that particular applicable to fences at farm crossings, instead of fences and farm crossings. The Ontario Railway Act in force at the time of the construction of the branch under consideration was R.S.O. 1877, ch. 165, which does not compel the construction of farm crossings. By 45 Vict. ch. 67 (O.), (1882), several railways were consolidated, including the Midland Railway of Canada, and sec. 8 of that Act is, in part, as follows: "All the provisions of the Railway Act of Ontario shall apply to the company as consolidated." I am, therefore, of opinion that the plaintiff can not, merely as proprietor of lands along the railway, invoke the aid of the original sec. 13, made part of the Act of incorporation of the Peterborough and Port Hope Railway Company, to compel the defendants to construct the farm crossing across the railway from one part to another of plaintiff's land. 28 When this part of the road was constructed in 1882, all of the south half of lot 15 in the 3rd concession of Emily was owned by John Carew, father of the plaintiff. He made an agreement on the 16th February, 1882, to sell to the Midland Railway Company such land as the company might require for roadbed, etc. The price to be paid was $85 an acre for the land, and a field of wheat to be paid for. The land taken was 72 acres, for which a conveyance was executed to the Midland Railway of Canada on the 2nd March, 1882, and for this land John Carew received $618.80. John Carew then owned part of lot 16, as well as the south half of 15, and he obtained a crossing on 16, and from the north part of 16 had access to the north part of 15. No action was ever taken by John Carew to obtain a crossing on lot 15, nor was there any agreement in writing, or any agreement, between John Carew and the company, of which plaintiff can avail himself, as to a crossing on lot 15. John Carew continued to occupy, as the owner, this south half of lot 15 until the 8th October, 1900, when he conveyed to the plaintiff "all that part of the south half of lot 15 in the 3rd concession of Emily not previously conveyed to the Grand Trunk Railway Company." He had never conveyed any part Britton, J. 1903 CAREW v. GRAND TRUNK R. W. Co. Britton, J. 1903 CAREW v. GRAND TRUNK R. W. Co. The to the Grand Trunk Railway Company, but this inaccuracy of description is of no importance. The fact is, that the plaintiff never owned the land now owned by the defendants. railway company did not cross any land of the plaintiff. The plaintiff is simply the owner of two parcels of land—one to the north and one to the south-both adjoining the railway. It so happens that there is a deep cutting where the railway crosses 15, and the plaintiff has no means of crossing the railway to get from one portion of his land to the other. It is conceded that if there is to be any crossing it must be by overhead bridge. The matter is unquestionably one of great importance to the plaintiff, who owns a valuable piece of farm land separated from his buildings by the railway passing through this cut. I have said that the plaintiff cannot get assistance from Ontario legislation, nor will the Dominion Railway Act, as it was or as it is, give the plaintiff what he seeks by this action. Mr. Justice Meredith in the case of Ontario Lands and Oil Co. v. Canada Southern R. W. Co., at pp. 220 and 221, deals with sec. 191 of the Dominion Railway Act, 1888. I am unable to distinguish this case as to the application of the Dominion Act. The decision in that case, as stated in the head-note, is: "Before the Dominion Railway Act of 1888 there was no statutable obligation upon a railway company to provide and maintain a farm crossing where the railway severed a farm, and sec. 191 of that Act is not retrospective." I will, as in that case, in dismissing the action do so without prejudice to any question affecting any claim to a way of necessity. In the statement of defence reference is made to a settlement by the defendants contributing towards the construction of an overhead bridge, and perhaps some settlement can yet be had, on the basis of the plaintiff being entitled to a right of way of necessity. No claim in this action was made on that ground and I cannot deal with it. In view of all the facts, I think the action should be dismissed without costs. E. B. B. [BRITTON, J.] BRADBURN V. THE EDINBURGH LIFE ASSURANCE COMPANY. Constitutional Law-R.S.C. 1886, ch. 127, sec. 7-Interest-Mortgage Running Action to compel a mortgagee in Great Britain under the provisions of R.S.C. Held, that the section is intra vires of the Dominion Parliament and is not restricted in its application to such mortgages as are mentioned in section 3 of the Act, but applies to every mortgage on real estate executed after the first of July, 1880, where the money secured "is not under the terms of the mortgage payable till a time more than five years after the date of the mortgage. Held, also, that the words of section 25 of ch. 205 R.S.O. 1897, are wide enough to apply to mortgages executed prior to the passing of that Act. Held, also, that the loan having been made, the property being situate, and the mortgage giving the option of payment, in Canada, the law of Canada must govern in relation to the contract and its incidents and that the tender made as described in the judgment was sufficient. THIS was a special case stated for the opinion of the Court in an action for redemption. The facts appear in the judgment. The case was argued in Court on 3rd February, 1903, before BRITTON, J. A. P. Poussette, K.C., for the plaintiffs. The mortgages in this case were for ten years, which have run for six and a half years, and the plaintiff's desire to pay them off, to settle up an estate. They have tendered, under the terms of the mortgage, to the defendants' duly authorized agents in Ontario a sufficient sum to cover principal, interest, three months' interest in lieu of notice, and costs, which the latter have refused to accept. The case comes under section 7 of R.S.C. 1886, ch. 127, and the action has been brought for a declaration that the mortgagees must accept their mortgage moneys, and that no further interest is payable on the mortgages. The statute became part of the contract, and the plaintiffs are entitled to the benefit of its provisions. 1903 March 23. 1903 BRADBURN V. EDINBURGH F. W. Kingstone, and D. T. Symons, for the defendants. On the facts stated, the plaintiffs shew no cause of action or right to relief. The defendants have not broken any contract, nor committed any tort. The time for the payment of the principal has not arrived, and the statute invoked does not make a loan for more than five years invalid or compel the mortgagee to accept payment of the principal before it falls due, and until that time has arrived, the plaintiffs are not entitled to bring an action for redemption: Browne v. Cole (1845), 14 Sim. 427; Bovill v. Endle, [1896] 1 Ch. 648. Section 7 of R. S. C. 1886, ch. 127, is taken from section 5 of 43 Vict. ch. 42 (D.) passed in 1880. That section is ultra vires of the Dominion Parliament. In order to determine that, the object of the latter must be ascertained. That object was to regulate a particular class of mortgages, and the section in question was introduced as merely ancillary to that object, or by way of penalty to enforce the other provisions in the Act. The object of the Act was to deal with matters (namely, property and civil rights), which, by the British North America Act, were placed within the exclusive powers of the Provincial legislature: The Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96, at p. 110; and that jurisdiction is as exclusive and absolute as the jurisdiction of the Dominion Parliament over matters within its jurisdiction: Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, at p. 586. The onus is on the plaintiffs to show the right of the Dominion Parliament to interfere. The section relating to interest is confined to a particular class of mortgages in connection with exceptional legislation; and is not general legislation such as the Dominion Parliament has power to pass: L'Union St. Jacques de Montreal v. Bélisle (1874), L.R. 6 P.C. 31, at p. 36; Archbold v. The Building and Loan Association (1888), 15 O.R. 237; The Royal Canadian Insurance Co. v. The Montreal Warehousing Co. (1880), 2 Cart. 361. The power to legislate with reference to interest is a power to regulate not to prohibit: Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348, at p. 363; Municipal Corporation of the City of Toronto v. Virgo, [1896] A.C. 88, at p. 93. 93. Even if the Act is valid, it should not be construed to change the The previous policy of the law, except as to the special class of mortgages referred to in it, and it does not apply to the mortgages in question here: Minet v. Leman (1855), 20 Beav. 269, at p. 278. The latter were not within the mischief which the Act attempted to remedy, and the words used were not intended to include all mortgages; if so, they would include municipal and railway debentures extending over many years. general words must be confined to the class of mortgages which were the subject of the statute: Twycross v. Grant (1877), 2 C.P.D. 469, at p. 483. The defendants are expressly authorized by an Imperial statute, 8 & 9 Vict. ch. 76, to lend money— they contracted for payment with a view to the application of the law of England-on mortgages in Canada, and their rights cannot be abrogated or interfered with by the Dominion Parliament: Regina v. The College of Physicians and Surgeons of Ontario (1879), 44 U. C. R. 564; Smiles v. Belford (1877), 1 A. R. 436; Routledge v. Lowe (1868), L. R. 3 H. L. 100, at p. 113; Fitzgerald v. Champneys (1861), 2 J. & H. 31, at p. 54; Maxwell's Interpretation of Statutes, 3rd ed., pp. 242-250. The tender was bad, not being made in gold or Dominion notes. It purported to be made under an Act enabling a mortgagor to break his contract on certain specified terms, and must be strictly complied with. It was not made to the company, the only party entitled to receive the money. The onus is on the plaintiff to shew authority to receive in the party to whom the tender was made, and it has not been satisfied. The alleged authority was only to receive certain documents specified in the mortgages. The defendants' solicitors, as solicitors, had no authority to receive the principal money: In re Tracy, Scully v. Tracy (1894), 21 A.R. 454. We refer also to Hardcastle's Statute Law, 3rd ed., p. 84; In re Missouri Steamship Co. (1888), 42 Ch. D. 321; Hamlyn & Co. v. Talisker Distillery, [1894] A.C. 202, at p. 207; South African Breweries, Ltd., v. King, [1899] 2 Ch. 173; Van Grutten v. Digby (1862), 31 Beav. 561, at p. 568; Dicey on Conflict of Laws, p. 553; Story v. McKay (1888), 15 O.R. 169. John Cartwright, K.C., Deputy Attorney-General, for the Province of Ontario. Section 7 of R.S.C. 1886, ch. 127, is entirely outside the jurisdiction of the Dominion Parliament. 1903 BRADBURN v. EDINBURGH Co. |