1873. REG. V. NA'THA'LA'L that Nagindás Tulsidús had been engaged as pleader for him (the prisoner) in a case pending on the appellate side of the High Court, he (the Magistrate) asked the prisoner if he would like to call Nagindás, and that after some considera- PITA'MBAR. tion the prisoner said he would like to call him on his behalf, that he (the Magistrate) thereupon remanded the case to the next day and released the prisoner on bail, and that the prisoner neither sought to examine more witnesses nor indeed applied for the remand so granted. The Magistrate further states that on the 20th February the case was called on and he asked the prisoner if Nagindás was present, when he said "No; he is sick;" and in answer to a further question in this behalf, that he (the prisoner) had not taken out a witness summons for Nagindás. The Magistrate further states that the prisoner did not ask him to remand the case for the attendance of Nagindás, nor did he tell him (the Magistrate) that he had retained Nagindás for his defence or that he wished Nagindás to attend in his professional capacity; and that nothing whatever was said to alter his (the Magistrate's) impression that Nagindás was only to be called as a witness to character; that the prisoner did not, nor did any one on his behalf, inform him (the Magistrate), nor did he (the Magistrate) know that the prisoner wished to call any other witness or witnesses or that he had any other witness or witnesses in attendance other than those called by him on the previous day. The affidavit of Vámanráv Balvant, the interpreter, supports the statement of the Magistrate, and in particular that on the 20th February the accused did not say a word about his intention that Nagindás should appear for him as his vakeel or that he wished to call witnesses, and that he (the deponent) did not know that he had taken out any witnesses' summons. In reply the prisoner makes an affidavit stating that he did speak in Court on the 20th March last (a mistake, I suppose, for February) to the effect denied in paragraph 5 of Mr. Cooper's affidavit, and that he spoke in Gujarathi and did not understand English. It appears to me quite clear that the prisoner did not at any 1873. REG. บ. NATHA'LAL rate make the Magistrate understand that he either had engaged or wished to have the assistance of Mr. Nagindás Tulsidas in the capacity of vakil, or that on the adjourned hearing he PITA MBAR. made the Magistrate understand (if indeed he spoke at all to that effect) that he had witnesses present and wished to have them examined. On the first day the Magistrate had asked the prisoner if he had any more witnesses beyond the two already examined on his behalf, to which the prisoner answered no. The case was remanded, as appears, at the instance of the Magistrate himself, for the examination, as a witness, of Mr. Nagindas, and as the prisoner did not profess to have even served him with a summons and as Mr. Nagindas was not in attendance, I cannot see any ground whatever on which the conduct of the Magistrate can be impeached. The proper course, no doubt, is for a Magistrate to give the accused an opportunity of producing his witnesses and evidence by formally calling on him to do so. This opportunity had been given on the first day, and though it does not appear that on the second day the question was repeated, I cannot consider that under the circumstances of the case and having regard to what had taken place on the first day, there was any omission of duty on the part of the Magistrate. As, therefore, no ground of any illegality or irregularity of procedure on the part of the Magistrate has been established, and as there is no question that the Magistrate had jurisdiction to deal with the charge, I must discharge the rule and order that the costs of showing cause against it be paid out of the deposit. It is possible, no doubt, that the prisoner may have been wholly innocent of the charge of which he has been convicted, and there is a certain amount of improbability that he should have been guilty of stealing such a sum as Rs. 50, if he be a man of the position and substantial wealth deposed to in the affidavits filed in support of this application. But his only remedy is to apply in the proper quarter (if so advised) for a remission of his sentence. I do not feel that it is within my province on this application (and having regard also to the cir 1873. REG. V. NATHA'LA'L cumstance that I did not hear the witnesses who were examined) to do more than intimate my opinion, that if the evidence now placed before this Court had been before the Magistrate and believed by him, he might not improbably have PITA'MBAR. dismissed the charge; but on the evidence before him I cannot see any ground for considering that his conclusion was an improper one, and his proceedings, as I have already said, were, in my opinion, regular and according to law. I should suggest to the prisoner that he should furnish the Magistrate with office copies of the affidavits used on this application, and request him to consider the same with a view to making any representation he may feel justified in doing to the local Government as to the remission of the sentence. Attorneys for the prisoner: Chalk and Turner. For the Crown: C. Peile, Acting Government Solicitor. To O the same effect was the decision of BAYLEY, J., in the case of R. v. Sakhárám Anátobá and Sitáram Jagannath, who had been convicted by John Connon, Esquire, Senior Magistrate of Bombay, on the 16th of October 1872, of the offence of criminal breach of trust, BAYLEY, J., in giving judgment on the 30th of November 1872, after refering to Sec. 111 of Act XIII. of 1856 and the cases of The Queen v. The Justices of Cheshire, 11 Add. & Ell. 139; The Queen v. Bolton, 1 Q. B. 66; Thompson v. Ingham, 14 Q. B. 710, 718; Barber v. The Nottingham and Grantham Railway Company, 33 L. J. C. P. 194; The Queen v. Dayman, 7 Ell. & B. 672; Reg. v. John Connon, 6 Bom. H. C. Rep. Cr. Ca. 27; and an unreported case of The Queen v. Jan Muhammad, heard by SAUSSE, C.J., and ARNONLD, J., decided that upon a writ of certiorari he had no jurisdiction to enter into the merits of the case or to consider whether or not upon the evidence the Magistrate had come to a correct conclusion and dismissed the rule nisi with costs. 1873. April 15. [ORIGINAL CIVIL JURISDICTION.] In Admiralty. BARDOT AND ANOTHER... Plaintiffs. THE AMERICAN SHIP OR VESSEL " AUGUSTA" Defendant. Jurisdiction-Admiralty-Collision-Foreign Ships-Discretion-Questions--communis juris-Consul's consent-3 & 4 Vic. c. 65-24 Vic. c. 1026 & 27 Vic. c. 24. The Imperial Statutes 3 & 4 Vic. C. 65, 24 Vic. C. 10, and 26 & 27 Vic. C. 24, do not apply to the Admiralty or Vice-Admiralty jurisdiction of the High Court. On that point, The Asia (5 Bom. H. C. Rep. O. C. J. 64) followed; The Portugal (5 Beng. L. Rep. 323, 330, 331) disapproved. The High Court, as now existing, was continued, not created, by the Letters Patent of 1865. The High Court has jurisdiction, under the common maritime law, to entertain a suit in respect of a collision, upon the high seas, between two foreign vessels, although that collision may not have occurred in British or Anglo-Indian waters, and notwithstanding the opposition of the Consul of the State to which the defendant belongs. Whether the High Court has a discretion to decline to entertain such a suit-Quære. Even if there be such a discretion, the Court will ordinarily allow a suit of that nature to proceed. THE HE pleadings and facts sufficiently appear in the judgment of the Court, upon a motion made, on the 7th day of April 1873, before WESTROPP, C. J., SARGENT and MELVILL, JJ., to discharge the warrant of arrest issued against the defendant vessel, the "Augusta." Anstey and Lang in support of the motion to discharge the warrant of arrest of the Augusta. Marriott and Pigot, for the plaintiffs, opposed the motion In the course of the argument the following authorities were mentioned :-- The Asia (a); The Portugal (b); The Christiana (c) ; The Courtney (d); The Nina (e); Wendt's Maritime Legislation 109; The Johann Friederich (f);Wheaton 110 n, 170, Pt. II., S. II., Chap. XII; 18 Dalloz, Droit Maritime pl. 522, 2276, 2294, 2301, 2303, 2305, 2307, 2308; Le Louis (g); Bonfils 174; 1 Pritch. Adm. Dig. 283; 4 Phillimore International Law S. 815, p. 581; The Zollverein (k); The Courier (i); The Golubchick (); The Ida (k); Cope v. Doherty (1); The Two Friends (m); The North America (n); The Bold Buccleugh (o); The Mali Ivo (p); White v. Damon (q);1 Kent Com. 399 (p. 418 of 10th edn.); Treaties between France and America of 1788 and 1853; and the several Statutes subsequently mentioned in the judgment of the Court. The Jerusalem (r). Cur, adv. vult. WESTROPP, C.J.:-This suit has been brought, at the Admiralty side of this Court, by the owner and the master of the French barque "Antares" (the latter suing on behalf of himself and the rest of her crew) against the American ship 66 Augusta" (now lying in Bombay Harbour), the freight due for her cargo, and her owners. The cause of action alleged by the plaint is a collision between the two vessels, on the 11th December 1872 at 2-40 A M. in Latitude 20° south and Longitude 32° 35' west, whereby the "Antares," her cargo, and the money, clothes, and private effects of her master and crew were sunk and totally lost. She was bound from Callao to the Havannah with a cargo of guano. The (a) 5 Bom. H. C. Rep. O, C. J. 64. (b) 6 Beng. L. R. 323, 330, 331. (c) 2 Hagg. Adm. Rep. 183. (d) Edw. Adm. Rep. 239 (f) 1 W. Rob, 35. (g) 2 Dods. 238 (2) Lushington 541, (j) 1 Wm. Rob. 143 (1) 4 Kay & J. 367; S. C. on App. 2 DeGex (n) 12 Moo. P. C. C. 331. (e) L. R. 2. P. C. 38. (h) Swabey R, 99. (k) Lushington 6. & Jo. 614. (m) 1 C. Rob. 271. (0) 7 Moo. P. C. C. 284. (q) 7 Vesey 35. (p) L. R. 2. Adm. & Ecc. 356. () 2 Gallison 198; and mentioned in The Golubchick 1 W. Rob. 145, 153. 1873. BARDOT v. THE AUGUSTA, |