1891.

WELDON et al.

V. PARKS et al.

v. Hamilton & Milton Road Co., 19 Gr. 455; but see McGarvey v. Strathroy, 6 O. R. 138; 19 C. L. J. 393, where Proudfoot, J., refused a sequestration to enforce an injunction restraining the defendants from permitting water to flow on plaintiff's land pending an appeal, after security had been given. See also Toronto v. Toronto Street Ry. Co., 12 P. R. 361": Holmested and Langton's Jud. Act, 673.

1891.

November 13.

In re MARGARET MCAFEE.

Dower-Petition - Barred by lapse of time-Statute of Limitations-Chap. 84, C. S. N. B., s. 3.

The husband of the petitioner gave a mortgage of a piece of land in which the petitioner did not join. The husband died in 1859. owning the equity of redemption, and the petitioner remained in possession of the mortgaged premises from then until 1870. In 1891 she brought the present petition for the admeasurement of her dower in the land.

Held, that twenty years having elapsed since her husband's death. the petitioner's right to bring an action at law by writ of dower was extinguished by section 3 of chapter 84, C. S., and that by analogy the present petition was barred in equity.

This was a petition by Margaret McAfee, under section 237 of the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), for the admeasurement of her dower in certain land. The facts fully appear in the judgment of the Court.

D. Mullin, for the petitioner.

C. Doherty, Q.C., for William McAfee.

1891. November 13. PALMER, J.

Thomas Bain, the husband of the petitioner, died in October, 1859, seised of the land in which dower is now claimed. The petitioner remained in possession from his death until the year 1870, and this petition was brought in September, 1891. The respondent William McAfee is now the owner in fee under a sale by the Supreme Court in Equity in a suit for foreclosure and sale under a mortgage given by the deceased himself, and in which the petitioner did not join. From the petition it appears that thirty years have elapsed after the petitioner's right to dower could have been enforced until she has

taken proceedings to endeavor to do so, and the sole question in the case is whether this Court will enforce such a claim after that length of time. I do not think that the fact that the widow remained in possession without enforcing her claim makes any difference. The mere fact of the widow being in possession and not having her dower assigned to her does not alter the case. This has been decided in Upper Canada in Leach v. Shaw (1), but it would make no difference in this case if the Statute of Limitations applies to dower, as twenty years have elapsed between the time she ceased to occupy in 1870 and the time of filing this petition. The main question to be decided in this case, and I believe it is the first time it has arisen in this Province, is whether our Provincial Statute of Limitations, C. S., c. 84, s. 3, applies to a widow's right of dower. The enactment is as follows: "No person shall make an entry, or bring an action to recover any land, but within twenty years next after the time at which the right to make such entry, or to bring such action shall have first accrued."

It cannot be disputed that if the right of the widow to bring an action for dower is an action to recover any land then at law the right would be barred at the end of twenty years. There are two arguments against it applying. The first is that the statute itself is directed to and only includes actions at law, and that it does not apply to suits in Equity; and if this is sufficient reason that this Court should refrain from dealing with the case at bar and give any other remedy than the legal one, then that contention might prevail.

The law relating to equitable bars by length of time in proceedings in the Court of Equity was very much discussed in the case of Cholmondeley v. Clinton (2), in which Sir William Grant gave a very clearly reasoned and elaborate judgment, and came to the conclusion that a period of time extending over more than twenty years had not barred the right of the Marquis. The same case came before Sir Thomas Plumer (3), who succeeded (2) 2 Mer. 171. (3) 2 J. & W. 1.

(1) 8 Gr. 498.

1891.

In re MARGARET MCAFEF.

Palmer, J.

1891.

In re MARGARET MCAFEE. Palmer, J.

*

* *

Sir William Grant, and he in a most masterly judgment
(4), stated what he thought of the unsoundness of the
views of Sir William Grant; ever since which time nearly
every Equity lawyer of note, including Lord Eldon and
Lord Redesdale, has explicitly adopted Sir Thomas
Plumer's views and Lord Redesdale in Horenden v.
Lord Annesley (5), states the law on the subject to be as
follows: "I think the rule has been laid down that every
new right of action in Equity that accrues to the party,
whatever it may be, must be acted upon, at the utmost,
within twenty years.
In every case of equit-
able title (not being the case of a trustee, whose posses-
sion is consistent with the title of the claimant), it must
be pursued within twenty years after the title accrues."
I think this rule would apply to a claim that is entirely
an equitable one, and ought not to be adopted in a case
in which a Court of Law and a Court of Equity have con-
current jurisdiction and in which the action in the Court
of Law was not barred. A claim for dower is a legal
claim although enforceable in equity, and, therefore, de-
lays that might deprive a suitor of the right to enforce
a mere equitable claim would not affect dower so long
as the legal right to it exists, for it could be enforced by
an action at law.

This reduces the question to whether the action at law is taken away by the section of the Statute of Limitations which I have referred to, and that depends upon whether such an action is an action for the recovery of any land, and is within the words of the section. "Land” by the interpretation Act, c. 118, s. 14, C.S., when used in the statute," includes lands, houses, tenements and hereditaments, all right thereto and incident therein." Therefore the section must be read, "No person shall bring an action to recover any lands, houses, tenements, and hereditaments, or any right thereto, or incident therein." This reduces the question to whether dower is a right in land or incident therein. My opinion is that dower is an interest in land, and therefore within the meaning and the definition in the interpretation Act. Taking then the (5) 2 Sch. & L., at p. 637.

(4) See p. 138, et seq.

word "land" to mean an interest in land, dower is clearly an interest in land, and, therefore, in my opinion, it would not be a sound interpretation not to hold that the right of a widow which occurs upon the death of the husband to sue out a writ of dower is a right of action within the above section to recover land. If this is good law, and the question came before me in a Court of Law I would have to have said that this was entirely within the statute, and that the widow who had not brought her action to establish her right to dower and had allowed upwards of 30 years to elapse after that right had first accrued is barred by the statute and comes too late. It appears to me that this petitioner in order to successfully assert her right in a Court of Law must have prosecuted it within twenty years from the death of her husband, and I further think that where any statute has fixed the period by which a claim, which is a purely legal claim, if made in a Court of Law would be barred, that claim is by analogy barred at the same time in a Court of Equity.

It follows, this being my opinion, I must dismiss this petition, but inasmuch as this is the first time the question has arisen in this Province since the passing of the Act, of which the section in the Consolidated Statutes I have referred to is a re-enactment, and having in view that the right to dower was not within the old Statutes of Limitations of Henry and James I think I ought to say nothing about the costs; but the petition must be dismissed.

This decision, both in its reasoning and in the conclusion arrived at, is completely in accord with Marshall v. Smith, 5 Giff. 37. By section 31 of chapter 84 C. S. N. B. "No arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit."

1891.

In re MARGARET MCAFEE.

Palmer J.

1892.

January 11.

NEW BRUNSWICK RAILWAY COMPANY AND
BROWN v. KELLY.

NEW BRUNSWICK RAILWAY COMPANY AND
BROWN v. KELLY. (No. 2).

Practice-Injunction Order-Refusal-Dismissal of bill-Summons in suit-
Conditional appearance-Water-Appeal-Stay of proceedings.

An application under section 24 of The Supreme Court in Equity
Act, 1890 (53 Vict. c. 4), upon bill and affidavits for an injune-
tion order, was refused with costs. The bill and atidavits
were not filed, and a summons was not issued in the suit. The
costs of the application were taxed and paid. The defendant
filed an appearance, and applied to dismiss the bill for want of
prosecution.

Held, that there being no summons in the suit, the suit was not in Court, and that the plaintiffs could not be compelled to issue the summons and proceed with the suit, or be dismissed, and that the application should be refused.

Goslin v. Goslin, 27 N. B. 221, distinguished.

Quaere, whether a defendant who has appeared before summons issued can apply to dismiss the suit for want of prosecution if a summons is not issued.

An application in June, 1890, upon bill and affidavits for an injunetion order stood over until the 15th of August, 1891, when it was refused. Notice of appeal was given on the 10th of October following, and on the same day the summons in the suit was issued. On the 16th the defendants filed an appearance, and gave notice of application to dismiss the bill for want of prosecution, on the ground that the summons should have been issued imme liately after the refusal of the injunction order.

Held, that the plaintiffs were not in default, and also that they were not compellable to issue the summons in the suit pending the appeal, and that the application should be refused.

The facts of both suits appear in the judgments of the Court. Argument was heard November 3rd, 1892.

tiffs.

Blair, A.-G., and J. A. VanWart, Q.C., for the plain

G. F. Gregory, Q.C., and C. E. Duffy, for the defendants.

1892. January 11. SIR JOHN C. ALLEN, C.J. :

:

This was an application to have the plaintiffs' bill in this case dismissed for want of prosecution. In December, 1889, the plaintiffs applied for an injunction to restrain the defendant from proceeding in two actions of trespass