1903 BRADBURN บ. EDINBURGH ASSURANCE Co. That Act might more properly have been intituled "An Act to enable mortgagors to break their contracts." It is not general legislation, as it only applies to mortgages of real estate and to a mortgage having run for five years. Such matters come within property and civil rights: British North America Act, sec. 92, sub-sec. 13. What is to be considered is the real object of the legislation: Regina v. Wason (1889), 17 O.R. 58, (1890), 17 A.R. 221. The object of the Act in question was to change, or enable parties to change, their contracts. That cannot be done by giving it another name, and applying it to interest. The British North America Act had not been considered by the Privy Council, at the time this Act was passed, as fully as it subsequently was in The Citizens Insurance Co. of Canada v. Parsons, 7 App. Cas. 110. If that case had been decided first, the Act probably would not have been passed. In 1886 a Bill relating to interest extending this legislation was withdrawn in deference to the Minister of Justice's opinion: Lefroy's Law of Legislative Power in Canada, p. 389. Poussette, in reply. The tender in gold is waived by the terms of the mortgage. The Act only relieves from the recovery of interest, over which the Ontario Legislature has no jurisdiction, and it has received judicial recognition: In re Parker, Parker v. Parker (1894), 24 O.R. 373. The plaintiffs only ask to be relieved of interest. The Dominion Parliament has the right to interfere under sec. 91 of the British North America Act. The defendants' Imperial Act merely gives them power to lend money in Canada, but it is no mandate to Canada or Canadians. The contract was not made in England, nor to be performed there, but even if it was, it related to land in Canada, and, if so, the lex loci rei sita governs. I refer also to Curtis v. Hutton (1808) 14 Ves. 537; Doe d. Birtwhistle v. Vardill (1826), 5 B. & C. 438. The Minister of Justice of the Dominion was notified, but was not represented on the argument. March 23. BRITTON, J.:-The plaintiffs are the executors of the will of the late Thomas Bradburn. After previous negotiations between solicitors for the parties, Thomas Bradburn, on the 9th October, 1895, made formal application to Kingstone, Wood & Symons, solicitors for the defendants, for a loan of $50,000 at 41 per cent. for ten or fifteen years. The defendants had in Toronto, in addition to the solicitors named, an advisory committee. The application was referred to this committee, the committee recommended the loan, and the application and recommendation were forwarded by Kingstone, Wood & Symons to the defendants' manager in Edinburgh, who submitted the matter to the board of directors of the defendant company. The directors accepted the loan, and Thomas Bradburn was notified of such acceptance by cable. The loan was made, the security therefor being: 1st. Mortgage upon real estate in Ontario, dated 25th January, 1896. 2nd. Mortgage upon leasehold, dated 17th February, 1896, expressed to be made as collateral security for the mortgage upon the real estate; and 3rd. A bond by Thomas Evans Bradburn, son of Thomas Bradburn, and now as an executor, one of the plaintiffs in this action. This bond is in the penal sum of $100,000, conditioned for the payment by Thomas Bradburn to the defendants, of the money to become due on, and for the performance of the covenants in the mortgage given by Thomas Bradburn on the realty. This mortgage is for £10,273 19s. 6d., stg., with the proviso that it is to be void on payment at the office of the British Linen Company Bank in London, England, of the principal sum with interest, also payable at said bank, at 4 per cent. per annum, as follows: principal on 15th January, 1906, and the interest half-yearly on 15th January and July in each year. All monies to be paid in gold coin, or its equivalent in sterling money if required. It is expressly provided in the mortgage that a bank draft on London, England, made in favour of the mortgagees, payable on presentation thereof, and delivered to the agent, in Toronto, aforesaid of the mortgagees, or mailed in the postoffice at Peterborough aforesaid, addressed to the said British Linen Company Bank, directed to be placed to the credit of 44-VOL. V. O. L. R. Britton, J. 1903 BRADBURN V. EDINBURGH Britton, J. 1903 the mortgagees, and duly registered, shall, unless subsequently dishonoured, be considered as equivalent to the payment at the office of the said British Linen Company Bank in London, England, of a like amount to that named in said draft on the ASSURANCE day of such delivering or mailing. BRADBURN v. EDINBURGH Co. It was also provided that the mortgagor should have the right to pay, on account of principal, at the end of any year of the said term, the sum of £1,027 8s. Od. ($5,000), on condition of four months' previous notice of intention to make such payment. Owing to loss by fire, and the application of certain insurance money, the mortgage has been reduced to £8,441 2s. Od., sterling, of principal, and, at the time of the commencement of this suit, stood at that amount. In June, 1902, the executors (plaintiffs), for the purpose of winding up or "making an adjustment of the affairs of the estate," desired to pay off this mortgage. Negotiations followed, the defendants refused to accept the money on such terms as the plaintiffs offered, and the plaintiffs thereupon invoked ch. 127, sec. 7, R.S.C. 1886, claiming the right to pay off this mortgage by paying the principal and all interest which had accrued, and three months' additional interest. On the 3rd December, 1902, the plaintiffs formally tendered to Kingstone, Symons & Kingstone, as solicitors and agents for the defendants, at their office in Toronto, a bank draft on London, England, for £8,683 5s. Od., making up the amount, as follows: It is admitted in this case, and for the purposes of this action, that the figures are correct in amount on the basis stated in the offer. The defendants contend: 1. That sec. 7 of ch. 127, R. S. C. 1886, was and is ultra vires of the Parliament of Canada. 2. That even if intra vires, it was not intended to apply to such mortgages as those in question in this action. Britton, J. 1903 BRADBURN v. EDINBURGH 3. That the parties contracted with a view to the applica- ASSURANCE tion of the law of England as to payment of said mortgage. 4. That as defendants were a company authorized by an Imperial Act to lend money in Canada, before the passing of the British North America Act, ch. 127, sec. 7, was not intended to, and did not, abrogate or diminish the powers previously granted to the defendants by their Imperial Act. 5. That the tender was not sufficient; and 6. That the whole facts do not disclose any cause of action by the plaintiffs against the defendants. I have first to determine the question raised as to ch. 127 sec. 7, R.S.C. 1886, and I confess to no little difficulty in coming to a conclusion satisfactory to myself. By sec. 91 of the British North America Act, the Dominion is authorized "to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated: that is to say:' One subject, as No. 19, is "Interest." Interest is not, but "property and civil rights in the Province," are, by section 92 of the British North America Act, assigned exclusively to the Legislature of a Province: sub-sec. 13. The right to interest upon a contract for the same, made in a Province, is certainly a civil right in the Province; but if the Dominion alone has jurisdiction to legislate on the subject of interest, then the Province can deal with it as a civil right only, within the lines and subject to the limitations and restrictions laid down and imposed by Dominion legislation. Co. Britton, J. 1903 BRADBURN Speaking of the British North America Act, Mr. Justice Ramsay says (The Attorney-General of Ontario v. Mercer (1883), 3 Cart. 1, at p. 107): "This Act gives rise to a difficulty of construction, which perhaps I may exaggerate but which is ASSURANCE Worthy of consideration, and that is the double enumeration which constantly occurs." V. EDINBURGH Co. It is to be found prominently in sections 91 and 92. Its inconvenience there did not escape the observation of the framers of the Bill, for they have terminated section 91 by a saving clause of great importance, which makes section 92 subordinate to section 91. This is one of the cases in which the jurisdiction of the Provinces and the Dominion overlap. Lending money upon real estate or chattels and taking mortgages therefor is a question of property. Money is seldom lent except at interest, and next to getting security for its repayment, interest is the most important thing connected with the loan, and interest is one of the subjects reserved for the Dominion. The Dominion Parliament has dealt with it in passing the statute under consideration, and there is the general presumption that the Legislature does not intend to exceed its jurisdiction. It is argued for the defendants that the right of the Dominion to legislate is only as to rate, as to usury, leaving details and matters affecting contracts to the Provinces. On the other hand, it is argued by the plaintiffs that the Dominion was intended to have, and has, power to deal with interest as to rate, and also when it shall and when it shall not be payable, even if in so dealing with it, in concrete instances, there is an apparent interference with property and civil rights. The following cases, and other cases, establish that subjects, apparently within provincial jurisdiction, may be dealt with to a greater or less extent, when necessary, "to complete by ancillary provisions the effectual exercise of the powers given to the Dominion by the enumerated subject in section 91": Lefroy, pp. 431, 432: The Citizens Insurance Co. v. Parsons, 4 S. C. R. 215, at p. 330; Edgar v. Central Bank (1888), 15 |