the parties at all, but that the defendants were permitted by the plaintiffs to work upon the lease, and were never prevented from doing so till 2nd May. That permission amounted to a license by the plaintiffs to the defendants, which was revocable at any time, and was in fact revoked on 2nd May. It was contended in argument that the license became irrevocable when the defendants were permitted to spend large sums of money upon the plaintiffs' property, but we think that if the defendants wished to bring themselves within the authority of the cases cited to us in argument upon this point, it was incumbent upon them to show that the money was spent in the faith that they were entitled to work the mine for six months, and that it would not have been spent except in this belief. There is no evidence to that effect, and the learned Judge has not so found, but he has found that the defendants expended nothing beyond what was absolutely necessary for the immediate purpose of enabling them to obtain the largest amount of ore in the shortest possible time, and that defendants' work was worthless to the plaintiffs. We cannot see that anything is to be gained by sending the case back for further inquiry into this matter. to As to the ore obtained by working on Sundays, although the defendants may not be entitled any sympathy or consideration, we cannot overlook the fact that the plaintiffs permitted this reprehensible conduct,. or, at all events, did not prohibit it by withdrawing their license, and cannot, therefore, take advantage of their own passivity in this respect. We are further of opinion that it is practically impossible to ascertain what ore was actually got out of the mine on Sundays. We therefore think that the order of the learned District Court Judge should be varied as follows:-Paragraph iii. should be struck out, and there should be substituted a declaration or order that the defendants are entitled to the whole of the proceeds of ore obtained before 2nd May, subject to the payment of 5 per cent. royalty in the proportions mentioned in Paragraph ii. We think it unnecessary to answer in detail the questions submitted in the case, and we think there should be no order as to the costs of this appeal, F. C. SHEPPARD AND Cooper C.J. F. C. MOFFAT V. SHEPPARD AND Real J. Power J. REAI J. I agree with the judgment of the learned Chief Justice, and the reasons he has given therefor. I offer no opinion as to whether or not this Court would hold a license, created in this way, irrevocable for the time mentioned when the first permission to mine. was given, if there had been a finding, with evidence to support it, to the effect that the licensee had spent large sums of money on the faith of the license continuing-that is to say, sums which they would not have expended from day to day for the mere purpose of effecting the immediate work in hand without reference to any extended right of working. It will, I think, be time enough to consider that point when such a case comes up for consideration. I desire further to say that had circumstances been shown which would have induced the Court to declare the permission originally given irrevocable until the expiration of the six months then mentioned, I do not think the Court would, against the will of the licensors, have declared the license. was irrevocable to an extent greater than the number of men found by the learned District Court Judge in his answer to Question vi. But, as pointed out in the judgment of the Chief Justice, up to the 2nd May, the licensors having power to absolutely stop all work at their election, as they did on the 2nd May, must be taken to have licensed such work as went on. The case in that respect amounts to this-The licensors had given their word; there was perhaps a dispute about the extent to which they had intended to authorise the working, but although they thought the licensee claimed something more than in the then state of things they would be inclined to grant, they were not prepared to altogether withdraw their permission to mine or to withdraw their permission to mine except with a less number than actually employed, thereby risking the possible chance of incurring that odium which attaches to a man who does not keep his word. POWER J. I also agree. : Judgment of District Court varied. Solicitors for appellant: Foxton, Hobbs, & Macnish, for MacDonnell, Hannam, & Henchman, Cairns. Solicitors for respondents: Chambers, McNab, & McNab, for L. W. Marsland, [IN THE FULL COURT.] THE KING v. THE LICENSING AUTHORITY OF ROMA, Licensing law-Application for provisional certificate-Objection By s, 40 of The Licensing Act of 1885, it is provided (inter alia) that objections may be made to the grant of a certificate by petition to the Licensing Authority by ratepayers and others. At the hearing of an application for a provisional certificate, a petition signed by ratepayers and others and in favour of the application was tendered in evidence. The petition set out the number of hotels in the neighbourhood and the nature and circumstances of the surrounding district in respect to increasing population and commercial activity. This petition was admitted in evidence and the provisional certificate granted. On application for a certiorari or a prohibition on the ground that the petition was wrongly admitted, and that the Licensing Authority had not acted judicially and within their jurisdiction in admitting it : Held, that the petition was inadmissible as proof of all the facts alleged in it; that the action of the Licensing Authority in admitting the petition only amounted to a wrongful admission of evidence; that neither certiorari nor prohibition would lie, as the Licensing Authority had jurisdiction over the subject matter of the application, and did not assume or exceed jurisdiction; and that the proper remedy was by special case under The Justices Act of 1886. ORDER NISI FOR CERTIORARI OR PROHIBITION. Application was made to the Licensing Authority of Roma for a provisional certificate under s. 33 of The Licensing Act of 1885. Objection was made to the grant by petition by ratepayers and others under s. 40. During the hearing, the applicant tendered in evidence a petition in favour of the application. This petition was addressed to the Licensing Authority of Roma, and was signed by residents and ratepayers of the district where the proposed hotel was to be erected. It set out the number of hotels in the district and the nature and circumstances of the district as to increase of population and business. The signatures were not verified on oath. This F 1907. December 3, 4. Real J. F. C. THE KING V. THE AUTHORITY OF petition was admitted in evidence, and the provisional certificate granted. An order nisi for a writ of certiorari to remove the record of the proceedings and order of the Licensing Authority into the Supreme Court, and alternatively for a writ of prohibition to prohibit any further proceeding was granted on certain grounds, which raised the question whether the petition was wrongly admitted in evidence, and whether the Licensing Authority acted judicially and within their jurisdiction in admitting it. Power, for the prosecutors: By s. 40 of The Licensing Act of 1885 (1), objections may be made by petition, and the signatures of the petitioners must be verified on oath. That section allows objection to be made by petition to the grant, renewal, or transfer of a license or certificate; but the Act contains no provision by which a petition on behalf of an applicant may be received in evidence, which was not on oath, and the admission of the petition amounted to the admission of evidence in favour of the applicant by the different signatories. In doing this, the Justices did more than admit evidence wrongfully. They did not act judicially. They adopted a wrong procedure, and how far their minds were influenced by this evidence it is impossible to say, but they may have been influenced, and that is sufficient to invalidate the decision. Atkinson v. Pinnock (2), R. V. Justices of Camooweal (3), R. v. King, Ex parte King (4), R. v. Hull (5). Further, even as a petition this document was irregular, for the signatures were not verified. It amounted to hearsay evidence. Certiorari and prohibition both lie. In re Range (6), R. v. Justices of Rockhampton, Ex parte Skinner (7), The Queen (c) An inspector; and (d) In the case of a proposed removal, the owner of the premises. The signatures to every such (2) 1886, 2 Q.L.J. 138. v. Tilston (1). If mandamus is a more appropriate remedy, I apply for an order nisi returnable instanter. He also referred to Shortt on Mandamus, p. 263; Gurner v. Justices of Kalgoorlie (2), R. v. Guthridge (3). In re Lukin: Neither certiorari nor prohibition will lie. Range (4), Colonial Bank of Australasia v. Willan (5), R. v. Justices of Isisford (6), The Licensing Act of 1885, S. 128; Ex parte Rayner (7), R. v. Casey (8), Hale v. Molloy (9), R. v. Justices of Rockhampton, Ex parte Petersen (10). Mandamus would be of little use, and so, being discretionary, will not be granted. In any event, mandamus was not applied for. The proper remedy is by way of special case, and application therefor is now too late. The Justices Act of 1886, ss. 226 and 231; In re Dunford (11). The most that can be said in this case is that evidence was wrongfully admitted, but its admission did not affect the decision. [With leave of the Court he read affidavits of the Justices to show that the petition was not regarded by a majority of the Justices in arriving at their decision.] The petition was admissible as the opinion of persons who, by statute, are, to a certain extent, parties to the proceedings. Sections 40, 41, subsec. 5; Sugden v. Lord St. Leonards (12). The second Schedule, r. 7, providing that evidence shall be given in the same way as in Courts of law, does not require strict observance of rules of evidence. It is analagous to declaration as to domicil and insolvency, and other extra judicial declarations. Phipson on Evidence, 3rd Ed., p. 56. Spurway v. Spurway (13), Rogers v. Rogers (14). It may perhaps be admissible in rebuttal of the other petition. Power, in reply: A special case under the Justices Act is not the only remedy. R. v. Licensing Justices of North Brisbane (15), McGrath v. Rawlins (16), R. v. Justices of Ravenswood (17), and this new remedy does not oust the remedy by mandamus. (1) 1897, 8 Q.L.J. 6. (2) 1903, 5 W.A.L.R. 87. (9) 1888, 4 N.S.W. W.N. 126. (10) 1903, St. R. Qd. 71. (11) 1848, 12 Jurist. 361. (15) 1894, 6 Q. L.J. 95. F. C. THE KING V. THE |