several ways in which the recovery of judgment may be facilitated-by confession, cognovit actionem, or warrant of attorney; that is a class; by abstaining from making any defence in the one suit;-by entering appearance and making no further defence. Only the first class in terms is prohibited by the statute. It might have been reasonable to prohibit the others also, or to have made a general provision against a debtor prefering a creditor where two suits are pending against him. The statute did remedy an evil. It might have gone further in the same direction, but did not. If the Courts go further in the same direction where the Legislature has stopped, what would it be but legislation?"

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In King v. Duncan, 29 Grant 113, Proudfoot, V. C., held that "Under the decisions there would seem to be no violation of the statute in a debtor not taking advantage of a credit not having expired, or in his not insisting upon a merger of the debt, if there were any such merger, for the statute only avoids a confession of judgment, a cognovit actionem, or a warrant of attorney to confess judgment."

In Heaman v. Seale, 29 Grant 278, the plaintiff commenced an action in the Queen's Bench against one Cooper on the 21st January, 1881. Cooper entered an appearance, and afterwards filed pleas, so that the plaintiffs were unable to recover judgment until the 28th March. Meantime Seale & Childs commenced an action against Cooper in the County Court on the 16th February; on the 19th Cooper entered an appearance in person; on the same day the declaration was filed; on the 21st Cooper pleaded to the action, and on the same day signed a relictâ verificatione, and judgment was signed and execution issued thereon. Proudfoot, V. C., said: " After perusing the judgments in Young v. Christie, Labatt v. Bixell, and Mackedie v. Watt, I must hold that the judgment attacked does not offend against the provisions of the statute. relicta verificatione is neither a confession, nor a cognovit, nor warrant of attorney, and is therefore not prohibited by the statute."

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A

In Davis v. Wickson, 1 O. R. 369, on November 4, 1881, Wickson commenced an action in the Common Pleas against Foster; on the same day appearance was entered, a statement of claim delivered, and a statement of defence delivered, and an order made in Chambers, by consent, striking out the defence, and allowing judgement to be entered, which was done, and writs placed in the sheriff's hands. On November 9, 1881, Davis commenced an action in the County Court against Foster, and on November 22nd following entered judgment by default of appearance, and on the 29th placed writs in the sheriff's hands. Boyd, C., said: "It becomes unnecessary to express any opinion. upon the validity of the judgment recovered by Wickson against Foster. For the purpose of costs I have somewhat considered the question, and after reading the cases of Holbird v. Anderson, 5 T. R. 235 (which would now be a case unquestionably of improper preference); Feehan v. Lee, 10 C. P. 385, and Labatt v. Bixel, 28 Grant 593, I do not think that the plaintiff could at any time have successfully attacked this prior judgment. See, also, Heaman v. Seale, 2 C. L. T. 44, to which my brother Proudfoot referred me after I had arrived at the same result."

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Judicial decisions have thus, as has been seen, limited the words of the Act, "confession of judgment," "cognovit actionem," and "warrant of attorney to confess judgment," strictly to the instruments technically known as such at the time of the passing of the Act; and, according to them, what O'Connor did, consenting to an order that his defence should be struck out and judgment forthwith signed against him, was not within the Act, because, by so doing, he was not giving a confession of judgment, cognovit actionem, or warrant of attorney to confess judgment, technically so called. See, also, McKenzie v. Major, 23 C. P. 261.

The order nisi must therefore be discharged, with costs. Speaking for myself alone, had the matter been res integra, I would have held that, where a defendant, being a debtor in the circumstances and with the intent in the

Act mentioned, had actively interfered to enable a plaintiff, his creditor, to recover a judgment against him sooner than he could have recovered it by due course of law and without such interference, such defendant was giving a confession of judgment within the very words of the Act, and certainly within its spirit, and was doing the very mischief aimed at by the Act; and I would not have thought that, in so construing the Act, I was legislating, but only making "such construction as should suppress the mischief and advance the remedy, and should suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and should add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico."

I refer to Heydon's Case, 3 Rep. 7b; Doe Mitchinson v. Carter, 8 T. R. 300; Sharpe v. Thomas, 6 Bing. 416; Wilson v. Wilson, 2 P. R. 374.

HAGARTY, C. J., and CAMERON, J., concurred.

Judgment accordingly.

[QUEEN'S BENCH DIVISION.]

WALTON V. THE WOODSTOCK GAS COMPANY ET AL.

Statute of Limitations-Discontinuance- Vacant Land.

On 8th April, 1854, the plaintiff acquired by conveyance the fee simple of a vacant piece of land, but did not enter. Shortly after a railway company surveyed and staked out a portion of it, with other land required for their railway, and the sum to be paid by them to the plaintiff was settled by arbitration under the statute, but the company never paid or took possession. On 31st December, 1857, the plaintiff recovered judgment against the railway company, and under proceedings in Chancery sold their interest in the land to the defendant P., who did not take actual possession, though he went upon the land prior to 1860, and examined the clay to see whether it was fit for brick-making. He did not fence or cultivate it, though it was fenced on two sides by the adjoining proprietors. He also put up a board on it with an advertisement that the lot was for sale, signed by him, but when was not shewn, and it was knocked down and not replaced. In 1876 P. sold the land to the defendant company, who immediately went into possession and made valuable improvements. The railway company and the defendants paid

the taxes from 1853.

Held, CAMERON, J., dissenting, that neither the railway company nor P. had such a possession of the land as extinguished the title of the plaintiff, who was therefore entitled to recover the land.

Per CAMERON. J. There had been a discontinuance by the plaintiff, and sufficient evidence of an adverse claim to defeat the plaintiff's title.

THE statement of claim alleged that on the 8th day of April, 1854, one Archibald Burtch was seised in fee of town lot No. six on the east side of Yonge street, in the town of Woodstock, according to a certain plan that on that day he conveyed the said land to the plaintiff in fee: that on the first day of August, 1876, the defendant company unlawfully entered into possession of it, and had ever since unlawfully excluded the plaintiff from the possession of the same. And the plaintiff claimed: (1) A declartion establishing his right to the said land; (2) Possession of the same; (3) $300 for mesne profits; (4) Further and other relief.

By their statement of defence the defendant company claimed to be lawfully in possession of the said land, and to be in possession thereof as landlords by their tenants, Morgan, McIntosh & Griffiths; and by an amended statement of defence, the defendant company said, that at a sale of the Woodstock and Lake Erie Railway and Har

bour Company, at the suit of one McBain, the said land was put up for sale and purchased by the defendant Parker, who sold the same to the defendant company that the plaintiff sold and conveyed the said land to the said railroad, and gave up possession thereof to the said railroad company, in and about 1854, and had not since been in possession thereof; and that after Parker purchased said land, he entered into possession thereof under such title, and continued in possession until he sold to the defendant company that the defendant company erected valuable. lasting improvements on the said land under the belief that the land claimed by the plaintiff was their own land, and they pleaded the 4th section of R. S. O., ch. 95, and submitted that they were entitled, in the event of the plaintiff establishing his title to said land, to be paid the amount by which the value of said land was enhanced by such improvement: that the plaintiff had been out of possession of the said land for more than ten years, and that the cause of action, if any, did not accrue within ten years: that the plaintiff had not brought this action to recover the said land within ten years next after the time at which the right to bring such action first accrued to him; and they pleaded "The Real Property Limitation Act."

By his statement of defence the defendant Parker set up the same defence as the defendant company set up by their amended statement of defence. By a supplemental statement of defence the defendant company alleged that by indenture bearing date the 28th day of July, 1876, made between defendant Parker, of the first part, his wife, for the purpose of barring her dower, of the second part, and the defendant company of the third part, the defendant Parker conveyed the said land to the defendant company in fee simple, and by the said indenture covenanted with the defendant company, their successors and assigns, that he was lawfully seised in his own right of an absolute and indefeasible estate of inheritance in fee simple of and in all and singular the said land, and that he had good right, full power and lawful authority to convey the same,