« EelmineJätka »
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 depositions 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. A 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)
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 *52]
*stated that there were objections in arrest of judgment: but, by
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,(6)
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 *53]
the Supreme Court at Madras, according to stat. 39 & 40 G. 3,
*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, baving somo 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.
(6) Before Lord DENMAN, C. J., Pattison, 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. 3, c. 63, s. 40. By sect. 44 of stat. 13 G. 3, c. 63, the Courts at
[*54 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, 8. 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 6 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"
for taking the examination; but not that every Judge of the Court shall be present. The return may be sealed by a 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 *56]
private.” The authorities on this subject were *considered in
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
*those examinations. Stat. 13 G. 3, c. 63, s. 40, does not require
[*57 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