JUDGMENT Woodroffe, J. - The Plaintiffs instituted this suit on the 12th of April 1905 in the Small Cause Court against five Defendants. The first four are the members of the firm of Schroder Smidt & Co. and the fifth is Surendra Nath Sarbadhikary, a broker. The plaint expressly alleges that the Defendant Sarbadhikary as broker, and not on his own behalf but on that of the members of the Defendant firm, Schroder Smidt & Co., on the 6th of February 1905, bought for his principals a certain quantity of linseed and as such broker and on their behalf in settlement of that contract entered into another contract dated the 25th of February 1905. The Plaintiffs alleged that the Defendant-firm had repudiated the settlement contract and the Plaintiffs claimed relief primarily against the members of the Defendant-firm, and in the alternative in the event of the Court finding that the Defendant-firm did not authorize the broker to make the settlement contract of the 25th of February, that then the Plaintiffs might be given a decree against the broker. 2. The suit was decreed against the latter and dismissed as against Schroder Smidt & Co. on the 24th of May 1905. 3. On the 1st of June 1905 the Defendant broker applied for a new trial and on the 23rd of June 1905 the application was dismissed. 4. On the 28th of June 1905 he made a second application for a new trial and upon such second application, the Small Cause Court decided, notwithstanding the previous order, that a new trial should be granted and accordingly set aside the decree of the 24th of May 1905. An application was then made to me on behalf of the Plaintiffs for an order setting aside the order of the Small Cause Court upon the second application for new trial upon the ground that that Court had no jurisdiction to make such order after having refused a new trial and confirmed the decree. 5. On the hearing of that rule, I was of opinion that the Small Cause Court had acted without jurisdiction and I accordingly set aside its order of the 7th July which directed that the case should be reheard. 6. An application is now made to me on behalf of the Defendant broker under sec. 5. On the hearing of that rule, I was of opinion that the Small Cause Court had acted without jurisdiction and I accordingly set aside its order of the 7th July which directed that the case should be reheard. 6. An application is now made to me on behalf of the Defendant broker under sec. 622 of the CPC for an order setting aside the original decree of the 24th of May 1905 which was confirmed on the first application for new trial on the 23rd of June 1905. The application is based on these two grounds : firstly, that the Plaintiffs had both to allege and prove want of authority on the part of the broker; and, secondly, that there was absolutely no evidence given of such alleged want of authority. It is argued that the Plaintiffs in order to obtain a decree against either of the Defendants, had to lay a foundation for that decree. Having alleged in their plaint that the contracts in suit were entered into by the Defendant Sarbadhikary as broker on behalf of the Defendant-firm, it was upon them to give evidence that there was in fact no authority in the Defendant Sarbadhikary to act in the matter of these contracts and that only in the event of their establishing such want of authority could any decree be passed against him. 7. As authority for the proposition that it lay upon the Plaintiffs to establish absence of want of authority in the broker reliance is placed upon the case of Downman v. Williams 7 Ad. & E. (N. S.) 103, 111 (1845). 8. It is nextly said no evidence at all was given in support of the issue the burden of proof of which lay on the Plaintiffs. In the seventh paragraph of the petition it is alleged that " the Plaintiffs made no attempt to prove and did not prove want of authority on the part of the broker to pass the settlement contract and that there was no evidence of any sort or kind whatsoever on the part of want of authority and there being no evidence of absence of authority no decree could be passed against him." In support of the application for the interference of the Court under sec. 622 of the Civil Procedure Code, reliance is placed on the case of Shields v. Wilkinson I. L. R. 9 All. 622 of the Civil Procedure Code, reliance is placed on the case of Shields v. Wilkinson I. L. R. 9 All. 398 (1887), in which it was held that a Judge has no jurisdiction to pass, in a contested suit, a decree adverse to the Defendant where there is no evidence or admission before him to support the decree and that if he passed such a decree it is liable to be set aside under sec. 622 of the Civil Procedure Code. The facts of the present case so far as they are before me appear, to bring it within that ruling. I accordingly make the rule absolute and set aside the decree of the Small Cause Court of the 24th of May 1905 which was confirmed on the application for new trial held on the 23rd of June 1905. 9. I direct that the case be retried subject to any objection which may be raised by the parties as to jurisdiction or otherwise against the suit. 10. As regards what occurred on the hearing of the previous rule, I wish to say that the eleventh paragraph of the petition of the Defendant does not accurately report what I then said. I stated that I expressed no opinion upon the merits of the case, but inasmuch as the learned Judges of the Small Cause Court had determined that there should be a new trial and must therefore have satisfied themselves that there was a case for a rehearing. I should have been glad to have been able to uphold the order of the Small Cause Court directing a retrial had it been open to me to do so but that I was unable to uphold the order as it was one which in my opinion was made without jurisdiction. T express no opinion as to the merits, I decide the rule on the ground that on the materials before me there appears to have been no evidence at all to support the decree. The Plaintiff must pay the costs of the applicant the Defendant broker. Messrs. Schroder Smidt & Co. will bear their own costs.