Richard Garth, C.J. (Wilson, J., concurring)
1. I think that the preliminary objection, which has been taken to our hearing this reference must prevail. The case is precisely similar to that of Hall v. Joachim 12 B.L.R. 34, to which we have been referred.
2. That case was decided under Section 7 of Act XXVI of 1864, which is similar in its terms to Section 69 of Act XV of 1882. In that case, as in this, an application was made for a new trial to two Judges of the Small Cause Court; and on the hearing of that application, the Judges differed in opinion upon a point of law, which was consequently referred for the opinion of this Court.
3. The reference came on before the late Chief Justice and Mr. Justice Pontifex, who decided that, if the Judges of the Small Cause Court thought fit to take the opinion of the High Court upon the point referred, their proper course was to grant a new trial, so that the point might be properly raised. But they held that upon the application for a new trial no judgment could be given, which would be a ' contingent judgment ' within the meaning of Section 7 of the-Act of 1864.
4. The reason upon which that case was decided directly applies here; and this is more evident, because, having heard from Mr. Allen what the nature of the point is, it is obvious that, if we were to decide that point now, we should not determine the case finally. We should not in fact enable the Court below to give any judgment, properly so called, upon the present proceeding. The only effect of our decision might be, that a new trial would be had, in which the very point upon which we had given our opinion might not arise.
5. We think that we are bound by the decision in Hall v. Joachim 12 B.L.R. 34 and my own opinion is, that the principle upon which that case proceeded is correct.
6. If the Judges of the Small Cause Court consider that the point is a proper one for discussion, the course which they should take is pointed out by Sir E. Couch in the above case, viz., that they should grant a new trial, at which the point can be raised in the regular way. We make no order as to costs.