to tenancies from year to year or other period, without lease in writing. It fixes absolutely the expiration of the year as the date from which the statute is to run.

This circumstance is sometimes alluded to as creating a difficulty or implying an oversight in the framers of the statute (see Sugd. R. P. Stats, p. 53 n. Dar. & Bos. on Lim. 259,) and by way of solution, a rather forced application of section 35 is suggested by the writers to whose work I have once or twice referred.

I see no necessity to resort to means of the kind, and I venture to think that the casus omissus appears only in consequence of the treatment of sub-section 7 against which I have contended. Every payment of rent or other return for the use of land is a clear and unmistakable acknowledgment of an existing tenancy. Full effect is given to it by so regarding it, and by construing it as creating, on the principle I have endeavoured to maintain, a new tenancy at will, without requiring any proof of any act done by either landlord or tenant to determine the previous tenancy.

This was the view taken by the learned Vice-Chancellor in the Court below, if I correctly apprehend the effect of his remarks. "If the statute," he said, "is to be held to have determined the original tenancy at the end of a year, then at the time when any new improvement was made by such an arrangement between the parties there was the creation of a new tenancy at will."

In Banning on Limitations, p. 139, the same view is hinted at by the author, who says: "Possibly this remarkable difficulty is escaped by the provisions of section 35 of the same Act, or such payment may be a sufficient acknowledgment that the tenant's occupation is permissive." Hodgson v. Hooper. 3 E. & E. 149, is referred to-a case which is certainly an authority in that direction, though not a decision on the very point.

If Lorimer could not set up the statute against Robb, as I think he could not under the circumstances, a fortiori it could not be set up by his creditor. It is therefore needless to inquire whether the creditor could insist upon it

when Lorimer neither did not nor intended to do so. I allude to the subject merely for the purpose of saying that I see no reason why any property acquired by a debtor, whether under the Statute of Limitations or otherwise, should not be made exigible for the payment of his debt.

The views on which Sir R. Malins acted in Sanders v. Sanders, and which seem to have iniluenced some observations made by the learned Vice-Chancellor in this case at the close of his judgment, having been since the delivery of that judgment disapproved of by the Court of Appeal, it is sufficient to refer to the judgments delivered as reported in 19 Chy. Div., at p. 373.

I agree that the appeal should be dismissed, with costs.

OSLER, J.-I think that the decree of the learned Judge may be maintained on the ground that the running of the statute in favour of Samuel Lorimer was more than once interrupted during his occupation of the land by the entries which were from time to time made thereon by Robb, the real owner. The exact dates at which these entries took place are not specified, but that is not material, as they appear to have been of not unfrequent occurrence during the period between 1867 and 1879; and I think it is fairly made out that, on more than one occasion at least, the improvements which Lorimer had made and was about to make were spoken of and treated, and agreed upon as the compensation which was to be made for the use and occupation of the land. Each one of these occasions would constitute a new starting point for the running of the statute, as a new tenancy at will would thereby be created.

I am of opinion, therefore, that Lorimer never acquired a title to the land in questien under the statute, and on this ground the appeal should be dismissed.

I refer to Groves v. Groves, 10 Q. B. 486; Day v. Day, L. R. 3 P. C. 751; Keffer v. Keffer, 27 C. P. 257; Ryan v. Ryan, 4 App. R. 563; Canada Co. v. Douglas, 27 C. P. 339; Cooper v. Hamilton, 45 U. C. R. 502; Smith v. Keown, 46 U. C. R. 163.

Appeal dismissed, with costs, BURTON, J.A., dissenting.

HARRIS V. MUDIE.

Ejectment-Statute of Limitations-Constructive possession--Title-Trespass -Actual and visible possession.

The judgment of the Court of Common Pleas (30 C. P. 484) affirmed as regards the rights of the defendant under the Statute of Limitations to that portion of the land of which actual possession had been shewn for forty years; but varied by entering judgment for the plaintiff for the rest of the land sued for.

The doctrine of constructive possession has no application in the case of a mere trespasser having no colour of title, and he acquires title under the Statute of Limitations only to such land as he has had actual and visible possession of, by fencing or cultivating, for the requisite period. [CAMERON. J., dissenting.]

Where one of several tenants in common enters and dispossesses a trespasser he is, as regards his co-tenants, in possession simply as any stranger would be and such possession does not enure to the benefit of his co-tenants. Per CAMERON, J.-The act of one co-tenant in so taking possession would be by virtue of his legal estate, and his so doing would enure to the benefit of his co-tenants; thus giving a fresh starting point for the statute to begin to run against them.

Shepherd v. McCullough, 46 U. C. R. 573, remarked upon, and, as applied to the facts of this case, approved.

THIS was an appeal by the plaintiff from a judgment of the Court of Common Pleas, reported in 30 C. P. 484, discharging a rule nisi to set aside the verdict entered for the defendants and to enter a verdict for the plaintiff.

The action was ejectment for lot No. 9 in the first concession of the township of Lansdowne, and was commenced by summons issued by William Harris against David Peck and William Peck, on the 30th June, 1879, both of whom appeared to the writ and defended for the whole lot, claiming title by possession and as tenants of Guy R. Prentiss, the alleged owner.

By an order made in Chambers, on the 18th of April, 1879, it was ordered that the trial should take place in the county of Frontenac. The record was entered for trial at the Chancery sittings held at Kingston on the 22nd day of April, 1879; and at those sittings an order was made by Proudfoot, V. C., postponing the trial till the then next Assizes at Kingston, and directing that Lucretia Prentiss and John Mudie should be made defendants in lieu of the original defendants, David Peck and William Peck.

At the same sittings there was set down for examination of witnesses and hearing a cause in Chancery between

Lucretia H. Prentiss, plaintiff, and Nelson Peck, defendant, wherein the plaintiff therein alleged that she was the owner of the west half of said lot No. 9, and that the defendant in that suit had, since the 7th day of October, 1878, been committing acts of trespass on the said premises, and removing fences therefrom, and she prayed for an injunction restraining such trespass, and for the restoration of such fences, and for other relief.

The defendant by his answer claimed to be in possession as tenant of Edward William Harris, who was the owner of an undivided interest in the said land. Issue was joined upon this answer. That cause was at the same sittings transferred by order of the Vice-Chancellor to the Court of Common Pleas, and the trial postponed till the then next Assizes at Kingston.

Subsequently, and on the 28th of August, 1879, the new defendants Lucretia H. Prentiss and John Mudie, filed their notice of defence, the former claiming under a devise from Guy R. Prentiss, deceased; the latter, by virtue of a conveyance of the property from Alexander Irvine Ross, Sophia Barbara Ross, Annie Elizabeth Ross, and Mary Ann Logie Ross, bearing date the 18th of April, 1878.

Both these defendants claimed title to the premises by length of possession in themselves and those through whom they claimed.

The records in both suits were entered for trial at the Autumn Assizes of 1879, held at Kingston, and both cases were then tried before Patterson, J.A., without a jury; who, on directing a verdict to be entered for the defendants, delivered the judgment printed in the report of the cause in the Court below, (30 C. P. 484,) where the facts of the case and evidence therein are fully stated.

In Michaelmas Term following, and on the 5th of December, 1879, a rule nisi was obtained to set aside this verdict and enter a verdict for the plaintiff, which on the 5th of March, 1880, was discharged,

On the 25th of August, 1880, a suggestion was entered of the death of Lucretia H. Prentiss, and that Mudie sur

vived, wherefore it was directed that no further proceedings should be had against her, and that the action should proceed against Mudie alone.

Subsequently, and on the 2nd of September, 1880, the plaintiff entered his appeal in this Court, which came on for argument on the 17th of that month; and in consequence of the death of Moss, C. J., was again argued on the 15th of November, 1881.*

Bethune, Q. C., and Magee, for the appellant.

Maclennan, Q.C., and G. M. McDonell, for the respondent. In addition to the cases cited in the Court below, counsel referred to Young v. Elliott, 25 U. C. R. 330; Marshall v. Cook, 15 Gr. 237; Lowe v. Morrison, 14 Gr. 192; McMaster v. Morrison, 18 Gr. 138; Doe dem. McKay v. Furdy, 6 O. S. 144; Ryerse v. Teeter, 44 U. C. R. 8; Tuthill v. Rogers, J. & Lat. 81; Doe dem. McGillis v. McGillivray, 9 U. C. R. 9; Culley v. Doe dem. Taylerson, 11 A. & E. 1008.

June 30, 1882. BURTON, J. A.-The plaintiff at the trial shewed a good paper title to four undivided fifth shares in the land in question; the remaining fifth being held by Lucretia H. Prentiss.

The rights of the parties depend upon the construction which may be given to the Statute of Limitations, and a distinction exists between the title claimed by the plaintiff as to one-fifth and the remaining three-fifths.

The one-fifth share was at and previously to 1843 vested in Lady Stuart, the wife of Sir James Stuart who was tenant by the curtesy initiate, and he at that time threatened proceedings against Landon and Robinson, the persons then in possession; and they took leases from him, presumably of the entire interest in each half of the lot, although the leases themselves are not produced, and no evidence is given of their terms or duration.

Lady Stuart died in 1849, and her husband in 1853, and Sir Charles Stuart, her heir-at-law, became entitled at that time. He took no proceedings whilst so entitled to obtain

* Present.-SPRAGGE, C.J., BURTON, PATTERSON, and MORRISON, JJ.A.