (v) 22 (Jr. ,372, widow to pay one-third interest on cheques. 
 
 (tf) 11 O. R. 534. 
 
 (x) 11 O. R. 374, deductions from arrears of dower. 
 
 n 
 
 11 
 
 ill 
 
 . II 
 
I 
 
 350 
 
 FOUKCLOSUIIE OK MOHTGACiES. 
 
 li ( i 
 
 Court to the credit of such niarried woman and the other persons 
 Interested therein. 
 
 (2) The High Court, or a .7u<lge thereof, may on a summary 
 application l)y petition or motion, mal<e such onier for securing 
 the right of dower of any married wtmian, in any money out of 
 wliich she shall Ije dowable, as may be just. U. S. O. 1887, c. 133, 
 8. 7. 
 
 II. Where a person, whose wife is a Itinatic and confined as 
 such in a public lunatic asylum in this Province, has licretolore, 
 while his wife was so confined, become the owner of land, or 
 hereafter while she is so confined becomes the owner of land, 
 such person may sell and convey or mortgage such land, treed 
 and discharged of any claim of his said wife for dower therein, 
 but no such cnnv(>yance or mortgage sh;ill be made after tlu' 
 discharge of the said wife from the said as^ylum. 59 V. c. 40, s. 5. 
 
 12. — 11) AVh(>re the wife of an owner nf Innd has been living 
 apart from him for two years under such circumstances as by law 
 disentitle her to alimony, and such owner is dcsiious of selling 
 or mortgaging the land free from dower, he may apply to a .Judge 
 of the High Court, and, if the Judge approves, ho may, by an 
 order to be made by him in a summary way, upon such evidence 
 as to the Judge seems meet, and either ex parte or upon notice 
 (to be served personally, unless the Judge otherwise directs), dis- 
 pense with the concurrence of the wife for the purpose of barring 
 her dower, and he shall (unless the wif > has been so living apart 
 from her husband under such circumstances as disentitle her to 
 dower) ascertain and state in the order the value of such (lower, 
 and^)rder such amount to remain a charge upon the property, o/ 
 to be secured otherwise for the wife's benefit, or to be paid and 
 applied for her benefit as he deems best; and thereupon a con- 
 veyance Or mortgage by the husband, expressed to be free from 
 his wife's dower, shall, subject to any terms mentioned in the 
 order, be suflncient to bar her right thereto, as if she had duly 
 executed a deed jointly with her husband for that purpose. 
 
 (2) This section shall extend to any case in which an agree- 
 ment for sale had been made, and a conveyance executed by the 
 husband before the 5th day of March, 1880, and part of the pur- 
 chase money retained by the purchaser on account of dower or 
 an indemnity given against such dower. R. S. 0. 1887, c. 133, s. 9. 
 
 ' .i 
 
 iiLJ 
 
DOWLII ACT. 
 
 li'A 
 
 J 
 
 idenco 
 lotloe 
 
 (lis- 
 larring 
 apart 
 her to 
 lower, 
 •ty, 0/ 
 id and 
 
 con- 
 
 Irom 
 in the 
 
 duly 
 
 agree- 
 iiy the 
 e pur- 
 ver or 
 3, s. 9. 
 
 IJl.— (1) Where an owner of land wUoho wife Is a liinalle, or 
 of unsound niin<l, and conllncd as such in a lunatic asylum, is 
 deslnius of selling or iiiortgaKiuK the land free from dower, he 
 may api)ly in that luhaif to tlie JudKC of the County Court of the 
 couiily in which he resides, or Id a .ludgc of the High Court, and 
 if the .ludge approves, he may, l)y an order to l)e made hy liim 
 In a sumniiiry way, upon such evidence as tn the Judge seems 
 meet, ai.d either ex parte or upon such notice as he nuiy deem 
 requisite, dispense with the concurrence of the wife for the pur- 
 pose of barring her dower, and lie shall also ascertain and state 
 In the order the value of such dower, iind order such amount to 
 remain a chjirKc upon the jiroperty, or to he secured otherwise 
 for the wife's benefit, or to be paid and applied for her benefit as 
 he deems best, and thereupon a conveyance or mortgage by the 
 husband, expressed to be free from his wife's dower, sh.ill, subject 
 to the teiuis and conditions mentioned in the order, be sufficient 
 to bar her right thereto, as if she were of sound mind, and hart 
 duly executed a deed jointly with her husband for tluu purpose. 
 
 (2) On every such application the Judge sli ill be entitled lo 
 his own use to a fee of $5, and no other fee ur charge of any 
 kind shall be payable in r»'spect thereof. 
 
 (3) 1'bis section shall apply lo any case in which an iigrec- 
 ment for sale has been made and a conveyance has been executed 
 by the husband, and any part of the inircluise nmuey has been 
 retained by the purchaser on account of dower, and to any case 
 in which an indemnity has been given against tlie dower of the 
 wife. R. S. O. 1887, e. 133, s. 10. , 
 
 14. — (1) In case the g^(d surgeon of any county or district in 
 which a married woman resides, and another medical practitioner 
 to be named by the Judge, shall each certify (Form A.) that he 
 has personally examined such married woman, and that he is of 
 opinion that she is ins.'ine, and the Judge of the County Court of 
 the county in which such married woman resides, or a Judge of 
 the High Court, also certifies (Form li.) that he has personally 
 examined such married woman, and that from such examination 
 and from the evidence adduced before him, if such Judge thinlts 
 it expedient to hear evidence, he is of opinion that such married 
 woman is insane, the said Judge may make the like order as by 
 the preceding section of this Act is authorized in the case of a 
 married woman of unsound mind who i^j confined in an asylum 
 for the insane. 
 
 i'fi 
 
 i HI 
 
 'Hi 
 
 ' ■ 
 

 'I 
 
 ! 
 
 :» 
 
 ( 
 
 
 
 1 
 
 ; 
 
 r 
 
 1 
 
 ! i 
 
 ■ 
 
 i 
 
 1 
 
 352 
 
 FOllECLOSUUE OB' MOIITGAGES. 
 
 (2) The examination and certificates n-quired by this section 
 muet all be made and granted within a period of one month, or 
 such certificates shall not be acted upon by the said Judge, and 
 the application shall not bi' entertained unless it is made within 
 one month of the diiy upon which the last of such examinations 
 took place. R. S. O. 1887, c. 133. s. 11. 
 
 15. In case a Judge makes an order under any of the pre- 
 ceding three sections of this Act, with reference to any parcel 
 of land, he may afterwards make orders in respect of other sales 
 or mortgages, either on the like evidence as is required for the 
 first application, or on any other evidence which may satisfy him, 
 of the continued insanity of the married woman. R. S. O. 1887, 
 c. 133, s. 12. 
 
 16 Sections 12, 13, 14 and If), of this Act shall apply to any 
 case whero any person owns, or has the right to sell or mortgage 
 (whether as trustee or otherwise), land which is subject to dower, 
 whether such dower is inchoate or complete, and whether the 
 person ajiplying is or is not the husband of the dowress. R. S. O. 
 1SS7, c. 133, s. 13. 
 
 Sii!ji:cT TO DowKK. — There can be no dower in 
 liuul of which tlie Imsband had merely accjnired the 
 ('(inity of redemption, and whicli lie had parted with (//). 
 
 Value of Inxiioatk Doweu. — See Discher v. Can- 
 ada Permanent Loan & Savings Co. (z). 
 
 Effect of Non-registratiox of Discharge of 
 ]\roRTr.Ar.i^ — See In re ^[nsic-llall iMock, Diimble v. 
 !\IcTntosli (a). 
 
 Other Cases Where Not Entitled to Dower. — 
 See Calvert v. Black ih) ; Leitch v. McLellan (c); Re 
 Ilewish (d). 
 
 17.— (1) Where the wife of an owner of land has been living 
 apart from her husband for five years or more, and the husband 
 sells and conveys, or has sold and conveyed the land, or mort- 
 
 (y) CJardntT v. Brown. 10 O. R. 202. 
 
 (c) IS O. R. 273. 
 
 Ui) S O. R. 22.-). 
 
 (M 8 I». R. 2r)5. 
 
 (r) 2 O. R. 587, reversion expectant on life estate. 
 
 (<') 17 O. K. 454. 
 
DOWEU ACT. 
 
 858 
 
 5 
 
 I; R^' 
 
 living 
 sband 
 lort- 
 
 gagi'S, or has mortgaged the same, the wife not joining in the 
 conveyance or mortgage, and the purchaser or mortgagee having 
 no notice that the grnntor or mortgagor liacl a wife living at the 
 time, such purchaser or mortgagee, may apply to a Judge of the 
 High Court and have the same relief, or to the same effect, and 
 subject to the same conditions, and by the same proceedings, as 
 provided for a husband of a lunatic wife under this Act. 59 V. 
 c. 40, s. 2. 
 
 (2) The rule and practice shall be the same where the hus- 
 band is living with or recognizing another woman as his wife, the 
 purchaser or mortgagee having no notice of her not being his 
 wife, and no notice that the grantor or mortgagor had a rightful 
 wife with whom he is not living, ■'jg V. c. 40, s. 3. 
 
 (3) Any person cljiiming under the grantee or mortgagee 
 shall bo entitled to apply in like manner and obtain like relief 
 on the foundation of the risht of the said granlee or mortgagee 
 in that behalf, or of the applicant's own interest having be^ni 
 acquired by purchase for value in good faith without notice of 
 the owner aforesaid having had a wife at the time of the con- 
 veyance or mortgage, and such ownrr may apply in like manner 
 and have like relief. &Jt V. c. 40, s. 4. 
 
 I>*. The order may be in duplicate or in as many parts as 
 are necessary, and shall be signed by the Judge, and m;iy hv 
 registered in the l^eyistry Ottico ot the registry division wherein 
 the lands to which the same relates are situate upon its produc- 
 tion and deposit, without' any profif thereof; and such registration 
 may take placo either before or at'ter the execution of the deed 
 made in pursuance of such order. II. S. O. 1887, c. 133, s. M. 
 
 19, The order may, if desired, be indorsed or written upon 
 the deed to which the same relates, in wliich case it shall bo 
 registered as part of the deed. R. S. O. ISST. c. 133, s. 15. 
 
 SO. For the registration of the order, including all necessary 
 entrie'^ and certificates, the ri'gistrar shall be entitled to a fee 
 of $1, unless the order is indorsed or written upon the deed in 
 which case no fee shall l>e payable in respect of the registration 
 thereof. R. S. O. 1S87, c. 133. s. HI. 
 
 *it. If the order is indorsed or written upon the deed to be 
 made in pursuance thereof, the re;il estate to which the same re- 
 lates may be dnscribed in the order by reference to the descrip- 
 tion contained in the deed. R. S. O. 1887, c. 133, s. 17. 
 
 H.F.M.— 23 
 
 ii 8 
 
r r 
 
 ill I; 
 
 354 
 
 FOllECLOSUKE OF MOll'lGAGES. 
 
 R. S. O. 1897, CHAPTER i6j. 
 The Married Woman's Real Estate Act. 
 
 A. Any married woman, under twenty-one years of age, of 
 sound mind, might on and since the 5th day of May, 1894, and 
 hereafter, may har her dowiT in any land or hereditaments by 
 joining with her husband in a deed or conveyance thereof to a 
 purchaser for value, or to a mortgagee, in which deed or convey- 
 ance a release or bar of her dower is contained, and she may in 
 lll^e manner release her dower to any person to whom such lands 
 or hereditaments have been previously conveyed. 57 V. c. 41, s. 1. 
 
 R. S. O. 1897, CHAPTER 20^. 
 The Loan Corporations Act. 
 
 16. Subject to the limitations mentioned in sections 7 and 
 8 any loan corporations standing registered under this Act may 
 lend money in conformity with the laws of Canada and with this 
 Act and with the by-laws of such corporation, to any person or 
 body corporate, at such lawful rates of interest as may be agreed 
 upon, without requiring any of the borrowers to become sub- 
 scribers to the stock, or members of the corporation; but in the 
 case of loans made on and after the first day of May, 1803, only 
 such borrowers from the corporation as are subscribers to the 
 stock, or members of the corporation, shall be subject to the by- 
 laws thereof, unless the mortgage or other security given by the 
 borrower expressly provides that the by-laws of the corporation 
 shall form part of the contract or obligation entered into by the 
 borrower. 
 
 Provided, however, that unless in all such cases either the 
 words "subject to tho by-laws of the corporation, " or the words 
 " subject to the rules of the society or company " (as the casp 
 
and 
 miiy 
 :h this 
 >n or 
 gret'd 
 sub- 
 in tho 
 only 
 to the 
 lie by- 
 by the 
 ration 
 by the 
 
 or the 
 words 
 
 le ciisc 
 
 L(JAN COUI'OllATION.S ACT. 
 
 355 
 
 may be), are printed in conspicuous type on the back of, and tis 
 part of the indorsement of such mortgage or other security, the 
 borrower, not being a subscriber to the shares or a member of 
 the corporation, shall not be bound by any such by-laws. CO V. 
 c. 38, s. IG. 
 
 MaKIXC liV-LAWS I'AKT ()|- >roRTGA(;K CONTRACT. 
 
 Indcpt'iKlcnlly of tliis provision, tlicrc ii]tp<'ais \u be 
 some aiitlioiily for the slatciiicnt tliiil it is iRH-cssary 
 to I't'fci' to tlic by-laws in tlu' iiioi-t<;a;;(' before llicy be- 
 come part of Ibe niortjiaj'e <oii(ra(l. Tims lines liave 
 been held not part of the niorljiaj^e debt, unless the 
 niort^aj;e makes them so (ri. or tinless c()nstitntion or 
 by-law properly referred to in liie ntortjia;:.!' deelares 
 them to be so (/). 
 
 17.— (li A registered loan corporation may from time to time 
 lend and advance money by way of loan or otherwise for such 
 periods as it deems expedient on the security of real estate, or 
 of the public securities of Canada, or of any of the Provinces 
 thereof, or on the security of terminating debentures of any muni- 
 cipal or public school corporation, or of the terminating deben- 
 tures of any society or company incorporated under the Revised 
 Statute respecting Building Societies; or of terminating deben- 
 tures or del)enture stoclt of any society or company in which 
 under the l;iw of the Province trustees may invest trust funds; 
 or may out of the funds appropriated to terminating shares (if 
 any), lend on the security of the terminating shares of the cor- 
 poration itself. 
 
 Provided that in the case of corporations lieretofore ;o 
 authorized It shall (except as provided in section 19) be lawful 
 to invest in and lend upon land or upon securities other than in 
 this s<'ction mentioned. 
 
 DiscRKTiox Ar.r.owi-.i) Diuiu tors. — The directors of 
 a benefit buildinp' society, havinji- a liti'};e discretion vest- 
 rd in them as confidential aiicnts. may properly make ad- 
 vances on classes of sectiiilies forbidden to ordinary 
 
 (el Uuildliu: Assoriiitieii V. rjroesbeck. 17 riiiln. (Pn.) 242. 
 (f) Roweu V. LiucMln Building & Loan Ass., 2S Atl._ Hep. 07; 
 Hobertsoii v. The Aiiierieaii ll.iuiestead Assn., 10 Md. 'M*~. 
 
 %: 
 
 i*''i s: 
 
 • 
 

 i!'^^ ■ 
 
 ! } 
 
 356 
 
 FORECLOSURE OF MOllTCAGES. 
 
 trustees, and arc not in'ocludcd from making advances 
 on secui'itics of a speculative nature (r/). 
 
 Securitiks o\ Wiiini Moxkvs May we Lent. — 
 Se<.' Harris v. Harris (7/); \'crner v. (Jcneral Trust (/)• 
 
 (2) The corporation may do all acts that are necessary for 
 advancing such sums of money, and for receiving and obtaining 
 repayment thereof, and for compelling the payment of all in- 
 terest accruing from such sums so advanc(>d, and the obser- 
 vance and fulfilment of any conditions annexed to such advance, 
 and for enforcing the forfeiture of any term or property conse- 
 quent on the non-fulfilment of such conditions, or of conditions 
 entered into for delay of payment: and may tal<e personal 
 security as collateral for any advance made. 
 
 (3) 'I'hf corporation may hold such real estate as b?ing mort- 
 gaged nr hypothecated to it, is ncquired by it for the protection 
 of its investments, and may from time to time sell, mortgage, 
 lease, exchange or otherwise dispose of the same; and may 
 acquire, by i)urchase or otherwise, jiny mortgage or security of 
 any kind whatsoever upon which it is authorized to lend or 
 advance money, and re-sell the same, as it deems advisable. 
 
 Imi'Kovidkxt Saf.k ]\y ]\r()RTc-,A(;i:i:. — Sec Aldricli v. 
 Caniida T'ermanent (/'); Tarruthers v. TTaniiKon Provi- 
 dent (Z). 
 
 Sat.!-: hv Mortgagee to Si:i.i-. — Sec Henderson v. 
 Astwood (0- 
 
 (-1) The corporation may give receipts, acquittances and dis- 
 charges, either absolutely and wholly, or i)artially, and may 
 grant or t:ike such deeds, assignments, or other instruments as 
 are necessary for carrying any such holding, purchase, exchange 
 or re-sale into ef1"ect; and the grantee or assignee in any such 
 instrument shall stand in the pl;ice of, and be entitled to, and 
 have all the same rights, powers and remedies, and shall be sub- 
 ject to the same obligations and liabilities, under, upon, or in 
 
 (f/i Sliclllcld \- South Yorkshire Pfrniiuieut Ituildiiifr Sucicty v. 
 
 Aizlewdod, 44 Ch. D. 412 ilS.SJb 
 th) 'J'.) Ben v. 107 (ISC.IK 
 (/I 1Sn4. 2 Ch. 2^9, L'fiO. 
 (j) 24 A. R. im. 
 (k) IS r. T., T. 30. 
 (/) 1894, A. r. ir>8. 
 
■7 i 
 
 LOAN COIU'OHATIONS ACT. 
 
 357 
 
 j|r? 
 
 •h V. 
 I'ovi- 
 
 )11 V. 
 
 (lis- 
 
 iniiy 
 
 Its ria 
 
 langp 
 
 such 
 
 and 
 
 sub- 
 
 or in 
 
 ■ly V. 
 
 respect to such insliument as the grantor or assigiKir would have 
 been entitled to or would have been subjfct to if the grant or 
 assignment had not been made. 
 
 (5) The corporation may hold absolutely to its own use and 
 benefit such real estate as is necessaVy for the transaction of its 
 business, not exceeding in yearly value the sum of $20,000, in 
 Ontario, and, subject to the laws of the other Provinces of 
 Canada, the sum of $20,000 in each of the said I'rovinces; also 
 such real estate as being mortgaged or hypothecated to it, is 
 acquired by it for the protection of its investments, and such 
 real estate as is conveyed to it in satisfaction of del)ts previously 
 contracted in the course of its business; and may froui time to 
 time, sell, mortgage, lease, exchange, or othciwise dispose of the 
 same; but the corporation (not being a loaning corporation stand- 
 ing registered under this Act), sh;ill, subject as above, sell any 
 real estate acquired in satisfaction of any debt within twelve 
 years after it has been so acquired, otherwise it shall be forfeited 
 to Her Majesty, for the uses of the Province; but no such for- 
 feiture shall take effect or be enforced until the expiration of at 
 least six c.-ilendar months after notice in writing to the said cor- 
 poration of the intentitin of Her Majesty to claim such forfeiture. 
 
 (6) It shall be lawful for any such corporation to constitute 
 and maintain a reserve fund out of the earnings or other income 
 of the corporation not required for the present liabilities of the 
 corporatiiui, anil to invest the same in any of the securities 
 authorized for the purposes of loans by this section. 
 
 (7) And for every purpose in ihis .section specified, and for 
 any other purpose in this Act mentioned or referred to, the cor- 
 poration may lay out. and apply the eapit;il and property, for the 
 time being of the corporation, oi' any part t hereof, or any of the 
 moneys authorized to be hei'eafier raised or received by the cor- 
 poration, in addition to its caiiital for the time being, and nuiy 
 authorize and exercise all acts and iiowers whatsoever, in the 
 opinion of the directors of the corporation re(iuisite or expedient 
 to be done or exercised in relatiiui ihereto. t;o V. e. 38. s. 17. 
 
 18. No loan corporation whatsoever sli.all ballot ny cause or 
 permit jipplications for loans or advances to ballot for preced- 
 ence, or shall in any way make the granting of a loan or advance 
 ilepend upon any chance or lot. .\ny registt'red corporation 
 which contravenes this section, and any corporation which makes, 
 prints, advertises or publishes, or c.-iuses or procures to.be made, 
 
if 
 
 
 r ^ 
 
 ' 
 
 ■] ■ 
 ■< 
 
 i 
 
 
 - 1 , 
 
 
 
 
 r 
 
 :!■. 
 
 358 
 
 FOUECLOSUHK OF MOUTGACiES. 
 
 printt'd, advertised or published any proposal, scheme or plan 
 for loaning or advancing or in any way disposing of money or 
 property by lot, ballot, or by any mode of chance whatsoever, 
 shall be liablt' to have its registry cancelled; and any director, 
 officer, servant, employee or shareholder of the corporation, party 
 to such contravention, shall be liable upon summary conviction 
 before any Police or Stipendiary Magistrate, or two Justices of 
 the Peace, to a fine of not less than $20, nor more than $200 and 
 costs, and in default of payment to imprisonment for a term of 
 not less than three nor more than twelve months in any prison 
 or gaol of the Province. GO V. c. 38, s. 18. 
 
 Hallotixg for Loans. — Section IS is dircctrd 
 ajjaiiisl a system of lotteries dis^^uised as liuihliiiji' and 
 Loan Assoeiations. As stated by Jessel, 3LK., " This is 
 a sul)soi'ii»(ion by a nnniber of i>ei'sons to a fund, for I he 
 pui'iHise of dividinfj: that fund, by cliance, nne(|nally 
 anion}? them. If that is not a lottery it is very diflienlt 
 to understand what a lottery is'' (in). Tliese ballolinj:- 
 schemes were most extensively worked under the name 
 of Starr-1'.owkett liuildinj; Societies (//)• 
 
 SO. Subject as in the next five following sections provided 
 any corporation standing registered under this Act may stipulate 
 for, take, reserve, and exact any rate of interest or discount that 
 may lawfully be taken by individuals, and may also receive pay- 
 ment at any time on any loan or advance; provided always, that 
 no fine or penalty shall be stipulated for, taken, reserved or 
 exacted in respect of arrears of principal or interest, which has 
 the effect of increasing the charge in respect of arrears beyond 
 the rate of interest or discount on the loan; and the corporation 
 may do all acts that may be necessary for advancing mom y, 
 and for recovering and obtaining repayment thereof, and for 
 enforcing payment of all interest accruing therefrom, or for 
 enforcing any conditions attached to such advance, or any fur- 
 feilure consequent on the non-paynent thereof, and give all 
 necessary and proper receipts, acquittances and discharges for 
 the same, and do, authorize and exercise all acts and pnwers 
 whatsoever requisit(> or expedient to be done or exercised in 
 
 (m) Sykes v. Bcndon. 11 Cli. D. 170. 
 
 (ii) Tor ji (•ritici.'<ni of these, see Scntcblcy on Building Societies. 
 
LOAN COIU'OIIATIOXS ACT. 
 
 351) 
 
 w 
 
 vided 
 pulate 
 that 
 pay- 
 that 
 ed or 
 h has 
 eyond 
 a lion 
 ini'v. 
 d for 
 for 
 fnr- 
 e all 
 s for 
 iwers 
 ed in 
 
 ieties. 
 
 relation to the said purposes. 60 V. c. 38, s. 20. (See also 37 V. 
 c. 50, s. 5 (D.); R. S. C. c. 127, s. 5). 
 
 31. Wherever any principal money or interest secured by 
 mortgages of real estate is, 1)y the same, made payable on the 
 sinking fund plan, or on any plan under which the payments of 
 principal money and interest are blended, or on any plan which 
 involves an allowance of interest on stipulated repayments, no 
 interest whatever shall be chargeable, payable or recoverable, on 
 any part of the principal money advanced, unless the mortgage 
 contains a statement showing the amount of such principal money 
 and the rate of interest chargeable thereon, calculated yearly or 
 half-yearly, not in advance. GO V. c. 38, s. 21. (See also R. S. C. 
 c. 127, s. 3). 
 
 2'2. Wherever the rate of interest shown in such st.Mtenient 
 is less than the rate of interest which would be chargeable by 
 virtue of any other provision, c-ilculation or stipulation in the 
 mortgage, no greater rate of interest shall be chargeable, pay- 
 able or recoverable, on the principal money advanced, than the 
 rate shown in such statement. 60 V. c. 38, s. 22. (See also R. S. 
 C. c. 127, s. 4). 
 
 23. \o fine or pen;ilty or rate of interest shall be stipulated 
 for, taken, reserved or exacted on iiny arrear of principal or 
 interest secured by mort}^a<?o of real estate, which has the effect of 
 increasing the charge on any such arrear beyond the rate of 
 interest payable on principal money not in arrear; but nothing in 
 this section contained shall have the effect of prohii)iting a 
 Contract tor the payment of interest on arrears of interest or 
 principal at any rate not grejiter than the rate payable on prin- 
 cipal money not in arrear. (K) V. c. 3S, s. 23. (See also R. S. C. 
 c. 127, s. 5). 
 
 SI. If any sum is paid on account of any interest, fine or 
 penalty, not ch;irgeable, payable or recoverable under the three 
 sections next precedinj^, such sums may he recovered back, or 
 deducted from any other interest, fine or penalty chargeable, 
 payable or recoverable on the principal. 60 V. c. 38, s. 24. (See 
 also R. S. C. c. 127, s. 6). 
 
 584.— (1) Whenever any principal money or interest secured 
 by mortgage of real estate is not, under the terms of the mort- 
 gage, payable till a time more than five years after the date of 
 the mort{4age, then, if at any timo after the expiration of such five 
 
 fl 
 
 m 
 
J I- 
 
 im 
 
 360 
 
 F()HI':CL0SU1JE OF MOHTCJAfiES. 
 
 I l'" 
 
 I'' I 
 
 years, any person liable to pay or entitled to redeem the mortgage 
 tenders, or pays to the corporation entitled to reeeivc the money, 
 the amount due for principal money and interest to the time of 
 pjiymcnt. as ciilculaled under the four sections next preceding, 
 together with three months' further interest in lieu of notice, no 
 further interest shall be chargeable, payable or recoverable at 
 any time thereafter on the principal money or interest dm- under 
 the mortgage. 60 V. c. 38, s. 25. (See also R. S. C. c. 127, s. 7). 
 
 lit ! 
 
 .SCHEDULE A. 
 
 (LOAN COKI'OKAllONS ACT.) 
 
 !i> The by-liiws shall include full and explicit provisions re- 
 specting the plan or plans on which the corporation is to malie 
 loans or advances, the kind of security (principal and collater.il) 
 to be taken for the repayment, the rate or rates of interest to be 
 charged; the mode in which such loans or advances are to be re- 
 paid U* the corporation, and if by a sinking fund or instalments 
 of blended principal and interest, the by-laws shall include a 
 table resolving each such instalment, or each such payment on 
 account of sinking fund respectively into its components of prin- 
 cipal and interest. 
 
 6. The by-laws shall further set forth clearly wluit period 
 of grace, if any, is to be allowed for the payment of money due. 
 principal or interest; upon what terms or conditions a borrower 
 or member, or shareholder in default is to be reinstated; what 
 fines or forfeitures, if any, are to be imposed for any and for 
 what default or bre.-ich of contrjict; whether in cases where fine 
 or forfeiture is imposed, the corporation claims to exercise any 
 other or further remedy against the defaulter; also whether prior 
 to the exercise of any remedy against a def.aulter the corporation 
 is to give him any and what notice. If the provisional corporation 
 by its by-laws takes jmwer to impose fines for default, then its by- 
 laws shall further provide that fines upon fines, or compound 
 fines shall not be payable, and shall further provide that the 
 fines at any time payable in respect of any default shall not 
 exceed altogether ten per cent, of the instalment or the sum (not 
 Including fines) then in default. 
 
ACT HESPECTIVO IXVESTMENTS HY roUI'OUATlOXS. :],il 
 
 R. S. O. 1897, CHAPTER 211. 
 
 An Act respecting Benevolent Societies. 
 
 15. A society may, in punsuanco of a resolution ,,ssent. d to 
 by n majority of ,he members present ,.t a general meeting 
 specally ealle.i f,.r tha, purpose, of whieh p„„lie no.iee s.v.ll be 
 given m the manner provi.Iecl by the by-laws, mortgage, sell 
 exchange or lease any lands of ,he society. R. s. o 1887 c Jjo' 
 
 f '■• 8 
 
 R. S. O. 1897, CHAPTER 21 ^ 
 
 An Act respecting Cemetery Companies. 
 
 15. When a lot has been sold by the company, for a burial 
 sue, the conveyance shall not require ,0 be register..,l for any 
 purpose Whatever, and shall not be alf.-cted by any Registrv Act 
 nor Shall any judgment, mortgage or incumbrance subsist un 
 any lot so conveyed. R. S. O. 1887, c. 175, s. 14. 
 
 R. S. O. 1897, CHAPTER 22^. 
 
 An Act respecting Investments by Corporations. 
 
 J£ER Majesty, by and with the advice an.l consent of the r.e.. 
 follows:- '' ''^"'""^'^' "*' *''" ^''"''"'■^ "^' **"^^^'"- ^'"^-^^'t^ ^^H 
 
 l.-(l) All c.rporations having money in their hands winch it 
 is their duty, or is in their .liscretiun. to inv.st. mav i„v....t the 
 same, ,f they se,- fit, in securities, which an. a first .haru.. on 
 land held in fee simple; provided that such investments are in 
 other respects reasonable and i)ro|)er. 
 
 (2) This secth.n shall apply ,0 investments made l>efon. ,he 
 2oth day of March, 188G, whether su,.h investments w.re or were 
 not authorized by any statute then in force applying to su<h 
 corporations. R. S. o. 1887, c. 182, s. 1. 
 
 8. This Act shall not apply to investments by municipal cor- 
 porations. R. S. O. 1887, c. 182, s. ?.. 
 
 Ill: 
 
 i I 
 
H 
 
 tm-i 
 
 FOULCLOHUUE OF M()UT(JA(ii:s. 
 
 j 
 
 i 
 J 
 ; 
 
 R. S. O. 1897, CHAPTER ^07. 
 An Act respectinjj; Property of Religious Institutions. 
 
 Hi— (1) WIh'Io a debt has heretofore been or is hereafter oon- 
 trncted for thi' building. repairinB, extending or improving of a 
 cliurch, nu'eling-iiduse, clia|»'l. boolt-store, printing-oflipe, or other 
 building, on iand held by trustees for the benelli of any religious 
 soeiety in Ontario, or for the purchase of the land on which the 
 same has been or is intended to be erected, the trustees, or a 
 majority of tliem, may from time to time secure the debt or any 
 part thereof by a mortgage upon the land, church, meeting-house, 
 chapel, book-store, i)rinting-onice or otlier buililing; or may 
 borrow money to pay the debt or part thereof, and may secun- 
 the repayment of the loan and interest by a lilse mortgage upon 
 .sucli terms as may be agreed upon. 
 
 (2) The authority conferred by this section to mortgage land 
 as security for a debt contra<'ted for the building, repairing, ex- 
 tending or improving of a church, meeting-house, chapel, book- 
 store, prinling-oflice or other building on land held for the 
 benefit of the society, shall extend to any land so held, although 
 the church, or other building, in resjject of which the debt is 
 contracted, is nut erected on the said land. R. S. O. 1887, c. 237, 
 s. 8. 
 
 H. In tile case of separate but contiguous parcids of land held 
 under separ;ite conveyances by trustees for the same religious 
 society or congregation under this Act, if such piircels of land be 
 so used, occupied, or built upon as to become indivisible except 
 by the removal, alteration <ir destruction, in whole or in part, of 
 such user, occupatinn or building, the trustees of such parcels 
 may join in any mortgage, authorized by section 8 of this Act. 
 r)2 V. c. u4, s. 3. 
 
 R. S. O. 1897, CHAPTER 127. 
 An Act respecting Interest. 
 
 H 
 
 VAX Majesty, hy and with tlic advice and consent of the 
 Senate and Hou.se of Commons of Canada, enacts as follows: — 
 
ACT UESPKCTINc; INTKUKST. 
 
 W'i 
 
 be 
 
 •ept 
 
 of 
 
 >ols 
 .ft. 
 
 the 
 
 I. Except as otherwiHo provided by this or by any other Act 
 of the Parliament of Canada, any person may stipulate for, allow 
 and exact, on any contract or aKreement whatsoever, any rale of 
 interest or discount which is agreed upon. C. S. C. e. iiS, s. ;<; 
 38 V. c. 18. s. 1. 
 
 *i. Whenever interest is payable by the aKreenient of parties 
 or by law, and no rate is fixed by such agreenirnt or by law, the 
 rate of interest shall be six per centum per annum. C. S. C. e. 
 58, s. 8; 3r, V. c. 71, s. 1. 
 
 INTKUE.ST 0\ MONEYS SECIUUKD oX MOKTi; AdK. 
 
 3< Whenever amy principal money or interest secinod by 
 mortgage of real est;ite is, by the same, nuule payable on the sink- 
 ing fund plan, or on any plan under which the payments of jirin- 
 cii)al iMiiney and interest iU'e blended, or on ;iny plan which 
 involves an allowance of interest on stipulaled rei)ayinents, r.o 
 interest whatever shall be chargeable, payable or recoverable, on 
 any part of the principal money advanced, unless the mortgage 
 contains h statement showing the amount of such principal 
 money and the rate of interest chargeable thereon, calculated 
 yearly or half-yearly, not in advance. 43 V. c. 42, s. 1. 
 
 4* Whenever the rale of interest shown in such statement 
 is less than the rate of interest which would be chargeable by 
 virtue of any other provision, calculation or stipulation in tin? 
 mortgage, no greater rate of interest shall be chargeable, payable 
 or recoverable, on the principal money advanced, than the rate 
 shown in such statement. 43 V. c. 42, s. 2. 
 
 5« No fine or penalty or rate of interest shall be stipulated 
 for, taken, reserved or exacted on any arrear of principal or 
 interest secured by mortgage of real estate, which has the effect 
 of increasing the cha.rge on any such arrear beyond the rate of 
 interest pay.-ible on principal money not in arrear; but nothing in 
 this section contained shall have the effect of prohibiting a con- 
 tract for the payment of interest on arrears of interest or prin- 
 cipal at any rate not greater ihan the rate payable on principal 
 money not in arrear. 43 V. c. 42, s. 3. 
 
 <». If any sum is paid on account of any interest, fine cr 
 penalty not chargeable, jjayabie or recoverable under the three 
 sections next preceding, such sums may be recovered back, or 
 deducted from any other interest, fine or peaalty chargeable, 
 payabli' or recoverable on the principal. 43 V. c. 42, s. 4. 
 
 s 
 
m 
 
 FOIU'.CLOSUIIK ()!•• M(»lt'ni.\<ii:s. 
 
 :i ' 
 
 T. Wh^novor any principal money nr inttroRt sooured by 
 nioriKiiKO of i(>iil estate Is not, iiinler the terms of the mortRaKe, 
 payable till a time more tban live years after tlic date of ibe 
 niortKage, tbi'u, if, at any lime after the expiration of such five 
 years, any person liable to pay or entitled to redeent the mort- 
 gage tenders or i)ays to the jierstm entitled to receive the money, 
 the !imoiint. due for principal money and Interest to the time of 
 payment, as calculated under the lour s<'ctlons next preceding, 
 together with tiiree months' further interest in lieu of notice, no 
 further interest shall be cbiirKcable, p.iyable or recoverable at 
 liny time thereafter on the |)rincipal money or interest due under 
 the morlKago. 43 V. c. 12, s. 5. 
 
 H. The i)rovlsiiins of the five sections next preceding shall 
 only api)ly to moneys secured by luortgage on real «'state 
 executed after the first d.-iy of .luly, in the year mie thousand 
 eight huutlrod and eif^hty. l:i V. c. \2, s. (i. 
 
 53 \'lCTORI.\, C IIAI'TMR '34 (I)o.M.). 
 
 An Act to amend ('lia|)ter 127 of the Revised Statutes of Canada, 
 intiluled "An Act resjiectin^' interest.' 
 
 [^Issi/z/r,/ /(I lOtli M(i\\ /Si)o, 
 
 "ITER Majesty, by and witli tlio advice and consent of tlio Senate 
 ■* *- and House of Commous of Canada, enacts as follows : — 
 
 1. Section seven of chapter one hundred and twenty-seven 
 of the Revised Statutes of Canad;i, intituled " An Act rcsp(>(ting 
 Interest," is hereby amended by adding thereto the fcdlowing 
 proviso: — 
 
 Provided, however, that nothing contained in this sectien 
 shall apply to any mortgage upon re.il estate given by a joint 
 stock c(imi)any or other corporation, nor to any debenture issued 
 by any such company or corporation for the payment of which 
 security has been given by way of mortgage on real estate. 
 
 ?}• Sections nine to thirty, inclusive, of the said Act ar 
 by repealed. 
 
 tlO— 01 Vic. c. y, (An Act respecting Interest) docs i^tapi)ly to 
 mortgages on real estate. 
 
PART IV. 
 
 A COLLECTION OF FORMS AND I'RECEDEMS 
 
 RELATING TO FORECLOSURE. 
 
 %\ 
 
 1. 
 
 H 
 
 ^ 
 
mr 
 
 ¥ fi I 
 
APPENDIX OF FORMS. 
 
 IXDOHSEMI<:XT OF WIMT (APPENDIX TO RUI ES 
 
 FORM No. 9). 
 
 m 
 
 01) Py inoitfrajfpo for salo and for imnuMliatc 
 
 iiu'iit and jtosscssion 
 
 Piiy- 
 
 rr 
 
 The plaintitl's claim Is on 
 
 dav of 
 
 niad«' lK'(\v«'tMi 
 
 a moi'toasc dated tho 
 
 posit of title d('<'ds). and tliat W 
 
 (or l»v dc 
 
 forced l)y sale (\\] 
 
 le inortj;a};e niav ' en- 
 
 lere desin-d add, and iM.vnient (,, tl 
 
 Idaintiir l».v the defendant i.ersonally of any balance). 
 (If immediate j.ayment is desired add) and to i 
 
 10 
 
 cover from yon, the (h-fcndant 
 
 '('- 
 
 aj,Minst whom the relief 
 
 (naminj;- the defendant 
 
 amonnt due under a 
 
 is claimed), payment of tli 
 
 contained in said mort;-ai-e (or as tl 
 
 covenant by (yon) in that behalf 
 
 (If immediate jtossi'ssio 
 
 le case niav be». 
 
 recover immediate possession of tl 
 
 n is desired add). 
 
 and 
 
 (> 
 
 mises. 
 
 le mortgaged i)re- 
 
 is n 
 
 And take notice Unit the plaintilV d 
 o\v due by \u\i for pi-incijial 
 
 liiiis that there 
 
 (If so add) and for t 
 
 niom-y ili(. sum of S 
 
 other matters) the sum of .f 
 
 •^""' <•*'•'? and that vol 
 
 with these sii 
 puted at the rate of 
 and 
 
 ixes (or [>reminms (►f insiir 
 
 nice or 
 
 and for interest the 
 ire liable to be char«;ed 
 
 nis with subse(|iieii( interest to 1 
 
 >e cuni- 
 
 •osts in jind by the judf-nient to be d 
 (hat in default of payment thereof witl 
 months from tin? time of d 
 
 per centum per annum 
 
 ''i>wn ii|». and 
 
 I in six ( 
 
 alend. 
 
 ir 
 
 interest in the property mav I 
 
 '•iiwiufr np the jndf^nient v 
 
 our 
 
 time allowed you for a])iM'aranee 
 
 >e sold, unless before tl 
 
 within named a memorand 
 
 you file in the oHi 
 
 le 
 
 ce 
 
 nclion and siLMied bv v( 
 
 nni in wrifinj;. entitled in tl 
 
 following en'uet: "I disnut 
 
 Hirself or your solicitor t 
 
 lis 
 
 o tin 
 
 spute the amount claimed by the 
 
i 
 
 p 
 
 
 i il I 
 
 ! ! 
 
 t I 
 
 368 
 
 FOHECLOSUUE OF MORTGAGES. 
 
 plaintilf in this action," in wliicii <jis(' you will be en- 
 tilU'd to foni* (lays' notice of the taldn;- of the account 
 of the amount due to the plaint ilf. 
 
 The followin;;- is a «l<'Sci-i[)tion of the nioi-tj;aji'ed 
 premises: (Set out description sutlicient loi' rej»islra- 
 tion). 
 
 (') liy moi't}ia;iee for foreclosure and for immediate 
 l>ayment and possession. 
 
 Tlie i)laintill's claim is on a mortjia}it' dat«'d the 
 day of made l»et\v«'en (or by de- 
 
 posit of title deeds), and that the mortjiajie may be en 
 forced by foi*eclosure. 
 
 (If imuMMliale |>ayment is desired add.) And to re 
 cover from you, (he <lefendant (naminji,- the defendant 
 aj>ainst wImmu the relief is clainiedi. i>ayment of (he 
 amoun( due under a covenant by (you) in that behalf 
 contained in said mortj-aj-*' (oi- as tln' case may be). 
 
 (If order f(M' immediate poss«'ssion is desired add.i 
 And (ake notice, fuither. that the plaintiif claims to be 
 entitled to recover immediate possession of the mort- 
 jia;>«'d premises. 
 
 And take notice that the plaintiif claims that there 
 is n<»\v due by you foi* ])rincipal money the sum of .f 
 (If so add) and for taxes (or premiums of insurance or 
 otliei- matters) tlu' sum of -f and for Interest 
 
 the sum of I and that you are liable to be (harmed 
 
 with these sums and subseipient interest to be com- 
 l>uted at the rate of pei' centum per annum and 
 
 costs, in and by the judgment to be drawn up, and that 
 in default of i>ayment thereof within six calendar 
 months from the lime of drawing; up the judjiuient your 
 interest in the property may be foreclosed unless before 
 the time allowed you for appeai'ance. you file in the ottice 
 within named a memorantlum in wntiu}!' entitled in this 
 acti(»n and sijiued by youi-self ov youi' s(dicitor to the 
 followinji' elTect : "I dispute (he amount claimed by the 
 jilaintifT in this action." in which case you will be en- 
 titled lo four days' no(i<'e of the takiufr of the account 
 of the amount due to the [tlaintiff. . 
 
=n^ 
 
 APPENDIX OF FORMS. 
 
 869 
 
 sfeJ <;f 7 T " ""'' '' ''" "'0'tj,a^.d premises i„- 
 tal of a foreclos.nv, and do not intend to d.tVnd the 
 ; .ion von nn.st. within the tin.e allowed fo. apne • 
 
 ^Mit.njjT, entitled m thi.s aetion and sij-ned l.v vonrsHf 
 or your solicitor, to the followin-^ etlWt .'i d 
 
 -le of the n.H.a.ed pn.dses C, 2 ;,ai,'i'7 ;;,: 
 ^..r„n.ons„.n,ioned, oraeon,.^ 
 
 -vie, se. n . ; "■'■"" '''^' ^""' ^^'' •*'^" '<> "'eet the 
 
 (•<Mii-f ,.. .. ■ «'>mmUu,t of tli,. Sunrciio 
 „;,;r. ^'' '■""'•' """ ^"'- 1"-' •" *■-" I- 1h"„ 
 
 P~ . (Set out ,Iescn„t,o„ .sufficient fo.- ,,-,.,. 
 
 </) I5y Mortjja-ror for Kedeniption 
 >Nl.nt If anyth.no, is due on a n.ortjrajje dat.'d 
 
 No. 28.-EXTin; OF AVVKAUAyCE IX ACTIOX For 
 T.AXI) LI^riTIXrj DEFEXCE. 
 (Rule 1S4.) 
 (Title, etc.) 
 _ Enter an appearanc.. for the defendant fn 
 
 ns aetion. The said d.-fendant lin.its his d.fenee to 
 I>.nt ..nly of the property mentioned in the writ of snm- 
 nions, namely, to 
 
 I>ated the 
 
 day of 
 CJ^ifrned) 
 (Address) ' 
 Th(> said d«'fendant 
 n statement of claim to he delivered 
 
 Con. Rules. Form 04 
 
 n.r.M.— 24 
 
 IS 
 
 require 
 
 ■it ;'. 
 
 i 
 
i^ 
 
 t |i 
 
 h! I 
 
 m 
 
 \ 
 
 :i70 FOllECLOSURE or MOllTGAGES. 
 
 Xo. 4G.— NOTICE DISPUTING AMOUNT. 
 (Hule 170.) 
 In the IIij?h Court of Justice. 
 
 Between 
 
 A. IJ., plaintiff, 
 
 and 
 C. D., defendant. 
 
 Take notice, tliat tlie defendant dis|>utt's the amount 
 claimed bv the phiinliff (or, llie defendant insists tluit 
 tlie amount due to llie plaintitf is | only; or, 
 
 the defendant insists that tlie amount due to the plaintitT 
 is $ for principal and f for interest, since 
 
 the day of 
 
 case may be). 
 
 Dated, etc. 
 
 , etc., and no more (as the 
 
 (Signed) 
 
 To 
 
 Solicitor for defendant. 
 Con. Rules, Form 15. 
 
 No. 47.— NOTICE LOIITING DEFENCE. 
 (Kule 184.) 
 In the IIijj;h Court of Justice. 
 IJetween 
 
 A. !{., plaintitT, 
 
 and 
 C. D. and E. F., defendants. 
 
 The defendant, C. D., limits his defence to part only 
 of the property mentioned in the writ in this action, 
 that is to say, to the north-west quarter of the lot. 
 Dated, etc. 
 
 Yours, etc., 
 G. II., 
 Solicitor fop the said defendant, C. D. 
 Con. Rules, Form 14. 
 
APPENDIX OF FORMS. 
 
 371 
 
 No. 48.-NOTICE IX LlET' OF STATEMENT OF 
 
 CLAOr. 
 
 (Kule 245.) 
 In tlio nish Court of Justice. 
 \A'rit issuod the day of a.T). 
 
 Between 
 
 A. R, j)Iaintiff, 
 
 and 
 C. D., defendant. 
 
 Notice in Lieu of Sfc(ferne,)f „/ r/alm. 
 
 TJ.e parlienlars of ,1,. jdaintiffs .Iain, her.i,, .,nd 
 tl e rehef and ron.edy 1o wl.iel. h. ,.„i„., ,, , ,' " 
 t.lled. a,,peap by the iudorsen.ent upon the writ of 
 isununons. * " '"^ ""^ 
 
 ^^ The idaintiff proposes that thin action shall be tried 
 Dated, etc. 
 
 X. Y. of No. Toronto Street, Toronto, 
 
 Sohc.tor for plaintiff, or plaintiff in person. 
 
 Con. Rules. Form 1(5. 
 
 ■i; 
 
 'f- fi 
 
 No. 7n.-X0TICE OF ELECTION TFfAT DEFEND XNT 
 
 CONDUCT SALE. 
 
 (Rule ,'^S.\) 
 In the Hi^rh Court of Justice. 
 Between 
 
 A. B„ j.laintiir, 
 
 and 
 C. D., defendant. 
 Take notice, that the ph.intilT elects that the sale 
 o fhe ,nort,^.^ed premises be conducted by vou instead 
 ot by the plaintiff, and you are at Hberty'to "ilhdraw 
 
372 
 
 FOIIECLOSUUE OF MOU'ITJAGES. 
 
 iil 
 
 I 
 
 !■' 
 
 the depoHit nuulc by you in this ('juise for the purpose 
 of such sale. 
 
 A. K, 
 Plaintilfs solicitor. 
 To (lofondant, 
 
 and C. I)., his solicitor. 
 
 Con. KuU's, Form .')2. 
 
 Xo. 77.— NOTICE TO INCr^MHRANCERS. 
 
 (Rule 74(5.) 
 
 In the Ilijih Court of .lustice. 
 
 Between 
 
 A. 15., idaintilT, 
 
 and 
 C. D., defendant. 
 
 Whereas an acti«)n has been inslitiited l»y the above 
 named plaint ill" for the foreclosure (or sale) of (or en- 
 forcement of a lien on) certain lands (insert description 
 of lands), and I have been directed by the .jud};nient 
 made in this cause, and dated the day of 
 
 to inquire whether any person, other than the jjlaintilT. 
 has auy charjjc or lien, or incumbrance upon the said 
 estate. And whereas it has becu made to appear before 
 me that you have each some lien, charj^e or incumbrance 
 upon the said estate, and I have therefore caused you 
 to be made part to this action, and have a])pointed 
 the day of . at o'clock in the 
 
 noon, for you to appear before me, at my 
 Chand)ers at , either in person or by your 
 
 solicitor, to prove your claims. 
 
 Now you are hereby required to take notice : 1st. 
 niat if you wish to apply to discharjje my order makiu}; 
 you a party, or to add to, vary, or set aside the judjr- 
 ment, you must do so within fourteen days after the 
 service hereof; and if you fail to do so, you will be 
 bound by the judgment, and the further proceedings in 
 
APPENDIX OF FORMS. 
 
 373 
 
 this cnnsc. as if you were ori;ri„.,iiv ,„a,l<. a party to 
 111.' ii(li..n. L'lHl. Thai if yo.i fail io a(l»M.(l at tin- time 
 iiiKl i>la.(' app.Miil.'d. you will l.c licatcd as dis.laiiniii^' 
 ill) inl«'n'st in llic lan<i in (pn'stion. and it will hv doalt 
 with as if yon had no claim thcmui, and your claim will 
 lie in fact foreclosed. 
 
 Dated this 
 
 dav of 
 
 To 
 
 A.I). IS . 
 W. L.. :M aster. 
 
 <'on. Hnh's, Form .'54. 
 
 Xo. 7S.— Al'POIXTMKXT. OS UKFVAiKSrK AS 
 
 iX(;rMi{UAX<;E. 
 
 (Itulc 74S.J 
 
 TO 
 
 In the Hi^ri, (',„iit of .Fust 
 
 ice 
 
 I{et 
 
 ween 
 
 dated tl 
 
 A. It., plaintitr. 
 
 and 
 C. ])., defendant. 
 
 Ilavinj; been directed by the judgment in tl 
 
 lis cause 
 
 dav of 
 
 to iminire wliether 
 
 1,'e 
 
 Jiiiy person other than the plaint iff has anv lien, char 
 or incumbrance up(m the lands in the pleadin-s men- 
 tioned, bein^i (insert description of lands). I herel 
 
 point the 
 in th( 
 
 dav of 
 
 next, at 
 
 y aj) 
 o'clock 
 
 noon, at my Chambers at 
 
 proceed with the said i 
 
 n<|iiirie 
 
 And y<ni are hereby re(|uired lo ial<e not 
 
 .von fail to attend ai ilie i 
 
 to 
 
 ice that, if 
 
 reference may be pi-oceeded will 
 
 Mif and place appointed, tin 
 
 you will be treated 
 
 land 
 
 110 claim thereon, and 
 closed. 
 
 1 in your absence, and 
 as di.-claimiiijr all interest in the 
 
 1 as if you had 
 
 in (|neslion. and it will be dealt witi 
 
 your claim will I 
 
 »e. in fact, fore 
 
 Dated thi.s 
 
 day of IR . 
 
 W. L., Master. 
 Con. Rules, Form 35. 
 
I, If '" 
 
 374 
 
 FOllEC'LUSfUlO OF MOirn^ACJKS. 
 
 No. 85.— STANDINCJ CONDITIONS OF SALE. 
 
 (Uule 7U:{.) 
 
 1. No jtcrsou yball advance ksss than |1(J at any bid- 
 dinj^ under .^50(1, nor less llian ^'2^^ at any bidding over 
 $5(10, and no person sliali retract his bi(hlin<f. 
 
 2. The highest biddi-r shall be the [Mirchaser; and if 
 iUiy dispute arise as to I lie last or highest bidder, tlie 
 property shall be i»ut up at a I'ornier bidding. 
 
 Ji. The parties to the actiiui, with the exception of 
 the vendor (and, naming any i»arties, trustees, or others, 
 in a liduciary situation}, shall be at liberty to bid. 
 
 4. The purchaser shall, at the time of sale, pay 
 down a deiK»si(, in proporticui of flO for every f l()l> of 
 the purchase uMUjey, to the veudcu-, or his solicitor; and 
 shall pay the remainder of the jiurchase money on the 
 
 <lay of next ; and ujion such i)ayment, 
 
 the purchasei' shall be entitled to llu' conveyance, and 
 to be let into jtossessicm; the purchaser at the tiuu? of 
 sale to sign an agreenu'ut for the comph'ti«ui of the pur- 
 chase. 
 
 5. The jMirchaser sha!l have the conveyance pre- 
 pared at his own expense, ami tender the sanu' for ex- 
 ecution. 
 
 (I. If the |»ui'chaser fails to comply with the condi- 
 tions af<u'esaid. or any of them, the deposit and all other 
 payments made thereon, shall be forfeited, .and the 
 premises may be resold; and the deliciency, if any, ])y 
 such re-sale, togi'ther with all cliarg<»s attending the 
 same, or oct-asioued by the defaulter, are to be made 
 good l»y the defaulter. 
 
 Con. Iiules, Form 4;i. 
 
Al'I'ENDIX OF FORMS, 
 
 87/ 
 
 Ko. SG.— KEl'OKT ON tSALE. 
 (Kule 7;{1.) 
 
 In the lliL'li Court of Jusst 
 
 lee. 
 
 liet 
 
 ween 
 
 Vm 
 
 A. J{., plaintiir, 
 
 and 
 C. D., defendant. 
 
 snant to (lie jiidj-iiiciit (oi* ordei-j of this II 
 
 able Couit, bearin*' date II 
 
 made In tliis ca 
 
 dav of 
 
 ononr- 
 and 
 
 «ui)mii(' Com-t of .Jiidicat 
 after notice t<») all pai-tics 
 
 ".se, I liav<', under llio IJuk-s „f t|, 
 
 tisenient and pai-ticulai 
 
 nre, in the presence of (or 
 eoneerned, settled an adver- 
 
 sale of the land 
 
 s and conditions of sale, for tli 
 
 judgment (or ordei 
 
 s nicnlioiit'd or referred to in tl 
 
 •), and such advertisement I 
 
 aceordinj; U> my directions, been published in il 
 inj;' the newspaper or newspaixM- 
 
 weeks inmicdiatt'ly prcccdin"-- 11 
 
 for (h< 
 
 le sai<l 
 
 lavmj,', 
 
 le (nani- 
 
 •). <»nc(' ill each week 
 
 sale (or as the case may hci, and hills of tl 
 
 lia 
 
 If said 
 le said salt; 
 
 vinj.' been also, as directed by me, published in d 
 
 ent parts «»f the lownshii» •'<> 
 the adjacent county and vill 
 
 be), the said lands wei 
 
 \\u or city) of 
 aj^'es (or as tli 
 
 iller- 
 and 
 
 • ' case may 
 
 e oll'eit'd for sale by [)ublic au( 
 
 tion, accordin^^ to my aitpointmeni, on IIk 
 
 of 
 
 day 
 
 by me (or bv Mr 
 
 of 
 
 appointed by me for that jMirp.ise. auclioneen. and such 
 sale was condin-ted in a lair, open ami proper mannei-, 
 of , was declared the hij,Miest 
 
 'canie ihe |)iirchaser of tlic s.iiiie. and 
 
 when 
 
 bidder for. and h 
 
 the price or sum of | 
 
 shortly the conditions of sal 
 
 chase nion< v). 
 
 , payable as folhtws (set out 
 e as to payment of the pui-- 
 
 All which havin<r been jtroved to my satisfaction 
 by projM'i- and sunicienl evidence, I juimbly certify to 
 this Honourable Court. 
 
 Dated 
 
 Con, Rules. Form M. 
 
 IJ 
 
f 
 
 ate 
 
 F(Jl{ECL()SL'ltE OF MOllTUAOLS. 
 
 Hl<> 
 
 ii 
 
 • ti-i 
 
 No. in;}.— FOKM OF ,H'1)(JMKXT ON I'K.KCIl'E FOli 
 
 SALE (Hi FOliFCLOSlKK W ITII UFFKUFNCF 
 
 ASTO INCl'.MHUANCKS, ETC., AMJOHDKKS 
 
 FOK IMMEDIATE PAYMENT AN1> DE 
 
 JilVEHV OF I'OSSESSION. 
 
 (TilK', dalt', vW.) 
 
 1. rpon the iippliciitioii of the [tliiiiitilT iiikUt Kiilc 
 No. iiUii, of llic Knh's of the Siipi'oiiie Court, aiid niMtii 
 roadiii;; the writ of siiniiiioiiN isHuod in tliis iictioii, and 
 indorsed undei- Kule No. 141 |and tlie statement of claim 
 (if an.vi and the statement of defenee where the facts 
 entitlin^r the plaintitT to jn<l^nnent are admitted Itv the 
 defence |, and an atVidavit of, etc.. tiled, v\v. (where jndj;- 
 ment is iddained bv default of appearance or defence 
 add, And an altidavit of, etc.. of service of the sai<l writ on 
 the defendant, and no appearance havin^j; been entered 
 in the said action (or. an<l the defendant havinji nmde 
 default in deliverinj*' a defence), as bv the boolis in tlie 
 central oltice (,or the ollice of the at ) 
 
 appears. ] 
 
 '2. It is oi'dered and adjudj^ed that all necessary in- 
 quiries be made, accounts taken, costs taxed, and pro- 
 ceeding's ha<l for i-edemption <u* sale (or redempticMi or 
 foreclosui'e). and that f(U' these purposes this cause be 
 leferi'ed to the Master of the Supreme Court at 
 
 3. [VVJiere judgment is I'or immediate jmyment add. 
 And it is further ordered and adjudj^ed that the defen- 
 
 dant 
 
 of .f! 
 
 do forthwith pay to the jdaintill the sum 
 beinjif the amount' due to him for principal 
 
 money, int<'rest and costs at the date her«»of: and ni)on 
 payment of the amount due to the jdaintill" (when judji- 
 ment is for sale add. Before the sale hereinbefore direct- 
 ed sluill have taken i)hice) that (subject to the provi- 
 sions of section 2 of the Act respecting; Mortj^ajjes of 
 Keal Estate) tlu' plaintitT do assijjn and convey the mort- 
 j;a}?ed ]>remises, and deliver up all documents relating 
 thereto.] 
 
n 
 
 AI'I'KXDIX Ol" FORMS. 
 
 377 
 
 4. (WIiciv jndjiiiH.nt is f,,,. wrmrvy of |M.ss..ssion 
 H(kl, An.l it is fm(|„.r „n|,.,<.,| muI inljiMlu..,] d,,,, (|„. 
 •U'f.'iHli.iK «!,) lorliiwidi .l.-livci- I,. II,.. |,|;,iiititr. (M- lo 
 whom I,,, niil.v .-.ppoinl. possrssioii of Ww hiinls iiiui pir- 
 
 ""^•'•^ '" •'^J'o". 1" this .iins,.. ,„. „f su.h |Mit (hnoof 
 
 lis niiiy 1m' ill Ihr possession of IJK- s;iid .h-IViMliml.) 
 
 Coil. Kuii's, Foiiii iS'2. 
 
 \o. 154.— FOKM OF .irFMSMKNT ()\ l»Kj:rnM-: F(H{ 
 
 F()KK(L(KSrKK (U{ SAM-;. ACCOl NT TAKKX 
 
 in- KFClSTItAK ANDoiiDKKS i'OK l.M- 
 
 MFDIATF I'AV.MKXT AND DF- 
 
 LIVKIJV OF FOSSFSSION. 
 
 ( K II h- .".!)(;.) 
 (Title, (liilc, elc.) 
 1. I'pon tlic iipi.li.Mii.m or III,. pij,iiitiir niKl.T Itulo 
 No. oJM;, of t|„. Knlos of 111,. Supiv,,,,. (N„ir(, ;ui.l upon 
 iViMlinj.- til,, wiii „f siininions issn.Ml in this ii,li.,ii. iin,l 
 ■ndors.-d uiMlor H„|,. n.». 141 [an.l the .stnteniont of claim 
 (It aii.v), ami stalicnuMil of d.-IVn.-o whnv ih,. fads ontit- 
 linjf the plaintiir to jnd-im'nl aiv adniili,.,! hv iho do- 
 tence],an<lanafli.Iavit of , fild, etc. where jud.- 
 
 ""'"( is ohtained by d.-fanlt of appeanime or defenn. 
 a<M. Ami an aiH.lavit of ,,s to the senie,. <.f tli.- 
 
 suHl writ on the def.'n.lani, ami no app.-arane.. havin- 
 l'«vn eiiKMUMl in the said .•i.tion (or, ami the defomlant 
 hiivinj.- mad.' default in d.'liveiino- ;, .jefence) as by the 
 ('•"••'-"^ '■» <1h' otIi.M- of li.e .,t ) 
 
 appears] ; 
 
 2. This Court tinds (hat th.' subs<..ineii1 inteivst at 
 
 the rate of ,„.,. ,.,.„|„ni per annum on (he sum of 
 
 pi-ineijial nion.-y s.',ure<l bv V.w in.lenlure 
 
 of mort-a-e in th,. writ of suniimms (,>r"ph*Mdinos) ,n,.n- 
 
 ■oned, up to the day of next, bein,Mhe 
 
 time appoint.Ml for paym.-nt as lierei„aft..r m.'ntioned 
 
 amounts to , ,,iid that tin- costs .»f the plaintiir 
 
 ""•0""t to , whiel, said subs.Mpient 
 
:ns 
 
 KOUKCLOSL'UK (tF MoUTOAOEH. 
 
 m t 
 
 I! I 
 
 pi ; 
 
 interest jmhI costs heiii;; inidcd to I lie sum of 
 
 elaiiiK'd l»v the iiMloiseiiieiil (Ml tlic will sci-ved on the 
 
 (lel'eiKhllil 
 
 make loj;etliei' llie sum of 
 
 Ami upon the said defendiint paving: thf said sum 
 
 • f 
 
 into tlie 
 
 bunk 
 
 ill tile 
 
 lietween I lie Ikmii's of tell o'clock ill the forenoon and one 
 o'clock in the afternoon of the dav of 
 
 next, to the Joint credit of the plaiiitilT and ilie Account- 
 ant of lilt' Supreme Court of Judical are (wlicre order l"i»r 
 Itaviiieiil ;;raiiled insert, Or in case the phiintitl' shall 
 (wlicie jiid^nieiii is lor sale add, Jjeroro the sale herein- 
 after directed shall have taken place) recover the amount 
 due to him under the order lor pavment hereinafter cmi- 
 tuinedj, ii is ordered and adjiid^ied (siihjecl to tlie pro- 
 \ isioiis of section - id' the Act respecting Morlj^a^^es of 
 Heal I'lstat)'!. that the said plainlilV do assi<{n 
 
 and convey the ni(Ul;;a;;«'d [nu'inises, and ihdiver up all 
 documents relatiii}^ thereto. 
 
 I. r>ut in default of the said defendant making 
 
 such paymeiil l»y the time afor<'said, it is ordered and 
 adjud;^('d (wliere Jud<;meiil is for foreclosure, after 
 "adjudged'' add, '■ That the said defendant do stand 
 absolutely debarred and foreclosed of and from all etjuity 
 of redemption in and to the niorl«;a^ed i>reniises"; 
 (where iiidniiieiit is for sale, then after the words " ad- 
 jud<;-ed " add, " That the said premises be sidd, with the 
 approbation id" the .Master of the Supreme Court of 
 
 Judicature at 
 
 ). 
 
 5. ( If jud^iueiil is for fore<dosiire omit this clause). 
 And il is further (udered and adjudjicil that the pur- 
 chasers do pay their purchase money into Cmirt, to the 
 credit of this cause, and that the same when so paid in 
 be apjdied in payment of what has been found due to 
 the said plaiiililf. to};ether with subsequent interest ami 
 subse(|uenl costs, ty be computed and taxed by the said 
 Master, and that the balance do abide the further order 
 of the ('ourt. 
 
 0. (Whei'e jiidjinuMit is for immediate payment add). 
 And it is further ordered and adjudj^ed that the defen- 
 
ai'1'i;ni>i.\ or I'oitMs. 
 
 :}7!) 
 
 (lanl <l<> foi'tliw itii pjiy lo (Ik* pliiitililT the siiin 
 
 of , Ix-iii^ (Ik* illlKMlliI (liir to hiiii iit the liiltr licl'cot' 
 
 for |)i'iiiri|iiil iiioiK'v. iiiirrcst jiiid costs. 
 
 7. (Where ju<l;41lieiil is fof fecoveiv of possession 
 n<i(ll. AikI il is fllllliei- nidcietl :iihI il<IJllil;^e(l liiiit Hie 
 «|efell<|;ilil do foil iiw il II deliver lo Hie plililllilV 
 
 or to w lioiii lie iiiiiy iippoiiii, possessiiiii of Hie iiiorl^ii;;ed 
 premises, (ir of sileh p;ill tlieieof iis niiiv he in Hie pos- 
 Hession of Ihe siiid defeiidiiiil. 
 
 Con. I{iiles. JMMin Is:;. 
 
 tr- 
 ie 
 
 X(). ir..".— F()i:.M OF .iriMlMKNT (►%■ JMJ.KCIl'K FOl! 
 
 J{FI»F.MIT1(»N. 
 
 (Tllle. diite. ele.) 
 
 1. r])on t!ie npplicalion of Hie phiinlilV under Kiile 
 No. r>!MJ, of Hie liiiles of Hie Supreme ronrl, and upon 
 reading Hie will of summons issued in lliis iielion [iuiil 
 llio slatemeiil of elaini (if any) and sialemeiil of defence 
 where Hie facts eiitilliiij; Hie |»laiulilV to jnd;iiiieiil are 
 admilted by the defemej, and an allidavii of, etc, liled, 
 etc. [where Jiidjiinent. is oldaiiied l»y default td" a|»i»ear- 
 aiice »U' defence add. And an allidavii o\\ elc., liled. etc.. 
 of service (d" the said writ on Hie defendant, and no 
 appearance liavin<i- heeii entered in the said action (or, 
 and the defendant havinji made default in deliverin;;; 
 a def<'nce) as liy the il)0(d;s in I he (dlice of the 
 at I appeal s); 
 
 L*. It is ordereil and adjud;;,ed that all necessary in- 
 qniries ho made, accounts taken, costs taxed, and [»ro- 
 ceedin^is Inul lor the redemption of the lu-emises in 
 ♦HU'stion. and Hial ftn- this imrpose the cause l»e referred 
 to the Master of the Supii'ine r(»url ^t\' .ludicaturt* 
 at 
 
 .'i. And (subject to the provisions uf section 2 of the 
 Act respectiii}; Mortj;a <•«'!•. cd" Heal l']slate\ it is further 
 ordered and adjnd;.;ed that, ni»on the plaint ill" payin;^ 
 
L 
 
 " 
 
 .'I. 
 
 
 380 
 
 FOUECLOSUllE (/F MOIlTOAfJES. 
 
 to the defendant what shall he fonnd dne to him, or in 
 case nothing; shall be found due to the defendant, theji 
 forthwith after the contiinuition of the said Master's 
 report, the defendant d«> re-eoiivey the said niortjiafjed 
 l»r(Mnis('s, and deliver \\\} all documents relalinji thereto. 
 
 4. And it is furtlu'r (U'dei'ed and adjutljied that in 
 case the ]»laintitf shall make default in payment as 
 aforetMiid, of what may Im* found du«* to the defendant, 
 that the jdaintilf's action do stainl dismissed out of 
 this Courii, with costs to be paid by the plaintilf to the 
 defendant forthwith after taxation thereof. 
 
 5, And it is further ordei-ed and adjiulj>ed that in 
 case nothing; shall be found due from the plaint itV to tin? 
 defendant, that the defendant do pay the plaintiff' his 
 costs of this suit forthwith after taxation thereof, and 
 in case any balance shall be found due from the defen- 
 dant to the plaintitV. that the defen<lant (ht ]>ay such 
 l)alanc<' to the plaintilf fcuthwith after th«' conlirnmtion 
 of the Master's rejtort. 
 
 Con. Rules, Form 184. 
 
 FOKM OF STATEMKXT OF CLAI.M WHEHK MOKT- 
 GAOKE IN POSSESSION. 
 
 In the Ilifjh Court of Justice. 
 
 ^yrit issued the day of , 189 . 
 
 Between 
 
 n. O., i»laintiff, 
 
 and 
 R. W., et al., defendants. 
 
 Statement of Claim. 
 
 1. TTnder and by virtue of an indenture of mortfia^re 
 dated the day of , and made between 
 
 the defendant R. of th«' first part, Eliza Ann his wife 
 (who joined to Imr dower only) of the second part, and 
 the plaintiff of the third part, the plaintiff became and 
 
APPENDIX OF FOUMS. 
 
 381 
 
 now is inorljjjijijct' of all (host' lands situate*, etc., for 
 sc'cui'hi;;- the pavnicnt of !|S5() and interest at the rate of 
 seven jier rent, per annum. 
 
 2. In and by said niortj^ajie the defendant White 
 covenanted to pav the said nioilj^a^'c nM)neys, 
 
 •">. In and by said niort;j:a;;e it is provided that on 
 default in payment of the inten*st thereby secured tlie 
 ]»rin(ipal thereby secur^Ml should beconie j»ayable, and 
 also that intei-esl in ari-ear should bear interest at seven 
 per cent, per annum until paid. 
 
 4. The time for the payment of an instalment of 
 interest has ela|>sed. an<l the same has not been paid, 
 and (he principal secui-ed by the said mortj^ajie has be- 
 come due and payable. 
 
 r». On fu- about the day of . the plain- 
 
 tiff entered int() possession of the said moi't«;aj''e pre- 
 mises, and has receiv<'d as rent therefor the sum of 
 |!r».o(>. but has n«'ressai"ily e.\pen<led in repairs to the same 
 the sunk of |().7S. leavinj^; the sum of |1.L*S owiny by 
 the said defendants. 
 
 (J. Theie was at the <-omn)en<ement of (his action 
 and still is due to the plaintitf under and by virtue of 
 the said mortjiajje security for piincipal money th»' sum 
 «>f fs.'iO. for interest the s»nn of !ii4S.lS. and *1.L'S balance 
 mentioned in paraj^raph tive, which sums make to;>ether 
 the sum of f^!M>.4() 
 
 The plaintitf claims: — 
 
 1. That he may be paid (lie sum of ^siMl.lO and inter- 
 est thereon, and the costs of this suit, and that (he <l('fen- 
 dants be cu-dered to pay the same, and in <lefault thereof 
 that the <>(piity of redemptitm in the said lands may be 
 foreclosed. 
 
 1*. That for the purposes ii foresaid all proper direc- 
 tions may be j,nven and accounts taken. 
 
 .'{. That the jdaintitT may have such further or (»ther 
 relief as the nature of the case nuiy require. 
 
 I 
 
382 
 
 FOllECLOSUllE OF MORTGAGES. 
 
 f 
 
 
 The pliiintitf proposes tluit this action should bo 
 tiled at 
 
 I)<*livei'ed the 
 
 dnv of 
 
 . bv, etc.. 
 
 Special Clduses in Stdlement of Claim 
 
 [Where inort^afjfees in possession o£ some parcels 
 and not of otliei-s : — 
 
 5. The phiintilTs, on or about the day of 
 
 entertMl into the receipt of the rents and jn'ohts of par- 
 cels numbers 1. 2, 8 and H. drsciibed in the said inden- 
 tun* of moHjjraj;*'. in the 1st pai'ajii'aph of this stiit«'ment 
 (►f ehiim recited, and have r<'c('ived certain small sums 
 of rent in respect thereof, all of which sums have be«'ii 
 credited in respect of moneys owiu};' under the said morl- 
 j^ajj^e in statinjr the amount (bu* thei-eon in the statement 
 hereinbefore set forth in that behalf. 
 
 (5. Save and except as in the next ju'ecedinj; para- 
 jjraph of this statemint of claim stated, the plaintitTs 
 have u'lt. nor has, nor ha^e any jierson or pei-sons on 
 their behalf, or for their use been in the occupation or 
 possession <»f the said lands and ju'emises morljia^ed to 
 them by (he said indenture of mort^ajic hereinbefore 
 mentioned, nor in receipt of the rents and prolits of the 
 suid lands or any part thereof. 
 
 The pln.ntilTs claim: — 
 
 'A. That the defendants may be ordered to deliver 
 up to the jdainlitVs (piiet and peaceable p(>ssession of 
 the lands mortjrajied to the plaint itVs by the said inden- 
 ture hereinbefore in this statement of claim recited. 
 
 [Where married woman lias covenanted: — 
 The defendant, Mary .T)\n<' W.. was. at the date of 
 the execntion by her of the said in part recited nu)rt- 
 jra^^e, possessed of separate estiite, in resjK'ct of which 
 she was able to contract and did contract with the plain- 
 tiffs. 
 
APPENDIX OF FORMS. 
 
 383 
 
 [Where inort<^agees have paid taxes or insurance : — 
 
 The said deft-ndanlH further covcnantt'd in and by 
 the said niortgajte wiih (he phnntitt's to pay all taxes 
 and insurance premiums fr<MU lime to tinu' in respect of 
 the mortjAaj-t'd lands and i»remises, and that if the plain- 
 titl's at any time should pay the siime. Avhich they should 
 at all times he entitled to do. any such taxes and insur- 
 anc<' premiums sliould be a eharj^e upon the said premises 
 with interest at the rate aforesiiid. and that the said de- 
 f( ndants would jiay the s'anie to the plaintilVs, an«i inter- 
 est as aforesaid fortiiv ith; and the following; is a specific 
 statement of the amounts ])ayable by the <lelemlanls to 
 the ]»lainlitTs, under -ind by virtue of the aforesaid cov- 
 enants and provisos: — 
 
 Affidavit Provhuj Claim. 
 
 I, , of the of , in 
 
 the county of , inspector (or as the case ma;, bej, 
 
 make oath and say: — 
 
 1. I am the insi)ector of the plaintitT company, and 
 as such have full knowledf^e of the nmtters i»i (lueslion 
 herein. 
 
 2. Now shown to me marked exhibit " A " to this, 
 my attidavit, isi the statement of claim in this acttion. I 
 have read over and examined the same, and the state- 
 ments therein contained are correct, and the amounts 
 tlier<'in stated to be due to the plaintitls on their several 
 mortjia{i;e securities are the amounts which were due to 
 the plaintiffs for principal nion(\v, interest, taxet'. insur- 
 ance premiums and inten'st on arrears respecitively, on 
 the day of A.D. 
 
 3. The plaint itTs liave been in po^sses.'tiini of the mort- 
 pafjed premises desciibed in the thirteenth paraj?raph 
 of the statement of claim. 
 
 4. The i)laintiffs liave used their best endeavours to 
 rent the premises so in their possession, in order to re- 
 duce their claim as far as possible. Any rents or pro- 
 fits received by the plaintitTs in respect thereof, prior to 
 
 I 
 
wn 
 
 384 
 
 FOHECLOSUJIE OF MOUTOAOES. 
 
 , appear and are credited in the 
 fniragraph of tlie statement of 
 
 i !' 
 
 
 m 
 
 lit ''i> 
 
 |!h: f'f! 
 
 ri^'f 
 
 the day of 
 
 statenuMit in the 
 tlaini herein. 
 
 5. Sinee tlie said day of , A.lJ. , the 
 
 plaintilfs have ree«'ived as rent on the several days fol- 
 lowinj^, Hie anionnts set oi»posite to tlie respective 
 dates: — 
 
 G. Since the said day of , A.D. , the 
 
 phiint ill's l»ave, in order to prevent tlie lands beinjf sold 
 for arrears of tsixes. an<l to protect their niortj;ajj;e secnr- 
 ity. paid the arrears of taxes on the lands nn-ntioned 
 in the i:{th paraji;raph of the statement of claim, as fol- 
 lows: — 
 
 7. The plaintifTs hohl as additional secuiity for the 
 "Moneys secnred by the thr«'e mortv!aK<' secnrities men- 
 tio:ietl in the 3rd, 7th and KUh parai^raphs of the state- 
 ment of claim, the derivative mort^ajjes. and the charge 
 mentioned in i>ara<fraph 1!> of the statement of claim. 
 
 S. The jdaintilTs ai'e not now. and never have been 
 since the date of the said m(MM<ira;j:es. nor has. nor have 
 any ]ierson or persons by tlieii' ordei*. or for their nse, or 
 on their behalf been in i)oss<'ssion of the premises mort- 
 j^ajjed by the said three mort;;ajre securities in the .'?rd, 
 7th and i:Uh jtara^raphs of th<> stat«>nient of claim, 
 other than as above mentioiu'd. or in possession of the 
 lands and pi'emises described in the said derivative 
 moi'tji'ajres, and the said cliarjie or any part ther(-of. or 
 in re«'ei|it of the rents, issues and profits of the same or 
 any part tliereof, othej- tliiiu as above mt'utioned. 
 
 0. The plaint ill's have not. nor has n<»r liave any 
 otlwr ]>erson or persons, by the order of the plain! Ill's or 
 for their use, received the said sums (^f money mentioned 
 In the statement of claim or any part llu'reof, except the 
 mon<'ys received for lent since the 2nd day of , 
 
 as above ujenlioned. nor have the plaintiffs been paid 
 the moneys expended l)y them for arrears of faxes sinro 
 the dav of , as above mentiom'd, nor have 
 
 V; i 
 
APPENDIX Ol KJKM.S. 
 
 386 
 
 the plaintiffs ^vcciv,.,]. nor has nor havt^ anv otUiu- m^r 
 son or persons, bv tlio order of the phiintitls "or for their 
 use, received anv ^-.curily or satisfaction whatsoever for 
 the said principal inonev and interest, taxes, insurance 
 prcniiums and interest on arrears r.-spi.tlvelv, or anv 
 l-ait or ,.arts thereof, save an<l excep, fh,. said n.ort^Mj.e 
 secnn les. and .he said derivative inortKaj^M-s. and the 
 said eharye. And a second niort-aj;.- npon other lands 
 which have b<.en sohi hy ,|i.. tirst niortj,'aj,a.e under a 
 power of sahs thus depriving the plaintiirs of (h<.ir secur- 
 ny thereunder. 
 
 S^worn. etc. 
 
 A Coinniissioner, etc 
 
 '' % 
 
 FOini OFOHDKK F(M{ LMMKIHATh: SAIJ-; WNFRF 
 INFANTSroxcKKM.;!) 
 
 In the Ili-h (',„irl olMusi 
 
 ice 
 
 The ironoiirahie Mr. .} 
 
 nslicc 
 
 dav, I Ik 
 
 of 
 
 da^ 
 
 A.I). ISII 
 
 Bel 
 
 ween 
 
 .1. A. 
 
 a. S 
 
 I'laintiir. 
 iiiid 
 
 i:. M. .1.. .M. V 
 
 S.. \V. 1 1 S. 
 
 •M.O. S. iiiHl I'. W S. Kh,. I;, SI live I 
 
 in lit 111 
 
 H'liiir 
 
 >* lllidci' Ihr iiyc (.r L'l 
 
 W. n.. <'XC( lllor (»r (lie I; 
 
 .veil is), and 
 
 S^. S.. de.M'iis.'d. (Icfcnd.iiil 
 
 isi will <d' }{. 
 
 I 
 
 '-. Q.<\, of ( 
 
 poll iiiolioii made (Ills di 
 
 iiiin 
 
 ".V iiiilo I his Chiii 1»v i\,r 
 
 and 
 
 N''l rortliepliiiniiir, f(.rjiidj;meiit I 
 
 ijmn liearing read (he plead 
 
 lei'eiii. 
 
 ir.r.M. 
 
 iiif,'.s anU the affidavits 
 
 ..ill 
 
f!-^ 
 
 w 
 
 1 i 
 
 ■ 
 
 
 ^ 
 
 ^^ 
 
 yUiu., 
 
 386 
 
 I'OP.KCI.OSL'HE OF MOUTOAfJKS. 
 
 of the ])liunlilT and J. I), and W. If., and ilir consont of 
 tho solicitor for tlic adult defendants, and tipon lieanii}; 
 what was allejj;e<l by counsel for the ])la1ntitf, and llu? 
 adult defendants and the oHicial guardian, and counsel 
 aforesaid ccuisentin^ Ihei'elo, and the parties waivinj;; 
 the usual time foi' ledeiuptioii of tlie lands and premises 
 in fpn'stion herein, and this ('ourt ai)provin}:; of this 
 judgment on behalf of the infant defendants. 
 
 This Court doth <H'der and adjudj^e that all neces- 
 s^ary en^iuiries be made, accounts talien, costs taxed, in- 
 dudin}; those o^f the otliciiil ^nmrdian whit h are to be 
 paid by the i»laintitl' and added to his own, and proceed- 
 ings had for the immediate sale of the nioitfjaf^ed pre- 
 mises in the jdeadinjfs nuMitioned, without tlie appoint- 
 ment of any day for redemption, and tliat for these pur- 
 poses this action be referred to tin; Master of this Court 
 at 
 
 (Signed) A. F. M., 
 
 Clerk Weekly Court. 
 
 Judgment signed this ^ 
 
 day of , 18D , in Jiook 
 
 " A," pages ")!):» and r)lK{. 
 
 (Signed) 
 
 J. A. M., 
 
 Local Registrar. 
 
 FOKM OF OHDKK FOK KKFKKKXCK WIIFKK IN 
 FANTS COXCFHNKl). 
 
 1. It is ordeit'd and adjudges! that the Master of the 
 Supreme (Vurt of Jtidieature for Ontario 
 
 «Io (Mupiire and state whHher a sale or fonndosure of 
 tlu' mortgiiged icremis(»s in «iuestion in tliis ca\is<' would 
 be more beneficial for the infant defendant. 
 
 2. And it is further ordered and adjmlged that all 
 necessary enquiries be made, aceonnts taken, costs tax<'d. 
 including the costs of the gusudian ad litem of the said 
 
AI'l'KN'DIX OF KMtMS. 
 
 387 
 
 infant Aviiicli ai<> to be paid h\ tiic plaintilV anil 
 
 addrd to his own. and |)i'oc<'i>din<;s liad for rtMlciuplion, 
 foiH'rIosuic t»i' sale of I In* said prtniiscs. ao-ordiny; as liu' 
 Maid Mastci' may lind foi-cciosiii-i' or sale more Itcndicial. 
 
 o. And it is furtiK-r ordrrtd an<l adjiid^ivd. in llic 
 t'vt'nt of I lie said .Master lindin;!; tliai a sair will Im- nion' 
 hcnclicial, that the pnrrhasci- do pav liis pnrdiasi' money 
 i!ito Coiiit, sniijecl to farther order, and tiiat tin* same 
 when so paid in l»e ap|)]ied in payment of wliat is due 
 to tlie plaintitT. lo^ctlier with subsequent interest an<l 
 Hubse(}uent costs, including; llie sidtsequent costs of tlie 
 said guardian, when •■onii)uted and taxed. 
 
 1 
 
 I 
 
 I 
 
 .: 
 
 W 1 1 K l{ K.I I I )( 1 M l<: N T A < J A 1 N ST M A U K 1 1: 1 ) W ( > .M A N . 
 
 And it is furtlier ordered tliat the amount foiind 
 dtu' to tlu' i)lainlitl's hy tlie di'fendant Mary .lane 
 and costs as ajjainst her be j»aid out of tiie separnle pro- 
 jierty as lu'reinafter nnMitioned. and not otiierwist'; and 
 it is ordered tlnit «'xecution herein as ajj;ainst the ih'fend- 
 ant Mary .lane be limited to tin' separate 
 
 property of the said defendant ^lary .fane not 
 
 Htibje<'t to any restraint a{?ainst anticipation, tiidess by 
 reason of section 20 of The Married Woman's J'roperty 
 Act, such i>roperty shall be liable to executimi notwith- 
 standing; such restriction. 
 
 LENGTH OF NOTiri-: T<H)KFKNI)ANTS OF TAKlNi} 
 
 A ceo r NT. 
 
 Tt is further ordered that the said ( ndants shall 
 be ^iven (four days') notice of th<* takin>; ..(' the a«-c(Mint 
 herein. 
 

 !' \ 
 
 ns-s 
 
 KOMKt'I.OSUitl-: o|.' MOirifJAfiKS. 
 
 
 Fl LLEU PAYMENT CLAUSE. 
 
 It is fuHlMT oi'dcnd that tin' (Iffcndsints C. I), and 
 K. F. do foilliwitii ixUvv tiic iiiiiiciiijjf of tlic Mastcr'H ro- 
 port, piiy t(» tiu' piaiiititV uiiat siiail !><> found due to liini 
 for principal nioncv. interest, insunnue premiums, taxes 
 and e»»sts jit the date of th<' said report, and upon pay- 
 ment of tlie amount due to tiiem. tliat the phiinlitT do 
 deliver up all dotuments relatinj; tlierelo. 
 
 OKDEll FOK A NEW DAY FOR PAYMENT, 
 
 r]>on the a|)]>li(-a<ion of and n])on hearing 
 
 tlio soIi(it«)r for the said applicant , and upon readinj; 
 
 and it appearing that 
 
 I. And an account havin;; bi'en taken of tlu! amount 
 due to the for sultseiiuent interest upon the 
 
 suui of I the i)rincipal money secured by mort- 
 
 <;a;;e in this cause since the lime appointed for payment 
 by up to tile day hereinafter api)oinled 
 
 for payment, the same amounts to tlie sum of $ 
 wliicli beiiiji added to the sum of !^ 
 
 the amount found due by the they make to- 
 
 j;('ther the sum of $ . 
 
 -. And upon the payinj;- the said sum of 
 
 !§' into tJK' Hank of at its braiu'h 
 
 or a}i:ency ollice in the of between the 
 
 hours of ten o'clock in the forenoon and one oN'lock in 
 the jifteriKMUi. of ihe day of to the joint 
 
 credit of the and the accountant of the Su- 
 
 preuK' <'(Mirt of .ludicalure for Ontario. 
 
 :>. It is ordered that the s.iid do assij^n and 
 
 convey the lands and pr<'mises in the pleadinj^s men- 
 tioned. fr(;e and clear of all incumbrances done by him, 
 JVnd deliver ui» all deeds and writinj^s in liis custody or 
 
AIM'ENDfX OF FORMS. 
 
 iWj 
 
 power relating thereto upon oath to tlie said 
 or to whom he may appoint. Hut in default of the siiid 
 making »ueh payment aH aforesaid, it is 
 ordered that, etc. 
 
 AFFIDAVIT OF NOX-PAV.MEXT ItV OFFK'EK OF 
 
 CORI»OKATION. 
 
 In the nigh Court of Justice. 
 Between 
 
 The A. H. Loan and Savings ("o., phiin- 
 
 titfs, 
 
 and 
 
 C. I), and K. F.. defendants. 
 
 I» of Hh' Hi hi (|„. 
 
 county of secretaiy-treasuicr of the above named 
 
 phiintift's, or accountant for tlic al»<>ve named plaint ilfs. 
 make oath and say: — 
 
 1. TluM-e is due to th,' said plaint ills upim and by 
 virtue of a mortgage serunly dated the day of 
 »><1) , in a decree made in tliis cause dated tlie 
 
 <'ay of tlie sum (.f for principjil 
 
 money and the sum of for Intensi on arrears 
 
 and insurance premium as iiy said 
 
 mortgage scurity provided, making fogeihcr the sum 
 
 "'" ^ exclusive (»|" plaintillV costs of this 
 
 suit. 
 
 2. That I. s|»eaking posilivelv loi- nivseif and !(• Mf 
 best of my knowledg.- and belief, as to other oni( .-rs of 
 the said plaintilTs" ctunpany. and other persons wliatso 
 ever lastly, say, that F have not nor hath nor have anv 
 person or pers(Mis by my order, or for the us<' of the saiil 
 plaintitTs received any sum or sums for or on account of 
 tlu' hereditanu'uts comprised in the said mortgage 
 security or any part thereof, nor any secuiitv or satTs 
 
 
m-\m 
 
 m 
 
 i. 
 
 :m) 
 
 I'OiiECLosrni': ov yunvvi ixai-.s. 
 
 ii 
 
 fsK'lioii \vliiilso('ViM' lur till' saul piiiiripiil iiinncy aii'l 
 iiit(M'<'sl rcspcclivclv, siivt' iiiid «'.\r('|»l tlii' said inorlj>;a};t' 
 srciit'ity upon wliicli no paytncnl lias ever Imm-ii iiiailc, 
 «'llh«'i' for principal oi- inlcrcsl, 
 
 .*>. I t'lii-llici' sav iiial said plaiiitill's air iiol now, and 
 siiKM' ilio dale of 111" said inoi-ljuaj^c imvci- liavo Itccn, 
 not liatli not' lia\<' aiiv oilin- jx rsoii or pcisons I>y llicir 
 ordrr or lo inv kno\vlrd;;<' or Ixdicl' lor tlic use of said 
 plaint ilTs Imtii in tin* occnpation ol' said niort^a^i* ]ir<-- 
 inis(^s or anv part tlicrt'ot'. or in r«'i-i'i|ii of tin* profits oi 
 tlio saiiM' or any part lliorcor. 
 
 I. That now sliown to inc and inarkod Kxhibil "A " 
 lo tins my allidavit is a statonicnl of tlio ainonnt due 
 said plaiiitill's under said niorl;ia}i<' striirity on tlic 
 day of 
 
 T). That now shown to mo and marked Kxhildl " l»" 
 lo this my allidavit is a slalcincnl of the amount that 
 will Imioiiii' diio said plainlitTs iiiid<>r said moit^a^<' 
 sccnnly on the day of should thori' 
 
 lif no payments made on arcouiit in the meantinu'. 
 
 Sworn before me. rtr. 
 
 i i 
 
 AFFIDAVIT OF N0\ TAY.MFNT MADK IIY HFPRK 
 
 SENTATIVE OF I^IOllTGAGEE Ol'T OF THE 
 
 JUKISDICTION. 
 
 1. The aliove named ]dainlin' resides at onl 
 of Iho Jniisdiction of this honoiirahle Conrl. and he lias 
 Iteon residinj^ there ever since (insert date). 
 
 2. r am the duly authorized aj;ent of the said plain- 
 lift' in this IM'ovinee, and by ]n>wer of attorney, duly 
 executed by the said ]>lalntilT. T am authorized lo eoUeet, 
 receive and fjive discharj'cs for the moneys secured by 
 the mortgag(i in «]iiestion in tins action, and the mort- 
 
T 
 
 AIM'KNKIX ((!•• I'OKMS. 
 
 ;}!)! 
 
 pane tU'tMl hiiH Im'cii «'\('r since (iiiHcrl date), and hCiII Is 
 in \uy cnstuHv and possession. 
 
 I 
 
 : 
 
 t 
 
 WIIKN A F(H{i:i(;\ rniM'OUATlON. 
 
 I, Tlie above named plainliil' eohipany lias i(s 
 liea<l ollice at onl of llie juiisdiciion ol' litis 
 
 lionoiiiiilde Conit. 
 
 -. I am tile eiiief ajicnl lor Ontario of the said • 
 
 IKii'atioii, and diilv aiitlioii/.ed (hy power of aMi.rnev, or 
 as tlie rjise ma.v Ik-) to sue and accept service of process 
 for said corporation and to collect, etc. (as above). 
 
 Ari'!!)A\'l'r OF N()N-PAYMi:.\'r MADM 15V MoiM'- 
 
 <;A(;i:K in possiission. 
 
 1. I liave not, nor liatli, nor have any person or per- 
 sons by niy order oi- for my use. received the sum of 
 bein;; the amount found due to me by I lie (JudKmenI or 
 i'«'port| in this action, nor any part theicof. nor any 
 security (»r satisfaction for the same or lor any part 
 thereof, but the whole of tlie s.iid sum remains .justly 
 duo and owinj;- to me under the morljiajic security in 
 (piestion in this cause. 
 
 2. 1 am in receipt of the rents and ju'olits of the 
 lands and premises ((uuprised in the said nioit«j:aji(', but 
 I have not, noi- hath, nor have any |ierson or persons by 
 my (U'der, or to the best of my kuowh'djie. Information 
 and belief, for my use. received any ^M'cater sum in re- 
 spect of the rents, issues and jirollls of the said inort 
 jraj^ed premises, tlian the amount wherewith 1 have been 
 Hiarged by the said (.jndfjment or rejiort), except in the 
 followinf; sums:— (Here insert a statement of further 
 receipts, if any.) 
 
^>*^T.^# 
 
 
 .%. 
 
 k:^ -^• 
 
 
 'o^. 
 ^ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 IIM ilM 
 Ilia 111^ 
 
 m mil 2.0 
 
 1.8 
 
 
 1.25 
 
 1.4 
 
 1.6 
 
 ^ 6" « 
 
 V} 
 
 <p^- 
 
 "c^l 
 
 '3 
 
 *1 
 
 ^J. 
 
 V 
 
 /A 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 
 V 
 
 £^^ 
 
 O 
 
 "h 
 
 V 
 
 6^ 
 
 rv 
 
 % 
 
 '^^ 
 
 
 '%'• 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14S80 
 
 (716) 872-4503 
 
 ^- 
 
4^" % 
 
 '<° . ^'^c; 
 
 C/j 
 
 o 
 
:1 
 
 392 
 
 FOUECLOSUUE OF MORTGAGES. 
 
 FORM OF REPORT. 
 
 li* 
 
 ii: 
 
 Is • 
 
 
 m 
 
 In the High Court of Justice. 
 
 Between 
 
 H. G., plaintiff, 
 and 
 i R. W. and M. H. B., b.v writ, and J. K. 
 
 F., made a party in the Master's olfice. 
 defendants, 
 day of ISD . 
 
 Pursuant to the judgment entered herein on the 7th 
 day of January, 1893, I was attended by the solicitor 
 for the plaintiff, and it appearing that J. K. F. had a 
 certain lien, char r incumbrance upon the lands and 
 premises in ques-tioii, I did order that he should be made 
 a party 1o tMs att'O-; and it subsequently appearing 
 that notic mcord'ir * ^he practice of the Court had 
 been duly ser-icii uj> >>• ic person made a party as afore- 
 said, I pnM-eeded to di..pose of the matters referred to 
 me, and thereniKUi was attended by tlu' solicitor for th«^ 
 plaiutitT, no on<' appearing foi- Ww d<'fendants, although 
 duly notified in that behalf, and I lind as follows: 
 
 1, There is due to the plainliff under and by virtue 
 of his mortgage for princijial money the sum of | 
 for interest thereon, and on arrears of interest at the 
 rate of jk'i- (cutum, the sum of .f , and the 
 
 subseiiiicnt intei'cst at the rate aforesaid upon the said 
 princi]>al money uji to the day iiereinafler appointed for 
 l>ayment is tli«' sum of .f and the jilaintilT's costs 
 
 have been taxed at the sum of | , which said 
 
 sums anuMint in all to the snm of $ 
 
 -. The sum foun<l due to tlie plaiutilf as aforesaid 
 is to be ])aid by the said defendants by writ, or one of 
 Ihem. to the joint credit of the jilaintilT and the account- 
 ant of the Suprenu' Court of Judicature for Ontario into 
 Ihe Canadian liank of Commerce at the of 
 
 during banking hours on the 
 next. 
 
 day of September 
 
APPENDIX OF FORMS. 
 
 393 
 
 3. The defendant made a party as aforesaid has not 
 proved any subsisting lien, charge or incumbrance upon 
 the landa and premises in question, and the plaintitT 
 appears to be the only incumbrancer thereon. 
 
 4. There is due to the plaintiff at the date hereof 
 for principal money, interest and costs the sum of f 
 
 (Sgd.) THOMAS HODGINS. 
 
 1 : 
 
 ANOTHER FORM. 
 
 The 31st dav of January, A.D. 1896. 
 
 Pursuant to the judgment entered herein on the 
 23rd day of November, 1895, I was attended by the soli 
 citor for the plaintiffs, and it appearing that eT. A. F., 
 R. H., the Loan and Savings Company, the 
 
 trustees of Hospital, and J. B. B., liquidator of 
 
 The ^Manufacturing Company (Limited), 
 
 had certain liens, charges or incumbrances upon the 
 lands and premises in (piestion, I did order that they 
 should be made parties to this action; and it subse- 
 quently ai)pearing that notice according to the practice; 
 of the Court, liad been duly served upon the persons 
 made parties as aforesaid, I i)roceeded to dispt>se of the 
 matters referred <o me, and thereupon was attended by 
 the solicitors for the plaintiffs and defendants, R. W.. 
 M. J. W., M., and J. A. F,, no one appearing for the other 
 defendants, although duly notified in that behalf, and T 
 find as follows: 
 
 1. There is due lo the said jdiiintiffs under and by 
 virtue of their several mortgages, for principai money, 
 the sum of |32,ir{2..5S for intei-est on $1.S ,809.00, and on 
 arrears of interest at <ae rate of six and one-half 
 I)er cent, per annum, and on the balance thereof 
 with interest at the rate (»f six ]»er centum, the 
 sum of 10,213.99; the subsequent interest at the rates 
 aforesaid upon the said i)rincipal money and arrears up 
 to the day hereinafter apitointed for payment is the sur 
 
 ?il t 
 
 Ji-J 
 
PPFW- 
 
 I. I 
 
 394 
 
 FORECLOSUHli OF MOhTfJAOES. 
 
 :■ f! 
 
 •1 ! ■ 
 
 of $1,158.03; for taxes, insuraiu'c pivmuiiu and repairs, 
 $713.09; for interest thereon to tlie dale hereinafter ap- 
 pointed forpaynuMit, $21.94; and tlie said plaintiifs' costs 
 have been taxed at the sum of $1S2.,SC, which said several 
 sums amount in all to the sum of $49,4l.':».99. 
 
 2. There is due to the defendant J. A. F. under and 
 by virtue of the judfjments assij;iied to him recovered 
 against the def«'ndant K. W. for ]>rincipal money and 
 costs the sum of $507.09; for interest thereon at tlie rate 
 of six per centum the sum of $01.90; for costs subsecpient 
 to judfiiiunt, $38.70; and the said defendants' costs have 
 been allowed at the sum of $8. which said several sums 
 amount in all to the sum of $715.75. 
 
 3. The said sum of $4(^423.99 is to be paid by the 
 defendant F. A. F. to the joint credit of in plaintiff 
 and the accountant of the Supreme Court of Judicature 
 for Ontario into the Canadian Baniv of Commerce, at its 
 head oflice in the city of Toronto, durinj; baukinj;' hours, 
 on the first dav of Auijust next. 
 
 4. The defendants II., Tiie 
 Company, the Ti'ustees of 
 
 Loan and Savings 
 Hospital and J. li. J5., 
 
 licpiidjitor, as aforesaid, have not proved an^' subsisting 
 lien, charge or incund)rance upon the lands and ]>remises 
 in question. 
 
 5, The ]»lainlitVs are tirst in priorily. and the de- 
 fendant J. A. F. second and last in juiority; and they 
 appear to be the only incumbrancers uiK)n the lands 
 and premises in question. 
 
 (J. There is due (o the said jdaiutilTs at the date of 
 this re])ort, for principal, interest and costs, the sum of 
 $39,243.42. 
 
 AXOTITKR FOR>r. 
 
 In pursuance of the judgment or order made in this 
 <'ause, bearing date the day of A.D. ,1 
 
 was attended by the p'aintitT's solii^itor, and it appearing 
 
APPENDIX OF FOKMS. 
 
 395 
 
 to ni«^ by tlio rospcctivc cfrtifu'atcs of tho slioriff of the 
 united counties of Storniont. Dundns and (llenfj^arry, and 
 of tlie rejiistrai' of (he county of Stonnont, lliat no other 
 parly or i)arHes oilier than the said ]daintif1' lutth, or 
 have, any lien, char<;(' ov incumbrances upon the lands 
 and i>reinises embraced in ihe nior(<»ajie security of the 
 said jdainlirt" in the writ in this (inisc mentioned subse- 
 quent thereto. 
 
 And ij siibseiiuently ai)[K'arinji- to nu' that the pro 
 per wai'rant ^iviu};- the defendants notice of this pro- 
 oeedinji' had been duly sei'ved upon tliem : 
 
 1. 1 j»roceeded to hear and determine the matters 
 referred to me in the said or<lei', and lhereui)on I was 
 attended by the res]iective solicitors foi' the said plaintitV 
 and the said adult defendants an«l tlu' j-uai'dian of the 
 infant defemlant; and, 
 
 2. T settled an advertisement and particulars and 
 conditions of sale for the sale of the lands mentioned ov 
 referred to in the said order, and such advertisenu^nt 
 having', according;- to my directions, been jMiblished in 
 the Cornwall Freeholder once in each week for the four 
 weeks immediat<dy ]»re. ,'dinj;- the said sale, and bills of 
 the said sale havinjjf been also, as directed by me, pub- 
 lished in the town of Cornwall, and in dilferent parts 
 of the said united counties, ihe said lands were otfei'ed 
 for sale by ]Miblic auction according- to my appointment 
 »» fl'c day of by W. If., api)ointed by 
 me for that ]»nrpose. auctioneer, such sale was conducted 
 in a fair, open and ])ioper manner, when F. II., of the 
 township of Corn wall, in the county of Stonnont, f''entle- 
 man, was declared the highest biddei' for. and became 
 the purchaser of the same, bein^- that certain parcel of 
 land, etc.. at the price or sum of .fS.IO, subject to the 
 dower of Mrs. C. R, said sum to be ijayable as follows : 
 One-tenth to bo paid to the plaintitl's solicitor at the 
 time of said sale, ami the balance to be ])aid into Court 
 within one month thereafter without interest. 
 
 I ;■ 
 
mm 
 
 ■! < 
 
 ^■i'lF 
 
 il ! 
 
 If' 
 
 liii! 
 
 li 'j -^ 
 
 
 396 
 
 FOUECLOSUUE OF MOllTGACfES. 
 
 .'i. And I find that at the date of this my report there 
 is due to the said plaiutitf for principal money, yearly 
 compound interest and costs, including the costs of the 
 guardian paid the guardian by him, the sum of $963,75, 
 as follows: — (Here insert details.) 
 
 FINAL ORDER FOR FORIXLOSIRE. 
 
 Tlio ^lastei' in (Mianibcrs, \ tlu' day of 
 
 In the High Court of .Justico. 
 
 A.D. 189 
 
 Between 
 
 A 13., plainliff,^ 
 
 and 
 a I), and E. F.. by wril, and G. A., 
 made a i)arty in the Master's ollice, de- 
 fendants. 
 
 Upon tlie ai)[)li('ation of the plaintiff, and upon 
 liearing the solicitor for the ai)plicant, and upon reading 
 the judgment herein and the report dated day of 
 
 ISO , and the affidavits of J. K, and L. M., 
 and the certillcate of the assistant nmnager of the Cana- 
 dian IJanlv of Coninierce at , and an attidavit veri- 
 fying tlie same, all this day liled. 
 
 It is ordei<'d that the defendants C. D., E. F. and 
 O. II. do stan«l absolutely debarred and foreclosed of 
 and from all right, title and equity of redemption of, in 
 and to the mortgaged premises, in the writ of sumnums 
 herein mentioned. 
 
 (Sgd.) 
 
 M. C. 
 
 Entered day of 
 
 C.O.B. '21, p. 285. 
 
 189 
 
APPENDIX OF FOIJMS. 
 
 397 
 
 FINAL ORDER FOR SALE, FORCLOSING INCUM- 
 BRANCERS. 
 
 Upon the api)li«jatioii of the and upon 
 
 hearing the solicitor for the applicant , and upon read- 
 ing the 
 
 It is ordered that the lands and premises in (he 
 mentioned, or a competent part thereof, 
 be sold in pnrsuanee of and in manner din u-d by 
 the judgment in this action. 
 
 And it is furtln^r ordered that the defendant do 
 P-and absolutely debarred and foreclosed of. and from 
 ail right, title and interest of, in and to the mortgaged 
 premises in the mentioned. 
 
 VESTING ORDER (PAYMENT INTO COCRT DIS 
 
 TENSED WITH). 
 
 In the nigh Court of Justice. 
 
 The Master in Chambers, Friday, the day of 
 A.D. ' " 
 
 Retween 
 
 J. A., plaintiff, 
 
 and 
 O. N. S. et al., defcndanls. 
 
 Upon the application of F. II., (»f the township of 
 Cornwall in the county of Stormont. gcntlcuian, the pur- 
 chaser of the lands sold herein and hereinafter men- 
 tioned, and upon reading the judgment herein dated 
 day of the Master's report on sale, dat'Ml 
 
 day of , the consent signed by the plaintiff, 
 
 and tne aflrtdayit of W. I)., as to the execution thereof. 
 and upon hearing the solicitor for the a]>plicant and for 
 the plaintiff and the official guardian of the infant de- 
 fendants — 
 
398 
 
 I'oiiLCj.osuui: OF moutoaoes. 
 
 
 1. It is oi'dt'i't'd tlmt i)ayiueiit into Court by the up- 
 plicaiit of liis purchase nioiiey bo and the same is hereby 
 dispensed with, 
 
 2. And it is fur'lier ordered that the hinds and pre- 
 mises sohl lierein, and beiuf? that certain i)arcel, etc., be 
 and the same are liereby vested in the said F. II., liis 
 heirs and a»si}»ns, for all the estate, rif'ht, title and in- 
 terest of tlie plaintilf and tlie defendants in tliis action 
 therein or thereto. 
 
 ) 
 
 M. 0. 
 
 Lettered C. O. li. 29, p. 543. 
 
 m ■■ ■■ 
 
p- 
 
 ■o- 
 be 
 lis 
 n- 
 
 GENERAL INDEX. 
 
 Absent incuinliranccr, how dealt Avilli by ^Ijistcr, IS}, .'573. 
 AbKoliito (leetl, iiKirtKiiKc in form of. 51. 
 
 prior ini-unibraiiccr niiulo ji party, .'.1. 
 under Land Titles Aet, IVSU. 
 Acceleration, lor other causes than iion-i)aynient, liSl. 
 instalment mortgage without, ti4. 
 of principal, K),"?. 
 
 relief against, KIH, I'SO. 
 optional, but mortgagee liound by option. 27!». 
 statutory clause for, 278. 
 Accommodation mortgagee, 20. 
 
 Account, asking, prevents immodiate payment, ~>4. 
 current, interest on, 70. 
 
 insurance premiums allowed in subseciuent, 187. 
 mortgage, how proved, 107. 
 
 . production of mortgage, 107. 
 
 allidavit of holder of mortgage, 107. 
 onus of proof on mortgagor, 107. 
 parties prima facie bound by statement 
 
 in mortgage, 107. 
 when Master will go behind mort- 
 
 giige, 107. 
 proof of mortgage deed, 107 (") 
 secondary evidence of mortgage, 107 ("1. 
 mortgagee not bound to prove payment 
 - of consideration, 107 (c). 
 
 effect of producing books to support 
 mortgage, 107. 
 ' by assignee, 108. 
 
 consideration need not 
 be shown, 108. 
 • what affidavit should show, 108. 
 
 by officer of company, 109. 
 
 parol evidence to show true amount 
 • advanced, 108. 
 
 parol evidence to show true pur- 
 pose of security, 108. 
 Mortgagee in possession, against, see "Jmprovanents," ''Rents.'' 
 
 i A 
 
 i: 
 
 
400 
 
 (;enkhal index. 
 
 Pll,. i 
 
 Afcoiuit, proved Ity outli of nssiKiiee of inortgngo, 18G. 
 siihsiMiucnt, 114, 11(5, 101, 102, 187. 
 taken by Master, 180. 
 " taken with rests," meaning of, ST>. 
 Avhen clone, 80. 
 
 not (lone when mortgagor in ar- 
 rears, 80. 
 sometimes ilone wiien no arrears, SO. 
 arrear,s not a decisive tact, 87. 
 eireiimstanees of case must be con- 
 sidered, 87. 
 
 not done when mortgagee takes pos- 
 session for his own protection, 87. 
 where mortgage fully repaid, 88. 
 where i)art of mortgaged property 
 
 sold, 88. 
 where arrears capitalized, 88. 
 where mortgage payable by monthly 
 
 instalments, 81). 
 mode of calculation, 81). 
 appeal from decision of Master as 
 to, 8t). 
 Accountant, of bank, how far his oertilicate of non-payment j^ 
 
 evidence, 110. 
 Acknowledgment by mortgagee of mortgagors title, 3K>. 
 
 what is suliicient, 317. 
 to third person, .'517. 
 accounts kept, treated as, 317. 
 where more than one mort- 
 gagor, 318. 
 
 mortgagee, 310. 
 Acknowledgment by mortgagor, 3'JO. 
 
 difference between and payment, 330. 
 by whom given, 331. 
 to whom, 331. 
 to third person, 332. 
 how made, 332. 
 must be intentional, 332. 
 Acquiescence of mortgagor, how far it prevents foreclosure being 
 
 opened, 124. 
 to improvements by mortgagee, 73. 
 
 when material, 73 (&). 
 Administrator, mortgage by, 337. 
 of mortgagee, 19. 
 
 foreign, 19. 
 mortgagor, 37. 
 
 nd litem, 147. 
 
401 
 
 "I;NI;I!.\L I\|)|.;x. 
 Administrator, »iii, ,. .m 
 
 i^»f*' r.'i.r..s(.nia(ivcs. ' '^'^• 
 
 '''''''''•'•^- '''•'■'• """"■"-■•n....hani..s- ,...,.. ::-17 
 
 i"'i'<»r uf, Kis, 
 
 I'MTol ..^M^,„.,, f, show ln,o,n„„„nt„r Ins 
 ^\"'<l'iv.( ,.r„vi„« ,Mor„,,,, ,,,,„„„_ ,„- 
 
 •'ontciKs ,,r, Jos. 
 
 -'• ""..-lu,.v,n..n,. 1,,!,. i,,, '''' ""'''"'" '"' '•'"""■"'•^ • l^^'- 
 "iieii made, lll!>. 
 ''.V ii«cnt or soliciiur. |(ii». 
 
 ''.V COIIip.Hl.v's ;,;;,, „t, 1 ( , ,. 
 
 _ li.V <o-ili(,r|);ii};(.,., 11(». 
 
 I'ver.v„p„nitl,.,|. s on rnlen„.tion. l!.(i. li.j. 
 
 Ill ciiso of corporation, lito. 
 
 -'I'l..Mt,n. n.o.ion r„, .,,, or possession. U ,,; u,, ^o. 
 
 ""'-'"^^'11 |,v. ,u„l,.r StatMio of KinuiatioMs. :v2n. ;!;{| 
 10. nn-lcr StatiUe „r laniitations. .•'.i:!. 320.' 
 ■•""•'••'vit of non-,,a.vnu.„i l,v. i,,.,. '"■'""■ '"' ''-'''^''y' -^l- 
 
 "Mist 1,(. antlioriz,.,! to r..r,.ivo niourv 1(J9 
 
 ooinimnv-s .,Mi i .;'""!""'-'' '"' """'>-'">-''' -loci to ho sl.own, 10!) 
 f-omviiui s a/li.lavit of non-i.a.v.ncnt l,v IK. 
 
 <>l Limitations, ;{•'!» T'.l "- "ikiu M.itnlc 
 
 Agreement for sa!,-, for.H.fosn're nn.lor. 1!.. 
 
 ••"<«'i'<''l into Iioforo linal order, 127 
 
 MI „..., . >^t^f<iiiW' asido artor linal order V~r,.V>7 
 
 AJIowancos. .iiist, 7:{ (a). ' '• 
 
 Amendn.oof r • >"' """'**-'■■'-'■'' i" l'"-^«'N-inn. s.v " l>n,,n,rn„n,is - 
 ^vrntnunionl o| .ludynients. !)!». 
 
 ••Icric'il errors. !II(. 
 
 wliore wi'on;,' reliei' f;iven, 0!\ 
 
 '•"'Ik'I' lliat mortfi-auee noi entiiled to, <)0 
 
 .in<l>fin(]il omits reference. KJO. 
 
 parties omitti'd, lot). 
 
 l.'iiid niisdescrilied, 1(1(1. 
 
 1'""'' 'lasers of part of e,,niu- „unf 
 (<'d. 1(l(». 
 
 jii(l>:men( creditors omitted, 
 ••y yetting aside, lo] 
 
 H I'.M.— Jd 
 
m 
 
 I 1 
 
 :i * 
 
 I: 
 
 402 
 
 (iKNKIlAL INDEX. 
 
 Aniondimiils in .Mnstn's Ollicc. KH. 
 
 limit to, KM. 
 Annuity clinr;.'"'"! on liiml niMrtj;n>r<'(l, -l.'J. 
 
 where seeontl nioi'tgago, 47 yti). 
 iirreiirs of, ['A>~. 
 Iierseiiiil, nut cliarKeti. Sliitnte of liiinitation ns to, 308. 
 power of tnisiccs lo si'll or mortgage to raise, !>(»>. 
 Ai»|ieal fi'oni order or rniiny of .Miister, !i<i. IS.",, 
 iiilinw of .Master as to rests, S!». 
 Master's I'eport, IMi. 
 from prioeiiio Jn(l>;nient, l»(5. 
 
 onler of Master Joining parties, 182, 183. 
 
 notice of, is;5. 
 leave to, {)7. 
 
 matters not ineinded in, !is. 
 notice of, !Mi, !)7, 1S;!. 
 jiersons entitleii lo, ItS. 
 result of, !>S. 
 
 review of evidence on. HS. 
 .NpplicMtion id' piircliase nione.v, alter sale by Court, 188. 
 
 under power (Lord Cranworth'a) 243. 
 (Short Forms Act), 271, 270. 
 ol,li;ialion to see (o, 225, 240. 
 -\ppointmeni li.v Master, 1S4. 
 .\rrcars. see " Interest." 
 
 of interest, amount recoverable, 3n7. 
 lent, amount recoverable, 307. 
 annuities, iimount recoverable, 307. 
 Assifruee of e(|uil.v of rclemption, 31. 
 
 in bankruptcy, 31, 43. 
 not liable on covenant, implied, 340. 
 of niortiTiip'. exercise of iiower of sale by, 240, 273. 
 latest, sullicient in niortfiage action, 21. 
 necessary to foreclosure, IS, 21. 
 l>endente lite, 22. 
 proof of account by, 108, ISO. 
 when derivative niort^rajte foreclosed, 48. 
 of subsequent incun\brancer, 47. 
 AssijiiimenI for benefit of creditors, who jii-e necessary ]);irtios, 32. 
 AssiKunienl of niort};a};e by executors, 210, 221. 
 
 effect of, on arrears of interest, 70. 
 in lieu of reconveyance, when demand- 
 able, 200. 207. 
 effect of section as to, 201. 
 covenants contained in, 20G. 
 form of. 200. 
 
 provision as to collateral se- 
 curities, 207. 
 
<M!;ni;i!.\i, i\i»i:.\. 
 
 K);; 
 
 A«HiMnnuM.t of .nortpi^^,.. [,. li,.„ „f, ,„ „ ,„„„ ,„,,^,,,_ ^„. 
 
 Iicndt'iitf liic, I'l'. 
 Assignor oi' inortKiip., wli,.,, „ ncccNsary jmrly, I'l. 
 
 Ih' may liriiiK rnriMldsnrc, 21. 
 Altestiifion o( iii(iitKii;i\>, l(i7, 
 
 iinilcr l,iiii(l 'J'illrs A((, ;!)(. 
 Altormnciit daii.sfs on niortKHKos, -';;i. 
 
 tlisiiilvjuitaj.'»'s of. L';!{. 
 I'<irni of, L'.';r>. 
 sham, li;','t. 
 Iiow far l(iiHlin;r <m licir of ni..iiKa;.'.ir, 'SAL 
 to two niortKiiKecis, 'S.U. 
 liailiff, commis.sion to. :„v ruUvrUuy: ronts, !l(». 
 Hallot, allotting loans l,y, lorl.i.ldon, ;!.". .•{oS. 
 
 StaiT JSowk.li JUiildinn So- 
 cictios, Vu)S. 
 Jiaukru|.t murtgaK'T. assi^int^r of. mailr a imrty, ;;i. 
 
 cniTcnfy of inlcrosl againsi, 07. 
 made a parly, JM. 
 
 l'>auk!<, ocitilicaU's ,,\\ as i. -pjiy nt. lid. 
 
 managers «(, ciTtilicatfs liy, Ho. 
 mortgagor to. L'."., ;!41. 
 pa'!'" hL ol' rcdomption mnnoy inti>. 111. 
 liar of dower in mortgage, effect of. 'S,:,. 
 
 statutory torm of. li."),".. 
 will not lie inserted lo refuim oistru- 
 nieiit, '2'}i>. 
 see ■• I>ower." 
 lienelicijiries interested in mortuage money, lit), 
 how far neees.xary defendants, HtJ. 
 lionevolent societies, mortgages l,y. Ii„w antlioriy.e.l. ;!(;i. 
 Bequest of indebtedness on a mdMgage, '_"J1. 
 r.iddings at sale by Cmirt, l\H. 
 
 by mortgagee at sheriffs sale. liin;. 
 Building societies, mortgages to. 21. 
 
 in li(iuidation, 07 (n\. 
 see " Loan ('orjiorat^dns." 
 Causes of action, uniting, 10. IH. 
 (.'emetery comiianies. mortgages to, H, 
 
 lot sold by, no mortgage of, IKJl. 
 Certificate of Bank as to non-payment. 110. 
 
 charge or mortgage under Land Titb s Act, 'Mr,. 
 
 cnstoily of. .", It!. 
 3\Iaster. delined, IH. 
 
 see " IJeitort." 
 
 Registrar ns to incundirances, 1 
 
 ( (. 
 
 what it shows. 177. 
 (Iflte to which hrought down, 170. 
 
404- 
 
 GENEIJAL INDKX. 
 
 
 ^ 5' 
 
 1 1 ' i : 
 
 m ■ 
 
 (Ji'i'tificate, sherifl' as to txcciiUijiis, 177. 
 
 what writs included, 178. 
 Avlioiv chnltcls real, 178. 
 Cestui.s que trusteiit, see " i'cncliciaries." 
 ("hancory, see Court of Equity. 
 ( 'linrge, see " Mortgage." 
 
 of numey on laud. Statute of IJiuitations afft-'clinji. 307. 
 Chattels real, how far affected by ti. fa. goods, 178. 
 Collateral security, how transferred when assignment taken in lien 
 
 of re-conveyance, '^07. 
 insurance money held as, 211. 
 
 Commission, none for iiersimal collection of rents, 8i>. 
 
 even if stipidated, 90. 
 especially if niortgagei' a solicitor, 1)0. 
 on arrears of interest, O'J. 
 to bailiff for collection of rents, 00. 
 
 Conunittee of lunatic, foreclosure by. 23. 
 
 as defendant in foreclosure, -12. 
 Comi)any, atlidavit by otiicer of. nn delivery up of deeds, lOO. 
 
 l)i'(iviug mortgage a<-connt. 100. 
 non-payment, 110. 
 interest taken by, ;J.jO, :>(!4. 
 investments aiithorized, u7)~>, o<>0, 3<il. 
 
 Cemetery, 28, 3(!1. 
 mortgage to, Insurance, 27. 
 Joint Stock, 20. 
 Lfian, 27, .■>")4. 
 1 Alining, 27. 
 
 Trust, 27. , 
 
 Compounding of interest, sir Interest. 
 
 Concealment of instrunu'nt material to title, how punished, 297, 208. 
 Condition, acceleration for breach of, 281. 
 of sale by Court, ;'.74. 
 
 undi'r power, 230. 
 
 Conditional assignment of mortgage under Land Titles Act, .'Ml. 
 
 who should be plaintiff, 21. 
 Conduct of sale by defendant, 0. 
 
 at oiition of idaintiff, IHS. 
 "defendant ctinnot demand to have. 1.">S. 
 
 eutith>d to return of deposit, lo"^. 
 notice to defendant, I.IS. 
 Conveyance, .'ihsolute in form, ."1. 
 
 mider Land Titles Act. 330. 
 of mortgaged projierty to third person, 201. 
 settled by J*Iastev on sale by Court, 188. 
 
GENLKAI. INDEX. 
 
 405 
 
 I lien 
 
 r, yo 
 
 , 2S»8. 
 
 I -I. 
 
 Consent of mortpngor to improvements, 73. 
 
 where improvements iHit of reason {/*). 
 (.'onsolidntion of niortRages, for pnrpose of absorbing insurance 
 
 money, 211. 
 one of whicli is not due, 10. 
 (Corporations, altidavit of. Iiy ollicer of, on delivery up of deeds. 190. 
 
 provinjr niortjrage neconnt, 109. 
 non-payment, 110. 
 general p.uver of. to invest In mortgages, 2.'), ?,01. 
 illegal investments of, 2.">. 
 interest tai<en by, ;i,";!». [\(\4. 
 
 )iqnid;itor or receiver of, may bring foreclosure, 21. 
 mortgagfs to, HenevolcMit. 2S. .'JOI. 
 Cemetery. 2S, .",01. 
 Itisnrance. 27. 
 Joint Stock, 20. 
 Loan, 27, 354. 
 iMining. 27. 
 IVInnicipal, 20, 301. 
 Iteligicnis, 3t;2. 
 Trust, 27. 
 unauthorized investments of, 2."», .301. 
 Costs, commission to mortgagee not allowed as, 134. 
 demand of i)ayment stops running of. 248. 
 
 in foreclosure to li(> revised by Taxing Ofticer at Toronto. 1!M. 
 principles on which taxed, 194, 195. 
 sum not to lie inserted in Keport before revision, 194. 
 levy of, e:\ecution before revision, 195. 
 
 where revision redmes amount, 195. 
 costs of revision, how met, 195. 
 sums imiiroperly allowed. 195. 
 
 disallowed, 190. 
 entitled to Avluit, 131. 
 
 not entitled to what, 1.33. 
 mortgage ordered to pay, wlien. 1.34, 13.". 
 
 right to. founded on contract, 129. 
 
 as against juiisne incumbrances, 1.30. 
 in particular cases, 131. 
 statutory. 213, 271. 
 (Costs) of 
 
 amending judgment. 1.30. 
 consolidated mortgages. 131. 
 defending mortgagors title, 1.",:;. 
 foreclosure suit brought after tender. 134. 
 .ioint mo"tgagcs, 131. 
 
 litigation not concerning the other parties, 133. 
 unsuccessful and unauthorised. 133. 
 
I 
 
 rf 
 
 
 40() 
 
 GENERAL INDEX. 
 
 Costs o£ rt'l't'icuce, l^-i. 
 
 revision of costs in suit, 1U5. . 
 
 sale nndiT jkiwit, 'JtVo, 271. 
 tnisto(! for niortjjiigei', K>2. 
 notice of siile stops cnrren<-y of, 248. 
 profit, to solicitor niortpigee, 13(5. 
 
 partner of solicitor, ]3(J. 
 Itule as to mortgagee's, 121). 
 security for, liy foreign mortgagee, 13(>. 
 subseqtient taxation of, 7'u>. 
 taxation of mortgagee's, without onler, 247. 
 taxed against mortgagor, (!7, 180. 
 vexatious, hon- checked, 248. 
 <,'ounterclaini, foreclosure as a, 17. 
 t'ourt, County, juii^diction of, in mortgage casey, 287. 
 
 deposit paid into, liy defendant wishing sale, 15l). 
 Division, jurisdiction of, in mortgage casis, 2SS. 
 High, jurisdiction of, in mortgage cases, 284. 
 money paid into by Uaihvay, arrears of interest payable out 
 of, 309. 
 Court of Ecpiity, agitation for estahlisluneut, 3. 
 erected in 1837, 5. 
 
 eslalplishment of, ii: T'pi»er Canada, 1. 
 jurisdiction of, growth in England, 1. 
 t.'ovenant, against acts of mortgagor, 2(!4. 
 against incumhrances, 2(J2. 
 assignee of mortgagor, liability on. Hid, 340. 
 further assurance, 2(>3. 
 general form of, statutory, 258. 
 good title, 250. 
 implied in umrtgage, 212. 
 
 danger of using, 213. 
 of leaseholds, 214. 
 liy joint mortgagors, 214. 
 to joint mortgagees, 214, 21.j. 
 insurance, 205. 
 
 mortgage clause formerly used, 2(!5. 
 effect of covenant without formal assignment, 208. 
 lialiility of mortgagei' for non-insurance, 208. 
 separate insurance by mortgagor and mortgagee, 208. 
 right of subrogation, when existing, 2(!i). 
 joint and several, 214, 215. 
 personal, for payment, in mortgage, 258. 
 statutory, 258. 
 
 jiroposed changes in law, 258. 
 action upon within 10 years, 258, 201. 
 debt created by breach of, 258. 
 
<;i:\i:uAL index. 
 
 407 
 
 otit 
 
 108. 
 
 Covenant, personal, sninniary jiul}j:nu'nl on, 2r».S. 
 
 suing on, for interest, in Division Court, 12r>S. 
 under corporate seal, 259. 
 nieaninf; of word " punctually,"' 2.59. 
 by Church Trustees, 2r)9. 
 where land must first be resorted to, 2riJt. 
 quiet possession, 2G1. 
 
 action on implied, 213. 
 powers of entry under, 2»i1. 
 leasing under, 2fi2. 
 release of all claims, 2(i9. 
 right to convey, 2(iO. 
 title deeds to be produced, 204. 
 Credit notice, 9. 
 
 given where rents or profits received, 101. 
 
 before final order, ]()2. 
 object and time of, 102. 
 obviates necessity for new account, 102. 
 Creditors E.vecution, as defendants, 40. 
 
 of sub.se(iuent incumbrancer, 47. 
 of mortgagee, seizure of mortgage, 292 et seq. 
 could be made iiarties in .Master's ollice, 4S. 
 shown by licgistrar's certificate, 177. 
 where mortgage in form of absolute deed should 
 bo parties, r>l. 
 secured iiy mortgage to trustee, ,17. 
 Crown, foreclosure not allowed against, 151. 
 
 possession may be decreed against, 151. 
 redemption by, 151. 
 
 sale of interest of, n;ay lie directed with consent, 151. 
 Current account, interest on, 70. 
 Curtesy, tenant by the, made a i)arty, :!;!. 
 
 Day to show cause, judgment should reserve, for infant defendants, 
 
 12S. 
 not reserved where infant merely a trustee, 12K. 
 
 in cases of i-evivor, 12S. 
 omitted on consent of infants' ♦•imnsel, 12S. 
 Debts, charge of, mortgage to satisfy, ,101. 
 
 created by breaclies of. covenant to pay, 258. 
 mortgage, bear interest tlnmgh not expressly reserved, 05. 
 becpiest of, 221. 
 Decree, sec "Judgment."' 
 Deed, absolute in form, 5], {iV,',\. 
 
 covenant to iiroduc.', statutory form, 204. 
 delivery of, iipon oath of mortgagee, 192. 
 Deeds, judgment directing mortgagor to deliver, 59. 
 party redeeming entitled to. 191. 
 
m 
 
 408 
 
 (iENKHAL INDEX. 
 
 
 :i i 
 
 lis 
 
 
 in 
 
 Deeds, right ol' mortgagor to iiisi)ect, L108. 
 
 foriuor law, 208. 
 Dcfjuilt. ((msdlidiiliou of mortgages, none witlioiil, 10. 
 (lay al'tor, uctioii uiay hv lirought, 11. 
 necessary to forcelosure, JO, I'J, 4J). 
 of instalment, 10. 
 of iiiiymtMit within time tixed for redemption, 101). 
 
 linal order on, 320. 
 of payment of note, 11. 
 of pli'iiding. itia^eii)e, jutlgment on, 1U8. 
 
 treated as disclaimer by parties added iu Master's ofliee, 
 
 384, 18.-). 
 adnussions in. of exeeiition of mortgage, 1(J8. 
 defence limited to amonnt, l-lO. 
 Defendant in redemption aetion. rights of, U. 
 parties, .'!(l-r»l. 
 
 wishing sale, dei)osit by, liiti. 
 Delicieni-y on sale, may lie claimed, IJi). 
 
 lOx parte order for, 151). 
 
 person lialde for, l.'tJi. 
 
 lialiility of assignee of equity, 100. 
 
 mortgagor Mithont covenant, IGl. 
 iJelivery of possession, si'i- '" I'ossession." 
 
 of title deeds, see " Deeds." 
 Demand, elfect of. on currency of interest, (>0. 
 
 on further proceedings by mortgagor, 24S. 
 naymcnt to be accepted in terms of, 250. 
 l)eposit by defendant wishing sale. 155. 
 incninbranci'r, 157. 
 Court may disiiense with, lot!. 
 
 insullieient re:isons for dispensing witli, 150 
 does not di'pend on insutiieieney of security, 
 tdiject of, 155. 
 
 returned to defendant conducting sale, 158. 
 trustee not exempt from, 157. 
 where plnintilT an etiuitable mortgagee, 158. 
 Deposit of receipts for mortgage nnuu'y, ',VM\. 
 Derivative mortgage, who are necessary parties, 48. 
 Devise(> in trust, mortgages by, .">(>1. 
 
 of mortgagee, necessary to foreclosure, 18. 
 mortgagor, 37-.'?0. 42. 
 equity, 42. 
 
 subject to annuity, 43. 
 legacy, 4o. 
 not added in blaster's olllce, 143. 
 subs(><iuent incnndirances. 47 (u). 
 Dev«dution of Estates Act, how far it makes personal representative 
 n tiecessnry party, 37. 
 
(iKNlOUAL INDEX. 
 
 400 
 
 Disaliility. iicrsoiis tiiiilcr. as iiliiiiititTs, '2[ 
 
 l)i> 
 
 l>iirs(-in(Mits. see " Kxiu-iHliturc 
 
 l>is< liiirire. in.'i.iility of niui't;.'ii;;t'(" to jiivc, 11, ti'i. 
 
 iissifiiiiiifiit in lien of, 2U0, 207. 
 
 liy cxcciildrs (pI" imii tjiiifjoi". 1I1!>. 
 
 cxcciitDr (iT m(ii-i;;:i;r<'. .i;i\rii liy hiinscll' lo estate, 222, 
 
 Viilid, ir ill ( (inlVirniity a\ itii IJcKistry Act, 222. 
 
 stiitntiiry. nature of. 22.' !. 
 I)is(liiini('r )>y ]iaity iiildcd in Miislfi''; ullii-c, 1S4. 
 
 by iiiactinn, IS,"!. 
 
 rnlcs as to, 1S"». 
 1 >i.sh(iniir('il note, cl'l't'ct ol mi I'i.ulit to Inrcclrisni'c, 11. 
 l>i.sinis.>iai (if actinn nn paynifnt of iirinciiial. t-tc., lt)2. 
 
 Distress and ;itt( 
 
 for I'fdcniption, Ititl. 
 innicnl, iiowi-vs of, 2->(i. 2.'{1. 
 iindt'i' inort;;a^('S, 231. 
 
 clansi'. form o' -',!.>, 2((. 
 
 for interest, on k Is of stranger, 2M0. 
 
 IHvisiun Court, .inrisdiction of, in actions for interest, 288. 
 
 .indKiiient snninions not available, 2SS. 
 Dowei', bar of, effect of in iiiortKitfic. .'US. 
 in second nn)i't;;;ijre, ,">-lS. 
 by woman under age, ."i.")4. 
 barred in one nun-lf^age only, (!2. 
 claim of, iiaranionnt to mortj^age, (!2. 
 in Eiinity of Kedenijition. I\'f2. 
 
 wliere discharge of mnrlgag^^ not registered, .'>o2. 
 in snriilns. 277, -".4t). 
 
 liayment of, into Court, :UU, S.'iO. 
 reformation of deed by insertion of bar, 348. 
 release of b,\' minor, liow elTected, 3.">4. 
 rights (d", under Land Titles niortg:ige. .■'.42, 348. 
 viihu^ of inchoate, 3.V2. 
 when wife a Innatie, JJTid, l>'y.. 
 
 living aiiart, .TiO, .•!,"2, 35.'',. 
 
 M idow entitled to. how far a party, 142. 
 
 ]>rafis and coiiies, as secondary evidence of niorti 
 
 costs of iiniie( essjiry. 13."). 
 lUuil capacity, joining peisons in. 1S2. 
 Earlier provision in deed controls litter, 27S. 
 Ejootnient. stay (d" mortgagees action for nnder 7 (ico, II. 
 
 -e. 1(17 CM 
 
 20. 
 
 Enlarging li-.ne for iiaynient. lis. 
 
 motions lor, 118. 
 
 when mortgagee at fault, 118. 
 
 valne gre.-itly increased. 111). 
 
 Entry of foreclosure jiidgnienl. 17i 
 
 effect of non- 173. 
 
410 
 
 (iEXEUAL IN) R 
 
 ill 
 
 EiliiKablo niortgugc. form of judgineiit oi -'osuro of. 03. 
 
 iiiortfraRoo l)y. wlie. fitlod 1o siile, IHO. 
 
 sulisrqucnt incumh.MiK t. ontitlod to deninnd 
 
 snlo. 158. 
 under liUnd Titles Aet, 330. 
 Kquity— Hoe Conrt of Ktiiiit.v. 
 
 Enuity of lU'dciiiption, nckiiowlednincnt of, see '* AcUnowledpment." 
 
 ii<n"'''<''' I'.v jirior uiortname in possession, 50. 
 addins j)ar1ics interested in, J>, 141. 
 annuities cliarjjed on, 43. 
 assifrnee in Itankruptey of, 43. 
 cases where niortR.iKor has parted with. 31. 
 devisees of, 42. 
 
 dispute as to ownership of, Gl. 
 doubts a to existence of, before 1837, •"» 
 holder of, a necessary party, 34. 142. 
 is an entire whole, 318. 
 joint owners of, 34. 
 
 last incumbrancer treated as owner of, 100. 
 lejiacics charged on, 43. 
 legislative recognition of, <5. 
 mesne purchasers of, :'.4. 
 owner of. must be party. 1", 142. 
 portion of, 142. 
 
 l)urchasers of, pendiMite lite, 35. 
 release of. how far a merger, 210, 217. 
 remainder-man and reversioner of. 43. 
 sale of. mortgage back, (50, 
 
 l)ortion of, balance re-mortgaged, (H. 
 A\ife of p\ircbaser of, 33. 
 lOvidence for purposes of I/aud Titles Act, 344. 
 
 of discharged mortgages, by memorials, 33(). 
 
 a<-c<uint. 107. ISC. 
 of mortgage contract. 107. 
 of uon-i)ayment, 1(10. 
 
 allidavit, 100. • 
 
 bank certificate, 110. 
 of payment of, mortgage, deposit of, 33(5. 
 of sulisecinent incundtrances, 177. 
 on which writ of possession obtained, 103. 
 Execution on personal .judgment, ol. 
 
 seizure of mortgage on writ of. 202. 
 
 notice to Registrar or ^raster of Titles, 20.3. 
 
 4 
 
 To nuirtgagors, 204. 
 nuirtgage to locatee, 204. 
 .•Mtion against nuu-tgagors by sheriff, 
 sale of miirtgagor's interest by sheriff, 
 
 204. 
 , 205. 
 
GENEUAL INDEX. 
 
 411 
 
 • 11 
 
 1 
 
 Execution, seizure of mortgajje, purcliase by mortgagee at sale, *2i)0. 
 
 Execution creditor of murtgageo, 48, 177. 
 
 where ilted absolute in form, ,"»1. 
 
 of mortgagor, 40. 
 
 Bulisoiiucnt incumbrancer, 47. 
 
 in possession, 31.3. 
 
 service on, 8. 
 
 Executors authorized investments by, 304. 
 
 mortgages of real estate, .'Uj4. 
 
 mortgages by, to pay debts, etc., 301, 302. 
 
 of mortgagee, 19. 
 
 foreign, 19. 
 
 assignment or sale of mortgage by, 219, 221. 
 
 mortgagor, action against infants, 42. 
 
 how far a necessary party, 37, 38. 
 
 See " Itepresentatives." 
 
 Expenditures of mortgagee, Avhen interest allowed, (57. 
 
 for works authorised by mortgage, «I7. 
 
 renewal of policies, 07. 
 
 renewal of leases, 07. 
 
 payment of taxes, 07. 
 
 costs of defending mortgagor's title, 
 
 07. 
 See ■' Improvements." 
 
 Express Trusts, ni» enlargement by, of statutory period for mortgage. 
 
 334. 
 
 remedy of cestui que trust, 3.3.'». 
 
 Fiduciary relation, niortgag«'e in iwssession, how far in a, 335. 
 Final order, allidavit of non-payment is of course on. 120 («). 
 day to show cause, when reserved in, 128. 
 
 not reserved in all cases. 12S. 
 
 in cases of revivor. 
 
 128. 
 when infant a trus- 
 tee, 128. 
 delay in applying for, noti<'e of motion must be 
 
 given, 120. 
 
 f(ir order to set aside, 124. 
 effect of, 121. 
 
 erroneous decree, Court may n'fuse linal order, 120. 
 
 estate of mortgagee, before and after, 122. 
 
 ex p;irte application for, 10, 120. 
 
 before Master in riiambers, 120 («t. 
 
 not always allowed, 120. 
 «i;o(id until .set aside, 122. 
 How obtained, 120. 
 
 infant with day to show cause against, 128. 
 mode of t)btaining, 120. 
 
Ui ^ ''WHI* 
 
 I 
 
 Hi; 
 
 H I 
 
 412 
 
 GliNEIlAL JNDEX. 
 
 Final ovUn-, nidtion for, 12(». 
 
 I't'iisoiis lor rc-opouin.ir, 12'5. 
 
 ri'fnsiii};. 1-0. 
 ro-diiciiiiij; iis iifriiiiist imrchiisers, 12r>. 
 
 reasons ayiiinst, 125. 
 solicitor lor iilaiiitilTs cmiiiot rc-opeii, lor clofcn- 
 
 ilaiits. IL'3. 
 ^v]mt is l'or«'closnro alisolntc. 121. 
 where iiinoiiiit k'ss than il'>, 121. 
 where uniUMcssary imrties a(hleil, 120. 
 l''irin, ihaiige of, elTect on partnershiii securities, 2'.>. 
 Fixtures, mortgagee of trade. 4U. 
 Foreclosure absolute, see " l-'inai Oi'der." 
 accounts in, 107. 
 
 action for. enVct of, on niortgaKecs oth(>r roniedies, 122. 
 is a suit for recovery of laud, 305, 192. 
 united witii other claiuis, !."». 
 writ and iileadiugs in. IT). 
 acts in iiersiinaui, 11. 
 after execution, 154. 
 a>:ainst infants, -10. 
 
 and oi'der for personal na.vuieut, see " Paymt-nt." 
 antiquity of remedy by. J. 
 
 V)ankrui)tcy trustees in. by or against, 20. .'51. 
 by jicrsons under disability, 2.'i. 
 cases where granted and sale refused, 150. 
 
 (1) land out of jurisdiction, 1."l). 
 
 (2) subse(iuent iucunilu'ances as 
 plaintiff, 150. 
 
 (3j E(iuitable mortgagee, l.'O. 
 (4) Absence of interested parlies, 
 cases where refusi'd and sale granted, 
 
 (1) against crown, 151. 
 
 (2) pledge of chattels, 152. 
 
 (3) trust for sale, 152. 
 case ^\•here both sale and, refused, 
 
 (1) mortgage of railroad, 1.52. 
 changes in procedure for, (. 
 
 charge under Land Titles .Vet, procedure for, ."Ml, 344. 
 counter-claim for, 17. 
 Crown, not decreed against, 151. 
 decrees, see " .ludgnu'Ut." 
 definition of, 12. 
 
 depositee of title deeds, form of judgment, 03. 
 dishonor of bills given in payment, 11. ' 
 
 dismissal of redemption action when etiuivalent to, 105. 
 
(JKNEItAI. INDKX. 
 
 4 1:1 
 
 roieclosiiri", oiil'drciii},' |it>rs(miil rciniMiy rc-ii|n>iis Idit'cldsiirc, 111'. lii'J. 
 enlarging liiiii' for, 11)>i. 
 e(|uitnlilc iii(irt;,'aKt'c's riylit (o, tl.'!. 
 fxociitidii triditors in. \(i, -17. 
 «('ii(M'iil iirimiplcs of, in. 
 iiirnnt a^'iiiiisl. 10, 11. .",7. TJS. 
 
 I'.v, -I. 
 iustalinents. w iicre dchi pn.valili' li.v. 11. St». 
 interest, sec " interest.' 
 introduced intu rpper Canaiiii. 1. 
 .joinder of, other causes ol' .•iction wi'Ii, ]."». 
 .joint nitirtWKeos, when, Kt. IN. 
 judKUienI creditors, rights of in. 4<J, 17. 
 .judKUieut for, see " .ludKnient." 
 .judicial sale in sulistitution for, 10, 1; 
 1-and Titles Act, under. :!41, ;!1-1. 
 
 )i). 
 
 J^unat 
 
 i<-, fijiiiiust, i'. 
 l>.v, L'.l. 
 
 niort«a;:ee's other remedies, iiow elVectcd li.v, 1". 
 
 nature of. 1(». 
 
 oltject of. 12. 
 
 of foreign liinds. 11. P.', 1,'(). 
 
 openiufT, see " Openinj;." 
 
 order iilisolute, see " Final OnUr." 
 
 part owner of debt. li.v. 1.'!. 
 
 parties defendant to. IS. 
 
 ]iliiintiff to, ."JO. 
 partners, b.v, 12S. 
 
 personal I'euied.v. see " P.'iyuM'Ut." 
 plaintiff in, must 1 
 poss(>ssiou, see 
 
 le aide to re-con\(\v. 1 1. 
 
 1 
 
 ossessiou. 
 
 postponement of, UN. 
 
 power of sale. r(datiou to. L'7(i. 
 
 proof (d' sulise(|uent incuuihi'anc(>s in, 177. 
 
 puisne iucumhrancers. set' " Sulseiiuent, Incuudirjiiiccr." 
 
 receipt j;iven for di'ht jind dishonor of bills ^iven in 
 
 ixi.vnient. 11. 
 receiver, receipt nf icnt ii.v. in .iction for, .")!». 
 re-c(inve,v;in( e to redceniinu' part.v, -lol. 
 redeni|)tion net ion. disniissjil of. idVect on. 1<i."i. 
 registered ch.-ir.uce under Land Tilles A( t. .'Ml. 
 snie instc'id of S. 
 
 when. 1,")(>. 
 securit.v b.^• \\;\y id' trust for sal 
 several nior(K!ij,'ees. lo. IS. 
 speed.v. after .Mborlive stile. !>. i: 
 sta.vinj? i)roceedings in, 1 17. 
 
 c .uncs no riLilit to 
 
 ! I 
 
 I 
 
414 
 
 OliNKUAL INDKX. 
 
 Ml 
 
 II 
 
 r 
 
 1,^ 
 
 Foreclosure, sub-mortgaB(>, in cnso of, 4S. 
 
 siK'fessive i)eri<)(ls for rtMleiiiptioii in, Kl.'l. 
 time for redcniidion in, 102. 
 title to ('State not to lie (Iclmtcd in, I'J. 
 trust for sale Kives no ri^'lit to, 152. 
 usual iK-riod allowed for redemption in, 102. 
 venn(» in, 17. 
 
 williin Slatiile of Limitation, 305. 
 Forms, iiidoi'sement of writ, .">(!7. 
 
 entry '"i appearance liniitins defence, 309. 
 uotiee dispuliuK amount, 'MO. 
 limitinjjc defence, ;!70. 
 in lieu of statement of claim, .171. 
 of election that defendant conduet sale, 371. 
 to incumluaneers, 372. 
 appointment (m reference as to incnmlirance, 373. 
 conditions of sale, 374. 
 report on sale. ;)7;'). 
 praecipe judgment with reference, etc., 370. 
 
 account taken by registrar, 377. 
 redemi)tion, 37!>. 
 statement of claim, mortgagee in i)ossession, 3S0. 
 
 special clauses in, 3S2. 
 aflldavit i)roviug claim, 3S3. 
 order for immediate sale wher(> infants concerned, 3Sr>. 
 
 reference where infants concerned, 3S0. 
 judgment against m.-irried woman, 3S7. 
 order as to length of notice of taking of account, 387. 
 payment clause in order, 388. 
 order for new day, 388. 
 ndldavit of non-payment liy ollicer of corporation, 3S!>. 
 
 when mortgagee out of jurisdiction, 3J)0. 
 
 a foreign corporation, 31*1. 
 Ity mortgagee in possession, 3!*!. 
 report, .3!»2, 3!)3, 3'J4. 
 final order, 300. 
 
 foreclosing incumhranccrs, 307. 
 vesting order, 307. 
 Fraternal societies, mortgages to. 27. 
 I'^raud by mortgagor concealing or falsifying, 207. 
 Friendly societies, mortgages to, 27. 
 Further i)eriod for redemjition tixed at one month, 10. 
 Ceneral powers of mortgaging by trustees, 301. 
 
 principles of foreclosure, 10. 
 Guardian, foreclosure by, 23. 
 
 against, 40. 
 Heirs of mortgagor, 37. 
 
 pu 
 
 rchaser, 40. 
 
<ii;Ni:i!AI, INI>I.;x. 
 
 4 1 :> 
 
 IinnuMlintc imynienl, onlcr lor. 'i.'!. .'H. 
 Implied cuvi-iiiuits, statnlor.v, I'lL'. 
 
 (IjiiiKt'r (ii: nsiiij.', :.'i;i, 
 iictidii (III, iiir (iiiiot iposscssidii, •_'|;;. 
 linprovoiiiPiits iilluwi'd to inortjiiiKcc, 7:!. 
 
 hy siilisf(|iifiii iiiciiiiil.niiMi'i- ,i,,| iillow.Ml iiKiiiiist. 
 first, 7S. 
 iiHiriKii^ior, 7N. 
 uit'cliiiiiics, 7S. 
 consent or iiiortKiip.r (,,, li,,\v fur iiiiilri-jiil, 7,'! [i,). 
 dc'iieiKliiiK (in <(imit'cti(>ii widi iuiollicr properly, 7(:. 
 disiillowed, 7(i. 
 
 d\V(diiiij; house i liK witlioiit <()iiseiil, 7(;. 
 pulh-.! down and rehiiilt, 7<;. 
 expensive Iieatiiif,' appiiriitiis, 7<!. 
 ereelioiis mu in iveepiiifj;, 7ti, 
 creetiiifr mills, 7(!. 
 opening niiiies. 77. 
 expensive trees, 77. 
 pureliiise ol' live stock, etc., 77. 
 tliinjjfs heuiin al'ter suit. 77. 
 Iiou iillowance ciilciiliited, 74. 
 how far ne((>ssiir.v to plead, 7r>.* 
 how <ih.jected to, I'l. 
 in mill niachiner.v, 7(!. 
 
 lilienil allowiince when sale set aside, 74. 
 limited rijrlit to cliarKe for. 7.'5. 
 
 must not improve mor1;;a^'or out of his estate. 7.^, 
 rent of, rule as to, 77. 
 to nmke house tenaiitalile, 7(1. 
 when allowed on mines, 77. 
 Ineunibranee, nieanin>,' of, in Mortfrafre Act, !'(((». 
 Indorsement for licpiidated demand, Ki. 
 relief limited liy. 1.V 1,'}5). 
 
 see 
 
 AVrit. 
 
 Infants, as defendants. 4(» 
 
 deposit when sale asked by, KIS. 
 foreclosure and possessi'in against, -II. 
 how foreclosure lirou;.'Iit by, 24. 
 
 judgment against, J». 
 
 1(1 
 
 how olilaiiied. r)7, 1()7. 
 reference for benefit of infant. 
 
 k; 
 
 whoi 
 
 n dispensed w itii, 
 r>7, ItiS. 
 
 proceeding against, when executor a parly, 4: 
 shew cause, day to, in judgments against, 128. 
 tru.st estate and Ik nelicial interest in. TtS. , 
 
p 
 
 ' 
 
 .i 1 
 
 :|| 
 
 
 i 
 
 4l(i 
 
 <ii:Ni:it\i. INDKX. 
 
 Iiijuinliim alliT .jii(l}.'iiu'iit I'nr foi'cclosmi', "tS. 
 iKit Kivt'ii in in'tecipt' jmlKiiioiit, 17n. 
 luiw n|i|ilit'(l fill', 171. 
 Insolvent nwirlyfiKur, ;«1. 
 
 cniri'iic.v 111' inlt'it'si iiKiiinst. ti". 
 InstcilnuMit. ili'liiult in, U). 11. 
 
 niiirttfaKt'. I'lircclnsure nl'. (14. 
 
 rt'sts in ciiM" ol', N)t. 
 liisnrinni' rniisiilidiitiun nl' ni(ii't;,'a)-'i's t'l cniililr iiiiirtL:ii^'i'(.'s In 
 lllisnrl., L'll. 
 ciii'iiui'iitiiins, niiii't^iiKi's to, -7. 
 iniitlit'd stnlntory jiDWcr ol', -.'>i>. 
 nione.vs held as cullalrriil liy inortKaticc, 211. 
 , i)r(Miiinnis, a<'((Hiiit ol', 1S7. 
 roccivalilo ii.v nioi'tKHKoi' nia.\' In- aiiplicil liy nmrltjai^ce, liOi). 
 
 tuwanls rcinslatt-nifni. liO'J. 
 (lischarp'. '-(i!t. 
 rights of iMoi'lKfi«;«'e to moneys, lU). 
 liitort'st accrues Irnni tlay to ilay, (!">. 
 
 .•iKi'eenii'nl fi.i Ina;; when it carries, (!.". 
 
 arrears of, case where prior niort>:aj;ee in iiossession, ."il'J. 
 ilislinclion lietween ninrlfjaKee lieing iilaintilT 
 
 and dettMidant, liO'.t. 
 liow many years charfreahle, tiS, I>07. 
 arises on mort,!;aKe from day to day, <!."». 
 cesser of, occurs when. (!.">. 
 commission on arrears of, (!!>. 
 coni|io)ind. tendency of Courts aKninst, (11), 72, 
 couiiuitalion of, wliere jieriod of redemption enlarv't'd, 72. 
 
 successive periods of redemption, 71. 
 conversion of, into )irincipal. (>!>. 
 dnriuK' six montlis' period, 71. 
 
 effect of, assiiiiiment of nr.irl|,'.i;:o on arrears of, 7f^. 
 expenditure liy morlKani'P. wlieu allowed on, (17. 
 lines and ]ienalties, increasiii;:: rate of, I>">i), '.M\'.\. 
 implied hy morl);a;;e debt, (i.'i, 212, :>o!>. 
 in advanc(\ titi. 
 interest on arrears of. li!>. 
 le.yal rate of. six per cent.. ."><;;!. 
 m(U-t;iaj;e delit. payable on, (i."i, 212, I'.o".). 
 inortKaKee entitli'd to what, ou redemiilidii after default. 
 
 2;]o. 2:;(;. 
 
 notice, in lieu of. 2o(i. 
 
 on disliurscmenis liy miirt.ua,!;ee, (i7. 
 
 on .iudjiiiu'nt when land sold under li. fa.. .'Ml. 
 
 on legacy charfred on land, arrears recoverahle. oKS. 
 
 when interest begins to run, 'i<)i^. 
 on loan to reiiay prior mortgage, 70. 
 
OENKIIAL INDKX. 
 
 41 
 
 Interest on niortKn^o ,.r |M.r.s„nnlt.v. nncms of, ;!(il). 
 oil luuiicy iNii.l inl,. ru.nt l,.v IJ.iihvny. :m. 
 
 f^c( iiifd liy vi'iidor's lini. .'tl 1. 
 on niorlp.KfH (uv trim l.,imn- tlmn ". v,..",rs ;!(;i 
 on rents, ,sr». 
 
 nile or. (liinKeiiM.. ufler innliiritv of luan 
 rests, Kt. 
 
 " tnkiiiK iic( (Mint xM'tli rests," >r>. 
 
 when rests In ken, ,S(i. 
 >vlieM no iiiTejirs nt linie of entry. ,S(i. 
 \vllen nier(>:iiue delit llilly repni.l,' SS. 
 \vlii'n part or iiKirlKiiKO jiroperly h(iI<1, 8S 
 "Iidi inreins (iipildlized, SN. 
 wlien nioitKiiKe re|.,iy.il.l(> by instainienls. Sit. 
 liow <ii!enliitions niii.le with rests, Hi). ' 
 iil.i)eiil fro, 11 .Masters riding as to rests S!) 
 stipninlion for increased rate of. (IS. 
 snlsetpient, eninpiitalion of. 1S7. 
 fendcney of Courts a>.'ainst eonipoiiiMlintr, 72 
 tender, interest .eases from date of, I'.'.o. 
 wlien lurrnal stops, (Ti. 
 
 ^vllere money se, ,nvd on sinl<in;r fnnd. :!;-'.», ;](;;{. 
 lii-iiicipa! and interest Mended, ."..-.i). .",(;.'}. 
 ^eeurity , annot 1... dis..l,arKed I.LeaUse of' mortwiKee's 
 
 .. ., , eondnet, 88. 
 
 seenrity silent jis to, (;,->. 
 
 .rnnieson. the first Viee-("lianeeIlor in V. ('.. 1. 
 •Toint iieeonnt, niortfra;;!' on, IS, L'L'4. 
 
 ^vill Courts fio Iioliind, 1?.",0. 
 nnd several covenants l.y inortj:a;rors, LM4, 21,1 
 mortj,'aj,'<'es, 1.*!, IS, 2ir>, L'LM. 
 
 wlio have parted witli their interest, 4(5 
 Mock Companies. mort,,i;a); s to, 211. 
 •Tiulgment af,'ainst infants, see " Infants." 
 ai)i)ointinp receiver, ."•!). 
 
 directing mort«aj.'or to deliver up deed, .TO. 
 ofiuitalile niortftiifre, form of. (;3. 
 injunction after, ,18. 
 money in receiver's ha mis, .It), ()•{. 
 on praecipe, 5t, .")2, It IS. 
 
 ■when entitled to. .")2. 
 
 •uhere entered, ,12. 
 
 defendants out of .inrisdiction, HH. 
 
 relief j;iven in. 53, KJS. 
 
 no injunction in, 170, 171. 
 
 amending or setting aside, 170. 
 
 none against person of unsound mind. 171 
 
41» 
 
 (JENEUAL INDEX. 
 
 lifj 
 
 «i 
 
 Jiulfjinent, where soparatc iimrtKiiKfs on sopariitc properties, 00. 
 niortf?iiKt' of iiiulivided interests, (i(). 
 ecjuity sold and inort>;aged back, GO. 
 portion of eqnity sold and balance re-niortgagcd, Gl. 
 dispute as to ownership of equity, Gl. 
 action by second mortgagee against first, Gl. 
 subsequent incumbrancer has gained priority, Gl. 
 mortgagor hiis joined as surety iu further mortgage, 
 mortgagee was trustee also, 02. 
 dower is barr(>d in one mortgage? only, 02. 
 dow«'r is claimed paramount to mortgage, 02. 
 money in rect-iver's hands not carried into account, 03. 
 lunq) sum allowed by plaintiff for rents, 03. 
 debt payable by instalments without acceleration, 04. 
 married woman is defendant, 387. 
 mortgaged premisis out of jurisdiction, 04. 
 See '• Final Order." 
 Creditors, see " Execution Creditors." 
 .Tudioature Act, jurisdiction of Courts in mortgage cases, 284. 
 
 Lis pendens not required to be filed in foreclosure, 286. 
 power to mortgagor to sue for rents, 285. 
 Judicial Sale, see " Sale." 
 Jurisdiction, defendants out of, 33. 
 
 growth of e<iui(y, in England, 1. 
 lands outside, foi-eclosure against, 11, 04. 
 no sale of. 12. 
 redemption of, 12. 
 of High Court, in mortgage nuitters, 284. 
 Just allowances, meaning of, 73. 
 
 improvements, see " Improvements." 
 interest, see " Interest." 
 rents, .see " Rents." 
 repairs, see " Improvements." 
 Laches iu api)lying for final order, 120. 
 
 to set order aside, 124. 
 Lauds should be specifically set forth in writ, 10. 
 Land Titles \(f. cancelling securities under, 338, 345. 
 charge registered under, 337. 
 efTect of, 339. 
 evidence of, 339. 
 implied covenants in, 339, 340. 
 loss of certificate of, 340. 
 possession under, 340. 
 power of sale of proprietor, 341. 
 priorities of registered charges, 34L\ 
 transfer of, 343. 
 ; deposit of land certificate as security, 339. 
 
 foreclosure of land charged under, 341, 344. 
 
CiENEUAL INDEX. 
 
 419 
 
 Land Titles Act, fn.udulont leKisteml cliarg,.s, ;«7. 
 
 registration nndor, 337. 
 
 of cliarge, 337. 
 
 liurtliiisor under sale by charge, 341, 344. 
 
 transferee of charge, 343, 344. 
 
 unregistered cliarges on lands registered under, 
 
 331) 
 Lease, sre Tenant. 
 
 renewal of, (i7. • 
 Legacy charged on land, 43. 
 
 Statute of Limitation us to, 324. 
 . rules as to, 325. 
 
 l.egatee of subse(iuent incundHaiuer, 47 (i/). 
 Lessees of mortgagor, right of mortgagor to sue, 285. 
 
 right of, to redeem, 44. 
 Lien holders added in Master's Oflice, 40. 
 Limitation of Action on personal covenant, 2.")S, 2!>1, 
 Liquidated demand, indorsement for, 10. ' 
 Liquidator of Corporation bringing foreclosure, 21. 
 Lis Pendens not required in mortgage action, 280. 
 Loan Corporations, Mortgages to, 27. 
 
 ballotting for loans, SiJS. 
 
 borrowers need not be shareholders, 3.')4. 
 
 by-laws as to, 300. 
 
 discharges of, 3.">0. 
 
 discretion allowed directors in loaning, 
 
 3ri5. 
 
 foreclosure of, limit of holding powers, 
 
 357. 
 in liiiuidation 07 («)• 
 on instalment plan, would account be 
 
 taken with rests, 89. 
 on sinking fund plan, rules as to interest 
 
 3.59. 
 rate of interest on, 3.58. 
 sale under, 350. • 
 
 improvident, 350. 
 notice of, 30O. 
 when by-laws are part of mortgage con- 
 tract, 355. 
 Locatee, niortga^'e by, before issue of patent, 283. 
 
 after issue of patent, 283. 
 
 wife must join, 283. 
 Statute of Limitations as to, 333. 
 Lord Cranworth's Act, see Mortgages, Act respecting. 
 Loss of certificate of charge, 340. 
 Lump sum allowed for rents, 63. 
 

 ; i 
 
 420 
 
 (;eneuai. index. 
 
 Lunatic, I'oroclt .sure b.v, 2o. 
 
 agaiust, 4'2. 
 
 whert; jiidginont lor, obtained, 1<>S. 
 wlioi-e wife is, niortgagi's without dower, ;{'•(». 
 Married women, action liy, lor I'oroclosnro, 24. 
 
 see " Wile," " Dower."' 
 Master, account taken by, 180. 
 
 appeal Ironi order or ruling of, J>(>. 
 
 order of. adding i)arties, 182. 
 ruling of as to rests, 8!). 
 appointment served by direction of, 18-1. 
 conveyance settled by, 188. 
 
 duties of, in reference, 171. 174, 184, 187, 181). 
 matters not in jurisdiction of, 5)4. 
 nnist report as to " wilful default," 80. 
 non-attendance before, effect of, 184. 
 plaintiff entitled to name, 17I{. 
 
 power (o act without special directions. 8, 171, 18J>. 
 should draw his own report, !>2. 
 
 siilisequent incumbrancers to 1»e made p.'irlies by, 170. 
 when reference nnist be to, ](i8. 
 see Report. 
 Master's office, adding parties interested in equity, !), 141. 
 application to add in, 14.3. 
 
 notice of, 143. 
 defendants added in, 4(!. 
 
 classes of, 4(;, 142. 180. 
 
 co-tenants of tenant in common not 
 
 added, 181. 
 heirs of deceased subsequent in- 
 cumbrancer not added, 181. 
 heirs of deceased first mortgnpec, 
 
 181. 
 mechanics' li(>nholders, 181. 
 mother of intestate, 142. 
 mortgagor by deposit of mortgage, 
 
 142. 
 purchasers of portion of equity, 142. 
 representalives of deceased part- 
 ner not necessary, 181. 
 representalives of deceased subse- 
 
 (1U(>nt iucumlii'ancer, 181. 
 registered subsequent incumbran- 
 cers, ISO. 
 unregi.stered subsequent incuni- 
 ' brancers, 180. 
 
 widow entitled to dower, 142. 
 
sasB 
 
 OENEItAL INDEX. 
 
 421 
 
 
 Master's office, dcvisocs not iulded in. 143. 
 
 iliifil cniiacity, cfTect of ndding ponson, 182. 
 moving iigain.st order adding in, 182. 
 •lucstions between co-dcl'cndants in, .14o. 
 -Maturity of loan, rato of interest cliargealde after, 70. 
 >re(rlianics' lien, holders added in Master's olliee, 4(], 181. 
 iniprovenienls liy, 78. 
 
 prioiity of, over prior mortgages, 347. 
 
 linuted to what extent, 347. 
 Dver siiliseqiient incnunliraueors, 347. 
 Memorials admissible In prove old mortgages, 33»). 
 Merger of seenrities, doclrine of, 218. 
 
 effected hy mortgagee purehasing at Sheriff's 
 
 sale. 218. 
 general rnle as to, 21!). 
 
 rele.-ise of e(iiiity may lie taken without, 210, 217. 
 how long debt kept alive, 218. 
 .Mesne purchasers as defendants, ;!4. 
 Mines, allowance for exDenditnre on. 77. 
 where nuirtgagee may open. 77. 
 -Mining comjianies, mortgages to, 27. 
 .Mistake in omitting liar of dower from mortgage, 2."t0. 
 Mixed actions, 10, l."», ."»0. 
 Money, paid into Coert liv railway, arrears out of, 30!). 
 
 payable ont (if land. Statute or Limitations as to, 308, 324. 
 purchase, secured by uKirtgage back, 18. 
 secured li.\- vendors lien. :>11. '.VS.',. 
 Mortgage, aiisolnte coiiveyiince construed jis, ,")]. 
 account, proof df, ](i7. 
 action, see " l''oreclosure " etc. 
 back, on sale of ciiuity, 40. 
 by iidministrator to pay his own debt, 337. 
 coriioration, to, ■_'.■>. 
 covenants imiilied in. 212, ."..10. 
 debt bears iul crest, (!."». 
 proof of, 107, 180. 
 deed, proof of, 1(»7. . 
 
 derivative, 48. 
 
 assignees uf mortgagee, 48, 
 equitalde, (i;!. 
 further, til. 
 
 in f.ii'm (if trust for s;ile, 20. 
 absolute deed, ~}1. 
 iiistahnent. 04. 
 
 len.seliolds, covenants inii»lied. 
 meaning of, in ^'ortgage Act, 200. 
 no, of lauds before issue of patent, 283. 
 of homeslead, wife must join, 283. 
 
IV i 
 
 422 
 
 OENEUAL INDEX. 
 
 
 
 1*1 
 
 i; ; 
 
 Mortgage, parluors, to, 28. 
 
 lu-oof of old (liscliargc'd, by inoinoriul, ,330. 
 registration of, in Land Titles Oltice, 337, 33S. 
 separate, (iO. 
 
 under Land Titles Act, 338. 331). 
 forms of, 331). 
 
 absolute deed, 339. 
 partievdar uses in, 331). 
 fixtures cove.'ed by, 339. 
 inipliod covenants in, 339. 
 
 construction of, 310. 
 right to (luiet enjoyment, 3-10. 
 liability of transferee of mortgagor, 
 
 340. 
 leaseholds, implied covenants, 340. 
 rights to entry under, 340. 
 tenants of mortgagor undei", 341. 
 foreclosure of, 341. 
 sale of, under iiower, 34L 
 
 notice of, 34L 
 priority of, 342. 
 discharge or cessation of, 338, 342. 
 
 order directing Mas- 
 ter to note, 342. 
 ' proof of. 345. 
 
 right to dower under, 342. 
 transfer of, 343. 
 
 on death of mortgagee, 343. 
 may be sid)ject to redemi)- 
 tion, 344. 
 seizure of, under execution, 343. 
 entry of, on register, 344. 
 attestation and verification of, 344. 
 entry of transfer of, 344. 
 
 verilicatiiin required, 344. 
 ceriilicate of charge, ;34.">. 
 
 transfer of, 34(5. 
 new, how obtained, 
 
 34(5. 
 custody of, 34(5. 
 production of, 34G. 
 undivided interest, 00. 
 Mortgage money, person entitled to. a party to foreclosure, 13. 
 
 persons interested in, on joint account, 18. 
 Mortgagee, accounts of, 85. 
 
 when taken with rests, 85. 
 accretions to security, right to, 78. 
 assignee of, necessary to foreclosure, 18. 
 
OENKHAL INDEX. 
 
 42;i 
 
 Mortgagee, bniikmirtcy ol. lil (~). 
 
 bidding on sale by, 2!t0, 374. 
 
 con.son(in>; to .sale, (ill. 
 
 dovisoo of, ncccissiiry to foreclosure. 18, 181. 
 
 execution creditors ol", 48. 
 
 executor, (liscliiir>:es by. 21J)-224. 
 
 heirs of, 181. 
 
 in possession, sec " Mortgagee in Possession." 
 
 interniodiiite, ^ce " Snbs( onent Incumbrancer.*' 
 
 joint, 13, IS. 
 
 parting w\\h inter(>st, 4(!. 
 lenses, right of, to make, 201, 202, 
 legal reprcsentiitive of, 18, 181. 
 mislaying title dcoi's, 00. 
 of tenant of mortgagor, 48. 
 trade lixtnres. 4!t. 
 
 original, when a necessary party, 21. 
 paramount title, see " I'rior Mortgagee." 
 partition proceedings, how far affected by, 299, 300. 
 personal trouble and loss of time, no allowance for, 90. 
 possession how obtained by. .",">. 192. 201, 274. 
 puisne, see " Subsecpient Incumbrancer." 
 purchase by. 2!M., 374. 
 rights of. Ml redemption action, 9. 
 
 of entry, 201. 
 staying i>roce<>dings by, 117. 
 subrogation to, 22,. 
 
 trust for sale, remedy under mortgage, 152. 
 unable to give <lischarge, 00. 
 under Laud Titles Act, see " Mortgage under Laiul 
 
 Titles Act." 
 who h.'is iiarted with his interest, 40. 
 wrongful act of, 00. 
 see " Prior Mortgagee." 
 Mortgagee in possession, accounts against, STt. 
 
 kept by, effect on Statute of Limita- 
 tions, 317. 
 acknowledgment by, 317. 
 .•ill(i\v;incps to, 
 
 agcMits salary, 90. 
 ( ommission, 90. 
 personal trouble, none for, 90. 
 bound to reconv€>y l)Ut not to assign, 207, 
 
 208. 
 imi)rovements, see " Improvements." 7".. 
 .iust allowances to, 73. 
 mines, allowances of, in respect to, 77. 
 not bound to give assignment, 2H7. 
 
1 
 
 424 
 
 OEXERAL INDEX. 
 
 1*:^ 
 
 Mortgagee in possession ol" i)art of estate, 318, 
 
 poHsossion of, iiasses to assigns, 314. 
 
 ii'liairs by, see " Iniprovonients." 
 
 I't'sts, tiikiuK accounts with, 85. 
 
 right of cnlr'- of, distingiiisliod from liiat 
 
 of mortgagor, 
 solicitor of mortgagor does not stand in 
 
 l)ositiun of, 314. 
 when Statute of Limitations runs in favor 
 of, 313. 
 possession acquired qua mortgagee, 313. 
 
 Mortgagor, account against, 1U7. 
 
 actions, may bring, ii8.j. 
 
 banlirupt, 31. 
 
 by deposit of mortgage, 142. 
 
 costs of iirotecting title, bound to indemnify mortgagee 
 
 against, l:i!). 
 falsifi( ation of evidence by, penalty on, 297, 298. 
 hardships of, prior to 1.^37, 5. 
 heirs and representatives of, 37. 
 how far necessary to foreclosure action, 30. 
 husband of, 3.''.. 
 improvements by, 78. 
 lessees of, as iiarlies to foretlosiiro, 44. 
 mortgagee may aicept tenant of, 4.5. 
 not deemed a tenant-at-\vill for purposes of Statute of 
 
 Limitations, 3(MJ. 
 out of jKisscssion, no remedy i)rior to 1837, 7. 
 right of, to possession. 282. 
 
 to sue for rents, etc., 285. 
 tenant-at-will, how far, .'UIO. 
 tenant of, 44, 285. 
 trustees of, 3(J, 37. 
 wife of, 32. 
 who has cfinveyed his interest. 31. 
 
 ma 
 
 de agreement for sale, 31. 
 
 Mortgages of Ueal Estate, Act resjectiug. I'.U). 
 
 acceh-ration < lause— how right to notice 
 
 of i)ayment affected by, 237. 
 advance on joint account, 230. 
 assignee ef mortgage— proof of mort- 
 
 gag(> a<conut by, 18(1. 
 assignment of mortgage by executor, 219, 
 
 1!L'1. 
 assignment of mortgage in lieu of re- 
 
 tonveyance, 201. 
 
1 \ 
 
 I 
 
 (JENERAI. INDEX. 
 
 425 
 
 Mortgages of Real Estates, assignment of mortgage, covenant in, 20(). 
 
 form of, I'Oi;. 
 attornment and ilistress, '2lil. 
 
 MdvnnliiKi's iind disiidviin- 
 
 tiiyt-s of. •J.34. 
 clunso, L'o'J, 2.'5.">. 
 sinun, lio."). 
 
 to two niort)jriif;ees, '2l\i. 
 (ertifKiitc (if iiii.vMK 111 Mssijiiiiiiciii in 
 litMi of, 201. 
 validily of, L'lili. 
 Si'c Discliiirfrc. 
 costs of sale tnidcr |io\vcr, 247. 
 
 taxation of, 247. 
 vo.vati.on.s— l>y sale proccodlnss, 248. 
 •' c'onvo,', "— nicaniiiK of, 200. 
 <'onv(',vanct>— meaning of. 1D9. 
 
 nndor power of .sale, 2:J!.t, 244. 
 covenants iniplied in mortgage, 212. 
 
 • li.V lienelicial owner, 212. 
 ilanger by nsing, 211!. 
 j'tint and several, 215. 
 dates— Isl (Jay of .Inly, 18St5, 208. 
 di.soharge of mortgago— hy execntors, 21l». 
 valid wlu>never given, 222. 
 effect or, 223. 
 distress and attornment. 2;)1. 
 
 form of clanse, 235. 
 distress— mortgagee's right of— limited to 
 goods of nioi'tgagor, 230. 
 
 to year's interest, 230. 
 executors of nnjrtgagees— power of deal- 
 ing with nu)rtgage, 21!>, 221. 
 further iiroceediiigs— after notice of .sale, 
 
 248. 
 what are. 24{>. 
 incnmliranci — meaning of, 200. 
 incnndirancer— meaning of, 200. 
 insurance— money [layalde undi'r mort- 
 gage. 200. 
 upiilication of, 20:t. 
 held as collateral, 211. 
 not affected l»y consolidation, 211. 
 power of— under Lord Cran- 
 
 worth's Act, 230. 
 rights of mortgagee to, 210. 
 interpretation, 11!). 
 
42G 
 
 CIESEIIAL INDEX. 
 
 li I 
 
 11' 
 
 Mortgages of_Real Estate, joint account clniise, 230. 
 
 will Courts go bohind, 230. 
 and Severn 1 covenants, 215. 
 tenancy, 225. 
 
 in assurances, 225. 
 in mortgages, 22G. 
 land— definition of, 109. 
 leaseiliold — mortgage of — assign- 
 ment of, 221. 
 implied covenants, 214, 
 merger of securities, 21G. 
 
 comparison of our law with 
 that of England, 217. 
 effect of release of equit.v, 217. 
 purchase from sheriff by 
 mortgagee, 218. 
 extent to which general 
 doctrine affected, 218. 
 general rule as to, 219. 
 " how long mortgage debt kept 
 
 alive. 218. 
 rights of incumbrancers inter 
 ^ • ' se. ;>l(i. 
 
 mortgage — account— proved by onth of 
 assignee, ISCi. 
 assignment of — by executor, 
 
 ')ia 001 
 
 bequest of indebtedness on, 221. 
 covenants implied in, 212. 
 discharge by executor, 222. 
 mortgage, joint and several— implied 
 
 covenants, 212. 
 • meaning of. 200. 
 
 money— meaning of, 200. 
 of leaseholds — implied cove- 
 nants, 214. 
 . ' sale of— by executor, 221 . 
 
 mortgagee — executors of— power of deal- 
 ing with mortgage, 219, 221. 
 • in possession, 208. 
 
 meaning of, 208. 
 more than one — covenants 
 
 with, 214, 215. 
 receipt of, a discharge, 222. 
 rights of distress, 230, 231. 
 mortgagor— entitled to redeem, 203. 
 meaning of, 203. 
 
 »= 
 
 15-' I 
 
HH 
 
 GENERA L INDEX. 
 
 427 
 
 
 Mortgages of Real Estate, mortguf^or, ri«ht to insport titU' dcods, 208. 
 
 notice of snlo uikUt i)owt'r, 240. 
 tonteiits of, 240. 
 form of. 242. 
 in ciise of infants, 240. 
 Iiajiucnt in terms of. 250, 
 registration of, 242. 
 stays proceedings, 248. 
 order for assignment in lien of re- 
 conveyance, 207. 
 pnrtnersliiii— mortgage to, 21,". 
 payment after defanlt, 2.%. 
 
 liow fiir notice necessary. 2.">(i. 
 power of sale— aniendnu'nts to statutory, 
 
 24(5. 
 application of pnrclnise money, 24.'{. 
 «'osts of exercising, 247. 
 form of notice of sale under, 242. 
 improper sale under, 241, 212. 
 notice before sale under, 240. 
 effect of, 240. 
 
 payment in terms of, 2r)0. 
 receipt for pnrclias(> money, 240. 
 registration of notice under, 242. 
 restriction on statutory, 241"). 
 time for <iuestioning sale under, 
 
 power of insure, under T^ord Cranworth's 
 
 Act. 230. 
 power to insure, under Lord Cranworth's 
 
 Act '2P,[). 
 purdiase money, fnuu sale under power, 
 
 application of, 24,3. 
 purcha.'<(>r of mortgage nnty set up de- 
 fence of value without notice, 2,51. 
 except as against mortgagor, 251. 
 under piiwer of sale, 240. 
 conveyance to, 244. 
 how aft"ected by improper sale, 
 
 241, 252. 
 receipt of mortgagee— an effectual dis 
 charge. 222. 
 
 selling under power, 240. 
 re-conveyance— assignment in lieu of, 201. 
 sale uiuler power— see " Power of Sale." 
 time for questioning limited, 252. 
 

 428 
 
 GIONEUAL INDEX. 
 
 'JiV 
 
 Mortgages of Ileal Estate, socurities collateral, 207. 
 
 to wlidin i.ssii,'iiin('iit tuiuIc. 201. 
 " tt'i'iiis, on the," inciuiiiiK of, 205. 
 title (Icctls- ri;;lit, ol' mortgaj^or to in- 
 spect, 2(I,S. 
 right tu, of person exercising power 
 of rule. VAo. 
 Short Forms of Ac t j-esiiecting, 2.J3, 
 bar of dower, 2")'). 
 
 coveniints— see iilso proviso to pay, 258. 
 iis to title deeds. 2(i4. 
 frc(> from, inc umhrances, 202. 
 further iissiirinices, 20[{. 
 good title, 2ri!>. 
 insurance, 'M>'}. 
 cjuiet pcissessidu, 201. 
 uo act to incumber, 204. 
 release, 'JOO. 
 right to convey, 200. 
 directions as. to fornis, 2.">4. 
 feniiuiue fcir masculine. 2r)4. 
 "free from iiicuudirances,"' 2(52. 
 " further assurances," 2ti;i. 
 insurance, 2(ir>. 
 
 covcjnant without assignment, 208. 
 , . "loss if any payable," 205. 
 
 mortgage clause in policy, 205. 
 preiuinms— when i)ayablo by mort- 
 gagee, 20)8. 
 right of subrogation, 20!). 
 " lands "— nuaniug of, 25;{. 
 leasees liy mortgagee. 202. 
 mortgages under, 2.~i.'{. 
 
 failing to take ert'ect under, 2.").'?. 
 form of, 254. 
 what included, 25;{. 
 "no act to iucunilier," 204. 
 " party "—meaning of, 253. 
 perscjnal covenant, 2.5S. 
 
 limitation as to, 258. 
 power of sale— See " I'ower of Sale." 
 proviso for redemption, 250. 
 
 power of sale. 270. 
 proviso for right of distress, 277. 
 acceleration, 278. 
 re-demise, 281. 
 quiet possession by mortgagee, 201. 
 mortgagor, 281. 
 
OENKIJAf, INDKX. 
 
 12!) 
 
 MortfjivgeH, Slioit Forms of, rc(lcin|)ti.iii, i:r.(;, 
 
 Sclii'diili' A., l'r)4. 
 
 1$., L'r.l. 
 
 tliriMtiniis, '2T>1. 
 sdu'diilcs fonii jmii ot A(.t. liruJ. 
 title <lct<ls, L'til. 
 Mollicr of iiitt>stiitt', (iddcil in Mnstci's oHice, ] {-j 
 Mm'iuK iiKiiinst onli'i- nddinK luirtics in .Miistcr's olllio, 1S2. 
 Municiiiiil Corijoriitioiis, inoit.uM^rcs to, li(i. 
 Neve friend, fon'closure liy, of Iniintic, I'.'J. 
 
 infiuit, L'l. 
 Non-atlond;in(c on aiipninlniciil liy .Masior, 1S4. • 
 Non-i)ayuient, judor of, idji. 
 
 iiUidavit of, liy ii.u'ciit or solicitor, loi). 
 
 of toiiii)imy. 110. 
 liy (o-n!orl};iif;(cs, lilt, 
 should not show i>osst>ssion, oti>., 110. 
 c'ortifi(!itc of, liy Imnk, lid. 
 when iiliidnvit m.-idc, IdJI. 
 Xoto given in settlcniiMit, and dishonored, 11. 
 Notice of frodit hy niortj:;iKee, !t, IC.l. 
 
 ol.jeit iiiid time of, 1<!2. 
 iiniji-ovenicnls, 73. 
 iiit(>rest chiir^cd, 70 (i). 
 of iiayiiient olf of inoit,;;a;;e in defiinlt, 2.10. 
 
 when niortj;a^'ee enlitied to, 2'M. 
 after five yejiis. -VtS. 
 of sale, effect of, on rinhts of niortgaKee, 14. 
 to lienholders, incundmnK ers, etc., 17!). 
 Noting of proceedings closed against defendants not •■inpearin- 
 
 10, 147. II r,. 
 
 Occupation rent, see Kents. 
 Oflicials as niortgajrees, 20. 
 Onus of proving security, 107. 
 Opening Foreclosure, 112. 
 
 by receipt of rents, 114. 
 
 liefore default, 114. 
 after default, 11."). 
 by receiver, TiO, 110. 
 costs of suit, after, 114. 
 previous payment in full, 112. 
 ill part, 112. 
 principles of. 11.*?. 
 
 Avhen mortgagee cannot restore estate, li;{. 
 oan hut will not, 114. 
 suing on collateral, 112. 
 
 covenant after foreclosure, 112. 
 

 4IJ0 
 
 OKNEUAI- INDEX. 
 
 Opeuint; Forccloaiu-e, wlit-ro Huccessivo porioils o£ rt'tleuiption, IIT). 
 
 See " Final Order," " Stuy of rroeecdings." 
 Order absolute, Bee " Final Order." 
 Origin u( I'ureclosure in England, 1. 
 
 in Upper Canada, 1. 
 Purol agreement, sale not decreed on parol agreement for deposit, 
 
 150. 
 
 Parties, aeeounts bind, 185. 
 
 added in Master's olllce, 9. 
 
 all persons interested in estate or seeurity should be, 13, 18, 
 
 177. 
 annuitants, 4{\. 
 assignee in insolveney of mortgagor, 81. 
 
 of e<iuity of redemption, 34, 100. 
 of nuirtgagee, 21. 
 
 latest sullk'ient, 21. 
 pendente lite, 22. 
 where sale held under power, 23. 
 of mortgagor, .'U. 
 of subsequent incumbrancer, 47. 
 AUorney-Oeneral, joinder of, 2.'{. 
 bankrupt mortgagor, 81. 
 beneficiaries necessary, where, 3<>. 
 
 when not 144. 
 
 when trustee has adverse Interest. 
 
 36. 
 diselaimed, 36. 
 when fraud appears, 30. 
 creditors, execution. 4(!. 
 
 of subsequent incumbrancer, 47. 
 of mortgagee, 48. 
 scheduled in trust deed, 37. 
 Crown, decree affecting, 151. 
 defendant, 30. 
 devisee of equity, 42. 
 
 widow claiming, paramount, 02. 
 dower, wife of mortgagor, 32. 
 
 not signing mortgage, 32, 02. 
 purchaser of equity, 33. 
 equity of redemption, owner of, 31, 34, 160. 
 
 bankrupt mortgagor, 31. 
 Crown, 151. 
 devisee or heir, 37, 40. 
 joint owners, 142. 
 
 mortgagor who has parted with, 31. 
 trustees, 30. 144. 
 heir of mortgagor, 37. 
 purchaser, 40. 
 
 £9 
 
fJENEHAL INDEX. 
 
 431 
 
 Pttrties, iufiinf, 40. 
 
 judKiiit'iit cit'dilorH, SCO riiMlitorH, snpni. 
 
 jurisdiction out of, 11. 
 
 lejititcoM of It'Kucics cliiirfc'ed, 43. 
 
 lessees of iiiortK'iiKor, 44. 
 
 Itinntics, 412. 
 
 iiuuried woimin, 1*4. See Dower. 
 
 niortKavee and rl.tiinanta under liiui, l.'J, 1,S. 
 
 iiumerouH < liiss, til, 142. 
 
 out of jurisdictioii, 11. 
 
 inirtners of niortgiiKce, '2H. 
 
 niortj,'iiKor, li'J. 
 perHuniil representutive of niorlKiinee, l.'J, 18. 
 
 mortgagor, 37. 
 
 partners ileceased, 30. 
 
 liurcliaser, 41). 
 
 suliseiiuent incumbrancer, 47. 
 pIiiintilT, 13. 18-12!). 
 
 principal and sure(y, 43, 01, 14!), 100. 
 prior niorlgagecs not, to foreclosure, 12. 
 puisne incund)rancers, 40. 
 purt4iasers, 34. 
 
 joint, 34. 
 mesne, 34. 
 pendente lite, 3!5. 
 railway company in possession, 45. 
 remainderman, 43. 
 reversions, 43. 
 surety and principal, 43. 
 tenant for life. 44. 
 years, 44. 
 in tail, 4-*. 
 
 mortgagee of, 48. ' 
 
 when accepted by mortgagee, 45. 
 generally, .'{0, 144. 
 trustees in insolvency, 32, 37. 
 Partition, no, against will of mortgagee, ,50. 
 
 procedure for is not a mortgage remedy, 59. 
 Partners, who may foreclose, 28. 
 
 mortgage to one of several, 28. 
 change in, effect on securities, 20. 
 representatives of decea.sed, 30, 181. 
 Payment, after, position of mortgagee in possession, 88. 
 
 after default, what notice mortgagee entitled to, 235. 
 
 where mortgage has demanded payment, 236. 
 agent to. 320. 
 
 attendance for. 111. 
 
 before day fixed for redemption, 105, 100. 
 
 bills accepted in, subseeuently dishonored, 11. 
 
■ i(F»|i I'* 
 
 482 
 
 OENEUAL INDEX. 
 
 •v-„,. „, „„„„,„„„„ .„ ,,„„, ,„^ ,^^ ^^^^ ^ _^^^^^^^_^ ^^^ 
 
 afrcnt to pny i,i)<.r,.s(, .'iiM,. ''^'*' ^-'^• 
 
 I'y wliuin iiinde, .'JL'd-.'H'S. 
 
 ]'y >"nrt,-,,Ko,- ...rter .ssi';,ninfr ...,nilv, li2H 
 
 >'y tcn.MiK r„r lilV „r vnuUy, 32!». 
 
 'O- one joint awurr „f o(ii,itv, 8'>!> 
 
 <Iisti„fr„islu.,i iT.m, a.ki.owli.flfrment. 330 
 
 Court into, 111, 117. ' "i^. mom, uu(J. 
 
 cnveiiiiiit for, l'."S. 
 
 'J«'iiiiiii(l ior, ,.n-..( t <,r, -'is. IMS, L>,-.0 
 
 •liscliiu-v of iii(iinil,r;,,i(e Iiy. HT. 
 
 dismissal of :ic(i,iii on, S. (i(i. 
 
 in terms of (Icmiind. (U; "-!•» 
 
 "tiers "'''''" '-'"■-"■'""-.1.240. 
 
 <'f'l'"ct of seitioii .'IS to, 2o7 
 iiotico not rcM/iiircl. 2.'?(t. 
 joi.it crodildi-, io, 'JUii 
 iioti((« of. Ii(>foic, i'-j,-), L','{(;. 
 I'ersoiiiil order for, 8, ,13, l-lj). 
 
 cxeciitioii on, rt-i. 
 
 li"\v iiff.'cted ii.v roferciK-e, 54. 
 immedi;i(e, .13. 
 
 , 1 . '""'""-^ t') i)ersoii iiijikinir I'lo 
 
 »-edemi.t,on < ..n.litionMl <m. 1,S!» ' 
 
 tinio iiliowo,] for, 102. 
 
 lifter jiliortivo Siile. IflO. 
 after six inontlis, Kjf.. IGO. 
 I'oniior rule, ]tii>. 
 iiiodcrn nile, l()i>. 
 
 wliere siiccessivo jieriods. 103, 104 
 wlien shortened, 105. 
 time, enlnrgcment of, IKS. 
 
 motions for, US. 
 '^ ^;l.m' .'ood ,.ros„eets of helu^ ahle to pny. 118 
 
 ^^u-re mort^.,,j;,e at fault. 118 ' ' ■ «' 
 
 wl.en value Kiratly increased, 11!) 
 See "Stay of Proeeediugs," '• Opening Fore- 
 closure." " Fi„,,i Order." 
 assignment of mortgage. 22. 
 IMircImsers of e(iiiiiy, 35 "~" 
 1 enod for redemption after alKU'dve sale, 100. 
 
 «fter one ineunibraneer redeems. 104 
 after .si.v months elapsed. 10, 105, 1«0." 
 
 Pendente liti 
 
 
■t^-*^''''m,i«>i'tmmmmmmmmmmmammi^M«iA ,^» 
 
 <jf I-iimitiiti():is. 
 yii), 320. 
 
 I?'' <'i|ni(.v, ,'5L>,s. 
 
 : ;3L'!». 
 
 'Itrinoiit, 330. 
 ion, 330. 
 
 OENEJUL INJ)EX. 
 
 433 
 
 allowed, 249. 
 
 )4. 
 
 afcoiint, 54. 
 
 10. 
 
 !. 104. 
 
 o pay, 118. 
 ling Fore- 
 
 Period for redemption, ,.nl,aj;.Ml. in, o.vst .luriny, 72. 
 interost during, 71. 
 
 '•ule.s (fornH.r, pnisne. infiunbranecs foreclosed 
 lirst, 102. 
 
 (niodorn) six mouths allowed all do- 
 
 ft'iidiints. 102. 
 (t'xcoi-tion) sMcccssivi' periods whero 
 I'liisnc miirtgagofs prove, 103 
 .shortened l,y .AlastiT, lo.",. 
 
 for benefit of mortgagor, lOu 
 sucees.siv,., rate during, 71. 
 
 where allowed, lo,'}, 1()4 
 f^hurtened in .ase of sale. ir)4. 
 
 pcr»o„a, He,„„,,., ™r,„,.,„„. ,„„„. ,,,,,'.:;,■:,,'::, ^.'r*'' "••■"'■'• '■"• 
 
 "■il.lrcl In „1„,.„,,. ,„. ,.s|,„.,^ ,.,„.,.„„,„ ,i.-, .,,., 
 
 •'"'""'' "'■"' '■'"'"' '■•"• '•"■•e.losnre. ir, .V! ^"*' 
 
 none against assign.-e of e^niiy of reden.ption, 34 
 restrained when, 114 
 Perso,,^! representative, see - Parties,- '• Representativ.- " 
 I ln.nt.h-, may throw onus of sale on defendan aski • o 
 parties, ],S et s,eq. ' ' 
 
 1 leadings, may he noted. 10. 
 
 plaintiff mnst use diligenee in framing 1.-] 
 
 Poliev f t"'' '""' '■■"■ "■'""•■'' '" *''••'' <IainK.d in, 1(5. 
 ioliej of Insurance, renewal »[, (17. 
 
 against infants, 41. 
 
 mortgagee in, se.> •• .Mortgagee." 
 ►See •• Insnrand'."' 
 t ossession, Order for, !), :.,-). 
 
 against whom directed, r»(J. 
 application for, 07. 
 dovel()i)ment of, ,";r>. 
 
 not afterwards granted e.\- parte .10 
 sni)plemental, .Id. 
 
 , .should 1,0 asked without d.'lav r.d 
 usually aske.l in writ. ,V>. 
 ""t ..f, .judgment enfoneal.le |,y. i!)2 
 
 force of writ of assistance" ^n.l i.abero facias 
 
 possessionem, li»;i. 
 liow obtained, lo;?. 
 material re(iuired, 103. 
 
 p„„. , « , . "■'""" "^"■' '""■^' '-e issued. 193. 
 fO\>t.- of .Sale, implied statutory, 239. 
 
 conveynneo under. 244 
 
 H.F.M.— 28 
 
 \ 
 
4:U 
 
 GENERAL INDEX. 
 
 I! iJ i 
 
 '' 
 
 Power of Sale, implied costs of siih- under. 247. 
 
 (listrilmtion of luiiTliiise money, 2-13. 
 cli.siKisition of title deeds, 1M."». 
 gniund of defnult in. S.WK 
 nutiee of siile, 1»-I0. 
 
 form of. 242. 
 to executors, 241. 
 registration of, 243. 
 .sale not lialije to inii)eaeluuent on eertain 
 
 grounds, 241. 
 receipts for iMircliase money, 24(1. 
 'When inii)lied i)o\ver not available, 24r»-247. 
 time limited for settling sticli iiroceedinfjs under, y."»2. 
 under Short Forms Act, 270. 
 
 disixisition of surplus, 27(!. 
 
 exercisable on one month's default, 274. 
 
 exercise of, cannot be treated a.s Ji 
 
 nullity, 27"). 
 is entry necessiiry to exercise, 274. 
 leases under, 277. 
 "l)ay and satisfy the costs,"' 270. 
 sale by private contract. 27(J. 
 sale en bloc, 27('». 
 
 service of mortgiigor a) residence, 275. 
 trustee in better case than assignee of 
 
 mortgage, 27;!. 
 without notice, 272. 
 Power to mortgage, 301. 
 
 by administrators, ;{(!.'!. 
 by benevolent societies, IH'A. 
 ■ by executors, u(>2. 
 
 by religious institutions, 3(12. 
 by trustees, 3(H. 
 
 bow far s;ile authorized under, 301. 
 power to sell does not necessarily authorise. 
 
 301. 
 Power to take nmrlgages, general. 2r», ;!(;i. 
 
 of banks. 25. 
 of building societies, 27. 
 of cemetery companies. 2S, 3(11. 
 of corporations, 3(>1. 
 of friendly societies. 27. 
 of insurance corporations. 27. 
 of .joint slock companies, 27. 
 of loan coriiorations, 27, 2(l."i. 
 of mining companies, 27. 
 of municipal corporations. 2(1. 
 
 i i 
 
"Hr*irf«*#;«M(W*M*i»fe»^(«rii«l«;»i>*MSja^:,,f( 
 
 , 2-13. 
 
 I. 
 
 .'43. 
 
 t on certain 
 
 (i. 
 
 bl.>, 24r,-'J47. 
 
 ,'s under, JJ.VJ. 
 
 default, 274. 
 roatcd as a 
 
 i\ 274. 
 
 ' 27(J. 
 
 iK'iice, 27."). 
 assignee of 
 
 y autliorise, 
 301. 
 
 51. 
 
 GENEUAL INDKX. 4:^5 
 
 Power to take mortgages, of Trust (Companies. 
 
 of Trustees, 3(14. 
 
 nnaulIiorize<l or iile>;al investnuMits 2u 
 I raetice in foreclosure. cininKes in. 7 et seq. ' ' 
 
 rraBci[.e judKUient. see Judfiineut. 
 rreservation of ..state, allowance of ,,a.vn,enls for. 73, ,S7, 131. 
 
 of securit.v, rigiit of niortf,'iiKee (o, 73, ,S7. 1l'!>. 
 I'rincipal and snr.'l.v, as defendants, 43. 14!». Kio. 
 
 '"•'■•IWiKor .joining as snret.v in further niort- 
 fiaj;e, (Jl. 
 Trior Mortfrapee. 4U. 
 
 (■ontlictinK priorities settled i.y .Miister. IStl. 
 consentiiiK to lie party, od. 
 costs, of uwtrtKaKee's. \\1U, iNtJ. 1,S7. iM,",, -JTi. 
 how. may iese priority. 1S2, 207. 
 
 to mechanics" lieu-lioldor, 
 
 . 34t;, 347. 
 
 in iKissession ac(|uirinj,' e(|uity, ."lO. liJO-i'lO. 
 loan to repay, 70. 
 
 not party to foreclosure, 12. 40. 17(;. 
 party to redemption, 12. 40. 
 
 not foreclosure. 12, 40. 17(i. 
 redemption .d', coml.ined with other ( aus.'s of 
 
 action, HO. 
 siiecial circunistauces affect iii>r. •"0, r>]. 
 to redeem. Iroth mort^raues must l,e overdue 40 
 FM-iority, how person payinj; .df first inortpige may Jos... 207." 
 lost hy not nioviu;: ajraiust (.rder of .Muster, ISi?. 
 ncfrlifreiH e, lost by, 1S2, 207. 
 to li(> set forth in Master's reix.rt. 1.S7. 
 rr<.(eeds of S.ile. liy (^ulrt, iii.plicMtion of, ISS. 
 
 under power, iii)pliciiti()n of, 24.'!. 271. 
 surplus of, L'7(;. 
 
 dower ill, 2."r». .'MO 
 I rotectioii of Security, creditors ri«lit to, 7.'!. 
 
 deteri.u'ation. mort;ra^'co-s riulits re;rardin^'. 
 
 7( . 
 
 lireventiou of Injury tn security, ,^7. 
 Trovinp security. I07 et set). 
 
 how security m;iy he proved. 107. 
 how far ue<'cssary to |irove c(uisideral i,ui, 107 {!,), 
 
 lOS. 
 stafciueiii i.f account hy jissiKuee of mortRajre. 
 
 I roviso, see M.u-tCTt'es. Act respi^ctiuK Short Forms of." 
 I'liisuo incnmhraucers, see " SidisiMpient. ' 
 
^a!n!^SSSO^ 
 
 n-< i 
 
 j'l 
 
 : . 
 
 fmrnm 
 
 436 
 
 OKNEIiAL INDEX. 
 
 Purchase money, ai)i»li(n(i(iii of, after sale liy ("oiirt. LSS. 
 
 under Power of Sale, 243, 271. 
 mortgage to secure. 
 
 Statute of Limitations as to, 323. 
 l*urehaser after defective foreclosure'. 23. 
 
 application of pnrcliase money. ISS. 24."., 271. 
 in good faith of mortgage, ll'A. 
 of equity, wife of, 33. 
 
 heirs or representatives of, 40. 
 joint, 34. 
 mesne, 34. 
 pendente lite, o.". 
 under agreement. 31. 
 mortgagee as, 21(!, 21S. 2!l(f, 374. 
 with vendors lien. IS, (iO. 
 Purchaser for value without notice, 251. 
 Quiet possession, covenant for by mortgagor, 2(il. 
 
 entry under, 2(51. 
 leases under, 2G2. 
 proviso for, until default, 281. 
 liailway company, appointment of manager of, 152. 
 
 foreclosure or sale of lauds of, not allowed, 152. 
 in possession, uuide parties to suit, 45. 
 remedy of mortgagee of, 152. 
 sale of lands of, not the proper remedy, 152, 
 vendor to, can he forecloseV 1,52. 
 Jteliuilding by mortgagee in iiossession, 7(!. 
 
 with insuran<-e moneys, 210. 
 lloceipt of mortgagee or surviviu', 225. ' 
 
 of rents, see Kents. 
 Heceiv(>r of (orporation liringing fureclosure, 21. 
 of raihviiy company, 152. 
 money in hands of, 5!>. 
 
 h(nv to prevent ro-openiug. 59. 
 lump sum allowed f(U', t>3. 
 not carried into ac<'Ount, *i3. 
 I{e-convey, plaintiff must lie able to, 11. 
 
 obligation on mortgagee to. on iiayment, 15)0. 
 Iteconveyance, see " Assignment," " Mortgage." 
 Redeem up, foreclose down. 12. 
 Re-demise clause, 2S2. 
 
 Redemption, absolute conveyance to prior mortgagee, procedure for 
 redemi)tion, 51. 
 action, 
 
 counter-claim to, 17. 
 
 dismissal of, 1(!5. 
 
 joinder of other relief in, 15. 
 
 :i:i 
 
243, 271. 
 3ns as to, 323. 
 
 (JENEUAL INDEX. 
 
 437 
 
 luler, 2(!l. 
 Dder, 2G2. 
 
 t nllowcd, 152. 
 , -15. 
 
 nedy, 152. 
 
 IK. 59. 
 !3. 
 
 , «;3. 
 
 '.H>. 
 
 procedure for 
 
 Redemption notion, judgment in, liow drawn, 105. 
 parties to, see " I'artit's." 
 riglits of mortgagee in, !). 
 
 order to wliieh entitled, 1G5. 
 referenee, 1(15. 
 time within which it may he hronght, 313. 
 common law, none to mortgagor out of possession, 5. 
 deeds, delivery up on onth, l)f2. 
 dismissal of action, for, k;-,. 
 disputed, riglit to, 18!t. 
 equity of, see " Equity of Kedemption." 
 joinder of, other relief in action for, 15. 
 jurisdiction of. County Courts in. 2.S7. 
 
 High Conrt in. 2,S4. 
 limitation of time for. und.T Statute of Limitations, 
 
 313. 
 notice of, what required, 2.35. 
 of foreign lands. 12. 
 
 one day only for redemption by all parties, 102. 
 part, by owner of, 13. 
 parties to, see " Parties." 
 payment, a condition precedent to, ISO. 
 period for, in foreclosure action, 102. 
 
 further, 10. 100. 
 persons entitled to, see " Parties." 
 proviso for. extending beyond 5 years, 257, .304. 
 statntory. L'5(i. 
 
 construction of, I'.'m;. 
 puisne mortgagee, by, 100. 
 successive periods for, when allowed, 103. 
 title deeds, right to, on, 1>)2. 
 wife by, see " Wife," " Dower." 
 within statute of limitations, ;!()5. 
 Keference, costs of unnecessjiry, 14. 
 duties of Master on, 174. 
 efTect of omitting, 14. 
 
 on order for in)nie(lijitc payment, 54. 
 for l)eiietit of infant, 57. 
 in iiraecipe judgment. 170. 
 judgment for foreclosure witli, 171. 
 plaintifl" nnist judge if he will have. 14, 175. 
 powers of -Miister on, S. 
 Registration of disclmrges of mortgage. L>24. 
 
 of receipts for niortgiige money, by deposit, .'{30. 
 Religious institutions, mortgag«'s by, 302. 
 
 authorization of. ;>02. 
 
,f 
 
 488 
 
 GENERAL INDEX. 
 
 Itoinniiulenueii ns defondants, 4^. 
 ]{eiiiP»lies oil iiiortt-'agcs lioltnv \S'6~, (». 
 
 iniiu- wlicre iiiort>?agoi' out of 
 possession, 7. 
 cliattcls, on inortfiaKo of. ir»2. 
 e(initatile niortgaKc on, 1j'). 
 luTsoiial, ~)'A, U.jS. 
 railway coinpany. I>y uiortgayoe of lainls 
 
 of. ir.L'. 
 restrained Iroin exenisinf,', when, 114. 
 siiniiltaiieoiis exercise of, 14. 
 
 limitations on, 14, 248. 
 trust lor sale, when iiiort>iaj;e in form of, 
 
 152. 
 under Land Titles .\ct, 341. 
 lU'now.il of leases, <»7. 
 
 polieies. (i7. 
 lioi ■ '■: iits of, 7!>. 
 
 .IS ip.countalile to sulistMiuent ineumlirancers, S.'i. 
 
 oannot be applied to out- 
 side delit, S4. 
 a(u.all> ii'ieivel, 71). 
 arrears lil, 30 V. 
 
 attornment by iiKutfraKor at fair, 2.'?2, 2.T). 
 ■• hut for wilful nefiiect or default," 70. 
 
 effect of iii(irtf.':ipirs tenant's fail- 
 ure to pay, SfK 
 ejecting mortjianor's 
 
 tenant, SI. 
 lease by mortfjanee 
 with side jirotit, 
 81. 
 defective transfer by 
 mortgagee, 81. 
 wliat wilful default means. 80. 
 ''■h.'iriied on land, niiears fif, 307. 
 collector, eniuloyment of. tlO. 
 connnissiou for collection of. 80. 
 
 no. couiiuission for personal collection, 80. 
 conuiiission fo bailiff not always allowi^l, 'lO. 
 credit notice on receiiit of, 0. 
 distress for, 2:]<l et scf). 
 ellVct of attornineiit clause. 84. 
 interest on, S.">. 
 
 how calculations made with rests, 80. 
 appeal from Masters ruling as to rests, 89. 
 "taking account with rests," 8r>. 
 
lortgagoi' out of 
 
 I, 7. 
 
 ir.2. 
 
 rtKUgce of lainls 
 
 , wlu'ii, 111. 
 
 14. 
 
 ions on, 14, 248. 
 
 gage in form of, 
 
 H . 
 
 ers, S:i. 
 
 be ni)i)litMl to out- 
 (l«>lit, S4. 
 
 giirs lenant's fail- 
 to pay, SO. 
 
 ; mortgagor's 
 
 ant, SI. 
 
 s(' liy mortgagee 
 with side i)roHt. 
 SI. 
 
 ective transfer by 
 mortgagee, 81. 
 
 fault means. SO. 
 
 aieetion, SO. 
 
 avs allowotl, 00. 
 
 rests. 80. 
 
 IS to rests, 89. 
 
 ST). 
 
 OENEIJAL INDEX. 
 
 V.V. 
 
 Rents, interest on, when rests taken. S(i. 
 
 when no arrears at time of entry? Nt;. 
 when mortgage deht fully repaid. SS. 
 wlien part of' mortgage property s..M, 
 
 88. 
 when arrears eaiiitalized, SM. 
 when mortgage rei)ayalile l.y instal- 
 ments, 80. 
 lump sum allowed for, (".]. 
 modes of chiirging mortgage(> with. 7!>. 
 oeeiipation, SI. 
 
 arrears (if interest set od' against, 82. 
 defined. 81. 
 due hy eo-owner. Ki. 
 evidence as to. 83. 
 how reckoned. S2. 
 
 not atTected hy Statute of Limitations, S2. 
 right of suhseipient ineumhrancer to, 83. 
 of improvements, 77. 
 where occniiation at a loss, S.">. 
 see Iteceiver. 
 Repairs, buildings incap.ihle of, 7(;. 
 
 by mortgagee in i)ossession, 7.3. 
 mortgage entitled to charge for, 7;',. 
 
 to what extern, 7.'!. 
 to render dwelling tenantahlc, 7(;, 
 
 what allowed after suit commence.l, 77. 
 Report of Master. 01. 
 
 antedating, 0.'). 
 contents of, 0."!. 
 
 difference between, and certiliciite, 01 
 
 tiling of, 0.3. 
 
 kinds of. 01. 
 
 l)roli.\lty of, m. 
 
 should be <lrawii by .Master himself, !»l'. 
 
 things to |„. .stated in, 1S7. 
 
 names of p.-irtics added, |S7. 
 names of def.-iulting iiarlies. 1S7. 
 amounts of claims, 1S7. 
 priorities, 1.S7. 
 
 certilicate that these are the only 
 iiKinnbrancers. 1S7. 
 vacation not incln.le.l i„ time for becoming ..bsn- 
 
 Inte. 140. 
 •warrant to settle, 02. 
 whiit should be included in, 04. 
 when prepared, 02. 
 
V ! 
 
 i; , 
 
 ! I 
 
 440 
 
 GliNEUAL INDEX. 
 
 Reiiieseiitativos, appointnioiit of, »iy ('ouit, 14"). 
 of uiortgat'or, us cloleiidauts, 37. 
 
 yartnor, i>l>. 
 
 l)Ui'eluiser, 40. 
 
 subsL'iiuent iucuiubranter, 47. 
 
 proceedings whore no, 145. 
 Restraining mortgagee from pursuing remedies, 114, li48. 
 Rests, see '" Interest," " Rents." 
 Reversioners as defendants, 43. 
 Revivor, order of, 107. 
 Robinson, Atty-Gen. & C. J., attitude of, towards Court of Lqu.ty, 
 
 2, 3. 
 Sale by Court, abortive, D, 153. 
 bidding in. 374. 
 cases where granted and furv'ch)sure refused, 151. 
 
 (1) Against the Crown, 151. 
 
 (2) Pledge of chattels, 152. 
 
 (3) Trust for sale. 
 
 cases where refused, 150. 
 
 (1) land out of jurisdiction, 150. 
 
 (2) svibsetiuent incumbrancer as plain- 
 
 tiff, 150. 
 
 (3) equitable mortgagee, 150. 
 
 (4) absence of interested parties, 151. 
 cases where neither sale nor fore -losure granted. 
 
 (1) mortgagee of railway, 152. 
 defendant wishing, 1"'. 
 
 cannot demand conduct of, 158. 
 deposit on, 8, 155, 1-57. 
 duties of Master in, 187, 188. 
 imniediale, 155. 
 introduction of practice, 8. 
 of foreign lands. 12, 150. 
 period for redemption in, 154. 
 
 shortening, 154. 
 
 extending after, 155. 
 plaintiff may make defendant conduct, 0. 
 proceedings for, 187. 
 terms on which decreed, 153. 
 
 Sale in guise of partition not allowed, 50. 
 Second mortgage, see " Subsequent Incumbrancer." 
 Separate mortgages, judgment in case of, 00. 
 Separate properties, judgment in case of, GO. 
 Service on execution creditor, 8. 
 
 solicitor of execution creditor, 148. 
 
■;AiA»WJ,«»*w*iii*i(lj.iw.*»t»»*»W!l»ii*Wi*»fl 
 
 OENEltAL INDEX. 
 
 441 
 
 14, 248. 
 
 i Court of Equity, 
 
 ire refused, 151. 
 it the Crown, 151. 
 . of chattels, 152. 
 for sale. 
 
 idietion, 150. 
 iibraneer as phiin- 
 
 igee, 150. 
 sted parties, 151. 
 •losure granted. 
 >e of railway, 152. 
 
 1 conduct of, 158. 
 
 ;, 154. 
 
 ending after, 155. 
 
 duct, 9. 
 
 er. 
 
 Settled estates, i)ower of ((.ni-f <.. .,>..i, • 
 
 . i oi (unit to authorize mortgage of, 2,S{). 
 
 e.\ecution by what parties, 2!(U. 
 registration of mortgage uc.'cs- 
 
 sary, 21)0. 
 limit of Courts power, 2!)0. 
 invgularitics in cxercis,. „f 
 I'ower, 2!tl. 
 Mieriir, when he inny foreclose. 21. 
 
 what in.lnded in certifici.te (.f. ITS. 
 date to which certificate l.rongh't doVvn. 17!». 
 Solicitor, costs of, see " Costs." 
 
 mortgagee, commission to. !M) 
 
 Of „H..^ngor not cuivaicnt' ,o n.ortgagee in possession. 
 
 service on, of jmlgnient creditor, 14S. 
 "Special circtimstanccs," ,■■)(). 
 Sjteedy foreclosure, iifter ah(M'tiv(> sale. !», 1.-.1, 
 Stay of proceedings, after judgment. 117, Ki}. 
 before judgment, 117. 
 niom'y must be paid, 117. 
 
 amount, 117. 
 l'<'i-son api.Iying for, must be entitled to re- 
 deem, 117. 
 l)laintiir himself appl.ving for, IIS. 
 powers of ('(iiirt in, {>). 
 
 puisne inorlgiigee ai.plying r.,r. 117. 
 snbse(|uent defiiult after, K;,-,; 
 nnder Kiile ;j,S!», i(;.|. 
 
 where m.u-tgngee .•iinnot restore estate. 114. 
 
 ,< „. . , ,, , '""^ ^^'i^*'" "i>t'<e of sale, 248. 
 
 htrict loredosure," 2.'{ (7(). 
 
 Sub-mortgage, see " Mortg:ige. derivative." 
 
 Subrogation to mortgagee, 22. 
 
 Sidisequent accounts taken l,,v .Master, 1,S7. 
 
 Subsequent costs t.-ixed, 187. 
 
 Subsequent Incund.rancer. action by, against first mortgagee. (11. 
 
 added in Master's office, Hi. 
 
 assignee of, 47. 
 
 cannot inqn'ove against first mortgagee. 
 78. 
 
 executors and administrators of. 47 («). 
 gaining priority over first mortgagee, (11. 
 toir.s, devisees, legatees and annuitants 
 of, 47 («), 
 
 heirs of, not necessary parties 181 
 H.F.M.— 29. 
 
.] :. f 
 
 J III 
 
 442 
 
 (iENKIlAL IN'DKX. 
 
 ,Subse(iueut Incumbrancer, jndKnuMit iifilitors of, 47. 
 
 not a i»art.v to writ, 177. 
 notiif It", (if joiutltT in MusUt's uII'ko, 
 
 171). 
 ri'K'isttTud, \HU. 
 r('i»r('stMitiitiv»'s of. 47, IM. 
 iinri'gistt'reil, INO. 
 
 SiK-rrssivi- p.TiiMls (.f i-drnii'tinii, int.Tost how computed, 71. 
 
 when iillowcil, lti:>. 
 
 S\ii)crint<'udont of insuran.t', brliDiiiiK foriMJosnie. 21. 
 Surety for niortp\Ke del.t nuiy l.e jfdned in iiction, 8, 140. 
 
 may redeeni, 4.j. 
 niortKiiKor joining in furllu-r niortKii«t> 
 
 as, r,i 
 lijrhts of iiliiintitT aniiiu^'. l-^"- ^"*"'*- 
 ayaiust plaintiff. 4;!. 14(i. 
 debtor, 141. 
 suliroKation of, to niortKagt't'. --• 
 wlien only one princii)al and. 4:j. 
 
 Surjiius .Mfter sale by Court, ISS. 
 
 inider power. 24:!, 271, 27t>. 
 
 dower in, I'.'tu, :>4D. 
 
 Taxes, payment of by mortgagw-, (>7. 
 
 Tenant at will, mortgapu- is not for |)in'pose of Statute of Limita- 
 tions, oUU. 
 lor life !is defeudiuit, 44. 
 
 I'eiireseiitatives of, 44. 
 right of, to redeem, 44. 
 for years, as defiMidant, 44. 
 in common, why Ik- should be joined, 44. 
 
 co-tenants of, not necessary parties, LSI. 
 in tail, as defendant, 44. 
 mort;;agee may accept, 4.'i. 
 of mortgagor, 44. 
 
 mortgagee of, 4S. 
 
 Tender of money to mortgagee after notice to pay, 250. 
 Title not to be debated in foreclosure. 42. 
 Title deeds, alhdavit of, by mortgagee on redemption, 102. 
 custody of, under Land Titles Act, 34(5. 
 delivery over of, on payment of mortgage, 1D2. 
 equitable mortgage by deposit of, 150. 
 
 form of judgment for fore- 
 closure, 03. 
 form of covenant to produce, 204. 
 
OENEltAL IN'DKX. 
 
 44:{ 
 
 iu .Ma>*ifrs ollito, 
 
 1st. 
 
 ('iiin|)Utf(l, Tt. 
 when iillowcil, 1*1:5. 
 
 t-. 21. 
 
 Ill, 8, 140. 
 
 riirliii'r inortKiigo 
 
 iiist. 14<t, 145». 
 utitf. 4:!. 14(». 
 or, 141. 
 rtKiigct', li"-'. 
 liiil 1(11(1. 41). 
 
 i{4U. 
 
 C Statute of Liiiiitu- 
 
 44. 
 
 •y parties, 181. 
 
 l.a.v, 250. 
 
 i')tioii, 102. 
 , 34(5. 
 iiovtj,'aj,'o, 1'J2. 
 
 )f judyment for fore- 
 sure, G3. 
 
 Title deeds, iusiicctioii of, right of iiiortKapir to. 208. 
 
 foriiMM- riilf as tn. 2it,s. 
 loss of, 1!>2. 
 
 iiiidiT Land TitU-s A<(, :j4t;. 
 riuht of luortKaKec to dciiiaiid .ind nvovcr, 21.".. 
 Tradt,' fi.xtures, mortgagee of, 4!). 
 Transfer of inortgaKce, see " Assignnient." 
 Trust eoinimnies, inortKages to, 27. 
 
 express, no enlargement of term under Statute of Limiia- 
 
 tions, ;!o4. 
 for sale, mortgage \>y wa.v of. ;{;{(!. 
 
 elTeel of, on Statute of Limita- 
 tions, .",;jtl. 
 ronied.v under, 152. 
 Trustee, hringing foreclosure without joining henetieiaries, 20, 141. 
 
 where trust attacked, 20. 
 for persons entitled to mortgiige money, IS. 
 how far a necessary defendant, .'!•>. 
 mortgage to, to secure creditors. ;!7. 
 mortgagee in possession, how far a, .'!;!."). 
 not a necessary party when trust expired. :\7. 
 power of, to sell or mortgage, .".01. 
 
 executors and administrators, ;U(2. 
 to invest on first mortgages, .KM. 
 sued without l.eneficiiiries being parties, 144. 
 when mortgage is in form of trust, for sale, 2o. 
 
 , . , proper remedy, l."»i'. 
 
 Mlio IS iilsu mortgagee, (!2. 
 
 intra vires, investineuts hy coriior.itions, 2r». 
 
 T'ndivided interest, mortgage of, (;o. 
 
 I'niting c.-iuses of action, 1t». 
 
 r'ii|>aid vendor, right to foreclosure. IS. 
 
 Unregistered subsequent incumbrancers a.ld..,! i„ .Masirr's oilirc. 
 
 T'i)per Canada, introduction of foreclosure into. 1 et sect. 
 Vendor, .leceased, under !igreenient foi' sale, lit. 
 with mortgage back, 18. 
 
 assignee of, IS O). 
 Vendor's Lieu, 12. 
 
 Statute of Limitations to, .■!2:'.. 
 Venue in foreidosure, 17. 
 Wido.v, see '• Dower." 
 Wife of mortgagor a party, .32. i 
 
 not signing mortgage, 32. . 
 
 purchaser of equity, 133. 
 see " Married Women," "Dower." 
 
\\i: I 
 
 II 
 
 i! 
 
 k 
 
 444 
 
 (JKNKIIAI, INUKX. 
 
 Wilful (U'fault, si'e " Ut-nts." 
 
 Willis, J., tipiioinU'd E<iuity .linlj,'»', '2. '.i. 
 
 Writ, (•ountiT-claiKi, (listinj-'nislu'd froin, V,19. 
 
 clefendnntH to, 'W. 
 
 forms of in foivilosiirc onsos, IR, 10. 
 
 iiKlorsc'ineiit of, 15, UU). 
 
 joiniiiK various cnuscs of action in 15. 
 
 lands should hv set f*)rth in, It't. 
 
 rolicf limited by indorsement ')f, 15. 
 Written provisions when |)ref«nTed to printed, 277. 
 
 r 
 
 > 
 
 
 t- 
 
TV