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by persons capable of performing the duties thereof with honor and Brassard et al. integrity; and whereas it is expedient for the more certain attainment of this importaut object, to establish more effectual regulations with regard to the profession and the interests of the members thereof, it is enacted-that all advocates, &c, admitted as such at the time of the passing of this act shall be and form a corporation under the name of the Bar of Lower Canada."

The Bar then was incorporated in order that more effectual regulations should be established, that none but persons of honor and integrity should exercise the profession of advocates, &c., in Lower Canada.

The legal profession is not elsewhere incorporated that I know of, certainly not in England nor in France, nor in the United States of America.

The Bar of Lower Canada having become a corporation, that is, an artificial being, invisible, intangible and existing only in contemplation of law, and the right of the members to practice the profession having become a corporate franchise, in lieu of a right largely derived from the Bench, the relation of the members of the Bar to the Bench has undergone a change which I shail not undertake to define. The Courts are invested with no special powers, disciplinary or other, over the corporation of the Bar, and hence they possess only those which the common law gives them over all corporations, public and private, and none other. On the other hand, all corporations have known powers of discipline over their members as incident to incorporation: the Bar possesses these and any specially conferred by its act of incorporation.

It is necessary, moreover, to bear in mind the nature, extent and conditions of the remedy by prohibition. The prerogative writs proper of England, of which prohibition is one, so termed in distinction of writs of right, do not exist in this Province. A remedy of the same nature, but stripped of its prerogative features, and not to be distinguished from ordinary civil actions, for the protection of private rights, exists by statute; it commences with a writ of summons to which is attached an information or petition praying the Court, by its judgment, to grant the redress embraced by prerogative writs in England. The 998th article of the Code of Procedure, which regulates the matter, is in the following words: "The summons for that purpose (mandamus, quo warranto, and prohibition) must be preceded by the presenting to the Superior Court, or to a Judge, of a special information containing conclusions adapted to the nature of the contravention, and supported by an affidavit to the satisfaction of

upon

such

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the Court or Judge, and the writ of summons cannot issue information without the authorization of the Court or Judge." It is Brassard et al. thus made a condition precedent to the inauguration of proceedings in prohibition that they should be authorized by the Superior Court or a Judge thereof, and this is the only feature peculiar to this remedy not attaching to ordinary actions. So much for the remedy; now for its extent and scope.

Proceedings in prohibition are never, allowed, except in cases of usurpation or abuse of power by a Court, and not then unless there are no other remedies adequate to afford relief. If the Court has jurisdiction of the subject matter, a mistaken exercise of that jurisdiction or of its acknowledged powers will not warrant a resort to the extraordinary remedy by prohibition. In all cases where the Court has jurisdiction of the subject of controversy, it matters not whether it has decided correctly or erroneously; its jurisdiction existing, no prohibition lies. Nor will prohibition be allowed to take the place of an appeal, it is in no sense an appellate process, but an original one, not employed in the revision of a cause already adjudged, but itself originating a cause; it is substantially a proceeding between two Courts, a superior and an interior, and is the means by which the superior tribunal exercises a superintending and controlling power over the inferior and keeps it within the limits. of its jurisdiction. This remedy goes no further than to restrain an inferior Court; it, in no case, commands the inferior tribunal to render any specific judgment.

The prohibition then must issue from a compeient Court, that is one having a controlling and reforming power over other Courts, and must be directed to a Court guilty of usurpation of power-these are essential conditions.

I shall now give such sections of the act incorporating the Bar as are necessary to judge of the validity of the acts of the Council of the Section on the accusation of the plaintiff.

"29 and 30 Vict., chapter 27.-An act respecting the Bar of Lower Canada.

"Sec. 1.-All advocates, barristers, attorneys, solicitors and proctors at Law in Lower Canada shall form a corporation under the name of 'The Bar of Lower Canada,' which said corporation shall be divided in four sections, &c.

"Sec. 3.-The corporation may make all such by-laws, rules and orders as it deems necessary for the interior discipline and honor of the members of the Bar; to regulate admission of candidates to the study or practice of the law, for the management of the property of the

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corporation, and generally all by-laws, rules and orders of general Brassard et al. interest to the said corporation and the members thereof, and necessary to insure its well working; which said by-laws and orders the said corporation may change, alter, modify and repeal whenever it shall deem necessary.

"The said by-laws, rules and orders shall not be contrary to the laws of Lower Canada, nor the provisions of this act."

Section 9 authorizes the Councils of Sections to make by-laws for certain purposes.

"Sec. 10.-The Council of each section shall, in and with regard to such section have power,

"First, for the maintenance of the discipline and honor of the body; and as the importance of the case requires, to pronounce, through the Batonnier, a censure or reprimand against any member guilty of any breach of discipline, or of any action derogatory to the honor of the Bar; and the Council may deprive such member of the right of voting, and even of the right of assisting at the meetings of the section, for any term whatever in the discretion of the said Council, not exceeding five years, subject only to appeal to the general Council, as hereinafter provided.

Sec. 18. In all cases where a member of the bar is accused of any offence and of any contravention of the provisions of this act, before the Council of the section to which he belongs, the accusations shall be decided by a viva voce vote of guilty or not guilty, of the absolute majority of the members of the Council of the section.

Sec. 19.-The manner of proceeding on all accusations brought by the Syndic shall be as follows:

"When the Syndic receives on oath of one or more credible persons (which oath the said Syndic shall administer) a complaint against any member of his section affecting the honor, dignity, interests or duties of the profession, he shall submit the said complaint without delay, to a meeting of the Council specially called for the purpose, and if it is considered by the Council that the matter requires investigation, he shall order an accusation to be brought against such member."

"Sec. 23.-Any member who shall consider himself aggrieved by the final or interlocutory judgment rendered by the Council of the section in respect of the accusation made before it, shall not have power to appeal, except to the general Council in the manner hereinafter prescribed; and no judgment of the Council of one of the sections rendered in virtue of this act shall be reversed, except by means of the appeal in this act mentioned."

These are all the portions of the act of incorportion, that it seems to me necessary to have in mind.

Supposing for the moment that the Council of the Bar could and should be restrained by prohibition, to what Court did the authority belong to commence and prosecute such proceedings? This is regulated by statule.

Consolidated Statutes of Lower Canada, chapter 78, establishes a Superior Court, as follows:

"Sec. 2.-The Superior Court has original civil jurisdiction throughout Lower Canada, with full power and authority to take cognizance of, hear, try and determine, in the first instance and in due conrse of law, all civil pleas, causes and matters whatsoever, as weli those in which the Crown may be a party as all others, excepting those purely of Admiralty jurisdiction, and excepting also those over which original jurisdiction is given to the Circuit Court.

"Sec 4.-Excepting the Court of Queen's Bench, all Courts and magistrates, and all other persous and bodies politic and corporate within Lower Canada, shall be subject to the superintending and reforming power, order and control of the Superior Court and of the Judges thereof, in such manner and form as by law prescribed."

Having the jurisdiction of the Superior Court, I will now give that of the Court of Queen's Bench.

Consolidated Statutes of Lower Canada, chapter 77, establishes the Court of Queen's Bench.

"Sec. 4.-The said Court and the Judges thereof shall have, hold and exercise an appellate civil jurisdiction, and also the jurisdiction of a Court of Error, within and throughout Lower Canada, with full power and authority to take cognizance of, hear, try and determine in due course of law, all causes, matters and things appealed or removed by writ of appeal or error, from all Courts and jurisdictions wherefrom an appeal or writ of error by law lies or is allowed, unless such appeal or writ of error is expressly directed to be to some other Court.

"Sec. 23-An appeal shall lie to the Court of Queen's Bench as a Court of Appeal and Error from any judgment of the Superior Court for Lower Canada in any district, in all cases where the matter in dispute exceeds £20 sterling.

"Sec. 26. The party meaning to appeal from any definitive judgment of the Superior Court shall sue out a writ from the Court of Queen's Bench, in the exercise of its jurisdiction as a Court of Appeal and Error, under the seal of the said Court, and signed by the Clerk

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of Appeals or his deputy, stating that the appellant complains of being Brassard et al. aggrieved by the judgment appealed from and commanding the Judges of the Superior Court, or any one of them, to send up the original papers and proceedings, forming the records or found in the registers of the Court, concerning the same.

Sec. 3 admits of appeals from certain interlocutory judgments of the Superior Court.

"Sec. 4.-But such appeal from an interlocutory judgment shall not be granted and allowed, unless the party desiring. to obtain the appeal or his attorney, obtains a rule, upon motion made in the Court of Queen's Bench and served upon the other party or his attorney, to shew cause why a writ of appeal from such interlocutory judgment should not be granted."

These premises will be sufficient, I hope, to enable the junior member of the profession to form an opinion, and I shail now come to the case.

Ih the month of February, 1875, the Council of the Section of Quebec of the Bar of the Province of Quebec, entertained an accusation brought against the plaintiff by the Syndic of the Bar, under the provisions of the act of incorporation of the Bar, and found him guilty of conduct derogatory to the honor and dignity of the profession and suspended him.

On the 27th of February, 1875, the plaintiff presented in Chambers a petition. praying that proceedings in prohibition against the Council of the section should be authorized; it is the same petition upon which the Superior Court rendered the judgment now under review. This authorization I declined to grant.

Whereupon the plaintiff issued a writ of appeal de plano to the Court of Queen's Bench, upon which appeal was rendered the following judgment:

"COURT OF QUEEN'S BENCH, (Appeal Side).

"Montreal, Tuesday, 22nd June, 1875. "Present:-The Hon. A. A. DORION, Chief Justice; and Hon. Justices MONK, TASCHEREAU, RAMSAY and SANBORN.

"John O'Farrell, of &c., Advocate, (Petitioner for writ of prohibition in the Court below,)

"The Council of the Section of the District of Quebec of the Bar of the Province of Quebec, and the Syndic A. R. Angers, and H. Brassard, of &c.,

Respondents.