pany to keep them in repair. The second part applies to private railways and tramroads, and as to these the company are required to keep the new approaches continually in repair. It would be a monstrous construction to hold that the 71st section applies to this case. Then the simple question is thiswhether the company, by acting under their second Act, have brought themselves under the operation of the general Act, namely, the Railway Clauses Consolidation Act? Upon that we must have further information, and the case must go back in order that we may know whether the company, in effecting their alterations, have in any way altered or affected the surface of the approaches. If they have not done so, we shall probably hold that the general Act does not apply.

LUSH, J.-I am of the same opinion. There can be no doubt that the 71st clause only applies to the private roads referred to in the latter half of the section. But it is worthy of remark that, even if it does, this order cannot be supported upon that ground, as there is no jurisdiction given to justices under that Act to make any such order; their jurisdiction being given by the Lands Clauses Consolidation Act 1845, which was not then in

existence.

County Court jurisdiction in ejectment—“ Value or rent" of lands not exceeding 201.-Prohibition, when granted -30 & 31 Vict. c. 142, s. 11.

By sect. 11 of the County Courts Act 1867 (30 & 31 Vict. c. 142) jurisdiction in actions of ejectment is given to the County Courts where "neither the value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of 201. by the year:"

Held, that in determining the value or rent of the lands, &c., the amount of groundrent paid to the ground landlord must not be deducted from the amount of rent paid by the tenant to his immediate landlord. The value is to be measured by the ordinary rent at which the lands, &c., would let to a tenant. Although a Superior Court will not interfere by prohibition where there is a conflict of evidence as to the facts on which the jurisdiction of the County Court judge depends, and the judge has honestly determined the question, yet it will do so where, there being no dispute as to the facts, the County Court judge has assumed jurisdiction by a determination erroneous in point of

law.

In this case (which was an action of ejectment tried in the County Court of Sheffield in Yorkshire) Ryalls had obtained a rule in Trinity term, calling on Thos. Ellison, Esq., the judge of the County Court of Yorkshire, holden at Sheffield, and on the plaintiff in the action, to show cause why a writ of prohibition should not issue to restrain the issue of warrants of execution for the recovery of possession of the lands in question, and for the costs on a warrant of commitment, and to prohibit other proceedings upon a judgment in the case.

The action was brought to recover possession of certain leasehold premises in Spital-lane, Sheffield, consisting of land and buildings thereon.

[Q. B.

The premises in question had been held under a lease from the trustees of the Duke of Norfolk by a person named Hall, who mortgaged them to the trustees of a building society, and subsequently become bankrupt. Before his bankruptcy, it appears that he had contracted to sell the premises to the defendant in the present action, and he afterwards gave the defendant possession of them. The plaintiff in the action claimed under a sale by the mortgagees to him.

The only point of importance in the case was, whether, under sect. 11 of the County Courts Act 1867 (30 & 31 Vict. c. 142), the County Court judge had jurisdiction in the matter. That section enacts that

All actions of ejectment, where neither the value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of 201. by the year, may be brought and prosecuted in the County Court of the district in which the lands, tenements, or hereditaments, are situate.

The question arose at the trial, whether in estimating the value or rent, the groundrent payable to the head landlord should be deducted from the yearly The County Court judge value of the premises. appears to have been of opinion that the groundrent should be deducted, and that if, when that deduction was made, the amount remaining did not exceed 20%, the County Court had jurisdiction to determine the matter, and he gave judgment for the plaintiff.

The County Court judge, on application made to declined to give the reasons on which the judgment him for the purposes of the motion now made, was founded, but the following extracts from a shorthand writer's notes of his Honour's judgment shows both the nature of the evidence adduced to determine the value or rent, and also the grounds on which the judgment was based:

On the point of the tenant's interest, I have a considerable amount of evidence, which is certainly very much like all evidence of the kind-very different. But even if I were to take the evidence given on the part of the defendant, the highest figure given on his side as to the value of the lessor's interest is 351.; that is, he would let it for 351. And out of that 351. he would have to pay the ground rent. Also, according to Mr. Ironside, there ought to be deducted

10

per cent. for the contingency of not letting; according to another witness, he would deduct nothing for that con fairly on the whole at 351. 6s. 8d., and, deducting the ground tingency. But I may take the evidence for the defence rent and the 18 per cent., you will find it would leave the yearly value of the property about 181. But there are also modes which certainly do put it in a practical form. The first is, that the parties who purchased the property gave figures, 73 per cent., that would only give 18 guineas. Then 2701. for it. Deducting the per centage of Mr. Ryall's

there is another mode. [Here it was objected to his Honour that 7 per cent. would come to 201. 58.; on which he proceeded.] Yes, you are right; at 7 per cent. it is 18 guineas. Well, but the 7 per cent. giving 201. 5s., allows nothing wharever for repairs, nothing whatever for outgoings of any kind. To say that 5s. should not be given for that will certainly be putting it at a very low figure. Then there is another mode. One of the witnesses, Mr. Holmes, said the rateable value of the property is 141. 5s., or nearly that. Mr. Holmes says, the way to get the yearly value is to add 25. per cent., 31. 11s. 3d., making 171. 6s. 3d.; so that in whichever form you take it, it appears to me the reasonable construction-subject, of course, to this, whether I am lessor's-that the yearly value must be within the jurisdicright in merely taking the lessee's interest, not including the tion of the court; and, therefore, I am of opinion that I have jurisdiction

Oppenheim now showed cause against the rule. He contended, in the first place, that there was not sufficient evidence that the County Court judge based his judgment in favour of the plaintiff on the ground alleged, viz., that the amount of ground rent should be deducted from the annual rent in order to fix the amount which determines the County Court jurisdiction. [The court were of opinion that on this point, in the absence of any notes made by the judge himself, the shorthand writer's notes were satisfactory evidence of a secondary nature.] In the next place, if the judge did deduct the amount of ground rent, he was

justified in doing so under the proper construction of sect. 11 of 30 & 31 Vict. c. 142, which requires that "neither the value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of 20% by the year." The value of the land may be of three kinds-value (1) to the ground landlord, (2) to the immediate lessor, or (3) to the lessee. Now, in Brown v. Cocking, L. Rep. 3 Q. B. 672; 18 L. T. Rep. N. S. 560, it was laid down by the Court of Queen's Bench that the words "value" and "rent" in this section mean the value and rent as between the litigant parties. Now here the parties litigant were the immediate lessor and his lessee, and as between them the value was to be estimated by deducting the amount paid to the ground landlord. [BLACKBURN, J.-Is not this mixing up two distinct things, the value of the house or land, and the value of a particular person's interest in them? The statute speaks only of the value of the "lands, tenements, or hereditaments."] In analogy to the decision in Brown v. Cocking, the value of the interest must be considered in estimating the value of the land. [BLACKBURN, J.-That would be altering the words of the statute.] The value to be considered is according to the decision in that case, the value as between the particular parties litigant [Lusn, J.Then there would be a different value according to the different party who might bring the action. COCKBURN, C. J.-Would not the more convenient way be, to take the market value of the property as the value intended. We have a Parliamentary exposition of the meaning of the word "value" in a case not very remote from the present, viz., that of estimating the rateable value of a house]. Finally, even if the court be of opinion that the County Court judge was wrong in point of fact in considering that the value did not exceed 20%., still it is submitted that a writ of prohibition should not be granted. It was a case in which, there being conflicting evidence, the judge exercised his discretion; and it has been held that in such a case a Superior Court will not interfere, even when dissatisfied with the judge's determination. In Joseph v. Henry, 19 L. J. 369, Q. B., a motion for a prohibition was refused on the ground that the plaint stated a matter within the judge's jurisdiction, and the objection to the jurisdiction arose on contested facts, and the County Court judge had power to inquire into the facts which raised the question, and because also the decision on the merits turned on the very point on which the question of jurisdiction arose, and the affidavits were conflicting. [COCKBURN, C. J.-But is there any authority for the proposition that where there is no question of fact in dispute on which the jurisdiction is based, and the judge gives himself jurisdiction by an erroneous decision, this court will not grant a prohibition? Here is no dispute as to the facts.] There is as to the value. [COCKBURN, C. J.-The judge arrives at the conclusion as to value, not on conflicting evidence as to facts, but on the application of a wrong principle of law to the facts of the case.]

[ Q. B.

of the tenant has to pay the ground landlord, the County Court judge was of opinion that the value was above the sum within which jurisdiction is given to the County Court. It is no doubt the fact that the statute has left the meaning of the term "value," which it uses, uncertain; and it is true that there is a difference between the value to the landlord and that to the tenant when there is a ground rent to be paid to the ground landlord, since it might be worth the tenant's while to pay 2001. a-year for the house; but to the landlord, if he has to pay out of that the ground rent to the ground landlord, the value of the house would be reduced by that amount. If it is worth the tenant's while to pay 2001. a-year for the house, that is the value to him, but if the landlord has to deduct 201. a-year ground rent, the value to him is only 1807. a year" There will therefore always be a difference between the value to the immediate landlord and that to the tenant. Which of these two are we to adopt as the criterion of value within the meaning of the Act? I think that reasoning by analogy to a case by no means dissimilar in character, where the Legislature has dealt with the question of value as the criterion of rateability in determining the amount to which real property may be assessed; the Legislature having there decided that what an incoming tenant would pay is the criterion of value to be adopted, we ought here to say, without further assistance, that the best way of deciding is to hold that the marketable value is that which in the present instance the Legislature had in contemplation. It follows that the rent given to the immediate landlord is the criterion of value, there being nothing to show in other respects that it was not the fair criterion of value. The ground rent should therefore not be deducted. The second point is whether the circumstances of this case are such as to make it one for a prohibition. I quite agree that where there is a conflict of evidence as to the facts on which jurisdiction depends, although the decision of the inferior judge is not absolutely conclusive on this court, for example, if we saw that he had perversely decided that a certain state of facts existed in order to give himself jurisdiction-yet when there is reasonable ground for arriving at a decision in favour of the existence of jurisdiction, this court will not interfere when it is of opinion that the judge of the inferior court has honestly exercised his judicial judgment on the matter. But where no question of fact is at issue, and the judge has taken to himself jurisdiction by a judgment erroneous in point of law, this court will interfere toprevent further proceedings being taken before one who has no jurisdiction in the matter. The distinction is obvious-if the matter depends on a question of fact, and that question appears to have been honestly decided, this court will not interfere; but where it is plain that irrespectively of any dispute as to facts there has been an assumption of judicial authority where it did not exist, it is essentially a case in which the remedy by prohibition is appropriate.

years, and thus the mines have become worked out and exhausted, that the rent between the two parties to the lease is merely the conventional rent, but by no means the value, being far above it. So that the subletting rent, though strong evidence, is not conclusive as to the value. Then, is the fact that the immediate landlord pays a ground rent, which diminishes the value of his interest, to be taken into account in estimating the value. I think it is not; for the words of the statute make the jurisdiction depend on the value of the subject matter, and not of the interest of any person in it. I am, therefore, of opinion that for the purposes of this section, the value is to be taken as being the rateable value. Then comes the point as to whether, if the judge took a wrong guide in arriving at the value, this Court will interfere by prohibition. As to the circumstances under which a prohibition will be granted I refer to the case of Thompson v. Ingham, 14 Q. B. 710, Patteson, J. there says p. 718: "The judge must, of necessity, determine that point [whether title was in question] for the time, because on it depends whether he hears the case on the merits. Is then his determination conclusive? We think that it is not. The objection is analogous to a plea to the jurisdiction in other courts; which is indeed determined in the first instance by the court in which it is pleaded, but is subject to a writ of error. The County Court Act gives no writ of error or appeal of any sort." And then he goes on to say that when there is no writ of error, it must be open to proceed by motion for a prohibition. Now, in the present case the fact that the value was above the statutable limit is a ground for granting a prohibition, the judge of the County Court having adopted an erroneous principle in deciding on the matter. Consistently with that I quite hold, according to Brown v. Cocking, that when the County Court judge had conflicting evidence before him, and has come to a decision one way or the other, though that is not conclusive upon us, yet as in Thompson v. Ingham, we should require a strong case before we overturned the decision of the judge in the court below. There is no rule of law against our reviewing the decision of the County Court judge in a matter of fact of this kind; but we should not do so in ordinary cases. But in the present case the judge did not find on the facts anything but this, that the groundrent was to be deducted. This necessarily led to an erroneous conclusion since the rule adopted in determining as to the value was an erroneous one.

LUSH, J.-I am of the same opinion. In coming to this conclusion, we are giving the words of the statute their plain ordinary meaning. The words are, "When neither the value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof shall exceed the sum of 201. by the year." The statute does not say "the value of the plaintiff's or lessor's land," but "the value of the land;" that is to say, the value which might be obtained by letting the land.

[C. P.

COURT OF COMMON PLEAS Reported by W. GRAHAM and M. W. MCKELLAR, Esqrs., Barristers-at-Law.

Thursday, Nov. 5.

BEARDMORE v. WILSON.

Demise for residue of a term-Lease or assignment. An indenture of lease by a essee for the whole of the lessee's term, although intended by the parties to operate as an underlease, must be considered as an assignment of the term, if the instrument be sufficient by law to have that effect.

Pollock v. Stacey, 9 Q. B. 1033, distinguished.

This was an action for dilapidations in respect of a house in Goswell-road, tried at the London sittings after last Trinity term, before Byles, J. A verdict was found for the defendant, leave being reserved to the plaintiff to move to enter a verdict for him.

By the pleadings, the plaintiff's title to the premises through a certain William Beardmore was admitted, but the defendant denied her liability. By the plaintiff's proof of the defendant's title it appeared that on the 8th Oct. 1804, this William Beardmore leased the premises for sixty-one years, from Midsummer of that year to Robert Foot.

On the 19th Oct. 1805, the said Robert Foot, by deed-poll indorsed on the above lease, assigned the premises from the previous Michaelmas-lay for the residue of the said term of sixty-one years to Abraham Thorn.

On the 6th Jan. 1809 Abraham Thorn died, having by will bequeathed these premises to his executors, Richard Lea and John Pearson in trust for his daughter.

On the 6th Dec. 1828 the said Richard Lea, having survived his co-executor John Pearson, died. He had made a will appointing Joseph Wilson, of Highbury, and Joseph Wilson, of Clapham, his executors, both of whom proved the will.

The said Joseph Wilson, of Clapham, survived his co-executor, and died in July 1855, having by his will appointed his widow Jemima Wilson, the defendant, with two others, his executors. The two others renounced their appointment, and the defendant alone proved her husband's will.

The defendant, therefore, according to the plaintiff's case, became the assignee of the lease of 1804 from Beardmore to Foot.

For the defendant a lease of the same premises was put in evidence, the plaintiff having previously had no notice whatever of the existence of the same. It was an indenture made the 8th May 1829, between the above-mentioned Joseph Wilson of Highbury, and Joseph Wilson, of Clapham, executors of the said Richard Lea, of the first part; Sarah Bousfield, daughter of the said Richard Lea, of the second part: and Thomas Satchwell, of the third part; and after reciting the leases and assignments, proved by the plaintiff up to to that date, it was witnessed that the said Joseph Wilson, of Highbury, and Joseph Wilson, of Clapham, as executors as aforesaid, at the request and by the direction of the said Sarah Bousfield, demised and leased unto the said Thomas Satchwell, his executors, administrators, and assigns, all the premises in question, to have and to hold the same, with their appurtenances, unto the said Thomas Satchwell, his executors, administrators, and assigns, from the 24th day of June now last, for and during and unto the full end and term of 37 years from thence next ensuing and fully to be complete and ended." The rents reserved differed entirely from those in the original lease by Beardmore of 1804, and the covenants, although quite as extensive as those in the former lease, were not ex