attempt in that direction would at once be met by the railway companies insisting that it had been done at their instance under the railway act and Order in Council, and that four-fifths of the cost had been borne by them.

It was argued that the defendants were wrongdoers because they had no power to act as agents, and the railway companies could not delegate their authority to them. On this point the case of St. Peter v. Denison, 53 N. Y. App. 416, and cases there cited may be noticed.

It may be conceded that it was entirely outside the powers of the defendants to contract with and to act as agents for the railways, as they have professed to do. It was foreign to any purpose for which municipal corporations were created, and probably any ratepayer or the Attorney-General might have intervened and restrained the governing body of the corporation from carrying on the proceeding.

We do not know what took place on the motion for the interim injunction, if such a motion was made, but the right of the defendants to do the work for the railway companies might have been then argued and disposed of. See Attorney-General v. Great Eastern R. W. Co., 11 Ch. D. 449; Attorney-General v. Shrewsbury, 21 Ch. D. 752; Richmond Water Works v. Richmond, 3 Ch. D. 82, 97; Great Northern R. W. Co. v. Eastern Counties R. W. Co., 9 Hare 306, 28 L. J. Ch. 521.

It would be a singular result if the defendants as a corporation can be held liable in successive actions for damages for an act which they cannot be allowed to undo, and which, lawful in the case of a natural person, is in theirs not so, only because wholly outside the scope of their corporate powers.

Even if they had no power to act as agents of, and to cause the work to be done for the railways, I do not see that it follows that as a corporation they must be deemed to have done it tortiously, or that it is to be imputed to them that they were wrongfully doing it under their special act, when it was proved that their agents, the council, were not acting in execution of that act.

The plaintiffs appear to be in this dilemma. The works. might have been lawfully done by the railway companies or their agents.

The defendants have professedly done them at their request and as their agents.

If they could act as agents, they can defend themselves just as an individual could do under the authority of the railway act and order in Council.

But if it was not within the scope of their corporate powers so to act and to accept the delegated authority of the railways, it must be equally open to them to defend themselves from liability as a corporation on that ground also, and either way the plaintiffs fail.

I cannot regard the defendants' by-law of the 3rd December, 1883, as at all aiding to fasten upon them a liability as wrong-doers. It is not necessary to express an opinion as to its validity, but so far as it confers the sanction of the inhabitants of the municipality it is only to their acting as agents for the railways and contributing a sum towards the expense of the work.

My conclusion is, that the appeal should be allowed, and the plaintiff's left to their remedy against the railway companies, at whose instance, and by whose procurement the work was unquestionably done. I trust that it will be found that the provisions of the railway act are sufficiently elastic to embrace their claims.

I arrive at this conclusion not without sincere distrust of its correctness, as so many learned judges for whose opinions I have the most unfeigned respect think differently. It is, however, the only one I have been able to form, and the defendants are entitled to its expression.

HAGARTY, C. J. O., dissenting.

53-VOL. XII A.R.

Appeal allowed, with costs.

PEORIA SUGAR REFINING COMPANY V. CANADA FIRE AND MARINE INSURANCE COMPANY.

Fire insurance-Conditions of policy-Construction of-Reasonableness of — Limitation of actions.

A fire insurance policy contained a condition that any action upon it should be barred "unless commenced within the term of six months next after the loss or damage shall have occurred."

Held, [affirming the decision of BoyD, C.,] that this condition must be considered to refer to the date of the destruction by fire, and not to the date at which the cause of action arose.

Semble, per HAGARTY, C. J. O.-The six months limitation was an unreasonable one, as another condition provided that the insurance company should have sixty days for payment after completion of proofs of loss.

THIS was an appeal by the plaintiffs from the judgment of Boyd, C., (not reported) at the trial, dismissing the action, which was upon a fire insurance policy, on the ground that it was not brought within six months from the time the loss occurred, as required by the conditions of the policy.

The learned Chancellor at the trial stopped the defendants' evidence, ruling that evidence should first be given on the question of the time limit.

The appeal was heard on the 1st of March, 1885.*

Moss, Q. C., and J. W. Nesbitt, for the appellants. The appellants objected at the trial that the respondents' case was not closed, and that their case should be concluded before the appellants should be required to give further evidence or argue the case, but the learned Chancellor required the appellants to proceed immediately, and on their not doing so at once dismissed the action. It was not in accordance with justice or the practice of the courts to have the evidence thus taken piecemeal, or for the judge trying the action to decide that he had for the present heard enough evidence for the defence and require the plaintiffs to proceed with evidence, after hearing which he might decide that the defence should proceed

Present.-HAGARTY, C.J.O., BURTON, PATTERSON, and OSLER, JJ. A.

with further evidence. No cause of action accrued to the appellants until, at any rate, sixty days after delivery of the proofs of loss, that is on 25th January, 1882, and the action was brought within six months from that time. Limitation can only run from the time there is a cause of action. The limitation condition usually inserted in policies limits actions to twelve months. The condition inserted in the policy in question herein is unusual and unreasonable, and no effect should be given to it. The limitation condition being a condition defeating vested rights, should be construed strictly, and so considering it the court should hold that the action was commenced in time.

Osler, Q. C., and Laidlaw, contra.

The policy was subject to condition No. 21 stated in the third paragraph and pleaded in bar by the ninth paragraph of the statement of defence, namely:-"that every suit, action, or proceeding against the Company for the recovery of any claim under or by virtue of this policy shall be absolutely barred, unless commenced within the term of six months next after the loss or damage shall have occurred," and the plaintiffs joined issue thereon; the loss or damage by fire occurred on the 27th day of October, 1881, and this action was commenced on the 25th day of July, 1882, which was too late. This was the only issue on the question of limitation of time for commencement of the action, and it involved a question of law which would put an end to the action if decided in favor of the defendants, and the learned Chancellor properly directed that it should be disposed of before proceeding with the evidence on the other issues. The matters of procedure referred to were in the discretion of the learned Chancellor, and are not the subject of appeal to this court.

The following cases were referred to in addition to those cited in the judgment: Cowper v. Godmond, 9 Bing. 748; Ames v. N. Y. Union Ins. Co., 14 N. Y. 253; Leny v. Virginia Fire and Marine Ins. Co., 9 Ins. L. J. 113; Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill.

466; F. & M. Ins. Co. v. Chestnut, 50 Ill. 111; Andes Ins. Co. v. Fish, 71 Ill. 620; Ripley v. Astor Ins. Co., 17 Howard's Pr. R. 444; Mickey v. Burlington Ins. Co., 35 Iowa 174; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102; Etna Ins. Co. v. Maguire, 51 Ill. 342; Williamsburg Fire Ins. Co. v. Cary, 83 Ill. 453; Parker v. S. E. R. W. Co., 2 C. P. D. 416; Watkins v. Rymill, 10 Q. B. D. 178; Davis v. Canada Farmers' Ins. Co.,. 39 U. C. R. 452; Roach v. N. Y. & E. Ins. Co., 30 N. Y 546.

April 17, 1885. HAGARTY, C. J. O.-This action was. commenced on the 25th July, 1882. Plaintiffs are a company in the State of Illinois, the defendants an Ontario company at Hamilton. The claim states a The claim states a policy of insurance dated 1st September, 1881, on plaintiffs' property and stock for $5,000; loss by fire 27th October, 1881; with usual documents.

Defence setting out various parts of the policy, charging false representations, breaches of warranty, and changes in risk, and amongst other defences No. 21 gives this extract: "The insurance under this policy is made subject to the foregoing conditions, limitations, and requirements, which are hereby made a part of this policy, and every suit, action, or proceeding against the company for the recovery of any claim under or by virtue of that policy shall be absolutely barred, unless commenced within the term of six months next after the loss or damage shall have occurred."

No. 9. That the loss or damage by fire occurred 27th October, 1881; the proofs of loss were received by defendants on 26th November, 1881: that defendants have always disputed any liability under said policy: and the action commenced 25th July, 1882, more than six months after happening of loss &c., and claim therefore barred.

The plaintiffs merely join issue on the statement of defence.

The policy also contains provisions that the loss or damage shall be estimated according to the actual cash.