The following are the relevant enactments in the six provinces or territories:

Ontario-Land Titles Act (R. S. O. 1914, c. 126), s. 34; Rules of Sept., 1911, r. 27 (4).

North-West Territories-Land Titles Act (R. S. C. 1906, c. 110), s. 99.

British Columbia-Land Registry Act (R. S. B. C. 1911, c. 127), ss. 14.A, 104 (3), being amendments made respectively in 1917 and 1914.

Manitoba Real Property Act (R. S. M. 1913, c. 171), ss. 122-124.

Saskatchewan

112-114.

Land Titles Act, 1917, ss. 107,

Alberta-Land Titles Act (Statutes 1906, c. 24), ss. 62, 62 A (10-16), as amended in 1915, 1916 and 1917.

Since a registered mortgage of registered land operates by way of charge only, and not by conveyance of the land itself, foreclosure consists of vesting the legal ownership of the land in the mortgagee for the first time, though the word "foreclosure" properly has reference to a legal ownership already in the mortgagee. Owing to this difference, and also to the different position occupied by a duly registered purchaser as compared with a purchaser of unregistered land, questions have necessarily arisen as to whether a mortgagee of registered land who has foreclosed is in the same position as a mortgagee of unregistered land after foreclosure, and if not, wherein they differ. The principal questions of the kind are two, viz.: (1) How are the mortgagee's right of action on the covenants for payment, and other collateral remedies, affected; (2) Under what circumstances can the foreclosure be re-opened?

In British Columbia a recent amendment of the registration statute deals with the subject of the mortgagee's collateral remedies, but otherwise the

VOL. XXXVIII. C.L.T.-49

statutes themselves leave the questions referred to open; many of these have already come up for discussion in the Courts, but many still remain quite unsettled. The British Columbian enactment seems to be framed on an Australian model1 the registration of the mortgagee as owner with "indefeasible" title operates to

'extinguish all rights of the mortgagee, or those claiming under him, under any personal covenant for payment contained in said mortgage, and any judgment obtained by him or them thereon, and any rights under any bond or collateral security or obligation for the payment of the mortgage debt.'

This enactment goes beyond the Australian statute from which it has apparently been taken. In Victoria the mortgagee after foreclosure may still

'enforce all or any rights, powers and remedies expressed or implied in such mortgage, except the right to sue the mortgagor, or any surety for the mortgagor, either for the mortgage money or on any bill or note given as security for the mortgage money;'

rights under judgments and collateral securities are thus not expressly affected. The Victorian and the British Columbian enactments referred to agree, however, in abrogating the right of the mortgagee after foreclosure to sue the mortgagor on his covenant for payment. This has been judicially held to be the correct rule of law apart from these enactments, and the decisions cover, both in Canada and in Australia, the whole area embraced by the system of foreclosure under registered mortgages, with its three variants:(a) ordinary foreclosure only; (b) ordinary or statutory foreclosure; (c) statutory foreclosure only.

In the North-West Territories the registration statute admits of ordinary foreclosure only, and proceedings must be taken in the Courts, just as if the land were unregistered and the mortgagee had a legal mortgage by conveyance. It has been decided that, after foreclosing by this method and being registered

1 Victoria-Conveyancing Act, 1915, s. 32. The section of which this is a re-enactment is referred to in Fink v. Robertson (1907), 4 C. L. R. 864, 883.

as owner of the land, the mortgagee is not entitled to sue the mortgagor on the latter's covenants for payment.2

In Alberta the mortgagee has alternative methods open to him, and may proceed by ordinary or by statutory foreclosure. It has been decided that, after becoming registered as owner of the land on a statutory foreclosure, the mortgagee is not entitled to treat the mortgage debt as still existing, even for the purpose of retaining moneys of the mortgagor, which had come into his hands by virtue of a collateral security -in this case a mortgage of a policy of life insurance.3

In Victoria, Australia, only the statutory method is open to the mortgagee, and it has been decided that, after foreclosure and registration of the mortgagee as owner of the land, he is not entitled either to sue the mortgagor on the covenants for payment, or prove as a secured creditor in liquidation proceedings.* This decision, being given by the High Court of Australia, is binding in other Australian jurisdictions, as well as Victoria, where the system of statutory foreclosure obtains, and the Alberta Court in the case already cited expressly approved of and followed it.

The extent to which a foreclosure of registered land can be re-opened is necessarily restricted by the inability of the mortgagee to sue on the mortgagor's covenants and so allow the latter to claim a new right of redemption; it is also restricted by the protection accorded to a duly registered purchaser, which will prevent the mortgagor from re-opening the foreclosure when once the mortgagee has parted with the land. That a duly registered purchaser, from a mortgagee who has become owner under foreclosure, is

2 Colonial Invest. Co. v. King (1902), 5 Terr. R. 371.

Douglas v. Mutual Life Ass. Co., [1918] 1 W. W. R. 239, 690, following Fink v. Robertson, infra.

Fink v. Robertson (1907), 4 C. L. R. 864, overruling In re Premier Perm. Build. Assoc. (1899), 25 V. L. R. 77. Special leave to appeal from the High Court of Australia was refused by the Privy Council.

protected, has been decided in Saskatchewan,' and the decision is not likely to be challenged in any other province.

Apart from these special restrictions, it has been held in Australia that the mortgagor, after foreclosure by the statutory method, has not the wide right of re-opening the foreclosure that is pursued by mortgagors of unregistered land under the general law of mortgage; the right of re-opening a foreclosure, however, even when obtained by the statutory method, is not completely abrogated.' These cases appear to be applicable in Canada, and there would seem to be no substantial difference in principle between foreclosure by decree of a Court and by the order of a registrar. Thus a mortgagor of registered land will have to shew very special grounds for being allowed a new right of redemption-properly speaking a right of redemption for the first time. A new right of redemption would also be given him if proceedings could be and were taken by the mortgagee to recover the mortgage debt after having foreclosed, but the occasion on which such proceedings could be taken would be rare, and would probably be confined to cases of collateral security or attempts to consolidate mortgages.'

Lincoln's Inn, London.

JAMES EDWARD HOGG.

'Richards v. Thompson (1911), 18 W. L. R. 179.

Campbell v. Bank of New South Wales (1883), 16 N. S. W. Eq. 285, 11 A. C. 192.

In re Premier Perm. Build. Assoc. (1899), 25 V. L. R. 77. On this point the case is still an authority, and is not affected by the actual decision being overruled in Fink v. Robertson, infra.

Colonial Invest. Co. v. McManus, [1918] 1 W. W. R. 561; Barnes v. Baird (1904), 15 Man. R. 162 (though this case might have been differently decided, had Campbell v. Bank of New South Wales (infra), been appreciated properly).

See Osser v. Colonial Invest. Co., [1917] 3 W. W. R. 513; Noble v. Campbell (1911), 18 W. L. R. 591, under the repealed section (s. 126) of the Manitoba Real Property Act, 1902.

THE ANGLO-SAXON PERIOD OF ENGLISH LAW.1

We find the proper starting point for the history of English law in what are known as Anglo-Saxon times. Not only does there seem to be no proof, or evidence, of the existence of any Celtic element in any appreciable measure in our law, but also, notwithstanding the fact that the Roman occupation of Britain had lasted some four hundred years when it terminated in A.D. 410, the last word of scholarship does not bring to light any trace of the law of Imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents. That the written dooms of our kings are the purest specimen of pure Germanic law, has been the verdict of one scholar after another.

Professor Maitland tells us that: "The AngloSaxon laws that have come down to us (and we have no reason to fear the loss of much beyond some dooms of the Mercian Offa), are best studied as members of a large Teutonic family. Those that proceed from the Kent and Wessex of the seventh century are closely related to the Continental folk-laws. Their next of kin seem to be the Lex Saxonum and the laws of the Lombards.'"a Whatever is Roman in them is ecclesiastical, the system which in course of time was organized as the Canon law. Nor are there in England any traces of any Romani who are being suffered to live under their own law by their Teutonic rulers. As Dean Church has said: "Out of their own customs, their own strong and brave notions of right, their own spontaneous efforts after a reasonable and suitable order of life, unaffected by foreign schooling as by imitation of foreign ways, losing, perhaps, some of the benefits of foreign experience, the chiefs of the new

1 This paper has already been published in the Yale Law Journal. 1a Encyc. Brit. (1902), “English Law," Vol. XXVIII, p. 247.