for taking the examination; but not that every Judge of the Court shall be present. The return may be sealed by "two or more ;" and "one or more" may deliver it to the party by whom it is required. Stat.-6 G. 4, c. 85, s. 4, provides for the possible event of a vacancy in the office of Chief Justice in Bengal, Madras, or Bombay, and for payment of salary to one of the puisne Judges who shall fill the office till a successor is appointed. It cannot have been contemplated that, if a mandamus issued for examination of witnesses, the Court should be disabled for that purpose by the death or absence of one Judge. Lord Coke says, Co. Litt. 181 b, "Two or more may have a trust or an authority committed to them jointly, and yet it shall not survive. But" "there is a diversity between authorities created by the party for private causes, and authority created by law for execution of justice." "If a venire facias be awarded to four coroners to impannel and return a jury, and one of them die, yet the other shall execute and return the same." " If the sheriff upon a capias directed to him make a warrant to four or three jointly or severally to arrest the defendant, two of them may arrest him, because it is for the execution of justice, which is pro bono publico, and therefore shall be more favourably expounded, than when it is only for private." The authorities on this subject were *considered in *56] Blacket v. Blizard, 9 B. & C. 851 (E. C. L. R. vol. 17). The mandamus here was directed to "the Chief Justice and other Judges," "and to every of them." Those who executed it may have been all who were then in being at all events the Court will not presume that the execution of the writ by two, primâ facie having jurisdiction, took place under circumstances of irregularity; Rex v. Hinckley, 12. East, 361, Rex v. Catesby, 2 B. & C. 814 (E. C. L. R. vol. 9).

Thirdly The Judges have returned.that the examinations on parchment are the examinations reduced into writing" by Teed the clerk, and Orme the deputy clerk, of the Crown, which were publicly taken vivâ voce on oath before the Court. And then the certificate by Teed. and Orme states that the parchments annexed, containing the examinations, "are true and faithful copies of the vivâ voce examinations" of the witnesses, such parchment writings having been transcribed in the Crown Office from the original examinations of the several witnesses taken by us," Teed and Orme, " in open Court, as such clerk of the Crown and deputy clerk," "the same having been carefully collated and compared by us" "with such originals;"" and that the said examinations are subscribed by," &c. (the witnesses). If this Court look no farther than the return made by the Judges, it appears expressly that the parchment writings are such examinations as the statute requires. The certificate (proved at the trial to have been signed by Teed and Orme, as it purports to be) shows the same fact in detail. But it ought to be understood conclusively that the documents which the Judges return as the examinations required are

[*57

*those examinations. Stat. 13 G. 3, c. 63, s. 40, does not require that originals should be returned. It may be supposed that the evidence, as given, was taken down by the Judges; their notes would not be in a fit state for transmission to this Court; and the word "reduced" in s. 40 implies a putting in order, which would be done by copying. In Clay v. Stephenson, 7 A. & E. 185 (E. C. L. R. vol. 34), which may be relied upon for the defendant, the commission for taking examinations required that the same" should be returned: the commissioners themselves were directed to reduce them into writing: the evidence was taken on interrogatories; so that the difficulty which arises here as to sending original notes did not exist: and the document returned purported to be an "extract." [COLERIDGE, J.-Does the statute, here, require anything to be done by the officers of the Court unless a duplicate is wanted?] The course of proceeding must be the same, whether that is so or not. The meaning of the act probably is that which is more clearly expressed in stat. 42 G. 3, c. 85, s. 2, that the examination shall be reduced into writing, and, in case any duplicate or duplicates shall be required," then "into two or more writings," "as the case may require." But all the words now in question, from "and shall by some sworn officer" to "parties interested," may be read as if included in a parenthesis and relating solely to the case of duplicates being required. The provision for giving several duplicates" (which may be wanted at successive times) implies that an original minute will remain with the Court abroad. [COLERIDGE, J.-I think, after the mandamus had been once returned with the examinations, *there could not be a further return. Would not the Judges be functi officio? PATTESON, J.-Does the certifi[*58 cate mean that the witnesses subscribed the examinations as originally taken, or the copies on parchment ?] The words may mean either. In fact, the witnesses signed the examinations on parchment. [PATTESON, J.-The statute appears to mean that the examinations shall be first taken in writing from the mouths of the witnesses (for it is absurd to suppose them written down from memory), then engrossed, and then authenticated by the signatures of the witnesses.] Probably that is meant. The act itself says nothing as to signature of witnesses. Atkins v. Palmer, 4 B. & Ald. 377 (E. C. L. R. vol. 6), is a strong authority against the present objection. ABBOTT, C. J., said there: "We are to presume that they" (the Commissioners) "have discharged their duty, if by reasonable interpretation we can do so. We are not to look out critically for objections, nor are we blindly to give credit to all they have done, but we are to see whether they have substantially discharged their duty. The commission in the first place directs them to take the examinations and reduce them into writing in the English language on parchment, and to send them to the Court of Chancery. Now that cannot be understood to mean that they are to send the identical paper or parchment on which they make their minutes, because the witnesses may

occasionally make corrections in their testimony. The examinations would necessarily be first taken in a rough manner, and would afterwards be fairly copied out." [PATTESON, J.-Something turned there on the particular words of the commission.] Stat. 13 G. 3, c. 63, s. 40, is remedial rather than penal. It applies to examinations on *59] behalf of a defendant as well as of a prosecutor. The intention is, substantially, that the Judges abroad should be pledged to send here (verified by the officer of the Court) that which was taken on oath before them. If it appears that the examinations actually returned were taken on oath before the Judges, it is no matter how they were put into writing. As to the fourth objection: it does not appear that the interpreter was not sworn before each examination on which he officiated: and it is to be presumed that the Court acted in the regular course in this respect, and according to the statute. The briefs of counsel (a) in Rex v. Stephens & Agnew(b) are in Court; and by the notes upon them Lord ELLENBOROUGH appears to have said in answer to an objection there: "I must take it all things are rightly done; otherwise I must even have actual proof that the oath was administered."

Sir F. Kelly, Solicitor-General, and Peacock, contrà.-The first objection is, not that the present Court at Madras wants power to obey the mandamus if it could issue, but that the Court here cannot now issue the writ to the Madras Court. By stat. 13 G. 3, c. 63, s. 40, the Court of Queen's Bench might award a mandamus, not to the Mayor's Court, but to the Judges of the Mayor's Court, at Madras. Clay v. Stephenson, 3 A. & E. 807 (E. C. L. R. vol. 30), 7 A. & E. 185, 188 (E. C. L. R. vol. 34), shows the materiality of the distinction. [PATTESON, J.-That case does not apply. Our intention there was, not to direct the commission to a Court at *all, but only to individual members of a *60] Court, who were willing to act.] The mandamus, at the time when stat. 13 G. 3, c. 63, was passed, would have issued to the judges of the then Mayor's Court; since that time, the constitution of the Court, as to the bench, has been twice altered, by stat. 37 G. 3, c. 142, establishing the Recorder's Court, and stat. 39 & 40 G. 3, c. 79, establishing the Supreme Court. The "judges" to whom the mandamus might before have been directed no longer exist; and neither of the subsequent acts has continued to this Court the power of awarding a mandamus to the Court at Madras according to stat. 13 G. 3, c. 63. The words "subject to," which were cited on the other side from sect. 2 of stat. 39 & 40 G. 3, c. 79, have not that effect; for they refer merely to "limitations, restrictions, and control." The last-mentioned act, when dealing with matters not inherent in the constitution of the new Court itself, but pertaining to the relations of other persons or bodies with that Court, makes several express reservations and provisions (sects. 3, 4, 5, 6), which (a) Sir Thomas Manners Sutton, Solicitor-General, and Mr. Abbott. (b) See p. 52, note (c), antè.

would have been unnecessary if the Supreme Court of Madras had been such a mere continuation of the former Courts as the argument on the other side requires it to be. [PATTESON, J.-The consequence is very serious, if a mandamus to examine witnesses can no longer issue from this Court to the Court at Madras. The same objection would apply to a warrant from the Lord Chancellor or Speaker, under s. 42 of stat. 13 G. 3, c. 63.] The mandamus may be obtained under other acts of parliament, particularly stat. 42 G. 3, c. 85, mentioned on the other side; though the course of proceeding here has not been adapted to that statute. It is *suggested that st. 13 G. 3, c. 63, should be liberally construed, [*61 because it is remedial; but an act which authorizes the taking of depositions in a distant place, and in the absence of those who are to try the cause, is not properly remedial, though it may be useful; and its operation ought not to be extended. Where a mandamus issues by rule of Court at common law, it has been held that the rule must be strictly followed as to the persons on whom and on whose behalf the writ is to operate; Rex v. Wildman, 2 Stra. 879, Rex v. The Mayor of Kingston upon Hull, 8 Mod. 209. A like strictness prevails with respect to an examination made evidence, contrary to the course of common law, for the purpose of parochial settlement; Rex v. Clayton le Moors, 5 T. R. 704.

It is not clear that stat. 37 G. 3, c. 142, abolished the Mayor's Court for all purposes. There are no words extinguishing the Court itself. (Peacock referred here to sects. 9, 10, 11.) By sect. 18 the grant of "jurisdiction" to the Court, and its "judicial powers," are to cease; but the examining witnesses on mandamus is not a jurisdiction; it is an authority emanating from this Court. [PATTESON, J.—If jurisdiction, "civil, criminal, or ecclesiastical," is taken away, surely there remain no judges.] In receiving evidence on examinations, they would act ministerially. They would have no judgment to form: they could not reject any witness. [COLERIDGE, J.-Suppose a witness refused to answer questions.] They might have the same kind of power in this respect that an arbitrator has. [Lord DENMAN, C. J.-Surely they must take the evidence as judges, though no decisions are to be given. *PATTESON, J.-The mandamus is to be directed to "judges." [*62 Can we shut our eyes to the fact that, when all judicial power is taken away, there are no longer any judges ?] At all events, in the statement of functions to be exercised by the Recorder's Court when the Mayor's Court shall cease to have them, that of examining witnesses under a mandamus is not included: and an authority which is against common law cannot be given by intendment. It is nowhere said, as in stat. 13 G. 3, c. 63, s. 40 (and afterwards in stat. 42 G. 3, c. 85, s. 2), that examinations taken in obedience to a mandamus under the statute shall be evidence. This may be casus omissus: but, if it be so, the Court cannot supply the defect; Lane v. Bennett, 1 M. & W. 70, 73,†

S. C. Tyr. & G. 441, 444. The objection is not removed by stats. 39 & 40 G. 3, c. 79, and 4 G. 4, c. 71. [PATTESON, J.-You give no effect to the words "is or may be" "directed to do" in that statute; sect. 17.] That expression is not sufficient to establish the authority contended for. The Sirhowy Tramroad Company v. Jones, 3 A. & E. 640, note (a) (E. C. L. R. vol. 30), is an instance in which special powers conferred by act of parliament were held not to be carried on by general words of a subsequent act referring to the first.

Secondly by stat. 13 G. 3, c. 63, s. 40, the mandamus was to go to "the Judges of the Mayor's Court at Madras." The clause does not add, "or any two of them." Nor does it appear that the court might be held by fewer than the whole number. If a mandamus might issue to the courts formed under the subsequent acts, the same remark applies. Therefore, *under stat. 39 & 40 G. 3, c. 79, the writ would go to *63] the chief justice and two (a) puisne judges. It is assumed that, as a matter of course, the mandamus might be executed by two only: but there is nothing to show that; and a contrary inference is suggested by the express provision of stat. 6 G. 4, c. 85, s. 4, in case of a vacancy in the office of chief justice, and by another special enactment in stat. 37 G. 3, c. 142, s. 22, in case of the Recorder's death. Stat. 42 G. 3, c. 85, s. 2, expressly authorizes this Court to award a mandamus "to any chief justice and judges, or any chief justice or other judge singly for the time being," of any court, &c. If the charters of any of the Madras courts authorized fewer judges than the whole number to hold a court, that should have been shown: at present, the constitution of these courts is known only from the statutes. The presumption, omnia esse ritè acta, does not arise till jurisdiction is shown. It is true that, under stat. 13 G. 3, c. 63, s. 40, two judges only may seal the return, and one or more deliver it: but these are merely ministerial acts.

Thirdly: The validity of the return depends on everything having actually been done in conformity to the statute. The meaning of stat. 13 G. 3, c. 63, s. 40, is that the witnesses shall be examined in the ordinary manner, vivâ voce, and a rough minute of their evidence be taken at the time; but that, whether it be in the first instance taken in short hand or in whatever other form, it must be reduced into writing by a person who heard the evidence. It is not necessary to the present *64] argument to consider whether the words beginning "and *shall by some sworn officer" should be read as if contained in a parenthesis, or not; though the more natural course is to construe them as meaning what is less obscurely expressed in stat. 42 G. 3, c. 85, s. 2. Here a duplicate was required; and, therefore, the words supposed to come within a parenthesis would at any rate apply. But, omitting all these words, the result is the same. The enactment is that the "examination" "shall be" "taken vivâ voce," and "shall be sent to his Majesty in his (a) See stat. 37 G. 3, c. 142, s. 1.