pany shall come into Canada, it cannot after admitting it regulate its business as they purport to do by the Insurance Act. I cannot omit to mention how Sir R. Finlay treats the suggestion of alien legislation: he says:25 "There is first the point about aliens. I always regarded that point as one of those touches of humour with which it is always pleasant to have a somewhat dull case enlivened. I do not propose to add anything to what my learned friend Mr. Newcombe said about that." I think he must have had in mind Mr. Newcombe's suggestion of legislation pointed at and confined to aliens.

A British company is not treated as an alien, but deemed to immigrate, and the authority for this enactment is found in section 95 of the British North America Act. A province and the Dominion alike can legislate for immigration, but a Dominion law will prevail over a provincial one. I take it that the principles which would cover the exercise of this power would be practically identical with those applicable to the naturalization of aliens.

It is submitted that while Parliament has authority to legislate for aliens and Dominion companies and in reference to trade and commerce, it is debarred from the regulation of any single trade like insurance. The new Act is an Act for regulation in the full meaning of that word and to the same extent as the former Act. Mr. Newcombe, himself, admitted that such was the character of the repealed Act. In that light it does. not appear to be "properly framed legislation" within the meaning of the Privy Council's judgment in the Insurance Reference. I venture to describe it as colourable legislation. Mr. Lefroy in his book on Canada's Federal System, lays it down as a leading proposition that Parliament cannot under colour of general legislation deal with what are provincial matters only. Such an exercise of power constitutes an attempt to do indirectly what there is not authority

"Canadian Companies," at p. 103.

to do directly. In certain other respects the legislation would seem to fall within another of Mr. Lefroy's propositions, viz., that if Parliament does not possess the legislative power, neither the exercise nor the continued exercise of such power can confer it or make its legislation binding. This is not to say that the Dominion has no rights at all in the field of insurance matters. You will recollect I quoted from a judgment the pronouncement that a matter may in one aspect belong to the Dominion and in another to a province. The task is to discover the limits of the respective jurisdictions of the Dominion and the provinces.

As matters now stand, the Federal authorities have been expelled from their Vimy Ridge and have fallen back on what they perhaps consider a Hindenburg line. The main scheme of the Act resembles the repealed Act. Is the new position impregnable? The motives of the legislation are not impeached. It may quite well be that the Insurance Act is a most expedient measure in the interest of the public. But Ottawa betrays its intention to cling tenaciously to its jurisdiction until it is wrested away.

The large issue at stake involves a fundamental principle of the Constitution under which we live. The question is not merely academic or theoretical or even one of policy or expediency. Legislation of this class goes to the root of the autonomy in the sphere assigned to the provinces by the British North America Act. The passage of any such legislation as invades a provincial area is a danger signal and a province is derelict in its duty to the trust imposed on it if it fails to mark the peril. Obviously it is only a step to the infringement of one right after another and that would ultimately entail the subversion of the Federal system.

Victoria, B.C.

H. G. GARRETT.

REGISTRATION AND ITS EFFECT.

CONTENTS:

1. Registration of Instruments.

2. Effect of not Registering.

3. Effect of Registration as Notice.

4. Notice Received Prior to Registration.
5. Unregistered Equitable Claims.

6. Subsequent Advances under Prior Mortgage.
7. Effect of Registry Act on Priorities.

8. Subrogation of Person Paying Prior Mortgage.

1. Registration of Instruments.

The Registry Act, R. S. O. 1914, ch. 124, contains the following provisions:

2. In this Act

(d) "Instrument" shall include every Crown grant, and Order-in-Council of the Dominion and of Ontario, every deed, conveyance, mortgage, assignment of mortgages, certificate of discharge of mortgage, assurance, lease, bond, release, discharge, power of attorney; under which any such instrument is executed, every bond or agreement for the sale or purchase of land, will, probate of will, grant of administration, caution under The Devolution of Estates Act or renewal thereof, municipal by-law, certificate of proceedings in any Court, judgment or order of foreclosure and every other certificate of judgment or order affecting any interest in or title to land, and certificate of amalgamation of loan corporations, every certificate of payment of taxes, granted under the corporate seal of the county, city or town by the treasurer, every sheriff's and treasurer's deed of land sold by virtue of his office, every contract in writing, every order and proceeding in lunacy, bankruptcy and insolvency, every plan of a survey or subdivision of land, and every other instrument whereby land may be transferred, disposed of, charged, incumbered or affected in any wise, affecting land in Ontario.

33. Except as herein otherwise provided, and subject to the provisions of the next following section, all instruments mentioned in section 2 may be registered.

34. [Sub-ss. (1) to (6) provide for the registration of instruments without local description of the lands affected.]

(7) Except mortgages, incumbrances or liens, made or given by the original nominee of the Crown, or any person through whom a person obtaining letters patent for land derived title, no instrument affecting unpatented land shall be registered.

2. Effect of not Registering.

It is provided by the Registry Act, R. S. O. 1914, ch. 124, sec. 71, as follows:

71. (1)—After the grant from the Crown of land, and letters patent issued therefor, every instrument affecting the land or any part thereof shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without actual notice, unless such instrument is registered before the registration of the instrument under which the subsequent purchaser or mortgagee claims.

(2) This section shall not extend to a lease for a term not exceeding seven years where the actual possession goes along with the lease; but it shall extend to every lease for a longer term than seven years.

Sub-s. 1 re-enacts in principle a provision of the original statute of 1795.1 That statute, however, made no exception in the case of the party claiming under the subsequent registered instrument having actual notice of the prior instrument, and it was only in 1873 that the corresponding section of the statute of 1868' was amended by the insertion of the words "without actual notice" after the word "consideration." The purpose of the amendment was to make the section accord with the predecessor of s. 72 of the present statute, which contains an explicit statement of the general principle that priority of registration shall prevail unless the person claiming by virtue of prior registration takes with actual notice of a prior instrument.

4

1 35 G. 3, c. 5: cf. C. S. U. C. 1859, c. 89, ss. 44, 53; Bondy v. Fox, 1869, 29 U. C. R. 64, at p. 71.

231 V. c. 20, s. 64.

3 36 V. c. 17, s. 7.

4 Peebles v. Hyslop, (1914) 30 O. L. R. 511, at p. 514, 19 D. L. R. 654, at p. 656. In equity it was already established that a person taking under a registered instrument with actual notice of an earlier instrument was, on the ground of fraud, not entitled to the protection of the statute. Millar v. Smith, 1873, 23 U. C. C. P. 47, at pp. 53, 55.

5 See heading 4, infra. As to the same principle in New Brunswick and Nova Scotia, see New Brunswick Ry. Co. v. Kelly, (1896) 26 Can. S. C. R. 341, affirming 33 N. B. R. 310; Tom Gung v. Fong Lee, (1915) 48 N. S. R. 317, 22 D. L. R. 809.

6

Generally speaking, constructive notice of an earlier instrument will not affect a person claiming by virtue of prior registration, but the doctrine of constructive notice is preserved in one instance under the Registry Act, namely, under sub-sec. 2 of sec. 71 quoted above."

If a lease is for less than seven years and the actual possession goes along with the lease, the purchaser or mortgagee is put upon enquiry by the possession of the tenant, and is affected with constructive notice of such tenant's rights. If the lease is for more than seven years, or if the possession does not go along with the lease and if it is not registered, a person claiming under a subsequent registered instrument without actual notice of the lease, takes free from it.

Where a lease made for a term less than seven years contains a covenant for renewal for a further term which, added to the original term, makes a period exceeding seven years, in that case, if the lessee is in possession, the lease does not require registration in order to be valid as against a mortgage of the land which was registered during the original term.R

But where a lessee during the currency of a lease for five years obtained a lease for a further term of four years to commence on the termination of the first lease, it was held that the second lease being unregistered could not prevail against a mortgage registered after the second lease was made but before possession under it began. In order to obtain the protection of the statute there must be not only a present lease but possession under it.'

6 See headings 5 and 7, infra.

7 The provision as to registration of leases in its present form dates from 1865: 29 V. c. 24, s. 67. Prior to that date there was a similar provision as to leases not exceeding twenty-one years: C. S. U. C. 1859, c. 89, s. 45.

& Latch v. Bright (1869), 16 Gr. 653.

9 Davidson v. McKay (1867), 26 U. C. R. 306.