them that a poll was taken ?] There was some evi- Bank r. Willan it was held that, even where there dence on which they might decide. was an appeal, if the justices had no jurisdiction to make the order they did, the Court could and would interfere by certiorari. In this case the justices were undoubtedly wrong in refusing to take evidence to show the kind of poll that had been taken. a denial of justice, and was distinctly opposed to what this Court had already decided they should do. [He was then stopped by the Court.] [A'BECKETT, J.— If there has been no legal reduction in the number of licenses, then the magistrates illegally take away this man's license.] The fact that the justices refused to hear evidence to contradict the report of the returning officer did not deprive them of jurisdiction. All the objections to the poll were mere irregularities. One of them was that notice of the intention to take a poll had not been published in a Melbourne paper, as there was no newspaper published in the district. But an affidavit by Mr. H Josephs, the deputy returning officer, showed that notice had been published in the Ballarat Courier, which was published within 200 yards of the town boundary, and which circulated in the district. Another objection was that the returning officer did not publish the result of the poll as soon as conveniently might be, but that could not affect the validity of the poll. Mr. Hodges-Assuming that certiorari has been taken away by the statute cited which, of course, I do not admit yet as in the Queen v. Willan, 5 P.C. that will not apply if magistrates exceed their jurisdiction or act without it. (The Queen v. Blathwaite, 15 L.J. Mags Cases, Paley Summary Convictions 423 and 424. [The Court then stopped him upon that part of his argument.] The Licensing Court could not determine what houses should be deprived of a license until it was shown that by a valid poll it had obtained jurisdiction to deal with the question. The justices, however, not only had no evidence that the poll was valid, but they declined to receive evidence to show that it was invalid. In the Colonial Bank v. Willan, L.R., 5 P.C.C., 444, the Privy Council said :— "There is a third class of cases in which the judge of the inferior court, having legitimately commenced the inquiry, is met by some fact which, if established, would oust his jurisdiction, and place the subject matter of the inquiry beyond it. The general rule in such a case is that stated in the passage from the judgment of the Exchequer Chamber in Bunbury v. Fuller, which is cited by Mr. Justice Blackburn in Pease v. Clayton. It is a general rule that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends, and however its decision may be final on all particulars making up together that subject matter which, if true, is within its jurisdiction, and however necessary, in many cases, it may be for it to make such preliminary inquiry whether some collateral matter be or be not within the limits, yet upon this preliminary question its decision must always be open to inquiry in the superior court. And accordingly the cases show that the decision of the inferior court upon such a point is examinable either on formal proceedings in prohibition, or in an action of trespass, or on certiorari." It was said that the Court would not grant certiorari where another remedy by appeal was provided, but in that same case of the Colonial That was Per Curiam.-We think that the determination of the electors of this licensing district, on "a poll Mr. Helm, as to costs, submitted that the relator should not receive costs, as he was allowed to amend the rule which he had obtained. Mr. Hodges said that the respondents had not been pat to any expense. They knew what was the point that was to be argued. If they had desired an adjournment they would have been entitled to get it, and would have received the costs of the adjournment, but they were now entitled only to the costs occasioned by the amendment, which were really nothing. The relator ought to have his costs of the application. HIGINBOTHAM C. J. said that no costs of the application would be given. Rule absolute, without costs, for the return of the documents, &c., to the Supreme Court, with the view of having the determination of the justices quashed. Solicitors for Wolfe, Watson, Morgan, and Gill for Mr. Pennefather (Dr. Quick with him) to move the order absolute. The acts of George II do not apply to a specially constituted Court, the members of which happen to be justices. They only apply to judg justices in sessions, and exercising the powers comments, convictions or orders of justices sitting as 304.) This Licensing Court has jurisdiction wholly monly exercised by justices (King v. Bateman, 1 East unknown to common law. Object of the act was only to give notice to the justices, but that is superseded by the procedure under our Justices of the Peace Statute. The rest of the case they regarded as settled by the judgment (supra) of the Court in Queen v. Patterson and the Licensing Court of Ballarat, Exparte Woofe, but submitted that the affidavits sufficiently disclosed that the Licensing Court had refused to receive evidence to show that the poll was invalid. in An application to make absolute a rule nisi for a writ of certiorari to the Licensing Court at Rochester directing them to bring up the proceedings connected with the local option poll at Rochester, and the determination of the Licensing Court. The application HIGINBOTHAM, C. J. in delivering the judgment was made at the instance of Mr. Simon Graham, of the Court said --We think that the preliminary obRochester, the owner and licensee of the Commercial jection which has been taken in this case is one which Hotel at Rochester. A poll of the electors was taken cannot be sustained. It is founded upon a decision under the Licensing Act 1885 on the 15th March of this Court that the old acts of 5 George II., last, to determine whether or not the number of vic- chapter 19, and 13 George II, chapter 18, are tuallers' licenses should be decreased in the Rochester force in this country, and are applicable to the cirLicensing District. The result of the poll, as reported cumstances of the persons who decided this case. by the returning officer, was to reduce the number of These acts provide that no writ of certiorari shall be licensed houses to the statutory number. The Licens-granted or issued to remove any conviction, order, or ing Court sat on the 22nd, 23rd, and 25th June last, other proceeding had or made by or before any and consisted of Mr. E. B. Hamilton, Judge of justice of the peace of any country, &c., or the respecCounty Courts, Mr. R. Strickland and Mr. G. F. tive general or quarter sessions, unless it be duly Bartrop, police magistrates. It was stated in the proved upon oath that the party serving out the same affidavits in support of the application for the writ of has given six days' notice in writing to the justice or certiorari that the Licensing Court refused to receive justices whose order is called in question. It is also any evidence to show that no valid poll had been provided that no certiorari shall be allowed to remove taken, and had decided to act only on the report of any judgment or order unless the party or parties the returning officer as to the result of the poll. prosecuting the certiorari shall enter into recogniAmong the hotels which they deprived of a license sances with sufficient sureties. Both acts are appliwas the Commercial Hotel, of which Mr. S. Graham cable to justices of the peace, exercising their was the owner and licensee. It was contended that functions either separately as justices of the peace or as members of a court of general or quarter the Licensing Court acted without jurisdiction in deciding to deprive Mr. Graham's hotel of a license, as sessions, or sitting now in petty sessions. Assuming they had refused to receive proof that there had been they are in force in Victoria they are not applicable no valid poll of the electors, which was an essential to persons constituting a licensing court under the preliminary to their exercising any jurisdiction. licensing statute. The Licensing Court under this statute is a court of record; it has a seal; it is a Mr. Hood (Mr. J. T. T. Smith with him) to show court the members of which take an oath or declara cause objected that the applicant had not adopted tion for the purpose of enabling them to the proper steps to obtain a writ of certiorari. Ac- discharge their duties as members of the court. cording to the statutes of 5 George II., chapter 19, The members of whom the court is composed are not and 13 George II., chapter 18, he should have given necessarily nor wholly justices of the peace. One of six day's notice to the justices of the intention them is a County Court judge. It is provided that to apply for a certiorari, and should also have the others shall be police magistrates. That is not entered into a recognisance, with sureties, for the by virtue of their appointment as police magistrates, costs. It was held in The Queen v. Mollison, 4, and therefore as justices; but by virtue of the A.J.R., that those acts did apply to the colony. In appointment as members of this court they possess re Sargood, exparte Pye, Argus Reports 17th September the jurisdiction conferred on the court. The provis1857, and Exparte Sayers, 6 A.L.T., 24. They also sub-ions of these acts of George II. are not applicable to mitted that there was no distinct evidence that the Licensing Court had in this case refused to receive evidence. members of the Licensing Court. We will only add to this decision that we desire that it is not to be understood that we decide that at the present time, and in view of the legislation that has recently taken. place with reference to justices of the peace and their general duties, these acts of George II. are to be assumed to be still in force in Victoria. It is not necessary for us to express any opinion on that point. A decision has been given that these acts do apply; we do not overrule that decision; and we abstain from expressing an opinion whether in view of recent legislation these acts now apply here. The other por tion of the case is similar in its main feature to the of a judge can appeal from such non-suit. A parent may sue in his own name for loss of service sustamed by him from a tort of the defendant towards a child of such parent. Plaintiff Appeal from County Court, Ballarat. John Dally had sued in his own name the defendant, Ann Bellinger, for £49 damages caused by defendant's dog biting the plaintiff's daughter, aged 11 years, whereby the plaintiff lost her services and was put to expense in obtaining her cure. After the opening of case which we had last before us. It is a condition plaintiff's case by his attorney, the daughter, being of the jurisdiction of the Licensing Court that there called, was asked her age by the judge, who then said shall be a determination of the electors of the to plaintiff's attorney "This action should have been licensing district at a poll "to be taken as aforesaid "brought by the girl by her next friend, and the present —that is, that there shall be a poll of the electors plaintiff is the wrong plaintiff. The only case where a taken by ballot in accordance with the regulations parent can sue for loss of service is in case of seducmade by the Governor in Council prescribing the tion. You can go on with the case if you like, but I mode in which the poll shall be taken, and the form cannot see it will do you any good." The plaintiff's in which the ballot papers shall be framed. The attorney then took a nonsuit in deference to such question whether there has been a valid determination opinion, and now appealed. of the electors is a condition precedent to the jurisdiction of the Licensing Court, and that condition precedent is a fact which must appear upon the order of the Licensing Court, whose existence is founded upon the existence of that preliminary fact. It appears from the affidavits here that the Licensing Court entered upon the consideration of the existence of the fact, and that in the course of its proceedings it refused to receive evidence which was tendered to show that a valid determination of the electors had not been arrived at. As that fact has been brought before us by affidavit, and has not been disputed that fact calls on us to say that proof is wanting of the existence of the preliminary fact constituting a condition to the jurisdiction of the court. We confine our judgment particularly to the refusal of the Licensing Court to receive the evidence. That is sufficient to justify our decision, nothwithstanding the fact that we have not before us at present the order made by the Licensing Court. It is to be regretted that we have been compelled in some sort to consider this question without having the order of the Licensing Court before us, but the fact of the refusal to receive the evidence being disclosed to us by affidavit justifies and requires us to hold that the Licensing Court wanted by its own act the proof of that which was essential to its jurisdiction, and therefore this order of the Licensing Court is one that is liable to be quashed when it is brought before us in due time on certiorari. The writ of certiorari must go, and for the sole reason of the refusal to receive the evidence, and in this case with costs. Rule absolute for the issue of a writ of certiorari to bring up the proceedings with the view to quashing the order of the Licensing Court. Solicitors for the applicant: Oldham and Chambers; Sutherland for the Crown. DALLY V. BELLINGER. 15th Nov., 1888. A plaintiff who is non-suited in deference to the opinion Mr. Woinarski for appellant. The plaintiff is not prejudiced by having accepted a nonsuit in deference to the opinion of the judge; Harvey v. Shire of St. Arnaud, 5 V.L.R. 312; Davidson v. Brown, 5 V.L.R. 288. (He was stopped by the Court). Mr. Macdermott for defendant. The plaintiff voluntarily was nonsuited, and cannot now appeal. The judge merely threw out an opinion inviting discussion, and the plaintiff virtually gave up his case. Per Curiam.-We think this case comes within the cases of Davidson v. Brown and Harvey v. Shire of St. Arnaud, 5 V.L.R. 288 and 312, which cases express what has always been the rule with reference to the question now brought before us, that is where a judge at the trial expresses distinctly an adverse opinion on the case brought forward by the plaintiff, and the plaintiff by his counsel out of deference to that opinion declines to proceed further with his case; he is not prevented from appealing from such non suit. In this case the judge expressed his opinion in at first ambiguous words, but then followed up by saying "You may go on if you like, but I cannot see it will do any good," which is a very strong expression of disapproval of plaintiff's case. It is not contended that the judge was right on the point of law in this case. He was clearly in error. The case must therefore be committed for hearing before a judge of this Court. Appeal allowed with costs. Case to be re-heard before a judge of the Supreme Court at Ballarat. Solicitors, T. Anderson Robertson, John Hardy. Application on behalf of the plaintiff under Order XLII r. 20 for a renewal of the writ of execution. Mr F. L. Smyth in support. It appears from the affidavit filed in support that on the 10th November, 1887, judgment was obtained, and that a writ of Fieri Facias was issued and lodged on the same day in the sheriff's hands to levy the sum of L67 19s 9d and L1 15s 6d costs. No proceedings were taken on the writ until the 26th October, 1888, when the sheriff was directed to proceed, and the sheriff has advertised certain of the defendant's land for sale. HIS HONOR-This writ was issued on the 10th November, 1887, and would therefore expire on the 10th of this present month. Order XLII r. 20 certainly contemplates that the application for a renewal should be made before the writ has expired. Mr Smyth By Order LXIV r. 7 the court or a judge has power to enlarge the time fixed for taking any proceeding, although the application is not made until after the expiration of the time appointed or allowed; and in Eyre v. Cox, 46 L.J. (N.S.) Ch. 316 leave was given to renew a writ of summons after the expiration of the twelve months. HIS HONOR said-I will consider the matter. HIS HONOR, on the following day, said-In this case application to renew a writ of execution was made after the expiration of the writ. I have read the case of Eyre v. Cox cited by Mr Smyth, and I have compared Order VIII r. 1, under which the application in that case was made, with Order XLII r. 20, under which the present application is made. I find that the two rules are identical, and therefore the case of Eyre v. Cox is an authority for granting the renewal even after the writ has expired. I will make the order as sought. But see Hepburn v. Dawbin 6 A.L.T. 129. [ED.] 28th November. (Before Kerferd, J.) KILPATRICK V. LANG. Rules of Supreme Court, 1884, Order XIX. r.r. 5, 17, 27-Appendix D. Section II, No. 2-Specific performance-Defence-The forms of defence to an action for specific performance as provided by appendix D. Section II. No. 2 should be used-Defence denying each and every allegation contained in the statement of claim ordered to be amended. Application on behalf of the plaintiff under Order XIX r. 27, for an order to compel the defendant to amend his defence. The pleadings were as follows :— STATEMENT OF CLAIM. The plaintiff claims specific performance, &c. DEFENCE. The defendant says that- 1. He denies each and every allegation contained in para graphs 1 and 2 of the Statement of Claim. 2. The defendant will object that the alleged agreement, if made, is not sufficient within the meaning of the provisions of No. 204 section 107. Mr Hood in support. Paragraph 1 of the defence is in violation of Order XIX r. 17, which provides that it is not sufficient for a defendant to deny generally the grounds alleged in the statement of claim. Further than that Order XIX r. 5 provides that the forms in the Appendices CD and E shall be used, and Appendix D Section II No. 2 gives the forms of defences which are to be used in actions for specific performance. Mr McArthur to oppose. In the case of Virtue v. Young 6 A.L.T. 204 the same form of defence was adopted and was allowed. HIS HONOR-Look at Blackburn v. Mayor &c. of Melbourne 6 A.L.T. 154. Mr McArthur-In Blackburn v. Mayor &c. of Melbourne the defence denied all the material allegations in the statement of claim, but in this defence all the allegations whether material or not are denied. If you take the first form of defence given in Appendix D Section II No. 2, it will be seen that the present defence alleges everything that is alleged in that form, for there is no difference between alleging that "the defendant did not enter into the agreement" and denying that he did enter into the agreement. The plaintiff cannot be embarrassed in any way. HIS HONOR said-Certain forms of defence to actions of specific performance are given in Appendix D, and Order XIX r. 5 requires that those forms shall be used. As the defendant has not used those forms I must allow the summons with costs. The defendant to have three days further time to amend his defence as he may be advised. I certify for counsel. Solicitors for plaintiff, Herald; for defendant, Prendergast. (Before Holroyd, J.) OSBORNE V. OSBORNE. 3rd Dec. Real Property Statute 1864-Judicature Act 1883 (No. 761) section 41-Special guardian-Application for the appointment of a special guardian heard in Chambers. Ex parte application for the appointment of a special guardian of infant petitioners for the purpose of making an application under The Real Property Statute 1864 for setting out a road over property directed to be sold in the cause. HIS HONOR Said-Ought not this application be made to the court? 8th Dec., 1888. It was contended in support that the application an affidavit sworn before a notary. According to our should be made to a judge in Chambers, inasmuch as practice this mode of authentication is insufficient, section 41 of the Judicature Act 1883 provided that and there is nothing in section 63 of the Judicature the practice and procedure of Her Majesty's High Act to assist the applicant. It will, therefore, be Court of Justice in England existing at the time of necessary either to have the power re-executed before the passing of this act shall be adopted, and followed a consul under that section, or to obtain some indein the Supreme Court, and that it had for a con- pendent evidence on affidavit authenticating the sigsiderable time been the English practice to deal with nature of the power of attorney. The latter course applications of this kind in Chambers. will probably be preferable, and I should be disposed to accept any evidence reasonably justifying the inference that the document is authentic and is executed by the person from whom it purports to come, HIS HONOR, after reading the affidavits filed in support, said I will make the order. Solicitors for the applicants, Crisp. Lewis and There may have been prior correspondence which led Hedderwick. SUPREME COURT SITTINGS. PROBATE JURISDICTION. (Before 'Beckett J.) IN THE ESTATE OF JANE ROPER, DECEASED. Nov. 1st, 14th. Judicature Act 1883, sec. 63.—All affidavits, &c., in any cause or matter depending in the Court sworn and taken in any foreign part out of Her Majesty's dominion, shall be sworn and taken before any of Her Majesty's consuls or vice-consuls. Motion for a grant of letters of administration to Charles Frederick Taylor, attorney under power of James Roper (of Annesbury, county of Essex, Massachusetts, in the United States America) husband of the deceased. | to the nomination of the attorney here connecting the power satisfactorily with the person from whom it professes to come, and showing him to have been the husband of the intestate. Proctors: Taylor and Russell. (Before A'Beckett J.) Nov. 1st, 14th IN THE WILL OF GEORGE CRUICKSHANK, DECEASED A testator wrote his will on a printed form and filled Held not a valid testamentary paper. [In re Ryan (10 Motion for a grant of probate to the executors appointed by a document purporting to be the last will of George Cruickshank, deceased, or in the alternative, to the executors of a former will made by the same testator. Hayes appeared in support. Cur, adv. vult. Anderson, in support :-The applicant is the attorney under power of James Roper, husband of the deceased. All necessary documents are before the court, but there is an irregularity in one of them which it is proper to mention. The affidavit of due HIS HONOR, in giving judgment, said-In this case execution of the power of attorney has the testator wrote his will on a printed form, and been taken before a notary public at Annesbury, filled up the back of the form with various provisions Massachusetts, in the United States. Section 63 of in continuation of those on the first page, and at the the "Judicature Act 1883 " provides that all affidavits close of the further provisions are the words “Here &c., in any cause or matter depending in the Court endeth the last will and testament of George Cruickshall be sworn and taken before any of Her Majesty's shank." The whole is in the testator's handwriting, consuls or vice-consuls, in any foreign part out of Her and I am satisfied that all was written before the will Majesty's dominion. The section, however, further was signed and attested by the witnesses. It was provides that affidavits made in any country in Her signed and attested on the first page only, and the Majesty's dominion can be taken before a notary pub-attesting witnesses do not appear to have seen the lic, so that if this document had been sworn in any British possession, it would have been regularly made. Great delay would be caused by holding the affidavit inadmissible. Cur. adv. vult. HIS HONOR, in giving judgment, said In this case a power of attorney was executed in Massachusetts before a notary, and the signature verified by second page. Looking at the first page alone it is a complete will, but the testator did not mean that alone for his will. He has signed his name on the first page only of a will written on three pages, and on the principle of the cases which I had to consider in the will of John Thomas Ryan (10 A. L. T. p. 5), I regard this signature as inoperative to give validity |