perty, but the Legislature had ample power to do so, and they have done so by the act of 1874.

The constitutional question has been argued in this case as if the distribution of powers here was the same as that in the United States between the Local Legislatures and the Federal Congress. That is a mistake, and the distinction between the two cases is of importance. There the powers not expressly committed to the central legislature are reserved to the local legislatures. Here the positions are exactly reversed, and all powers not expressly given to the local legislatures are reserved to the central parliament. The legislative power of the federal parliament here is, therefore, much more ample, and the presumptions in favor of its acts being intra vires are stronger. The authority of the Dominion Parliament is as extensive as that of the Imperial Parliament, except as to those subjects that are withdrawn from it and reserved to the local legislatures. The closing words of section 91 expressly provide for cases of doubt, and where there is a conflict of authority the preference is given to the general Legislature.

If the contention of the plaintiffs is sound as to this matter being a subject of exclusive jurisdiction on the part of the Local Legislature, because there is a lease of the road held by plaintiffs which constitutes. a private right, it follows that whenever the Dominion parts with an inch of its property over which it has exclusive jurisdiction, it creates a private right in favor of its grantee, and the authority of the Local Legislature is invoked. It cannot thenceforth deal with such property in any manner, no matter for what public purposes, or how beneficial the objects in view, without trenching upon the powers and jurisdiction of the Local Legislature.

The act of 1874 is not a private act in any respect. It is an act put on the statute book for a public purpose. The company is a private company, but they are acting under a public act passed for the benefit of the country generally, and the injury done to the plaintiffs as contended by their counsel is nothing compared with the injury that would be done to the defendant Company if the undertaking with them were violated. That undertaking was that they were to have this piece of road,

Assuming that the Legislature had the power to pass the act of 1874, the question remains as to the construction to be placed upon that act. As to this I cannot see what construction can be put upon it other than the one we contend for. The act can have only one meaning, and that is that the defendant Company is to have the absolute possession of the branch line on the completion of their road.

As to the ground that the Government should have been made a party, it seems to me that nothing could well be clearer. The decree of the Court, if in favor of the plaintiffs, will impose a burden upon the Dominion. The Government certainly have an interest in the matter, and should be represented by their Attorney General being made a party.

SIR WILLIAM YOUNG, C. J., now, (August 29th, 1878,) delivered the judgment of the Court:—

THE Equity Judge, on the 11th of March last, having given judgment for the plaintiffs on a demurrer to the whole bill, the defendants, on the 20th March, filed a petition for appeal, and the plaintiffs, on the affidavits of Messrs. Innes and Lynskey, moved for a hearing under the Revised Statutes, ch. 95, sec. 78; and on the 29th of May an order therefor was signed by five of the Judges. The hearing was had on the 9th and 10th of July, before the Chief Justice, the Equity Judge, and Judges DESBARRES, SMITH and JAMES, when certain preliminary objections were taken, which must be first of all disposed of. It was urged that an order for a hearing in vacation under the above sec. 78, could only be given by the Court in banco, and that such a hearing could only be had before the full bench. Now, the first of these objections, if sound, would go far to defeat the object of the clause, which was obviously to facilitate the hearing of equity appeals at any time during the year, and, there being only one term now of the Supreme Court, during two-thirds of the year, the provision would be inoperative. The Act of 1876, ch. 13, provides that five Judges shall constitute a quorum to decide all matters requiring to be heard by the Court in banco, and to insist on all the seven Judges being present at such a hearing, would render it impossible were one of them absent or unwell. In the present case one of the Judges was out of town, having

just returned from Europe, on leave of absence; and another had a delicacy in acting, having been a member of the Dominion Government when one of the orders in council impugned in this case was passed. A preliminary objection, in the course of the argument, was raised as to its extent. By the 73rd and 74th sections of chap. 95, an appeal from the Equity Court does not lie in matters of practice, and the intention to appeal shall be signified by petition, succinctly stating the grounds of appeal. Now, there are five grounds of demurrer, on all of which the appellants claimed a right to be heard under the general terms of the petition, while its specific statements cover only a small part of the case. We did not feel ourselves at liberty to restrain or interrupt the argument, which was understood, indeed, to be only preliminary to a further appeal; but then expressed ourselves, and are still of opinion, that the first and fifth grounds in the petition are of no avail, as being too general and indefinite,-that the fourth relates only to practice and comes within the 73rd sec. of chap. 95; and that the appeal is practically confined to the second and third grounds.

We cannot but express our regret too that the case comes before us on demurrer, obliging us to assume all the statements in the bill as not only the truth, but the whole truth; when it is obvious, from the affidavits resisting the hearing, and from what transpired at the argument, that several of. these statements will be contradicted or qualified.

The two papers before us, the bill and the judgment, both of which must be read in connection with this opinion, enter so fully into particulars that we shall treat the several statutes and documents as incorporated with it, avoiding thereby any useless repetitions.

The first enquiry relates to the agreement of the 22nd November, 1866, to be seen at large in Appendix No. 15 to the Journals of the Nova Scotia Assembly for 1867, the 11th section of which is set out substantially in the bill, and the whole incorporated with the Provincial Act of 1867. This agreement was in force, binding the Government, and was undoubtedly one of the main inducements for the construction of the railway at the passing of the British North America Act, which, by sections 108, 110, and the third schedule thereto,

transferred to the Dominion as its property the Windsor branch of the Government railway running between Windsor and the Windsor Junction, and known as such, but misdescribed in one of the agreements as the Trunk line. It is contended that the branch passed absolutely to the Dominion, free of all obligation, equitable or otherwise, under the agreement of the 22nd November, 1866; and it is clear that the agreement in no way affected the title. But it may be asked was not the title coupled with an implied or constructive trust, binding a Government just as it would bind an individual. We are here in an Equity Court, and all the equities are surely with the plaintiffs on this point. The rule is laid down in 1 Spence's Equitable Jurisdiction, 509, 511, and 219; 2 Id., 194, and Hill on Trustees, 116, that where a person, taking the legal estate in property, cannot enjoy the beneficial interest without necessarily violating some established principle of equity, the Court will immediately raise a constructive trust. Suppose this branch, or any other portion of the provincial property, had been under lease or agreement under seal for a legitimate purpose, could the Dominion Government arbitrarily set aside all such contracts and violate the rights of individuals or companies, honestly acquired. This I am sure of, that neither the British Parliament would knowingly confer, nor the Dominion Government knowingly exert a power so oppressive and unjust.

Nor did the Dominion Government exert it in this case, for the agreement of 22nd September, 1871, is a substantial reas sertion, a recognition with some wholesome modifications and changes, of the agreement of November, 1866. This lease is almost as remarkable for what it omitted as for what it contained. It was for a term of no less than twenty-one years, from 1st January, 1872, "to be then renewed on the same conditions, or such other conditions as might be mutually agreed on," giving the Dominion Government a complete control and check on a renewal. It stipulated for a monthly payment by the Company of one-third of the gross earnings from the traffic carried by them over the branch, but made no stipulations of re-entry in case of non-payment. The only clause of that kind was the 19th, to take effect in the event of the Company failing to operate the railways, (it did not say for how long,) between Halifax and Annapolis.

The plaintiffs aver in their bill, and for the purposes of this argument we must take it as admitted, that they never failed in operating the railway, and, while exercising their running powers under the agreement, fulfilled all the conditions thereof, except the payment of the rent. This they withheld in view of some equitable claims on the Government, but paid the arrears in November, 1872, which the Government accepted.

Such being the state of affairs, according to their bill, the next step was a resolution in May, 1873, not of the Parliament as alleged in some of the proceedings, but of the House of Commons, authorizing the Government to enter into negotiations for a transfer of the Windsor branch to some association or company who would extend the railway from Annapolis to Yarmouth. We must infer that this was done in obedience to the desire, and to carry out the policy of the Government, but, as a resolution of one branch of the Legislature could have no effect on the rights of the Company, it was made subject, on the face of it, to the approval of Parliament. We may be assured that so significant a resolution as this did not escape the notice of the plaintiffs, but nothing is said of this in the bill, and, the rent having again fallen into arrears for the same cause as before, the Government gave the plaintiffs time to the 1st November, 1873, to pay the arrears.

A few days before, however, on the 20th October, 1873, the defendants, having been incorporated by the Legislature of Nova Scotia in 1870, entered into an agreement with the Government in the shape of an accepted proposal, undertaking to build the railway from Annapolis to Yarmouth, with all reasonable despatch, the Government, on their part, agreeing that on the completion of the same, (being then in progress of construction,) the branch railway should be and become absolutely the property of the defendants. The Government further agreed that the defendants should have running powers over the Intercolonial railway between Halifax and Windsor Junction, with such privileges as had been theretofore granted in the agreement with the Windsor and Annapolis Company. This agreement, on the recommendation of the Minister for Public Works, was approved on the 22nd October, by the Governor General in Council, subject to the