The form of covenant for payment in ordinary use in Ontario is that contained in schedule B to the Short Forms of Mortgages Act (l), as follows:

That the mortgagor will pay the mortgage money and interest, and observe the above proviso.

If the mortgage is expressed to be made in pursuance of the statute the foregoing covenant has the same effect as if it were in the following terms (m):

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 mortgagee, his executors, administrators or assigns, the said sum of money in 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 provisions, 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.

A mortgagor may by his covenant restrict his liability ,as to the amount and as to the terms on which the mortgage may be enforced. In a mortgage for $3,250, which contained the usual printed short form covenant for payment, the following words were added in writing to the covenant: "But before proceeding upon the covenant the mortgagee shall realize upon the lands mortgaged, and the mortgagor shall then be liable only to the amount of $600 or such lesser sum as will with the net proceeds from the lands make the $3,250 and interest." The last clause in the mortgage, also added in writing, provided that "in no event shall the personal liability of the mortgagor on his covenant exceed $600." It was held that the mortgagor was not subject to any liability on the covenant until after the mortgagee should have realized upon the lands and then only to the extent of $600 (n).

(l) R.S.O. 1914, c. 117, schedule B, clause 4.

(m) See chapter 35, Short Forms of Mortgages Act, Sec. 381.

A trustee or a personal representative who covenants to pay is personally liable even though he covenants as trustee or as executor or administrator (0), and even though he adds a proviso that he shall not be personally liable, such a proviso being repugnant to the covenant for payment and therefore void (p). A proviso which limits the personal liability with out destroying it is, however, valid, as for instance in the case of a covenant to pay out of a certain fund with a proviso that the covenantor shall not be liable after he ceases to be entitled to administer the fund (q).

The duly appointed trustees of a congregation, to whom by that description the site for a church has been conveyed, and who by that description gives to the vendor, to secure part of the purchase money, a mortgage with the ordinary covenant for payment, are a corporation (r) and are not personally liable upon the mortgage although it is signed and sealed by them individually (s).

Where a mortgage deed contains a covenant for payment of principal and interest upon a fixed day the principal and interest are two distinct debts, and either may be sued for separately from the other (t).

(n) Wilson v. Fleming, 1893, 24 O.R. 388.

(o) Farhall v. Farhall, 1871, L.R. 7 Ch. 123, at p. 128; but see In re Robinson's Settlement, Gant v. Hobbs, [1912] 1 Ch. 717, at pp. 728, 729.

(p) Watling v. Lewis, [1911] 1 Ch. 414; Furnivall v. Coombes, 1843, 5 Man. & G. 736.

(q) Williams v. Hathaway, 1877, 6 Ch.D. 544; cf. Matthew v. Blackmore, 1856, 1 H. & N. 762.

(r) Under R.S.O. 1887, c. 237. See now the Religious Institutions Act, R.S.O. 1914, c. 286.

(s) Beaty v. Gregory, 1897, 24 O.A.R. 325.

(t) Dickenson v. Harrison, 1817, 4 Price 282, 18 R.C. 474.

It is provided in Ontario by the Division Courts Act, R.,S.O. 1914, c. 63, s. 67, as follows:

67.- (1) A cause of action shall not be divided into two or more actions for the purpose of bringing the same within the jurisdiction of the court.

(2) Where a sum for principal, and also a sum for interest, is due and payable to the same person upon a mortgage, bill, note, bond or other instrument, he may notwithstanding anything in this section contained, but subject to the other provisions of this Act, sue separately for every sum so due.

Under this provision it has been held that the mortgagee cannot sue for an instalment of interest upon a mortgage, the amount of the instalment being within the jurisdiction of the division court, when other instalments are due, and the whole amount due exceeds that for which a suit may be brought in the division court (u).

An action was brought in a division court on the 2nd November, 1901, for one year's interest due the 1st February, 1901, and interest on interest, amounting together to $81.50, due on a mortgage, the principal of which was some years overdue. It was held (1) that the interest sued for, being interest post diem, as to which there was no covenant to pay, was due to the plaintiff not qua interest but only by way of damages, and the case did not come within the provisions of sub-s. 2 of s. 67, and (2) that the plaintiff, if entitled to recover the amount claimed, was entitled to recover as damages interest down to the date of the issue of the summons amounting in all to about $140, which sum had been divided for the purpose of enabling the plaintiff to sue in the division court as forbidden by the statute (v).

(u) Re Real Estate Loan Co. v. Guardhouse, 1898, 29 O.R. 602, following Re Clark v. Barber, 1894, 26 O.R. 47.

(v) Re Phillips v. Hanna, 1902, 3 O.L.R. 558; cf. Re McKay v. Clare, 1910, 20 O.L.R. 344.