OSLER J.A. damages shall be sued for within a certain time." Then he Judgment. points out that the company are not liable at all for the things done within their strict jurisdiction or in the due execution of their powers, and adds that the words "in pursuance of" must therefore be meant of such actions as are brought against them for things done wherein they have offended against the Act. "The question is not to what extent they have offended, nor whether the company have done this in such a manner as to clothe themselves with the character of persons conforming in all respects to the authority given them by the Act, but whether they have done this wilfully and maliciously. If they did it bonâ fide they will be protected as to the time of commencing the action." Bayley, J.: "The question seems to come to this, whether the company were acting bonâ fide, for if they are not so acting they are not brought within the protection of the Act. If they are acting for the purpose of making or maintaining the canal, I think it was the object of the Act to afford them this limited protection. The object was that for all such things the enquiry should be brought to a speedy trial, and the matters examined recently after they took place." I refer also to Blakemore v. Glamorganshire Canal Co., 3 Y. & J. 60 (1829), a case not unlike that of Gaby v. Wilts and Berks Canal Co., 3 M. & S. 580. The defendants were sued for illegally diverting water from the plaintiffs' works. It was found that they had wilfully wasted the water in the management of their canal, and it was contended that there was no protection because the act complained of was not done in pursuance of the statute. I quote from the judgment of Garrow, B.: "From the language of the Act of Parliament, from the reason of the thing, and for the convenience of all parties it must, I think, be expected that a person who finds injury accruing to his property by the neglect or aggression of another shall be looking to his interest, and shall be prompt in his endeavour to procure a redress for that injury. My understanding of OSLER Judgment. this Act is, that if in carrying on that object which I am permitted by the Legislature to do under certain regulations, either by design, or accidentally, something happens in the execution of that purpose, which incidentally produces injury to another, for that I am, and in common justice I ought to be, responsible; but the party is promptly to resort to his remedy." The case of Boothby v. Morton, 7 Moore 51, 3 B. & B. 239, is in point. That was an action of trespass against the defendant as surveyor to the commissioners under the Witham Drainage Act, 2 Geo. II. ch. 32. The Act provided that where persons should refuse or neglect to treat for property which the commissioners required, the latter might issue their warrant to the sheriff to impanel a jury to assess the damages, and that upon payment or tender of the sum so assessed, the commissioners might enter upon and use the lands. The Act contained a clause limiting the commencement of actions to six months after the act complained of. The surveyor took land of the plaintiff for the purpose of widening a ditch, nearly a year before the action, and it was held that he was entitled to claim the protection of the Act, though the commissioners had neither made the compensation required for the property to be taken, nor pursued the course, on the observ ance of which only the statute enabled them to enter upon the lands of others. See also Wordsworth v. Harley, 1 B. & Ad. 391, which I shall refer to again; Hughes v. Buckland, 15 M. & W. 346, at p. 356; and Oakley v. Kensington Canal Co., 5 B. & Ad. 138, where the defendants were held to be within the protection of the limiting clause, inasmuch as the wrongful act was really done for the purpose contemplated by the statute, though in the prosecution of that purpose, and to enable them to commit the wrongful act, they had been guilty of a misrepresentation amounting to bad faith towards the occupier. Jones v. Gooday, 9 M. & W. 736, is a similar case. Commissioners under a local Act had taken the plaintiff's land OSLER J.A. for the purpose of widening a drain without his consent as Judgment. required by the Act, and without taking compulsory proceedings under the Act. The Act (secs. 113, 114) provided that no one should recover in any action for anything done in pursuance of the Act unless twenty-eight days notice of action was first given, nor if tender of amends was made before action, nor unless the action was brought within three months from the act committed. Lord Abinger was of opinion that the case was clearly within the provisions of the Act of Parliament: "There are two points of view in which cases of this class may be looked at one as against a party who has been authorized to proceed, and the other as in the case of an act done which was not authorized by Parliament at all. These are two very different cases and should not be confounded together. Now here is a case where it is admitted that the commissioners are authorized under the Act of Parliament, only they have not used their powers modo et formá; they are authorized by the clause 'to enlarge, alter, and cleanse the rivers, sewers, &c.' Can it be said that those are words that are not affected by, or that these powers have no relation to, the clause that no action. or suit shall be brought against any person or persons for anything done in pursuance of this Act or in relation to the matters herein contained?' Who can doubt that widening of sewers is a thing relating to the matters therein contained? This is an action for doing a thing in respect of the matters therein contained, though not executed modo et forma." Alderson, B., says: "If the act done was such that no reasonable man could, in doing it, be supposed to have acted bond fide, that would be another question. In the case of Cook v. Leonard (6 B. & C. 351), the Court must have considered that no reasonable man could have acted as the defendant did; and that it was not merely gross ignorance on his part but amounted to mala fides.” I shall only add a reference to Poulsum v. Thirst, L. R. 2 C. P. 449, and to Selmes v. Judge, L. R. 6 Q. B. 724, in which the principle of these decisions is approved of by OSLER Judgment. the Court. Blackburn, J., in the latter case thus quoting Wordsworth v. Harley, 1 B. & Ad. 391: "The question (there) arose upon a former Highway Act; a very highhanded course had apparently been pursued by the defendant, a surveyor of highways, who took a portion of the plaintiff's field and added it to a public road without the plaintiff's consent: Lord Tenterden, C.J., with the concurrence of the rest of the Court, held that the defendant was entitled to the protection of the Highway Act, though he considered the case to be very unfortunate for the plaintiff. It was assumed in that case that if in repairing highways the surveyor illegally and improperly took a portion of land, he was acting in pursuance of the statute, and might shelter himself under its provisions." It appears to me that the rule derivable from these cases is that in considering whether the act complained of was done in pursuance of or under the authority of the Act, the question of bonâ fides largely depends upon the capacity in which, and the purpose for which, the work was done, that is to say whether it was really done in the corporate capacity of and for the purposes of the company, or in the course of its business, and in the promotion of the contemplated works. The cases of Detlor v. Grand Trunk R. W. Co., 15 U. C. R. 595; Follis v. Port Hope, &c., R. W. Co., 9 C. P. 50; Auger v. Ontario Simcoe and Huron R. W. Co., 9 C. P. 164; Brock v. Toronto and Nipissing R. W. Co., 37 U. C. R. 372, support this view, and in the two former the wrongful act was of a nature very similar to that now in question. Can then these defendants be considered as founding these acts upon the powers given by Parliament ? They were empowered to build a railway, and to proceed with its construction after its route and the lands required had been ascertained by the deposit of maps, plan, and book of reference, and after certain further preliminaries to enter upon the lands so ascertained. The course of the railway lay through a wilderness and the defendants omitted these last preliminaries, and in so doing destroyed OSLER J. A. property of the plaintiffs, which was the subject of compen- Judgment. sation. These acts, however wrongful, were not merely colourable, but were unquestionably done in the course of construction of the railway, and for the purpose of executing the works authorized by the special Act. So much indeed is expressly admitted in the case. It is evident that it was under the professed authority of these Acts and in exercise of the power conferred upon them to build the railway, that the railway was built and the wrongful acts done, and that the land was really taken and cleared for that purpose, and for no other. There is an entire absence of evidence of mala fides or of any knowledge or notice on the part of the defendants of the plaintiffs' rights or that they were not lawfully carrying and constructing the railway through waste lands of the Crown. It follows that the injury was one sustained by reason of the railway and done in pursuance and by the authority of the general and special Acts within the meaning of the section. What I have said applies to that part of the plaintiffs' claim for the timber cut upon the belts and taken and destroyed by the defendants, as fully as to that for the timber cut upon the actual line of the railway. Whether, if this had been rightfully cut it would have become or remained the property of the plaintiff's need not be decided. I see no reason at present for differing from my brother Street's view upon this point. The act was wrongful, a complete cause of action arose when it was committed, and I find no authority for saying that the plaintiffs can extend their rights by resorting to an action for conversion instead of trespass. See Fraser v. Swansea Canal Co., 1 A. & E. 354; Jenkins v. Cooke, 1 A. & E. 372 (n.) The remaining question relates to the power of Parliament to enact section 27, which being a sort of clause of limitation, infringes as it is said upon the exclusive right of the Provincial Legislature to make laws in relation to property and civil rights in the Province. Having regard to the history and object of this clause, and to the principles enunciated in Valin v. Langlois, 3 S. C. R. 1; and Cush |