sition à fin d'annuller, Tresting chiefly on the objections: 1. That the railway of an incorporated railway company is in the nature of a public trust inseparable from its corporate franchise, incapable of becoming an ordinary private property, and not seizable under legal process. 2. That, even if seizable at all, it must at any rate be dealt with in its entirety; whereas here, the seizure was of a part of the company's railway, and left unseized a large remainder in the districts of St. Hyacinthe and Bedford.

The plaintiff answered "that the debt, for to satisfy which the property taken in execution was seized, was a debt for which said property was specifically by law and statute of the Province made liable by first hypothec, and so declared by the judgment in this cause; and that by virtue of the premises, and of the facts of this case, and by law, plaintiffs had a right to seize and take in execution the said property as they have done."

DUNKIN, J., referred to the case of Abbott v. The Montreal and Bytown Railway Company, (1 L. C. Jurist, p. 1) as not establishing the validity of a seizure and sale by Sheriff of a railway. His Honor cited 1 Redfield 250, and held that, however acquired, the railway is a statutory whole, held for ends and under servitudes constitutive of an imperative public trust,-of a trust from which nothing short of authority by or under statute can free it, or any really material part of it. The franchise of the Company-using that term as covering the whole of that trust, the entire of what are sometimes called the various franchises of the Companysubsists in order to the railway, the railway by virtue of the franchise. The right contended for by the plaintiff was one which, if granted, would do infinitely more harm than good to railway mortgage bondholders. Imagine such goods held under peril of procedure at any moment, on default of prompt payment of all coupons, for an enforced sale, at suit of any bondholder,-not of franchise and road together, to the best possible advantage, and with all possible precaution in behalf of all interests -but of the road alone, as an immoveable that any Sheriff can sell and deed over as a thing of course, irrespectively of the franchise. Bonds, so held, of any railway ever so little liable to get into financial trouble could not, for any

legitimate purpose of investment, be worth the holding. Opposition maintained. E. Carter, Q. C., for opposants. N. W. Trenholme for plaintiffs contesting.

Quebec, March 11, 1878.
MCCORD, J.

IRVINE V. DUVERNAY et al.

Cause of Action-Libel-Newspaper-Publication. MCCORD, J. This is an action of damages for libel, brought against the proprietor of the Minerve newspaper.

It is met by a declinatory exception, founded on the grounds: 1st. That the defendants are not domiciled within the jurisdiction of the Court; 2nd. That they have not been personally served within that jurisdiction; and 3rd. That the cause of action did not originate in this district, but in that of the domicile of the defendants; and the publication of the libel, if any, took place at Montreal.

The first two of these grounds suffer no contestation, and the only question arises upon the third.

The facts which give rise to this question are notorious, and are admitted in the record. The defendants mail their paper at Montreal, addressed to a great number of subscribers and to public reading rooms in Quebec.

That they published their newspaper in Montreal is certainly true; but this is no ground of declinatory exception, because it is equally true that they also published it in the city of Quebec.

They are charged with having published a libel in Quebec. This is the real cause of action. The fact of their having caused the libel to be inserted in the newspaper at Montreal, as the plaintiff himself alleges, is an additional fact, which in no manner diminishes his right of action; for that right is complete without it-the mere publication of a libel being a sufficient cause of action.

The simple question comes to this: Does a person who mails in Montreal libellous matter to a number of individuals and to public reading rooms in Quebec, who receive and read the same, publish that matter in Quebec?

I am of opinion that he does, and am borne out by decisions in England which would seem to have been adopted in the United States.

Greenleaf, on Evidence, vol. 3, No. 173, p. 148, says: "The publication must be proved to have been made within the county where the trial is had. If it was contained in a newspaper * printed in another State, yet it will be sufficient to prove that it was circulated and read “within the county. If it was written in one county and sent by post to a person in another, for its publication in another county be otherwise consented to, this is evidence of a publication in the latter county."

Dubord, and some time after, she sublet the same store to the plaintiff, with the consent of the landlord, who intervened in the lease. Subsequently, the defendant having refused to give possession to the sub-tenant, the latter took an action of ejectment in his own name.

F. X. Archambault, for defendant, contended that the action in ejectment pertained to the lessor only.

The Court maintained the action.
J. Doutre, Q.C., for plaintiff.

F. X. Archambault for defendant.

regards the jurisdiction of the Court, and the place where the right of action arose in a civil case, are analogous matters. And Greenleaf is evidently of that opinion, for in his 2nd vol., which treats of evidence in civil matters, he also says, No. 416, p. 368: "The sending of a letter by the post is a publication in the place to which the letter is sent."

And by the foot note it will be seen that he bases himself upon the English case of R. v. Watson. The case of R. v. Girdwood is also in point. I am aware that the decision, in the case of Tremblay v. White & al., rendered not long ago, in this district, is against me, but I am sorry that I have not been able to bring my own opinion to coincide with it.

The learned counsel for the defendants stated at the argument, that it was the postal authorities who published the paper in Quebec, but these postal authorities are merely part of a machinery which the defendants knowingly made use of; they were not ordinary agents who would have had an option to act or not to act, and even if they had been such agents, the defendants would still be responsible for what they themselves had done per alium and therefore per se.

Exception dismissed with costs.

R. B. St. Young for plaintiff.
Mackay & Turcotte for defendants.

Montreal, March 19, 1878.
PAPINEAU, J.
JAEGER V. SAUVÉ.

Lessor and Lessee-Ejectment, action of, may be brought by Lessee.

The defendant leased a store from one

Montreal, March 15, 1878. TORRANCE, J.

SUN MUTUAL LIFE INSURANCE CO. Non-resident-Power of Attorney.

"The

The plaintiffs described themselves as Globe Mutual Life Assurance Company, a body corporate and politic, duly incorporated according to law, and having its head office and principal place of business in New York, in the State of New York, one of the United States of America, and having an office and doing business in the City and District of Montreal."

The defendants moved that plaintiffs, as non residents, be ordered to give security for costs; but the motion was rejected by Dorion, J. (1 Legal News, p. 53) "considering that plaintiffs have alleged in their writ and declaration that they have an office and place of business in the City and District of Montreal, in this Province, where they carry on business, and that they cannot be considered as absentees for the purposes of the said motion."

The defendants then filed a dilatory exception, praying for a stay of the proceedings until the plaintiffs should have produced a power of attorney, under C.C.P. 120, as non-residents.

TORRANCE, J., in giving judgment maintaining the exception, referred to the decision by Mr. Justice Dorion, that the plaintiffs, doing business in Montreal, and having made a deposit of $100,000 with the Minister of Finance at Ottawa, under 31 Vict. c. 48, did not come under the rule of C.C. 29. That decision being contrary to the one rendered in The Niagara District Mutual v. Macfarlane, 21 L. C. Jurist 224, his Honor considered it proper to look to the reason of the rule and the exceptions to it. The rule had always existed, and among the

majority of nations. By the French law foreigners were obliged to give security for costs when they instituted an action. L'Ancien Denizart, Vo. Cautio judicatum solvi. The chief exception was where the foreigner had immoveable property in France. Pothier, Personnes, Tit. II, p. 577. The rule of the C. C. 29 (Quebec) required security from non-residents in Lower Canada, and that rule was taken from the Provincial Statute, 41 Geo. III, c. 7, s. 2. The reason of the rule was the same in the modern French law. 2 Carré & Chauveau, p. 155-172 ; C. C. Nap. 16; C. C. P. Nap. 166, 167; 1 Demolombe p. 308, n. 253; Fisher's Digest, Vo. Costs, pp. 2028-2030; Kilkenny and Great Southern & Western Railway Co. v. Fielden, 6 Exchequer Cases, 81. The foreign plaintiffs here argued that having a business agency in Montreal, and having made the usual deposit of money with the Government at Ottawa, they were not bound to give security for costs. His Honor remarked on this that the plaintiffs were non resident notwithstanding that they have an agency in Montreal, and they had nothing but personal property, if any, in Montreal. Further, as to the deposit at Ottawa, it was a security for the policy holders, and this was not an action by a policy holder, or against one, but an action for libel. And even if the deposit were a security available to all, it was not a security in the Province of Quebec. The plaintiffs were non-resident in the terms of C.C. 29, and it was therefore the duty of the Court to maintain the dilatory exception.

Exception maintained.

Greenshields for plaintiffs.
S. Bethune, Q. C., for defendants.

COURT OF REVIEW.

Montreal, Feb. 28, 1878. TORRANCE, J., DUNKIN, J., RAINVILLE, J. [From S. C., St. Francis.

In re DUSSAULT et al., insolvents, and DESEVE, claimant, and PREVOST et al., contestants. Trader Marriage Contract-Registration. The claimant, who was the wife of one of the insolvents, claimed from the estate of her husband, $1120 under their marriage contract, dated 15th February, 1868, and registered 23rd June, 1868. The claim was contested on the ground that the husband was a trader, and that

the marriage contract was not registered until long after the day fixed by law. The Court at Sherbrooke maintained the contestation, under the Insolvent Act of 1864, sec. 12, par. 2, which requires the marriage contract of every trader to be registered, in the registration division in which he has his place of business, within thirty days from the execution thereof. The claimant's husband was styled a trader in the | contract.

In review the judgment was confirmed, the Court holding that the non-registration of the marriage contract of the trader within thirty days from the execution thereof, was a bar to the wife's claim against his estate.

Judgment confirmed.

Hall, White, & Panneton for claimant.
Davidson & Cushing for contestants.

COMMUNICATIONS.

THE SUPREME COURT.

To the Editor of THE LEGAL NEWS:

SIR,-May I ask the reason why the Supreme Court is so excessively slow in rendering judgments? It cannot be pretended that the judges are overwhelmed with work—they have comparatively very little to do. What then can be the reason for their being so excessively deliberate? Surely they do not need six months to make up their minds as to the merits of the cases argued before them. They have every facility the Privy Council possesses, yet what a vast difference in the dispatch of business before the two Courts. In the one, judgment almost invariably immediately after the arguments-in the other, six months' incubation on the record. The injustice worked to the parties by such delay is very great, and is without

excuse.

If this state of things is allowed to continue, farewell to the idea of diverting appeals from the Privy Council. Despite of the heavy expense, all, or very nearly all, the important cases in the Province of Quebec are taken to England. The members of the profession dis-trust the ability of judges who. as a rule, keep cases six months under advisement.

The Supreme Court at present is looked upon with great distrust; if the miserable system of