IRELAND] REG. v. BUTLER. [IRELAND. bail to appear at sail petty sessions." The warrant recited that P. I. had disobeyed a summons to appear at the then last petly sessions day, and give evidence in a case against two publicans." No case against two publicans was pending in court ut the date of the service of the summons, or of the issuing of the warrant : Held, that the warrant could not be removed by writ of certiorari. On the 5th May 1860 the court issued a peremptory writ of habeas corpus cum causâ ad subjiciendum, directed to the high sheriff of the county Fermanagh, defendant was required to appear on the following Monday; this was hardly a reasonable time for a person to prepare for his defence, more especially in a case of a criminal nature, where the defendant cannot be examined himself. I think, under these circumstances, it would have been much better if the magistrates had postponed the case; and I think the Messrs. Humphreys would have acted with much better feeling had they, during the hearing of the case, retired to another part of the court. Upon the whole case, I am of opinion that the certiorari should not issue, and that these magistrates should not have costs. FITZGERALD, J.-I concur in the judgment pro-and to the governor of the gaol of Enniskillen, comnounced by the other members of the court; and in an ordinary case I would have contented myself with a mere expression of my concurrence. But I think it right that each member of the court should express his individual opinion in a case like the present, where this court has not only to see that the law is administered impartially, but to encourage a confidence in its impartial administration. I entirely concur in the observations that have been made, that the greatest consideration should be shown to magistrates, but I cannot express anything but condemnation on the course that has been pursued in this case. These two gentlemen were the real plaintiffs; the summonses were issued on Saturday, the 30th July, for the following Monday, and we cannot take into consideration the intervening Sunday; besides the undue haste with which the matter was thus pressed forward, when the case came on to be heard these two gentlemen took their seats on the bench. I was prepared to pronounce my judgment at the conclusion of the argument, but I considered it my duty to read over the affidavits, in order to discover if there had been any interference on the part of the Messrs. Humphreys; but after having examined the affidavits with care, I could not detect the slightest interference by them during the progress of the case. Assuming that to be so, still I cannot help saying that it is a most objectionable proceeding for a party in a case to take his seat on the bench along with the magistrates. How would it be possible for the members of this court to communicate freely if we had parties interested in the case sitting beside us, while it was at hearing? Besides, the appearance which is presented to the public, of the prosecutor sitting on the bench, is most injurious. It would be well for gentlemen in the position of the Messrs. Humphreys, if they were to remember the words of Crampton, J., in the case of Reg. v. Massey. "But the admission of Sir Hugh Massey that he was interested, and his continuing to sit with the other magistrates, and the important declaration of the bench, at the calling on of the case, are what this court cannot give its sanction to." With regard to the question of title, I agree that the real question is, whether Mr. Porter acted under a fair and reasonable supposition of right, and whether that appeared to the magistrates below; for although the party may have had no right to the lands, it might be that he acted under a fair and reasonable supposition that he had. But it is clear from the affidavits that he could have acted under no such supposition, and the nature of the acts was such as to show that they were the acts of a wilful trespasser, and not those of a person going upon his own ground. June 8 and 9. REG. v. BUTLER. (a) Summary Jurisdiction Act, 14 & 15 Vict. c. 93, s. 13, manding them to bring up on 8th May the body of the prisoner, Patrick Leonard, by whatever name or addition he may be called. The writ issued on the affidavit of the prisoner, who stated that on 27th April 1860 he was served with a copy of a summons to appear at the petty sessions of E., on the 30th April, as a witness in the cause therein mentioned; that he ascertained that no cause was pending or summons issued against the defendants, and therefore, believing his attendance unnecessary, proceeded to his daily work, and while so engaged was required by a police constable to accompany him to the police barrack; that he went thither, and was brought before the sub-inspector, who required him to make an information as to his knowledge of the offence stated in the summons served on him; that deponent said he would not become an informer, but would give evidence if duly summoned, and that he had already told the truth before the coroner's jury, in the presence of the subinspector; and deponent believes that on the same day, the sub-inspector applied to H. E., a justice of the peace who was then presiding at petty sessions, for a warrant to arrest deponent for not attending as a witness in the alleged complaint; that H. E. refused to grant the warrant, because no summons had issued or complaint laid against the defendants named in the summons served on the deponent; that deponent would have attended on 30th April to give evidence, had any cause been pending in court; that on the 3rd May deponent was arrested by two constables, who conveyed him to the constabulary barrack, and, after about two hours, brought him before A. S. Butler, resident magistrate, who committed him to gaol under a warrant signed by A. S. B., which warrant deponent believes was illegally obtained against him; and that both warrant and summons are irregular and deficient in form and substance, for not containing a statement of the title, profession, trade, or residence of the defendant, as required by stat. 14 & 15 Vict. c. 93. Deponent caused an application for his discharge to be made to A. S. B., who said he would not have interfered had he known that the matter had been entered on at petty sessions, but, as he had committed the deponent, would now admit him to bail; that deponent is still detained in prison under said warrant, and believes that neither of the persons as to whose offences he was summoned to give evidence has been summoned to answer said complaint, and that he had no intention of leaving the country, or evading service of the summons as a witness. On the 8th May the governor of the gaol returned, that he had in court the body which on 3rd May 1860 had been delivered into his custody under the following warrant :-"Petty Sessions Act (Ireland) 1851 (14 & 15 Vict. c. 93). Form E. B. Warrant to commit or detain for trial. Wm. Fletcher, constable, complainant; Patrick Leonard, defendant. Petty sessions district of Enniskillen, county of Fermanagh. Whereas a complaint was made on the 3rd May 1860, on the oath of John Meehan, sub-constable, that on the 27th April 1860 he served a copy of a summons on defendant at, &c., to appear as a witness in a case against two publicans in E., for selling spirits or other drink at prohibited hours, and said P. L. did IRELAND.] REG. v. BUTLER. [IRELAND. not appear when called upon, and having been ordered | in the discharge of his duty, and without any other so to do in said summons on 30th April 1860, and motive whatever, and submits, that therefore the conhaving been arrested under a warrant and ordered to ditional order should be discharged. give bail-This is to command you to whom this is J. P. Hamilton (with him F. Macdonough, Q. C.) addressed to lodge the said P. L. of E., in the gaol of now showed cause.-The question is, whether a cerE., in the county of F., there to be imprisoned by the tiorari lies to remove a justice's warrant of commitkeeker of said gaol, as follows: to Monday, the next ment. The court has no jurisdiction to issue a writ petty sessions at E., viz., 7th May 1860, or to find of certiorari to quash a warrant of commitment, when bail to appear at said petty sessions; and for this, &c. the magistrate who issued that warrant has not done -Signed, A. BUTLER, R.M., Justice of said county. any judicial act. Such a warrant is returnable by a 3rd May 1860. To," &c. And I do further humbly writ of habeas corpus cum causâ, but a writ of certiocertify that said P. L. is not in my custody for any rari lies only in a case in which the document partakes cause other than by virtue of said warrant, on which at least of the nature of a conviction. The remedy of is indorsed the words, &c. "Rule of Bail--Petty the party aggrieved is by action, and this was a mere Sessions district, &c. Whereas, on 3rd May 1860, ministerial act on the part of the justice: (Rex v. P. L. was committed to the gaol of E., charged with Lediard, Say. 6; Rex v. Lloyd, Caldecott Rep. 309; disobeying a magistrate's summons, I hereby consent Reg. v. Churchwardens of Hatfield Peverel, 14 Q. B. to said P. L. being bailed by recognisance," &c. So 298; Ex parte Taunton, 1 Dowl. P. Cas. 54; Re answers James Jeffers, governor of E. gaol. Upon Allison, 10 Ex. 661.) This warrant was plainly a hearing this return read, the court (Lefroy, C.J., and mere ministerial act, for on its face it appears to have Fitzgerald, J., being absent,) discharged P. L., as been issued not by way of conviction, but was a ministhe term specified in the warrant for his confine- terial act done out of petty sessions, in order to further ment had expired-whereupon, on motion of R. the performance of a judicial act at some future Dowse, of counsel for P. L., the court was pleased to period. The Summary Jurisdiction Act (14 & 15 Vict. grant a conditional order for a writ of certiorari, c. 93, s. 13, par. 2) gives to a justice power to arrest a directed to A. S. B., to the clerk of said petty sessions person by warrant, and thus bring him up as a witness, district, and to the governor of the gaol of E., to re- if he disobeys a summons; and the fifth paragraph of move into this court a certain warrant of commitment, that section empowers a justice to commit a witness and all other warrants, convictions and informations, who refuses to give evidence; but nowhere does the together with all things touching the same, made Act enable the justice to imprison a man for a week, before A. S. B. against P. L., whereby P. L. was com- to make sure that he will be forthcoming to give evimitted, &c., with a view that they may be quashed, on dence when required. This act was an illegal act, and the grounds that they are null and void on the face of the warrant cannot be removed by certiorari. This them; that the said justice acted without jurisdiction, warrant was issued when the magistrate was not sitting and in excess of jurisdiction, in so committing P. L., in petty sessions, and also when there was no such unless cause shown, &c. The affidavit of A. S. B., cause pending in the court; but no warrant, under filed as cause, stated that on the 3rd May 1860 he sect. 13, can be issued, except by a court of summary was sworn in as resident magistrate, on which day sub- jurisdiction. The warrant was therefore wholly illegal, constable J. M. swore before deponent this information: and does not stand in the prosecutor's way if he desires -"Constable William Fletcher complainant; Patrick to bring an action against the magistrate. If, then, Leonard, defendant. Petty sessions, &c. The infor- the court refuses to grant a writ of certiorari, the promation of, &c., who saith that on 27th April 1860 Isecutor will not be left without remedy, for the proviso served a copy of a summons on P. L. at, &c., to appear as a witness in the case against two publicans in E., for selling spirits or other drink at prohibited hours, and P. L. did not appear, &c. Signed, John Meehan, s.c. And the said informant binds himself, &c. Taken before me this 3rd day of May, at Enniskillen.-A. S. BUTLER." That deponent then issued a warrant under which P. L. was committted; that previous to issuing said warrant he required P. L. to give bail for his ap- R. Dowse, in support of the conditional order.pearance, at next petty sessions day, at E., and think-This document may be brought up by a writ of certioing that P. L. might find a difficulty in getting bail, rari. The prosecutor did obtain a writ of habeas offered to discharge him on his own recognisance to corpus cum causâ, but the matter could not be debated appear on said day; that P. L. refused, and was there- in that proceeding, because when the body was brought upon committed till 7th May, to insure his appearance; into court it appeared from the return that the term of that deponent was entirely ignorant that any applica-imprisonment had expired, and the party was at once tion had been made to any other magistrate for a war-discharged. This document is such an order or conrant against P. L., and relied altogether on said infor-viction as requires to be quashed before an action can mation of J. M.; that deponent was then informed be brought. A warrant standing alone, generally that the offence with which the publicans were charged speaking, seems not to be capable of being quashed, if was that of selling spirits before six a.m. on Sunday, 22nd April last, to a person named M. M., who was then in a state of intoxication, and who died on the same day, of the effects thereof, as was found by the verdict of a coroner's jury; and deponent was then further informed that P. L. was the companion of M. M., and drinking with him on that occasion, and had given evidence to that effect on the inquest; and deponent was anxious to procure, by all legal means, the evidence necessary to the prosecution of said offence; that on 7th May, when P. L. was brought before the petty sessions, deponent ordered him to be discharged, and caused a written order for his discharge to be delivered to the governor of the gaol; and deponent says, that in granting said warrant he acted, as he believed, in the Justices' Protection Act, Ir. (12 Vict. c. 16, s. 2), does not apply to this particular case, as this warrant was not a legal warrant, and therefore need not be quashed in this court, before action brought, not being such a warrant as is contemplated in the Act; and further, because even if it was such a warrant, yet it has not been followed by a conviction or order. it be not sustainable in law. But that occurs only in the case where the justice acts merely ministerially, and is left absolutely without discretion in the matter of issuing the warrant. Moreover, the information upon which the magistrate isued this warrant was made in a cause different from that in which my client was summoned to give evidence. That appears in the very title of the information itself, which is further defective for the want of an allegation that my client could give material evidence. But even though the information did contain that allegation, yet the warrant is bad, as the statute only empowers the justice to have the party arrested and brought before him, but not to imprison the party. No cause such as that mentioned in the title was in existence at the time Ex. Cn.] HOWELL V. THE LONDON DOCK COMPANY. [Ex. CH. that the Court of Q. B. was to deal with the case as if granted by the quarter sessions, and that, as there could not be a review of the judgment of the Q. B. in such a case, this court had no jurisdiction in the present instance. This was an action of debt brought by the plaintiff as clerk to the vestry of St. George's-in-the-East, and to the trustees for putting into execution the Act of 46 Geo. 3, c. lxxvii., to recover 30631. 18. 8d., being the amount of a rate made on the property of the defendants on the 20th Feb. 1856. It was agreed by consent that a case should be stated for the opinion of the court, to be dealt with by the court as if granted by the quarter sessions on an appeal against the rate. when the warrant issued. The other side contend that | F. Macdonough, Q.C. in reply.-This act of the magistrate was not a judicial act. A judicial act must be done in the exercise of some jurisdiction. But the magistrate issued this warrant not in the exercise of his jurisdiction, but in excess of it. It is true that the warrant recites: "Whereas a complaint was made on the 3rd May 1860, on the oath of John Meehan, subconstable, that on the 27th April 1860 he served a copy of a summons on the defendant, &c., to appear as a witness in a case against two publicans, &c."-and that no such case was then in existence, as now appears. That recital is therefore a misrecital, which cannot, however, alter the nature of things, and does not create a case against the magistrate himself, so as to bring him within the 13th section. In Haylock v. Sparke the warrant purported to be a judicial act, and the court, in delivering judgment, assumed that it was so. The COURT stopped him, and allowed the canse shown. EXCHEQUER CHAMBER. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. ERRORS FROM THE QUEEN'S BENCH. (Before WILLIAMS, J., MARTIN, B., WILLES, J., c. 42: Held, that the parties were bound by the agreement CASE. By the 13th section of the above Act (local, personal and public), intituled "An Act for more effectually maintaining, regulating and employing the poor within the parish of St. George, in the county of Middlesex, and for cleansing and lighting the squares, streets and other open passages and places, and for keeping and regulating a nightly watch within such parts of the said parish as are not within the liberty of the Tower of London," certain trustees to be annually appointed under the Act were directed to settle and ascertain the respective sums of money necessary to be raised for the pur By sect. 14, the rector, churchwardens, and overseers of the poor, and trustees are to make and sign two distinct rates or assessments, one of which rates shall be laid upon all persons who shall inhabit, hold, or occupy any land, house, shop, warehouse, or other building, tenement, or hereditament within the said parish, for the relief of the poor; and the other upon all persons who shall inhabit, hold, or occupy any land, house, shop, warehouse, or other building, tenement, or hereditament other than and except any docks or warehouses, which are or may be considered exempt from such rates, or some part thereof, for a limited time under any Acts relating to the London Docks within such part of the parish as is not within the liberty of the Tower of London for cleansing, lighting, and watching. Under this statute the poor-rates have been made to the present time, and the London Dock Company have been rated thereto in respect of the same property, and on the same rateable value as in the rate now in dispute. By the local and personal Acts, 17 Geo. 3, c. xxii. and 22 Geo. 3, c. lxxxvi. provisions were made for paving parts of the said parish and dividing the same into districts for that purpose, and powers were given to the commissioners appointed under the said Acts to make rates for defraying the expenses of paving and repairing, &c., upon all persons occupying premises within the streets, lanes and places respectively which were paved by such commissioners respectively for, adjoining to, or opening into the same. The powers of such commissioners were altered and extended by statute 57 Geo. 3, c. 29, intituled "An Act for better paving, improving and regulating the streets of the metropolis, and removing and preventing nuisances and obstructions therein." By sect. 24 of that Act all paving rates are to be laid upon the persons who inhabit, hold, occupy, and are in possession of, or enjoy any messuages, tenements, lands, grounds, coach-houses, stables, cellars, vaults, houses, shops and warehouses, or other buildings or hereditaments situate or being within any of the streets or places within the said parochial or other districts. The London Docks are situate partly in the said parish of St. George, in the county of Middlesex, and partly in the parishes of Wapping and Shadwell, the greater part being in the parish of St. George. That portion of the docks which is situate within Ex. Cn.] HOWELL . THE LONDON DOCK COMPANY. the parish of St. George was, for the purpose of paving, | comprised in two separate districts, and under the jurisdiction of separate commissioners appointed under the said statutes 17 Geo. 3, c. xxii. and 22 Geo. 3, c. lxxxvi. viz., the St. George and Wapping Pavement Commissioners. For that portion of their property which was included in the St George's paving district, the London, Dock Company was, previously to and at the time of the passing of the Metropolis Local Management Act, rated in point of fact at the sum of 17,000l., being the estimated annual value of their property immediately abutting on the streets, lanes, and passages so paved by the St. George's Pavement Commissioners, but it is not admitted by the plaintiff that such mode or amount of rating was right in point of law. They were also rated for other portions of their docks and premises within the said parish of St. George, for paving purposes, by the Wapping commissioners, having jurisdiction in the streets and places upon which such docks and property abutted, but to a much less amount in the whole than the rateable value of the same property as assessed to the poor rates, but it is not admitted by the plaintiff that such mode or amount of rating was right in point of law. By the Metropolitan Local Management Act, 18 & 19 Vict. c. 120, s. 90, all the duties and powers of any commissioners in relation to paving in the parish, are transferred to the vestry of that parish. Sect. 158 of that Act requires the vestry, from time to time, to order the overseers to levy the sums which the vestry may require for defraying the expenses of executing the Act. Sect. 159 enacts that where it appears to any vestry that all or any part of the expenses, for defraying which any sum is by such vestry ordered to be levied as aforesaid, is incurred for the special benefit of any particular part of the parish or otherwise, has not been incurred for the equal benefit of the whole of their parish, such vestry may by any such order direct the sums necessary for defraying such expenses, or any part thereof, to be levied in such part, or exempt any part of such parish from the levy, or require a less rate to be levied thereon, as the circumstances of the case may require. [Ex. CH. structing, altering, maintaining and cleansing the The above order having been duly issued and served upon the trustees of the said parish, they in pursuance of such order, on the 20th Feb. 1856, made a rate of 10d. in the pound upon the persons and property rateable to the relief of the poor, which rate was duly allowed and signed by one of the police magistrates of the metropolis, and published as by law required, and to which rate the company were assessed in respect of warehouses, wharfs, docks, and quays within the walls of the London Docks, and also upon other warehouses, a jetty, and excise and custom offices, situate in different parts of the premises of the London Dock Company, the rateable value of the whole being 73,514., such sum being made up of seven separate assessments on different parts of the property. The said company were and are the owners and occupiers of the property mentioned in the above extract from the rate, and the same was and is situate within the said parish of St. George, and rateable to the poor-rates of the said parish at the sums mentioned in the above extract; and the company were assessed for the same property at the same amount in the last poor-rate for the said parish, made previously to the 20th Feb. 1856. The whole area of the docks of the said parish is paved at the company's own expense. Out of the sum of 6000l. mentioned in the said order of vesting of the 17th Jan. 1856, about half was estimated as required for paving purposes. Some of the principal approaches to the London Docks are by water, and a large part of the goods conveyed to and from the docks is conveyed by water carriage. The principal land entrance to the docks is in the parish of Wapping. One of the land entrances, and the principal water entrances to the docks, are in the parish of Shadwell, but there are five land entrances to the docks, for waggons and carts and other vehicles, in the said parish of St. George's, by some of which they have access to and By sect. 92 expenses of paving are to be deemed ex-from all parts of the London Docks within the said penses incurred in the execution of the Act. By sect. 161 the general rates under that Act (which include the expenses of paving) are levied on the persons, and in respect of the property by law rateable to the relief of the poor, upon the net annual value to be ascertained by the rate for the time being for the relief of the poor. parish, and a great portion of the heavy traffic to and from the docks passes in some of these entrances and through various streets in the said parish. The dock company having been served with notice of the said general rate, and the same having been demanded of them, applied to the vestry of the said parish that the said vestry would be pleased to make By sect. 247 all Acts in force in any parish are re- an order that the said general rate should as to 30007. pealed so far as they are inconsistent with the pro-part thereof (being the amount alleged by the said visions of this Act. The vestry of the parish of St. George, duly elected under the Metropolis Local Management Act, proceeded in pursuance thereof to make, and duly made, an order upon the trustees for putting into execution the said statute 46 Geo. 3, c. lxxvii., hereinafter called trustees of the said parish (being the officers charged with making and levying the rates for the relief of the poor), to levy and raise a sum of 6000 for the purpose of defraying the general expenses of the execution of the said Act (exclusive of expenses relating to the construction of sewers, &c.), and which order is as follows: company to be applicable for paving purposes, be levied on such part of the said parish only as was not within the walls of the London Dock Company, and upon the warehouses and other premises of the company previously assessed to the paving rate by the said commissioners for the St. George and Wapping districts, and that as to the said sum of 30007. the residue of the premises of the company should be exempt from the rate, and that with reference to subsequent orders for rates a similar principle might be acted upon. The vestry of the said parish having met and considered the application of the dock company, resolved "To the rector, churchwardens, and overseers, and that no part of the said sum of 6000%, directed to be trustees of the parish of St. George-in-the-East, in the raised by their said order of the 17th Jan. 1856, had county of Middlesex,-You are hereby required to levy been incurred for the special benefit of that part of the in the above-mentioned parish, and to pay over to parish not comprised in the London Docks, but such C. B. S., Esq., the treasurer of this vestry, on or before expenses had been incurred for the equal benefit of the the 30th June next, the sum of 6000l., for defraying whole parish, and they resolved that the company were the expenses of the execution of the Metropolis Local not entitled to any exemption as prayed, and that with Management Act, exclusive of the expenses of con-reference to the general rate required to be levied under [MAG. CAS.] 2 A Ex. CH. THe Waterford aND LIMERICK RAILWAY COMPANY v.. THOMAS KEARNEY. [IRELAND. the Metropolis Local Management Act, the poor-rate | the C. L. P. A. 1854, 17 & 18 Vict. c. 125, s. 32, was their only standard of rating. which enacts that error may be brought upon a judgment upon a special case in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary. Here there is no agreement to the contrary. The said company having failed to pay the said rate after demand, and after fourteen days' notice left for them on the premises so rated, this action has been brought for the amount of the said rate by the plaintiff, who was at the time of making the rate, and still continues to be, the vestry clerk of the said parish, and also clerk to the trustees above mentioned. The question for the opinion of the court was whether the trustees of the said parish were right in making the said general rate on the whole property of the dock company rated to the poor-rate of the said parish of St. George, or whether they ought to have limited the said general rate, as to so much thereof as was made for raising moneys required for paying expenses or charges, to such parts of the property of the said dock company in the parish as were formerly rated by the paving commissioners under the said Paving Acts, or to any other and what part of the property of the said dock company. If the court should be of opinion that the said general rate was rightly made on the whole of the company's property rated to the poor-rates as aforesaid, then judgment was to be entered for the plaintiff for the sum of 30631. 1s. 8d., and costs of suit. CHANNELL, B.-If you had gone on with the action, the proceedings would have been as in an ordinary case. But the parties by agreement have substituted the Court of Q. B. for the quarter sessions. The court of quarter sessions have power to amend the rate, but this court has not. WILLIAMS, J.-How can we review the principles laid down by the Court of Q. B., as those which are to guide the conduct of the arbitrator who is to ascertain the correct amount ? The parties in effect have agreed that in lieu of the ordinary course of proceeding in an action a case should be stated as if granted by way of appeal from the court of quarter sessions. The judgment of the Court of Q. B. on such a case is final; and the parties could not by special agreement transfer the appeal to this court, and this court would have no jurisdiction to entertain the appeal. BYLES, J.-If the parties could appeal to this court in this case, then it might go up to the House of Lords; and so in every rating case, where the parties consented If the court should be of opinion that the rate ought to a course like the present. But consent cannot give to have been limited to part or parts only of the com-jurisdiction; and I never heard that this court could pany's property, then it was agreed to be referred to review the judgment of the Court of Q. B. on a rating surveyors to award and determine, according to the case reserved at the quarter sessions. principles laid down by the court, the rateable value of CHANNELL, B.-I think that, by the terms of the the portion or portions of the company's property to agreement, "it was agreed by consent that a case which the court should decide the rate ought to have should be stated for the opinion of the court, and be been confined, and to determine for what amount judg-dealt with by the court as if granted by the quarter ment should be entered, and it was agreed that judgment should be entered accordingly, and in that case each party was to bear his and their own costs. The Court of Q. B. held, that it was the duty of the vestry, by the 159th section, to apportion the burden according to the benefit, and that if part of the property of the dock company had not equal benefit with the rest of the property in the parish rated to the poor from the paving expenses, in respect of that part the company was entitled to be relieved pro tanto; and that if inequality of benefit exists, the court would be bound to amend the rate according to the fact; and that the dock company were exempt from being rated for profits not immediately connected with the use of the paved streets, as e. g. those arising from the use of the basins by vessels, and from the use of bonded warehouses by imported goods afterwards exported. (The case is reported 8 E. & B. 212; 27 L. J. 177, M. C.) Huddleston (J. Brown with him).—The question is, whether the parish ought to have limited the rate in question to that part of the London Dock property which was formerly assessed to the paving rate, or whether the whole of that which was assessed to the poor's rate previously, was liable to be assessed to the rate in question. The whole question turns on the construction of the Metropolis Local Management Act. [WILLIAMS, J.-There is a preliminary point to be determined. The parties in this case by consent have substituted the Court of Q. B. for the court of quarter sessions, and the Court of Q. B. have considered the case as if it had been a case reserved on an appeal to the quarter sessions. Now there could be no appeal to this court upon such a case when stated upon appeal to the quarter sessions.] This is a case stated by consent after action brought to recover the amount of the rates under the local Act 46 Geo. 3, c. lxxvii. s. 23. [WILLIAMS, J.-If this had been simply a case stated after action brought, you might have alleged error upon the judgment of the Court of Q. B., but you have put that court in the place of the court of quarter sessions.] It is submitted that this case falls within sessions on an appeal against the rate," it was meant to exclude an appeal to this court. MARTIN, B.-This is not the subject-matter of an appeal to this court at all. We decline the jurisdiction. Sir F. Kelly (Grove with him), for the dock company, were not called upon. WILLIAMS, J.-We are all of opinion very strongly that we have no jurisdiction. It was agreed that the Court of Q. B. was to deal with the case as if it had been granted by the quarter sessions on an appeal against the rate. As there could be no appeal against the judgment of the Court of Q. B. on a case granted by the quarter sessions on an appeal against the rate, so neither can there be an appeal in the present instance. Case ordered to be struck out Howell, attorney for the plaintiff. Ellis, Parker and Co., attorneys for the defendants. Ireland. COURT OF QUEEN'S BENCH. Reported by JOHN HEZLET and WILLIAM BARLOW, Esqrs., Barristers-at-Law. Monday, June 18. (Before O'BRIEN, HAYES and FITZGERALD, JJ.) THE PANY. THOMAS KEARNEY. Appeal from the decision of the justices at petty sessions-Liability of railway companies to keep in repair the surface of a road which they had once altered-Railway Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20, ss. 46, 49, 56, 65). The W. and L. Railway Company carried its railway over a bridge which spanned the public highway, the surface of which, underneath the bridge, the company lowered, so as to give the necessary head-room for the public traffic, and then put the road so lowered "into a permanently substantial condition, equally |