although he has failed to pay the interest which he ought to have paid for more than six years-to redeem on payment only of six years' interest. There would be no justice in such a construction of the Statute. Is the omission of the mortgagor to pay the interest which he ought to have paid less culpable than the omission of the mortgagee to demand and enforce payment of it?"

In the case of Ford v. Allen, the argument may be met by asking-Is Ford, the subsequent mortgagee, to be compelled to lose everything, interest and his security, because Allen did not take proceedings and sell under his mortgage? Why should Allen receive more than six years' interest as between Ford (subsequent mortgagee) and himself?

A mortgage had been transferred to a trustee to secure certain notes of the mortgagee, one of which, after several years, was found in the hand of the assignee of the mortgage; and a suit having been instituted upon the mortgage by the trustee, it was held, that to the extent of the amount remaining due on the mortgage, including six years' interest, the party beneficially interested was entitled to recover the amount of the note, and interest the whole period the note had run. Scatherd v. Rielly, 22 Chy. 8.

Where a defendant desires to prevent the plaintiff from recovering interest for a longer period than six years, he must set up the defence of the Statute of Limitations; merely filing the usual disputing note is not sufficient for this purpose. Wright v. Morgan, 24 Chy. 457. Reversed · on Appeal. See p. 121.

It is a question whether this last decision is good law, judging by analogy, and the principles enunciated in the Court of Appeals in the case of Gilleland v. Wadsworth.

In that case Chancellor Spragge, in the Court of Chancery, held that it was necessary to plead the Registry Laws. But the Court of Appeals held they would take cognizance of the Registry Laws, though the point on them was not taken in the pleadings. It has always been held that the

Courts will take cognizance of the Statute of Frauds, without it being pleaded. Gilleland v. Wadsworth holds they will act in a similar way by the Registry Laws; why they should not with regard to the Statute of Limitations, or any other public and general Statute, is difficult to understand.

The Statute of Limitations forms no bar to the claim against the mortgagee in possession for occupation rent. Coldwell v. Hall, 9 Chy. 110.

With regard to arrears of interest on an annuity, see supra.

The fourth section of this Act provides for the case where the right or title to an annuity is disputed; the seventeenth section where the title to the annuity is not disputed, but the distress is made for the arrears due. James v. Salter, 3 Bing. N. C. 552. Vide Allan v. McTavish, supra.

An annuity charged on land by will comes within the meaning of the word rent in the third sub-section of section 2 of the interpretation clause, and therefore no more than six years' arrears are recoverable. Ferguson v. Livingstone, 9 Ir. Equity Rep. 202; Francis v. Grover, 5 Hare, 39. But in Wheeler v Howell, 3 K. & J. 189, arrears of annuity charged on reversionary interest in land were held to be recoverable more than six years after the same became payable. See, however, Vincent v. Goring, 1 J. & Lat. 697; Sinclair v. Jackson, 17 Beav. 405. An annuity bequeathed out of personalty is not within this section, but is within section 23, supra. Roch v. Cullen, 6 Hare, 531. Re Ashwell's Will, Johns. 112. Lord St. Leonards considers that the words in this section, "arrears of interest in respect of any legacy," might well be held to include an annuity which is payable out of personalty, and no charge upon the land. R. P. Stats. 138.

It has been held in several cases in England that in a foreclosure suit a mortgagee cannot recover more than six years' arrears of interest, although the mortgage debt is secured by covenant. Sinclair v. Jackson, 17 Beav. 405;

Shaw v. Johnson, 1 Drew. & Sm. 412; Round v. Bell, 30 Beav. 121. The case is different where there is a trust to secure the money.

These cases are all mentioned in the able judgment of Moss, C. J., in Allan v. McTavish, supra. Vide notes on section 23.

18. Where any prior mortgagee or other encumbrancer has been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit is brought by any person entitled to a subsequent mortgage or other encumbrance on the same land, the person entitled to such subsequent mortgage or encumbrance may recover in such action or suit the arrears of interest which have become due during the whole time that such prior mortgagee or encumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. C. S. U. C. cap. 88, s. 20.

Latter part of section 42, 3 & 4 Will. IV. cap. 27.

This section is founded on the principle that, as the prior mortgagee was in possession and received the profits of the land, he should be accountable for the interest in the account for the whole time, although it exceeded the six years. He cannot hold the land and receive the profits, and then set up the Statute of Limitations to prevent interest being recovered after six years. He "cannot eat his cake and have it."

The same principle holds in ascertaining the measure of damages, as decided in the case of Colton v. Morton, and in many other cases.

In Colton v. Morton, plaintiff sold shares in a road company to defendant for a certain price, and was always willing to transfer the shares and receive the money. Under the company's rules, in order to transfer the shares, defendant had to accept them by signing the books of the company. Defendant would not accept them, and while the plaintiff held, he brought an action on the contract to recover the contract price. It was held by the Courts that

plaintiff could not hold the shares and recover the money too; his course was to sell the shares, and bring an action for the difference between what they sold for and the contract price.

It is presumed that a squatter would not be an encumbrancer within the meaning of the Statute. But see Doe d. Johnson v. Liversedge, 11 M. & W. 517, where it is stated, "The recovery contemplated by that section not being necessarily a recovery by virtue of legal process."

The exception in this section is, where a man has an estate and there are several encumbrances on it, and one of the encumbrancers enters into possession, then another creditor shall not be prejudiced by that possession, if he come for relief within a year after the prior creditor has been removed from the possession. If a prior mortgagee or other encumbrancer is in possession, the right of the subsequent creditor to recover interest during the full period of such possession, although that period may exceed six years, is saved, provided he is so vigilant as to come within one year after the determination of that possession. A judgment creditor, who has the first security upon the estate and gets into possession, is a prior encumbrancer in possession within this proviso. Henry v. Smith, 2 Dru. & War. 390. The prior encumbrance referred to in this exception is one which affects the estate or interest upon which the subsequent encumbrance is also a charge. Vincent v. Goring, 1 J. & Lat. 697.

A. being entitled to a mortgage on certain lands vested in a trustee for him, agrees that a subsequent annuity creditor should have precedence over his debt, and joins in a demise of the lands to a trustee for the annuitant, but his trustee who had the legal estates did not join in the demise. A. remains in possession till the death of the grantor of the annuity. It was held that the annuitant was not debarred from recovering more than six years' arrears, as the annuitant fell strictly within the literal terms of the

exception in this section. Drought v. Jones, 2 Ir. Eq. Rep. 303; "a doubtful authority."-Sugd. R. P. Stat. 146, n. See also Montgomery v. Southwell, 2 Con. & Law. 263; Wheeler v. Howell, 2 Kay & John. 198.

Sugden says: "As we have seen, a judgment creditor of a remainder-man in fee has been allowed to recover only six years' interest, although the tenant for life or his encumbrances have all along been in possession.

"The Court observed that this was a case of a totally different nature from that provided for by the Statute, for here was an estate for life not barred by the judgment, and a remainder which was barred by it; the case therefore was not within the exception, for the judgment creditor of the remainder-man had no right to enter into the possession of the estate during the life of the tenant for life, even supposing the possession had been vacant. The Act does not say that if the creditor could have had a remedy against the lands, and neglected to avail himself of it, he shall only recover six years' interest, but it is absolute and positive. that no arrears of interest shall be recoverable but within the time specified; and then the exception states the only case in which the Legislature intended to relieve the creditor from the effect of the previous enactment.”

A second mortgagee as such cannot impeach a prior registered mortgage as fraudulent and void against creditors, but a judgment creditor having accepted a mortgage, does not lose his rights as a judgment creditor. Warner v. Taylor,

8 L. J. 243.

MORTGAGES.

19. Where a mortgagee has obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit 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 an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been