apprentice who, at the time when the offence is committed, is, or within three months previously has been, employed in any British ship, shall be deemed to be offences of the same nature respectively, and be liable to the same punishments respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if those offences had been committed within the jurisdiction of the Admiralty of England; and the costs and expenses of the prosecution of any such offence may be directed to be paid as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the Admiralty of England.'

It seems to follow from these several enactments, and from pars. 29 and 32 of the Charters, that where a chartered high court exercises jurisdiction in respect of

(1) an offence committed on land, both the procedure and the substantive law to be applied are those of British India, i. e. both the Code of Criminal Procedure and the Penal Code apply;

(2) an offence committed at sea by a native of British India, the position is the same;

(3) an offence committed at sea by any other person, whether within territorial waters or beyond them, the procedure is regulated by British Indian law, but the nature of the crime and the punishment are determined by English law.

See Queen Empress v. Barton, I. L. R. 16 Cal. 238, and Mayne, Criminal Law of India, chap. ii.

(c) The enactment reproduced by this sub-section was probably suggested by the Patna case, as to which see Stephen's Nuncomar and Impey, chap. xii. In 1873 certain licensed liquor-vendors moved the high court at Calcutta for a mandamus to compel the Board of Revenue to issue rules prescribing the fees payable for liquor licences, but it was held that the matter related wholly to the revenue, and that therefore by 21 Geo. III, c. 70, s. 8, the high court had no jurisdiction (Re Audur Chundra Shaw, II Beng. L. R. 250). In a later Madras case (1876) doubts were expressed as to the extent to which the enactment was still in force, and, in particular, whether it had not been repealed except as to land revenue. See Collector of Sea Customs v. Panniar Chithambaram, I. L. R. 1 Mad. 89. In any case it applies only to the jurisdiction derived from the supreme court, i. e. to the original jurisdiction.

I

102. Each of the high courts has superintendence over Powers of high all courts for the time being subject to its appellate jurisdiction, court with and may do any of the following things; that is to say

(a) call for returns ;

respect to subordinate

courts.

(b) direct the transfer of any suit or appeal from any [24 & 25

Vict. c.

such court to any other court of equal or superior juris- 104, s. 15.] diction;

Exercise of jurisdiction by single

(c) make and issue general rules for regulating the practice and proceedings of such courts.

(d) prescribe forms for any proceedings in such courts, and for the mode of keeping any books, entries, or accounts by the officers of any such courts; and

(e) settle tables of fees to be allowed to the sheriffs, attorneys, and all clerks and officers of such courts.

Provided that all such rules, forms, and tables require the previous approval, in the province of Bengal of the GovernorGeneral in Council, and in the province of Madras or Bombay or the North-Western Provinces of the local Government (a). (a) As to the relations of the high courts to the subordinate courts, see further above, pp. 127, 136.

103.-(1) Subject to any law made by the GovernorGeneral in Council, each high court may by its own rules judges or provide as it thinks fit for the exercise, by one or more judges, or by division courts constituted by two or more judges of the [24 & 25 high court, of the original and appellate jurisdiction vested in the court.

division

courts.

Vict. c. 104, 88. 13, 14.]

Power for

Governor

(2) The chief justice of each high court determines what judge in each case is to sit alone, and what judges of the court, whether with or without the chief justice, are to constitute the several division courts.

104. (1) (a) The Governor-General in Council may by General in order transfer any territory or place from the jurisdiction of

Council to

limits of jurisdiction of

high courts.

alter local one to the jurisdiction of any other of the high courts, and authorize any high court to exercise all or any portion of its jurisdiction in any part of British India not included within the limits for which the high court was established (b), and also to exercise any such jurisdiction in respect of Christian (c) subjects of His Majesty resident in any part of India outside British India (b).

[28 & 29

Vict. c. 15, 88. 3, 4, 6.]

(2) The Governor-General in Council must transmit to the Secretary of State an authentic copy of every order made under this section.

(3) His Majesty may signify, through the Secretary of State in Council, his disallowance of any such order, and such disallowance makes void and annuls the order as from the day on which the governor-general makes known by proclamation or by signification to his council that he has received notification of the disallowance, but no act done by any high court before such notification is invalid by reason only of such disallowance.

(4) Nothing in this section affects any power of the GovernorGeneral in Council in legislative meetings.

(a) As to the object and construction of this section, see Minutes by Sir H. S. Maine, No. 45.

(b) For orders made under this provision, see Notifications, Nos. 178, 180, 181, of September 23, 1874; Mayne, Criminal Law of India, p. 258. It would seem that s. 3 of the Act of 1865 (reproduced by this provision) only empowered the governor-general to make an order transferring any territory from the jurisdiction of one court to the jurisdiction of another, and that the second branch of the section was only to enable the governor-general to authorize the court to which such transfer was made to exercise jurisdiction. If this is so, the Governor-General in Council could not either by order or legislation extend the local and personal jurisdiction of the high court at Allahabad over the province of Oudh, or authorize two of the judges of the high court to sit at Lucknow to try cases arising in Oudh, or empower the Chief Commissioner of Oudh to transmit cases from Oudh for trial at Allahabad by judges of the high court there.

(c) The comprehensive term Christian " was doubtless used because it might be convenient to give a particular high court matrimonial and testamentary jurisdiction over all Christian subjects.' Minutes by Sir H. S. Maine, Nos. 44, 45.

(d) i.e. in Native States. See s. 124.

tion from

jurisdic

high

public

105.-(1) Subject to any law made by the Governor- ExempGeneral in Council (a), the governor-general and each of the governors of Madras and Bombay, and each of the ordinary and tion of extraordinary members of their respective councils, is not court in (a) subject to the original jurisdiction of any high court capacity. by reason of anything counselled, ordered, or done by any of them, in his public capacity only; nor (b) liable to be arrested or imprisoned in any suit or pro- III, c. 70, ceeding in any high court acting in the exercise of its original jurisdiction; nor

[13 Geo.

Ss. 15, 17. 21 Geo.

S. I.

37 Geo.

III, c.142,

S. II.

39 & 40 Geo. III,

c. 79, s. 3. 4 Geo. IV,

c. 41, s. 7.]

Written order by governor

general a justification for any act

(c) subject to the original criminal jurisdiction of any high court in respect of any misdemeanour at common law, or under any Act of Parliament, or in respect of any act which if done in England would have been a misdemeanour. (2) The exemption under this section from liability to arrest and imprisonment extends also to the chief justices and other judges of the several high courts.

(a) The enactments reproduced by this section apply only to the original jurisdiction of the high courts, and are not excepted from the legislative power of the governor-general's council by 24 & 25 Vict. c. 67, s. 22. The exemptions from jurisdiction granted by 21 Geo. III, c. 70, and reproduced in this section, were granted in consequence of the proceedings in the Cossijurah case. See above, p. 54; Mayne, Criminal Law of India, p. 301; and Jehangir v. Secretary of State for India, I. L. R. 27 Bom. 189.

106. Subject to any law made by the Governor-General in Council, the order in writing of the Governor-General in Council for any act is in any proceeding, civil or criminal, in any high court acting in the exercise of its original jurisin any diction, a full justification of the act, except so far as the act court in extends to any [European] British subject of His Majesty (a); India. [21 Geo. but nothing in this section exempts the governor-general, or III, c. 70, ss. 2, 3, 4] any member of his council, or any person acting under their orders, from any proceedings in respect of any such act before any competent court in England.

Procedure

in case of

(a) The expression in the Act of 1780 is 'British subjects,' which of course must be construed in the narrower sense. As to the circumstances out of which this enactment arose, see above, pp. 54 foll., and Mill's British India, iv. 373-375; Cowell's Tagore Lectures, p. 72; Nuncomar and Impey, ii. 189. As to the limitations formerly imposed on the powers of the Indian Governments in dealing with European British subjects, see In re Ameer Khan, 6 B. L. R. 446, and the notes on ss. 63 and 79 of this Digest. The enactments reproduced by this section do not apply to the Governments of Madras and Bombay. They are applied to the existing high courts by the conjoint operation of 39 & 40 Geo. III, c. 79, s. 3; 4 Geo. IV, c. 71, s. 7; and 24 & 25 Vict. c. 104, s. II, but appear to affect only the original jurisdiction of the high courts.

107.—(1) (a) Subject to any law made by the GovernorGeneral in Council, if any person makes a complaint in sion, &c., writing, and on oath, to the high court at Calcutta of any

oppres

nor-gene

council.

[21 Geo.

ss. 5, 6.]

oppression or injury alleged to have been caused by any order by goverof the governor-general, or any member of his council, ral or his and gives security to the satisfaction of the high court to prosecute his complaint by indictment, information, or III, c. 70, action before a competent court in the United Kingdom within two years from the making of the same or from the return into the United Kingdom of the person or persons complained against, he is entitled to have a true copy of any order of which he complains produced before the high court, and authenticated by the court, and he and the persons against whom he complains may examine witnesses on the matter of the complaint.

(2) The high court must, if necessary, compel the attendance and examination of witnesses in any such case in the same manner as in other criminal or civil proceedings.

(3) Sections forty to forty-five of the East India Company 13 Geo. III, c. 63. Act, 1772, apply in the case of proceedings under this section as in the case of the proceedings referred to in those sections.

(a) The provision reproduced by this section has remained a dead letter from the date of its enactment, appears to be unnecessary, and could be repealed by Indian legislation. It does not apply to the Madras High Court, Re Wallace, I. L. R. 8 Mad. 24.

The sections referred to in sub-section (3) give jurisdiction to the Court of King's Bench, now the High Court, and provide for the taking of evidence in India, and its admissibility in England.

Law to be administered.

adminis

cases of

succes

108. Subject to any law made by the Governor-General in Law to be Council, the high courts, in the exercise of their original tered in jurisdiction, shall, in matters of inheritance and succession to inheritlands, rents, and goods, and in matters of contract and ance and dealing between party and party, when both parties are sub- sion. ject to the same personal law or custom having the force of law, decide according to that personal law or custom, and 70, 8. 17. when the parties are subject to different personal laws or ÏÍÏ, c. custom having the force of law, decide according to the law 142, s. 13.] or custom to which the defendant is subject.

[21 Geo.

III, c.

37 Geo.