Sir John Edge, C.J, and Aikman, J.:— The District Judge acting under s. 566; of the Code of Civil Procedure referred to the Court of first instance certain issues for trial. Before the return to the order was made, the District Judge transferred the appeal to the Court of the Subordinate Judge The only question which we need determine is whether the District Judge had under such circumstances power to make that order of transfer. We are of opinion that he had not. The last paragraph of s. 566 shows that the return is to be made to the appellate Court, that is, to the appellate Court which referred the issues for trial. By the first, paragraph of s. 567 a memorandum of objections may be presented to the appellate Court and the last paragraph of s. 567 enacts that “after the expiration of the period fixed for presenting such memorandum the appellate Court shall proceed to determine the appeal.” There again the appellate Court is the Court referred to in s. 566. It is a very wholesome principle that the Court which considered it necessary to refer issues for trial under s. 566 should be the Court to dispose of the case on the return. We set aside the order of transfer to the Subordinate Judge and the decree of the Subordinate Judge on appeal, and we direct the District Judge to restore the appeal to the file of pending appeals in his Court and to dispose of it according to law. Costs here and in the Court of the Subordinate Judge will abide the result.
Appeal decreed.