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tation clause affixed to the Judicature Act of 1873 the word "order" in the body of the Act is held to include "rule;" and therefore when in the body of the Act we read the word "order" we read it as if the word rule" was also contained there. Now sect. 19 of the Judicature Act of 1873 provides that "the Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order, save as hereinafter mentioned, of Her Majesty's High Court of Justice, or of any judges or judge thereof." The words save as hereinafter mentioned" refer to particular exceptions which, it is agreed, do not apply to the present case, and therefore, for the present purpose, the section may be read as if those words were omitted; and, as I have said, it is to be read as if the word "order" included the word 66 rule." Reading it in that way your Lordships find that it is enacted that the Court of Appeal shall have jurisdiction to hear and determine appeals from any rule of the Queen's Bench Division. If the matter rests there, I own I do not think it is open to doubt that these clear and definite words of the Legislature must have their full effect given to them. Your Lordships have here, on the one hand, a rule of the Queen's Bench Division, and you have, on the other hand, an enactment that every rule of the Queen's Bench Division is to be open to appeal. That being so, unless there is something more which has not been brought forward yet, those clear words must have effect given to them, and it lies upon those who wish to cut down their effect to show how it is to be done. Now, the way in which it is attempted to be done is this: It is said that in the particular matter which here came before the Queen's Bench Division the Court of Queen's Bench, when it existed as a separate court, did not act by virtue of its ordinary jurisdiction, and did not indeed act by analogy to its contentious jurisdiction in the ordinary sense of the term, but acted in a "consultative manner, to use the expression of the Lord Chief Justice; that it was, as it were, consulted by the court of quarter sessions, and the court of quarter sessions, it is suggested, never parted with a case upon which it was consulting the Court of Queen's Bench, but in some way kept seisin of the case until it had obtained the opinion of the Court of Queen's Bench, and then, when it had obtained that opinion, proceeded to act by virtue of its own jurisdiction as a court of quarter sessions. If that were an accurate representation of the jurisdiction, no doubt an element of difficulty might be interposed. It would then have to be considered whether really what your Lordships have before you was a rule or an order of the Court of Queen's Bench at all. But I apprehend that is an inaccurate view of the jurisdiction exercised by the Court of Queen's Bench. As it seems to me, that jurisdiction may be stated very shortly, and there is really, after hearing all that has been said on both sides, little or no controversy upon the subject. The court of quarter sessions was in the first instance the court of appeal before which objections to rates of this kind were to be brought. When the court of quarter sessions had determined a rate, that determination was, as a general rule, final upon the merits. There was no court of appeal in the ordinary sense of the term before which the facts upon which the court of quarter sessions had proceeded could be brought by way of review. But the court of quarter sessions, like

[H. OF L. every other inferior court in the kingdom, was open to this proceeding: if there was upon the face of the order of the court of quarter sessions anything which showed that the order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and to look at the order, and upon the face of it to put an end to its existence by quashing it-not to substitute another order in its place, but to remove that order out of the way as one which should not be used to the detriment of any of the subjects of Her Majesty. That jurisdiction of the Court of Queen's Bench was found in many cases in reference to the quarter sessions a useful jurisdiction. It appears further, if we go back to the ancient history of quarter sessions, that a court of quarter sessions had a power, if they were in difficulty, of applying to the judge of assize, and asking his advice and assistance in making an order. An appeal of that kind to the judge of assize was not a parting with its jurisdiction by the court of quarter sessions, but was really that which is spoken of by the Lord Chief Justice as a "consultative act on the part of the court of quarter sessions, that court still retaining and exercising its jurisdiction after the consultation had taken place. But supposing that the court of quarter sessions did not adopt that course, there was still another mode by which any question of law which appeared to them doubtful might be left open for the exercise of the judgment of a higher tribunal. All that was necessary was that the court of quarter sessions, in making its order, should in some way state upon the face of it the elements which had led to their decision. If the court of quarter sessions stated upon the face of the order, by way of recital, that the facts were so and so, and the grounds of its decision were such as were so stated, then, if that which was stated upon the face of the order, in the opinion of any party, was not such as to warrant the order, that party might go to the Court of Queen's Bench, and point to the order as one which told its own story, and ask the Court of Queen's Bench to remove it by certiorari, and when so removed to pass judgment upon it, whether it should or should not be quashed. that case, as I said just now, the jurisdiction of the Court of Queen's Bench was merely a jurisdiction to leave the order standing, or to remove it out of the way. It was not a jurisdiction to substitute for it another or a different order; that would be making the Court of Queen's Bench a court of rehearing or of appeal, in the ordinary sense of the term. Now, if that is the jurisdic tion of the Court of Queen's Bench, it cannot in any respect be called "consultative;" it is a jurisdiction of the Court of Queen's Bench, as s higher court than the court of quarter sessions, to overthrow and destroy an act of that court, and to remove it out of the way. But then that being, as I think is clear from the cases which have been cited, the origin of the jurisdiction, and the form in which it was exercised during the greater part, if not the whole, of the last century, it is obvious from the more modern cases which have been cited, that, although that jurisdiction has not changed in substance, there has been some change in the form in which it has been appealed to. In modern times the practice has grown up of obtaining opinions from the courts upon special cases. And whereas in the earlier times the orders of courts of quarter sessions did

In

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nothing more than state by way of recital the facts which the court had found, and then add the order which the court had made, the more modern cases seem to have assumed rather the form of special cases, as to which, in language loose but not altogether inaccurate, it has been said that the court of quarter sessions asks for the opinion of the Court of Queen's Bench. In the very case before your Lordships, although in form you find that the dissatisfied party first applied for a certiorari, and then obtained a rule nisi to quash the rate, and on the certiorari the order of the court of quarter sessions was brought up, and the case appended to the order, still when you look at the case itself you find that the parties who stated that case were obviously under the impression that they could induce the Court of Queen's Bench, if it did not simply confirm the order of the court of quarter sessions, to answer a series of questions, after which the case might be sent back, supposing the rate not to be confirmed, to the court of quarter sessions, so that the rate might be amended or modified according to the answers so obtained from the Court of Queen's Bench. Now, it is quite true that this form of the case has given a certain colour to the argument that the Queen's Bench Division was applied to for the purpose of advice, and not for the purpose of making an order. But that is simply upon the form of the special case. The form of the proceedings before the Queen's Bench Division is clear and unmistakeable. In the old original form which indicates the foundation and the ground of the jurisdiction the dissatisfied party simply called upon the Court of Queen's Bench to quash the order made by the court of quarter sessions. When this application was made to the Queen's Bench Division it might, as it seems to me, very well demur to answer the various forms of question which I find put in the special case, but whether it did or did not so demur, the party who objected to the rate and to the order of the court of quarter sessions had a right, if that order was an invalid one, to have it quashed and removed out of the way, and the circumstance that there were appended to the special case the questions to which I have referred could not in any way destroy that right of the suitor, if he was otherwise entitled to an order of the court of quarter sessions. That is all that I have to observe upon the form of the special case. It has given rise to a little difficulty, but to no difficulty which is serious when the whole of the circumstances are looked at. I will only add that I have proceeded upon the view of sect. 19 of the Judicature Act of 1873. I am not persuaded that sect. 45 has anything to say to the question. It seems to me that it is quite sufficient to look upon this as what it was, namely, a "rule;" that is to say, an "order" of the Queen's Bench Division, to see that it was the subject of appeal under sect. 19, and to see that if leave were necessary to appeal, which at present I am not convinced of, leave was given in the present case. I shall therefore recommend your Lordships to declare that the Court of Appeal had jurisdiction to hear and to determine this appeal upon the merits, and to remit the case to the Court of Appeal with that declaration. But looking to the fact that the Court of Appeal was equally divided, and that, therefore, it was necessary to bring this case to your Lordships' House, and looking still

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more to the fact that the difficulty or doubt in the case appears to have been pressed upon the respondents by the Court of Appeal, I think I should ask your Lordships to say at the same time that there should be no costs on either side in respect of this appeal.

Lord PENZANCE.-My Lords, I entirely agree with what has fallen from my noble and learned friend. I confess that I feel inclined to base my judgment in this matter entirely upon the simple proposition that the Judicature Act says that there shall be an appeal from all judgments and orders of the High Court of Justice, and that the interpretation clause of the Act says that a "rule" is an "order," and consequently sect. 19 is to be read as if it included the word "rule." If there is to be an appeal from all rules and orders, according to the words of the statute, it seems to me that it would require an overwhelmingly strong case to make out that any particular proceeding which is of the character of the present does not fall within that enactment. The ground on which the supposed exception is placed is shortly this, that this is not a rule or order of the court within the purview of the Act, because the function of the Court of Queen's Bench in these matters is a purely consultative one, that it is the giving of an opinion, and not the making of a judicial order in the exercise of the ordinary jurisdiction of the court. The cases which have been brought before the House appear to me to establish conclusively that that is not a true view of the function which the Court of Queen's Bench before the Judicature Act discharged in respect of these cases. The cases are abundant to show that the Court of Queen's Bench was in the habit of dealing with and reviewing these orders of an inferior court upon the face of them, and if upon the face of them they were found insufficient, of quashing them; if they were not found insufficient they would not be quashed; that is to say, they would be affirmed. That was the function which the court discharged, at a time when the court of quarter sessions were still in the habit of consulting the judges of assize. The practice was for the court of quarter sessions, when they were in doubt upon a question of law, to consult the judge of assize, but notwithstanding that, the Court of Queen's Bench at that time exercised the same jurisdiction which it did up to the time that the Judicature Act passed, of quashing any order of a court of quarter sessions for any insufficiency which appeared upon the face of it. Of course, until the court of quarter sessions set out some facts upon the face of their order, the Court of Queen's Bench could not interfere with it, except upon matters of form; but whenever they did set out facts-and it is shown that for centuries the practice was to set them out whenever they had doubts-the Court of Queen's Bench dealt with the facts as they appeared upon the face of the order, pronounced the order insufficient and quashed it, if they saw reason to do so. Now the action of the Court of Queen's Bench in this matter cannot be considered consultative merely, if the result of what they did was to make an order which dealt with the proceeding itself, and put an end to the order of the court of quarter sessions. If their action in the matter was purely consultative it would follow that they would remit in some form the result of that advice and consultation to the court of quarter

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sessions, and that that court should act upon it. But the certiorari itself bringing up the proceedings, independently of the order subsequently made upon it, put an end to all further jurisdiction in the court of quarter sessions to deal with the matter. Therefore the Court of Queen's Bench then had the proceeding before them, and could either quash it or let it stand; but the magistrates in quarter sessions were then functi officio, they could no longer deal with the matter either by way of affirming or quashing the order. It seems to me, therefore, that it is abundantly made out that, according to the old practice of the court, the function of the Court of Queen's Bench was that which has been argued for-namely, to consider an order of a court of quarter sessions upon the face of it, and, if the facts were stated upon the face of the order, to deal with them as they appeared upon these proceedings, and to apply the law to those facts, and then either to affirm the order or to quash it. That being so, the question arises whether any change has been effected of late years which ought to lead to a different result as regards this appeal. Now from the case of Reg. v. Kesteven (3 Q. B. 810), it does seem that at first, when attempts were made to vary this mode of proceeding, the Court of Queen's Bench repudiated accepting any function of the kind that they were asked to discharge. They were asked to answer certain questions for the information of the public, but they positively refused to do that, and said that their business was to say whether the order was a good one or a bad one: if it was a good one it was to remain, if it was bad it was to be quashed; but that the court was not justified, according to the practice, in answering questions. Notwithstanding that, it seems that in modern times the practice has grown up of putting before the court something like an ordinary special case in an action, and of asking them, in accordance with their findings on certain questions of fact, to give certain directions, and to remit the case to the court of quarter sessions, and there is no doubt that the special case in this particular case does something of that kind. But although that is so there is in this case, as I suppose there is also in these cases in which this sort of practice has grown up, an order of the court of quarter sessions to begin with. Now, when ordinary special cases are submitted to the opinion of a court of common law, the practice has never been that there is a judgment and then a special case, and that in accordance with the opinion of the court upon that special case that judgment should be affirmed or set aside; but the parties always agree, after stating the facts, that if the court are of opinion one way judgment shall be entered one way, and if the court are of opinion another way judgment shall be entered otherwise. That is the form it assumes when the function is purely consultative. But here the case starts with an order by the court of quarter sessions. At the same time it is evidently upon the face of it intended by the court to travel beyond their proper legal jurisdiction, and to give answers upon certain questions. Now I agree with my noble and learned friend that when that case was brought up upon certiorari, and when one of the parties had moved for and obtained a rule to show cause why the order of the court of quarter sessions should not be quashed, it would be quite competent to the

court, if they thought upon the face of the special case and upon the facts therein stated that the order was a bad one, to quash it, and they might do that although the parties may have asked them to give certain directions to the court of quarter sessions as to the way in which they should deal with their order, instead of quashing it. Having before them the order made by the court of quarter sessions, and the facts upon which that order was made, and coming to a legal conclusion that upon those facts the order was one which was contrary to law, it would have been competent to the court to do what those who applied to the court for a rule asked that they should do, namely, to quash the order. Under these circumstances therefore, although some little difficulty has, I think, been introduced into the discussion of the case, by reason of the form in which the parties have endeavoured to obtain the opinion of the Court of Queen's Bench, nevertheless I think, looking at the form of the proceeding, which is what this House has to deal with, that it is a proceeding in which the Court of Queen's Bench is asked to exercise its original function of quashing an order which is not legally made, and consequently there is no more reason why the order in this rule should not be made the subject matter of appeal than any other order or rule which the court may make; therefore I entirely agree with what my noble and learned friend has proposed.

Lord O'HAGAN.-My Lords, I quite concur with my noble and learned friends. I wish to be understood as basing my opinion upon the plain meaning of sect. 19 of the Judicature Act of 1873, as applied to the very plain facts which are before the House in this case. We have here a "rule" of court, which, according to the interpretation clause of that Act, is to be held an "order" of court. We have a section of the Act giving jurisdiction to the Court of Appeal to review the "orders" of the court, and I fail to ascertain any reason for thinking that the rule of court, which was an order of the court in this case, was not a legitimate subject of appeal under sect. 19. I wish to say that, because I am not convinced that sect. 45 can be safely relied on for the purpose of found. ing our judgment upon it. Upon the ease gent. rally I have only a word or two to say. As has been observed, the whole foundation of the judgment of two of the learned judges in the court below has been based upon the ground of the con sultative character of this jurisdiction of the Court of Queen's Bench. Now at common law the Court of Queen's Bench has, as we know, a supreme control over inferior jurisdictions, and its general relation to inferior jurisdictions is not of a consul. tative, but of a controlling and dictating character. In the particular case before us, no doubt, originally, according to the operation of certain statutes, the court of quarter sessions had a jurisdiction which was not controlled in any way by appeal, and I am not prepared to go with the argument that there has been such a change introduced through the Judicature Acts that we can fairly say that there is to this House an appeal against the decisions of the court of quarter sessions in cases such as we have to deal with here. But there has been undoubtedly an estab lished practice, so long existing as to render it impossible now to call it in question, that the court of quarter sessions may put itself in relation with

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the Court of Queen's Bench for the purpose of being guided, directed, and controlled as to its own action. That is what has been done in this case.

The court of quarter sessions here did state a case, and, that case being stated, it appears to me, for the reason I gave just this moment, that the subsequent proceedings took the matter wholly out of the operation of the special case, and left the court perfectly at large to act according to its practice, and according to what it considered the justice of the case, I observe that, in one of the judgments of the learned judges of the court below, observations are made as to the necessity of avoiding an excessive number of appeals, and as to the necessity of cheap and speedy justice. I go with those observations very strongly, but I cannot shut out from my consideration that this Judicature Act was manifestly intended not to limit appeals, but to extend the power of appeal; and we are bound to assume that there were very good reasons for that on the part of the Legislature. We see that that was the policy of the Act, for we see that a jurisdiction is given to the Court of Appeal, which did not belong to the Court of Exchequer Chamber, in most important particulars.

With regard to ecclesiastical procedure, with reference to the New Trial Paper, and so on, matters which could not be dealt with by the Court of Exchequer Chamber are dealt with every day by the Court of Appeal. And I am of opinion that we are not at liberty to attempt to limit the policy of the Act which is so clearly presented to us, and to confine the operation of words which appear to me to bear, in common sense and common understanding, but one meaning. That being so, what is there in this case to countervail the plain meaning of the words of this section? I confess that I have failed to see any argument to sustain the statement that the proceeding here was of a consultative character. The distinction between what is consultative, and what is magisterial or commanding, is very fairly and properly exhibited in the cases showing the old practice of the courts of quarter sessions consulting the judges. When a court of quarter sessions had a desire for information, that practice enabled them to go to the judge and consult him, as the foreman of a grand jury now consults the judge every day at the assizes, in order to get from him information. But it was after the information was given by the judge and received by the court of quarter sessions that the decision was made which bound the court of quarter sessions. I may illustrate it in this way: In Ireland, where the judges are applied to by courts of quarter sessions with reference to civil bills and many other things, the judge decides magisterially and decides conclusively; but he is not consulted, he does not advise the people who come before him. Just in the same way, it seems to me, in this case, when the Court of Queen's Bench was approached under the circumstances before us, it was in no sense a consulting for the purpose of receiving from the court the authoritative decision which it gave, and, as it appears to me, could not help giving, according to the settled practice of that court as established in many cases. But if there were nothing but the documents in the case, is it possible to say, upon the face of this certiorari and these orders, that the proceeding was wholly consultative? The certiorari concludes in these words: after requiring the producMAG. CAS.-VOL. XI.

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tion of all the deeds and documents and so forth, the object is stated to be "that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done." Not for the purpose of answering a consultation, but of doing that which according to right and justice the Queen's Bench Division thought ought to be done. Then when you come to the forms of the orders you find that, "It is ordered" that a certain day shall be peremptorily given to show cause why the proceedings "should not be quashed for the insufficiency thereof." And then the final order is, "Upon hearing counsel, it is ordered," it is not advised, the case is not sent down, as it was supposed to have been in the judgment of one of the learned judges, with advice given to the court of quarter sessions nothing of the kind; there is an absolute order which everybody is bound to obey. We find it stated by the Lord Chief Justice that these orders of the Court of Queen's Bench had never in any single case been disobeyed within the memory of man. Therefore it seems to me impossible to maintain the supposition of the consultative character of the proceeding. I was struck by the terms of the special case, and certainly some difficulty and some confusion arose from that. The special case, if it were to be taken as a consensual affair, certainly did ask advice, and did not ask decision, and in that respect there might perhaps have been some difficulty. But I ventured to suggest in the course of the argument that that difficulty might fairly be considered to be got over by the fact that after the special case had been framed, and after it had been, I suppose, put before the Court of Queen's Bench, we have here, "by consent of counsel on both sides," an order that a writ of certiorari should issue "to remove into this divisional court the orders" relating to the rate. Now it appears to me that, as soon as the parties by consent obtained that certiorari, there was an end to the operation of the antecedent affair, even if it was consensual. The moment the certiorari was granted and came into active operation all the proceedings were transferred from the one court to the other; and with those proceedings all the jurisdiction of the one court was transferred to the other, and from that moment it became the right of the Court of Queen's Bench to act according to its own established practice, and to do what, according to the terms of the certiorari, it considered "just and fitting to be done; and from that moment it became, in my opinion, quite immaterial what were the terms of the special case, and how the parties by these terms might, but for the subsequent certiorari, have limited the operation of their demand upon the court. I think, therefore, upon that point there is really no difficulty in the matter. I only wish to repeat that in giving my judgment I proceed upon sect. 19 of the Judicature Act of 1873, applying, as I think it does, to the plain facts of this case.

Order of the Court of Appeal reversed. Declared that the Court of Appeal had jurisdiction to entertain the appeal. Cause remitted with this declaration. No costs of this appeal on either side.

Solicitors for the appellants, Sharpe, Parkers,

3 H

Pritchard, and Sharpe, agents for Wilkinson and Gillespie, Walsall.

Solicitor for the respondent, R. F. Roberts.

Supreme Court of Judicature.

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION.
Wednesday, Dec. 4, 1878.
(Before MELLOR and MANISTY, JJ.)

ROSSITER (app.) v. PIKE (resp.). (a) Salmon fishery — Fishing milldam since 1861 · Obstruction to fish-24 & 25 Vict. c. 109, s. 20. The appellant, a miller, was convicted by justices under sect. 20 of the Salmon Fishery Act 1861 for not causing to be removed and carried away from the waters within his fisheries all obstructions to the free passage of fish in or through his cruives, cribs, and boxes during the annual close time. It was proved that, although there were now at the appellant's milldam no appliances for taking fish, the place was used until 1862, after the passing of the Act, for that purpose, and that there remained still a broken box with fenders over openings of the required size, the bars and cribs having been removed from the weir at that time. When the fenders were down, or partially down, as upon the occasion charged against the appellant, it was now impossible for the fish to ascend to the higher waters; but the appellant's mill would be ruinously injured by lifting the fenders during the whole of the annual close time.

Held (upon a case stated), that there was no ground for the appellant's milldam being now a fishing milldam because it had continued to be so after the passing of the Act of 1861: that sect. 20 did not apply, and that the justices were wrong in convicting the appellant.

Pike (app.) v. Rossiter (resp.) (37 L. T. Rep. 635) discussed and followed.

THIS was a case stated by five of Her Majesty's justices of the peace in and for the county of Devon under the statute 20 & 21 Vict. c. 43, for the purpose of obtaining the opinion of the court on a question of law which arose before them as hereinafter stated.

1. At a petty sessions held at the Guildhall in Totnes, in and and for the division of Stanborough and Coleridge, in the county of Devon, on the 8th Oct. 1877, an information preferred by Anthony Pike (hereinafter called the respondent), against John Reap Rossiter (hereinafter called the appellant), charging "for that he the said appellant on the 5th Sept. 1877, then being the occupier of fisheries at the Totnes weir in the parish of Darlington, and the fulling mills in the parish of Totnes, both in the said county of Devon, did not within thirty-six hours after the commencement of the close season for the river Dart cause to be removed and carried away from the waters within his fisheries all obstructions to the free passage of fish in or through his cruives, cribs, and boxes within his fisheries contrary to sect. 20 of the Salmon Fisheries Act 1861," was (a) Reported by M. W. MCKELLAR Esq., Barrister-at-Law.

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heard and determined, the said parties respectively being then present, and upon such hearing the appellant was duly convicted of the said offence, and the justices adjudged him to forfeit all obstructions to the fisheries, to pay the respondent on behalf of the board of conservators of the river Dart by way of penalty the sum of 108., and also to pay to the respondent the sum of 41. 2s. 6d. for his costs in that behalf, and also to pay the sum of 10s. for every day he suffered any engines or other obstruction to the free passage of fish to remain unremoved beyond the period prescribed by the Salmon Fishery Act 1861, being 24 & 25 Vict. c. 109, s. 20.

2. Upon the defendant's application, a special case was stated, of which the following is the material part:

3. Upon the hearing of the information it was proved on behalf of the respondent by a surveyor of twenty years' standing, that the various parts of the said fisheries were correctly represented by certain plans and models produced. [These fisheries are sufficiently described in the report of the case of Pike (app.) v. Rossiter (resp.) (37 L. T. Rep. 635), which was an appeal against a refusal to convict the same person for breach at the same place of the provisions concerning the weekly close time contained in sect. 22 of the same Act.] This witness also stated that there was a box at the weir, but it was not a perfect box, and that the iron works at the trips, and also the iron work in front of the fenders, had been removed, and that the wooden framework in which the fenders slide could not be removed without damaging the masonry, and that the gratings, &c., might have been removed, from what the witness knew, forty years since.

4. It was proved by another witness who formerly rented the fisheries at the Totnes weir, and at the fulling or tucking mill, that the box was still at the Totnes weir, and fenders were attached to the higher end of it, but the trips had been removed; that there used to be four wooden fenders at the weir, but there were now three iron ones instead, and that the sill pieces were level with the paving; that this witness had rented the fisheries in question for four years, from 1856 to 1859, both inclusive; that the box at each fishery was then used for catching fish; that the gates were now removed, and that there used to be gratings behind them; that the gratings at the back of the fenders were not there now, nor were the gates at the foot, but that the sill pieces still existed; that the keeping the fenders down would prevent fish from ascending to the higher waters of the river unless there was a flood over the weir that during the years 1856 to 1859 the fenders were opened at twelve o'clock on Saturday nights, and that they were closed on the following night at twelve.

5. It was proved by the complainant that he was clerk to the Dart Board of Conservators, and he laid the information pursuant to a resolution passed by the board. That the weir was built right across the river Dart, and that the box was on the Dartington side. That the dam turned the water into the mill leat for milling purposes, and if the gates and bars in the box were replaced, the effect would be that fish could be caught as they formerly were. That when the fenders were down it was impossible for fish to ascend to the higher waters except there was a flood over the weir. That on