section of the District Magistrates Act as it stands amended. In the original Act it reads thus: "The Act chapter 102 of the Consolidated Statutes of Canada, respecting the duties of Justices of the Peace out of Sessions, in relation to persons charged with indictable offences, and the Act chapter 103 of the said Consolidated Statutes of Canada respecting the duties of Justices of the Peace in relation to summary convictions and orders, shall apply in so far as may be consistent with the provisions of this act, to all proceedings had before such District Magistrates." And it was amended by inserting before the words "shall apply," the words, "in so far as the said Acts have not been repealed by the Parliament of Canada," and also by adding at the end of the section the words, "and the Acts of the Parliament of Canada 32-3 Vic, cc. 30 and 31 shall likewise apply to all proceedings had before the District Magistrates." At the time of this amendment chapter 102 of the Consolidated Statutes, relating wholly to criminal matters, and, therefore, wholly beyond the reach of Quebec legislation, in fact stood repealed, with the exception of a single section, the Act 32-3 Vic., c. 30, being substituted in its place; and, therefore, neither the one nor the other could apply to any proceeding before a District Magistrate, as to which the Quebec Legislature had power to enact anything. And chapter 103 of the Consolidated Statutes, relating partly to Provincial and partly to Dominion matters, stood (as has been already shown) in full force as to the former, and had been in the main repealed as to the latter only, by substitution for it pro tanto of the Act 32-3 Vict., c. 31; so that both could not possibly apply to the same proceeding, and the latter could not apply to any proceeding as to which the Quebec Legislature could enact anything. Limited, however, as the whole section is, by the terms of the new Section 32, already cited, it claims really to enact nothing as to any matter not within the exclusive control of the Province. Chapter 103, in so far as it may be consistent with the provisions of the District Magistrates Act, is made applicable to proceedings under control of the Province; and the other Acts named are recognized as applying in so far (that is to say) as Dominion Legislation may direct, to proceedings under control of the Dominion. The question of the meaning to be given to the word "civil" in the 29th section thus stands unaffected by this wording of the 10th. Another objection may be suggested from the terms of the 195th section of the Quebec License Act, which provides thus: Unless, within 48 hours after any conviction, judgment or order, in any case under this Act, the defendant deposits in the hands of the clerk of the Justices or Court, the full

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amount of the penalty or sum, and all costs, no such suit, prosecution, conviction, judgment or order, shall be removed by certiorari or otherwise, into any of Her Majesty's Courts of Record; nor shall any notice of application for certiorari suspend, retard or affect the execution of any such conviction, judgment or order, nor, unless such deposit has been made, shall any appeal whatever be allowed from any such conviction, judgment or order, to any Court of General or Quarter Sessions." The applicant (as already stated) has made the deposit in question. But the section does not admit of being read as bearing on the question here in issue. It is an enactment purely and simply restrictive of the right to certiorari in regard to License Act cases generally, and has no reference to any question of the liability or nonliability to certiorari, of any particular tribunal that may be called to deal with any of them; and it can by no means be held to abate in favor of that right, a restriction subsisting under other enactment, in respect of such particular tribunal itself. The Quebec Legislature, then, having under the 92nd Section of "The British North America Act, 1867," exclusive control in respect of the licenses dealt with by the Quebec License Act, and of the imposition of punishment by fine, penalty or imprisonment, for enforcing its laws in that behalf, and, therefore, of the procedure to that end, which procedure again is therefore not criminal but civil; and the Quebec License Act making such civil procedure a matter cognizable by a District Magistrate; the Court must hold that under the 29th Section of the District Magistrates Act, the right to certiorari is taken away in respect of it. This being so, it only remains to add, that the Court does not find the averments of fact embodied in the affidavit of circumstances, such as to require or warrant in this special case, the issue of a writ, notwithstanding the letter of the statute to the contrary. It is obvious to remark, in reference to what may be termed the exceptional right of this Court (settled as matter of sound principle and unquestioned jurisprudence) to issue writs of certiorari in apparent contradiction to statute, that it is a right to be exercised with the utmost precaution, and only in those special cases of manifest want or excess or mere color of jurisdiction, which the statute cannot have been meant wrongfully to protect. And in enquiring whether or not a case is of this description, no doubt or conjecture can be resolved otherwise than favorably to the jurisdiction, in behalf of which the statute has interposed the letter of its veto against the writ. Now the 150th section of the Quebec License Act brings into force, in respect of prosecutions under that Act, such provisions only of chapter 103 of the

Consolidated Statutes of Canada as are inconsistent with the provisions of that Act, and as apply to matters not in that Act expressly provided for. And the 53rd section of that Act expressly authorizes the arrest, without process or formality of any sort, of any pedlar, either being unlicensed, or (if licensed) refusing or neglecting to produce his license, and his being carried (still without process or formality) within 48 hours of such arrest before District Magistrate for prosecution forthwith. Neither affidavit or affirmation, nor yet summons or warrant, is or can be necessary for this, or in order to vest in the District Magistrate jurisdiction over the charge thus unceremoniously initiated. According to the affidavit of circumstances, this was the course taken with the applicant. A written "declaration" (so styled in terms of the License Act, and exhibiting the charge in manner and form as thereby required) was immediately put in by the Revenue Officer; and to this, the applicant, present and assisted by Counsel,-while objecting to the proceedings, pleaded not guilty." His complaint that there was not, besides this declaration, a summons or warrant then served on him,--whatever it might or might not be worth, were the mere regularity in point of form of the procedure the matter for inquiry,can have no bearing on the one question here relevant, that—namely--of the District Magistrate's jurisdiction over the case itself. He complains, again, that the declaration and conviction fail to charge the offence as committed within the limits of the Revenue Officer's district, and are faulty in other unspecified particulars. But, in fact, as already stated, both declaration and conviction closely followed the statutory forms which the 204th Section of the Act declares "shall be sufficient." And as to mention of the limits of the Revenue District, that is a detail not required or indicated by those forms, and therefore cannot possibly be a matter essential in respect of jurisdiction, whatever it may or may not be from the point of view of mere procedure. So, too, the alleged re-opening of the case, on the Revenue Officer's motion, opposed by the applicant, and the averment that no legal and sufficient proof was made, raise only questions of procedure, and not that of jurisdiction. His complaint further runs, that the conviction adjudges penalty and costs, and makes both payable to the Revenue Officer. But, supposing even that argument admits of being raised on this point, a supposition, however, which (in view of the tenor of Sections 140 and 184 and Forms D and F of the License Act, and of Section 28 of the District Magistrates Act) the Court must guard itself from being thought to countenance, such argument would again touch, not the

jurisdiction of the District Magistrate over the subject matter, but only the correctness of his judgment. Whether or not all that the District Magistrate may have done in respect of any of the proceedings connected with this case, was rightly done, is not here in issue. The law made him judge in that behalf, when this prosecution was before him; and it withholds from this Court the right to bring his acts as such judge, under its review, by writ of certiorari. The application must therefore be rejected, with costs. Application for certiorari rejected (1). (16 J., 188; 12 R. L., 480.)

F. E. GILMAN, for applicant.

ERNEST RACICOT, for Revenue Officer.

DEPOSIT IN REVIEW.

SUPERIOR COURT, IN REVIEW, Montreal, 22nd April, 1872.

Coram MACKAY, J., TORRANCE, J. BEAUDRY, J.

MORRISON ES WILSON and è contra.

Held: That, where an inscription in review is made by defendant, of a judgment deciding at once the merits of a principal demand and of an incidental demand, only one deposit under C. C. P. 497, is necessary. (16 J., 196.)

F. E. GILMAN, for plaintiff and incidental defendant.
J. J. DAY, Q. C., for defendant and incidental plaintiff.

PLEADING. PRACTICE.-GUARDIAN.

SUPERIOR COURT, Montreal, 22 June, 1871.

Coram TORRANCE, J.

MILLER 28 BOURGEOIS et HOLLAND et al., mis en cause.

Hold On demurrer, 1o that a plea which is good in part, and bad in part, should be rejected. 2nd That a voluntary guardian cannot claim fees. (2)

(1) A similar judgment was rendered in the case No. 112, Ex parte Marquis for certiorari.

(2) Un plaidoyer qui conteste une partie de la demande, et fait des offres pour le reste qu'il consigne, mais conclut an débouté de toute l'action, est insuffisant et irrégulier, et il sera rejeté sur réponse en droit. (McDougal vs Morgan C. S. Montréal 30 décembre, 1853. DAY J., SMITH J., et C. MONDELET J., P. D. T. M., p. 8, et 2 R. J. R. Q., p. 326.)

PER CURIAM: The case is before the Court on an answer in law to the answer made by the mis en cause, Holland et al., to a rule taken upon them by the defendant to produce certain property of which they had been appointed voluntary guardians. The mis en cause answered in writing to the rule, that they were ready to deliver the property, "upon payment to them of the costs and charges incurred by them in and about the guardianship of said coal, and their fees as guardians thereof, amounting in all up to the date thereof, to the sum of $3,058, as detailed in the statement of account, hereunto annexed, and herewith filed to form part thereof." The defendant has demurred to this answer, on the ground that the mis en cause, as guardiens volontaires, could not make such claim for frais de garde. There is no doubt that the voluntary guardians have no claim for fees or compensation for services against the defendant naming them. The office is voluntary and gratuitous, and Jousse, in his commentary on the ordonnance de 1667, for this reason likens such a guardian to a dépositaire. Tit. 19. On the other hand, the guardians have a to right be re-imbursed their necessary expenses, C. C. 1812. The answer of the guardians is therefore, in part bad, and in part good, but as it does not fully answer the rule, and the conclusion demanding $3,058, does not legally flow from the premises, it is dismissed, with costs, the parties mis en cause to be allowed three days to put in another answer, if they should be advised to do so, claiming their expenses, but not any fees. Demurrer maintained. (1) (17 J., p. 155.)

GIROUARD and DUGAS, for defendant.

RITCHIE, MORRIS and ROSE, for Hollands.

(1) Vide Chitty, pleading, p. 524, and Stephens, pleading, p. 242. Chitty says: "If a plea profess in its commencement to answer the whole cause of action and, afterwards, answer only a part, the whole plea is bad and in this instance, the plea being insufficient, the plaintiff's course is to demur generally or specially. Comyn, Digest vo Pleader, E. 36: "Plea bad in part, is bad for the whole.'