Judgment. which compensation may be claimed must be done in the lawful exercise of the statutory powers of the company: Imperial Gas Light and Coke Co. v. Broadbent, 7 H. L. C. 600; Ricket v. The Metropolitan R. W. Co., L. R. 2 H. L. 175. BURTON For anything done in excess of their powers or contrary to what the Legislature in conferring those powers has commanded, the proper remedy is an action: Brine v. Great Western R. W. Co., 2 B. & S. 402; Cator v. The Lewisham Board, 5 B. & S. 115. It follows, therefore, that if the acts amount to trespass, the owner of the property cannot come to the Court for a mandamus to assess compensation. After notice to treat matters are in a different position, and it is important to bear in mind that there is a very material distinction between our Act and the English Acts. A notice to treat there, when once given cannot be revoked there is no locus penitentice-with us it is different. At any time before the award is finally made, the company can desist,-paying the costs. So that even in England, although the giving of the notice to a certain extent, and for certain purposes, creates the relative situation of vendor and purchaser, the giving it does not itself constitute a contract, nor entitle the company to a specific performance: Haynes v. Haynes, 1 Dr. & Sm. 426; and see In re Marylebone Improvement Act, L. R. 12 Eq. 389; but a verbal assent on the part of the owner, and an agreement as to the price, is sufficient notwithstanding the requirements of the Statute of Frauds. The owner can, of course, obtain an injunction, and the Court on a motion to dissolve will usually refuse to interfere unless the company consent to put the matter in train for compensation; but it is only in such or similar cases that the Court will interfere. After notice the owner may either remain passive, treating the company as trespassers if they enter before the award is made and compensation paid, or he may compel them to proceed to arbitration. The admissions do not shew when the plaintiffs first Judgment. became aware that their property was being despoiled, and when they brought their action they are met with the statute of limitations. The words of the 27th section are peculiar to the legislation of the Dominion and Province. I thought, at first, that they were imported from the adjoining States, but I have been unable to find similar enactments there. The language I refer to, "All actions or suits for indemnity for any damage or injury sustained by reason of the railway shall be instituted within six months," has come up from time to time for judicial interpretation, and has given rise to great diversity of opinion, and expressions not material to the decision of the case then in review have occasionally been made perhaps without sufficient consideration. I should certainly, if that had been the point calling for decision, have been more guarded and precise in the language I used in Kelly v. Ottawa Street R. W. Co., 3 A. R. 616, where most of the decisions were reviewed, where I refer, in one portion of my judgment, to works of preparation as well as construction; but reading the whole of the judgment together it is clear that I understood the section then, as I do still, to refer, at most, to injuries or damages arising from the actual construction of the railway, where the company or its agents were acting in the bond fide belief that they were properly exercising their powers, but were in point of fact exceeding them or doing the work unskilfully, and not to cases where the railway itself had no existence, and the acts complained of were not, and could not, be supposed to be done in the construction of the railway, but were purely acts of trespass, without the slighest pretence of justification. It is unnecessary in this case to consider whether the Courts were correct or not in holding the section to apply after the railway was constructed, to acts of negligence in the management of it; such as omitting to sound the whistle or ring the bell on approaching a crossing, or in injury to BURTON BURTON Judgment. cattle, or in allowing sparks to escape from the locomotive, where it might in a sense be said that the injury was caused by reason of the railway although it would be more accurate to say that it was caused by the negligence of the persons who were managing the trains, but this is a very different case, and the question is not whether under such language as is to be found in some of the English cases, such for instance as Garton v. The Great Western R. W. Co., E. B. & E. 837, the limitation would apply, but whether the words of our own Act, "by reason of the railway," can be made to extend to acts of this nature where the railway had no existence, and might possibly never be brought into existence. Mr. Justice Patterson in the course of his judgment in Kelly v. Ottawa Street R. W. Co., 3 A. R. 616, referring to this difference, says: "The substituted phrase is, in one direction at all events, more comprehensive than the original, as it is capable of extending to many occurrences which are not done or omitted in pursuance of the statute, while in the other direction it is easy to perceive that some things done or omitted in pursuance or by authority of the Act, could not, with strict precision, be said to be by reason of the railway; such, for example, as works of preparation and construction, which must be in progress for a long time before they result in the formation of a railway." It would certainly be a very wide construction to place upon the words which the Legislature has thought proper to use to hold that they included acts of this kind, although in point of fact a single foot of the railway was not then and might never be built. The case of Follis v. Port Hope &c. R. W. Co., 9 C. P. 50, would seem at first sight to give some colour to such an interpretation, but when examined it will be found to be no authority for it, having, as I read it, been decided under a differently worded section, although at the time of the decision, but after the committing of the trespass, a clause similar to the one we are now discussing had been introduced by amendment, so that BURTON J.A. the Act as amended contained two limitation clauses: one Judgment. similar to the present, and another providing in general terms that if any action or suit should be brought against any person or persons for any matter or thing done in pursuance of the Act, it should be brought within six months. The Court there held that under the pleading as framed the plaintiff was confined to proof of one act of trespass, and as that act was done under the original statute, it was met, if not by the reference which had been entered into but not proceeded with, at all events by the limitation as to time to be found in that statute. But assuming that the words "by reason of the railway" could be treated as synonymous with the words usually to be found in the English Acts "in exercise of the powers of the company," which no doubt would extend to all persons acting under or in pursuance of those powers although in excess of them, and to all persons having a bond fide belief in the existence of a state of facts, which if they had existed, would have afforded a defence to the action, although they had proceeded illegally or exceeded. their jurisdiction, still the defendants here have failed to bring themselves within those classes of cases. Protection clauses of this nature are intended for the benefit of those who want to act rightly and have by mistake done wrong. "The object," says Lord Ellenborough, in Theobald v. Crickmore, 1 B. & Ald. at p. 229, "clearly is to protect persons acting illegally but in supposed pursuance and with a bona fide intention of discharging their duty under the Act of Parliament." The law is nowhere more clearly stated than in the judgment of that very able Judge the late Mr. Justice Willes, in Chamberlain v. King, L. R. 6 C. P. at p. 478, where he says: "The proper question for the jury is, whether the defendant honestly believed in the existence of a state of facts which, if it had existed, would have justified him in doing as he did." And he afterwards points out that in a case which had been cited as apparently deciding that an honest belief would be insufficient unless BURTON Judgment. the defendant had reasonable ground for such belief, that that judgment must be read with reference to the facts of that case; and that the decision merely amounted to this: "There must be facts on which a belief could be based;" and he referred to the law being quite settled by the decisions in Hermann v. Seneschal, 13 C. B. N. S. 392, and Roberts v. Orchard, 3 H. & C. 769. See also Kine v. Evershed, 10 Q. B. 143; Spooner v. Juddou, 6 Moo. P. C. 257; Booth v. Clive, 10 C. B. 827; Read v. Coker, 13 C. B. 850; Arnold v. Hamel, 9 Exch. 404; Leete v. Hart, L. R. 3 C. P. 322 ; Hughes v. Buckland, 15 M. & W. 346. That being then the law applicable to such a case as the present, what were the facts which, if they had existed, would have justified the defendants in entering on the land and cutting the trees ?—Nothing but the tender and acceptance of the amount of compensation offered under the Act or awarded by a competent tribunal would have afforded a justification. These defendants being primâ facie trespassers were bound to shew a justification, the onus was upon them, and failing to prove it they were not entitled to the statutory protection. It appears to have been assumed that it was sufficient for them to shew that the trespasses occurred more than six months before action, without giving any evidence to shew that they had an honest belief that the compensation had been offered and accepted. The case was tried before a Judge, without a jury, upon admissions made on both sides which they deemed sufficient to make out their respective cases. The defendants have failed to bring themselves within the protection of the Act. The facts which alone would have entitled them to do the act complained of did not exist, and the non-existence was a matter necessarily within their knowledge. On this ground, therefore, I think the appeal should be allowed, and the whole damages claimed referred. I do not think that any of the cases referred to, with |