the Council of the parish of Ste. Anne de la to municipal councils the authority to license Perade to pass such a by-law, and that pos- or to prohibit the sale by retail of intoxicasibly the by-law itself did not apply, and ting liquor, and to license the sale by wholecould not be applied, to the case of a whole- sale; but it is said that the same power does sale liquor license, and was limited in its not exist concerning the prohibition of the operation to the prohibition of the sale of in- sale by wholesale. Why should the one be toxicating liquors in quantities less than treated differently from the other? It may three gallons, or one dozen bottles, as author- be as important in the interest of the locality, ized by art. 561 of the municipal code, and and in some instances possibly more so, to consequently could not apply to a wholesale prohibit the sale by wholesale as by retail : license which would be in excess of the and can the one local prohibition be regardpower thus delegated. I am not now called ed as an interference with the regulation of upon to determine any such questions. What trade and commerce when the other is not? the petitioner asks me to do, is, to declare I must confess my inability to appreciate that the legislature of Quebec had no right or the distinction. The late Chief Justice authority under sec. 92 of the B. N. A. Act, Dorion, in the course of his observations in to confer upon the municipal council of the the Cooey case, quoted two decisions of the Town of Magog the power of passing a by- Court of Queen's Bench of Ontario, which law to prohibit within its limits the sale of have a decided bearing on the point now liquor by wholesale, as has unquestionably under consideration. In the case of Regina been done by 53 Vic. cap. 79 of the Quebec V. Taylor it was said :-"The Ontario legisStatutes, sec. 39. The Supreme Court and the "lature has a right to license or prohibit the Court of Appeals have, in the decisions refer- "sale of liquor in shops or taverns, and in red to, supported by the judgment of the "other places of the like kind, because it has Privy Council in the Hodge case, emphatical- "the exclusive power over municipal instituly laid down the doctrine that the regulation "tions: and these institutions had before of the liquor traffic, wholesale and retail, is "and at the time of Confederation the exwithin the exclusive control of the local "ercise of these powers, and because such legislature; and the Court of Appeals in the power, read in connection with sec. 92 sub. Moir case has affirmed, in the most distinct sec. 16 of the Confederation Act, is now a manner, the right of the legislature to de- "matter of a merely local or private nature legate to municipal councils the power of pro- "in the Province. That power is in restraint hibiting the sale of liquor by retail. In the " of trade, as well as a matter of police. The Severn case the Supreme Court went far in general regulation of trade and commerce the direction of holding that the regulation" which is vested in the Dominion governof, and the right to license, the wholesale trade was not within the attributes of the legislature but in the Molson case, the Chief Justice remarked:-" "In view of the cases "determined by the Privy Council, since the case of Severn v. The Queen was decided in "this Court, which appear to me to have "established conclusively that the right and power to legislate in relation to the issue of "licenses for the sale of intoxicating liquors "by wholesale and retail belong to the local "legislature, we are bound to hold that the Quebec license Act of 1878 and its amend"ments, are valid and constitutional." may then be assumed as judicially settled that the legislature of Quebec had and has, under the constitution, the power to delegate แ "ment must be considered to be modified by the powers which the Ontario legis"lature, acting in relation to municipal in"stitutions, may properly exercise." The same Court also held in Slavin v. The Corporation of the village of Orillia :-" That by-laws passed by municipal corporations wholly "prohibiting spirituous liquors in shops and 'places other than houses of public enter"tainment and limiting the number of tavern licenses to nine, were valid as being within the powers of the corporation "under the 32 Vict. cap. 32 Ont., and that it was within the power of the Provincial "legislature to confer such power." It" These judgments express my view of the power of the legislature; and they have re being observed, and on payment of the requisite duty, he was entitled to his wholesale license sec. 70, unless the sale in the municipality had been prohibited by by-law, sec. 51. Sec. 48 was amended in 1880, by 43-44 Vic. cap. 11, sec. 14, by taking away the necessity of a certificate for a wholesale license and by providing that "wholesale liquor shop licenses are granted simply upon payment to the proper license inspector of the required duties and fees." This latter provision was not reproduced in the Revised Statutes of Quebec and has disappeared entirely, so that under Art. 892 it is now the duty of the collector of provincial revenue to issue on appli ceived their full confirmation by the judgments since rendered and to which I have already referred. Before Confederation our municipal law ch. 24 of the Con. Sts. of Lower Canada-like that of Upper Canada-recognized the right of municipal councils to prohibit generally the sale of liquors; sec. 26,sub. sec. 11, conferred upon all county councils in the month of March, of each year, the power to pass by-laws " for prohibiting and preventing the sale of all spirituous etc. liquors," and by sub. sec. 16 of sec. 27 every local council might make a similar by-law in any year when the county council had failed to do so in the month of March. This power to prohibit generally the sale of liquors, thus uncation a wholesale liquor shop license on mistakably conferred upon and enjoyed by municipal councils, prior to confederation, has been held to be continuing and not to have been disturbed by any provision of the Union Act; and it certainly has not since been taken away by any competent authority. I do not feel that it is necessary for me to pursue the enquiry further. From the best thought and attention which I have been able to give this matter, I have come to the conclusion that the inherent right and responsibility, under the constitution, of controlling municipal institutions in the Province belongs to the legislature; and that the legislature may, and from its very nature must, delegate this control to councils, the recognized guardians and administrators of these municipal institutions; and that one of the most important elements of this control is the regulation of the liquor traffic, which | may be effected in the discretion of the Council, under the power so delegated, either by a general or partial system of license, or by a general or partial system of prohibition, or by a combination of both systems. payment of the requisite fees unless he has received under Art. 860 copy of a municipal by-law prohibiting the sale of liquors in the municipality, in which case he is forbidden to issue any license except it be for a steamboat bar or a railway buffet. Here it is admitted that the defendant had received a copy of the by-law in question, at the time when petitioner applied to him for a wholesale liquor license: and I cannot conceive how it was possible for defendant to have given any other answer than the one which is embod ied in the formal tender and offer made to him by petitioner of the requisite fees and which he signed. "Je ne puis accepter cette offre parceque je dois m'en tenir aux dispositions de l'acte 53 victoria ch. 79 et du règlement passé par la Corporation de Magog en vertu de ce Statut tant que le dit règlement reste en vigueur." On the whole I consider that sec. 39 of cap. 79, 53 Vic. Quebec, in so far as it authorizes the Municipal Council of the Town of Magog, to pass by-laws to restrain, regulate or prohibit the sale of any spirituous, vinous, alcoholic or intoxicating liquors by retail or wholesale within the limits of the town, is within the competency and powers of the legislature of this Province-and not ultra vires thereof-that the Municipal Council of the Town of Magog in passing and enacting the by-law which is attacked by petitioner, By the Quebec license Act, 41 Vict. cap. was competent and acted intra vires of the 3, sec. 48, the applicant for a wholesale shop power conferred upon it by said section,— license, was obliged to produce the same that the said by-law is in all respects legal certificate confirmed by the Council, as was and binding for all the purposes thereof and required for a hotel license. This formality of said section-and that defendant acted Was defendant bound to conform to the requirement of the by-law prohibiting the sale of liquor by wholesale in the Town of Magog, and to refuse the license asked for by petitioner? COMPANY. Company-Contributory — Director-Qualifica tion-Allotment-Notice-Reasonable Time. Re Moïse Jolicoeur, Montreal, doing business under the name of Jolicoeur Drolet.-D. Seath, Montreal, curator, Nov. 11. Re W. H. Larue, Murray Bay.-H. A. Bedard, Quebec, curator, Nov. 7. Re Napoléon Morin.-Bilodeau & Renaud, Montreal, joint curator, Nov. 9. cinthe, curator, Nov. 7. Re Leude and Gustave Potvin.-A. Gaumond, St. dividend (11), payable Nov. 26, D. Arcand, Quebec, The articles of a company incorporated in October, 1888, provided that a director's qualification should be the holding of at least forty shares. Lord Inchiquin was one of the first directors, and at a meeting on October 25, 1888, at which he was not present, forty shares were allotted to him and were registered in his name. He stated, by affidavit, that he never applied for these shares, receiv- Re O. Chamberland, boot and shoe dealer, Montreal. ed no notice of their allotment, and did not-First and final dividend, payable Dec. 1, C. Desmarknow of it until August, 1890. He had, however, attended meetings as director in November, 1888. In January, 1889, he acquired forty fully paid-up shares. A petition Second and final dividend, payable Nov. 30, N. Matte, was presented in January, 1890, and the company was wound up. Lord Inchiquin having been placed upon the list of contributories in respect of the forty shares originally allotted to him, on which nothing had been paid up, applied by summons to have his name removed, contending that he had never become the lawful owner of the unpaid shares, and that the fully paid-up shares were a sufficient qualification as director, having been acquired within a reasonable time. NORTH, J., held that Lord Inchiquin must remain on the list in respect of the forty unpaid shares, on the ground that the reasonable time for acquiring qualification shares expires as soon as a director has acted, and also that Lord Inchiquin must legally be presumed to have known of the allotment. teau, Montreal, curator. Re John Couturier, Murray Bay.-Second and final dividend, payable Dcc. 1, H. A. Bedard, Quebec, cura tor. Re M. J. Dayet & Co., wine merchants, Quebec. Quebec, curator. The Legal News. writ was returned on the 26th May, 1891; on the 27th May, defendant filed an exception déclinatoire, and on the same day plaintiff Vol. XIV. NOVEMBER 28, 1891. No. 48. filed a notice to this effect addressed to defen SUPERIOR COURT-DISTRICT OF SAINT FRANCIS. SHERBROOKE, Sept. 30, 1891. W. B. IVES v. C. PARMELEE. ciled or served therein. 2. That after the return of the action the plaintiff could not give jurisdiction by serving defendant's attorney with notice that he limited his action to damages caused by publication in the district of Saint Francis; and a declinatory exception having been filed the action was dismissed for want of jurisdiction. BROOKS, J. Plaintiff alleges that the defendant is the publisher and editor of a newspaper called the Waterloo Advertiser, printed and issued weekly in the town of Waterloo, in the district of Bedford, in this Province, and which newspaper is circulated in the district of Saint Francis, throughout the Province, and in some places outside of the Province. He then goes on to allege the publication of certain libels on different dates in said newspaper; says that they are malicious and false, to defendant's injury; that they were copied into other papers and published throughout the district of St. Francis and Dominion of Canada. That plaintiff has been injured thereby in his private and public life to the extent of ten thousand dollars. He caused the defendant to be served in the district of Bedford at his domicile. The dant's attorney: "Take notice that the plaintiff limits his demand in this cause to the damage caused him by the publishing of the alleged libels by the defendant in the district of Saint Francis only." Defendant's grounds of exception are that defendant was not domiciled or served in the district of Saint Francis ; that the cause of action did not originate in the district of Saint Francis, and that the Superior Court here is incompetent to try and determine this case for damages not alleged to have been caused plaintiff in the district of Saint Francis, for a libel alleged to have been published in the district of Bedford, in a newspaper alleged to have been circulated in the several districts of this Province as well as throughout the world. The plaintiff answers by saying that although the defendant is not sued at the place of his domicile yet the cause of action originated in the district of Saint Francis where the alleged libel was published, and plaintiff's action was specially limited to damages arising from the publication in this district, and the whole cause of action, as limited by the retraxit, arose within this district. The questions that arise are these: first, the competency of the Court at the time that the writ was served upon defendant and returned into Court; and secondly, as to the effect of the retraxit filed after the writ was returned into Court (whether before or after the filing of the exception is not shown). As to the first question, was the Court competent to hear the case as brought, that is as served upon defendant and returned into Court, I think there can be no doubt. The whole current of the decisions is to the effect that the Court had no jurisdiction. See remarks of Chief Justice Dorion in Archambault v. Bolduc, 2 Dec. C. d'App., p. 110 et seq. See also Blumhart & Larue, 11 Q.L.R. 253, where Mr. Justice Tessier declares: "Cela prouve "la nécessité ab initio de limiter l'allégation "du libelle et des dommages au district où "l'on veut faire comparaître le défendeur en "dehors de celui de son domicile, si l'on veut "tomber sous la règle troisième de l'article 34 JAMES MOIR, Appellant, v. THE CORPORATION "du Code de Procédure Civile." He cites also the unreported case of Tremblay v. White. See also the case of Barthe v. Rouillard et al., 17 Q. L. R., pp. 26 et seq. If this be so can a limitation of action or retraxit filed after the return create a jurisdiction necessary in this Court which it had not before? I think there can be no question about that. If the Court were not properly seized on the 26th, nothing which the plaintiff could do could give it jurisdiction on the 27th. This is just what Mr. Justice Tessier says in the case of Blumhart & Larue, and it is logical. The jurisdiction either existed, or it did not exist when the action was served or when it was entered in Court. If it did not exist then, the plaintiff could not by any action of his create a jurisdiction. " At the argument plaintiff said that he could bring as many actions as there were districts where the libel was circulated. Chief Justice Dorion says in Archambault & Bolduc that this cannot be done. See page 111, where he says it would be a contravention of Art. 15, C. C. P., which forbids the division of actions. Again as Mr. Justice Jetté says in Sénécal v. La Cie. d'Imprimerie de Québec, 4 Leg. News p. 414, Considérant que la motion faite par le demandeur demandant la permission "d'amender sa déclaration aurait pour effet "d'attribuer à ce tribunal, malgré le refus de "la défenderesse d'y consentir, la jurisdic"tion qu'elle ne possède pas maintenant." You cannot amend so as to give jurisdiction where it does not exist. If the Court cannot permit this, undoubtedly the plaintiff cannot do it. The writ was served on the defendant and returned; the Court then had no jurisdiction; a notice given to the attorney could not avail to give jurisdiction where it did not exist. OF THE VILLAGE OF HUNTINGDON, and THE HON. J. C. ROBIDOUX, es qual., Respondents. Appeal to Supreme Court-Question of Costs. HELD: That if an action be taken against a municipal corporation, to set aside one of its by-laws, and the by-law in question be repealed by the council of the defendant corporation, by means of a by-law which comes into force after a judgment of the Court of Queen's Bench, affirming the validity of the original by-law but before an appeal has been taken from such judgment, the repeal of the original by-law so effected, will reduce the matter in controversy to an abstract question and a claim for costs, and the Supreme Court cannot, under such circumstances entertain an appeal from the judgment of the Court of Queen's Bench. On April 8th, 1890, the council of Huntingdon Village passed a by-law, under 561 M. C., whereby it was assumed to prohibit the retail sale of intoxicants. On May 8th, 1890, the appellant petitioned the Circuit Court of the County of Huntingdon, to annul said bylaw, on the ground that 561 M.C. is ultra vires of the legislature (698 et seq. M.C.) On May 26th 1890, judgment was rendered by the Circuit Court (BELANGER, J.) quashing the by-law. An appeal was taken from this judgment, which was argued and taken en délibéré January 23rd,1891. On March 2nd, 1891, passage of a by-law by the Huntingdon council, repealing the by-law under dispute. law of the province, the repealing by-law By the could not come into force till May 1st, 1891. On March 21st, judgment was rendered by the Court of Queen's Bench, reversing the judgment of the Circuit Court, and declaring Declinatory exception maintained, and ac- the prohibitory by-law legal. On May 19th, tion dismissed with costs. H. B. Brown, Q.C., for plaintiff. SUPREME COURT OF CANADA. OTTAWA, November 11th, 1891. Coram Sir W. J. RITCHIE, C.J., STRONG, FOURNIER, TASCHEREAU and PATTERSON, JJ. appeal from this judgment to the Supreme Court; appellant being within the legal delays, and having done nothing by acquiescence or otherwise to bar his appeal. No motion was made to dismiss the appeal, and nothing was said about the repeal of the by-law in the respondent's factum. On November 11th and 12th, 1891, the parties were fully heard, as to whether an appeal could be |