since the passing of the Acts which were consolidated in our Statutes as caps. 78 & 88 respectively, was to hold that the latter had reference only to the land on which a demand was secured, the object being to relieve land from the claims of mortgagees and persons holding charges upon it within a reasonable term, which object was not affected by the term of the other Act, which relates to a different subject, namely, to personal actions only, the construction of the two Acts taken together, as regards rent or interest, being that no more than six years' arrears of rent or interest, in respect of any sum charged upon or payable out of land or rent, should be recovered by any distress action or suit other than, except in actions in covenant or debt upon specialty, in which case the limitation was governed by the other statute and fixed at twenty years.

That being the construction placed upon the English Statutes, our own, which were substantially the same, were consolidated as above mentioned, thereby adopting the construction placed upon them.

The recent Act purports to be, and is in fact, an amendment to cap. 88, and is to be read with it. It only professes to deal with land and charges upon it, and limits the term, both for the recovery of the land itself and the charges upon it, and does not profess to deal with statute, cap. 78, which, by a long course of judicial decisions, had been held to deal with an entirely distinct matter, namely, the collateral covenant or security for the payment of the money.

The language used in section 11 is identical with that of section 24 of the former Act, except as to the former period of limitation; and having been adopted with the knowledge of the interpretation placed upon the former Act, must be construed in the same manner.

It could scarcely have been intended to deprive a person holding the personal security of a covenant which, by a long course of decision, had been held not to come within

the term limited by the other Act, namely, twenty years. It would require express language to deprive him of that right.

The appeal should be allowed, and judgment entered for the plaintiff upon the demurrer.

As to reviving a judgment, in Caspar v. Keachie, 41 Q. B. 599. "A writ of revivor, or suggestion entered upon the role, is a proceeding, and a judgment is to be considered as charged upon or payable out of land, within 38 Vic. cap. 16, s. 11 (the present section under review), so that it cannot be revived by writ or suggestion after ten years.

On the argument, the following cases were cited in support of the present decision: Watson v. Birch, 15 Sim. 523; O'Kelly v. Bodkin, 2 Ir. Eq. Rep. 373; Henry v. Smith, 2 Dru. & War. 381; Benington v. Evans, 1 Y. & C. Exch. 434.

Proceedings to revive a judgment are within this section. Waters v. Lidwell, 9 Ir. L. R. 362. A writ of sci. fa. will issue to revive a judgment given as collateral security for the payment of an annuity, although more than twenty years have elapsed since it was signed, if payment of the annuity within that time has been made. Williams v. Welch, 3 Dowl. & L. 565.

There seems to be a clear distinction between the case of a covenant in a mortgage and a judgment. In the former case the covenant is a specialty, and has nothing at all to do with the land. In olden times it was the custom to have two separate instruments, a bond and mortgage; and although the covenants in the present form of a mortgage do away with the necessity of a bond, yet the force of these covenants is the same as before, under the Act of Rev. Stats. Ont. cap. 61, s. 1.

The Legislature might as well have shortened the time to ten years with regard to covenants. Why covenants, personal covenants, should have twenty years to run, and a

mortgage only ten, is difficult to imagine. "It is one of those things that no one can understand, you see."

Shelford, in his Real Property Statutes, p. 237, says: "This section (sec. 40 of 3 & 4 Will. IV. cap. 27) applies to a case in which a judgment is sought to be enforced against the personal estate, as well as to a case in which it is sought to be enforced against the land of the debtor. The intention of the Legislature was that no proceeding whatever should be taken on a judgment after the lapse of twenty years from the time when the money secured by it became due, unless there was some payment on account or acknowment in writing within that period." (a)

A decree of a Court of Equity, for the payment of a specific sum of money, is included under judgment in that section. Dunne v. Doyle, 10 Ir. Chy. Rep. 502.

As to the effect of the Administration of Justice Act, vide Sawyer v. Linton, 23 Gr. 43; Knox v. Travis, 23 Gr. 41; St. Michael's College v. Merrick; Appeal Court, Vol. I., p. 520.

The principles which now actuate Courts with regard to the filing of "disputing note," and the effect thereof, as indicated on p. 89, have been fully enunciated in a late case of Wright v. Morgan (Appeal Reports, Vol. I. 613), where it was held (reversing the decision of V. C. Proudfoot, 24 Grant, 457) that it is unnecessary to plead the Statute of Limitations in mortgage suits to prevent the recovery of more than six years' arrears of interest in taking the accounts before the Master, as the filing a disputing note is sufficient.

24. No action, suit or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, at law or in equity, 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

(a) Watson v. Birch, 15 Sim. 523; see contra, Henry v. Smith, 2 Dru. and War. 391.

in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust. 38 Vic. cap. 16, s. 13.

This section is taken from the Imperial Statute, 37 & 38 Vic. cap. 57, s. 10.

Lord Selborne says, in his speech when introducing the Land Titles and Transfer Bill of 1873:

"Upon the construction of 3 & 4 Will. IV. cap. 27, it has been judicially held that the period of six years, limited by the Act for the recovery of arrears of interest on a mortgage or charge, does not apply if the term of years in the land has been vested and is still subsisting in a trustee for the creditor as part of his security, although such trustee may not have been in possession or in receipt of any interest whatever, for a longer period than six years.

"It is proposed now to declare that the limitation of ten years as to principal, and six years as to interest, shall henceforth apply to all such cases."

Mr. Charley says on this section: "The 10th section of the new Act destroys the strained construction put upon the 25th section of the Statute of Limitations of Will. IV.” [section 25 is engrafted in the present Ontario Statute, and is section 30 of the present Act], "in a long series of cases commencing shortly after the passing of that Statute, and culminating in Burrowes v. Gore (a), decided by the highest Court of Appeal, in 1858."

It restores the authority of Knox v. Kelly, decided by Sir Francis Blackburn (6), when Master of the Rolls in Ireland, in 1844: "Am I then, in deference to authority, to hold that a trust of real estate to pay a sum of money is one giving a right against which the Statute is never to operate? It is impossible for me to decide against the plain and unambiguous words of the 40th section, and I must therefore

(a) 6 House of Lords Cases, 907.

(b) 6 Ir. Eq. Rep. 279.

decide that this legacy is barred by that express enactment of the 40th section of the Act."

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Yet, notwithstanding this decision, and the express words of the 25th section, confining its operation to‘any land or rent,' the current of authorities set in so strongly in favour of the opposite view, that Lord St. Leonards, when delivering his judgment in the case of Burrowes v. Gore (a), in the House of Lords, said, 'I think it is perfectly settled that a charge of this nature, to be raised by express trust, falls within the saving [of the 25th section] as much as if the express trust had been applied, not to charges upon the land, but to the land itself.' 'The Statute of Limitations,' he said, 'is very singularly framed with regard to matters of this nature (?), for in the earlier sections it only provides for trusts which affect the land or rent. But when you come to section 40 and so on, as to charges upon land, you have then no corresponding section with regard to trusts as to such charges. There is always a difficulty in applying the statute when you come to trusts, not with regard to the land itself, but with regard to charges upon land; but, however, I consider it perfectly settled, and rightly settled, that the construction is the same in either case.' (b)

"In the learned work of Messrs. Darby & Bosanquet on 'The Law of Limitation as to Real Property,' Chap. xix., the following summary is given of the law upon this subject:

"The 25th section follows the wording of the 24th, on which it seems to be engrafted as an exception applying only to claims to the same subject-matter as there referred to, viz., land or rent. No similar exceptions is made in direct terms for express trusts in these cases where the cestuis que

(a) 6 House of Lords Cases, 907, 961.

(b) In the cases of Burrowes v. Gore the trust was created fifty years before the suit was brought, but the right of the plaintiffs, the cestuis que trustent, did not arise till two years before the suit, owing to the interposition of a protracted life interest in their father, so that the question as to whether the right to the charge was barred by the 40th section did not, except incidentally, arise. It is difficult to see on what ground Lord Wensleydale held that the statute began at law to run in 1816.