was not the right word. But assuming it not to be, it is a rule of law and good sense that where you have words used which have no application in their primary or strict sense, you must, if you can, apply them in a secondary or popular sense. And, therefore, if there is nothing that can be strictly called an appeal from quarter sessions, nor anything that can in any way be so called, except proceeding by certiorari, which in substance are appeals, the Legislature must be taken to have meant them. Still, I admit that if the enactment is of impossible application it must be disregarded. But is it? Let us examine the matter. I repeat, I speak with reserve. But, as I understand, where an order of quarter sessions is brought up on certiorari, and it is proposed to quash it, a rule for that purpose is obtained, and made absolute or discharged. I refer to where there is no case stated, but where a defect on the face of the order is alleged to exist. It must be admitted that there is no difficulty in applying the statute to such a case. Is there where there is no defect on the face of the proceedings unless the special case is referred to ? I see none. No doubt the origin of the matter was as the Lord Chief Justice mentions in his judgment. No doubt it was a contrivance to get the opinion of the Queen's Bench. No doubt it was an opinion asked for which the sessions might have disregarded, but has not this mos pro lege become lex? The procedure is the same as when a defect on the face of the proceedings is relied on, except that a rule nisi is taken as granted. Has not the Legislature said if the sessions want the opinion of Queen's Bench they must seek it, subject to that opinion being revised by the Court of Appeal? If they can disregard the opinion of the Queen's Bench, so they can that of the Court of Appeal; if they do not choose to ask it subject to revision, they can still refuse to do so. Is it to be supposed that where a case is granted and stated, and there is also an alleged defect on the face of the proceedings independently of the case stated, the Court of Appeal may examine the latter and not the former matter? Or is it said that appeal lies where there is a defect on the face of the proceedings, but not where a case is stated? On the substance of the matter I cannot see why there should not be an appeal in these cases. They continually involve questions of the utmost importance. As to the expense, with all submission be it said, the Legislature, which has passed a law that has given a power to make the trumpery appeals that are made, was not likely to be deterred by that consideration in these sessions cases, in which thousands are often at stake, especially as there must be leave to appeal. I ought to mention one matter which tells against the appeal possibly, viz., that in some cases the order of sessions is neither quashed nor affirmed, but sent back with a direction or opinion. But if we look at the substance of the matter it is equally a decision, as much as a direction for a new trial, which is no judgment on the case. I am of opinion that an appeal lies, and that the case should be considered on the merits. I am also of opinion that even if we cannot consider the question arising on the case stated, we have jurisdiction to hear the appeal, and that our judgment should be that it be dismissed, because the judgment below is right as far as we have power to examine it. COCKBURN, C.J.-This is an appeal from the

decision of the Queen's Bench Division, affirming the order of the court of quarter sessions for the borough of Walsall, on an appeal against a poorrate made on the respondents (that is, the appellants from the rate, the London and North-Western Railway Company). The question with which in the present stage of this appeal we are alone concerned is whether this court has any appellate jurisdiction to review a decision of the Queen's Bench Division in the matter of a poor rate. I am of opinion that it has not. It is true that by the 19th section of the original Judicature Act it is enacted that the Court of Appeal shall have jurisdiction and power to hear and determine appeals from any "judgment or order" of the High Court of Justice, or of any judges or judge thereof. The fallacy in the reasoning which seeks to apply this enactment to the decision of the Queen's Bench Division in the matter of a poor rate consists in treating such decision as a "judgment or order" within the meaning of this section. To see this it is, as it seems to me, only necessary to examine in what the juris diction of the Queen's Bench Division in the matter of an appeal against a poor rate-if it can be properly called jurisdiction-consists, and how it arises. It is familiar knowledge that in matters relating to the maintenance of the poor, the Court of Queen's Bench has never, from the first establishment of the poor law, had jurisdiction, either as a court of first instance, or as a Court of Appeal, except, as regards the latter, as far as the court of quarter sessions has, of its own free will and mere motion, submitted its judgment to the opinion of the court. And the reason is plain. By the statutes by which provision is made for the maintenance of the poor the jurisdiction over matters connected with it is vested exclusively in justices of peace in petty sessions in the first instance, and in justices in quarter sessions on appeal. Of this the language of the statutes admits of no doubt whatsoever. By the 43 Eliz. c. 2, s. 6, it is enacted: "That if any person or persons shall find themselves grieved with any cess, or tax, or other act done by the said churchwardens and other persons, or by the said justices of peace, that then it shall be lawful for the justices of the peace at their general quarter sessions, or the greater number of them, to take such order therein as to them shall be thought convenient, and the same to conclude and bind all the said parties." By a later Act, the 17 Geo. 2, c. 38, s. 4, it is enacted: "That in case any person or persons shall find him, her, or themselves aggrieved by any rate or assess. ment made for the relief of the poor, or shall have any material objection to any person or persons being put on or left out of such rate or assessment, or to the sum charged on any person or persons therein, or shall have any material objection to such account as aforesaid, or any part thereof, or shall find him, her, or themselves aggrieved by any neglect, act, or thing done or omitted by the churchwardens and Overseers of the poor, or by any of His Majesty's justices of the peace, it shall and may be lawful for such person or persons, in any of the cases aforesaid, giving reasonable notice to the churchwardens or overseers of the poor of the parish, township, or place, to appeal to the next general or quarter sessions of the peace for the county, riding, division, corporation, or franchise where

such parish, township, or place lies; and the justices of the peace there assembled are hereby authorised and required to receive such appeal, and to hear and finally determine the same.' In like manner by the Act of 13 & 14 Car. 2, c. 12, by which the law of settlement was established, the appeal given to any persons who think themselves aggrieved by orders of removal is to "the justices at quarter sessions, who are required to do them justice according to the merits of the case." No ulterior appeal is given to any other court. Exclusive jurisdiction being thus given to the justices in petty sessions in the first instance, and to the quarter sessions on appeal, it has been long settled that when once this jurisdiction of the Court of Quarter Sessions on appeal has been exercised, the Court of Queen's Bench has never had, and the Queen's Bench Division of the High Court of Justice, which has taken its place, therefore cannot have any authority whatsoever, except when put in motion by the sessions. If, indeed, the court of quarter sessions refuses to exercise jurisdiction when it has it, the Court of Queen's Bench will by mandamus compel that court to hear and determine, in the same manner as it will prevent all other inferior courts from declining jurisdiction where it exists, and so refusing to do justice. But if the jurisdiction has once been exercised, however erroneous the decision, if the order of the quarter sessions be regular on the face of it, so that it appears therefrom that the order of the quarter sessions is within its jurisdiction and competency, the absence of which alone gives occasion to the interference of the Superior Court, the Court of Queen's Bench has from the earliest time declared itself incompetent to interfere, the simple reason being, as has been again and again held, that it has no appellate jurisdiction over the court of quarter sessions in matters which are within the proper jurisdiction of the latter, which an appeal against a poor rate undoubtedly is. Conclusive authority for this position is to be found in the following cases: In Rex v. Justices of Monmouthshire (4 B. & C. 844) the sessions on an appeal against an order of removal being equally divided as to the merits of the appeal, but being of opinion that the respondents ought to have proved the forty days' residence, but had not done so, quashed the order. A mandamus to compel them to re-hear the case having been applied for, the rule was discharged. Abbott, C.J. says: "I think the rule for a mandamus ought to be discharged. It appears that in this case the sessions have given their judgment. This court is not a court of error from that court. It may compel the sessions to proceed to hear and decide the appeal; but when they have so determined it this court cannot compel them to correct their judgment, if it appear to be erroneous. It is unnecessary to say whether the judgment pronounced by the sessions is erroneous, because we are of opinion that if it were so we have no authority to compel them to correct it." In a subsequent case of Rex v. Justices of Monmouthshire (8 B. & C. 137) the court of quarter sessions had been equally divided, but the equality had arisen from an interested justice having taken part in the decision. The court being thus divided, an order was entered for adjourning the appeal. A certiorari having been applied for to bring up the order for adjournment with a view to quash it as a nullity, inasmuch as the vote of

the interested justice ought not to have had any effect, the rule was discharged. Lord Tenterden says: "It is contended that, though the justices were divided in point of fact, in point of law the vote given by the party interested was a nullity, and that the sessions ought to have quashed the order. The late decisions establish that we cannot assume to ourselves the jurisdiction of a court of error, and review the judgment of the sessions. It is said that the sessions had not jurisdiction to make the adjournment. It is clear they had jurisdiction to make any order concerning the appeal, and, among others, the order that the hearing should be adjourned. Here a judgment has been pronounced by the sessions relating to a matter over which the court had jurisdiction; and, assuming their judgment to be erroneous, I think we have not jurisdiction as a court of error to review it." Even where a judg ment had been entered by mistake, owing to miscalculation of the votes, the Court of Queen's Bench refused to interfere. Lord Ellenborough, after pointing out that, on discovery of the mistake, application to correct it should have been made to the court of quarter sessions itself while still sitting, says: "No step of the sort was taken, but judgment was entered; and this court cannot, in order to supply a remedy, exercise a jurisdiction which does not belong to it :" (Rex v. Justices of Leicestershire, 1 M. & S. 442.) It has been settled since the cases of R. v. Oulton (1 Burrow S. C. 64) and Reg. v. Preston-on-the-Hill (Ib. 77) that a bill of exceptions does not lie from the judgment of a court of quarter sessions. In the latter case Lord Hardwicke, C.J. says: "This is a case of great consequence, and there may be very great inconveniences on either side. It hath been much wished that a bill of exceptions would lie to the justices at their sessions, because otherwise it may sometimes happen that they may determine in an arbitrary manner, contrary to the resolutions of the courts of law. For if the justices will not state the facts specially, though requested to do so, when the matter is doubtful, this is very blameable conduct in them, and it is to be wished that it might be avoided. On the other hand, there may be very great inconveniences arising from the abuse of bills of exceptions; and this matter for the settlement of the poor, which ought to be rendered cheap and speedy, may by such means be rendered dilatory, expensive, and burdensome." The reporter adds that "after the full hearing of the arguments on both sides the court were unanimous of opinion that a bill of exceptions doth not lie to the quarter sessions." Nevertheless, though it is thus clear, on reference to the statutes and the authorities, that the Court of Queen's Bench has no appellate jurisdiction, properly so called, in these matters, a practice became established, according to which the courts of quarter sessions in cases of difficulty submitted their judgment to the opinion of the Court of Queen's Bench, and either affirmed or quashed the orders appealed against according to its decision. Let us see what is the legal effect of the course thus adopted. The origin of this practice is matter of history. A full account of it is to be found in the learned judgment of Field, J. in the case of Reg. v. Chantrell (L. Rep. 10 Q. B. 587.) In remote times the jurisdiction of justices, as given by the commission of the peace, the terms of which are set forth in

than that it is entirely at the discretion of the sessions whether to grant a case, and so to submit their judgment to the opinion of the Court of Queen's Bench, or not. Even though the appeal should be one in which in the proper exercise of their discretion they ought undoubtedly to grant a case, but refuse to do so, there are no means of compelling them to state a case in order that their judgment may be reviewed; still less of compelling them to review it themselves, The decision of Lord Hardwicke and the Court of King's Bench in the cases of R. V. Oulton and R. V. Preston-on-the-Hill, has never been questioned, and is undoubted law. And the reason is obvious. A poor-rate, like an order of removal, is made under statutory power. As has been shown, the right of appeal given by the statutes to a party aggrieved is to the quarter sessions; and jurisdiction is given to that court to entertain and give judgment on such appeals, either by affirming or quashing the order appealed against; but no ulterior right of appeal is given. The appeal lies to the court of quarter sessions alone. The jurisdiction of the latter is absolute and final, and independent of that of any other court. No other court, not even the highest in the realm, has, under the statutes just referred to, any power to reverse or to interfere with the judg-❘ ments of a court of quarter sessions when once pronounced. One more observation remains to be made with reference to the jurisdiction of the quarter sessions, but it is a most import int one. A court upon which is imposed by Act of Parliament the duty of adjudicating in a particular matter between litigant parties cannot, unless authorised so to do as part of its statutory power, transfer or delegate to another the whole or any portion of its jurisdiction, or give to the decisions of such other court any binding force in law. In this exceptional and anomalous instance a practice a sort of mos pro lege-has grown up of the court of quarter sessions making its judgment depend upon the opinion to be pronounced by the Court of Queen's Bench. But the ultimate judgment must still be considered as that of the sessions, whatever may be the form it assumes. For the right of appeal, which is the creature of the statute, is to the sessions alone; the jurisdiction is given to the quarter sessions alone, without any ulterior appellate power being conferred on the Queen's Bench Division, or being capable of being transferred to it by the court of quarter sessions. If therefore the decision in such a case as the present were to be taken to be in point of law the judgment of the Queen's Bench Division, it would manifestly involve a usurpation of authority in the latter directly in the teeth of the statutes, which have in express terms enacted that the decision of the court of quarter sessions shall be final. What takes place on the hearing in the divisional court is quite consistent with this view. All that is done on the decision of the divisional court being pronounced is, that an entry is made in the master's book that the rule has been made absolute to affirm or quash the order of quarter sessions as the case may be, and a rule is drawn up accordingly, and a copy of it sent to the clerk of the peace for the information of the quarter sessions, and is copied by him into the minute-book of their proceedings. No instance has occurred in which the parties to the original order have failed to act on the decision of the

Court of Queen's Bench, nor does it appear clear what means could be resorted to to compel obedience if necessary, the court not having by the statute either original or appellate jurisdiction over the subject-matter. It thus appearing that in the matter of a poor-rate, or of an order of removal, the ancient Court of Queen's Bench had not, and consequently the present Queen's Bench Division of the High Court has not, any original or any appellate jurisdiction, what then is the jurisdiction which it now exercises in these matters ? I answer, consultative only. It directs the court of quarter sessions as to the law applicable to the facts stated in the special case. It supplies the conditions according to which the judgment of the quarter sessions is to stand or fall-that judgment being that the order appealed against shall be affirmed or quashed as the case may be, according to what shall be the opinion of the Queen's Bench Division. The intermediate decision is that of the Queen's Bench Divison. The ultimate judgment is that of the court in whom the jurisdiction is alone vested by the statute which creates the appeal, and by which court alone in legal theory it can be exercised. The divisional court has no authority whatever to pronounce any judgment whatsoever, the authority so to do being vested by the statutes in the court of quarter sessions alone; and the judgment is therefore of necessity that of the court to which alone the appellate jurisdiction belongs. Hence arises the form in which the matter is submitted to the courtnot in that of a judgment of the quarter sessions, to be affirmed or reversed by a judgment of the Court of Queen's Bench, but in that of a judgment which shall be capable of being moulded into an affirmative or negative one according to the "opinion" which the court shall pronounce to be the right one. And the form is not unimportant; it is that the judgment shall be affirmed or reversed according to-not the judgment or decision, but the "opinion" of the Queen's Bench Division. Nor could it be otherwise. For, the ultimate appeal being by the express provision of the statute in the court of quarter sessions, and the latter having no statutory authority to delegate any part of its jurisdiction, the Court of Queen's Bench could not possibly have or exercise an appellate jurisdiction which should have proprio vigore the force of law. It would be, as has been pointed out, a manifest usurpation on its part to assume it. In cases stated under the 20 & 21 Vict. c. 43 the law is altogether different. There the magistrate is under certain circumstances bound to state a case; and by the 6th section of the Act authority is expressly given to the court, on a case submitted to it by a magistrate, to "reverse, affirm, or amend " the conviction appealed against. Nothing of the kind exists where a case is stated by the quarter sessions for the opinion of the court on an appeal against a poor rate or an order of removal. But although no appellate jurisdiction is given directly or indirectly by the statute to the Court of Queen's Bench, and no authority is given to the court of quarter sessions to delegate its appellate authority to the former, beyond that of submitting to its opinion as to what the judgment of the court of quarter sessions should be, let us for the sake of argument suppose that the sessions can and do delegate their appellate jurisdiction to the Superior Court

CT. OF APP.]

by submitting the facts for its judgment as to the law. How can this operate so as to have the effect of involving a further submission to the decision of a third court, which is not the divisional court, because such court may have in general appellate jurisdiction over orders and judgments of the Queen's Bench Division, and thus have the effect of extending the submission without the assent of the court of quarter sessions ? To grant or refuse a case is, as we have seen, in the uncontrolled discretion of the quarter session.s They have given their judgment subject to the opinion of the divisional court on the case which they thought proper to grant. By that opinion. their judgment is to stand or fall. But how will it do so if the opinion of the Queen's Bench Division shall be reversed by the decision of this court in the exercise of its appellate jurisdiction, a jurisdiction in respect of this class of cases hitherto unknown and unheard of? How in that event could it be said that the order, which was to be affirmed or quashed (as the case might be), according as the opinion of the Queen's Bench Division might be one way or the other, was rendered valid or invalid in conformity to the opinion of that court, if its decision is reversed? A decision reversed becomes a nullity. The judgment of a Court of Appeal, reversing that of a court appealed from, is not the judgment of the latter court, but of the former. How, then, will the judgment of this court, should it differ from that of the divisional court, satisfy the condition on which the judgment of the quarter sessions-who have plenary and exclusive jurisdiction over the subject-matter, and can make their submission to the Queen's Bench Division subject to such conditions as they think proper, and who have here submitted their judgment to the Queen's Bench Division, and not to any other court, is-by the express terms of the submission, to depend? Can the terms of the submission be thus, without any assent on the part of the court of quarter sessions, enlarged, so as to give authority to this court, which assuredly is not that of the Queen's Bench Division? And this brings me to the consideration of the question on still broader grounds. The primary purpose and intention of the Legislature in creating the present Court of Appeal was, I apprehend, to transfer to it the appellate jurisdiction heretofore vested in the Court of Exchequer Chamber. In doing so, however, it has, it is true, used terms so large as to embrace, according to the decision of this court, judgments and orders in matters of mere procedure, as to which no appeal from the divisional court previously existed. But I cannot think it can have been the intention that the terms used should apply to cases in which there was no inherent jurisdiction in a divisional court, and which were not involved in the advance to some final judgment from which an appeal lay. It cannot have been intended, however general may be the terms of the section, to make, as it were by a side-wind, parochial rates and orders of removal matters which before were not the subjects of appeal, and could not be taken beyond the divisional court, liable to be brought before this court, and consequently to be taken on a further appeal to the House of Lords, with all the expense attending on such an ultimate appeal, thus involving the inconvenience which, as was pointed out by Lord Hardwicke in Rex v. Preston-on-the

[CHAN. DIV. Hill, would result from rendering "dilatory, expensive, and burdensome " matters relating to the maintenance of the poor, which, as he observed, "should be cheap and speedy." The spirit of the present legislation is, I think, apparent from the provision introduced into the Act of 1876, by the 20th section of which, lest the general words of the 19th section of the Act of 1873 should have too extensive an operation, it is expressly provided that "where, by Act of Parliament, it is provided that the decision of any court or judge, the jurisdiction of which court or judge is transferred to the High Court of Justice, is to be final, an appeal shall not lie in any such case from the decision of the High Court of Justice, or of any judge thereof, to the Court of Appeal." It is true that this case is not within the precise terms of this enactment, inasmuch as this decision, from which the right of appeal is here claimed, is not one which is made final by Act of Parliament. But I apprehend that the only reason for not making the terms of the enactment sufficiently comprehensive to include such a case as the present was simply that, as it had never occurred to any one to suppose that there could be an appeal from the decision of the Court of Queen's Bench in such a case, it was not deemed necessary to make the language apply to it in terms. That the case is within the spirit of the enactment cannot, I think, be doubted. Whether, therefore, I look to the nature of the jurisdiction heretofore exercised by the Court of Queen's Bench, or to the object and intention of the recent legislation, I can arrive at no other conclusion than that a decision of the divisional court on an appeal against a rate is not a judgment or order within the 19th section of the Judicature Act of 1873. I am therefore of opinion that this court has not jurisdiction to entertain this appeal,

BRETT, L.J. concurred with Cockburn, C.J., on the ground that the decision of the Queen's Bench Division was not an order or judgment, nor was it a binding decision.

The Court being equally divided, the appeal was dismissed.

Co.

Appeal dismissed. Solicitors for the appellants, Sharp, Parker, and

Solicitor for the respondents, R. F. Roberts.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.
Saturday, March 16, 1878.
(Before JESSEL, M.R.)

STANDARD BANK OF AFRICA v. STOKES. (a) Party wall-Tenants in common-Evidence-Presumption of law-Repair of party wall-Common law rights-Metropolitan Buildings Act 1855, 88. 82, 83, 85.

In the absence of evidence of the ownership of a party wall a jury is entitled to find that it belongs to the adjoining owners as tenants in common. At common law a tenant in common of a party wall was entitled, with or without notice to the other tenant in common and whether the wall required repairs or not, to remove or alter or take bricks from or otherwise interfere with the party wall, (a) Reported by J. E. THOMPSON, Esq., Barrister-at-Law.