MAR. 4.] THE NEW ZEALAND GAZETTE. 265

in evidence to the same extent as if it had been taken by or
before such Court or Judge.

Power in criminal proceedings to nominate Judge or Magistrate
to take depositions.

3. Where in any criminal proceeding a mandamus or order
   for the examination of any witness or person is addressed to
   any Court, or to any Judge of a Court, in India or the
   colonies, or elsewhere in Her Majesty's dominions, beyond
   the jurisdiction of the Court ordering the examination, it
   shall be lawful for such Court, or the Chief Judge thereof, or
   such Judge, to nominate any Judge of such Court, or any
   Judge of an inferior Court, or Magistrate within the jurisdiction of such first-mentioned Court, to take the examination
   of such witness or person, and any deposition or examination
   so taken shall be admissible in evidence to the same extent
   as if it had been taken by or before the Court or Judge to
   whom the mandamus or order was addressed.

Application of 22 Vict., c. 20, as to conduct-money, &c., to proceedings under this Act.

4. The provisions of the Act passed in the twenty-second
   year of Her Majesty, chapter twenty, intituled "An Act to
   provide for taking Evidence in Suits and Proceedings pending before Tribunals in Her Majesty's Dominions in Places
   out of the Jurisdiction of such Tribunals" (which may be
   cited as "The Evidence by Commission Act, 1859"), as
   amended by this Act, shall apply to proceedings under this
   Act.

Amendment of 22 Vict., c. 20, as to costs.

5. The power to make rules conferred by section six of
   "The Evidence by Commission Act, 1859," shall be deemed
   to include a power to make rules with regard to all costs of
   or incidental to the examination of any witness or person,
   including the remuneration of the Examiner, if any,
   whether the examination be ordered pursuant to that Act or
   under this or any other Act for the time being in force
   relating to the examination of witnesses beyond the jurisdiction of the Court ordering the examination.

Oath or affirmation of witness.

6. When pursuant to any such commission, mandamus,
   order, or request as in this Act referred to any witness or
   person is to be examined in any place beyond the jurisdiction
   of the Court ordering the examination, such witness or person may be examined on oath, affirmation, or otherwise,
   according to the law in force in the place where the examination is taken, and any deposition or examination so
   taken shall be as effectual for all purposes as if the witness
   or person had been examined on oath before a person duly
   authorized to administer an oath in the Court ordering the
   examination.

MINUTE by the Hon. the CHIEF JUSTICE of the HIGH
COURT at CALCUTTA, dated 26th June, 1883.

1. I wish to direct the attention of the Governor-General in
   Council to the present state of the law, which enables the
   superior Courts at Home to issue commissions to the High
   Courts in India to take evidence in English suits.

2. I have reason to believe that the provisions of this law,
   and the inconveniences which result from it, are often very
   imperfectly understood; and I therefore think it right to
   explain them to the Government, in order that proper steps
   may be taken, if His Excellency should think fit, for protecting the High Courts from an unnecessary waste of public
   time.

3. By the statute 13 Geo. III., c. 63, s. 40, the Court
   of King's Bench in England was empowered, in all cases of
   indictments or informations for offences committed in India,
   to issue a writ of mandamus requiring the Chief Justice and
   Judges of the Supreme Court at Calcutta, or the Judges of
   the Mayors' Courts at Madras or Bombay, to hold a Court
   for the examination of witnesses, and the reception of other
   proofs concerning the matters charged in such indictments
   and informations, and to institute such proceedings as might
   be necessary for the purpose of taking such evidence, and
   transmitting it to the Court of King's Bench.

4. By section 44 of the same statute it was provided that,
   in all suits brought in any of the Courts at Westminster for
   any cause arising in India, it should be lawful for such
   Court to award such writs in the nature of a mandamus or
   commission to the Chief Justice and Judges of the Supreme
   Court of Calcutta, or to the Judges of the Mayors' Courts at
   Madras or Bombay, for the examination of witnesses in such
   suits.

5. By the statute 1 Will. IV., c. 22, s. 1, the powers
   thus given to the Courts at Westminster by the Act of George
   III. were extended to all colonies, islands, plantations, and
   places under the dominion of the British Crown in foreign
   parts, and to the Judges of the several Courts therein, and to
   all actions depending in any of the Courts at Westminster,
   wherever the cause of action may have arisen.

6. It thus became the duty of the Judges of the Supreme
   Court at Calcutta, and afterwards of the Supreme Courts at
   Madras and Bombay, whenever they should be required so to
   do by the Courts at Westminster, to examine witnesses and
   take evidence in any case depending in those Courts; and it
   has always been considered that the present High Courts in
   India, although constituted in a different way, and exercising
   powers which are in some respects larger than those of the
   Supreme Courts, are bound to execute commissions by order
   of the Courts at Westminster.

7. The statute 3 and 4 Vict., c. 105, s. 69, gives the
   same powers to Irish Judges as are given to English Judges
   by the Act of Will. IV.; and I believe that there are other
   Acts which give similar powers to all the other superior
   Courts in Great Britain.

8. In former days the duties thus imposed upon the Indian
   Courts were not very onerous. Their own business was comparatively light, so that they could comply with the requirements of the Courts at Home without much, if any, inconvenience.

9. I find, however, that even then, when a commission
   arrived, it had the effect of stopping for a time the whole
   business of the Supreme Court. It was considered, rightly
   or wrongly, that all the Judges were bound to execute
   the writ; and I have discovered several instances on record
   where the whole Court (the Chief Justice and two puisne
   Judges) were solemnly engaged for several days in sitting to
   see a commission properly executed.

10. It was probably unnecessary that all the Judges should
    have attended. It was held by the Queen's Bench in the
    case of Regina v. Douglas, 13 Q.B., 42, that a Court to
    execute the commission might be composed of two out of
    three Judges; but it would seem from that case that, where
    the writ is directed to the Chief Judge and Judges, it is
    necessary that two at least should form the Court; and, in a
    case which lately occurred here, it was considered that one
    Judge could not safely execute a commission except by consent of the parties.

11. In former days a little waste of time was probably not
    of much consequence; but circumstances have now materially changed. The business of the High Court of Calcutta has, as His Excellency is well aware, very largely increased. There is at present a very heavy arrear of causes,
    more especially on the Appellate Side; and I need hardly
    say that it is of the utmost importance to the Indian public
    that the time of the Judges should not be wasted.

12. Of course if it were really necessary, or even desirable,
    to employ the services of High Court Judges in taking evidence under these commissions, I should hesitate before
    suggesting any change. But every one who is at all conversant with the subject knows that in the large majority of
    cases it is simple waste of power to employ a highly-paid
    Judge for such a purpose. The duty which he has to perform is ministerial; and any man of business, who understands the way in which such commissions are executed, is
    quite as capable of acting the part of Commissioner as the
    best Judge amongst us.

13. It was not long ago that a commission was sent out to
    the High Court of Calcutta to examine witnesses in an
    English Chancery suit. I was not informed how long the
    commission would last, and I was unwary enough to appoint
    the Judge who was then sitting on the Original Side to execute it as soon as it arrived.

14. This commission lasted for upwards of a fortnight. I
    calculated that it cost this country (in the time of the
    Judge and the officers of the Court) at least 2,000 rupees;
    besides delaying, of course, the regular business of the Court
    and keeping Indian suitors waiting for the trial of their
    causes. And all this time, as I have said before, the Judge
    was performing a duty purely ministerial. He was bound to
    let counsel put what questions they pleased to the witnesses,
    subject only to any objections which might be taken. He
    could not use his own discretion to decide a single point.
    He had only to see that the questions and answers, with the
    objections and all else that occurred, were duly taken down
    by the officer of the Court, and that the technical requirements of the commission were properly observed.

15. And it is worthy of consideration by the Government
    of India that, if any private person had been appointed a
    Commissioner, the expense of the commission would have
    fallen, as of course it ought to fall, upon the parties to the
    suit; whereas, when the commission is directed to the High
    Court, the expense of executing it is thrown upon the Indian
    public.

16. These considerations naturally suggest the question,
    Why should these commissions ever be directed to the High
    Court at all? Why should not any other Commissioner do as
    well? The answer is, that any other Commissioner will do
    as well and better, because any other Commissioner would
    proceed to execute the commission at once; whereas, if it is
    executed by the Court, the parties would, in the present state
    of the business, have to wait several months.

17. It is for this reason that commissions, as a rule, are
    not directed to the High Court. The practice has generally
    been, and I believe still is, to send out the commission under
    section 4 of the Act of Will. IV., or the 3 and 4 Vict.,
    directed to some private Commissioner, or more often