1843, and continued by several adjournments from the said 3d day,' &c., to Tuesday the 16th day of May, 1843, for the purposes in the said writ of mandamus mentioned. And we do further certify that the several parchment writings are the examinations reduced into writing by Charles Martin Teed, Esquire, the Clerk of the Crown of the Supreme Court of Judicature at Madras, and Frederick Orme, Esquire, the Deputy Clerk of the Crown of the said Supreme Court, which were, at the time and place aforesaid, openly and publicly taken vivâ voce before us upon the oaths of William Henry Bayley, Nathaniel William Kindersley, Moorgapah Moodelly," &c. (naming others), "under and by virtue of the said writ of mandamus. And we further certify that C. M. Teed is the Clerk of the Crown, and F. Orme is the Deputy Clerk of the Crown, and sworn officers of the Supreme Court. In witness whereof we have hereunto set our hands and seals, this 7th day of July, 1843. "EDWARD J. GAMBIER. (L. S.)

JOHN D. NORTON, Puisne Judge (L. S.)." *We, Charles Martin Teed, Clerk of the Crown, and Frede[*47 rick Orme, Deputy Clerk of the Crown, respectively sworn Officers of Her Majesty's Supreme Court of Judicature at Madras, do hereby certify that we were present, as such Clerk of the Crown and Deputy Clerk of the Crown, during the whole of the proceedings had and taken on the 3d day of April, 1843, and continued by several adjournments from the said 3d day of April to Tuesday the 16th day of May, 1843, under and by virtue of a writ of mandamus hereunto annexed, issuing," &c., "bearing date," &c., "addressed to," &c., "commanding them," &c. (as recited in the return of the two Judges). "And we do further

certify that the parchment writing hereto annexed, marked Roll No. 1, contains a full and faithful particular and account of all the proceedings had and taken under and by virtue of such writ of mandamus. And we do further certify that the roll of parchments hereunto annexed, marked Roll No. 2, containing the several examinations of William Henry Bayley," &c. (the witnesses before mentioned in the return), "are true and faithful copies of the vivâ voce examinations of the said W. H. Bayley," &c., who were severally produced, sworn and examined as witnesses in pursuance of the said writ of mandamus; such parchment writings having been transcribed in the Crown office from the original examinations of the said several witnesses taken by us the said C. M. Teed and F. Orme in open Court as such Clerk of the Crown and Deputy Clerk of the Crown as aforesaid, the same having been carefully collated and compared by us the said C. M. Teed and F. Orme, as such officers as aforesaid, with such originals: and that the said *examinations are subscribed by the said W. H. Bayley," &c., "re[*48 spectively. And that the several paper writings hereunto annexed, marked A, 55," &c., are the original orders of Court; and that the

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several gazettes hereunto annexed are true and faithful copies of official advertisements of holding the Court read by me the said C. M. Teed as such officer as aforesaid in open Court on the several days: and that the several paper writings hereunto annexed marked, respectively A, D, T," &c. (referring to several exhibits and their enclosures, &c.), "are the original exhibits produced on the examinations of the said witnesses. And that the several papers, marked respectively R A, No. 1." &c., are the original exhibits in the native languages, with the translations thereof into the English language made by the sworn interpreter of the said Supreme Court of Judicature, and produced on the examination of the said witnesses: and that the book which contains the exhibits marked A, No. 6, to A, No. 29, inclusive, are translations made by the said sworn Court interpreter from the original exhibits thereof, and produced on the examination of Ramanad Bhutt, a witness for the prosecution: and that the several paper writings hereunto annexed, marked respectively No. 1 and No. 2, are the original exhibits, and the paper writing marked No. 3 is a true copy of an exhibit, put in on behalf of the defendant: and the said originals, translations, and copies were marked by us, the said C. M. Teed and F. Orme, as such officers as aforesaid, and when the same were put in for the prosecution and for the defendant. Dated this 7th day of July, 1843.

*49]

"C. M. TEED, Clerk of the Crown.

FREDERICK ORME, Deputy Clerk of the Crown." *The return then set forth the proceedings under the mandamus, "in the Supreme Court of Judicature at Madras, Crown side," "at a special court holden at the Court House, Beach Buildings, Madras," on Monday, 3d April, 1843, pursuant to an order of Court of 8th March, 1843, and by virtue of a writ of mandamus, &c.; and on other days by adjournment: "Present," on each day, "The Hon. Sir EDWARD JOHN GAMBIER, Knight, Chief Justice, and the Hon. Sir JOHN DAVID NORTON, Knight, one of Her Majesty's Justices;" and counsel and attorneys attending for the prosecution and defence. This part of the return contained, first, the minutes of the Court, stating generally the transactions of each sitting; and, next, a transcript, in detail, of the examinations. In the minutes of one of the first days the following entry appeared: "The clerk of the Crown and the deputy clerk of the Crown are directed. by the Court to take down the proceedings and evidence." The examinations were introduced and ended in the following forms:

"William Henry Bayley, Esquire, called, sworn, and examined by Mr. Parker, counsel for the prosecution, on Wednesday the 12th day of April, &c."

"Subscribed in Court this 12th day of April, 1843.

C. M. TEED, Clerk of the Crown.

"W. H. BAYLEY."

"Morgapah Moodelly called, sworn, and examined by the Advocate

general, through the sworn Court interpreter, in the Tamil language," on the 12th of April, &c.

"Subscribed in Court, &c."

At the end of the whole series of examinations were the words:

(True copies) FREDK. ORME, Depy. Clerk Crown.

(True copies) J. G. CUNLIFFE, Dępy. Secy. to Govt."

*Then followed copies of the exhibits, verified in like manner by [*50

Mr. Orme.

On the trial, before Lord DENMAN, C. J., at the sittings in London after Hilary term, 1845, the case on behalf of the Crown was that the defendant had unlawfully received gifts while he was employed in the office of resident at the Court of Tanjore, under the East India Company. The depositions and exhibits above mentioned were the principal evidence. The depositions were on parchment, purporting to be signed by the witnesses respectively. It did not appear by whom the deposi *tions were written; but evidence was given at the trial that they were not written by Teed or Orme. The signatures of Teed and Orme were proved to be genuine. Objections were taken to the admissibility of the documents: but the Lord Chief Justice received them, giving leave to move, if necessary, that a verdict of acquittal might be entered. distinct objection (see next page) was also made to such of the depositions as were taken through the medium of an interpreter. Verdict, Guilty.(a)

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Kelly, in Easter term 1845, moved that a verdict might be entered for the defendant on the following grounds, affecting the depositions generally. First, this Court is empowered by stat. 13 G. 3, c. 63, s. 40, to award a mandamus for the taking of depositions to the Judges of the Mayor's Court at Madras; but the Mayor's Court has been abolished, and other courts have been established in its stead, by stats. 37 G. 3, c. 142, 39 & 40 G. 3, c. 79, and 4 G. 4, c. 71: and the power of [*51 issuing a mandamus to take depositions has not been extended so as to affect these Courts; nor does it regularly appear what authority in this respect has been vested in such courts since the abolition of the Mayor's Court. Secondly: the mandamus is directed to the Chief Justice and other Judges of the Supreme Court at Madras, commanding them to hold a court for the examination of witnesses; but the return shows that only the Chief Justice and one Judge attended the execution of the writ. Thirdly by stat. 13 G. 3, c. 63, s. 40, the examinations are to be reduced into writing by some sworn officer of the court in India; but the return furnishes no sufficient proof that this was done. Kelly also stated, as a ground of motion for a new trial (or, as it might prove on reference to the record, a fourth ground for entering an acquittal), that the last-mentioned clause requires the examinations to be taken upon the oaths of witnesses, and upon the oaths of interpreters, administered (a) The verdict was taken on sixteen counts; and a special finding was added. See p. 77, post.

according to the forms of their several religions; whereas, in the present case, where an interpreter was mentioned, the return merely styled him "the sworn Court interpreter," but did not show that he was sworn to interpret truly in the particular instance.(a) Kelly likewise *stated that there were objections in arrest of judgment: but, by *52] the direction of the Court, these were reserved till the above-mentioned points should have been disposed of. A rule nisi was granted for entering a verdict of acquittal, or for a new trial.

In Hilary vacation (February 9th and 10th), 1846,(b)

Sir F. Thesiger, Attorney-General, Loftus Wigram, Clarkson, W. F. Pollock and Forsyth showed cause.-As to the first objection: It is true that, by stat. 37 G. 3, c. 142, ss. 9, 10, 11, 18, the Recorder's Courts of Madras and Bombay respectively were substituted for the Mayors' Courts; (c) and, again, by stat. 39 & 40 G. 3, c. 79, ss. 2, 5, the King was empowered to create a supreme court of judicature at Madras, constituted in the same manner, and exercising the same jurisdiction, as the Supreme Court which His majesty was authorized to erect at Fort William by stat. 13 G. 3, c. 63, s. 13, and the powers vested in the Recorder's Court of Madras under stat. 37 G. 3, c. 142, were to be transferred to the new Supreme Court when created. It is suggested, on the other side, that this Court is not regularly informed of such a Supreme Court having been created; but such a Court is recognised by stat. 53 G. 3, c. 155, s. 89, and stat. 4 G. 4, c. 71, s. 18, which relate to the salaries and pensions of the Judges; and stat. 6 G. 4, c. 85, s. 1, expressly recites that King Geo. 3 did, in the 41st year of his reign, establish the Supreme Court at Madras, according to stat. 39 & 40 G. 3, *53] *c. 79. But it will be contended that the examination of witnesses in obedience to a mandate of the Queen's Bench, in a cause there depending, is an exercise of power depending strictly on statute; and that such power is not inherent in the Court constituted in India, but emanates from the Court of Queen's Bench, and cannot be exercised by that. Court except in the particular cases which the law has defined. But, even on this view of the question, the authority is clear. Stat. 39 & 40 G. 3, c. 79, s. 2, enacts that the Supreme Court at Madras shall consist of such and the like number of persons, to be named, &c.," with power to exercise such jurisdictions, "and to be invested with such power and

(a) The following grounds for a new trial were also stated: That, in several of the counts on which the defendant had been convicted, the offence charged was the receiving money (rupees) by way of gift; whereas the evidence showed only a receipt of bills of exchange, having some time to run, and which the drawee might not have paid when due: And as to other counts, that the parties named as the givers were only messengers or officers of persons from whom the gifts really came. No decision was pronounced on these objections, a nolle prosequi being entered (at the suggestion of the Court) on the counts to which they related.

(b) Before Lord DENMAN, C. J., PATTESON, WILLIAMS, and COLeridge, Js.

(c) The Attorney-General mentioned that in Rex v. Stevens & Agnew, 5 East, 244 (but not on this point), a mandamus to examine witnesses went to the Recorder's Court of Bombay, and no objection was taken.

authorities, privileges and immunities, for the better administration of" its jurisdictions, "and subject to the same limitations, restrictions, and control within" Madras and its territories, "as the said Supreme Court of Judicature at Fort William in Bengal, by virtue of any law now in force," &c., or by this present act, doth consist of, is invested with, or subject to," within Fort William, Bengal, &c. Again, stat. 4 G. 4, c. 71, s. 17, expressly declares and enacts "that it hath been and is and shall be lawful for the Supreme Court of Judicature at Madras," and for the Supreme Court of Judicature at Bombay, "and the said Supreme Courts respectively are hereby required, within the same respectively, to do, execute, perform, and fulfil all such acts, authorities, duties, matters, and things whatsoever, as the said Supreme Court of Fort William is or may be lawfully authorized, empowered, or directed to do, execute, perform, and fulfil within Fort William in Bengal." And the Supreme Court at Fort William is authorized and required to take examinations under *a mandamus from this Court, by stat. 13 G. [*54 3, c. 63, s. 40. By sect. 44 of stat. 13 G. 3, c. 63, the Courts at Westminster were empowered to issue writs of mandamus to the Court at Fort William, for the examination of witnesses in civil suits: the language used is like that of s. 40; and the clause is extended to suits in all foreign dominions of the Crown of England, by stat. 1 W. 4, c. 22, s. 1. And by stat. 42 G. 3, c. 85, s. 1, it is enacted that, if any person who shall have, hold, or exercise any public station, office, capacity, or employment, out of Great Britain," shall commit any misdemeanor "in the execution, or under colour, or in the exercise of any such station," &c., as aforesaid, every such misdemeanor may be tried in the Court of King's Bench in England, on information by the AttorneyGeneral, or on indictment; and sect. 2 enables the Court of King's Bench, in such case, to award a mandamus to the Chief Justices and Judges or Judge of any Court of Judicature of the country where the offence is charged to have been committed, for the purpose of obtaining and receiving proofs; and the persons receiving the writ are required to hold a Court, &c., for the examination of witnesses, and to take and transmit the examinations. The office of Resident at Tanjore, though held under the East India Company, is public, according to the view taken by this Court in Blachford v. Preston, 8 Term Rep. 89, and by Lord LOUGHBOROUGH, C., in The East India Company v. Neave, 5 Ves. 173, 181. Even if the language of the statutes were less conclusive, the provision of stat. 13 G. 3, c. 63, s. 40, being highly remedial, should be extended to meet new exigencies, on the principle adopted *in Edwards v. Bennett, 6 Bing. 230 (E. C. L. R. vol. 19), and Evans, de[*55 mandant, Griffith, tenant, Jones, vouchee, 9 Bing. 311 (E. C. L. R. vol. 23). Secondly the mandamus was directed, regularly, and in conformity with stat. 13 G. 3, c. 63, s. 40, to the Chief Justice and other Judges of the Court. The clause requires that the Judges shall hold a court" VOL. XIII.-6

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