PRACTICE

OF THE

JUDICIAL COMMITTEE.

Analysis of the Judicial Committee Act ().

Composition of the Judicial Committee, 687.-Admiralty and Prize Cases, 688.-Entire Appellate Jurisdiction of Privy Council vested in Judicial Committee, 689.-Matters not Appellate, ib.-Quorum necessary to form the Court, ib.-Attendance of certain of the Queen's Judges, ib.— Power to examine witnesses, 690.—To remit with directions, &c., ib.— To punish for perjury, 691.-To direct Issues for Trial as done in Chancery, ib.-To give direction as to the evidence to be admitted, 692. -To direct the examination of Parties, ib.-To direct new Trials, ib. -To order examination by Commission, ib.-Powers as to Costs, 693.Enrolment of Decrees, ib.-References as to a Master, ib.-Power to appoint a Registrar, 694.-To compel attendance of witnesses, ib.To limit time for appealing to the Queen in Council, ib.--Execution of Decrees, ib.-Appeals from Courts of Sudder Dewanny Adawlut, 695.—Courts eastward of the Cape, 696.-Sections of the Act become inoperative, 697.-Power to punish Contempts and enforce Decrees, ib.-Registrar of the High Court of Admiralty, 698.-Assessors of the Court, ib.--Saving as to Prize Causes, ib.-Table of the Appellate Jurisdiction of the Privy Council, 699.

By the 3 and 4 William IV. c. 42, it was enacted that a permanent Judicial Committee should be appointed for the disposal of appeals and other matters under references to such Judicial Committee to be made in pursuance of the act by His Majesty in Council.

The composition of the Judicial Committee is thus regulated by the first section of the Statute:

() 3 & 4 Will. IV., c. 42.

I. Be it enacted, that the President of his Majesty's Privy Council, the Lord High Chancellor of Great Britain, and such of the members of the Privy Council as shall from time to time hold any of the offices following, that is to say the office of Lord Keeper or First Lord Commissioner of the Great Seal of Great Britain, Lord Chief Justice or Judge of the King's Bench, Master of the Rolls, Vice Chancellor of England (), Lord Chief Justice or Judge of the Common Pleas, Lord Chief Baron or Baron of the Exchequer, Judge of the Prerogative Court of Canterbury, Judge of the High Court of Admiralty, and Chief Judge in Bankruptcy, and also all persons members of the Privy Council who shall have been President thereof, or held the office of Lord Chancellor of Great Britain, or shall have held any of the other offices hereinbefore mentioned,—shall form a Committee of his Majesty's said Privy Council, and shall be styled "The Judicial Committee of the Privy Council;" provided nevertheless that it shall be lawful for his Majesty from time to time, as and when he shall think fit, to appoint any two other persons, being Privy Councillors, to be members of the said Committee.

By the second section, all sentences of courts abroad, which were formerly appealable before the High Court of Admiralty, or Commissioners in Prize Cases in England, are now subjected to the exclusive review of the Judicial Committee. (c)

II. And be it enacted, that, from and after the 1st day of June 1833, all appeals or applications in prize suits, and in all other suits or proceedings in the Courts of Admiralty, or Vice Admiralty Courts, or any other court in the plantations in America, and other his Majesty's dominions, or elsewhere abroad, which might at the date of passing the act be made to the High Court of Admiralty in England, or to the Lords Commissioners in prize cases, shall be made to his Majesty in Council, and not to the said High Court of Admiralty, or Lords Commissioners; and such appeals shall be made in the same manner and form, and within such time wherein such appeals might have been made to the said High Court of Admiralty or Lords Commissioners, in case the said act had not been passed; and that all laws or statutes in force at the date of passing the act, with respect to any such appeals or applications, shall apply to any appeals to be made in pursuance of the said act to his Majesty in Council.

(b) The two additional Vice-Chancellors (being Privy Councillors) are members of the Judicial Committee, by the 5 Vict. c. 5.

(c) By the 2 & 3 Will. IV., c. 92, the

powers ecclesiastical and maritime of the High Court of Delegates, had been transferred to his Majesty in Council. See Ecclesiastical, Maritime, and Prize Appeals, infra.

By the third section of the act, the entire appellate jurisdiction of the Queen in Council is to be exercised solely by the Judicial Committee.

III. And be it enacted, that all appeals, or complaints in the nature of appeals whatever, shall, from and after the passing of the act, be referred by his Majesty to the said Judicial Committee; and such appeals, causes, and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to his Majesty in Council for his decision thereon, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his Privy Council, or a committee thereof; the nature of such report or recommendation being always stated in open court.

The fourth section makes provision for matters not falling within the range of the appellate jurisdiction.

IV. And be it enacted, that it shall be lawful for his Majesty to refer to the said Judicial Committee, for hearing or consideration, any such other matters whatsoever as his Majesty shall think fit; (d) and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon, in manner aforesaid.

By the fifth section, four members of the Judicial Committee are required to be present; and no report is to be made without the concurrence of a majority.

V. And be it enacted, that no matter shall be heard, nor shall any order, report, or recommendation be made by the said Judicial Committee in pursuance of the act, unless in the presence of at least four members thereof; and that no report or recommendation shall be made to his Majesty unless a majority of the members present at the hearing shall concur in such report or recommendation; provided always that nothing in the act contained shall prevent his Majesty, if he shall think fit, from summoning any other of the members of his said Privy Council to attend the meetings of the said committee.

By the sixth section, the following regulation is made to secure the attendance of any members of the Privy Council who shall happen to be judges of any of the superior courts of law at Westminster.

(4) Under this clause there is no limit to the extent and variety of matters

referrible by her Majesty to the Judicial Committee.

Y Y

VI. And be it enacted, that in case his Majesty shall be pleased to require the attendance at the said committee, for the purposes of the act, of any member or members of the said Privy Council, who shall be a Judge or Judges of the Courts of King's Bench, Common Pleas, or Exchequer, such arrangements for dispensing with the attendance of such Judge or Judges, upon his or their ordinary duties, during the time of such attendance at the Privy Council, shall be made by the Judges of the court or courts to which such Judge or Judges shall belong respectively; and by the Judges of the said three courts, or by any eight or more of them, including the chiefs thereof, in regard to all other duties as may be necessary and consistent with the public service.

By the seventh section, the Judicial Committee is empowered to examine witnesses either vira voce or upon written deposition.

VII. And be it enacted, that it shall be lawful for the said Judicial Committee, in any matter which shall be referred to them, to examine witnesses by word of mouth (and, either before or after examination, by deposition); or to direct the depositions of any witnesses shall be taken in writing by the Registrar of the Privy Council, or by such other person or persons, and in such manner, order, and course as his Majesty in Council, or the said Judicial Committee, shall appoint and direct; the said Registrar, and such other person or persons so to be appointed, to have the same powers as an Examiner of the High Court of Chancery, or of any Court Ecclesiastical.

By the eighth section, the Judicial Committee is authorised to direct the examination of witnesses at discretion; and this notwithstanding such witnesses may not have been examined, and although no evidence may have been given at any previous stage, on the facts in question; and in matters of appeal, it is declared competent to remit the cause to the court below for rehearing, either generally, or with respect to certain points; and upon such rehearing, to take additional evidence, or to take evidence before rejected, or to reject evidence before admitted, as the remit may direct; and generally His Majesty in Council is authorised to direct issues to be tried in any court in his dominions abroad, for any

purpose for which the same may seem proper. The words of the section are as follow:

VIII. And be it enacted, that in any matter which shall come before the said Judicial Committee, it shall be lawful for the said committee to direct that such witnesses shall be examined or re-examined, and as to such facts as to the said committee shall seem fit; notwithstanding any such witnesses may not have been examined, or no evidence may have been given, on any such facts in a previous stage of the matter; and, on the recommendation of the said committee, it shall be lawful for his Majesty in Council, upon any appeal, to remit the matter to the court from which such appeal shall have been made; and, at the same time, to direct that such court shall rehear such matter in such form, and either generally or upon certain points only; and, upon such rehearing, take such additional evidence though before rejected, or reject such evidence before admitted, as his Majesty in Council shall direct; and further, on any such remitting or otherwise, it shall be lawful for his Majesty in Council to direct that one or more feigned issue or issues shall be tried in any court in any of his Majesty's dominions abroad, for any purpose for which such issue or issues shall to his Majesty in Council seem proper.

The ninth section directs the mode of examining witnesses, and makes provision for the punishment of perjury.

IX. And be it enacted, that every witness who shall be examined, in pursuance of this act, shall give evidence upon oath; or, if a Quaker or Moravian, upon solemn affirmation; which oath or affirmation respectively shall be administered by the said Judicial Committee and Registrar, and by such other person or persons as his Majesty in Council or the said Judicial Committee shall appoint; and every witness who shall wilfully swear or affirm falsely shall be deemed guilty of perjury, and shall be punished accordingly.

The tenth section gives power to the Judicial Committee to direct issues for trial at law, as done in the Court of Chancery.

X. And be it enacted, that it shall be lawful for the said Judicial Committee to direct one or more feigned issue or issues to be tried in any court of Common Law; and either at bar, before a Judge of assize, or at the sittings for the trial of issues in London or Middlesex; and either by a special or common jury, in like manner and for the same purpose as is now done by the High Court of Chancery.