(q) Tennant v. Trenchard, 1869, L.R. 4 Ch. 537, at p. 542; London County and Westminster Bank v. Tompkins, [1918] 1 K.B. 515, at p. 529; cf. chapter 5, Equitable Mortgages, Sec. 44.

(r) See s. 36 of the Registry Act, R.S.O. 1914, c. 124, referred to in chapter 8, Sec. 71.

(s) Paton v. Wilkes, I860, 8 Gr. 252; In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284, at p. 297, and cases there cited. (t) In re Owen, [1894] 3 Ch. 220. (u) See chapter 1, Introductory, Sec. 2.

A debenture of a limited company, in the usual form of a floating security charging all the property of the company, both present and future, including its uncalled capital, confers upon the registered holder, in the event of the debenture becoming immediately payable in consequence of the winding up of the company, the ordinary mortgagee's remedy by foreclosure against the uncalled capital as well as the other property comprised in the security (v).

Where a deed, absolute in form, is taken as security for a debt, the grantee is not entitled to foreclose, and his only remedy, in the absence of the concurrence of the mortgagor, is to have a sale through the court (w).

In the case of land without the jurisdiction sale will not be ordered, but in some circumstances a decree for foreclosure will be made. The governing principle is that equity acts in personam and that the court may therefore give relief against a person who is within the jurisdiction, on the ground of a contract or some equity existing between him and the plaintiff, notwithstanding that the relief relates to land without the jurisdiction (x), provided that the relief given is not inconsistent with the lex loci rei sitae (y). Thus, foreclosure may be decreed against a mortgagor who is within the jurisdiction, in respect of land without the jurisdiction, because the foreclosure operates merely in personam by extinguishing the defendant's personal and equitable right to redeem (z), but the court will not order a sale of such land, because it is not able to supervise or deal effectually with the many matters which are the usual and ordinary incidents of a sale (a), nor will it entertain an action directly involving a decision as to title to land without the jurisdiction (b).

(v) Sadler V. Worley, [1894] 2 Ch. 170; In re Continental Oxy gen Co., Elias v. The Co., [1897] 1 Ch. 511. As to the nature of a floating charge, see chapter 5, Equitable Mortgages, Sec. 47.

(w) Hetherington v. Sinclair, 1915, 34 O.L.R. 61, 23 D.L.R. 630.

(x) Penn v. Lord Baltimore, 1750, 1 Ves. Sen. 444, 1 W. & T.L.C. Eq. 800. As examples of cases in which the court will not entertain an action relating to foreign land, see British South Africa Company v. Companhia de Moeambique, [1893] A.C. 602 (trespass to foreign land); Deschamps v. Miller, [1908] 1 Ch. 856 (action to impeach a trust settlement).

(y) Ex parte Pollard, 1840, Mont. & Ch. 239; Duder v. Amster-damsch Trustees Kantoor, [1902] 2 Ch. 132; Bank of Africa v. Cohen, [1909] 2 Ch. 129.

The court will not order foreclosure against the Crown. Where the equity of redemption is held by the Crown the mortgagee may be allowed in default of payment to take possession until the Crown shall think proper to redeem (c), or until satisfaction of the debt (d). The court may direct a sale of the mortgaged lands if the Crown consents or does not object (e).

A chartered bank may foreclose a mortgage properly taken by it under the Bank Act, or may exercise the power of sale contained in such mortgage (f). Presumably it may in the alternative sue for sale like any ordinary mortgagee. If it acquires an absolute title by foreclosure or otherwise, it must sell or dispose of the land within seven years thereafter or within such further period, not exceeding five years, as may be allowed by the treasury board (g).

(z) In re Hawthorne, Graham v. Massey, 1883, 23 Ch.D. 743; Toller v. Carteret, 1705, 2 Vern. 494; Paget v. Ede, 1874, L.R. 18 Eq. 118 (as to this case, see also chapter 3, Legal Mortgage in Equity, Sec. 28). As to an action by the mortgagor for redemption or other relief with regard to land without the jurisdiction, see chapter 25, Action for Redemption, Sec. 251.

(a) Strange v. Bedford, 1887, 15 O.R. 145.

(b) In re Hawthorne, supra; Ross v. Ross, 1892, 23 O.R. 43 .

(c) Reeve v. Attorney-General, 1741, 2 Atk. 223; Dunn v. Attorney-General, 1864, 10 Gr. 482.

(d) Hodge v. Attorney-General, 1839, 3 Y. & C. 342.

(e) Seton 5th ed. 1585; cf. Bartlett v. Rees, 1871, L.R. 12 Eq. 395; Holmested, Ontario Judicature Act, 4th ed., p. 1030.

(f) Bank of Upper Canada v. Scott, 1858, 6 Gr. 451; 3 & 4 G. 5, c. 9, s. 82. As to the power of a bank to take a mortgage by way of additional security for debts contracted to the bank in the course of its business, see 3 & 4 G. 5, c. 9, s. 80, which makes an exception to the general rule of s. 76 by which a bank is prohibited from lending money on the security of a mortgage.

A mortgagee may commence an action for foreclosure the day after the mortgage money is due, and though such a course may be extremely sharp, he is entitled to his costs (h). A mortgage contained a power of sale and a covenant that no sale or notice of sate should be made or given nor any means taken to obtain possession of the mortgaged premises until after three months' notice to the mortgagor demanding payment. It was held that such notice was unnecessary before the filing of a bill for foreclosure (i).

The mortgagee may agree to forgo the right to foreclose for a stated time, whether it be for a period of years or for the life of the mortgagor or another person (j).

The right to foreclose continues until the mortgage is wholly paid off, even though the mortgagor has given notice after default that he will pay off the money due at a certain day. But where the principal and interest have been paid it has been held that an action for foreclosure cannot be brought merely for non-payment of the balance of costs unpaid (k).

If a mortgagee has made or given a demand or notice either requiring payment of the mortgage money or declaring his intention to exercise the power of sale, no further proceedings-and no action with respect to the mortgage may be taken or commenced until the expiration of the time at or after which payment is to be made or the power of sale is to be exercised, without an order of a judge (l).

(g) 3 & 4 G. 5, c. 9, s. 83.

(h) Bennett v. Foreman, 1868, 15 Gr.'117. Where a mortgage provides that the principal need not be paid for three years "if in the meantime every half-yearly payment of interest shall be punctually paid," the expression "punctually paid" means "paid on the day fixed for payment" and payment nine days after that day is not sufficient. Leeds and Hanley Theatre of Varieties v. Broadbent, [1898] 1 Ch. 343.

(i) Lamb v. McCormack, 1857, 6 Gr. 240.

(j) Burrowes v. Molloy, 1845, 2 Jo. & Lat. 521.

(k) Drought v. Redford, 1827, 1 Moll 572.

A mortgagee may lose his right to either sale or foreclosure by selling or parting with part of the mortgaged property without the concurrence of the transferee of another part of the equity of redemption. A sale of part of the property under the power of sale contained in the mortgage will not, however, affect the mortgagee's right to bring an action for foreclosure or sale of the remaining part (m). Where A advanced $2000 to B, taking two mortgages for $1000 each on separate properties, and the mortgagee foreclosed one of the mortgages and then parted with the property, it was held that he was not disabled from foreclosing the other mortgage (n).

A decree of foreclosure may be refused on the ground of laches or staleness of demand even though the claim is not barred by any statute of limitations. Thus, where after many years' delay the plaintiffs sought foreclosure of an equitable mortgage of an advowson in gross, foreclosure was refused notwithstanding that the Real Property Limitations Act (o) did not apply, an advowson in gross not being "land" within the meaning of the term as used in the statute (p).

(l) R.S.O. 1914, c. 112, s. 29, quoted in chapter 31, Sale under Power of Sale, Sec. 340.

(m) Gowland v. Garbutt, 1867, 13 Gr. 578; cf. Crawford v. Armour, 1867, 13 Gr. 576; Munsen v. Hauss, 1875, 22 Gr. 279. See also chapter 23, Action on the Covenant, Sec. 228 as to the mortgagee's disabling himself from suing for payment by having put it out of his power to reconvey the property on redemption.

(n) Bald v. Thompson, 1869, 16 Gr. 177.

(o) Cf. s. 5 of the Limitations Act, R.S.O. 1914, c. 75, quoted in chapter 26, Limitation of Actions, Sec. 270.

(p) Brooks v. Muckleston, [1909] 2 Ch. 519; cf. Williams v.