The law of mortgage afforded the most conspicuous illustration of the inconvenient result of the lack of equitable jurisdiction. The relation of mortgagor and mortgagee was governed by the common law as modified by statute. By the common law if the mortgagor did not perform the condition of the mortgage the estate of the mortgagee became absolute. If the mortgagor gave up possession the mortgagee obtained at least a good possessory title which there was no law to the conditions of the province were not introduced in 1792. Kee-watin Power Co. v. Kenora, 1906, 13 O.L.R. 237, at p. 259, and cases there cited. Hixon v. Reaveley, 1904, 9 O.L.R. 6. See, however, Keewatin Power Co. v. Kenora, 1908, 16 O.L.R. 184, at pp. 189, 196, 200, where a stricter construction of the statute is suggested.

(c) 32 G. 3, c. 6. The justices of the peace who were authorized to hold courts of requests were directed to decide "as to them shall seem just in Law and Equity." The judge of a division court in Ontario to-day may "make such order or judgment as appears to him just and agreeable to equity and good conscience."

(d) 34 G. 3, c. 2. The statute conferred upon the court jurisdiction equivalent to that then possessed by the Court of King's Bench, the Court of Common Bench, or in matters which regarded the king's revenue, by the Court of Exchequer in England, but there was no mention of any equitable jurisdiction. Cf. Simpson v. Smyth, 1846, 1 U.C.E. & A. 1, at pp. 57, 66.

to disturb (e). The mortgagor could not file a bill to redeem and the mortgagee was free to deal with the land as his own. If the mortgagor refused to give up possession the mortgagee was driven to an action of ejectment, a power of sale not being usually provided for. In such an action the British statute 7 G. 2, c. 20 had provided that the mortgagor might pay or bring into court the principal, interest and costs, and become entitled to a reconveyance of the mortgaged estate. So long as the mortgagor remained in possession this statute afforded to him to some extent the same protection as a court of equity could have given him. The bringing of the action operated as effectual notice that the mortgagee insisted upon either his money or his estate. If the mortgagor did not take advantage of the statute and pay the money, the mortgagee would get possession and practically the same status at law as if he had foreclosed in equity, the possible difference being that he got a speedier remedy than he would have got in equity. The statute could, however, be taken advantage of only if there were no accounts to be investigated and no disputed payment, and might therefore not cover some cases of hardship. If the mortgage debt was not paid on the day, the mortgagee could bring an action of ejectment and then the mortgagor could get back his estate only if he admitted the sum to be due which the mortgage was given to secure, and paid or brought into court that sum (f).

On the other hand the inability to get any judicial declaration of title on the mortgagor's default was doubtless a source of perplexity to the mortgagee. He had no means of guarding against the equity of redemption which slumbered in the minds of solicitors familiar with English books or to which effect might possibly be given under an equitable jurisdiction to be created in the future. It seems to have been not unusual for the mortgagee, after the mortgagor's default, to obtain judgment on the covenant and cause the mortgagor's interest in the land to be sold under a writ of fieri facias (g). . This ill advised attempt to sell under legal process an interest which in the absence of equitable jurisdiction had no real existence, and which in any case was not recognized at common law and therefore could not be affected by legal process, was at an early date held to be inoperative, but so late as 1846 it formed the subject of an elaborate argument (h), and the attempt was doubtless due to the desire of the perplexed mortgagee to give to his title the sanction of some judicial proceeding. The sale under writ of fieri facias, however inoperative as a legal transfer of a supposed equity of redemption, might plausibly be urged as a circumstance in the mortgagee's favour in the event of the mortgagor's afterwards endeavouring to redeem if a court should be established with equitable jurisdiction, or might be regarded as a sale by the mortgagee for the benefit of the mortgagor with a view to realizing the encumbrance and returning the excess to the mortgagor (i).

(e) Smyth v. Simpson, 1859, 7 Moo. P.C. 205, 5 Gr. 104.

(f) Doe dem. McKenzie v. Rutherford, 1844, 1 U.C.R. 172. A hard case, because it appeared that the mortgage debt had probably been paid, but the accounts were disputed. The statute in question is re-enacted in British Columbia as the "Mortgagors' Relief Act," R. S. B.C. 1911, c. 168. It is no longer in force in Ontario, being superseded by the existing rules of practice relating to mortgage actions. See chapter 24, Action for Foreclosure or Sale.

(g) The right of a creditor in Upper Canada, instead of issuing a writ of elegit, to issue a writ of fieri facias against the lands of his debtor was based upon the British statute 5 G. 2, c. 7, entitled "an act for the more easy recovery of debts in his majesty's plantations and colonies in America," by which the property of a debtor became liable to be seized, extended, sold or disposed of in the same manner as personal estate. The result was that lands became assets in the hands of an executor for the satisfaction of debts, so that to a plea of plene administravit the plaintiff might reply lands. See Gardiner v. Gardiner, 1832, 2 U.C.O.S. 554; in the judgment the earlier cases are reviewed, and at p. 581 the practice in the province in the case of an execution, either against the original debtor or against his personal representative, is explained. It was in early days irregular to issue a fieri facias against lands until after the return of the execution against goods, (Doe dem. Spafford v. Brown, 1833, 3 U.C.O.S. 92), but this rule was changed by the statute 31 V. c. 25. It was doubtful whether the right to the remedy by elegit was not taken away, and the fieri facias did not bind the land until the delivery of the writ to the sheriff. Doe dem. Mcintosh v. Mcdonell, 1835, 4 U.C.O.S. 195. The land could not be sold within less than twelve months after the delivery of the writ to the sheriff.

(h) Simpson v. Smyth, 1 U.C.E. & A., at pp. 41 ff.