In the year 1834 the first allusion was made in the statutes of Upper Canada to a mortgagor's equity of redemption. The statute 4 W. 4, c. 16 contained a provision for giving to a certificate of payment of the mortgage money, when registered, all the effect of a release of the mortgage and of a reconveyance of the estate, and it was thought prudent to add a proviso that such certificate, if given after the expiration of the period within which the mortgagor had a right in equity to redeem, should not have the effect of defeating any title other than a title remaining vested in the mortgagee or his heirs, executors and administrators. By this the legislature seems to have apprehended that otherwise a mortgagee, after acquiring an estate which ought to be held absolute in equity as well as at law, and after transferring such estate to some other party, might, by receiving the mortgage money and giving a certificate, defeat the estate of the purchaser (j). In the same year the legislature passed the sta-

(i) Ibid, at p. 192. After the establishment of a court of equity the law was amended by 12 V. c. 73, so as to render an equity of redemption saleable under execution. Before the amendment if the mortgage was merely for a term of years-even one thousand years -the reversion might be sold and would carry with it the equity of redemption. Wightman v. Fields, 1872, 19 Grant 559, 565. For the present law, see chapter 16, Execution Creditors of the Mortgagor.

(j) Robinson, C.J. in Simpson v. Smyth, 1846, 1 U.C.E. & A. 57 ff.; cf. pp. 61, 90-91, 181. As to the present statute law with regard tute 4 W. 4, c. 1, adopting with some modifications many of the improvements in the law of real property which had lately been made in England upon the recommendation of commissioners. In this act mention is made in several clauses of equitable interests and estates as distinguished from legal estates, and there are provisions in respect of each, corresponding with those contained in the English legislation. The limitation of twenty years is adopted with regard to any suits in equity as well as to actions at law, with a proviso (s. 35), such as the English statute contains, "that nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of Courts of Equity, in refusing relief on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this Act." The section of the English statute respecting the limitation of time for the assertion of a mortgagor's rights is very closely followed, and at the end of s. 43, in which provision is made for limiting the time for suing at law or in equity for any mortgage money or for any legacy, there is a proviso, "that in respect to persons now entitled to an equity of redemption, or to any legacy, the right to bring an action or to pursue a remedy for the same, shall not be deemed to be extinguished or barred by lapse of time, until the expiration of five years from the time that an equitable jurisdiction shall be established in this province, and in the exercise of its powers; provided that shall happen within ten years from the passing of this Act." (k).

In 1837 the legislature passed a statute authorizing the appointment of two additional judges for the Court of King's Bench (I). In the same year was passed the statute commonly to a discharge of mortgage, see chapter 19, Discharge or Reconveyance.

(k) The italics are not in the original statute.

(I) 7 W. 4, c. 1. The court had theretofore consisted of the Chief Justice of Upper Canada and two puisne judges.

known as the Chancery Act (m), which for the first time afforded the means of enforcing equitable rights in Upper Canada for any purpose or to any extent.

By the Chancery Act, passed on the 4th of March, 1837, there was established a court of equity to be known as "The Court of Chancery for the Province of Upper Canada," of which the governor should be chancellor, and for the better administration of justice in the said court it was enacted that the judicial powers thereof, both legal and equitable, should be exercised by a judge to be known as "the Vice Chancellor of Upper Canada."

It was provided that the said court" shall have jurisdiction and possess the like power and authority as by the laws of England are possessed by the Court of Chancery in England, in respect of the matters hereinafter enumerated," that is to say, in all cases of fraud; in all matters relating to trusts, executors and administrators, and mortgages; in all matters relating to infants, idiots and lunatics, and their estates, except where special provision had been made or might thereafter be made with respect to them by any law of the province; in all matters relating to awards; to compel the specific performance of agreements; to compel the discovery of concealed papers or evidence, or such as might be wrongfully withheld from the party claiming the benefit of the same; to prevent multiplicity of suits and to stay proceedings in a court of law prosecuted against equity and good conscience; to decree the issue of letters patent from the Crown to rightful claimants; to institute proceedings for the repeal of letters patent erroneously or improvidently issued; to stay waste; in all cases of accident; in all cases of account; and in all cases relating to co-partnership (n).

(m) 7 W. 4, c. 2, an Act to establish a Court of Chancery in this Province.

(n) See R.S.O. 1897, c. 51, s. 26, in force as of the date of the original act, the 4th of March, 1837.

It was further provided that the rules of decision should be the same as governed the Court of Chancery in England, and that the court should possess full power and authority to enforce and compel obedience to its orders, judgments and decrees to the same extent as was possessed by the Court of Chancery in England, in respect of all matters within its jurisdiction, except when otherwise provided by the laws of the province (o).