1898 granted was that the justices of Bendigo had no jurisdiction to MAYOR, ETC., make the garnishee order absolute, as the garnishee was not OF BENDIGO υ. CRAVEN. Hodges, J. resident within that district. An affidavit had been sworn by the town clerk of Bendigo upon the hearing of the application for the attachment of the debt, in which it was stated that the Victorian Railways Commissioner was resident at Bendigo, within the jurisdiction. Bryant to move the order absolute. Deakin to show cause-There is an objection to this application which tends to show that it should not be entertained. The applicant has been guilty of several months' delay. He has furnished no excuse for such delay, and the Court, in its discretion, should now refuse to interpose: Mayor, etc., of London v. Cox (a). That case was followed in Broad v. Jenkins (b). Bryant-The judgment creditor has not had its position altered by the delay, and the Court should not now refuse to deal with the application upon its merits. The objection to jurisdiction is one appearing on the face of the proceedings, because the municipal council must be taken to know that the Commissioner does not reside within the local jurisdiction of the Court at Bendigo. The applicant was not called upon to take any steps until a demand in the action of execution was threatened. HODGES, J. In this case, on the 1st April 1898 an order nisi was made by the Court of Petty Sessions at Bendigo for the attachment of debts accruing due from the Victorian Railways Commissioner, and that order was on the same day duly served. On the 7th April that order was made absolute. On the 26th July the Railways Commissioner applied to have that order set aside, but before he made that application execution had been threatened. It is contended on his behalf that the justices had no jurisdiction to make that order attaching the debt. The question here is whether I should make the order for prohibition absolute or not. The prohibi(a) [1866] L. R. 2 H.L. 239. (b) [1888] 21 Q.B.D. 533. tion sought for is not the statutory prohibition, because the time for taking advantage of the statute has passed, but it is said that as there was no jurisdiction to make the order the common law prohibition remains. The common law prohibition is one of those extraordinary remedies which, although one of right, is not one granted as of course, the Court having a discretion as to whether or not it will grant it. I do not mean to say that the Court has a discretion to do what it pleases and to refuse the order or not as it pleases without reason. It gives the Court jurisdiction to say whether, under the circumstances, the interests of justice will be served by the issue or refusal of the writ. In the case of Mayor, etc., of London v. Cox (c), Willis, J., said:-" If the defect be of jurisdiction over the cause (defectus jurisdictionis), and that defect be apparent upon the proceedings, a prohibition goes after sentence: Roberts v. Humby (d). If it be not apparent, but the party, instead of moving for a prohibition, pleads in the special or inferior court the facts ousting the jurisdiction, and such Court improperly decides that it has jurisdiction, he may, notwithstanding such decision, upon satisfying a superior court that it was erroneous, obtain a prohibition: Thompson v. Ingham (e), followed in Chew v. Holroyd (f) and Marsden v. Wardle (g). Where, however, the defect is not apparent and depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the Court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give jurisdiction-Knowles v. Holden (h)—yet considering the conduct of the applicant, the importance of making an end of litigation, and that the writ though of right is not of course, the Court would decline to interpose, except perhaps upon an irresistible case, and an excuse for delay, such as disability, (c) [1866] L.R. 2 H. L. 239, p. 282. (f) [1852] 8 Ex. 249. 1898 MAYOR, ETC., OF BENDIGO v. CRAVEN. Hodges, J. 1898 MAYOR, ETC., OF BENDIGO 27. CRAVEN. Hodges, J. malpractice, or matter newly come to the knowledge of the Order discharged, without costs. Solicitors for Mayor, etc., of Bendigo: Hyett & Quick. 1898 August 10. Hodges, J. [PRACTICE COURT.] W. H. M. FORBES v. NEW BOULD. Justices-Order in petty sessions-Conviction-Reserved decision-Justices Act 1890, s. 77 (14). An order of justices in petty sessions convicting a defendant is not bad by reason of the fact that at the time the justices heard the evidence they had reserved their decision in another case involving the same subject matter. Hamilton v. Walker ([1892] 2 Q.B. 25) distinguished. ORDER TO REVIEW. Arthur Newbould, a dairyman carrying on business in South Melbourne, was prosecuted at the Court of Petty Sessions, South Melbourne, on 13th July 1898, under the provisions of sec. 43 of the Health Act 1890, for selling adulterated milk. The information was laid by Alexander Pettigrew Forbes, an inspector of the municipality of South Melbourne. Before the charge against New bould was heard, an information by Forbes against one Lorimer, a driver in the employ of New bould, for a similar offence, was heard. When the evidence in the latter case had been taken and the case was closed the justices reserved their decision, and intimated that they would hear Newbould's case. At the close of the evidence and during the address of defendant's solicitor, the informant's solicitor stated to the Court that he would withdraw the charge against Lorimer; that the reason proceedings were taken against him was that it was thought that there was evidence of the ownership of the cart which Lorimer was driving at the time of the sale. The Court made an order fining Newbould 21., with 31. 3s. costs. ני An order nisi to review this decision was obtained by defendant upon the ground that "the justices were wrong in hearing an information against the defendant for an alleged similar offence without first adjudicating upon that laid in the case of Forbes v. Lorimer." Larkin to move the order absolute. Isaac A. Isaacs (A.G.) (Schutt with him) to show causeUnder the Health Act, sec. 43, both master and servant were liable. The justices merely deferred their decision in the first case. Reidy v. Herry (a) is distinguishable. Here the reservation of the decision upon the first case could not affect the second case, because the second defendant was convicted, not the first. (Counsel was stopped.) Larkin in reply-Some of the evidence in the first case might have affected the decision in the second case. Justices should give their decision or retire to consider it: Justices Act 1890, sec. 77 (14). Counsel referred to Reidy v. Herry (a), Hamilton V. Walker (b). (a) [1898] 23 V.L.R. 508. V.L.R., Vol. XXIV. (b) [1892] 2 Q.B. 25. M 1898 FORBES NEWBOULD. Hodges, J. 1898 FORBES V. NEWBOULD. Isaacs--In Hamilton v. Walker the defendant was charged under two separate informations upon the same facts. Counsel referred to Reg. v. Fry (c). HODGES, J. This is an application to review a conviction made under sec. 43 of the Health Act 1898 against Arthur Newbould, at the Court of Petty Sessions, South Melbourne, on 13th July 1898. The ground of objection is that there had been before the justices upon the morning of the hearing a similar charge against one Lorimer lodged by the same informant, and that that charge had been heard, but not disposed of, at the time that the charge against Newbould was heard. Now it would, in my opinion, be a most extraordinary state of the law if any decision of justices was to be held bad because they had at the time they gave it some case which they had not disposed of-if the mere fact that they were taking time to consider some case made all subsequent decisions bad. It would also, in my opinion, be a curious state of things if, when they had reserved their decision in one case, the decision of a subsequent case was to be held bad because it involved similar questions or was concerned with similar subject matter. So far as I am aware there is no authority for the suggestion that the justices' decision is bad because they had, at the time they heard the evidence, reserved their decision in some other case in respect of similar subject matter. It is of the highest importance that justices should, when giving their decision, consider the evidence in the case before them, and that evidence alone that they should not be influenced by evidence given in any other case. To be so influenced would be against the first principles of justice; they should not consider or deal with any evidence given which any party in the case had a right to object to. If such evidence is considered and weighed by them, then their decision would very properly be set aside. That was not done here; but the evidence is to the effect that the justices proceeded to hear the second case before deciding the first. The principal case relied upon by the defendant's counsel is Hamilton v. Walker (d). In that case the justices made two convictions against the same individual. (c) [1898] 14 Times L.R. 445. (d) [1892] 2 Q.B. 25. |