When depositions may be read in evid

ence.

390. Evidence taken under a commission shall

not be read as evidence in the suit without the consent of the party against whom the same is offered, unless

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead, or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in the last preceding clause, and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

Compare this section with Secs. 383 and 6; and also with Sec. 32 of the Evidence Act, 1872.

Shall not be read as evidence.-If it be read at all, the whole must be read, and the party reading the examination in chief must also, as a part of his case, read the cross-examination; so he cannot reject one interrogatory and its answer and adopt the rest, but must either abandon or use the whole. Any illegal question or answer contained in a vivâ voce examination may be objected to by the opposite party, but it cannot be struck out at the instance of the party on whose behalf the question was put. If a leading interrogatory be put the judge may reject the answer, or he may in his discretion admit either the whole or a part only. See Lush, 517.

"In order to render the depositions taken under a commission available, the evidence must be such, in substance, as would be received according to the English law; and if at the trial it should appear, either on the face of the depositions, or by extrinsic proof, that the commissioners have admitted illegal, or rejected legal, evidence, the judge will, it seems, be empowered, in the exercise of his discretion to suppress the depositions either wholly or in part." Taylor, 485.

Unless. It lies on the party who offers the deposition in evidence to adduce to the judge the requisite proof to show the necessity of resorting thereto. Where it appeared that the deponent six months before the trial belonged to a ship then lying in the Thames, but the nature of the vessel was not shown, nor whither she was bound, nor had any enquiry been made after him preparatory to the trial, the deposition was rejected. Falconer v. Hanson, 1 Camp, 171. In Scotland the rule appears to be different.

Provisions as to execution and return of commissions to apply to commissions issued by foreign Courts.

391. The provisions herein before contained as to the execution and return of commissions shall apply to commissions issued by

(a) Courts situate beyond the limits of British India and established by the authority of Her Majesty or of the Governor General in Council, or

(b) Courts situate in any part of the British Empire other than British India, or

(c) Courts of any foreign country for the time being in alliance with Her Majesty.

B.-Commissions for local Investigations.

392. In any suit or proceeding in which the Court deems a local investiCommission to make gation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertainlocal investigations. ing the market-value of any property, or the amount of any mesne profits or damages or annual nett profits, and the same cannot be conveniently conducted by the Judge in person, the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report thereon to the Court:

Provided that, when the Local Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

This section has been considerably amended but still leaves it somewhat doubtful in what cases commissions of the sort should issue. This is to be regretted, inasmuch as great harm may be done by abuse of the powers conferred by this enactment. In its Circular No. 23 of 1859 the Calcutta High Court observed:-" The authority conveyed in Sec. 181 to appoint suitable persons to make local investigations, or to investigate accounts, and to charge their expenses to the party at whose instance and for whose benefit they are appointed, is a most valuable one, and it will be the fault of the courts, henceforward, if they employ any other than well qualified and trustworthy persons to perform these duties." But in its Circular No. 41 of 1866 the same court took occasion to impress upon the subordinate courts that: "Local investigations should only be ordered in cases where they are absolutely required by the courts on subordinate points for a determination of the main issue in the case; for instance, in cases in which it is necessary to ascertain by measurement disputed areas of land, or to ascertain whether particular lands are identical with lands detailed in documents when the fact is disputed; and in such like instances. When, however, any fact can be elicited by evidence, that evidence should be heard by the court itself, and not by an Ameen."

In Imarchandra Luv. Jepal Kishor Chuckerbutty. 4 B. L.R, App.. 34. Phear. J., said:- This court has very many times, in reference to proceedings of this kind, expressed its opinion that See 150 of the Civil Procedure Code does not warrant a civil court in deputing its functions to an Ameen, whom it sends to the locality for the purpose of making a local investigation. All that it can charge the Ameen with, is to obtain such information with regard to the physical features of the place in dispute, the identification of land depicted in maps with the parcels which are the subject of the suit, the identification of maps with one another by the aid of objects to be found on the land, and other matters of this kind which may be of use in, and auxiliary to, the proper trial of the suit by the court before which it is pending."

Local investigation-I understand this to mean an inspection of a place, aided by evidence.

Elucidating Throwing light upon. Where the investigation is for this purpose, the Commissioner should not, I apprehend, be permitted to decide anything as the delegate of the court: his business should be merely to see things for the court, when the judge cannot conveniently go and see things for himself. For example, suppose the plaintiff in a suit against the Trustees of a Temple avers that the Temple has been during several years in a ruinous state, whereas the Trustees aver that the Temple is in a state of thorough repair: here the court may very properly direct a Commissioner to go and investigate the past and present plight of the building and report upon the same, but may not depute to him the function of deciding any question.

Rule 3 of Order LII of the Rules of the Supreme Court enables the court or a judge to order "the inspection of any property, being the subject of such action," and for that purpose to "authorize any person or persons to enter upon or into any land or building in the possession of any party to such action." The very necessary restriction comprised in the last few words is noteworthy.

Sec. 58 of the Common Law Procedure Act, 1854, provides that-Either party shall be at liberty to apply to the court or a judge for a rule or order for the inspection by the jury, or by him

self, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute," and that inspection may thereupon be ordered; provided that the provisions of no previous act as to obtaining a view by a jury shall be affected. See Sec. 499 below.

A somewhat similar power to grant inspection' was conferred on the courts of common law by the Patent Law Amendment Act, 1852, s. 42, which allows the inspection of the defendants machinery, if necessary, in an action for infringement of the plaintiffs patent.

The former writ of view' was abolished by Sec. 114 of the Common Law Procedure Act, 1852, and a new proceeding substituted, namely a rule of court or judges order for a view.

The 4 Ann, c. 15, s. 8, enabled the court to order the jurors to 'view' messuages, lands or place in question, when proper and necessary, in order to the better understanding of the evidence. But an order for a view will not be granted in an action for work and labour as a bricklayer, for "the necessity of a view seems to apply chiefly to actions of a local nature, such as trespass qu. cl. fr., nuisances and the like." Parke, B, in Stones v. Menhem, 5 Exch. 382.

Application for inspection of goods, under Sec. 180 of Act VIII of 1859, should be made at the hearing of the suit, and not previously. Mackinnon, Mackenzie and Co. v. Bhugram Doss, Bourks Rep., O. C., 242.

393. The Commissioner, after such local inspection as he deems necesProcedure of Com- sary, and after reducing to writing the evidence taken by him, shall return such evidence, together missioner. with his report in writing, subscribed with his name, to the Court.

The report of the

Report and depositions to be evidence in suit.

Commissioner may be examined in person.

Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court, or, with the permission of the Court, any of the parties to the suit, may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to the manner in which he has made the investigation.

The evidence taken by him.-See Secs. 398-9.

Shall be evidence.-The judge is bound under this section to take notice of, and pronounce an opinion upon, evidence taken by an

Ameen as to possession. Jannobee Chowdhrain v. The Collector of Mymensingh and others, 8 W. R., 287.

C.-Commissions to examine Accounts.

Commission to exmine or adjust accounts.

394. In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjust

ment.

So Sec. 57 of the Supreme Court of Judicature Act, 1873, enables the court or a judge in any cause or matter" requiring any prolonged examination of accounts...... which cannot conveniently be conducted by the court," to "order any question of account arising therein to be tried before a referee."

The words "any question of account" receive a liberal construction. Rowcliffe v. Leigh, L. R., 1 Ch. D. 292; 24 W. R., 782. The section may be applied to a claim for damages as well as for debt. Per Lush, G., Liverpool, &c., S. N. Co. v. London and St. Katherines Dock Co., Bitt., p. 18.

Accounts.-Wharton thus explains the word:-"'Account' or accompt' [fr. compte, Fr. computo, Lat.], a registry of debts, credits and charges, or a detailed statement of a series of receipts (credits) and disbursements (debits) of money, which have taken place between two or more persons. Accounts are either—(1) open, where the balance is not struck, or it is not accepted by all the parties; (2) stated, where it has been expressly or impliedly acknowledged to be correct by all the parties; and (3) settled, where it has been accepted or discharged."

Court to give Commissioner necessary instructions.

395. The Court shall furnish the Commissioner with such part of the proceedings and such detailed instructions as appear necessary,

and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

Court to receive a Commissioner's proceedings or direct further inquiry.

The proceedings of the Commissioner shall be received in evidence in the suit, unless the Court has reason to be dissatisfied with them, in which case the Court shall direct such further inquiry as is requisite.

Shall distinctly specify.-This provision must by no means be overlooked. Where the court desires, but omits to order an opinion