in the mistake on the part of the Government in granting lands otherwise than to actual settlers, and I fail to see that a person who steals land thus situated "has a stronger moral claim to it" than the man who has paid for it, and may be keeping it for his children, and has a right to keep it for any purpose he thinks fit.

The case of Mulholland v. Conklin, 22 C. P. 376, adopts the language of the Chief Justice in Heyland v. Scott, 19 C. P. 165, and that to which I have just referred in Henderson v. Davis, and is broad enough to include the case of a mere trespasser. Mr. Justice Galt, who delivered the judgment of the Court, remarking that until the law is declared erroneous by a Court of Appellate jurisdiction it must be considered as so established, and that rule has been followed in the case now before us. That was a case, however, in which the claimant was not a mere trespasser, but entered under an agreement to purchase.

There ought, I think, to be no difficulty in confining a mere trespasser to the portions from which he excludes the true owner by his actual residence or occupation, that pedal possession which Courts formerly had no great difficulty in defining; the difficulty rather arises in finding a satisfactory reason for enlarging and extending the possession beyond the portion actually and visibly occupied, so as to include the whole land, wild and cultivated, where the person in occupation enters under a defective title.

His entry, although not knowingly or wilfully so, is an invasion of the rights of the true owner, and it strikes one as somewhat contrary to principle that this wrongful possession should be extended by construction to the metes and bounds of the defective paper title to the prejudice of him who has the legal title. But it has no doubt been treated as settled by a long current of authorities as the general rule, that when a party having colour of title enters in good faith upon the land professed to be conveyed, he is presumed to enter according to his title, and thereby gains a constructive possession of the whole land

embraced in his deed, and the possession so taken may ripen into a title so as to bar the entry of the owner to the whole after the period fixed by the statute. In such a case one of two innocent persons has to suffer, and the entry and possession of a part with acts of ownership of a character to indicate that the claim extended or might extend to the limits of the deed, might well in such case be regarded as notice to the true owner, and the deed be admitted in evidence to define the precise limits of the claim and possession.

Under a good deed his possession would be co-extensive with the boundaries given in the deed, and under one which proves for some reason to be defective, although as against the true owner he is a trespasser, his entry would give him a right to maintain trespass against any one making a subsequent entry without right. But how can that apply to a trespasser entering without color of right? His possession so as to maintain trespass, must be an actual possession. What pretence would there be for his maintaining trespass against a person who had entered and cut timber upon woodland beyond his enclosure?

When a person so enters under a mere mistake as to his rights, purchasing or intending to purchase under what he believes to be a good title as from one whom he believes to be the heir-at-law or devisee under a will, or under a deed from a married woman defectively executed, or a forged deed, there is no good reason why his entry should not, as in the case of a valid deed, be co-extensive with the supposed title, and comes within the class of cases intended, in my opinion, to be protected by the statute; but it must in every case be a bona fide claim, and ought not lightly to be extended to a purchaser from a squatter or other person having no title, where the party has neglected to ascertain from the registry office, as he can always do in this country, whether the land has been patented, and who is the registered owner; and clearly not to cases where he knows the grantor has no title.

Even in the case of a person claiming under a paper

title defective in fact, but which he supposed to be good, it is necessary in order to bar the true owner that he should enter and cultivate some portion of the land. The learned Chief Justice of the Queen's Bench, in the course of the judgment in Heyland v. Scott, refers to a case tried at Cornwall, in 1867, where a person claiming under a defective tax title lived close to it, and constantly watched it and guarded it from trespass, using it himself occasionally for cutting timber, from which it is to be inferred that there was no actual possession by residing upon or cultivating any portion of it. But I think that the facts can scarcely be fully stated in that case, as the learned Judge says that the same direction in substance was given to the jury as in the case then before him; one important ingredient in that case and in the charge to the jury being, "that if a person claiming title to a lot send a caretaker to live on it and specially to protect the whole from trespassers, and he do so accordingly, that such may be a good legal possession of all so held and protected."

In the case of Little v. Megquier, 2 Maine 176, the position of a person so claiming and having exercised acts of ownership without going into occupation is very tersely put, it having been contended there that though the deed was not admissible as proof of title, it was good evidence of the extent of the claim, the claimant having registered his deed, had the land surveyed, and paid taxes, and it was contended that this was sufficient to bar the plaintiff.

"We caunot," say the Court, "admit the correctness of this reasoning, or the conclusion drawn from it. The principle certainly cannot be applicable, unless in the case where a person claiming title by a deed has entered into possession of the land under his deed, and continued openly to occupy and improve it. In such a case the deed may not convey the legal estate, still the possession of a part of the land described in it under a claim of the whole by boundaries therein expressed may be considered as a possession of the whole, and as a disseizin of the true owner, and equivalent to an actual and exclusive possession of the whole tract unless controlled by other possession." Such a possession may well come within the protection of

the Statute of Limitations, but I cannot see any good reason for extending their application to a person entering without any shadow of right, and who knew therefore that he was a wrongdoer, however good his intentions may have been in the direction of defrauding the true owner by extending his possession, and that his title ought to be, strictly confined within the portion enclosed or cultivated.

I think that the appeal should be allowed to the extent of varying the verdict and judgment by entering it for the plaintiff as to all the lands embraced in the writ, except those portions which have been found by the learned Judge to have been in the possession of Landon and Robinson, respectively, for over forty years before the commencement of the suit, the costs below to be apportioned as they would have been if the entry had been so made originally, and the appellant to have the costs of this appeal.

I wish merely to add that since writing the above, now some months ago, I have seen the very able and exhaustive judgment of Mr. Justice Armour in the case of Shepherd v. McCullough, 46 U. C. R. 573, who has expressed the views which I entertain so much more forcibly than I have done, that I should have refrained from writing much that I have written, had I seen it sooner. I will merely say that I concur in the opinion he has expressed, that the possession of a wrong doer is not to be extended by any implication or constructive possession beyond the limits of his actual occupation. I refer also to Clark v. Elphinstone, L. R. 6 App. Cas. 164.

SPRAGGE, C. J.-I entirely concur in the elaborate and learned judgment of my brother Burton. He has gone so fully into the law of the case and supported his views by authorities and reasons, which are to my mind of such cogency, that I feel that I cannot usefully add anything to the judgment which he has delivered. I may add my conviction that any other view of the law would be most mischievous in its consequences, as well as against the current of authority and sound principles of law.

MORRISON, J. A., concurred.

CAMERON, J.-I am of opinion that, unless the entry by Sir James Stuart on the land in question in 1843, and the entry by Douglas Prentiss in 1857 or 1858, stopped the running of the Statute of Limitations, and made a new period from which it would commence, the plaintiff's title has been barred and the judgment of the Court of Common Pleas should be affirmed.

As to the one undivided fifth vested in Lady Stuart, the entry by Sir James Stuart in 1843 and the subsequent cultivation of portions of the lot, took that fifth out of the extended limit created by sect. 3 of ch. 88 Con. Stat. U. C., which is the Act that applies to this case, as the action was commenced before the 1st July, 1876, when the ten years' bar came into force. The question presented as to this fifth differs in some respects from that presented by the statute as to the other three-fifths. As to this fifth, the entry by Sir James Stuart, which must I think be taken to have been made by a person claiming under the original grantee, was not a tortious entry. In 1843, when this entry took place, no part of the paper title was barred, and Sir James Stuart, rightfully by strength of his own title, remained in possession up to the time of his death in 1853, before which time his right as tenant by the courtesy initiate at the time of his entry in 1843 had become absolute by the death of his wife, Lady Stuart, in 1849. Now Sir Charles acquired as heir

James Stuart, at his father's death, had at-law of both his mother and father the right they respectively had in the land. Under his mother he was entitled to an undivided fifth in fee, and if his father, by acquiring the possession of the previous occupants, had acquired any title or right against the tenants in common of the other four-fifths, that right passed to him. The only importance of considering Sir Charles Stuart's position in regard to his father's tenants is to see whether, as far as they are concerned, the legal effect of the position is the same or different. The terms of the holding of these tenants do not appear. All that is known in respect to this