Noël v. La Cour des Sessions de la Paix and Le Collège des Médecins et Chirurgiens de la P

son v. Bain (1) ), but deliberately elected to proceed to trial without doing so. At the trial, the trial judge having ruled that, on the state of the pleadings, the defence was . not open, no application was made for leave to amend, nor does the appellant company appear to have asked for such leave in the Court of Appeal. Such being the history of the proceedings, the appeal and the litigation must now be determined upon the pleadings as they stand.

The appeal is dismissed with costs.

ALPHONSE NOEL

LA COUR DES SESSIONS DE LA PAIX

LE COLLEGE DES MEDECINS

ET CHIRURGIENS DE LA PRO- VINCE DE QUEBEC

APPLICATION by the intending appellant for an extension of time to permit of his asking for special leave to appeal.

The intending appellant moved before Anglin C.J.C. in chambers for an extension of time to permit of his asking for special leave to appeal, under the proviso to section 41 of the Supreme Court Act, such leave having been refused by the Court of King's Bench.

8.C.R.]

The proposed appeal is from a judgment of the Court of King's Bench, confirming the decision by the Superior Court, refusing a writ of prohibition to the Court of Sessions of the Peace. The appellant had been convicted by that court of practising medicine illegally and contrary to 213, R.S.Q., 1925. For this offence he had been condemned to pay a fine of $50, or, in default, to suffer sixty days imprisonment. By the present action, it was sought to prevent the enforcement of this punishment.

P. Dubois for the motion.

P. St. Germain K.C. contra.

C.J.C.-The proviso to s. 41, notwithstanding the wide terms in which it is couched, is necessarily restricted in its application to cases within s. 41 itself, i.e., to cases in which the appellate court had jurisdiction, if so advised, to grant special leave to appeal to this court under The proviso is based upon a refusal of such leave by the appellate court. It therefore presupposes the right or power in that court to grant such leave and that it has refused to exercise that right or power. But, under the terms of s. 41, such power only exists in cases within s. 36, and the granting or refusal of prohibition in a criminal case is expressly excluded from our jurisdiction by that section, which defines the subjects of appeal to this court. This court is purely statutory in its origin and in its jurisdiction. There would be no object, therefore, in extending the time to enable the appellant to apply for special leave to appeal under the proviso to s. 41 since that leave must necessarily be refused for want of jurisdiction to grant it. Application dismissed.