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Cornell University Library 
KF2916 S82 

The Indian evidence act (I. of 1872) 

3 1924 017 196 027 ^»,..,. 

Cornell University Law Library. 

^_ /I THE QIFT^s' ^ 



Cornell University 

The original of tiiis bool< is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 






(I. of 1872). 





Calcutta: Thacker, Spink & Co. ; Bombay: Thackeb,Vining & Co. 


Z061 £ mn 


On the 5th March, 1872, in moving that the " Indian 
" Evidence Act " shovdd be taken into consideration 
by the Legislative Council, I said — " many topics 
" closely connected with the subject of Evidence are 
" incapable of being satisfactorily dealt with by ex- 
" press law. It would be easy to dilate upon the theory 
" on which the whole subject rests, and the manner in 
" which an Act of this kind should be used in practice. 
" I think, however, that it would not be proper to 
" do so on the present occasion. I have therefore 
" put into writing what I have to say on these 
" subjects, and I propose to publish what I have 
" written, by way of a commentary upon, or intro- 
" duction to, the Act itself I hope that this may be 
" some use to Civil Servants who are preparing 
" in England for their Indian career, and to the law 
" students in Indian universities. The subject is 
" one which reaches far beyond law. The law of 
"evidence is nothing unless it is founded upon a 
" rational conception of the manner in which truth 
" as to all matters of fact whatever ought to be in- 
" vestigated." 

This, written for the most part before these 
remarks were made, but corrected and completed 
since my return to England, is the Introduction re- 
ferred to. 

AuffUst.SOth, 1872. 

i, Papek Buildings, Tbmpli?. 


In the Gazette of India of August 17, 1872, a Bill 
for the Amendment of the Evidence Act is published 
for the first time. In the Statement of Objects and 
Reasons appended to the BUI it is said that " the 
primary object of this Bill is to continue certain rules 
"which it is believed were inadvertently repealed by 
the Indian Evidence Act." It is added that "at the 
same time opportiuiity is taken to correct some 
clerical and other accidental errors to which attention 
has been called." 

If the Bill has already become or should hereafter 
become law in its present shape, the following errata 
should be made in the Act as printed below : — 

1. S. 32, clauses 5 and 6, after "relationship" 

insert " by blood, marriage, or adoption." 

2. S. 41, in each of the last three paragraphs, after 

the word "judgment" add the words "order 
or decree." 

3. S. 45, after the word "art" add "or in ques- 

tions as to the identity of handwriting." 

4. S. 57, paragraph 13, after the word "road" add 

" on land or at sea." 

5. S. 66, after " in whose possession the document 

is " add " or to his attorney or pleader." 

Postscript. vii 

6. In S. 9i, exception (2), for "under the Indian 

Succession Act " read. " admitted to probate in 
British India." 

7. In S. 92, proviso 1, for " want of failure " read 

" want or failure." 
S. In S. 108, for "when" read "provided that 
when," and for the word " on" in the last line 
read " shifted to." 

9. In S. 126 (paragraph immediately preceding the 

explanation) and in section 128 insert "pleader" 
after "barrister." 

10. In S. 126 paragraph 2, for "criminal" read 

" illegal." 

11. In S. 155, paragraph 2, for " or has had the offer 

of a bribe " read " or has accepted the offer of a 

12. In the repealing schedule No. 3, third column, 

add "except section 12." 

Of these errata three, viz., Nos. 8, 10, and 11, make 
substantial alterations in the Act on points on which 
it was drawn advisedly in the words in which it now 
stands, for various reasons which were carefully con- 
sidered and regarded as satisfactory. Upon these 
points there is of course room for difference of opinion, 
but there was no inadvertence. 

September 30th, 1872. 

4, Paper Buildwgs, Temple. 





Technical and General Elements of Law . . 1 

English Law of Evidence ^ . 
Fundamental Rules of English Law 
Ambiguity of word " Evidence " 
Natural Distribution of Subject . 
Relevancy of Facts . 
Proof of Relevant Facts 
Production of Proof . 
Tabiolar Scheme . . . . 










Pp. 13—15. 

Principle of Judicial and Scientific Inquiries .... 13 

General Object of Science . . . 14 

Pacts ... 15, 16 

Definition of Pacts in Evidence Act . . .16 

Propositions . . . ... 16 

True Propositions . . ... 17 

How framed ... . . . 17 

Induction and Deduction . . ... 18, 19 

Methods of Agreement and Difference . . 20, 21 

Their Difficulties .... ... 21 



of Proba- 

How dealt witt ... . . 

Deductive Method 

Comparison of Judicial and Scientific Inquiries 
Difference as to Amount of Evidence 
Difference as to Object of Evidence . 
Difference as to Trustworthiness of Evidence 
Advantages of Judicial Inquiries 
Maxims easily appreciated 
Limitations easily perceived 
Simplicity of Problems 
Summary . 

Result of Judicial Inquiries to produce high degree ( 
bility . . .... 

Meaning of Moral Certainty 

Moral Certainty a Question of Prudence . 

Principle on which Probabilities are estimated 

Two Classes of Inferences in Judicial Inquiries . 

Theory of these Inferences 

Inferences from Assertion to Truth of Matter Asserted 

Its Difficulties not AffeotedbyEulfes of Evidence 

Grounds of Belief and Disbelief of a Witness . 

Inference from Truth of Matters Asserted to other Matters 

Comparatively easy . . ... 

Facts proved must fulfil Test of Method of Difference 

Rule as to Cm-pus Delicti . 

Summary of Conclusions 


. 22,23 

. 23,24 



. 27, 28 

. 28,29 






. 33,34 
















Pp. 52—128. 

Relevancy means Connection by vfay of Cause and Effect 52 — 54 
Reasons of wider Definition in Evidence Act . . . 55,56 

Illustrations : — Case of E. v. Donellan . . . 67 62 

Case of R. v. Belaney .... 63—67 

Case of R. V. Richardson . . 68 — 75 

Case of R. v. Patch 76, 81 

Case of R. v. Palmer , . . 82 — 121 
Irrelevant Eacts . . 1-22 



Facts apparcmtly but not really relevant . 
Exclusion of Hearsay . 
Reasons for it . ... 

Effect of Section 11 

Unconnected but Similar Transactions 
Evidence of Opinion .... 

Exceptions to Rules on Irrelevancy . 
Admissions .... 

Statements by Witnesses who cannot be called 
Statements under Special Circumstances 
Judgments .... 

Opinions ... ... 



. 122 
. 123 
165, 124 
. 121 
. 125 
. 125 
. 125 
. 126 
. 127 
. 127 
127, 128 


ACT. -Pp. 129—134. 

English Cases not referred to 

Judicial Notice . . . . 

Oral Evidence ...... 

Documentary Evidence ..... 

When Documents are Exclusive Evidence 
Principle of Provisions on Documentary Evidence 
Presumptions .... . . 

English Law as to Presumptions 

How Affected by Evidence Act 

Legal Principles improperly called Presumptions 

Estoppels . . . . 

. 129 


. 129 

. 129 


. 131 


132, 133 

. 133 

. 133 

. 134 





(I. of 1872). 


Almost every branch of law is composed of rules of which chap. i. 
some are grounded upon practical convenience and the Technical 
experience of actual litigation, whilst others are closely con- ^"^^^^"'^' 
nected with the constitution of human nature and society, ments of 
Thus the criminal law contains many provisions of no general 
interest, such as those which relate to the various forms 
in which dishonest persons tamper with or imitate coin; 
but it also contains provisions, such as those which relate to 
the effect of madness on responsibility, which depend on 
several of the most interesting branches of moral and physical 
learning. This is perhaps more conspicuously true of the law 
of evidence than of any other branch of the law. Many 
of its provisions, however useful and necessary, are technical ; 
and the enactments in which they are contained can claim 
no other merit than those of completeness and perspicuity. 
The whole subject of documentary evidence is of this nature. 
Other branches of the subject, such as the relevancy of facts, 
are intimately connected with the whole theory of human 
knowledge, and with logic, as applied to human conduct. 
The object of this introduction is to illustrate these parts of 
the subject, by stating the theory on which they depend 
and on which the provisions of the Act proceed. As to more 

2 General Distribution of the Subject. 

Chap. I. technical matters, the Act speaks for itself, and I have 

nothing to add to its contents. 
Relation of The Indian Evidence Act is little more than an attempt to 
Evidence yeduce the English law of evidence to the form of express 

Act to En- ° • T. J • 

glish law propositions arranged in their natural order, with some modi- 
denc^ fications rendered necessary by the peculiar circumstances 

of India. 
English Like almost every other part of English law, the English law 

law of Qf evidence was formed by degrees. No part of the law has 

evidence- ./ o 

been left so entirely to the discretion of successive generations 
of Judges. The Legislature tiU very recently interfered 
but little with the matter, and since it began to interfere, it 
has done so principally by repealing particular rules, such as 
that which related to the disc|;ualification of witnesses by 
interest, and that which excluded the testimony of the parties ; 
but it has not attempted to deal with the main principles of the 
Its want It is natural that a body of law thus formed by degrees, 

°'^^'"' and with reference to particular cases, should be destitute of 

range- '- 

ment. arrangement, and in particular that its leading terms should 
never have been defined by authority ; that general rules 
should have been laid down with reference rather to par- 
ticular circumstances than to general principles, and that it 
should have been found necessary to qualify them by excep- 
tions inconsistent with the principles on which ihey proceed. 
Difficulties When this confusion had once been introduced into the 
ing it. subject it was hardly capable of being remedied either by 
courts of law, or by writers of text-books. The courts of 
law could only decide the cases which came before them 
according to the rules in force. The writers of text-books 
could only collect the results of such decisions. The Legisla- 
ture might, no doubt, have remedied the evil, but comprehensive 
legislation upon abstract questions of law has never yet been 
attempted by Parliament in any one instance, though it has 
in several weU-kuown cases been attended with signal success 
in India. 

Ftindamental Rules. -i 

That part of the English law of evidence which professes to Chap. i. 
be founded upon anything in the nature of a theory on the Funda- 
subject may be reduced to the following rules :— mies^of 

(1) Evidence must be confined to the matters in issue. English 

law or 

(2) Hearsay evidence is not to be admitted. evidence. 

(3) In all cases the best evidence must be given. 

Each of these rules is very loosely expressed. The word 
'evidence,' which is the leading term of each, is undefined 
and ambiguous. 

It sometimes means the words uttered and things exhibited 
by witnesses before a court of justice. 

At other times, it means the facts proved to exist by those 
words or things, and regarded as the groundwork of inferences 
as to other facts not so proved. 

Again, it is sometimes used as meaning to assert that a par- 
ticular fact is relevant to the matter under inquiry. 

The word 'issue' is ambiguous. In many cases it is 
used with reference to the strict rules of English special 
pleading, the main object of which is to define, with great 
accuracy, the precise matter which is affirmed by the one 
party to a suit, and denied by the other. 

In other cases it is used as embracing generally the whole 
subject under inquiry. 

Again, the word ' hearsay ' is used in various senses. Some- 
times it means whatever a person is heard to say ; sometimes 
it means whatever a person declares on information given by 
some one else; sometimes it is treated as being nearly 
synonymous with ' irrelevant.' 

If the rule that evidence must be confined to the matters Ambiguity 
in issue were construed strictly, it would run thus : ' ISTo °^ confin^^ 
witness shaU ever depose to any fact, except those facts which ™g ^vi- 

^ ■> ' ^ _ dence to 

by the form of the pleadings are affirmed on the one side and issue. 
denied on the other.' So understood, the rule would obviously 
put a stop to the whole administration of justice, as it would 
exclude evidence of decisive facts. 

A sues B on a promissory note. B denies that he made the 

4 General Distribution of the Subject. 

Chap. I. A has a letter from B in which he admits that he made the 
note, and promises to pay it. This admission could not be 
proved if the rule referred to were construed strictly, because 
the issue is, whether B made the note, and not whether he 
admitted having made it. 

This absurd result is avoided by using the word ' evidence ' 
as meaning not testimony but any fact from which any other 
fact may be inferred. Thus interpreted, the rule that evidence, 
must be confined to matters in issue will run thus : ' No facts 
, may be proved to exist, except facts in issue or facts from 
which the existence of the facts in issue can be inferred;' but 
if the rule is thus interpreted, it becomes so vague as to be of 
little use ; for the question naturally arises, from what sort of 
facts may the existence of other facts be inferred ? To this 
question the law of England gives no explicit answer at all, 
though partial and confused answers to parts of it may be 
inferred from some of the exceptions to the rule which excludes 

For instance, there are cases from which it may be inferred 
that evidence may sometimes be given of a fact from which 
another fact may be inferred, although the fact upon which 
the inference is to be founded is a crime, and although the 
fact to be inferred is also a crime for which the person agaiast 
whom the evidence is to be given is on his trial. 

The full answer to the question, ' what facts are relevant,' 
which is the most important of aU the questions that can be 
asked about the law of evidence, has thus to be learnt partly 
by experience, and partly by collecting together such crooked 
and narrow illustrations of it as the one just given. 
Ambiguity The rule that ' hearsay is no evidence ' is vague to the last 

of the rule ^ n ,-< ■ «,.-,, 

excluding degree, as each oi the meanmgs of which the word ' hearsay ' 
hearsay. ^^ susccptiblc is somctimes treated as the true one. As the 
rule is nowhere laid down in an authoritative manner, its 
meaning has to be collected from the exceptions to it, and 
these exceptions, of which there are as many as twelve or 
thirteen, imply at least three different meanings of the word 
' hearsay.' 


Thus it is a rule that evidence may he given of statements Chap. i. 
which accompany and explain relevant actions. As no rule 
determines what actions are relevant, this is in itself unsatis- 
factory ; but as the rule is treated as an exception to the rule 
excluding hearsay, it implies that 'hearsay' means that 
which a man is heard to say. If this is the meaning of 
hearsay, the rule which excludes it would run thus : ' No 
witness shall ever he allowed to depose to any thing which he 
has heard said by any one else.' The result of this would be 
that no verbal contract could ever be proved, and that no one 
could ever be convicted of using threats with intent to extort 
money, or of defamation by words spoken, except in virtue of 
exceptions which stultify the rule. 

Most of the exceptions indicate that the meaning of the 
word ' hearsay ' is that which a person reports on the infor- 
mation of some one else, and not upon the evidence of his own 
senses. This, with certain exceptions, is no doubt a valuable 
rule, but it is not the natural meaning of the words ' hearsay 
is no evidence,' and it is in practice almost impossible to divest 
words of their natural meaning. 

The rule that documents which support ancient possession 
may be admitted as between person who are not parties to 
them, is treated as an exception to the rule excluding hearsay. 
This implies that the word 'hearsay' is nearly, if not 
quite, equivalent to the word ' irrelevant.' But the English 
law contains nothing which approaches to a definition of 

The rule which requires that the best evidence of which a Rules as 

to nP^t 

, fact is susceptible should be given, is the most distinct evidence. 
of the three rules referred to above, and it is certainly 
one of the most useful. It is simply an amplification of the 
obvious maxim, that if a man wishes to know aU that he can 
know about a matter, his own senses are to him the highest 
possible authority. If a hundred witnesses of unimpeachable 
character were all to swear to the contents of a sealed letter, 
and if the person who heard them swear opened the letter 

6 General Distribution of the Subject. 

Chap. I. and found that its contents were different, he would conclude, 
without the intervention of any conscious process of reasoning 
at all, that they had sworn what was not true. 
Ambiguity The ambiguity of the word ' evidence ' is the cause of a 
"evidence." great deal of obscurity apart from that which it gives to the 
rules above mentioned. In scientific inquiries, and for popular 
and general purposes, it is no doubt convenient to have one 
word which includes — 

(1) The testimony on which a given fact is believed. 

(2) the facts so believed, and 

(3) the arguments founded upon them. 

For instance, tn the title of " Paley's Evidences of Chris- 
tianity," the word is used in this sense. The nature of the 
work was not such as to give much importance to the dis- 
tinction which the word overlooks. So, in scientific inquiries, 
it is seldom necessary (foi reasons to which I shall have 
occasion to refer hereafter) to lay stress upon the difference 
between the testimony on which a fact is believed, and the 
fact itself In judicial inquiries, however, the distinction is 
most important, and the neglect to observe it has thrown 
the whole subject into confusion by causing English lawyers 
to overlook the leading distinction which ought to form the 
principle on which the whole law should be classified. I 
mean the distinction between the relevancy of facts and the 
mode of proving relevant facts. 
Effects of The use of the one name ' evidence ' for the fact to be 
l.aiTty.'" '' proved, and the means by which it is to be proved, has given 
a double meaning to every phrase in which the word occurs. 
Thus, for instance, the phrase ' primary evidence ' sometimes 
means a relevant fact, and sometimes the original of a docu- 
ment as opposed to a copy. ' Circumstantial evidence ' is 
opposed to ' direct evidence.' But ' circumstantial evidence 
usually means a fact, from which some other fact is inferred, 
whereas ' direct evidence ' means testimony given by a man 
as to what he has himself perceived by his own senses. It 
would thus be correct to say that circumstantial evidence 

English Law of Evideiue. 7 

must be proved by direct evidence — a clumsy mode of expres- Chap. i. 
sion, which is in itself a mark of confusion of thought. The 
evil, however, goes beyond mere clumsiness of expression. 
People have naturally enough supposed that circumstantial 
and direct evidence admit of being contrasted in respect of 
their cogency, and that different canons can be laid down, as 
to the conditions which they ought to satisfy before the court 
is convinced by them. This, I think, confuses the theory 
of proof, and is an error, due entirely to the ambiguity of the 
word ' evidence.' 

It would be a mistake to infer from the unsystematic Merits of 
character and absence of an'angement which belong to the law of 
English law of evidence that the substance of the law itself is s™^°'=£- 
bad. On the contrary, it possesses in the highest degree the 
characteristic merits of English case law. English case law, 
as it is, is to what it ought to be, and might be, if it were 
properly arranged, what the ordinary conversation of a very 
clever man on all sorts of subjects written down as he uttered 
it, and as passing circumstances furnished him with a text, 
would be to the matured and systematic statement of his deli- 
berate opinions. It is full of the most vigorous sense, and is 
the result of great sagacity applied to vast and varied ex- 

The manner in which the law of evidence is related to Natural 
the general theories which give it its interest can be under- tion"ofVhe 
stood only by reference to the natural distribution of the subject. 
subject, which appears to be as follows ; — 

All rights and liabilities are dependent upon and arise out 
of facts. 

Every judicial proceediag whatever has for its purpose the 
ascertaining of some right or liability. If the proceeding is 
criminal, the object is to ascertain the liability to punishment 
of the person accused. If the proceeding is civil, the object 
is to ascertain some right of property or of status, or the 
right of one party, and the liability of the other, to some form 
of relief. 


8 General Distribution of the Subject. 

Chap. I. In order to effect this result, provision must be made by 
law for the foUowing objects : — First, the legal effect of 
particular classes of facts in establishing rights and liabilities 
must be determined. This is the province of what has been 
called ^substantive law. Secondly, a course of procedure 
must be laid down by which persons interested may apply the 
substantive law to particular cases. 

The law of procedure includes, amongst others, two main 
branches, — (1) the law of pleading, which determines what in 
particular cases are the questions in dispute between the 
parties, and (2) the law of evidence, which determines how the 
parties are to convince the court of the existence of that state 
of facts which, according to the provisions of substantive law, 
would establish the existence of the right or liability which 
they allege to exist. 
Illustra- The following is a simple illustration : A sues B on a bond 

for Rs. 1,000. B says that the execution of the bond was 
procured by coercion. 

The substantive law is, that a bond executed under coercion 
cannot be enforced. 

The law of procedure lays down the method according to 
which A is to establish his right to the payment of the sum 
secured by' the bond. One of its provisions determines the 
manner in which the question between the parties is to be 

The question stated under that provision is, whether the 
execution of the bond was procured by coercion. 
The law of evidence determines — 

(1) What sort of facts may be proved in order to establish 
the existence of that which is defined by the substantive law 
as coercion. 

(2) What sort of proof is to be given of those facts. 

(3) Who is to give it. 

(4) How is it to be given. 
Thus, before the law of evidence can be understood or 

applied to any particular case, it is necessary to know so 

Relevancy of Facts. 9 

mucli of the substantive law as determines what, under given Chap. I. 
states of fact, would be the rights of the parties, and so 
much of the law of procedure as is sufficient to determine 
what questions it is open to them to raise in the particular 

Thus in general terms the law of evidence consists of Result, 
provisions upon the following subjects : 

(1) The relevancy of facts. 

(2) The proof of facts. 

(3) The production of proof of relevant facts. 

The foregoing observations show that this account of the 
matter is exhaustive. For if we assume that a fact is known 
to be relevant, and that its existence is duly proved, the 
Court is in a position to go on to say how it affects the 
existence, nature, or extent of the right or liability, the 
ascertainment of which is the ultimate object of the inquiry, 
and this is all that the Court has to do. 

The matter must, however, be carried further. The three 
general heads may be distributed more particularly as follows : 

I .TJie Relevancy of Facts. — Facts may be related to Reievancy 
rights and liabilities in one of two ways, — i^F *^'t' in 

(1) They may by themselves, or in connection with other issue, 
facts, constitute such a state of things that the existence of 

the disputed right or liability would be a legal inference from 
them. From the fact that A is the eldest son of B, there 
arises of necessity the inference that A is by the law of 
England the heir-at-law of B, and that he has such rights as 
thaf^status involves. From the fact that A caused the death 
of B under certain circumstances, and with a certain inten- 
tion or knowledge, there arises of necessity the inference that 
A murdered B, and is Liable to the punishment provided by 
law for murder. 

Facts thus ^related to a proceeding may be called facts in 
issue, unless their existence is undisputed. 

(2) Facts, which are not themselves in issue in the sense 2. Rele- 

• 1 • V3Ilt 13.Cts 

above explained, may affect the probability of the existence 

lo General Distribution of the Subject. 

Chap. I. of facts in issue, and be used as the foundation of inferences 
respecting them ; such facts are described in the Evidence 
Act as relevant facts. 

All the facts with which it can in any event be necessary 
for courts of justice to concern themselves, are included in 
these two classes. 

The first great question, therefore, which the law of 
evidence should decide is, what facts are relevant. The 
answer to this question is to be learnt from the general theory 
of judicial evidence explained in the foUowing chapter. 

What facts are in issue in particular cases is a question to be 
determined by the substantive law, or in some instances by that 
branch of the law of procedure which regulates the forms of 
pleading, civil or criminal. 

Proof of II. The Proof of Relevant Facts. — Whether an alleged fact 
facts. is a fact in issue or a relevant fact, the court can draw no in- 

ference from its existence tiH it believes it to exist ; and it is 
obvious that the belief of the court in the existence of a given 
fact ought to proceed upon grounds altogether independent 
of the relation of the fact to the object and nature of the 
proceeding in which its existence is to be determined. The 
question is whether A wrote a letter. The letter may have 
contained the terms of a contract. It may have been a libel. 
It may have constituted the motive for the commission of a 
crime by B. It may supply proof of an alibi in favour of A. 
It may be an admission or a confession of crime ; but what- 
ever may be the relation of the fact to the proceeding, the 
court cannot act upon it unless it believes that A did write 
the letter, and that belief must obviously be produced, in each 
of the cases mentioned, by the same or similar means. If 
^he court requires the production . of the original when the 
writing of the letter is a crime, there can be no reason why it 
should be satisfied with a copy when the writing of the letter 
is a motive for a crime. In short, the way in which a fact 
should be proved depends on the nature of the fact, and not 
on the relation of the fact to the proceeding. 

Oral and Documentary Evidence. i ] 

Some facts are too notorious to reqiiire any proof at all, and Chap. I. 
of these the court will take judicial notice; but if a fact does i. judicia 
require proof, the instrument by which the court must be 2°'oral 
convinced of it is evidence ; by which I mean the actual words evidence. 
uttered, or documents, or other things actually produced mentary" 
in court, and not the facts which the court considers to be ^■'"^^"'=^- 
proved by those words and documents. Evidence in this sense 
of the word must be either (1) oral or (2) documentary. A 
third class might be formed of things produced in court, 
not being documents, such as the instruments with which a 
crime was committed, or the property to which damage had 
been done, but this division would introduce needless intricacy 
into the matter. The reason for distinguising between oral 
and documentary evidence is that in many cases the existence 
of the latter excludes the employment of the former ; but the 
condition of material things, other than documents, is usually 
proved by oral evidence, so that there is no occasion to dis- 
tinguish between oral and material evidence. 

It may be said that in strictness aU evidence is oral, as 
documents or other material things must be identified by oral 
evidence before the court can take notice of them. It is 
unnecessary to discuss the justice of this criticism, as the 
phrase ' documentary evidence ' is not ambiguous, and is 
convenient and in common use. The only reason for 
avoiding the use of the word ' evidence ' in the general sense 
in which most writers use it, is that it leads, in practice, to 
confusion, as has been already pointed out. 

III. The Production of Proof. — This includes the subject Produc- 
of the burden of proof : the rules upon which answer the ^^°^ 
question, By whom is proof to be given ? The subject of 
witnesses : the rules upon which answer the question, who 
is to give evidence, and under what conditions ? The subject 
of the examination of witnesses : the rules upon which answer 
the question. How are the witnesses to be examined, and 
how is their evidence to be tested ? Lastly, the effect upon 


General Distribution of the Subject. 

Chap. I. the subsequent proceedings, of mistakes in the reception and 
rejection of evidence may be included under this head. 

The following tabular scheme of the subject may be an 
assistance to the reader. The figures refer to the sections of 
the Act which treat of the matter referred to : — 

The object of legal proceedings is the determination 
of ri^ts and liabilities Trhich depend on facts 

In issue, § 3. 

Relevant to 
the issue (§ 3) 
which may be 

* They may be 

connected with the 
issue, § 5—16. 
— admissions, § 17 — 31. 
statements by persons 
who cannot be 
called as witnesses, 
§ 32—3. 
—statements under spe- 
cial circnaistances, 
§ 34-9. 
-judgments in other 

cases, § 40 — 44. 
■opinions, \ 45 — 51. 
— character, § 52 — 5. 

Judicially noticed, 
ch. iii. 

proved by 

oral evidence, 

ch. iv. 

proved by 
evidence (ch. v.) 
which is 

This Proof must be produced by the 
party on whom the burden of proof 
rests, (ch. vii.), unless he is es- 
topped (ch. viii.) 

If given by witnesses (ch. ix.) they 
must testify, subject to rules as to 
examination (ch. x.). Conse- 
quence of mistakes defined, ch. zi. 

— primary or se- 
—attested or un- 
§ 67—73. 
-public or private, 

§ 74—78. 
-sometimes pre- 
sumed to be 
§ 79—90. 
- exclusive or not 
of oral evi- 
dence, ch. vi. 

Ge7ieral Theory of Jtidicial Evidence. 1 3 





The general analysis given in the last chapter of the subjects Chap. il 
to which the law of evidence must relate, sufficiently explains 
the general arrangement of the Indian Evidence Act. To 
understand the substance of the Act it is necessary to have 
some acquaintance with the general theory of judicial evidence. 
The object of the present' chapter is to explain this theory 
and to compare its application to physical science with its 
application to judicial inquuies. 

Mr. Huxley remarks in one of his latest works — " The J^""- ■^"''" 

•' ley on 

vast results obtained by science are won by no mystical physical 
faculties, by no mental processes, other than those which are judicial in- 
practised by every one of us in the humblest and meanest l*"''^^- 
affairs of life. A detective policeman discovers a burglar from 
the marks made by his shoe, by a mental process identical 
with that by which Cuvier restored the extinct animals of 
Montmartre from fragments of their bones, nor does that 
process of induction and deduction by which a lady finding 
a stain of a particular kind upon her dress, concludes that 
somebody has upset the inkstand thereon, differ in any way 
from that by which Adams and Leverrier discovered a new 
planet* The man of science, in fact, simply uses with scru- 
pulous exactness the methods which we all habitually and at 
every moment use carelessly." 

* Lay Sermons, p. 78. 


Chap. II. 

tion of his 
remarlcs .to 
law of 

object of 



A Statement of the Principles of Induction. 

These observations are capable of an inverse application. 
If we wish to apply the methods in question to the investi- 
gation of matters of every-day occurrence, with a greater 
degree of exactness than is commonly needed, it is necessary 
to know something of the theory on which they rest. This 
is specially important when, as in judicial proceedings, it is 
necessary to impose conditions by positive law upon such 
investigations. On the other hand, when such conditions 
have been imposed, it is difficult to understand their import- 
ance or their true significance, unless the theory on which 
they are based is understood. It appears necessary for these 
reasons to enter to a certain extent upon the general subject 
of the investigation of the truth as to matters of fact, before 
attempting to explain and discuss that particular branch of 
it which relates to judicial proceedings. 

First, then, what is the general problem of science ? It is 
to discover, collect, and arrange true propositions about facts. 
Simple as the phrase appears, it is necessary to enter upon 
some illustration of its terms, namely, (1) facts, (2) proposi- 
tions, (3) the truth of propositions. 

First, then, what are facts 1 

During the whole of our waking life we are in a state ot 
perception. Indeed, consciousness and perception are two 
names for one thing, according as we regard it from the 
passive or active point of view. We are conscious of every- 
thing that we perceive, and we perceive whatever we are 
conscious of Moreover, our perceptions are distinct from 
each other, some both in space and time, as is the case with 
all our perceptions of the external world ; others, in time only, 
as is the case with our perceptions of the thoughts and 
feelings of our own minds. 

Whateyer may be the objects of our perceptions, they 
make up collectively the whole sum of our thoughts and 
feelings. They constitute, in short, the world with which we 
are acquainted, for without entering upon the question of the 
existence of the external world, it may be asserted with 

External and Internal Facts. 1 5 

confidence that our knowledge of it is composed, jir&t, of our Chap. ii. 
perceptions ; and, secondly, of the inferences which we draw 
from them as to what we should perceive if we were favourably- 
situated for that purpose. The human body supplies an 
illustration of this. No one doubts that his own body is 
composed not only of the external organs which he perceives 
by his senses, but of numerous internal organs, most of which it 
is highly improbable that either he nor any one else wiUever 
see or touch, and some of which he never can, from the nature 
of things, see or touch as long as he lives. When he afiSrms 
the existence of these organs, say the brain or the heart, what 
he means is that he is led to believe from what he has been told 
by other persons about human bodies, or observed himself in 
other human bodies, that if his skull and chest were laid 
open, those organs would be perceived by the senses of persons 
who might direct their senses towards them. 

There is another class of perceptions, transient in their internal 
duration, and not perceived by the five best marked senses, ^^'^'^^' 
which are, nevertheless, distinctly perceptible and of the 
utmost importance. These are thoughts and feelings. Love, 
hatred, anger, intention, will, wish, knowledge, opinion, are all 
perceived by the person who feels them. When it is affirmed 
that a man is angry, that he intends to sell an estate, that he 
knows the meaning of a word, that he struck a blow voluntarily 
and not by accident, each proposition relates to a matter 
capable of being as directly perceived as a noise or a flash of 
light. The only difference between the two classes of propo- 
sitions is this. When it is affirmed that a man has a given 
intention, the matter affirmed is one which he and he only 
can perceive; when it is affirmed that a man is sitting or 
standing, the matter affirmed is one which may be perceived 
not only by the man himself, but by any other perso:* able to 
see, and favourably situated for the purpose. But the circum- 
stance that either event is regarded as being, or as having 
been, capable of being perceived by some one or other, is 
what we mean, and aU that we mean, when we say that it 


A Statement of the Principles of Induction. 

of facts in 

Chap. II. exists or existed, or when we denote the same thing by calling 
it a fact. The word ' fact ' is sometimes opposed to theory 
sometimes to opinion, sometimes to feeling, but all these 
modes of using it are. more or less rhetorical When it is 
used with any degree of accuracy it implies something which 
exists, and it is as difficult to attach any meaning to the 
assertion that a thing exists which neither is, nor under any 
conceivable circumstances could be perceived by any sentient 
being, as to attach any meaning to the assertion that anything 
which can be so perceived does not, or at the time of percep- 
tion did not, exist. 

It is with reference to this that the word ' fact ' is defined 
in the Evidence Act (§ 3) as meaning and including — 

(1) Any thing, state of things, or relation of chings capable 
of being perceived by the senses, and 

(2) Any mental condition of which any person is conscious. 
It is important to remember, with respect to facts, that 

as aU thought and language contains a certaia element of 
generality, it is always possible to describe the same facts 
with greater or less minuteness, and to decompose every fact 
with which we are concerned into a number of subordinate 
facts. Thus we might speak of the presence of several 
persons in a room at one time as a fact, but if the fact were 
doubted, or if other circumstances rendered it desirable, their 
respective positions, their occupations, the position of the 
furniture, and many other particulars might have to be 

Such being the nature of facts, what is the meaning of a 
proposition ? A proposition is a collection of words so related 
as to raise in the minds of those who understand them a cor- 
responding group of images or thoughts. 

The aharacteristic by which words are distinguished from 
other sounds is their power of producing corresponding 
thoughts or images. I say thoughts or images, because 
though most words raise what may be intelligibly called 
images in the mind, this is true principally of those which 


Framing of Propositions. 1 7 

relate to visible objects. Such words as ' hard/ ' soft/ ' taste,' Chap. Ii. 
' smell,' call up sufficiently definite thoughts, but they can 
hardly be described as images, and the same is still more true 
of words which qualify others, like ' although,' ' whereas,' and 
other adverbs, prepositions and conjunctions. 

The statement that a proposition, in order to be entitled to iiiusti-a- 
the name, must raise in the mind a distinct group of thoughts "°"^' 
or images, may be explained by two illustrations. The words 
'that horse is niger' form a proposition to every one who 
knows that niger means black, but to no one else. The words 
' I see a sound ' form a proposition to no one, unless some 
signification is attached to the word ' sound' (for instance, 
an arm of the sea) which would make the words intelligible. 

Such bdug a proposition, what is a true proposition ? A Tme pro- 
true proposition is one which excites in the mind thoughts ^°^' '°"^' 
or images corresponding to those which would be excited in 
the mind of a person so situated as to be able to perceive the 
facts to which the proposition relates. The words ' a man is 
riding down the road on a white horse' form a proposition, 
because they raise in the mind a distinct group of images. 
The proposition is true if all persons favourably situated for 
purposes of observation did actually perceive a corresponding 
group of facts. 

The next question is. How are we to proceed in order to How true 

. . proposi- 

ascertain whether any given proposition about facts is true, tionsareto 
and in order to frame true propositions about facts ? This, as ^ "^"^ ■ 
already observed, is the general problem of science, which is 
only another name for knowledge so arranged as to be easily 
imderstood and remembered. 

The facts, in the first place, must be correctly observed. Facts must 

' ^ . 11-''^ co-rect- 

The observations made must, in the next place, be recorded m ly observed 
apt language, and each of these operations is one of fa'r greater pg^i^ie" 
delicacy and difficulty than is usually supposed ; for it is ''°^^^^- 
almost impossible to discriminate between observation and 
inference, or to make language a bare record of our percep- 
tions, instead of being a running commentary upon them. To 


1 8 A Statement of the Principles of Induction. 

Chap. IT. go into these and some kindred points would extend this 

inquiry beyond all reasonable bounds, and I accordingly pass 

them over with this slight reference to their existence. 

Assuming, then, the existence of observation and language 

sufficiently correct for common purposes, how are they to be 

applied to inquiries into matters of fact ? 

Mr. Mill's An answer to these questions sufficient for the present 

logic^— a purpose will be supplied by giving a short account of what is 

fixed order g^j^ ^^ i^q subiect by Mr. Mill in his treatise on logic. The 

prevails in •" •' ° 

the world, substancc of that part of it which bears upon the present 

subject is as follows : The first great lesson learnt from the 
observation of the world in which we live, is that a fixed 
order prevails amongst the various facts of which it is com- 
posed. Under given conditions, fire always burris wood, lead 
always sinks in water, day always follows night, and night 
day, and so on. By degrees we are able to learn what the 
conditions are under which these and other such events 
happen. We learn, for instance, that the presence of a 
certain quantity of air is a condition of combustion ; that the 
presence of the force of gravitation, the absence of any equal 
or greater force acting in an opposite direction, and the 
maintenance by the water of its properties as a fluid, are con- 
ditions necessary to the sinking of lead in water ; that the 
maintenance by the heavenly bodies of their respective 
positions, and the persistency of the various forces by which 
their paths are determined, are the conditions under which 
day and night succeed each other. 
Induction The great problem is to find out what particular antecedents 
tion. S'^'i consequents are thus connected together, and what are 

the conditions of their connection. For this purpose two 
processes are employed, namely, induction and deduction. 
Deduction assumes and rests upon previous inductions, and 
derives a great part at least of its value from the means 
which it affords of carrying on the process of thought from 
the point at which induction stops. The questions, AVhat is 
the ultimate foundation of induction ? Why are we justified 

Observation of Facts. ig 

in believing tliat all men will die because we have reason to Chap. ii. 
believe that all men hitherto have died? Or that every 
particle of matter whatever wiU continue to attract every 
other particle of matter with a force bearing a certain fixed 
proportion to its mass and its distance, because other particles 
of matter have hitherto been observed to do so ? are ques- 
tions which lie beyond the limits of the present inquiry. 
For practical purposes it is enough to assume that such in- 
ferences are valid, and will be found by experience to yield 
true results in the shape of general propositions, from which 
we can argue downwards to particular cases according to the 
rules of verbal logic. 

True general propositions, however, cannot be extracted Mere ob- 
directly from the observation of nature or of human conduct, of™acts 
as every fact which we can observe, however apparently simple, "^sufficient. 
is in reality so intricate that it would give us little or no 
information xinless it were connected with and checked by other 
facts. What, for instance, can appear more natural and 
simple than the following facts ? A tree is cut down. It 
falls to the ground. Several birds which were perched upon 
it fly away. Its fall raises a cloud of dust which is dispersed 
by the wind, and splashes up some of the water in a pond. 
Natural and simple as this seems, it raises the following 
questions at least. Why did the tree fall at all ? The tree 
falling, why did not the birds fall too, and how came they to 
fly away ? What became of the dust, and why did it disappear 
in the aii", whereas the water fell back into the pond from 
which it was splashed ? To see in aU these facts so many 
illustrations of the rules by which we can calculate the force 
of gravity, and the action of fluids on bodies immersed in 
them is the problem of science in general, and of induction and 
deduction iu particular. 

Generally speaking, this problem is solved by comparing Proceed- 
together different groups of facts resembling each other in du'ction. 
some particulars, and differing in others, and the different 
inductive methods described by Mr. Mill are in reality no 


A Statement of the Principles of Induction. 

Methods of 
and differ- 

Chap. II. more than rules for arranging these comparisons. The 
methods which he enumerates are five* hut the three last 
are little more than special applications of the other two, 
the method of agreement and the method of difference. 
Indeed the method of agreement is iticonclusive, unless it is 
applied upon such a scale as to make it equivalent to the 
method of difference.. 

The nature of these methods is as follows : — 

AU events may be regarded as effects of antecedent causes. 

Every effect is preceded by a group of events, one or more 
of which are its true cause or causes, and all of which are 
possible causes. 

The problem is to discriminate between the possible and 
the true causes. 

If whenever the effect occurs one possible cause occurs, the 
other possible causes varying, the possible cause which is 
constant is probably the true cause, and the strength of this 
probability is measured by the persistency with which the 
one possible cause recurs, and the extent to which the 
other possible causes vary. Arguments founded on such a 
state of things are arguments on the method of agreement. 

If the effect occurs when a particular set of possible 
causes precedes its occurrence, and does not occur when the 
same set of possible causes co-exist, one only being absent, 
the possible cause which was present when the effect was 
produced, and was absent when it was not produced, is the 
true cause of the effect. Arguments founded on such a state 
of things are arguments on the method of difference. 

The following illustration makes the matter plain. Various 
materials are mixed together on several occasions. In 
each case soap is produced, and in each case oil and alkali 
are two of the materials so mixed. It is probable from this 


* 1. The method of agreement. 2, The method of difference. 
3. The joint method of agreement and difference. 4. The method 
of residues. 5. The method of concomitant variations. 

Rules of Induction. 2 1 

that oil and alkali are the causes of the soap, and the degree, Chap. II. 
of the probability is measured by the number of the experi- 
ments and the variety of the ingredients other than oil and 
alkali. This is the method of agreement. 

Various materials, of which oil and alkali are two, are 
mixed, and soap is produced. The same materials, with the 
exception of the oU and alkali, are mixed, and soap is not 
produced. The mixture of the oil and alkali is the cause of 
the soap. This is the method of difference. The case 
would obviously be the same if oil and alkali only were 
mixed. Soap was unknown, and upon the mixture being 
made, other things being unchanged, soap came into existence. 

These are the most important of the rules of induction ; but Difficulties 
induction is only one step towards the solution of the prob- — ^^^^"'^^ 

J c i- causes pro- 

lems which nature presents. In the statement of the rules ducing the 

same effect 

of induction it is assumed for the sake of simplicity that all —result as 
the causes and all the effects under examination are separate of ™ree- 
and independent facts, and that each cause is connected with 
some one single effect. This, however, is not the case. A 
given effect may be produced by any one of several causes. 
Various causes may contribute to the production of a single 
effect. This is peculiarly important in reference to the 
method of agreement. If that method is applied to a small 
number of instances, its value is small. For instance, other 
substances might produce soap by their combination besides 
oil and alkali, say, for instance, that the combination of A 
and B, and that of C and D would do so. Then, if there 
were two experiments as follows : 

(1) oil and alkali, A and B, produce soap. 

(2) oil and alkaU, C and D, produce soap. 

soap would be produced in each case, but whether by the 
combination of oil and alkali, or by the combination of A and 
B, or by that of C and D, or by the combination of oil, or of 
alkali, with A, B, C or D, would be altogether uncertain. 
A watch is stolen, from a place to which A, B, and C only 



A Statement of the Principles of Indiution. 

Chap. II. 

of the 
method of 

had access. Another watch is stolen from another place to 
which A, D, and E only had access. 

In each instance, A is one of three persons one of whom 
must have stolen the watch, but this is consistent Avith it 
having been stolen by any of the other persons mentioned. 

This weakness of the method of agreement can be cured 

only by so great a multiplication of instances as to make it 

agreement highly improbable that any other antecedent than the one 

present in every instance could have caused the effect present 

in every instance. 

ITor the statement of the theory of chances and its bearing 
on the probability of events, I miist refer those who wish to 
pursue the subject to the many works which have been written 
upon it ; but its general validity wUl be inferred by every one 
from the common observation of life. If it was certain that 
either A or B, A or 0, A or D, and so forth, up to A and Z, 
had committed one of a large number of successive thefts, of 
the same kind, no one could doubt that A was the thief. 

It is extremely difficult, in practice, to apply such a test as 
this, and the test when applied is peculiarly liable to error, as 
each separate alternative requires distinct proof. In the case 
supposed, for instance, it would be necessary to ascertain 
separately in each of the cases relied upon, first, that a theft 
had been committed ; then, that one of two persons must have 
committed it ; and lastly, that in each case the evidence bore 
with equal weight upon each of them. 
Intermix- The intermixture of effects and the interference of causes 
effects and ^^'^ each other is a matter of much greater intricacy and 

interfe- difficixlty. 

It may take place in one of two ways, viz. : 
(1.) " In the one, which is exemplified by the joint opera- 
tion of different forces in mechanics, the separate effects of all 
the causes continue to be produced, but are compounded 
together, and disappear in one total." 

(2.) " In the other, illustrated by the case of chemical 
action, the separate effects cease entirely, and are succeeded 

rence of 
causes with 
each other. 

Difficulties. 23 

by phenomena altogether different, and governed by different Chap. ii. 

In the second case the inductive methods already stated 
may be applied, though it has difficulties of its own to which 
I need not now refer. 

In the first case, i. e., where an effect is not the result of 
any one cause, but the result of several causes modifying 
each other's operation, the results cease to be separately dis- 
cernible. Some cancel each other. Others merge in one sum, 
and in this case there is often an insurmountable difficulty in 
tracing by observation any fixed relation whatever between 
the causes and the effects. A body, for instance, is at rest 
This may be the effect of the action of two opposite forces 
exactly counteracting each other, but how are such causes to 
be inferred from such an effect ? 

A balloon ascends into the air. This appears, if it is treated 
as an isolated phenomenon, to form an exception to the theory 
of gravitation. It is in reality an illustration of that theory 
though several concomitant facts and independent theories 
must be understood and combined together before this can be 

The difficulty of applying the inductive methods to such 
cases arises from the fact that they assume the absence of the 
state of things supposed. The subsequent and antecedent 
phenomena must be assumed to be capable of specific and 
separate observation before it can be asserted that a given 
fact invariably follows another given fact, or that two sets of 
possible causes resemble each other in every particular with 
a single exception. 

It is necessary for this reason to resort to the deductive Deductive 
method, the nature of which is as follows : A general pro- ™^ '° ' 
position established by induction is used as a premiss from 
which consequences are drawn according to the rules of logic, 
as to what must follow under particular circumstances. The 
inference so drawn is compared with the facts observed, and 
if the result observed agrees with the deduction from the in- 


A Statement of the Principles of Induction. 


Chap. II, ductive premiss, the inference is that the phenomenon is 
explained. The complete method, inductive and deductive, 
thus involves three steps, — 

(1) Establishing the premiss by induction, or what, in 

practice, comes to the same thing, by a previous 
deduction resting ultimately upon induction ; 

(2) Eeasoning according to the rules of logic to a conclusion ; 

(3) Verification of the conclusion by observation. 

The whole process is illustrated by the discovery and 
proof of the identity of the central force of the solar system 
with the force of gravity as known on the earth's surface. The 
steps in it were as follows : — 

(1) It was proved by deductions resting ultimately upon 
inductions that the earth attracts the moon with a force vary- 
ing inversely as the square of the distance. 

This is the first step, the establishment of the premiss by 
a process resting ultimately upon induction. 

(2) The moon's distance from the earth, and the actual 
amount of her deflexion from the tangent being known, it 
was ascertained with what rapidity the earth's attraction • 
would cause the moon to fall if she were no further off and no 
more acted upon by extraneous forces than terrestrial bodies are. 

This is the second step, the reasoning, regulated by the 
rules of logic. 

(3) Finally, this calculated velocity being compared with 
the observed velocity with which all heavy bodies fall by 
mere gravity towards the surface of the earth (sixteen feet in 
the first second, forty-eight in the second, and so forth in the 
ratio of the odd numbers), the two quantities are found to 

This is the verification. The facts observed agree with tlie 
facts calculated, therefore the true principle of calculation has 
been taken. 

This paraphrase, for it is no more, of Mr. Mill — is I hope, 

Resemblances and Differences. 25 

sufficient to show, in general, the nature of scientific inves- Chap. II. 
tigation, and the manner in which it aims at framing true 
propositions about matters of fact. It would be foreign to 
the present purpose to follow the subject further. Enough 
has been said to illustrate the general meaning of such words 
as "proof" and "evidence" in their application to scien- 
tific inquiry. Before inqiiiring into the application of these 
principles to judicial investigations, it will be convenient 
to compare the conditions under which judicial and scientific 
investigations are carried on. 

In some essential points they resemble each other. In- Judicial 
quiries into matters of fact, of whatever kind and with what- tific inqui- 
ever object, are, in all cases whatever, inquiries from the pa^d"— ' 

known to the unknown, from our present perceptions or resem- 
our present recollection (which is in itself a present per- 
ception) of past perceptions, to what we . might perceive, or 
might have perceived, if we now were, or formerly had been, 
or hereafter should be, favourably situated for that purpose. 
They proceed upon the supposition that there is a general 
uniformity both in natural events and in human conduct ; 
that all events are connected together as cause and effect ; 
and that the process of applying this principle to particular 
cases, and of specifying the manner in which it Avorks, though 
a difficult and delicate operation, can be performed. 

There are, however, several great differences between Differ- 
inquiries which are commonly called scientific, inquiries that 
is, into the order and course of nature, and inquiries into iso- 
lated matters of fact, whether for judicial or historical pur- 
poses, or for the purposes of everyday life. These differences 
must be carefully observed before we can undertake with 
much advantage the task of applying to the one subject the 
principles which appear to be true in reference to the other. 

The first difference is, that in reference to isolated events, Firstdiffer- 
we can never, or very seldom, perform experiments, but are amou^ftof 
tied down to a fixed number of relevant facts which can evidence. 
never be increased. 


A Statement of the Principles of Induction. 

Chap. II. 

In scienti- 
fic inqui- 
ries unli- 

In judicial 



The great object of physical science is to invent general 
formulas (perhaps unfortunately called laws) which when as- 
certained, sum vip and enable us to understand the present, 
and predict the future course of nature. These laws are 
ultimately deduced by the method already described from 
individual facts j but any one fact of an infinite number will 
Serve the purpose of a scientific inquirer as well as any other, 
and in many, perhaps in most, cases, it is possible to arrange 
facts for the purpose. In order, for instance, to ascertain the 
force of terrestrial gravity, it was necessary to measure the 
time occupied by different bodies in falling through given 
spaces, aud every such observation was an isolated fact. If, 
however, one experiment failed, or was interfered with, if an 
observation was inaccurate, or if a disturbing cause, as, for 
instance, the resistance of the atmosphere had not been 
allowed for, nothing could be easier than to repeat the process ; 
and inferences drawn froiti any one set of experiments were 
obviously as much to be trusted as inferences drawn from any 
other set. Thus, with regard to inquiries into physical nature, 
relevant facts can be multiplied to a practically unlimited 
extent, and it may, by the way, be observed that the ease 
with which this has been assumed in all ages, is a strong 
aigument that the course of natiire does impress mankind 
as being uniform under superficial variations. For many 
centuries before the modern discoveries in astronomy were 
made, the motions of the heavenly bodies were carefully ob- 
served, and inferences as to their future course were founded 
upou those observations. Such observations would have been 
useless and unmeaning, but for the tacit assumption that what 
tliey had done in times past, they would continue to do for 
tlie future. 

In inquiries into isolated events this great resource is not 
available. Where the object is to decide what happened on 
a particular occasion, we can hardly ever draw inferences of 
any value from what happened on similar occasions, because 
the groups of events which form the subject of historical or 

Evidence limited. 27 

judicial inquiry are so intricate that it can scarcely ever be Chap. II. 
assumed that they will repeat, or that they have repeated 
themselves. If we wish to know what happened two thou- 
sand years ago, when specific quantities of oxygen and 
hydrogen were combined, under given circumstances, we can 
obtain complete certainty by repeating the experiment ; but 
the whole course of human history must recur before we could 
witness a second assassination of Julius Csesar. 

"With reference to such events we are tied down inexorably it cannot 
to a certain limited amount of evidence. We know so much creased. 
of the assassination of Csesar as has been told us by the 
historians, who are to us ultimate authorities, and we know 
no more. Their testimony must be taken subject to aU the 
deductions which experience shows to be necessary in re- 
ceiving as true, statements made by historical writers on 
subjects which interest their feelings, and upon the authority 
of materials which are no longer extant and therefore can- 
not be weighed or criticized. Unless by some unforeseen 
accident, new materials on the subject should come to light, a 
few pages of general history will for ever comprise the whole 
amount of human knowledge upon this subject, and any 
doubts about it, whether they arise from inherent improba- 
bilities in the story itself, from differences of detail in the 
different narratives, or from general considerations as to the 
untrustworthy character of historians writing on hearsay, 
and at a considerable distance of time from the events which 
they relate, are, and must remain for ever, unsolved and 

Besides this difference as to the quantity of evidence Object of 
accessible in scientific and historical inquiries, there is a inquiries. 
great difference as to the objects to which the inquiries are 
directed. The object of inquiries into the course of nature 
is two fold, — the satisfaction of a form of curiosity, which, to 
those who feel it at all, is one of the most powerful, and 
which happens also to be one of the most generally useful 
elements of human nature; and the attainment of practical 

28 A Statemnt of the Principles of Induction. 

Chap. II. results of very various kinds. Neither of these ends can be 
attained unless and until the problems stated by nature have 
been solved : partially it may be, but at all events truly, as 
far as the solution goes. On the other hand, there is no 
pressing or immediate necessity for their solution. Every 
scientific question is always open, and the answer to it may 
be discovered after vain attempts to discover it have been 
made for thousands of years, or an answer long accepted may 
be rejected and replaced by a better answer after an equally 
long period. In short, in scientific inquiries, absolute truth, 
or as near an approach to it as can be made, is the one thing 
needful, and is the constant object of pursuit. So long as any 
part of his proof remains incomplete, so long as any one ascer- 
tained fact does not fit into and exeniplify his theory, the 
scientific inquirer neither is, nor ought to be, satisfied. Until he 
has succeeded in excluding the possibility of error, he is bound 
to the extent, at least, of that possibility, to suspend his 
Object of In judicial inquiries (I need not here notice historical 
q"uiries. '"" iiiq.iiiries) the case is different. It is necessary for urgent 
practical purposes to arrive at a decision which, after a definite 
process has been gone through, becomes final and irreversible. 
It is obvious that, under these circumstances, the patient 
suspension of judgment, and the high standard of certainty 
required by scientific inquirers, cannot be expected. Judicial 
decisions must proceed upon imperfect materials, and must be 
made at the risk of error. 
Evidence Finally, inquirers into physical science have an additional 
inquin^es'''' advantage over those who conduct judicial inquiries, in the 
trust- fact that the evidence before them, in so far as thev have 

worthy. . j n ■, ■ -, 

to depend upon oral evidence, is infinitely more trustworthy 
than that which is brought forward in courts of justice. The 
reasons of this are manifold. In the first place, the facts 
which a scientific observer has to report do not affect his pas- 
sions. In the second place, his evidence about them is not 
taken at all unless his powers of observation have been mor0 

Evidence of Witnesses. 29 

or less trained and can be depended upon. In tlie third place, Chap. II. 
lie can liardly know what will be the inference from the facts 
which he observes until his observations liave been combined 
with those of other persons, so that if he were otherwise dis- 
posed to misstate them, he would not know what misstate- 
ment would serve his purpose. In the fourth place, he knows 
that his observations will be confronted with others, so that 
if he is careless or inaccurate, and, a fortiori, if he should be 
dishonest, he would be found out. In the fifth place, the 
class of facts which he observes are, generally speaking, simple, 
and he is usually provided with means specially arranged 
for the purpose of securing accurate observatioj^, and a careful 
record of its results. 

The very opposite of all this is true as regards witnesses in Evidence 
a court of justice. The facts to which they testify are, as a Inquiries^ 
rule, facts in which they are more or less interested, and which '^s^ '™s'- 

. . . . worthy. 

in many cases excite their strongest passions to the highest 
degree. The witnesses are very seldom trained to observe 
any facts or to express themselves with accuracy upon any 
subject. They know what the point at issue is, and how 
their evidence bears upon it, so that they can shape it accor- 
ding to the effect which they wish to produce. They are 
generally so situated that a large part at least of what they say 
is secure from contradiction, and the facts which they have 
to observe being in most instances portions of human con- 
duct, are so intricate that even with the best intention on the 
part of the witness to speak the truth, he wiU generally be in- 
accurate, and almost always incomplete, in his account of 
what occurred. 

So far it appears that our opportunities for investigating Advan- 
and proving the existence of isolated facts are much inferior '^^|^^;°j 
to our opportunities for investigating and proving the formulas over scieri- 
which are commonly called the laws of nature. There is, ries. 
however, something to be said on the other side. Though 
the evidence available in judicial and historical inquiries is 
often scanty, and is always fixed in amount, and though the 

30 A Statement of the Principles of Indtiction. 

Chap. II. facts which form the subject of such inquiries are far more 
intricate than those which attract the inquirer into physical 
nature; though the judge and the historian can derive no light 
from experiments ; though, in a word, their apparatus for as- 
certaining the truth is far inferior to that of which physical 
inquirers dispose, the task which they have to perform is 
proportionally easier and less ambitious. It is attended, 
moreover, by some special facilities which are great helps in 
performing it satisfactorily. 
Maxims The question whether it is in the nature of things possible 

more easily i^^i^ general formulas should ever be devised by the aid of 

appreci- ° ■' 

ated. which human conduct can be explained and predicted in the 

short specific manner in which physical phenomena are 
explained and predicted, has been the subject of great 
discussion, and is not yet decided ; but no one doubts that 
approximate rules have been framed which are sufficiently 
precise to be of great service in estimating the probability 
of particular events. Whether or not any proposition as 
to human conduct can ever be enunciated, approaching in 
generality and accuracy'to the proposition that the force of 
gravity varies inversely as the square of the distance, no one 
would feel disposed to deny that a recent possessor of stolen 
property who does not explain his possession is probably either 
the thief or a receiver; or that if a man refuses to produce a 
document in his possession, the contents of the document are 
probably unfavourable to him. In inquiries into isolated facts 
for practical purposes, such rules as these are nearly as useful 
as rules of greater generality and exactness, though they are 
of little service when the object is to interpret a series of facts 
either for practical or theoretical purposes. If, for instance, 
the question is whether a particular person committed a crime 
in the course of which he made use of water, knowledge of 
the facts that there was a pump in his garden, and that water 
can be drawn from a well by working the pump handle, is as 
useful as the most perfect knowledge of hydrostatics. But if 
the question were as to the means by which water could be 

External Nature and Human Nature. 3 1 

supplied for a house and field during the year, considerable Chap. Ii. 
knowledge of the theory and practice of hydrostatics and 
of various other subjects might be necessary, and the more 
extensive the undertaking might be, the wider would be the 
knowledge reijuired. 

To this it must be added that the approximate rules which Their limi- 
relate to human conduct are warranted principally by each ^oreeasily 
man's own experience of what passes in his own mind, corro- perceived, 
borated by his observation of the conduct of other persons, 
which every one is obliged to interpret upon the hypothesis 
that their mental processes are substantially similar to his 
own. Experience appears to show that the results given by 
this process are correct within narrower limits of error than 
might have been supposed, though the limits are wide enough 
to leave room for the exercise of a great amount of indi- 
vidual skill and judgment. 

This circumstance invests the rules relating to human 
conduct with a very peculiar character. They are usually 
expressed with little precision, and stand in need of many 
exceptions and qualifications, but they are of greater practical 
use than rough generalizations of the same kind about 
physical nature, because the personal experience of those by 
whom they are used readily supplies the qualifications and 
exceptions which they require. Compare two such rules as 
these : ' heavy bodies fall to the ground,' ' the recent pos- 
sessor of stolen goods is the thief The rise of a balloon into 
the air would constitute an unexplained exception to the first 
of these rules, which might throw doubt upon its truth, but 
no one would be led to doubt the second by the fact that a 
shopkeeper doing a large trade had in his till stolen coins 
shortly after they had been stolen without having stolen them. 
Every one would see at once that such a case formed one of the 
many unstated exceptions to the rule. The reason is, that 
we know external nature only by observation of a neutral, 
unsympathetic kind, whereas every man knows more of human 
nature than any general rule on the subject can ever tell him. 


32 A Statement of the Principles of Induction. 

Chap. II. To these considerations it must be added that to inquire 
Judicial whether an isolated fact exists, is a far simpler problem than 
aresim™llr to ascertain and prove the rule according to which facts of 
tifk pro^' a given class happen. The inquiry falls within a smaUer 
biems. compass. The process is generally deductive. The deductions 
depend upon previous inductions, of which the truth is 
generally recognised, and which (at least in judicial inquiries) 
generally share in the advantage just noticed of appealing 
directly to the personal experience and sympathy of the 
judge. The deductions, too, are, as a rule, of various kinds 
and so cross and check each other, and thus supply each 
other's deficiencies. 
lUustra- For instance, from one series of facts it may be inferred 

that A had a strong motive to commit a crime, say the 
murder of B. From an independent set of facts it may be 
inferred that B died of poison, and from another independent 
set of facts that A administered the poison of which B died. 
The question is, whether A falls within the small class of 
murderers by poison. If he does, various propositions about 
him must be true, no two of which have any necessary con- 
nection, except upon the hypothesis that he is a murderer. 
In this case three such propositions are supposed to be true, 
viz., (1) the death of B by poison, (2) the administration 
of it by A, and (3) the motive for its administration. 
Each separate proposition, as it is established, narrows the 
number of possible hypotheses upon the subject. When it is 
established that B died of poison, innumerable hypotheses 
which would explain the fact of his death consistently with 
A's innocence are excluded ; when it is proved that A ad- 
ministered the poison of which B died, every supposition, 
consistent with A's innocence, except those of accident, justi- 
fication, and the like, are excluded ; when it is shown that A 
had a motive for administering the poison, the difficulty of 
establishing any one of these hypotheses, e. g., accident, is 
largely increased, and the number of suppositions consistent 
with innocence is narrowed in a corresponding degree. 

* Summary. 33 

This suggests another remark of the highest importance in Chap. ii. 
estimating the real weight of judicial inquiries. It is that such ?" judicial 
inquiries in all civilized countries are, or at least ought to be, parties in- 


conducted in such a manner as to give every person interested have op- 
in the result the fuUest possible opportunity of establishing fj"!^™'"^^ 
the conclusion which he wishes to establish. In the illus- heai-d. 
tration just given A would have at once the strongest motive 
to explain the fact that he had administered the poison to B 
and every opportunity to do so. Hence if he failed to do it, 
he would either be a murderer or else a member of that inii- 
nitesimally small class of persons who, having a motive to 
commit murder, and having administered poison to the person 
whom they have a motive to murder, are unable to suggest 
any probable reason for supposing that they did administer it 

The results of the foregoing inquiry may be shortly summed Summai-y 

, ,, of results. 

up as ioUows : — 

r. The problem of discovering the truth in relation to 
matters which are judicially investigated is a part of the 
general problem of science, — the discovery of true propositions 
as to matters of fact. 

II. The general solution of this problem is contained in 
the rules of induction and deduction stated by Mr. MiU, and 
generally employed for the purpose of conducting and 
testing the results of inquiries into physical nature. 

III. By the due application of these rules facts may be 
exhibited as standing towards each other in the relation of 
cause and effect, and we are able to argue from the cause to 
the effect and from the effect to the cause with a degree of 
certainty and precision proportionate to the completeness 
with which the relevant facts have been observed or are 

IV. The leading differences between judicial investigations 
and inquiries into physical nature are as foUows : — 

1. In physical inquiries the number of relevant facts is 

34 A Statement of the Principies of Induction. 

Chap. II. generally unlimited, and is capable of indefinite increase by 

In judicial investigations the number of relevant facts is 
limited by circumstances, and is incapable of being increased. 

2. Physical inquiries can be prolonged for any time thab 
may be required in order to obtain full proof of the con- 
clusion reached, and when a conclusion has been reached, it 
is always liable to review if fresh facts are discovered, or if 
any objection is made to the process by which it was 
arrived at. 

In judicial investigations it is necessary to arrive at a 
definite result in a limited time ; and when that result is 
arrived at, it is final and irreversible with exceptions too rare 
to require notice. 

3. In physical inquiries the relevant facts are usually 
established by testimony open to no doubt, because they relate 
to simple facts which do not affect the passions, which are 
observed by trained observers who are exposed to detection if 
they make mistakes, and who could not tell the effect of 
misrepresentation, if they were disposed to be fraudulent. 

In judicial inquiries the relevant facts are generally 
complex. They affect the passions in the highest degree. 
They are testified to by untrained observers who are generally 
not open to contradiction, and are aware of the bearing of the 
facts which they allege upon the conclusion to be established. 

4. On the other hand, approximate generalizations are 
more useful in judicial than they are in scientific inquiries, 
because in the case of judicial inquiries every man's indi- 
vidual experience supplies the qualifications and exceptions 
necessary to adjust general rules to particular facts, which is 
not the case in regard to scientific inquiries. 

5. Judicial inquiries being limited in extent, the process 
of reaching as good a conclusion as is to be got out of the 
materials is far easier than the process of establishing a 
scientific conclusion with complete certainty, though the 
conclusion arrived at is less satisfactory. 

Degrees of Probability. 35 

It follows from what precedes that the utmost result that Chap. II. 
can in any case be produced by iudicial evidence is a very Judical m- 

^ jT J d J quines 

high degree of probability. Whether upon any subject what- usuallypro. 

. . duce only a 

ever more than this is possible — whether the highest form very high 
of scientific proof amounts to more than an assertion that a pr^abiUty 
certain order in natui-e has hitherto been observed to take 
place, and that if that order continues to take place such 
and such events will happen, are questions which have been 
much discussed, but which lie beyond the sphere of the pre- 
sent inquiry. However this may be, the reasons given above 
show why courts of justice have to be contented with a 
lower degree of probability than is rightly demanded in 
scientific investigation. The highest probability at which a 
court of justice can under ordinary circumstances arrive is 
the probability that a "witness or a set of witnesses affirming 
the existence of a fact which they say they perceived by 
their own senses, and upon which they could not be mis- 
taken, teU the truth. It is difficult to measure the value of 
such a probability against those which the theories of physical 
inquirers produce, nor would it serve any practical purpose 
to attempt to do so. It is enough to say that the process 
by which a comparatively low degree of probabihty is shown 
to exist in the one case is identical in principle with that by 
which a much higher degree of probability is shown to exist 
in the other case. 

The degrees of probability attainable in scientific and in Degrees of 
judicial inquiries are infinite, and do not admit of exact ^mora'l''' 
measurement or description. Cases might easily be men- "rtamty- 
tioned in which the degree of probability obtained in either 
is so high, that if there is any degree of knowledge higher in 
kind than the knowledge of probabilities, it is impossible for 
any practical purpose to distinguish between the two. 
Whether any higher degree of assurance is conceivable than 
that which may easily be obtained of the facts that the earth 
revolves round the sun, and that Delhi was besieged and 
taken by the English in 1857, is a question which does not 

36 A Statement of the Principles of Induction. 

Chap. II. belong to this inquiry. Tor all practical purposes such con- 
clusions as these may be described as absolutely certain. 
From these down to the faintest guess about the inhabitants 
of the stars, and the faintest suspicion that a particular 
person has committed a crime, there is a descending scale 
of probabilities which does not admit of any but a very 
rough measurement for practical purposes. The only point 
in it worth noticing is what is commonly called moral 
certainty, and this means simply such a degree of probability 
as a prudent man would act upon under the circumstances in 
which he happens to be placed in reference to the matter of 
which he is said to be morally certain. 

Moral cer- What Constitutes moral certainty is thus a question of 

tainty is u . . 

question of prudencB, and not a question of calculation. It is commonly 
pni ence. ^^^^ j^ reference to judicial inquiries; that in criminal cases 
guilt ought to be proved " beyond all reasonable doubt," and 
that ia civil cases the decision ought to be in favour of the 
side which is most probably right. To the latter part of 
ttiis rule there is no objection, though it should be added that 
it cannot be applied absolutely without reserve. For instance, 
a civU. case in which character is at stake partakes more or less 
of the nature of a criminal proceeding ; but the first part of the 
rule means nothing more than that in most cases the punish- 
ment of an innocent man is a great evil, and ought to be care- 
fully avoided ; but that, on the other hand, it is often impos- 
sible to eliminate an appreciable though undefinable degree of 
uncertainty from the decision that a man is guilty. The 
danger of punishing the innocent is marked by the use of the 
expression " no doubt," the necessity of running some degree 
of risk of doing so in certain cases is intimated by the word 
" reasonable." The question, what sort of doubt is " reason- 
able " in criminal cases is a question of prudence. Hardly any 
case ever occurs in which it is not possible for an ingenious 
person to suggest hypotheses consistent with the prisoner's 
innocence. The hypothesis of falsehood on the part of the 
witnesses can never be said to be more than highly improbable. 

Mr. MiWs Principle. 37 

Though it is impossible to invent any rule by which Chap. ii. 
different probabilities can be precisely valued, it is always Principle 
possible to say whether or not they fulfil the conditions of tingproba- 
what Mr. ilill describes as the Method of Difference; and if ^at'of Mr. 
not, how nearly they approach to fulfiHing it. The principle is thod 'ofdif- 
precisely the same in all cases, however complicated or ference. 
however simple, and whether the nature of the inquiry is 
scientific or judicial. In all cases the known facts must 
be arranged and classified ^\-ith reference to the different 
hypotheses, or unknown or suspected facts, by which the 
existence of the known facts can be accounted for. If every 
hypothesis except one is inconsistent with one or more of the 
known facts, that one hypothesis is proved. If more than one 
hypothesisis consistent with the known facts, but one only is 
reasonably probable— that is to say,'if one only is in accordance 
with the common course of events, that one in judicial inquiries 
may be said to be proved "beyond all reasonable doubt." 
The word " reasonable " in this sentence denotes a fluctuating 
and uncertain quantity of probability (if the expression may be 
allowed), and shows that the lUtimate question in judicial pro- 
ceedings is and must be in most cases a question of prudence. 

Let the question be whether A did a certain act ; the cir- lUustra- 
cumstances are such that the act must have been done ''°"" 
by somebody, but it can have been done only by A or 
by B. If A and B are equally likely to have done the 
act, the matter cannot be carried further, and the question 
"Who did it ? must remain undecided. But if the act must 
have been done by one person, if it required great physical 
strength, and if A is an exceedingly powerful man and B a 
child, it may be said to be proved that B,did it. If A is _/"/. f 
stronger than B, but the disproportion between their strength 
is less, it is probable that A did it, but not impossible that 
B may have done it, and so on. In such a case as this a 
nearer approach than usual to a distinct measurement of the 
probability is possible, but no complete and definite statement 
on the subject can be made. 

38 A Statemeni of the Principles of Induction. 

Chap. II. Such being the general nature of the object towards which 
^ufrie'fin"-' Jii'iicial inquiries are directed, and the general nature of the 
volve two process by which they are carried on, it will be well to exa- 
inferences, mine the chief forms of that process somewhat more 


It will be found upon examination that the inferences 

employed in judicial inquiries fall under two heads : — 

(1) Inferences from an assertion, whether oral or docu- 
mentary, to the truth of the matter asserted. 

(2) Inferences from facts which, upon the strength of such 
assertions, are believed to exist, to facts of which the existence 
has not been so asserted. 

For the sake of simplicity, I do not here distinguish various 
subordinate classes of inferences, such as inferences from the 
manner in which assertions are made, from silence, from the 
absence of assertion, and from the conduct of the parties. 
They may be regarded as so many forms of assertion, and 
may therefore be classed under the general head of inferences 
from an assertion to the truth of the matter asserted. 
Direct and This is the distinction usually expressed by saying that aU 
stantiai evidence is either direct or circumstantial I avoid the 
use of this expression, partly because, as I have already ob- 
served, direct evidence means direct assertion, whereas cir- 
cumstantial evidence means a fact on which an inference is to 
be founded, and partly for the more important reason that 
the use of the expression favours an unfounded notion that 
the principles on which the two classes of inferences depend 
are different, and that they have different degrees of cogency, 
which admit of comparison. The truth is that each inference 
depends upon precisely the same general theory, though 
somewhat different considerations apply to the investigation 
of cases in which the facts testified to are many, and to cases 
in which the facts testified to are few. 

The general theory has been a;lready stated. In every case 
the question is, are the known facts inconsistent with any 
other than the conclusion suggested ? The known facts in 


Direct and Circumstantial Evidence. 39 

every case whatever are the evidence in the narrower sense of Chap. II. 
the word. The judge hears with his own ears the statements 
of the witnesses and sees with his own eyes the documents 
produced in court. His task is to infer, from what he thus 
sees and hears, the existence of facts which he neither sees 
nor hears. 

Let the question be whether a will was executed. Three Illustra- 
witnesses, entirely above suspicion, come and testify that 
they witnessed its execution. These assertions are facts 
which the judge hears for himself. Now there are three 
possible suppositions, and no more, which the judge has to 
consider in proceeding from the known fact, the assertion of 
the witnesses that they saw the will executed, to the fact to 
be proved — the actual execution of the will : — 

(1) The witnesses may be speaking the truth. 

(2) The witnesses may be mistaken. 

(3) The witnesses may be telling a falsehood. 

The circumstances may be such as to render suppositions 
(2) and (3) improbable in the highest degree, and generally 
speaking they would be so. In such a case the first hypo- 
thesis, i. 6., that the will really was executed as alleged, would 
be proved. The facts before the judge would be inconsistent 
with any other reasonable hypothesis except that of the 
execution of the will. This would be commonly called a 
case of direct evidence. 

Let the question be whether A committed a crime. The 
facts which the judge actually knows are that certain wit- 
nesses made before him a variety of statements which he 
believes to be true. The result of these statements is to 
establish certain facts which show that either A or B or C 
must have committed the crime, and that neither B nor 
did commit it. In this case the facts before the judge would 
be inconsistent with any other reasonable hypothesis except 
that A committed the crime. This would be commonly 
called a case of circumstantial evidence; yet it is obvious 
that the principle on which the investigation proceeds as in the 

4-0 A Statement of the Principles of Induction. 

Chap. II. last case is identically the same. The only difference is in 
the number of inferences, but no new principle is introduced. 

Identity of It is also clear that each case is identical in principle with 

with Mr. tl^e method of difference as explained by Mr. Mill. 

tHeonr ^^- Mill's illustration of the application of that method to 

the motions of the planets is as follows : — The planets with a 
central force give areas proportional to the times. The planets 
without a central force give a different set of motions ; but 
areas proportional to the times are observed. Therefore there 
is a central force. 

Similarly in the cases suggested. The assertions of the 
witnesses give the execution of a will, *. e., no other cause 
can account for those assertions having been made. If the 
will had not been executed those assertions would not have 
been made. But the assertions were made. Therefore the 
will was executed. 

Though inferences from an assertion to its truth, and 
inferences from facts taken as true to other facts not asserted 
to be true, rest upon the same principle, each inference has its 

Inference The inference from the assertion to the truth of the matter 

from asser- . 

tion to asserted is iisually regarded as an easy matter, callmg for 

matter as- T,i.i i 

serted. little remark. 

Though in particular cases it is really easy, and though in 
a certain sense it is always easy, to deal with, to deal with 
it rightly, is by far the most difficult task which falls to the 
lot of a judge and miscarriages of justice are almost in- 
variably caused by dealihg with it wrongly. This requires 
full explanation. 

To infer from an assertion the truth of the matter asserted, 
is in one sense the easiest thing in the world. The intellectual 
process consists of only one step, and that is a step which , 
gives no trouble, and is taken in most cases unconsciously. 
But to draw the inference in those cases only in which it is 
true is a matter of the utmost difficulty. If we were able to 
affirm the proposition, " All men upon all occasions speak the 

Inference frofn Assertion. 41 

truth/' the remaining propositions, — " This man says so and Chap. II. 
so," " Therefore it is true," would present no difficulty. The 
major premiss, however, is subject to wide exceptions, which 
are not forced upon the judge's attention. Moreover, if they 
were, the judge has often no means of ascertaining whether 
or not, and to what extent they apply to any particular case. 

How is it possible to tell how far the powers of observa- its difficul- 
tion and memory of a man seen once for a few minutes 
enable him, and how far the innumerable motives by any 
one or more of which he may be actuated dispose him, to tell 
the truth upon the matter on which he testifies ? Cross- 
examination supplies a test to a certain extent, but those who 
have seen most of its application wiE. be disposed to trust it 
least as a proof that a man not shaken by it ought to be 
believed. A cool, steady liar who happens not to be open to 
contradiction will baffle the most skilful cross-examiner in 
the absence of accidents, which are not so common in prac- 
tice as persons who take their notions on the subject from 
anecdotes or fiction would suppose. 

No rules of evidence which the legislator can enact can Cannot be 
perceptibly affect this difficulty. Judges must deal with it ^^f^'^g'^f^^ 
as well as they can by the use of their natural faculties and evidence, 
■acquired experience, and the miscarriages of justice in which 
they wiU be involved by reason of it must be set down to 
the imperfection of our means of arriving at truth. The 
natural and acquired shrewdness and experience by which an 
observant man forms an opinion as to whether a witness is or 
is not lying, is by far the most important of all a judge's 
qualifications, infinitely more important than any acquaintance 
with law pr with rules of evidence. No trial ever occurs in 
which the exercise of this faculty is not required ; but it is 
only in exceptional cases that questions arise which present 
any legal difficulty, or in which it is necessary to exercise 
any particular ingenuity in putting together the different facts 
which the evidence tends to establish. This pre-eminently 
important power for a judge is not to be learnt out of books. 

42 A Statement of the Principles of Induction. 

Chap. II. In so far as it can be acquired at all, it is to be acquired 
only by experience, for the acquisition of which the position 
of a judge is by no means peculiarly favourable. People 
come before him with their cases ready prepared, and give 
the evidence which they have determined to give. Unless 
he knows them in their unrestrained and famuiar moments, 
he will have great diificulty in finding any good reason for 
believing one man rather than another. The rules of evidence 
may provide tests, the value of which has been proved by 
long experience, by which judges may be satisfied that the 
quality of the materials upon which their judgments are to 
proceed is not open to certain obvious objections ; but they 
do not profess to enable the judges to know whether or not 
a particular witness tells the truth or what inference is to be 
drawn from a particular fact. The correctness with which 
this is done must depend upon the natural sagacity, the 
logical power, and the practical experience of the judge,, not 
upon his acquaintance with the law of evidence. 
Grounds The grounds for believing or disbelieving particular state- 
inganddis- ments made by particular people under particular circum- 
behevinga gtanccs may be brought under three heads, — those which 

witness. ° 

Power. affect the power of the witness to speak the truth; those 
which affect his wiU to do so ; and those which arise from 
the nature of the statement itself and from surrounding cir- 
cumstances. A man's power to speak the truth depends upon 
his knowledge and his power of expression. His knowledge 
depends partly on his accuracy in observation, partly on his 
memory, partly on his presence of mind ; his power of ex- 
pression depends upon an infinite number of circumstances, 
and varies in relation to the subject of which he hag to speak. 

•yviu. A man's will to speak the truth depends upon his educa- 

tion, his character, his courage, his sense of duty, his relation 
to the particular facts as to which he is to testify, his humour 
for the moment, and a thousand other circumstances, as to the 
presence or absence of which in any particular case it is often 
difficult to form a true opinion. 

Probability a Poor Reason for Belief. 43 

The third set of reasons are those which depend upon the Chap. ii. 
probability of the statement. 

Many discussions have taken place on the effect of the Pipba- 
improbability of a statement upon its credibility in cases stateni°ent. 
which can never fall under judicial consideration. It is un- 
necessary to enter upon that subject here. Looking at the 
matter merely in relation to judicial inquiries, it is sufacient 
to observe that whilst the improbability of a statement is 
always a reason, and may be, in practice, a conclusive reason 
for disbelieviag it, its probability is a poor reason for believing 
it if it rests upon uncorroborated testimony. Probable false- 
hoods are those which an artful liar naturally tells ; and the 
fact that a good opportunity for telling such a falsehood 
occurs is the commonest of all reasons for its being told. 

Upon the whole, it must be admitted that little that is Expe- 
really serviceable can be said upon the inference from an fjf'"^ni'^ 
assertion to the truth of the matter asserted. The observations guide on 
of which the matter admits are either generalities too vague 
to be of much practical use, or they are so narrow and special 
that they can be learnt only by personal observation and 
practical experience. Such observations are seldom, if ever 
thrown by those who make them into the form of express 
propositions. Indeed, for obvious reasons, it would be impos- 
sible to do so. The most acute observer would never be able 
to catalogue the tones of voice, the passing shades of expression 
or the unconscious gestures which he had learnt to associate 
with falsehood ; and if he did, his observations would probably 
be of little use to others. JEvery one must learn matters of 
this sort for himself, and though no sort of knowledge is so 
important to a judge, no rules can be laid down for its 

* I may give a few anecdotes which have no particular value in 
themselves, hut which show what I mean. " I always used to look 
at the witnesses' toes when I was cross-examining them," said a 
friend of mine who had practised at the bar in Ceylon. " As soon as 
they began to lie they always fidgeted about with them." I knew a 

44 A Statement of the Principles of Induction. 

Chap. II, If the opinion here advanced appears strange, I would 
tion^''^'^" ™"^ite attention to the following illustration : — Is there any 
class of cases in which it is, in practice, so difficult to come 
to a satisfactory decision as those which depend upon the 
explicit, direct testimony of a single witness uncorroborated, 
and, by the nature of the case, incapable of corroboration ? 
For instance, a man and a woman are travelling alone in a 
railway carriage. The train stops at a station, and the woman 
charges the man with indecent conduct, which he denies. 
Nothing particular is known about the character or previous 
history of either. The woman is not betrayed on cross-exami- 
nation into any inconsistency. There are no cases in which 
the difficulty of arriving at a satisfactory decision is anything 
like so great. It is easy to decide them as it is easy to make 
a bet, but it is easier to deal satisfactorily with the most com- 
plicated and lengthy chain of inference. 

The uncertainty of inferences from an assertion to the 
truth of the matter asserted may be shown by stating them 
logically. They may be considered as being the conclusions 
of syllogisms in this form : — 

Judge who formed the opinion that a letter had been forged because 
the expression " that woman " which it contained appeared to him 
to be one which a woman and not a man would use, and the question 
was whether the letter in question had been forged by a woman. In 
the Life of Lord Keeper Guildford it is said that he always acted 
on the principle that a man was to be believed in what he said when 
he was in a passion. The commonplaces about the evidence of police- 
men, children, women, and the natives of particular countries belong 
to this subject. The only remark I feel inclined to add to what is 
commonly said on it is that, according to my observation, the power 
to tell the truth, which implies accurate observation, knowledge of 
the relative importance of facts, and power of description, properly 
proportioned to each other, is much less common than people usually 
suppose it to be. Ic is extremely difficult for an untrained person not 
to mix up inference and assertion. It is also difficult for such a person 
to distinguish between what they themselves saw and heard and what 
they were told by others, unless their attention is specially directed 
to the distinction. 

Inference from Broad Facts. 45 

All men situated in such and such a manner speak the chap. ii. 
truth or speak falsely (as the case may be). 

A B, situated in such and such a manner, says so and so. 

Therefore, in saying so and so, he speaks truly or falsely 
(as the case may be). 

This is a deduction resting on a previous induction, and it 
is obvious that the induction which furnishes the major 
premiss must always be exceedingly imperfect, and that the 
truth of the miaor premiss which is essential to the deduction 
is always more or less conjectural. 

In many cases the defects of inferences of the- first kind Inference 
may be incidentally remedied by inferences of the second proved to 
kind, namely, inferences from facts which are asserted, and, otherwise 
on the ground of such assertion, believed by the court to proved, 
exist, to facts not asserted to exist ; and these I now proceed 
to examine. 

I have observed that the inference from an assertion to the inference 

from asser- 

truth 01 the matter asserted often is as easy as it always tion to 
appears to be. In very many instances, which it is much easier thnes^"™^" 
to recognise when they occur than to reduce to rule, a direct really easy. 
assertion, even by a single witness of whom little is known, is 
entitled to great weight. Suppose, for instance, that the matter 
asserted is of a character indifferent in itself, and upon which 
the witness is, or for aught he can tell may be, open to con- 
tradiction. A single assertion of this sort may outweigh a 
mass of artfully combined falsehood. Suppose, for iastance, 
that a number of witnesses have been called to prove an 
aim, and that they allege that on a given day they were 
all present together with the person on behalf of whom the 
aim is to be proved at a fair held at a certain place. If the 
magistrate of the district, whose duty it was to superintend 
the fair, were to depose that the fair did not begin to be held 
tiU a day subsequent to the one in question, no one would 
doubt that the witnesses had conspired together to give false 
evidence by the familiar trick of changing the day. In this 
case one direct assertion would outweigh many direct asser- 


A Statement of the Principles of Induction. 

Chap. II. tions. Why ? Because the magistrate of the district would 
be a man of character and position ; because he would (we 
must assume) be quite indifferent to the particular case in 
issue ; because he would be deposing to a fact of which it 
would be his official duty to be cognizant, and on which he 
could hardly be mistaken ; and lastly, because the feet would 
be known to a vast number of people, and he would be open 
to contradiction, detection, and ruin if he spoke falsely. 
Change these circumstances, and the equally explicit testi- 
mony of the very same man might be worthless. Suppose, 
for instance, that he was asked whether he had committed 
adultery ? His denial would carry hardly any weight in any 
conceivable case, inasmuch as the charge is one which a guilty 
man would always deny, and an innocent man could do no 
more. In other words, since the course of conduct supposed 
is one which a man would certainly take whether he were 
innocent or not, the fact of his taking it would afford no 
criterion as to his guilt or innocence. 

Now in almost all judicial proceedings a certain number of 
facts are established by direct assertions made under such 
circumstances that no one would seriously doubt their truth. 
Others are rendered probable in various degrees, and thus the 
judge is furnished with facts which he may use as a basis for 
his inferences as to the existence of other facts which are 
either not asserted to exist or are asserted to exist, by unsatis- 
factory witnesses. 

These inferences are generally considered to be more difficult 
to draw than the inference from an assertion to the matter 
asserted. In fact, it is far easier to combine materials sup- 
posed to be sound, than to ascertain that they are sound. In 
the one case no rules for the judge's guidance can be laid 
down. No process is gone through, the correctness of which 
can afterwards be independently tested. The judge has 
nothing to trust to but his own natural and acquired sagacity. 
In the other case all that is required is to go through a 
process with which, as J\Ir. Huxley remarks, every one has a 

Such in- 
tively easy, 

Converging Probabilities. 47 

general superficial acquaintance tested by every-day practice. Chap. ii. 
and the theory of which it is easy to understand and interesting 
to follow out and apply. 

The facts supposed to be proved must ultimately fulfil Facts must 
the conditions of the method of difference, but they may be method of 
combined by any of the recognised logical methods, or by difterence. 
a combination of them aU. The object, indeed, at which 
they are aU directed is the same, though they reach it 
by different roads. A few illustrations will make this plain. 
The question is, whether A has embezzled a small sum 
of money, say a particular rupee which he received on ac- 
count of his employer, and did not enter in a book in 
which he ought to have entered it. His defence is. that the 
omission to make the entry was accidental. The account- 
book is examined, and it is found that in a long series of 
instances omissions of small sums have been made, each of 
which omissions is in A's favour. This, in the absence of 
explanation, would leave no reasonable doubt of A's guUt in 
each and every case. It would be practically impossible to 
account for such facts except upon the assumption of 
systematic fraud. Logically, this is aniustance of the Method 
of Agreement applied to so great a number of instances as to 
exclude the operation of chance. When, however, this is 
done, the Method of Agreement becomes a case of the Method 
of Difference. 

The well-known cases in which guilt is inferred from a Conver- 
number of separate, independent, and, so to speak, converging blbfii^e°' 
probabilities, may be regarded as an illustration of the same 
principle. Their general type is as follows : — 

B was murdered by some one. 

Whoever murdered B had a motive for his murder. 

A had a motive for murdering B. 

Whoever murdered B had an opportunity for murdering B. 

A had an opportunity for murdering B. 

Whoever murdered B made preparations for the murder 


A Statement of the Principles of Induction. 


Chap. II. A acted in a manner which might amount to a preparation 
for murdering B. 

In each of these instances, which might of course be inde- 
finitely multiplied, one item of agreement is established 
between the ascertained fact that B was murdered and the 
hypothesis that A murdered him; and it does sometimes 
happen that these coincidences may be multiplied to such an 
extent and may be of such a character as to exclude the 
supposition of chance, and justify the inference that A was 
guilty.* I'he case, however, is a rare one, and there is always 
a great risk of injustice unless the facts proved go beyond 
the mere multiplication of circumstances separately indi- 
cating guilt, and amount to a substantial exclusion of every 
reasonable possibility of innocence. 

The celebrated passage in Lord Macaulay's Essays in 
which he seeks to prove that Sir PhUip Francis was the 
author of Junius 's letters, is an instance of an argument of 
this kind. The letters, he says, show that five facts can 
be predicated of Junius, whoever he may have been. But 
these five facts may also be predicated of Sir Philip Francis 
and of no one else. Whether any part of this argument 
can in fact be sustained, is a question to which it would be 
impertinent to refer here, but that the method on which it 
proceeds is legitimate there can be no doubt. 

Rule as to The cases in which it is most probable that injustice' 
will be done by the application of the method of agree- 
ment to judicial inquiries are those in which the existence 
of the principal fact has to be inferred from circumstances 
pointing to it. This is the foundation of the well-known rule 
that the corpus delicti should not in general in criminal 
cases be inferred from other facts, but should be proved 
independently. It has been sometimes narrowed to the 
proposition that no one should be convicted of murder 
unless the body of the murdered person has been discovered. 


* Ste TUchaiclson's Case, p. 68. 

Rule as to Corpus Delicti. 49 

Neither of these rules is more than a rough and partial Chap. il. 
application of the general principle stated above. If the 
circumstances are such as to make it morally certain (within 
the definition given ahove) that a crime has been committed, 
the inference that it was so committed is as safe as any other 
such inference. 

The captain of a ship, a thousand miles from any land, and lllustra- 
with no other vessel in sight, is seen to run into his cabin, 
pursued by several mutinous sailors. The noise of a struggle 
and a splash are heard. The sailors soon afterwards come 
out of the cabin and take the command of the vessel. The 
cabin windows are open. The cabin is in confusion, and the 
captain is never seen or heard of again. 

A person looks at his watch and returns it to his pocket. 
Immediately afterwards a man comes past, and makes a 
snatch at the watch, which disappears. The man being 
pursued, runs away and swims across a river ; he is arrested 
on the other side. He has no watch in his possession, and 
the watch is never found. 

In these cases it is morally certain that murder and theft 
respectively were committed, though in the first case the 
body, and in the second the watch is not producible. 

Cases, however, do undoubtedly occur in which the infer- Existency 

• -1 71 ■ . of corpus 

ence that a crmie has been committed at all is a mistake, delicti 
They may often be resolved into a case of begging the ques- wrongiT^ 
tion. The process is this : suspicion that a crime has been '"^^="6^. 
committed is excited, and upon inquiry a number of circum- 
stances are discovered which if it is assumed that a crime 
has been committed are suspicious, but which are not 
suspicious unless that assumption is made. 

A ship is cast away under such circumstances that her 
loss may be accounted for either by fraud or by accident. 

The captain is tried for making away with her. A 
variety of circumstances exist which would indicate prepara- 
tion aud expectation on his part if the ship really was made 
away with, but which would justify no suspicion at all if she 



A Statement of the Principles of Induction. 

of conclu- 

Chap. II. was not. It is manifestly illogical first to regard the 
antecedent circumstances as suspicious, because the loss of 
the ship is assumed to be fraudulent, and next to infer that 
the ship was fraudulently destroyed from the suspicious 
character of the antecedent circumstances. This, however, is 
a fallacy of very common occurrence, both in judicial 
proceedings and in common life.* 

The modes in which facts may be so combined as to excludfe 
every hypothesis other than the one which it is intended to 
establish are very numerous, and are, I think, better learnt 
from specific illustrations and from actual practice than from 
abstract theories. One of the objects of the illustrations 
given in the next chapter is to enable students to understand 
this matter. 

The result of the foregoing inquiries may be summed up as 
follows : — 

I. In judicial inquiries the facts which form the materials 
for the decision of the court are the facts that certain 
persons assert certain things under certain circumstances. 
These facts the judge hears with his own ears. He also sees 
with his own eyes documents and other things respecting 
which he hears certain assertions. 

II. His task is to infer— 

(1) From what he himself hears and sees the existence of 
the facts asserted to exist ; 

(2) From the facts which on the strength of such assertions 
he believes to exist other facts which are not so asserted 
to exist. 

III. Each of these inferences is an inference from the 
effect to the cause, and each ought to conform to the 
Method of Difference; that is to say, the circumstances in 
each case should be such that the effect is inconsistent 

* An illustration of this form of error occurred in the case of E. 
vs. Steward and two others, who were convicted at Singapore in 1867 
for casting away the Schooner JBrm, and subsequently received a 
free pardon on the ground of their innocence. 

Degrees of Probability. 5 1 

(subject to the limitations contained in the following Chap. ll. 
paragraphs) with the existence of any other cause for it 
than the cause of which the existence is proposed to be 

IV. The highest result of judicial investigation must gene- 
rally be, for the reasons already given, to show that certain 
conclusions are more or less probable. 

V. The question — what degree of probability is it 
necessary to show, in order to warrant a judicial decision 
in a given case, is a question not of logic but of prudence 
and is identical with the question, " What risk of error is it 
wise to run, regard being had to the consequences of error in 
either direction ? " 

VI. This degree of probability varies in different cases to an 
extent which cannot be strictly defined, but wherever it 
exists it may be called moral certainty. 

52 The Theory of Relevancy, with Illustrations. 



Chap. III. ^ intelligence of sufficient capacity might perhaps be 
means^"*^^ atlc to conceive of aU events as standing to each other in the 
connection relation of cause and effect ; and though the most powerful 
as cause of human minds are unequal to efforts which fall infinitely 
short of this, it is possible not only to trace the connection 
between cause and effect, both in regard to human conduct 
and in regard to inanimate matter, to very considerable 
lengths, but to see that numerous events are connected 
together, although the precise nature of the links which con- 
nect them may not be open to observation. The connection 
may be traced in either direction, from effect to cause or from 
cause to effect; and if these two words were taken in 
their widest acceptation it would be correct to say that 
when any theory has been formed which alleges the exist- 
ence of any fact, all facts are relevant which, if that theory 
was true, would stand to the fact alleged to exist either in 
the relation of cause or in the relation of effect. 
Objections. It may be said that this theory would extend the limits of 
relevancy beyond all reasonable bounds, inasmuch as all events 
whatever are or may be more or less remotely connected by the 
universal chain of cause and effect, so that the theory of 
gravitation would upon this principle be relevant wherever 
one of the facts in issue involved the falling of an object to 
the ground. 
Answer. The answer to this objection is, that wide, general causes, 
which apply to all occurrences, are, in most cases, admitted, 
and do not require proof; but no doubt if their application 
to the matter in question were doubtful or were misunder- 

Cause and Effect. 5 3 

stood, it might be necessary to investigate them. For instance, Chap. hi. 
suppose that, in an action for infringing a patent, the defence 
set up was that the patent was invalid, because the invention 
had been anticipated by some one who preceded the patentee. 
The issue might be whether an earlier machine was substan- 
tially the same as the patentee's machine. AU the facts, 
therefore, which went to make up each machine would be 
facts ia issue. But each machine would be constructed with 
reference to the general formulae caUed laws of nature, and 
thus the existence of an alleged law of nature might well 
become, not merely relevant, but a fact in issue. If, 
the first iaventor of barometers had taken out a patent, 
and had had to defend its validity, the variation of atmos- 
pheric pressure, according to the height of a column of air, and 
the fact that air has weight, might have been facts in issue. 

With regard to the remark that all events are connected Traceable 
together more or less remotely as cause and effect, it is to be of causes 
observed that though this is or may be true, it is equally °" effects 

... . ^ ./ narrow. 

true that the limit withia which the influence of causes upon 
effects can be perceived is generally very narrow. A knife 
is used to commit a murder, and it is notched and stained 
with blood ia the process. The knife is carefully washed, the 
water is thrown away, and the notch in the blade is ground 
out. It is obvious that, unless each link in this chain of 
cause and effect could be separately proved, it would be 
impossible to trace the connection between the knife cleaned 
and ground and the purpose for which it had been used. On 
the other hand, if the first step — the fact that the knife was 
bloody at a given time and place — was proved, there would 
be no use in inc[uiring into the further effects produced by 
that fact, such as the staining of the water in which it was 
washed, the infinitesimal effects produced on the river into 
which the water was thrown, and so forth. 
The rule, therefore, that facts may be regarded as relevant ^"1^ ^^ '? 

■' ° cause and 

which can be shown to stand either in the relation of cause or effects true 
in the relation of effect to the fact to which they are said to 

54 The Theory af Relevancy ^ with Illustrations.. 

Chap. III. be relevant, may be accepted as true, subject to the caution 
subject to ^^^ ^jjgjj ^^ inference is to be founded upon the existence of 

caution ' . . , 

that every gucb a connection, every step by which the connection is made 

connection out must either be proved, or be so probable under the circum- 

made^out stances of the case that it may be presumed without proof. 

Footmarks are found near the scene of a crime. The circum- 

lllustra- stances are such that they may be presumed to be the foot- 

*'°°' marks made by the criminal. These marks correspond 

precisely with a pair of shoes found on the feet of the accused. 

The presumption founded upon common experience, though 

its force may vary indefinitely, is that no two pairs of shoes 

would make precisely the same marks. It may further be 

presumed, though this presumption is by no means conclusive, 

that shoes were worn by their owner on a given occasion. 

Here the steps are as follows : — 

(1) The person who committed the crime probably 

made those marks by pressing the shoes which he 
wore on the ground. 

(2) The person who committed the crime probably wore 

his own shoes. 

(3) The shoes so pressed were probably these shoes. 

(4) These shoes are A B's shoes. 

Therefore A B probably made those marks with those shoes. 
Therefore A B probably committed the crime. 
These facts may be exhibited in the relation of cause and 
effect thus : — 

(1) A's owning the shoes was the cause of his wearing 


(2) His wearing them at a given place and time caused 

the marks. 

(3) The marks were caused by the flight of the 


(4) The flight of the criminal was caused by the com- 

mission of the crime. 

(5) Therefore the marks were caused by the flight of A 

the criminal, after committing the crime. 

Obscurity of Definition. 55 

Though this mode of describing relevancy might he correct, Chap. hi. 
it would not be readily understood. For instance, it might obscurity 
be asked, how is an alibi relevant under this definition ? The definition 
answer is, that a man's absence from a given place at a given 
time is a cause of his not having done a given act at that 
place and time. This mode of using language would, however, 
be obscui-e, and it was for this reason that relevancy was very 
fully defined in the Evidence Act (ss. 6 — 11, both iaclusive) 
These sections enumerate specifically the different instances of 
the connection between cause and effect which occur most 
frequently iu judicial proceedings. They are designedly 
worded very widely, and in such a way as to overlap each 
other. Thus a motive for a fact in issue (s. 8) is part of its 
cause (s. 7). SubsecLuent conduct influenced by it (s. 8) is 
part of its effect (s. 7). Facts relevant under s. 11 would, 
in most cases, be relevant under other sections. The object 
of drawing the Act in this manner was that the general ground 
on which facts are relevant might be stated in as many 
and as popular forms as possible, so that if a fact is relevant, 
its relevancy may be easily ascertained. 

These sections are by far the most important, as they are Import- 
the most original part of the Evidence Act, as they af&rm their see- 
positively what facts may be proved, whereas the English law *'™^' 
assumes this to be known, and merely declares negatively that 
certain facts shall not be proved. 

Important as these sections are for puposes of study, and 
in order to make the whole body of law to which they belong 
easily intelligible to students and practitioners not trained in 
English courts, they are not likely to give rise to litigation or to 
nice distinctions. The reason is that s. 167 of the Evidence Act 
which was formerly s. 57 of II. of 1855, renders it practically 
a matter of little importance whether evidence of a particular 
fact is admitted or not. The extreme intricacy and minuteness 
of the law of England on this subject is principally due to 
the fact that the improper admission or rejection of a single 
question and answer would give a right to a new trial in 

5 6 The Theory of Relevancy^ with Illustrations. 

a civil case, and -would upon a crimiual trial be sufficient 
ground for the quashing of a conviction before the Court 
for Crown Cases reserved. 

The improper admission or rejection of evidence in India 
has no effect at all unless the court thinks that the evidence 
improperly dealt with either turned or ought to have turned 
the scale. A judge, moreover, if he doubts as to the relevancy 
of a fact suggested, can, if he thinks it wHl lead to any- 
thing relevant, ask about it himself under s. 165. 
Illustra- In order to exhibit fuUy the meaning of these sections, 

to show how the Act was intended to be worked, and to 
furnish students with models by which they may be guided 
in the discharge of the most important of their duties, 
abstracts are appended of the evidence given at the fol- 
lowing remarkable trials : — 

1. K. V. Donellan. 

2. E.i;.Belany. 

3. E. ■y. Eiehardson. 

4. E.«. Patch. 

5. E. V. Palmer. 

To every fact proved in each of these cases, the most in- 
tricate that I could discover, a note is attached, showing under 
what section of the Evidence Act it would be relevant. 

I may observe upon these cases that the general princi- 
ples of evidence are, perhaps, more clearly displayed in trials 
for murder, than in any others. Murders are usually con- 
cealed with as much care as possible ; and, on the other hand, 
they must, from the nature of the case, leave traces behind 
them which render it possible to apply the argument from 
effects to causes with greater force in these than in most 
other cases. Moreover, as they involve capital punishment 
and excite peculiar attention, the evidence is generally in- 
vestigated with special care. There are accordingly few cases 
which show so distinctly the sort of connection between 
fact and fact, which makes the existence of one fact a good 
ground for inferring the existence of another. 

Case of R. v. Donellan. 57 


Case of E. v. Donellan * 

John Donellan, Esq., was tried at Warwick Spring Assizes, 
1781, before Mr. Justice BuUer, for the murder of Sir Theo- 
dosius Broughton, his brother-in-law, a young man of for- 
tune, twenty years of age,' who, up to the moment of his 
death, had been in good health and spirits, with the excep- 
tion of a trifling ailment, for which he occasionally took a 
laxative draught.'^ Mrs. Donellan was the sister of the 
deceased, and, together with Lady Broughton, his mother, lived 
with him at Lawford Hall, the family mansion.' 

In the event of Sir T. Broughton's death, unmarried and 
without issue, the greater part of his fortune would descend 
to Mrs. Donellan ; ^ but it was stated, though not proved, by 
the prisoner in his defence that he on his marriage entered 
into articles for the immediate settling of her whole fortime 
on herself and children, and deprived himself of the possi- 
bility of enjoying even a life estate in case of her death, 
and that this settlement extended not only to the fortune, 
but to expectancies.* 

For some time before the death of Sir Theodosius the 
prisoner had on several occasions falsely represented his health 

* "Wills, on " Circumstantial Evidence," pp. 192-6. 
' Introductory fact (section 9). 

' State of things under which facts in issue happen (section 7). 
^ Motive (section 8). 

* Fact rebutting an inference suggested by a relevant fact (section 
9). These facts are omitted by Mr. Wills, but are mentioned in my 
account of the case. Gen. View, Grim. Law., p. 338. 

58 Case of R. v. Donellan. 

to te very bad, and his life to be precarious.^ On the 29th 
of August the apothecary in attendance sent him a nuld and 
harmless draught to be taken the next morning.^ In the 
evening the deceased was out fishing/ and the prisoner told 
his mother that he had been out with him, and that he had 
imprudently got his feet wet, both of which assertions were 
false.^ When Sir Theodosius was called on the following 
morning he was in good health,* and about seven o'clock his 
mother went to his chamber to give him his draught,'" of which 
he immediately complained," and she remarked that it smelt 
like bitter almonds.'^ In about two minutes he struggled 
very much as if "to keep the medicine down, and Lady 
Broughton observed a gurgling in his stomach ;'* in ten 
minutes he seemed inclined to doze ; " but in five minutes 
afterwards she found him with his eyes fixed, his teeth 
clenched, and froth running out of his mouth, and within 
half an hour after taking the dose he died." 

Lady Broughton ran down-stairs to give orders to a servant 
to go for the apothecary, who lived about three miles distant,'^ 
and in less than five minutes after Sir Theodosius had been 
taken Donellan asked where the physic bottle was, and Lady 

^ Facts showing preparation for facts in issue (section 8). The 
Btatementa are also admissions as against the prisoner (section 17). 

^ A fact affording an opportunity for facts in issue (section 7). 

' Introductory to what follows (section 9). 

^ Preparation (section 8). Admission (section 17). 

° State of things under which fact in issue happened (section 7). 

'° It was suggested that Donellan changed the apothecary's draught 
for a poisoned one administered by Lady Broughton, an innocent 
agent. Therefore the administration of the draught suggested to be 
poisoned was a fact in issue, (section 5). 

" As to this, see section 14. 

"J. e.,of prussic acid. Lady Broughton perceived by smell the 
presence of the poison. Therefore she smelt a fact in issue (section 5). 

" Effects of facts in issue (section 7). All these facts go to make 
up the fact of his death, which was a fact in issue. 

" Introductory to next fact as fixing the time (section 9). 

Case of R. v. Donellafi. 59 

Broughton showed him the two bottles. The prisoner then 
took up one of them and said, " Is this it 1" and being answered 
" Yes," he poured some water out of the water bottle which 
was near into the phial, shook it, and then emptied it into 
some dirty water which was in a wash-hand basin. Lady 
Broughton said, " You should not meddle with the bottle," 
upon which the prisoner snatched up the other bottle and 
poured water into that also, and shook it, and then put his 
finger into it and tasted it. Lady Broughton again asked 
what he was about, and said he ought not to meddle with 
the bottles ; on which he replied that he did it to taste it,'* 
though'* he had not tasted the first bottle.'* The prisoner 
ordered a servant to take away the basin, the dirty things, and 
the bottles, and put the bottles into her hands for that pur- 
pose ; she put them down again on being directed by Lady 
Broughton to do so, but subsequently removed them on the 
peremptory order of the prisoner." On the arrival of the 
apothecary the prisoner said the deceased had been out the 
preceding evening fishing, and had taken cold, but he said 
nothing of the draught which he had taken.'^ The prisoner 
had a still in his own room which he used for distilling 
roses;'" and a few days after the death of Sir Theodosius he 
brought it full of wet lime to one of the servants to be 
cleaned.'" The prisoner made several false and inconsistent 
statements to the servants as the cause of the young man's 
death;'" and on the day of his death he wrote to Sir W. 
Wheeler, his guardian, to inform him of the event, but made 
no reference to its suddenness.™ The cof&n was soldered up 

" Subsequent conduct influenced by a fact in issue and statements 
explanatory of conduct (section 8). 

'* This word is Mr. Wills's comment. 

" Subsequent conduct and explanatory statements (section 8). 

" Opportunity to distil laurel water, the poison said to have been 
nsed (section 7). 

'" Subsequent conduct (section 8). 

'» Admissions, 17, 18. 

6o Case of R. v. Donellan. 

on the fourth day after the death." Two days afterwards 
Sir W. Wheeler, in consequence of the rumours which had 
reached him of the manner of Sir Theodosius's death, and that 
suspicions were entertained that he had died from the effects 
of poison,^^ wrote a letter to the prisoner requesting that an 
examination might take place, and mentioning the gentlemen 
by whom he wished it to be conducted.*' The prisoner 
accordingly sent for them, but did not exhibit Sir W. Wheeler's 
letter alluding to the suspicion that the deceased had been 
poisoned, nor did he mention to them that they were sent 
for at his request. Having been induced by the prisoner 
to suppose the case to be one of ordinary death,-* and finding 
the body in an advanced state of putrefaction, the medical 
gentlemen declined to make the examination on the ground 
that it might be attended with personal danger. On the fol- 
lowing day a medical man who had heard of their refusal 
to examine the body offered to do so, but the prisoner declined 
his offer on the ground that he had not been directed to send 
for him.'^ On the same day the prisoner wrote to Sir W. 
Wheeler a letter in which he stated that the medical men 
had fully satisfied the family, and endeavoured to account 

^'^ Introductory to what follows (section 9). 

■■^ Introductory to, and explanatory of, wliat follows (section 9). It 
should be observed that proof of the rumours and suspicions for the 
purpose of showing the truth of the matters rumoured and suspected 
would not be admissible. The fact that there were rumours and sus- 
picions explains Sir W. Wheeler's letter. 

"' Statement to the prisoner and affecting his conduct (section 8, 
ex. 2). 

*" Subsequent conduct of prisoner (section 8) and Mr. Wills's com- 
ment on the conduct. 

^^ Subsequent conduct (section 8). The fact that the first set of 
doctors refused explains the prisoner's conduct by showing that it 
had the effect of preventing examinations (section 7). The ground 
on which they refused tends to rebut this inference (section 9), but 
the second doctor's offer, and the prisoner's conduct thereon, tend to 
confirm it (section 9). 

Case of R. v. Donellan. 6i 

for the event by the aflment under which the deceased had 
been suffering ; but he did not state that they had not made 
the examination.^* Three or four days after. Sir W. Wheeler 
having been informed that the body had not been examined,*'^ 
wrote to the prisoner insisting that it should be done,''^ which, 
however, he prevented by various disingenuous contrivances,"' 
and the body was interred without examination.'" In the 
meantime, the circumstances having become known to the 
coroner, he caused the body to be disinterred and examined 
on the eleventh day after death. Putrefaction was found 
to be far advanced, and the head was not opened, nor the 
bowels examined, and in other respects the examination was 
incomplete.'' When Lady Broughton, in giving evidence 
before the coroner's inquest, related the circumstance of the 
prisoner having riased the bottles, he was observed to take 
hold of her sleeve and endeavour to check her, and he after- 
wards told her that she had no occasion to have mentioned 
that circumstance, but only to answer such questions as were 
put to her ; and in a letter to the qproner and jury he endea- 
voured to impress them with the belief that the deceased had 
inadvertently poisoned himself with arsenic, which he had 
purchased to kill fish.'' Upon the trial four medical men — 
three physicians and an apothecary — were examined on the 
part of the prosecution, and expressed a very decided opinion, 
mainly grounded upon the symptoms, the suddenness of the 
death, the jpost-mortem appearances, the smell of the draught 

''^ Sjibsequent conduct (section 11) and admission (section 17). 

"'' Introductory (section 9). 

^ Statement to the prisoner affecting his conduct (section 8, ex. 2.) 

^' Each contrivance and each circumstance which showed that it 
was disingenuous would come under the head of subsequent conduct 
(section 8). 

30 The burial was part of the transaction (section 6.) The absence of 
examination is explanatory of parts of the medical evidence. The 
whole is introductory to medical evidence (section 9). 

'^ Introductory to opinions of experts (sections 9, 45, 46). 

^^ Subsequent conduct (section 8) and admissiona (section 17). 

^2 Case of R. v. Donellan. 

as observed by Lady Brongbton, and the similar effects pro- 
duced by experiments upon animals, that the deceased had 
been poisoned with laurel water ;'* one of them stating that on 
opening the body he had been affected with a biting acrimo- 
nious tastCj like that which affected him in aU the subsequent 
experiments with laurel water.^^ An eminent'* surgeon and 
anatomist stated a positive opinion that the symptoms did 
hot necessarily lead to the conclusion that the deceased had 
been poisoned, and that the appearances presented upon dis- 
section explained nothing but putrefaction.''^ The prisoner 
was convicted and executed. 

^^ Opinion of experts (section 45). 

^* This is a case of tasting a fact in issue, int., the laurel water 
present in tlie body. See definition of ' fact,' section 3. 
^2 This was the famous John Hunter. 

Case of R. v. Belaney, 63 


Case of E. v. Belaney* 

A surgeon named Belaney was tried at the Central Criminal 
Court, August, 1844, before Mr. Baron Gurney, for the murder 
of his wife. They left their place of residence, at North Sunder- 
land, on a journey of pleasure to London on the 1st of June 
(having a few days previously made mutual wills in each 
other's favour),' where on the 4th of that month they went 
into lodgings." The deceased, who was advanced in pregnancy, 
was slightly indisposed after the journey; but not sufficiently 
so to prevent her going about with her husband.^ On the 8th, 
beino- the Saturday morning after^ the arrival in town, the 
prisoner rang the bell for some hot water, a tumbler, and a 
spoon ; * and he and his wife were heard conversing in their 
chamber about seven o'clock. About a quarter before eight 
the prisoner called the landlady up stairs, saying that his wife 
was very ill ; and she found her lying motionless on the bed, 
with her eyes shut and her teeth closed, and foaming at the 
mouth. On being asked if she was subject to fits, the pri- 
soner said she had had fits before, but none like this, and that 
she would not come out of it. On. beiag pressed to send 
for a doctor, the prisoner said he was a doctor himself, and 
should have let blood before, but there was no pulse. On 
beino- further pressed to send for a doctor and his friends he 

* Wills, on "Circumstantial Evidence," pp. 176-178. 
' Motive (section 8). 

^ Introductory (section 9). 

' State of things under which fact in issue happened (section 7). 

• Preparation (section 8). 

"^4 Case of R. v. Belaney. 

assented, adding that she would not come to ; thSit this was an 
affection of the heart, and that her mother died in the same 
way nine months ago. The servant was accordingly sent to 
fetch two of the prisoner's friends, and on her return she and 
the prisoner put the patient's feet and hands in warm water, 
and applied a mustard plaster to her chest. A medical man 
was sent for, but before his arrival the patient had died.^ 
There was a tumbler close to the head of the bed, about one- 
third fuU of something clear, but whiter than water ; and there 
was also an empty tumbler on the other side of the table, and 
a paper of Epsom salts.^ In reply to a question from a 
medical man' whether the deceased had taken any medicine 
that morning, the prisoner stated that she had taken nothing 
but a little salts.'' On the same morning the prisoner ordered 
a grave for interment on the following Monday.^ In the 
meantime the contents of the stomach were examined, and 
found to contain prussic acid and Epsom salts. It was de- 
posed that the symptoms were similar to those of death by 
prussic acid, but might be the result of any powerful sedative 
poison, and that the means resorted to by the prisoner were not 
likely to promote recovery ; but that cold affusion, artificial 
respiration, and the application of brandy or ammonia (which 
in the shape of smelling salts is found in every house) and 
other stimulants were the appropriate remedies, and might 
probably have been effectual. No smell of prussic acid had 
been discovered in the room, though it has a very strong 
odour, but the window was open, and it was stated that the 
odour is soon dissipated by a current of air.^ The prisoner 

' The death and attendant circumstances are facts in issue and part 
of the transaction (sections 5, 26). The other facts are conduct (sec- 
tion 8) and admissions (sections 17, 18). 

° State of things at death, or cause or effect of administration of 
poison (section 7). 

' Admissions (sections 17, 18). 

° Conduct (section 8). 

" Effect of poisoning (section 7), opinions of experts (sections 45- 
46). The absence of the smell of prussic acid and the presence of the 

Case of R. v. Belaney. 65 

had purchased prussic acid, as also acetate of morphine, on 
the preceding day, from a vender of medicines with whom he 
was intimate ; but he had been in the habit of using these 
poisons under advice for a complaint in the stomach.'" Two 
days after the fatal event the prisoner stated to the medical 
man, who had been called in and who had assisted in the 
examination of the body, that on the morning in question he 
was about to take some prussic acid ; that on endeavouring to 
remove the stopper he had some difficulty, and used some 
force with the handle of a tooth-brush ; that in consequence of 
breaking the neck of the bottle by the force, some of the acid 
was spilt ; that he placed the remainder in the tumbler on 
the drawers at the end of the bed room, that he went into 
the front room to fetch a bottle wherein to place the acid, but 
instead of so doing began to vsrite to his Ijriends in the 
country, when in a few minutes he heard a scream from his 
wife's bed room, calling for cold water, and that the prussic 
acid was undoubtedly the cause of her death. Upon being 
asked what he had done with the bottle, the prisoner said he 
had destroyed it ; and on being asked why he had not mentioned 
the circumstance before, he said he had not done so because 
he was so distressed and ashamed at the consequences of his 
negligence. To various persons in the north of England the 
prisoner wrote false and suspicious accounts of his wife's 
illness. In one of them, dated from the Euston Hotel on the 
6th of June, he stated that his wife was unwell, and that two 
medical men attended her, and that in consequence he should 
give up an intended visit to Holland, and intimated his 
apprehension of a miscarriage. Eor these statements there 
was no foundation. At that time moreover he had removed 
from the Euston Hotel into lodgings, and on the same day he 
had made arrangements for leaving his wife in London, and 

draft are respectively a fact suggesting the absence of prussic acid, 
and a fact rebutting that inference (section 9). 

'° Preparation (section 8) and fact rebutting inference from purchase 
of poison (section 9). 

66 Case of R. v. Belaney. 

proceeding himself on his visit to Holland. In another letter, 
dated 8th of June, and posted after his wife's death, though 
it could not be determined whether it was written before or 
after, the prisoner stated that he had had his wife removed 
from the hotel to private lodgings, where she was dangerously 
ill and attended by two medical men, one of whom had pro- 
nounced her heart to be diseased ; these Tepresentations were 
equally false. In another letter^ dated the 9th of June, but 
not posted until the 10th, he stated the fact of his wife's 
death, but without any allusion to the cause ; and in a sub- 
sequent letter he stated the reason for the suppression to 
be to conceal the shame and reproach of his negligence. 
The prisoner's statement to his landlady that his wife's 
mother had died from disease of the heart was also a false- 
hood, the prisoner having himself stated in writing to the 
registrar of burials that brain fever was the cause of death." 
It was, however, proved that the prisoner was of a kind dispo- 
sition, that he and his wife had lived upon affectionate terms 
and that he was extremely careless in his habits ;'^ and no 
motive for so horrible a deed was clearly made out, though it 
was urged that it was the desire of obtaining her property by 
means of her testamentary disposition." Upon the whole, 
though the case was to the last degree suspicious, it was 
certainly possible that an accident might have taken place in 
the way suggested; and the jury brought in a verdict of 

Remarks The two cases of DoneUan and Belaney are not merely 

on cases of . ■' 

DoneUan curious m themselves, but throw light upon one of the most 
Belaney. important of the points connected with judicial evidence, the 
point namely as to the amount of uncertainty which consti- 
tutes what can be called reasonable doubt. This I have 
already said is a question, not of calculation, but of prudence. 

" All these are admissions (sections 17, 18), and conduct (section 3). 
" Character (section 53). 
" Motive (section 8). 

Case of R. v. Belaney. f] 

The cases in question show that different tribunals 
at different times do not measure it in precisely the 
same way. In Donellan's case the jury did not think the 
possibility that Sir Theodosius Broughton might have died of 
a fit sufficiently great to constitute reasonable doubt as to his 
having been poisoned. In Belaney's case the jury thought 
that the possibiKty that the prisoner gave his wife the poison 
by accident did constitute a reasonable doubt as to his guilt. 
If the chances of the guilt and innocence of the two men could 
be numerically expressed, they would I think be as nearly as 
possible equal, and it might be said that both or that neither 
ought to have been convicted if it were not for the all-import- 
ant principle that every case is independent of every other, 
and that no decision upon facts forms a precedent for any 
other decision. If two juries were to try the very same 
case, upon the same evidence and with the same summiug 
up and the same arguments by counsel, theymight very pro- 
bably arrive at opposite conclusions, and yet it might be im- 
possible to say that either of them was wrong. Of the moral 
qualifications for the office of a judge few are more important 
than the strength of mind which is capable of admitting 
the unpleasant truth that it is often necessary to act upon 
probabilities, and to run some risk of error. The cruelty of 
the old criminal law of Europe, and of England as well as of 
other countries produced many bad effects, one of which was 
that it intimidated those who had to put it in force. The 
saying that it is bettter that ten criminals should escape than 
that one innocent man should be convicted expresses this 
sentiment, which has I think been carried too far, and has 
done much to enervate the administration of justice. 

58 Case of R. v. Richardson. 


Case of E. v. Eichaedson* 

In the autumn of 1786 a young woman, wlio lived with 
her parents in a remote district in the stewartry of Kirkcud- 
bright/ was one day left alone in the cottage,^ her parents 
having gone out to the harvest-field.^ On their return home 
a little after mid-day,' they found, their daughter murdered,* 
with her throat cut ^ in a most shocking manner. 

The circumstances in which she was found, the character of 
the deceased, and the appearance of the wound, aU concurred 
in excluding all supposition of suicide ; ^ while the surgeons 
who examined the wound were satisfied that it had been in- 
flicted by a sharp instrument, and by a person who must have 
held the weapon in his left hand.'' Upon opening the body the 
deceased appeared to have been some months gone with child ; ^ 

* Wills, pp. 225-229. Mr. Wills observes, " This case is also con- 
cisely stated in the Memoirs of the Life of Sir Walter Scott, IV., 
p. 52, and it supplied one of the most striking incidents in Guy 

Introductory (section 9). 
" Opportunity (section 7). 
^ Explanatory (section 9). 

* Mr. Wills's comment. They found her with the throat eut, and 
Mr. Wills says she was murdered ; but her murder was to them an 
inference, not a fact (section 3). 

' Fact in issue (section 5). 

® Suicide would be a relevant fact as being inconsistent with murder. 
The facts which exclude suicide are relevant as inconsistent with a 
relevant fact (section 11). 

' Opinions of experts (section 45). 

* State of things under which death happened (section 7). Motive 
section 8). 

Case of R. v. Richardson. 69 

and on examining the ground about the cottage there were 
discovered the footsteps of a person who had seemingly been 
running hastily from the cottage by an indirect road through 
a c[uagmire or bog, in which there were stepping-stones.^ It 
appeared, however, that the person in his haste and confusion 
had slipped his foot and stepped into the mire, by which he 
must have been wet nearly to the middle of the leg.'" The 
prints of the footsteps were accurately measured, and an exact 
impression taken of them," and it appeared that they were 
those of a person who must have worn shoes, the soles of 
which had been newly mended, and which, as is usual in that 
part of the country, had iron knobs or nails in them." These 
were discovered also along the track of the footsteps, and at 
certain intervals drops of blood, and on a stile or small gate- 
way near the cottage, and in the line of the footsteps some 
marks resembling those of a hand which had been bloody." 
ISTot the slightest suspicion at this time attached to any parti- 
cular person as the murderer, nor was it even suspected who 
might be the father of the child of which the girl was preg- 
nant.'^ At the funeral a number of persons of both sexes at- 
tended,'^ and the steward-depute thought it the fittest oppor- 
tunity of endeavouring, if possible, to discover the murderer 
conceiving rightly that, to avoid suspicion, whoever he was 
he would not on that occasion be absent." With this view 
he called together, after the interment, the whole of the men 
who were present, being about sixty in number." He caused 

" Effects of fact in issue (section 7). 

'» This is so stated as to mix up inference and fact. Stripped of 
inference, the fact might have been stated thus,—' There were such 
marks in the bog as would have been produced if a person crossing 
the stepping-stones had slipped with one foot. The mud was of such 
a depth that a person so slipping would get wet to the middle of 
the leg.' 

1' Effects of fact in issue (section 7). 

^"^ Observation. 

" Introductory (section 9). 

70 Case of R. v. Richardson. 

the shoes of each of them to be takeu off and measured, and 
one of the shoes was found to resemble pretty nearly the 
impression of the footsteps near to the cottage. The wearer 
of the shoe was the schoolmaster of the parish, which led to 
a suspicion that he must have been the father of the child, and 
had been guilty of the murder to save his character. On a 
closer examination of the shoe, it was discovered that it was 
pointed at the toe, whereas the impression of the footstep was 
round at that place." The measurement of the rest went on, 
and after going through nearly the whole number, one at 
length was discovered which corresponded exactly with the 
impression in dimensions, shape of the foot, form of the sole, 
and the number and position of the nails.'^ William Eichard- 
son, the young man to whom the shoe belonged, on being 
asked where he was the day deceased was murdered, replied, 
seemingly without embarrassment, that he had been all that 
day employed at his master's work,'^ — a statement which his 
master and fellow-servants who were present confirmed."'' 
This going so far to remove suspicion, a warrant of commit- 
ment was not then granted, but some circumstances occurring 
a few days afterwards having a tendency to excite it anew, the 
young man was apprehended and lodged in jail.'^ Upon 

'■* Irrelevaiit. 

'^ The making of the footmark was an effect of, or conduct subse- 
quent to and affected by, a fact in issue (section 7). The measurement 
of the siKty. shoes, of which one only corresponded exactly with the 
mark, was a fact, or rather a set of facts, making highly probable 
the relevant fact that that shoe made that mark (section 11). The 
experiment itself is an application of the method of difference. This 
shoe would make the mark, and no other of a very large number 

" This would be relevant against him, but not in his favour as an 
admission (sections 17, 18). 

'^ The fact that his master and fellow-servants confirmed his state- 
ment is irrelevant. If they had testified afterwards to the fact itself, 
it would have been relevant. 

'" Irrelevant. 

Case of R. v. Richardson. 

his examination '^he acknowledged that he was left-handed ;2<' 
and some scratches being observed on his cheek, he said he 
had got them when pulling nuts in a wood a few days before.^' 
He still adhered to what he had said of his having been on 
the day of the murder employed constantly in his master's 
work f * but in the course of the inc[uiry it turned out that 
he had been absent from his work about half an hour, the time 
being distinctly ascertained, in the course of the forenoon of 
that day ; that he called at a smith's shop under the pretence 
of wanting something which it did not appear that he had 
any occasion for ; and that this smith's shop was in the way 
to the cottage of the deceased.''^ A young girl who was some 
hundred yards from the cottage, said that, about the time 
when the murder was committed (and which corresponded 
to the time when Eichardson was absent from his fellow-ser- 
vants), she saw a person exactly with his dress and appear- 
ance running hastily towards the cottage, but did not see him 
return, though he might have gone round by a small eminence 
which would intercept him from her view, and which was the 
very track where the footsteps had been traced."* 

" By Scotch law, as well as by the Code of Criminal Procedure, a 
prisoner may be examined. 

*" The fact that he was left-handed would be a cause of a fact in 
issue, viz., the peculiar way in which the fatal wound was given. The 
admission that he was left-handed would be relevant as proof of the 
fact by sections 17, 18. 

"' If it was suggested that the scratches were made in a struggle 
with the girl, they would be effects of a fact in issue (section 7), and 
the statement would be relevant as against the prisoner as an admis- 
sion (section 17, 18). 

^^ Opportunity (section 7). Admissions (sections 17, 18). The call at 
the shop was preparation by making evidence (section 8, illustration e). 

'^ There is here a miKture of fact and inference ; the girl could not 
know that a murder was committed at the time when it was com- 
mitted. Probably she mentioned the time, and it corresponded -with 
the time when Eichardson was away. This would be preparation and 
opportunity (section 7). The existence of the small eminence explains 
her not seeing him return (section 9). 

Case of R. v. Richardson. 

His fellow-servants now recollected that on the forenoon 
rff that day they were employed with Eichardson in driving 
their master's carts, and that, when passing by a wood which 
they named, he said that he must run to the smith's shop, 
and would be back in a short time. He then left his cart 
under their charge, and, having waited for him about half an 
hour, which one of the servants ascertained by having at the 
time looked at his watch, they remarked on his return that 
he had been absent a longer time than he said he would be, 
to which he replied that he had stopped in the wood to 
gather some nuts. They observed at the same time one of 
his stockings wet and soiled as if he had stepped in a puddle. 
He said he had stepped into a marsh, the name of which he 
mentioned, on which his fellow-servants remarked " that he 
must have been either mad or drunk if he stepped into that 
marsh, as there was a footpath which went along the side of 
it." It then appeared by comparing the time he was absent 
with the distance of the cottage from the place where he had 
left his fellow- servants that he might have gone there, com- 
mitted the murder, and returned to them.^* A search was 
then made for the stockings he had worn that day.'^ They 
were found concealed in the thatch of the apartment where he 
slept, and appeared to be much soiled, and to have some 
drops of blood on them.^^ The first he accounted for by 
saying, first, that his nose had been bleeding some days 
before ; but it being observed that he wore other stockings on 
that day, he said he had assisted in bleeding a horse ; but it 
was proved that he had not assisted, and had stood at such a 
distance that the blood cordd not have reached him.^'' On 

^ All these facts are either opportunity or preparation or subse- 
quent or previous conduct or admissions (section 7, 8, 17). 

''^ Introductory to next fact (section 91). 

26 The concealment is subsequent conduct (section 8). The state 
of the stockings is the effect of a fact in issue (section 7). 

^' The falsehoods are subsequent conduct (section 8), or admissions, 
(sections 17 & 18). The prisoner's allegation about the horse is an 

Case of R. Y Richardson. 73 

examining the mud or sand upon the stockings, it appeared 
to correspond precisely with that of the mire or puddle 
adjoining the cottage, and which was of a very particular 
kind, none other of the same kind heing found in that neigh- 
bourhood.^^ The shoemaker was then discovered who had 
mended his shoes a short time before, and he spoke distinctly 
to the shoes of the prisoner which were exhibited to him as 
having been those he had mended.^' It then came out that 
Eichardson had been acquainted with the deceased, who was 
considered in the country as of weak intellects, and had on 
one occasion been seen with her in a wood in circumstances 
that led to a suspicion that he had criminal intercourse with i .>Vi'«.>^m. 
her, and, on being taunted with having such connection with 
one in her situation, he seemed much ashamed and greatly - 
hurt.^° It was proved further by the person who sat next 
him when his shoes were measuring, that he trembled much 
and seemed a good deal agitated, and that, in the interval 
between that time and his being apprehended, he had been 
advised to fly, but his answer was, "Where can I fly to ?" ^' 
On the other hand, evidence was brought to show that 

allegation of a fact explaining the relevant fact, that there was blood 
on the stockings (section 9) ; and the facb proved about his distance 
from the horse is a fact rebutting the inference suggested thereby 
that the blood was the horse's (section 9). 

^ Effect of a fact in issue (section 7). The similarity of the sand 
on the stockings to the sand in the marsh was one of the effects of 
the slip, which was the effect of the murder. 

^^ That the marks were made by the prisoner's shoe was relevant 
as an effect of facts in issue. That the shoes which made the marks 
were the prisoner's had been already proved by their being found on 
his feet. This further proof seems superflaous, unless it was sug- 
gested that they belonged to some one else. 

^° The opinion about her would be irrelevant. The fact that her 
intellect was weak would be part of the state of things under which 
the murder happened, and with what foUows would show motive 
(sections 7, 8). 

^^ Subsequent conduct (section 10). The weight of this is very 

74 C(3:^^ of R. V, Richardson. 

about the time of the murder a boat's crew from Ireland had 
landed on that part of the coast near to the dwelling of the 
deceased j'^^ and it was said that some of the crew might 
have committed the murder, though their motives for doing 
so it was difficult to explain, it not being alleged that robbery- 
was their purpose, or that anything was missing from the 
cottages in the neighbourhood. The prisoner was convicted, 
confessed, and was hanged. 
Remarks THs case iUustrates the application of what Mr. Mill calls 
ardson's' *^^ method of agreement upon a scale which excludes the 
case. supposition of chance, thus : — 


.^* 1/8 

(1) The murderer had a motive, — Eichardson had a 

(2) The murderer had an opportunity at a certain hour 
of a certaiu day in a certain place, — Eichardson had an 
opportunity on that hour of that day at that place. 

(3) The murderer was left-handed, — Eichardson was left- 

(4) The murderer wore shoes which made certain marks, — 
Eichardson wore shoes which made exactly similar marks. 

(5) If Eichardson was the murderer and wore stockings, 
they must have been soiled with a peculiar kind of sand, — 
he did wear stockings which were soiled with that kiud of 

(6) If Eichardson was the murderer, he would naturally 
conceal his stockings, — he did conceal his stockings. 

(7) The murderer would probably get blood on his clothes, 
— Eichardson got blood on his clothes. 

(8) If Eichardson was the murderer, he would probably 
tell lies about the blood, — he did tell lies about the blood. 

(9) If Eichardson was the murderer, he must have been 
at the place at the time in question, — a man very like him 
was seen running towards the place at the time. 

(10) If Eichardson was the murderer, he would probably 

^^ Opportunity for the mm-der (section 7). 

Case of R. v. Richardson. 75 

tell liqp about Ms proceedings during the time when the 
murder was committed, — he told such lies. 

Here are ten separate marks, five of which must have 
been found in the murderer, one of which must have been 
found on the murderer if he wore stockings, whilst others 
probably would be found in him. 

All ten were found in Eichardson. Four of them were so 
distinctive that they could hardly have met in more than one 
man. It is hardly imaginable that two left-handed men, 
wearing precisely similar shoes and closely resembling each 
other, should have put the same leg into the same hole of 
the same marsh at the same time, that one of them should 
have committed a miirder, and that the other should have 
causelessly hidden the stockings which had got soUed in the 
marsh. Yet this would be the only possible supposition 
consistent with Eichardson's innocence. 

76 Case of R. v. Patch. 

Case of E. v. Patch.* 

A man named Patcli had been received by Mr. Isaac Blight 
a ship-breaker, near Greenland Dock, into his service in the 
year 1803.' Mr. Bright having become embarrassed in his 
circumstances in July, 1805, entered into a deed of compo- 
sition with his creditors ; and in consequence of the failure 
of this arrangement, he made a colourable transfer of his pro- 
perty to the prisoner.' It was afterwards agreed between 
them that Mr. Blight was to retire nominally from the busi- 
ness, which the prisoner was to manage, and the former was 
to have two-thirds of the profits, and the prisoner the re- 
maining third, for which he was to pay £1,250. Of this 
amount, £250 was paid in cash, and a draft was given for the 
remainder upon a person named Goom, which would become 
payable on the 16th of September, the prisoner representing 
that he had received the purchase-money of an estate and lent 
it to Goom.^ On the 16th of September the prisoner repre- 
sented to Mr. Blight's bankers that Goom could not take up 
the bill, and withdrew it, substituting his own draft upon 
Goom to fall due on the 20th September.^ On the 19th of 
September the deceased went to visit his wife at Margate, 
and the prisoner accompanied him as far as Deptford,* and 
then went to London and represented to his bankers that 

* Wills's Oiroumstantial Evidence. 

' Introductory (section 9). 

•^ Motive (section 8). 

' Preparation (section 8). 

' Introductory (section 9) but unimportant. 

Case of R. v. Patch. jj 

Goom would not be able to face bis draft, but tbat be bad 
obtained from bim a note wbicb satisfied bim, and tberefore 
tbey were not to present it.^ Tbe prisoner boarded in Mr. 
Bligbt's bouse, and tbe only otber inmate was a female servant, 
wbom the prisoner, about eigbt o'clock tbe same evening (tbe 
19tb), sent out to procure some oysters for bis supper." Dujing 
her absence a gun or pistol ball was fired through tbe shutter 
of a parlour fronting tbe Thames, where the family, when at 
home, usually spent their evenings. It was low water, and 
the mud was so deep that any person attempting to escape in 
that direction must have been suffocated, and a man who was 
standing near the gate of the wharf, which was the only other 
mode of escape, heard tbe report, but saw no person.'^ From 
tbe manner in which tbe ball entered tbe shutter it was clear 
that it had been discharged by some person who was close to 
the shutter, and tbe river was so much below the level of tbe 
house, tbat tbe baU, if it bad been fired from thence, must 
have reached a much higher part than that which it struck. 
The prisoner declined the offer of the neighbours to remain 
in the house with bim that night.^ On the following day he 
wrote to inform the deceased of tbe transaction, stating bis 
hope that tbe shot bad been accidental ; tbat be knew of no 
person who bad any animosity against bim, that he wished 

' Preparation (section 8). 

' Explains what follows (section 9). Preparation (section 8). 

' The suggestion was that Patch fired the shot himself in order to 
make evidence in his own favour. This would be preparation (sec- 
tion 8). Hence his firing the shot would be a relevant fact. The 
facts in the text are facts which, taken together, make it highly pro- 
bable that he did so, as they show that he and no one else had the 
opportunity, and that it was done by some one (section 11). 

The last fact illustrates the remarks made at pages 40, 41. The infer- 
ence from the facts stated, assuming them to be true, is necessary ; but, 
suppose that the " man standing near the gate " saw some one run- 
ning, and for reasons of his own denied it, how could he be contra- 

' Conduct (section 8). 

7 8 Case of R. v. Patch. 

to know for whom it was intended, and that he should be 
happy to hear from him, but much more so to see him.^ Mr. 
Blight returned home on the 23rd September, having pre- 
viously been to London to see his bankers on the subject of 
the ^1,000 draft/" Upon getting home, the draft became the 
subject of conversation, and the deceased desired the prisoner 
to go to London, and not to return without the money." 
Upon his return, the prisoner and the deceased spent the 
evening in the back parlour, a different one from that in which 
the family usually sat.'^ About eight o'clock theprisoner went 
from the parlour into the kitchen, and asked the servant for 
a candle'-^ complaining that he was disordered.'* The pri- 
soner's way from the kitchen was through an outer door 
which fastened by a spring lock, and across a paved court 
in front of the house which was enclosed by palisades, and 
throLigh a gate over a wharf in front of that court, on which 
there was the kind of soil peculiar to premises for breaking 
up ships, and then through a counting-house. All of these 
doors, as well as the door of the parlour, the prisoner left 
open, notwithstanding the state of alarm excited by the 
former shot. The servant heard the privy door slam, and 
almost at the same moment saw the ilash of a pistol at the 
door of the parlour where the deceased was sitting, upon 
which she ran and shut the outer door and gate. The pri- 
soner immediately afterwards rapped loudly at the door for 
admittance with his clothes in disorder. He evinced great 
apparent concern for Mr. Blight, who was mortally wounded, 
and died on the following day. From the state of tide, and 
from the testimony of various persons who were on the 

' Preparation (section 8). 

'° Hardly relevant, except as introductory to what follows (section 
" Motive section 8). 

'" State of things under which facts in issue happened (section 7.) 
" Preparation (section 8). 
" Preparation (section 8). 

Case of R. V. Patch. 79 

outside of the premises, no person could have escaped from 

In consequence of this event Mrs. Blight returned home,'^ 
and the prisoner in answer to an inquiry about the draft 
which had made her husband so uneasy, told her that it was 
paid, and claimed the whole of the property as his own.'' 
Suspicion soon fixed upon the prisoner,"* and in his sleeping- 
room was found a pair of stockings rolled up like clean 
stockings, but with the feet plastered over with the sort of 
soil found on the wharf, and a ramrod was found in the 
privy." The prisoner usually wore boots ; but on the even- 
ing of the murder he wore shoes and stockings.^" It was 
supposed that to prevent alarm to the deceased or the female 
servant, the murderer must have approached without his 
shoes, and afterwards gone on the wharf to throw away the 
pistol into the river."' All the prisoner's statements as to 
his pecuniar}' transactions with Goom and his right to draw 
upon him, and the payment of the bUl, turned out to be 
false.^'^ He attempted to tamper with the servant girl as to 
her evidence before the coroner, and urged her to keep to one 
account ;^^ and before that officer he made several incon- 

'^ These facts collectively are inconsistent with the firing of the 
shot by any one except Patch (section 11). They would also be 
relevant as being either facts in issue, or the state of things under 
which facts in issue happened (section 7), or as preparation or oppor- 
tunity (sections 7 & 8, illustration h.). 

'° Introductory (section 9). 

" Subsequent conduct influenced by a fact in issue (section 8). 

" Irrelevant. 

" Effect of fact in issue (section 7). 

™ State of things under which facts in issue happened (section 7). 

'' Fact and inference are mixed up in this statement ; the facts are 
(1) that the state of things was such that the deceased and his ser- 
vant would have heard the steps of a man with shoes on under the 
window ; and (2) that a person who wished to throw anything into 
the Thames would have to go on to the wharf. 

'" Preparation (section 8). 

^ Subsequent conduct (section 8), and admissions (sections 17ife 18). 

8o Case of R. v. Patch. 

sistent statements as to his pecuniary transactions with the 
deceased, and equivocated much as to whether he wore boots 
or shoes on the evening of the murder, as well as to the 
ownership of the soiled stockings,"* which, however, were 
clearly proved to be his, and for the soiled state of which he 
made no attempt to account.^* The prisoner suggested the 
existence of malicious feelings in two persons with whom the 
deceased had been on ill terms,^^ but they had no motive'-' 
for doing him any injury ; and it was clearly proved that 
upon both occasions of attack they were at a distance." 
Remarks Patch's case illustrates the method of difference, and the 
case. whole of it may be regarded as a very complete illustration 

of section 11. The general effect of the evidence is, that 
Patch had motive and opportunity for the murder, and that 
no one else, except himself, could have fired either the shot 
which caused the murdered man's death, or the shot which 
was intended to show that the murdered man had enemies 
who wished to murder him. The relevancy of the first shot 
arose from the suggestion that it was an act of preparation. 
The proof that it was fired by Patch consisted of independent 
facts, showing that it was fired, and that he, and no one else, 
could have fired it. The firing of the second shot by 
which the murder was committed was a fact in issue. The 
proof of it by a strange combination of circumstances was 
precisely similar in principle to the proof as to the first shot. 
The case is also very remarkable as showing the way in 
which the chain of cause and effect links together facts of the 
most dissimilar kind ; and this proves that it is impossible to 
draw a line between relevant and irrelevant facts otherwise 
than by enumerating as completely as possible the more 
common forms in which the relation of cause and effect dis- 
plays itself. In Patch's case the firing of the first shot was 

^* Effect of fact in issue (section 7). ^ Motive (section 8). 

^^ I.e., no special motive beyond general ill-will. 
"" Pacts inconsistent with relevant fact (section 11). 
* P. 34 

Case of R. v. Patch. 8i 

an act of preparation by way of what is called " making 
evidence," but the fact that Patch fired it appeared from a 
combination of circumstances which showed that he might, 
and that no one else could, have done so. It is easy to con- 
ceive that some one of the facts necessary to complete this 
proof might have had to be proved in the same way. For 
instance, part of the proof that Patch fired the shot consisted 
in the fact that no one left certain premises by a certain gate 
which was one of the suppositions necessary to be negatived 
in order to show that no one but Patch could have fired the 
shot. The proof given of this was the evidence of a man 
standing near, who said that at the time in question no one 
did pass through the gate in his presence, or could have done 
so unnoticed by him. Suppose that the proof had been that 
the gate had not been used for a long time ; that spiders' webs 
had been spun all over the opening of the gate ; that they 
were unbroken at night and remained unbroken in the morning 
after the shot ; and that it was impossible that they should 
have been spun after the shot was fired and before the gate was 
examined. In that case the proof would have stood thus : — 

Patch's preparations for the murder were relevant to the 
question whether he committed it. Patch's firing the first 
shot was one of his preparations for the murder. The facts 
inconsistent with his not having fired the shot were relevant 
to the question whether he fired it. The fact that a certain 
door was not opened between certain hours was one of the 
facts which, taken together, were inconsistent with his not 
having fired the shot. The fact that a spider's web was whole 
overnight and also in the morning was inconsistent with the 
door having been opened. 

Inversely, the integrity of the spider's web was relevant to 
the opening of the door ; the opening of the door was relevant 
to the firing of the first shot ; the firing of the first shot was 
relevant to the firing of the second shot ; and the firing of the 
second shot was a fact in issue ; therefore the integrity of the 
spider's web was relevant to a fact in issue. 


82 Case of R. v. Palmer. 

Case of E. v. Palmer.' 

On the 14tli of May, 1856, William Palmer was tried at the 
Old Bailey, under powers conferred on the Courts of 
Queen's Bench by 19 Vic, c. 16, for the murder of John 
Parsons Cook at Eugeley, in Staffordshire, The trial lasted 
twelve days, and ended on the 27th May, when the 
prisoner was convicted, and received sentence of death, on 
which he was afterwards executed at Stafford. 

Palmer was a general medical practitioner at Eugeley, much 
engaged iu sporting transactions. Cook, his intimate friend, 
was also a sporting man ; and after attending Shrewsbury 
races with him on the 13th November, 1865, returned in his 
company to Eugeley, and died at the Talbot Arms Hotel, at 
that place, soon after midnight, on the 21st ITovember, 1855, 
under circumstances which raised a suspicion that he had 
been poisoned by Palmer. The case against Palmer was that 
he had a strong motive to murder his friend, and that his 
conduct before, at the time of, and after his death, coupled 
with the circumstances of the death itself, left no reasonable 
doubt that he did murder him by poisoning him with antimony 
and strychnine, administered on various occasions — ^the 
antimony probably being used as a preparation for the 

The evidence stood as follows : — At the time of Cook's 
death. Palmer was involved in bill transactions which appear 
to have begun in the year 1853. His wife died in September, 

' Eeprinted from my " General View of the Criminal Law of 
England," p. 357. 

Case of R. v. Palmer. 83 

1854, and on her death he received £13,000 on policies 
on her life, nearly the whole of which was applied to the dis- 
charge of his liabilities." In the course of the year 1855 he 
raised other large sums, amounting in all to £13,500, on what 
purported to be acceptances of his mother's. The bills were 
renewed from time to time at enormous interest (usually sixty 
per cent, per annum) by a money-lender named Pratt, who, at 
the time of Cook's death, held eight bills — four on his own 
account and four on account of his client ; two abeady over- 
due, and six others falling due — some in November and others 
in January. About £1,000 had been paid off in the course 
of the year, so that the total amount then due, or shortly to 
faR due to Pratt, was £12,500. The only means which 
Palmer had by which these biUs could be provided for was a 
policy on the life of his brother, Walter Palmer, for £13,000. 
Walter Palmer died in August, 1855,' and William Palmer 
had instructed Pratt to recover the amount from the insurance 
office, but the office refused to pay. In consequence of this 
difficulty, Pratt earnestly pressed Palmer to pay something 
in order to keep down the interest or diminish the principal 
due on the bills. He issued writs against him and his mother 
on the 6th November, and informed him in substance that 
they would be served at once, unless he would pay something 
on account. Shortly before the Shrewsbury races he had 
accordingly paid three sums, amounting in all to £800, of 
which £600 went in reduction of the principal, and £200 was 
deducted for interest. It was understood that more money 
was to be raised as early as possible. 

Besides the money due to Pratt, Mr. Wright of Birming- 
ham held bUls for £10,400. Part of these, amounting to 
£6,500, purported to be accepted by Mrs. Palmer, part were 
collaterally secured by a bUl of sale of the whole of WiUiam 
Palmer's property. These biUs would fall due on the first or 
second week of November. Mr. Padwick also held a bill of 

" A bill was found against him for her murder. 
^ A bUl was found against Palmer for his murder. 

^4 Case of R. v. Palmer. 

the same kind for £2,000, on which £1,000 remained unpaid, 
and which was twelve months overdue on the 6th of October, 
1855. Palmer, on the 12th November, had given Espin a 
cheque antedated on the 28th November, for the other £1,000. 
Mrs. Sarah Palmer's acceptance was on nearly all these biUs, 
and in every instance was forged. 

The result is, that about the time of the Shrewsbury races. 
Palmer was being pressed for payment on forged acceptances 
to the amount of nearly £20,000, and that his only resources 
were a certaiu amount of personal property, over which 
Wright held a bill of sale, and a poUcy for £13,000, the pay- 
ment of which was refused by the of&ce. Should he succeed 
in obtaining payment, he might no doubt struggle through his 
difficulties, but there stUl remained the £1,000 antedated 
cheque given to Espia, which it was necessary to provide for 
at once by some means or other. That he had no funds of 
his own was proved by the fact that his balance at the bank 
on the 19th November was £9 6s. and that he had to borrow 
£25 of a farmer named WaUbank, to go to Shrewsbury races. 
It foUows that he was under the most pressing necessity to 
obtain a considerable sum of money, as even a short delay in 
obtaining it might involve him not only in insolvency, but in 
a prosecution for uttering forged acceptances. 

Besides the embarrassment arising from the bills in the 
hands of Pratt, Wright, and Pad wick, Palmer was involved in 
a transaction with Cook, which had a bearing on the rest of 
the case. Cook and he were parties to a bill for £500 which 
Pratt had discounted, giving £365 in cash, and a wine war- 
rant for £65, and charging £60 for discount and expenses. 
He also required an asignment of two racehorses of Cook's 
— Pole-star and Sirius — as a collateral security. By Palmer's 
request the £365, in the shape of a cheque payable to Cook's 
order, and the wine warrant, were sent by post to Palmer at 
Doncaster. Palmer wrote Cook's endorsement on the cheque, 
and paid the amount to his own credit atjthe bank at Eugeley. 
On the part of the prosecution it was said that tliis transac- 

Case of R. v. Palmer. 85 

tion afforded a reason why Palmer should desire to be rid of 
Cook, inasmuch as it amounted to a forgery by which Cook 
was defrauded of £375. It appeared, however, on the other 
side, that there were £300 worth of notes relating to some 
other transaction, in the letter which enclosed the cheque; and 
as it did not appear that Cook had complained of getting no 
consideration for his acceptance, it was suggested that he had 
authorized Palmer to write his name on the back of the 
cheque, and had taken the notes himself. This arrangement 
seems not improbable, as it would otherwise be hard to ex- 
plain why Cook acquiesced in receiving nothing for his ac- 
ceptance, and there was evidence that he meant to provide 
for the bUl when it became due. It also appeared late ia the 
case that there was another bin for £500, in which Cook and 
Palmer were jointly interested. ^ 

Such was Palmer's position when he went to Shrewsbury 
races, on Monday, the 12th November, 1855. Cook was 
there also ;'and on Tuesday, the 13th, his mare Pole-star won 
the Shrewsbury Handicap, by which he became entitled to 
the stakes, worth about £380, and bets to the amount of 
nearly £2,000. Of these bets he received £700 or £800 on 
the course at Shrewsbury. The rest was to be paid at Tatter- 
saU's on the following Monday, the 19th November. ^ After 
the race Cook invited some of his friends to dinner at the 
Eaven Hotel, and on that occasion and on the foUowiag day 
he was both sober and well.'' ' On the Wednesday night a 
man named Ishmael Fisher came into the sitting-room, which 
Palmer shared with Cook, and found them in company with 
some other men drinking brandy and water. Cook com- 
plained that the brandy " burned his throat dreadfully," and 
put down his glass with a small quantity remaining in it. 
Palmer drank up what was left, and, handing the glass to 
Eead, asked him if he thought there was anything in it to 

' AH these facts go to show motive (section 8). 
^ State of things under which the following facts occurred (sec- 
tion 7). 

86 Case of R.v. Palmer. 

which Eead replied, " What's the use of handing me the glass 
when it's empty?" Cook shortly afterwards left the room, 
called out Fisher, and told him that he had been very sick, 
and, " he thought that damned Palmer had dosed him." He 
also handed over to Fisher £700 or £800 in notes to keep for 
him.^ He then became sick again, and was iU aU night, and 
had to be attended by a doctor. He told the doctor, Mr. 
Gibson, that he thought he had been poisoned, and he was 
treated on that supposition. ' Next day Palmer told Fisher 
that Cook had said that he (Palmer) had been putting some- 
thing into his brandy. He added that he did not play such 
tricks with people, and that Cook had been drunk the night 
before — which appeared not to be the case. 8 Fisher did not 
expressly say that he returned the money to Cook, but from 
the course of the evidence it seems that he did, ' for Cook 
asked him to pay Pratt £200 at once, and to repay himself on 
the following Monday out of the bets which he would receive 
on Cook's account at the settling at Tattersall's. 

About half-past ten on the Wednesday, and apparently 
shortly before Cook drank the brandy and water which he 
complained of. Palmer was seen by a Mrs. Brooks in the 
passage looking at a glass lamp through a tumbler which 
contained some clear iluid like water, and which he was 
shaking and turning in Ms hand. There appears, however, 
to have been no secrecy in this, as he spoke to Mrs. Brooks 
and continued to hold and shake the tumbler as he did so. '" 

* Conduct of person against whom oflfence was committed, and 
statement explanatory of such conduct (section 8 ; exp. 1). 

'The administration of antimony by Palmer would be a fact in 
issue, as being one of a set of acts of poisoning which finally caused 
Cook's death. Cook's feelings were relevant as the efiect of his being 
poisoned (section 7) ; and his statement as to them was relevant under 
section 14 as a statement showing, the existence of a relevant bodily 

' Admission (sections 17, 18). 

' Motive (section 8). 

'" Preparation (section 8). 

Case of R. v. Palmer. 87 

George Myatt was called to contradict this for the prisoner. 
He said tliat lie was in the room when Palmer and Cook 
came in ; that Cook made a remark about the brandy, though 
he gave a different version of it from Fisher and Eead ; that 
he did not see anything put in it, and that if anything had 
been put in it he should have seen. He also swore that 
Palmer never left the room from the time he came in till 
Cook went to bed. He also put the time later than Fisher 
and Eead." All this, however, came to very little. It was 
the sort of difference which always arises in the details of 
evidence. As Myatt was a frend of Palmer's, he probably 
remembered the matter (perhaps honestly enough) in a way 
more favourable to him than the other witnesses. 

It appeared from the evidence of Mrs. Brooks, and also 
from that of a man named Herring, that other persons besides 
Cook were taken £1 at Shrewsbury, on the evening in ques- 
tion, with similar symptoms. Mrs. Brooks said, " We made 
an observation we thought the water might have been 
poisoned in Shrewsbury.'' Palmer himself vomited on 
his way back to Rugeley according to Myatt.'^ 

The evidence as to what passed at Shrewsbury clearly 
proves that Palmer, being then in great want of money. Cook 
was to his knowledge in possession of £700 or £800 in bank- 
notes, and was also entitled to receive on the following 
Monday about £1,400 more. It also shows that Palmer may 
have given him a dose of antimony, though the weight of the 
evidence to this. effect is weakened by the proof that diar- 
rhoea and vomiting were prevalent in Shrewsbury at the time. 
It is, however, important in connection with subsequent 

On Thursday, November 15th, Palmer and Cook returned 
together to Pugeley, which they reached about ten at night. 
Cook went to the Talbot Arms, and Palmer to his own house 

" Evidence against last fact (section 5). 

" Facts rebutting inference suggested by preceding fact (sec- 
tion 9). 

88 Case of R. v. Palmer. 

immediately opposite. Cook stUl complained of being imweU. 
On the Friday he dined with Palmer, in company with an 
attorney, Mr. Jeremiah Smith, and returned perfectly sober 
about ten in the evening." At eight on the following morning 
(November 17th) Palmer came over, and ordered a cup of 
coffee for him. The coifee was given to Cook by Mills the 
chambermaid, in Palmer's presence. "When she next went to 
his room, an hour or two afterwards, it had been vomited.'* In 
the course of the day, and apparently about the middle of the 
day, Palmer sent a charwoman, named Eowley, to get some 
broth for Cook at an inn called the Albion. She brought it 
to Palmer's house, put it by the fire to warm, and left the 
room. Soon after Palmer brought it out, poured it into a cup, 
and sent it to the Talbot Arms with a message that it came 
from Mr. Jeremiah Smith. The broth was given to Cook, 
who at first refused to take it ; Palmer, however, came in, and 
said he must have it. The chambermaid brought back the 
broth which she had taken downstairs, and left it in the 
room. It also was thrown up." In the course of the after- 
noon Palmer called in Mr. Bamford, a surgeon eighty years 
of age, to see Cook, and told him that when Cook dined at 
his (Palmer's) house he had taken too much champagne. '^ 
Mr. Bamford, however, found no bilious symptoms about him, 
and he said he had only drunk two glasses. ^^ On the Satur- 
day night Mr. Jeremiah Smith slept in Cook's room, as he 
was still ill. On the Sunday, between twelve and one, 
Palmer sent over his gardener, Hawley, with some more 

" Introductory to what follows (section 9), and shows state of 
things under which following facts occurred (section 7). 

'* Pact in issue and its eifect, as this was an act of poisoning 
(section 5). 

" Conduct and statements explaining conduct (section 8). 

'° Eebuts inference in Palmer's favour, suggested by preceding fact 
and explains the object of his conduct by showing that his statement 
was false (section 9). Cook's statement relates to his state of body 
(section 14). 

Case of R. v. Palmer. 89 

broth for Cook. " Elizabeth Mills, the servant at the Talbot 
Arms, tasted it, taking two or three spoonfuls. She became 
exceedingly sick about half an hour afterwards, and vomited 
till five o'clock in the afternoon. She was so ill that she had 
to go to bed. This broth was also taken to Cook, and the 
cup afterwards returned to Palmer. It appears to have been 
taken and vomited, though the evidence is not quite explicit 
on that point. ^° By the Sunday's post Palmer wrote to Mr. 
Jones, an apothecary, and Cook's most intimate friend, to 
come and see him. He said that Cook was " confined to his 
bed with a severe bilious attack, combined with diarrhoea." 
The servant Mills said there was no diarrhcea. '^ It was 
observed on the part of the defence that this letter was 
strong proof of innocence. The prosecution suggested that 
it was " part of a deep design, and was meant to make evi- 
dence in the prisoner's favour." The fair conclusion seems 
be to that it was an ambiguous act which ought to weigh 
neither way, though the falsehood about Cook's symptoms is 
suspicious as far as it goes. 

On the night between Sunday and Monday Cook had some 
sort of attack. When the servant Mills went into his room 
on the Monday he said, " I was just mad for two minutes." 
She said, " Why did you not ring the bell ? " He said, " I 
thought that you would be all fast asleep, and not hear 
it." He also said he was disturbed by a quarrel in the 
street. It might have waked and disturbed him, but he was 
not sure. This incident was not mentioned at first by 
Barnes and MiUs, but was brought out on their being re- 
called at the request of the prisoner's counsel. It was con- 
sidered important for the defence, as proving that Cook had 
had an attack of some kind before it was suggested that any 
strychnine was administered ; and the principal medical 

" Fact in issue — administration of poison (section 5). 

'8 Effects of facts in issue (section 7). 

" Conduct (section 8), and explanation of it (section 9). 

90 Case of R. v. Palmer. 

witness for the defence, Mr. Nunneley, referred to it with 
this view.'^" 

On the Monday, about a quarter-past or half-past seven, 
Palmer itgain visited Cook ; but as he was in London about 
half-past two, he must have gone to town by an early train. 
During the whole of the Monday Cook was much better. 
He dressed himseK, saw a jockey and his trainer, and the 
sickness ceased.^' 

In the meantime Palmer was in London. He met hy 
appointment a man named Herring, who was connected with 
the turf Palmer told him he wished to settle Cook's account 
and read to him from a list, which Herring copied as Palmer 
read it, the particulars of the bets which he was to receive. 
They amounted to £984 clear. Of this sum Palmer instructed 
Herring to pay £450 to Pratt and £350 to Padwick. The 
nature of the debt to Padwick was not proved in evidence, 
as Padwick himself was not called. Palmer told Herring the 
£450 was to settle the bill for which Cook had assigned his 
horses. He wrote Pratt on the same day a letter in these 
words : — " Dear Sir, — you will place the £50 I have just paid 
you, and the £450 you will receive from Mr. Herring, to- 
gether £500, and the £200 you received on Saturday " (from 
Pisher) "towards payment of my mother's acceptance for 
£2,000 due 25th October.^^ 

Herring received upwards of £800, and paid part of it away 
accordmg to Palmer's directions. Pratt gave Palmer credit for 
the £450 ; but the £350 was not paid to Padwick, according 
to Palmer's directions, as part was retained by Mr. Herring 
for some debts due from Cook to him, and Herring received 
less than he expected. In his reply the Attorney-General 
said that the £350 intended to be paid to Padwick was on 
account of a bet, and suggested that the motive was to keep 

'° Fact tending to rebut inference from previous facts (section 9). 
'^' Supports the inference suggested by the previous fact that 
Palmer's doses caused Cook's illness (section 9). 
"' Conduct and statement explanatory thereof (section 8, ex. 2). 

Case of R. v. Palmer. g i 

Padwick quiet as to tlie aute dated cheque for £1,000 given 
to Espin on Padwick's account. There was no evidence of 
this, and it is not of much importance. It was clearly in- 
tended to he paid to Padwick on account, not of Cook 
(except possibly as to a small part), but of Palmer. Palmer 
thus disposed, or attempted to dispose, in the course of 
Monday, Nov. 19th, of the whole of Cook's winnings for his 
own advantage.'^ 

This is a convenient place to mention the final result of 
the transaction relating to the biU for £500, in which Cook 
and Palmer were jointly interested. On the Friday when 
Cook and Palmer dined together (Nov. 16), Cook wrote to 
Fisher (his agent) in these words : — " It is of very great im- 
" portance to both Palmer and myself that a sum of £500 
" should be paid to a Mr. Pratt, of 5, Queen Street, Mayfair ; 
" 300?. has been sent up to-night, and if you would be kind 
" enough to pay the other £200 to-morrow, on the receipt of 
" this, you wiU greatly oblige me. I will settle it on Monday 
" at TattersaU's." Fisher did pay the £200, expecting, as he 
said, to settle Cook's account on the Monday, and repay him- 
seK. On the Saturday, Nov. 17th (the day after the date of 
the letter), " a person," said Pratt, "whose name I did not 
" know, called on me with a cheque, and paid me 300?. on 
" account of the prisoner ; that " (apparently the cheque, not 
the 300?.) " was a cheque of Mr. Fisher's." When Pratt heard 
of Cook's death he wrote to Palmer, saying, " The death of 
" Mr. Cook wiU now compel you to look about as to the pay- 
ment of the bUl for £500 due the 2nd of December." ^^ 

Great use was made of these letters by the defence. It was 
argued that they proved that Cook was helping Palmer, and 
was eager to relieve him from the pressure put on him by 
Pratt ; that in consequence of this he not only took up the 
£500 bill, but authorized Palmer to apply the £800 to similar 

'" All this is Palmer's conduct, and is explanatory of it (section 

" Motive for not poisoning Cook (section 8). 

92 Case of R. v. Palmer. 

purposes, and to get the amount settled by Herring, instead 
of Fisher, so that Fisher might not stop out of it the £200 
which he had advanced to Pratt. It was asked how it could 
be Palmer's interest, on this supposition, that Cook should 
die, especially as the first consequence of his death was Pratt's 
application for the money due on the £500 bill. 

These arguments were, no doubt, plausible ; and the fact 
that Cook's death compelled Pratt to look to Palmer for the 
payment of the £500 lends them weight ; but it may be 
asked, on the other hand, why should Cook give away the 
whole of his winnings to Palmer ? Why should Cook allow 
Palmer to appropriate to the diminution of his own liabili- 
ties the £200 which Fisher had advanced to the credit of the 
biU on which both were liable ? Why should he join with 
Palmer in a plan for defrauding Fisher of his security for this 
advance ? No answer to any of these questions was suggested. 
As to the £300, Cook's letter to Fisher says, " £300 lias ieen 
sent up this evening." There was evidence that Pratt never 
received it, for he applied to Palmer for the money on 
Cook's death. Moreover Pratt said that on the Saturday he 
did receive £300 on account of Palmer, which he placed to 
the account of the forged acceptance for £2,000. Where did 
Palmer get the money ? The suggestion of the prosecution 
was that Cook gave it him to pay to Pratt on account of their 
joint bUl, and that he paid it on his own account. This was 
probably the true view of the case. The observation that Pratt, 
on hearing of Cook's death, applied to Palmer to pay the £500 
bill, is met by the reflection that that biU was genuine, and 
collaterally secured by the assignment of the racehorses, and 
that the other biU bore a forged acceptance, and must be 
satisfied at all hazards. The result is that on the Monday 
evening Palmer had the most imperious interest in Cook's 
death, for he had robbed him of aU he had in the world, except 
the equity of redemption in his two horses. 

On Monday evening (Nov. 19th) Palmer returned to Eugeley, 
and went to the shop of Mr. Salt, a surgeon there, about 

Case of R. v. Palmer. 93 

nine p.m. He saw Newton, Salt's assistant, and asked him for 
three grains of strychnine, which were accordingly given him." 
Newton never mentioned this transaction tiU a day or two 
before his examination as a witness in London, though he 
was examined on the inquest. He explained this by saying 
that there had been a quarrel between Palmer and Salt, his 
(Newton's) master, and that he thought Salt would be dis- 
pleased with him for having given Palmer anything. No 
doubt the concealment was improper, but nothing appeared on 
cross-examination to suggest that the witness was willfully 

Cook had been much better throughout Monday, and on 
Monday evening Mr. Bamford, who was attending him, 
brought some piUs for him, which he left at the hotel. They 
contained neither antimony nor strychnine. They were taken 
up in the box in which they came to Cook's room by the 
chambermaid, and were left there on the dressing-table about 
eight o'clock. Palmer came (according to Barnes, the waitress) 
between eight and nine, and Mills said she saw him sitting by 
the fire between nine and ten.^^ 

If this evidence were believed he would have had an oppor- 
just after he had, according to Newton, procured strychnine. 
The evidence, however, was contradicted by a witness called 
for the prisoner, Jeremiah Smith the attorney. He said that 
on the Monday evening, about ten minutes past ten, he saw 
Palmer coining in a car from the directon of Stafford ; that 
they then went up to Cook's room together, stayed two or three 
minutes, and went with Smith to the house of old Mrs. 
Palmer, his mother. Cook said "Bamford sent him some 
pills, and he had taken them, and Palmer was late, intimating 
that he should not have taken them if he had thought Palmer 
would have called in before." If this evidence were believed 
it would of course have proved that Cook took the piUs which 

^ Preparation (section 8). 

'" Opportunity. The rest is introductory (section 7, 9). 

94 Case of R. v. Palmer. 

Bamford sent as he sent them5 Smith, however, was cross- 
examined by the Attorney-General at great length. He 
admitted with the greatest reluctance that he had witnessed 
the assignment of a policy for £13,000 by Walter to William 
Palmer ; that he wrote to an office to effect an insurance for 
£10,000 on the life of Bates, who was Palmer's groom, at 
£1 a week ; that he tried, after Walter Palmer's death, to get 
his widow to give up her claim on the policy ; that he was 
applied to to attest other proposals for insurances on Walter 
Palmer's life for similar amounts ; and that he had got a cheque 
for £5 for attesting the assignment.''^ 

Lord Campbell said of this witness in summing up, " Can 
you believe a man who so disgraces himself in the witness- 
box ? It is for you to say what faith you can place in a 
witness, who, by his own admission, engaged in such fraudu- 
lent proceedings." 

It is curious that though the credit of this witness was so 
much shaken in cross-examination, and though he was contra- 
dicted both by MiUs and Newton, he must have been right 
and they wrong as to the time when Palmer came down to 
Eugeley that evening. Mr. Matthews, the inspector of police 
at the Euston station, proved that the only train by which 
Palmer could have left London after half-past two (when he met 
Herring) started at five, and reached Stafford on the night in 
question at a quarter to nine. It is about ten miles from 
Stafford to Eugeley, so that he coixld not have got across by 
the road in much less than an hour -^ yet Newton said he saw 
him " about nine," and MiUs saw him " between nine and ten.'' 
Nothing, however, is more difficult than to speak accurately to 
time ; on the other hand, if Smith spoke the truth Newton 

"" Evidence against the existence of the fact last mentioned (sec- 
tion 5). 

"^ This cross-examination tended to test the veracity of the witness 
and to test his credit (section 146). 

■•" Facts inconsistent with a relevant fact (section 11), and fixing 
he time of the occurrence of a relevant fact (section 9). 

Case of R. v. Palmer. 95 

could not have seen him at all that night, and Mills, if at aU, 
must have seen him for a moment only in Smith's company. 
Mills never mentioned Smith, and Smith would not venture to 
swear that she or any one else saw him at the Talbot Arms. It 
was a suspicious circumstance that Serjeant Shee did not open 
Smith's evidence to the jury. An opportunity for perjury was 
afforded by the mistake made by the witnesses as to the time, 
which the defence were able to prove by the evidence of the 
police inspector. If Smith were disposed to tell an untruth, 
the knowledge of this fact would enable him to do so with an 
appearance of plausibility. 

Whatever view is taken as to the effect of this evidence it 
was clearly proved that about the middle of the night between 
Monday and Tuesday Cook had a violent attack of some sort. 
About twelve, or a little before, his beU rang ; he screamed 
violently. When Mills, the servant, came in he was sitting 
up in bed, and asked that Palmer might be fetched at once. 
He was beating the bedclothes ; he said he should suffocate if 
he lay down. His head and neck and his whole body jumped 
and jerked. He had great difficulty in breathing, and his eyes 
protruded. His hand was stiff, and he asked to have it 
rubbed. Palmer came in, and gave him a draught and some 
pills. He snapped at the glass, and got both it and the spoon 
between his teeth. He had also great difficulty in swallowiag 
the piUs. After this he got more easy, and Palmer stayed by 
him some time, sleeping in an easy chair.^ 

Great efforts were made in cross-examination to shake the 
evidence of Mills by showing that she had altered the evidence 
which she gave before the coroner, so as to make her descrip- 
tion of the symptoms tally with those of poisoning by 
strychnine, and also by showing that she had been drOled as 
to the evidence which she was to give by persons connected 
with the prosecution. She denied most of the suggestions 

'" Effect of fact in issue, iiiz., the administration of poison (sec- 
tion 7). 

9 6 Case of R. v. Palmer. 

conveyed by the questions asked her, and explained others." 
As to the differences between her evidence before the coroner 
and at the trial, a witness (Mr. Gardner, an attorney) was 
called to show that the depositions were not properly taken 
at the inquest. '' 

On the following day, Tuesday, the 20th, Cook was a good 
deal better. In the middle of the day he sent the boots to ask 
Palmer if he might have a cup of coffee. Palmer said he 
might, and came over, tasted a cup made by the servant, , and 
took it from her hands to give it to Cook. This coffee was 
afterwards thrown up.'^ 

A little before or after this, the exact hour is not important. 
Palmer went to the shop of Hawkins, a druggist at Rugeley, 
and was there served by his apprentice Eoberts with two 
drachms of prussic acid, six grains of strychnine, and two 
drachms of Batley's sedative.'* Whilst he was making the 
purchase, Newton, from whom he had obtained the other 
strychnine the night before, came in ; Palmer took him to the 
door, saying he wished to speak to him; and when he was 
there asked him a quesion about the farm of a Mr. Edwin 
Salt — a matter with which he had nothing at aU to do. 
Whilst they were there a third person came up and spoke to 
Newton, on which Palmer went back into. Hawkins' shop and 
took away the things, Newton not seeing what he took. The 
obvious suggestion upon this is that Palmer wanted to pre- 
vent Newton from seeing what he was about. No attempt 

2' Former statements inconsistent with, evidence (section 155). 

'* The depositions before the coroner would be a proper mode of 
proof as being a record of a relevant fact made by a public servant 
in the discharge of his official duty (section 35), and any document 
purporting to be such a deposition would on production be presumed 
to be genuine, and the evidence would be presumed to be duly taken 
(sections 79 and 80), but this might be rebutted (section 8), defi- 
nition of shall presume.' 

=^ Part of the transaction of poisoning (section 8). 

" Preparation (section 8). 

Case of R. v. Palmer. 97 

even was made to shake, or in any way discredit, Eoberts the 

At about four p.m. Mr. Jones, the friend to whom Palmer 
had written, arrived from Lutterworth.'^ He examined Cook 
in Palmer's presence, and remarked that he had not the tongue 
of a bilious patient ; to which Palmer replied, " You should 
have seen it before." Cook appeared to be better during the 
Tuesday, and was in good spirits.'* At about seven p.m. Mr. 
Bamford came in, and Cook told him in Palmer's presence 
that he objected to the pills, as they had made him ill the 
night before. The three medical men then had a private con- 
sultation. Palmer proposed that Bamford should make up 
the pills as on the night before, and that Jones should not tell 
Cook what they were made of, as he objected to the morphine 
which they contained. Bamford agreed, and Palmer went up 
to his house with him and got the pills, and was present whilst 
they were made up, put into a pill-box, and directed. He 
took them away with him between seven and eight.'^ Cook 
was well and comfortable all the evening ; he had no bilious 
symptoms, no vomiting, and no diarrhoea.'* 

Towards eleven Palmer came with a box of pills directed in 
Bamford's hand. He called Jones's attention to the goodness 
of the handwriting for a man of eighty.** It was suggested by 
the prosecution that the reason for this was to impress Jones 
with the fact that the pills had been made up by Bamford. 
With reference to Smith's evidence it is remarkable that 
Bamford on the second night sent the pills, not " between 
nine and ten," but at eleven. Palmer pressed Cook to take 
the pills, which at first he refused to do, as they had made 
him so iU the night before. At last he did so, and immediately 
afterwards vomited. Jones and Palmer both examined to see 
whether the pills had been thrown up, and they found that 

'^ Condact (section 8). '' Introductory (section 9). 

3* State of things under which Cook was poisoned (section 7). 
'5 Preparation (section 8). 
'" Conduct and statements (section 8, ex. 2). 


9 8 Case of R. v. Palmer. 

they had not. This was about eleven. Jones then had his 
supper, and went to bed in Cook's room about twelve. "When 
he had been in bed a short time, perhaps ten minutes, Cook 
started up and called out, " Doctor, get up ; I am going to be 
lU ; ring the beU for Mr. Palmer." He also said, " Eub my 
neck." The back of his neck was stiff and hard. MOls ran 
across the road to Palmer's and rang the beU. Palmer imme- 
diately came to the bedroom window and said he would come 
at once. Two minutes afterwards he was in Cook's room, and 
said he had never dressed so quick in his life. He was dressed 
as usual. The suggestion upon this was that he had been 
sitting up expecting to be called.'''^ 

By the time of Palmer's arrival Cook was very ill. Jones, 
Elizabeth Mills, and Palmer ■were in the room, and Barnes 
stood at the door. The muscles of his neck were stiff; he 
screamed loudly. Palmer gave him what he said were two 
ammonia pills. Immediately afterwards — ^too soon for the 
pUls to have any effect — he was dreadfully convulsed. . He 
said, when he began to be convulsed, " Eaise me up, or I shall 
be suffocated." Palmer and Jones tried to do soj but could 
not, as the limbs were rigid. He then asked to be turned 
over, which was done. His heart began to beat weakly. 
Jones asked Palmer to get some ammonia to try to stimulate 
it. He fetched a bottle, and was absent about a minute for 
that purpose. When he came back Cook was almost dead, 
and he died in a few minutes, quite quietly. The whole 
attack lasted about ten minutes. The body was twisted back 
into the shape of a bow, and would have rested on the head 
and heels, had it been laid on its back. When the body was 
laid out, it was very stiff. The arms could not be kept down by 
the sides till they were tied behind the back with tape. The 
feet also had to be tied, and the fingers of one hand were very 
stiff, the hand being clenched. This was about one a.m., half 
or three quarters of an hour after the death.'' 

^^ Fact in issue (section 16). Conduct (section 8). 

3^ Cook's death, in all its detail, was a fact in issue (section 6). 

Case of R, v. Palmer. 99 

As soon as Gook was dead, Jones went out to speak to 
the housekeeper, leaving Palmer alone with the body. When 
Jones left the room he sent the servant Mills in, and 
she saw Palmer searching the pockets of Cook's coat 
and searching also under the pillow and bolster. Jones 
shortly afterwards returned, and Palmer told him that 
as Cook's nearest friend, he (Jones) ought to take possession 
of his property. He accordingly took possession of his watch 
and purse, containing five sovereigns and five shillings. He 
found no other money. Palmer said, " Mr. Cook's death is a 
bad thing for me, as I am responsible for £3,000 or £4,000 ; 
and I hope Mr. Cook's friends will not let me lose it. If 
they do not assist me, all my horses will be seized." The 
betting-book was mentioned. Palmer said, " It will be no 
use to any one," and added that it would probably be 

On "Wednesday, the 21st inst., Mr. Wetherby, the London 
racing agent, who kept a sort of bank for sporting men, re- 
ceived from Palmer a letter enclosing a cheque for £350 
against the amount of the Shrewsbury stakes (£381), which 
Wetherby was to receive for him. This cheque had been 
drawn on the Tuesday, about seven o'clock in the evening, 
under pecuL'ar circumstances. Palmer sent for Mr. Cheshire, 
the postmaster at Eugeley, telling him to bring a receipt 
stamp, and when he arrived asked him to write out, from a 
copy which he produced, a cheque by Cook on Wetherby. 
He said it was for money which Cook owed him, and that he 
was going to take it over for Cook to sign. Cheshire wrote 
out the body of the cheque, and Palmer took it away. When 
Mr. Wetherby received the cheque, the stakes had not been 
paid to Cook's credit. He accordingly returned the cheque 
to Palmer, to whom the prosecution gave notice to produce it 
at the trial.''" It was called for, but not produced.*' This 

'^ Conduct (section 8). 
" Conduct (section 8). 
*' See section 66 as to notice to produce. 

loo Case of R. v. Palmer. 

was one of the strongest facts against Palmer in the whole of 
the case,. If he had produced the cheque, and if it had 
appeared to have been really signed by Cook, it would have 
shown that Cook, for some reason or other, had made over 
his stakes to Palmer, and this would have destroyed the 
strong presumption arising from Palmer's appropriation of 
the bets to his own purposes. In fact, it would have greatly 
weakened and almost upset the case as to the motive. On 
the other hand, the non-production of the cheque amounted 
to an admission that it was a forgery ; and if that were so. 
Palmer was forging his friend's name for the purpose of steal- 
ing his stakes at the time when to all outward appearance 
there was every prospect of his speedy recovery which must 
result in the detection of the fraud. If he knew that Cook 
would die that night, this was natural. On any other sup- 
position it was LQConceivable rashness.'" 

Either on Thursday, 22nd, or Priday, 23rd, Palmer sent for 
Cheshire again, and produced a paper which he said Cook 
had given to him some days before. The paper purported to 
be aji acknowledgment that certain biUs — the particulars of 
which were stated — were all for Cook's benefit, and not for 
Palmer's. The amount was considerable, as at least one item 
was for £1,000, and another for £500. This document pur- 
ported to be signed by Cook, and Palmer wished Cheshire to 
attest Cook's execution of it, which he refused to do. This 
document was called for at the trial, and not produced. The 
same observations apply to it as to the cheque.'"'' ^'' " 

Evidence was further given to show that Palmer, who, 
shortly before, had but £9 6s, at the bank, and had borrowed 
£25 to go to Shrewsbury, paid away large sums of money 
soon after Cook's death. He paid Pratt £100 on the 24th ; 
he paid a farmer named SpUsbury £46 2s. with a Bank of 
England note for £50 on the 22nd ; and Bown, a draper, a 
sum of £60 or thereabouts in two £50 notes, on the 20th," 

*^ Ab to these inferences see section 114, illust. g. 
*^ Conduct (section 8). 

Case of R. V. Palmer. loi 

The general result of these money transactions is, that Palmer 
appropriated to his own use aU. Cook's bets ; that he tried to 
appropriate his stakes ; and that shortly before, or just after 
his death, he was in possession of between £400 and £600, of 
which he paid Pratt £400, though very shortly before he was 
being pressed for money. 

On Wednesday, November 21st, Mr. Jones went up to 
London, and informed Mr. Stephens, Cook's step-father, of his 
step-son's death. Mr. Stephens went to Lutterworth, found a 
will by which Cook appointed him his executor, and then 
went on to Eugeley, where he arrived about the middle of the 
day on Thursday."* He asked Palmer for information about 
Cook's affairs, and he replied, " There are £4,000 worth of bills 
out of his, and I am sorry to say my name is to them ; but 
I have got a paper drawn up by a lawyer and signed by 
Mr. Cook to show that I never had any benefit from them." 
Mr. Stephens said that at all events he must be buried. 
Palmer offered to do so himself, and said that the body ought 
to be fastened up as soon as possible. The conversation then 
ended for the time. Palmer went out, and without authority 
from Mr. ^Stephens ordered a shell and a strong oak 

In the afternoon Mr. Stephens, Palmer, Jones, and a Mr. 
Bradford, Cook's brother-in-law, dined together, and after 
dinner Mr. Stephens desired Mr. Jones to fetch Cook's betting- 
book. Jones went to look for it, but was unable to find it. 
The betting-book had last been seen by the chambermaid. 
Mills, who gave it to Cook in bed on the Monday night, when 
he took a stamp from a pocket at the end of it. On hearing, 
that the book could not be found. Palmer said it was of no 
manner of use. Mr. Stephens said he understood Cook had 
won a great deal of money at Shrewsbury, to which Palmer 
replied, " It's no use, I assure you ; when a man dies, his bets 

** Introductory and explanatory (section 9). 

■*5 Admission and conduct (sections 17, 18; section 8). 

^02 Case of R. v. Palmer. 

are done with." He did not mention the fact that Cook's 
bets had been paid to Herring on the Monday. Mr. Stephens 
then said that the book must be found, and Palmer answered 
that no doubt it would be.^" Before leaving the inn Mr. Ste- 
phens went to look at the body, before the coffin was fastened 
and observed that both hands were clenched. He returned 
at once to town and went to his attorney. He returned to 
Eugeley on Saturday, the 24th, and informed Palmer of his 
intention to have a post-mortem examination, which took 
place on Monday, 26th.''^ 

The post-mortem examination was conducted in the pre- 
sence of Palmer by Dr. Harland, Mr. Devonshire, a medical 
student, assisting Dr. Monkton, and Mr. Newton. The heart 
was contracted and empty. There were numerous small 
yellowish white spots, about the size of mustard-seed, at the 
larger end of the stomach. The upper part of the spinal 
cord was in its natural state; the lower part was not 
examined tUl the 25th January, when certain granules were 
found. There were many follicles on the tongue, apparently 
of long standing. The lungs appeared healthy to Dr. Harland, 
but Mr. Devonshire thought that there was some conges- 
tion.** Some points in Palmer's behaviour, both before and 
after the post-mortem examination, attracted notice. Newton 
said that on the Sunday night he sent for him, and asked 
what dose of strychnine would kill a dog. Newton said a 
grain. He asked whether it would be found in the stomach, 
and what would be the appearance of the stomach after 
death. Newton said there would be no inflammation, and he 
did not think it would be found. Newton thought he replied, 
" It's all right," as if speaking to himself, and added that he 
snapped his fingers. Whilst Devonshire was opening the 

40 These facts and statements together make it highly probable 
that Pahner stole the betting-book, which would be relevant as con- 
duct (sections 8, 11). 

4' Introductory to what follows (section 9). 

*' Facts supporting opinions of experts (section 46). 

Case of R.\. Palmer. 103 

stomacli Palmer -pushed against him, and part of the contents 
of the stomach was spilt. Nothing particular being found 
in the stomach, Palmer observed to Bamford, " They will not 
hang us yet." As they were all crowding together to see 
what passed, the push might have been an accident ; and as 
Mr. Stephens' suspicions were weU known, the remark was 
natural, though coarse. After the examination was com- 
pleted, the intestines, &c., were put iato a jar, over the top of 
which were tied two bladders. Palmer removed the jar from 
the table to a place near the door, and when it was missed 
said he thought it would be more convenient. When re- 
placed it was found that a slit had been cut through both the 

After the examination Mr. Stephens and an attorney's 
clerk took the jars containing the viscera, &c., in a fly to 
Stafford.^" Palmer asked the postboy if he was going to 
drive them to Stafford ? The postboy said, " I believe I ani." 
Palmer said, " Is it Mr. Stephens you are going to take 1 " 
He said, " I believe it is." Palmer said, " I suppose you are 
going to take the jars ? " He said, " I am." Palmer asked 
if he would upset them ? He said, " I shall not." Palmer 
said if he would there was a £10 note for him. He also said 
something about its being " a humbugging concern."^' Some 
confusion was introduced into this evidence by the cross- 
examination, which tended to show that Palmer's object was 
to upset Mr. Stephens and not the jars, but at last the postboy 
(J. Myatt) repeated it as given above. Indeed, it makes little 
difference whether Palmer wished to upset Stephens or the 
jars, as they were aU in one fly, and must be upset together 
if at aU. 

Shortly after the post-mortem examination an inquest was 
held before Mr. Ward, the coroner. It began on the 29th 
November and ended on the 5th December. On Sunday, 

^^ Conduct (section 8). 
'" Introductory (section 9). 
■ "''ir^l,. '' Conduct (section 8). 

I04 Case of R. v. Palmer. 

3rd December, Palmer asked Cheshire, the postmaster, " if he 
had anything fresh." Cheshire replied that he could not 
open a letter. Afterwards, however, he did open a letter 
from Dr. Alfred Taylor, who had analyzed the contents of the 
stomach, &c., to Mr. Gardiner, the attorney for the prosecution, 
and informed Palmer that Dr. Taylor said in that letter that 
no traces of strychnia were found. Palmer said he knew 
they would not, and he was quite innocent. Soon afterwards 
Palmer wrote to Mr. Ward, suggesting various questions to 
be put to witnesses at the inquest, and saying that he knew 
Dr. Taylor had told Mr. Gardiner there were no traces of 
strychnia, prussic acid, or opium. A few days before this, on 
the 1st December, Palmer had sent Mr. Ward, as a present, a 
codfish, a barrel of oysters, a brace of pheasants, and a tur- 
key.*^ These circumstances certainly prove improper and 
even criminal conduct. Cheshire was imprisoned for his 
offence, and Lord Campbell spoke in severe terms of the 
conduct of the coroner ; but a bad and unscrupulous man, as 
Palmer evidently was, might act in the manner described, even 
though he was innocent of the particular offence charged. 

A medical book found in Palmer's possession had in it 
some MS. notes on the subject of strychnine, one of which 
was, "It kills by causing tetanic contraction of the respi- 
ratory muscles." It was not suggested that this memorandum 
was made for any particular purpose. It was used merely to 
show that Palmer was acquainted with the properties and 
effects of strychnine.^^ 

This completes the evidence as to Palmer's behaviour 
before, at, and after the death of Cook. It proves beyond all 
question that, having the strongest possible motive to obtain 
at once a considerable sum of money, he robbed his friend of 
the whole of the bets paid to Herring on the Monday by a 
series of ingenious devices, and that he tried to rob him of the 
stakes; it raises the strongest presumption that he robbed 

'* Conduct and facts introductory thereto (sections 8/ 9). 
'^ Pact showing knowledge (section 14). 

Case of R. v. Palmer. 105 

Cook of the £300 which, as Cook supposed, was sent up to 
Pratt on the 16th, and that he stole the money which he had 
on his person, and had received at Shrewsbury ; it proves 
that he forged his name the night before he died, and that he 
tried to procure a fraudulent attestation to another forged docu- 
ment relating to his affairs the day after he died. It also 
proves that he had every opportunity of administering poison 
to Cook, that he told repeated lies about his state of health, 
and that he purchased deadly poison, for which he had no 
lawful use, on two separate occasions shortly before two 
paroxysms of a similar character to each other, the second of 
which deprived him of life. 

The rest of the evidence was directed to prove that the 
symptoms of which Cook died were those of poisoning by 
strychnine, and that antimony, which was never prescribed 
for him, was found in his body. Evidence was also given in 
tne course of the trial as to the state of Cook's health. 

At the time of his death Cook was about twenty-eight 
years of age. Both his father and mother died young, and 
his sister and half-brother were not robust. He inherited 
from his father about £12,000 and was articled to a solicitor. 
Instead of following up that profession he betook himself to 
sporting pursuits, and appears to have led a rather dissipated 
life. He suffered from sjrphilis, and was in the habit of occa- 
sionally consulting Dr. Savage on the state of his health. 
Dr. Savage saw him in November, 1854, in May, in June, 
towards the end of October, and again early in November 
1855, about a fortnight before his death, so that he had ample 
means of giving satisfactory evidence on the subject, especially 
as he examined him carefuUy whenever he came. Dr. Savage 
said that he had two shallow ulcers on the tongue corre- 
sponding to bad teeth ; that he had also a sore throat, one of his 
tonsils being very large, red, and tender, and the other very 
small. Cook himself was afraid that these symptoms were 
syphilitic, but Dr. Savage thought decidedly that they were 
not. He also noticed " an indication of pulmonary affection 

1°^ Case of R. v. Palmer. 

under the left lung." Wishing to get him away from his turf 
associates, Dr. Savage recommended him to go ahroad for the 
winter. His general health Dr. Savage considered good for a 
man who was not robust. Mr. Stephens said that when he 
last saw him alive he was looking better than he had looked 
for some time, and on his remarking, "You do not look 
anything of an invalid now," Cook struck himself on the 
breast, and said he was quite well. His friend, Mr. Jones 
also said that his health was generally good, though he was 
not very robust, and that he both hunted and played at 

On the other hand, witnesses were called for the prisoner 
who gave a different account of his health. A Mr. Sargent 
said he was with him at Liverpool a week before the Shrews- 
bury races, that he called his attention to the state of his 
mouth and throat, and the back part of his tongue was in a 
complete state of ulcer. " I said," added the witness, " I was 
surprised he could eat and drink in the state his mouth 
was in. He said he had been in that state for weeks and 
months, and now he did not take notice of it." This was 
certainly not consistent with Dr. Savage's evidence. ^* 

Such being the state of health of Cook at the time of his 
death, the next question was as to its cause. The prosecution 
contended that the symptoms which attended it proved that 
he was poisoned by strichnia. Several eminent physicians 
and surgeons — Mr. Curling, Dr. Todd, Sir Benjamin Brodie, 
Mr. Daniel, and Mr. Solly — gave an account of the general 
character and causes of the disease of tetanus. Mr. Curling 
said that tetanus consists of spasmodic affection of the volun- 
tary muscles of the body which at last ends in death, produced 
either by suffocation caused by the closing of the windpipe 
or by the wearing effect of the severe and painful struggles 
which the muscular spasms produce. Of this disease there 
are three forms, — idiopathic tetanus, which is produced with- 

'* State of things uuder which crime was committed (section 7). 

Case of R. v. Palmer. 107 

out any assignable external cause ; traumatic tetanus, wliicli 
results from wounds ; and the tetanus which is produced by 
the administration of strychnia, bruschia, and nux vomica, aU 
of which are different forms of the same poison. Idiopathic 
tetanus is a very rare disease in England. Sir Benjamin 
Brodie had seen only one doubtful case of it. Mr. Daniel, 
who for twenty-eight years was surgeon to the Bristol Hos- 
pital, saw only two. Mr. Nunneley, professor of surgery at 
Leeds, had seen four. In India, however, it is comparatively 
common: Mr. Jackson, in twenty-five years' practice there, 
saw about forty cases. It was agreed on all hands, that 
though the exciting cause of the two diseases is different, 
their symptoms are the same. They were described in similar 
terms by several of the witnesses. Dr. Todd said the disease 
begins with stiffness about the jaw, the symptoms then extend 
themselves to the other muscles of the trunk and body. They 
gradually develop themselves. When once the disease has 
begun there are remissions of severity, but not complete inter- 
mission of the symptoms. In acute cases the disease termi- 
nates in three or four days. In chronic cases it will go on 
for as much as three weeks. There was some question as to 
what was the shortest case upon record. In a case mentioned 
by one of the prisoner's witnesses, Mr. Eoss, the patient was 
said to have been attacked in the morning, either at eleven or 
some hours earlier, it did not clearly appear which, and to 
have died at half-past seven in the evening. This was the 
shortest case specified on either side, though its duration was 
not accurately determined. As a rule, however, tetanus, 
whether traumatic or idiopathic, was said to be a matter not 
of minutes, or even of hours, but of days.^^ 

Such beiug the nature of tetanus, traumatic and idiopathic, 
four questions arose. Did Cook die of tetanus ? Did he die 
of traumatic tetanus ? Did he die of idiopathic tetanus ? Did 

^* Opinions of experts, and facts on which they were founded 
(sections 45, 46). The rest of the evidence falls under this head. 

ioS Case of R.v. Palmer. 

he die of the tetanus produced by strychnia ? The case for 
the prosecution upon these questions was, first, that he did die 
of tetanus. Mr. Curling said no doubt there was spasmodic 
action of the muscles (which was his definition of tetanus) in 
Cook's case ; and even Mr. Nunnely, the principal witness for 
the prisoner, who contended that the death of Cook was caused 
neither by tetanus in its ordinary forms nor by the tetanus of 
strychnia, admitted that the paroxysm described by Mr. Jones 
was " very like " the paroxysm of tetanus. The close general 
resemblance of the symptoms to those of tetanus was indeed 
assumed by aU the witnesses on both sides, as was proved 
by the various distinctions which were stated on the side 
of the Crown between Cook's symptoms and those of 
traumatic and idiopathic tetanus, and on the side of the 
prisoner between Cook's symptoms and the symptoms 
of the tetanus of strychnia. It might, therefore, be con- 
sidered to be established that he died of tetanus in some 
form or other. 

The next point asserted by the prosecution was, that he did 
not die of traumatic or idiopathic tetanus, because there was 
no wound on his body, and also because the course of the 
symptoms was different. They further asserted that the 
symptoms were those of poison by strychnia. 

Upon these points the evidence was as foUows : — Mr. 
Curling was asked, Q. " Were the symptoms consistent with 
" any form of traumatic tetanus which has ever come under 
" your knowledge or observation ? " He answered, " 'No." 
Q. " What distinguished them from the cases of traumatic 
" tetanus which you have described?" A. "There was the 
" sudden onset of the fatal symptoms. In aU cases that have 
" fallen under my notice the disease has been preceded by the 
" milder symptoms of tetanus." Q. " Gradually progressing to 
" their complete development, and completion, and death ? " 
A. " Yes." He also mentioned "the sudden onset and rapid 
subsidence of the spasms " as inconsistent with the theory of 
either traumatic or idiopathic tetanus ; and he said he had 

Case of R. v. Palmer. 109 

never known a case of tetanus ■whieli ran its course in less 
than eight or ten hours. In the one case which occupied so 
short a time, the true period could not be ascertaiaed. In 
general, the time required was from one to several days. Sir 
Benjamin Brodie was asked, " In your opinion, are the symp- 
" toms those of traumatic tetanus or not ? " He replied, " As 
" far as the spasmodic contraction of the muscles goes, the 
" symptoms resemble those of traumatic tetanus ; as to the 
" course which the symptoms took, that was entirely dif- 
" ferent." He added, " The symptoms of traumatic tetanus 
" always begin, as far as I have seen, very gradually, the 
" stiffness of the lower jaw being, I believe, the symptom 
" first complained of — at least, so it has been in my experience ; 
" then the contraction of the muscles of the back is always 
" a later symptom, generally much later; the muscles of the 
" extremities are affected in a much less degree than those of 
" the neck and trunk, except in some cases, where the injury 
" has been in a limb, and an early symptom has been a con- 
" traction of the muscles of that limb. I do not myself recol- 
" lect a case in which in ordinary tetanus there was that 
" contraction of the muscles of the hand which I under- 
" stand was stated to have existed in this instance. The 
" ordinary tetanus rarely runs its course in less that two or 
" three days, and often is protracted to a much longer 
" period ; I know one case only in which the disease was said 
" to have terminated in twelve hours." He said, in conclu- 
sion, " I never saw a case in which the symptoms described 
" arose from any disease ; when I say that, of course I refer 
" not to the particular symptoms, but to the general course 
" which the symptoms took." Mr. Daniel being asked whether 
the symptoms of Cook could be referred to idiopathic or trau- 
matic tetanus, said, " In my judgment they could not." He 
also said that he should repeat Sir Benjamia Brodie's words 
if he were to enumerate the distinctions. Mr. SoUy said 
that the symptoms were not referable to any disease he ever 
witnessed ; and Dr. Todd said, " I think the symptoms were 

I lo Case of R. v. Palmer. 

those of strychnia." The same opinion was expressed with 
equal confidence by Dr. Alfred Taylor, Dr. Eees, and 
Mr. Christison.^* 

In order to support this general evidence witnesses were 
called who gave account of three fatal cases of poisoning by 
strychnia, and of one case in which the patient recovered. 
The first of the fatal cases was that of Agnes Trench, or 
Senet, who was accidentally poisoned at Glasgow Infirmary, in 
1845, by some piUs which she took, and which were intended 
for a j^aralytic patient. According to the nurse, the girl was ' 
taken Ul three quarters of an hour, according to one of the 
physicians (who, however, was not present) twenty minutes 
after she swallowed the pills. She fell suddenly back on the 
floor ; when her clothes were cut off she was stiff, "just like a 
poker," her arms were stretched out, her hands clenched; 
she vomited slightly ; she had no _ lockjaw ; there was a re- 
traction of the mouth and face, the head was bent back, the 
spine curved. She went into severe paroxysms every few 
seconds, and died about an hour after the symptoms began. 
She was perfectly conscious. The heart was found empty on 

The second case described was that of Mrs. Serjeantson 
Smyth, who was accidentally poisoned at Eomsey in 1848, by 
strychnine put into a dose of ordinary medicine instead of 
salicine. She took the dose about five or ten minutes after 
seven ; in five or ten minutes more the servant was alarmed 
by a violent ringing of the beU. She found her mistress 
leaning on a chair, went out to send for a doctor, and on her 
return found her on the floor. She screamed loudly. She 
asked to have her legs pulled straight and to have water thrown 
over her. A few minutes before she died she said, "Turn 
me over ;" she was turned over, and died very quietly almost 
immediately. The fit lasted about an hour. The hands were 
clenched, the feet contracted, and on a post-mortem examina- 
tion the heart was found empty. 

The third case was that of Mrs. Dove, who was poisoned 

Case of R. v. Palmer. 1 1 j 

at Leeds by her husband (for which he was afterwards hanged) 
in February, 1856. She had five attacks on the Monday 
Wednesday, Thursday, Friday, and Saturday of the week 
beginning February 24th. She had prickings in the legs and 
twitchings in the hands. She asked her husband to rub her 
arms and legs before the spasms came on, but when they were 
strong she could not bear her legs to be touched. The fatal 
attack in her case lasted two hours and a half. The hands 
were semi-bent, the feet strongly arched. The lungs were 
congested, the spinal cord was also much congested. The head 
being opened first, a good deal of blood flowed out, part of 
which might flow from the heart. 

The case in which the patient recovered was that of a 
paralytic patient of Mr. Moore's. He took an over dose of 
strychnia, and ia about three quarters of an hour Mr. Moore 
found him stiffened in every limb. His head was drawn 
back ; he was screaming and " frequently requesting that we 
should turn him, move him, rub him." His spine was drawn 
back. He snapped at a spoon with which an attempt was 
made to administer medicine, and was perfectly conscious 
during the whole time. 

Dr. Taylor and Dr. Owen Eees examined Cook's body. 
They found no strychnia, but they found antimony in the 
liver, the left kidney, the spleen, and also in the blood. 

The case for the prosecution upon this evidence was, that 
the symptoms were those of tetanus, and of tetanus produced 
by strychnia. The case for the prisoner was, first, that several 
of the symptoms observed were inconsistent with strychnia ; 
and secondly, that all of them might be explained on other 
hypotheses. Their evidence was given ia part by their own 
witnesses, and in part by the witnesses for the Crown in cross- 
examination. The replies suggested by the Crown were 
founded partly on the evidence of their own witnesses 
given by way of anticipation, and partly by the evidence 
obtained from the witnesses for the prisoner on cross- 

112 Case of R. v. Palmer. 

The first and most conspicuous argument on behalf of the 
prisoner was, that the fact that no strychnia was discovered 
by Dr. Taylor and Dr. Eees was inconsistent with the theory 
that any had been administered. The material part of Dr. 
Taylor's evidence upon this point was, that he had examined 
the stomach and intestines of Cook for a variety of poisons, 
strychnia among others, without success. The contents of 
the stomach were gone, though the contents of the intestines 
remained, and the stomach itself had been cut open from end 
to end, and turned inside out, and the mucous surface on 
which poison, if present, would have been found was rubbing 
against the surface of the intestines. This Dr. Taylor con- 
sidered a most unfavourable condition for the discovery of 
poison, and Mr. Christison agreed with him. Several of the 
prisoner's witnesses, on the contrary — Mr. Nunneley, Dr. 
Letheby, and Mr. Eogers, — thought that it would only increase 
thedif&culty of the operation, and not destroy its chance of 

Apart from this Dr. Taylor expressed his opinion that from 
the way in which strychnia acts, it might be impossible to 
discover it even if the circumstances were favourable. The 
mode of testing its presence in the stomach is to treat the 
stomach in various ways, until at last a residue is obtained 
which, upon the application of certain chemical ingredients, 
changes its colour if strychnia is present. All the witnesses 
agreed that strychnia acts by absorption — that is, it is taken 
up from the stomach by the absorbents, thence it passes into 
the blood, thence into the solid part of the body, and at some 
stage of its progress causes death by its action on the 
nerves and muscles. Its noxious effects do not begin tiU 
it has left the stomach. From this Dr. Taylor argued that if 
a minimum dose were administered, none would be left in the 
stomach at the time of death, and therefore none could be 
discovered there. He also said that if the strychnia got into 
the blood before examination, it would be diffused over the 
whole mass, and so no more than an extremely minute portion 

Case of R. v. Palmer. i ^3 

would be present in any given quantity. If the dose were 
half a grain, and there were twenty-five pounds of blood in the 
body, each pound of blood would contain only one-fiftieth of 
a grain. He was also of opinion that the strychnia undergoes 
some chemical change by reason of which its presence in 
small quantities in the tissues cannot be detected. In 
short, the result of his evidence was, that if a minimum 
dose were administered, it was uncertain whether strychnia 
would be present in the stomach after death, and that if 
it was not in the stomach, there was no certainty that it could 
be found at alL He added that he considered the colour tests 
fallacious, because the colours might be produced by other 

Dr. Taylor further detailed some experiments which he had 
tried upon animals jointly with Dr. Eees, for the purpose of 
ascertaining whether strychnia could always be detected. He 
poisoned four rabbits with strychnia, and applied the tests for 
strychnia to their bodies. In one case, where two grains had 
been administered at intervals, he obtained proof of the presence 
of strychnia both by a bitter taste and by the colour. In a 
case where one grain was administered, he obtained the taste 
but not the colour. In the other two cases, where he admin- 
istered one grain and half a grain respectively, he obtained 
no indications at all of the presence of strychnia. These 
experiments proved to demonstration that the fact that lie, did 
not discover strychnia did not prove that no strychnia was 
present in Cook's body. 

Mr. Nunneley, Mr. Herapath, Mr. Eogers, Dr. Letheby 
and Mr. Wrightson contradicted Dr. Taylor and Dr. Eees 
upon this part of their evidence. They denied the theory 
that strychniae undergoes any change in the blood, and they 
professed their own ability to discover its presence even in 
most minute quantities in any body into which it had been 
introduced, and their belief that the colour tests were satis- 
factory. Mr. Herapath said that he had found strychnine in 
the blood and in a small part of the liver of a dog poisoned 


114 Case of R. v. Palmer. 

by it ; and he also said that lie could detect the fifty-thousandth 
part of a grain if it were unmixed with organic matter. Mr. 
Wrightson (who was highly complimented by Lord Campbell 
for the way in which he gave his evidence) also said that he 
should expect to find strychnia if it were present, and that he 
had found it in the tissues of an animal poisoned by it. 

Here, no doubt^ there was a considerable conflict of evidence 
upon a point on which it was very difficult for unscientific 
persons to pretend to have any opinion. The evidence 
given for the prisoner however tended to prove not so much 
that there was no strychnia in Cook's body, as that Dr. Taylor 
ought to have found it if there was. In other words, it had 
less to do with the guilt or innocence of the prisoner, than 
with the question whether Mr. Nunneley and Mr. Herapath 
were or were not better analytical chemists than Dr. Taylor. 
The evidence could not even be considered to shake Dr. 
Taylor's credit, for no part of the case rested on his evidence 
except the discovery of the antimony, as to which he was 
corroborated by Mr. Brande, and was not contradicted by 
the prisoner's witnesses. His opinion as to the natuare of 
Cook's symptoms was shared by many other medical witnesses 
of the highest eminence, whose credit was altogether unim- 
peached. The prisoner's counsel were placed in a curious 
difficulty by this state of the question. They had to attack 
and did attack Dr. Taylor's credit vigorously for the purpose 
of rebutting his conclusion that Cook might have been 
poisoned by strychnine ; yet they had also to maintain his 
credit as a skilful analytical chemist, for if they destroyed it, 
the fact that he did not find strychnine went for nothing. This 
dilemma was fatal. To admit his skill was to admit ' their 
client's guilt. To deny it was to destroy the value of nearly 
all their own evidence. The only possible course was to 
admit his skill and deny his good faith, but this too was use- 
less for the reason just mentioned. 

Another argument used on behalf of the prisoner was that 
some of the symptoms of Cook's death were inconsistent with 

Case of R. v. Palmer. 115 

poisoning by strychnine. Mr. Nuniieley and Dr. Letheby 
thought that the facts that Cook sat up in Bed when the 
attack came on, that he moved his hands, and swallowed, and 
asked to be rubbed and moved, showed more power of volun- 
tary motion than was consistent with poisoning by strychnia. 
But Mrs. Serjeantson Smyth got out of bed and rang the bell, 
and both she, Mrs. Dove, and Mr. Moore's patient begged to 
be rubbed and moved before the spasms came on. Cook's 
movements were before the paroxysm set in, and the first 
paroxysm ended his life. 

Mr. Nunneley referred to the fact that the heart was 
empty, and said that, in his experiments, he always found 
that the right side of the heart of the poisoned animals was 

Both in Mrs. Smyth's case, however, and in that of the girl 
Senet, the heart was found empty ; and in Mrs. Smyth's case 
the chest and abdomen were opened first, so that the heart 
was not emptied by the opening of the head. Mr. Christison 
said that if a man died of spasms of the heart, the heart would 
be emptied by them, and would be found empty after death, 
so that the presence or absence of the blood proved nothing. 

Mr. Nunneley and Dr. Letheby also referred to the length 
of time before the symptoms appeared, as inconsistent with 
poisoning by strychnine. The time between the adminis- 
tration of the pills and the paroxysm was not accurately 
measured. It might have been an hour, or a little less, or 
more ; but the poison, if present at all, was administered in 
pills, which would not begin to operate till they were broken 
up, and the rapidity with which they would be broken up 
would depend upon the materials of which they were made 
Mr. Christison said that if the pOls were made up with 
resinous materials, such as are within the knowledge of every 
medical man, their operation would be delayed. He added, 
" I do not think we can fix, with our present knowledge, the 
"precise time for the poison beginning to operate." Ac- 
cording to the account of one witness in Agnes French's case, 

1 16 Case of R. v. Palmer. 

the poison did not operate for three quarters of an hour, 
though probably her recollection of the time was not very- 
accurate after ten years. Dr. Taylor also referred (in cross- 
examination) to cases in which an hour and a half, or even 
two hours elapsed, before the symptoms showed themselves. 

These were the principal points in Cook's symptoms said 
to be inconsistent with the administration of strychnia. All 
of them appear to have been satisfactorily answered. Indeed, 
the inconsistency of the symptoms with strychnia was faintly 
maintained. The defence turned rather on the possibility of 
showing that they were consistent with some other disease. 

In order to make out this point various suggestions were 
made. In the cross-examination of the diEferent witnesses for 
the Crown, it was frequently suggested that the case was. one 
of traumatic tetanus, caused by syphilitic sores ; but to this 
there were three fatal objections. In the first place, there 
were no syphilitic sores ; in the second place, no witness for 
the prisoner said that he thought that it was a case of trau- 
matic tetanus; and in the third place, several doctors of great 
experience in respect of syphilis — especially Dr. Lee, the 
physician to the Lock Hospital — declared that they never 
heard of syphilitic sores producing tetanus. Two witnesses 
for the prisoner were called to show that a man died of teta- 
nus who had sores on his elbow and elsewhere, which were 
possibly syphilitic ; but it did not appear whether he had 
rubbed or hurt them, and Cook had no symptoms of the sort. 
Another theory was that the death was caused by general 
convulsions. This was advanced by Mr. Nunneley ; but he 
was unable to mention any case in which general convulsions 
had produced death without destroying consciousness. He said 
vaguely he had heard of such cases, but had never met with 
one. Dr. McDonald, of Garnkirk, near Glasgow, said that 
he considered the case to be one of " epileptic convulsions 
with tetanic complications." But he also failed to mention 
an instance in which epilepsy did not destroy consciousness. 
This witness assigned the most extraordinary reasons for sup- 

Case of R. V. Palmer. 1 1 7 

posing that it was a case of this form of epilepsy. He said 
that the fit might have been caused by sexual excitement, 
though the man was ill at Eugeley for nearly a week before 
his death ; and that it was within the range of possibility that 
sexual intercourse might produce a convulsion fit after an 
interval of a fortnight. 

Both Mr. Nunneley and Dr. McDonald were cross-examined 
with great closeness. Each of them was taken separately 
through all the various syniptoms of the case, and asked to 
point out how they differed from those of poisoning by 
strychnia, and what were the reasons why they should be 
supposed to arise from anything else. After a great deal of 
trouble, Mr. Nunneley was forced to admit that the symptoms 
of the paroxysm were " very like " those of strychnia, and that 
the various predisposing causes which he mentioned as likely 
to produce convulsions could not be shown to have existed. 
He said, for instance, that excitement and depression of spirits 
might predispose to convulsions; but the only excitement 
under which Cook had laboured was on winning the race a 
week before ; and as for depression of spirits, he was laugh- 
ing and joking with Mr. Jones a few hours before his death. 
Dr. McDonald was equally unable to give a satisfactory 
explanation of these difficulties. It is impossible by any 
abridgment to convey the full effect which these cross- 
examinations produced. They deserve to be carefully studied 
by any one who cares to understand the full effect of this 
great instrument for the manifestation not merely of truth, 
but of accuracy and fairness. 

Of the other witnesses for the prisoner, Mr. Herapath ad- 
mitted that he had said that he thought that there was 
strychnine in the body, but that Dr. Taylor did not know how 
to find it. He added that he got his impression from news- 
paper reports ; but it did not appear that they differed from 
the evidence given at the trial. Dr. Letheby said that the 
symptoms of Cook were irreconcilable with everything that 
he was acquainted with — strychnia poison included. He 

ii8 Case of R.v. Palmer. 

admitted, however, that they were not inconsistent with what 
he had heard of the symptoms of Mrs. Serjeantson Smyth 
who was undoubtedly poisoned by strychnine. Mr. Par- 
tridge was called to show that the case might be one of 
arachnitis, or inflammation of one of the membranes of the 
spinal cord caused by two granules discovered there. In 
cross-examination he instantly admitted, with perfect frank- 
ness, that he did not think the case was one of arachnitis, as 
the symptoms were not the same. Moreover, on being asked 
whether the symptoms described by Mr. Jones were consistent 
with poisoning by strychnia, he said, " Quite ;" and he con- 
cluded by saying that in the whole course of his experience 
and knowledge he had never seen such a death proceed from 
natural causes. Dr. Eobinson, from Newcastle, was called 
to show that tetanic convulsions preceded by epilepsy were 
the cause of death. He, however, expregsly admitted in cross- 
examination that the symptoms were consistent with strychnia, 
and that some of them were inconsistent with epilepsy. He 
said that in the absence of any other cause, if he " put aside 
the hypothesis of strychnia," he would ascribe it to epilepsy ; 
and that he thought the granules in the spinal cord might 
have produced epilepsy. The degree of importance attached 
to these granules by different witnesses varied. Several of 
the witnesses for the Crown considered them unimportant. 
The last of the prisoner's witnesses was Dr. Eichardson, who 
said the disease might have been angina pectoris. He said, 
however, that the symptoms of angina pectoris were so like 
those of strychnine that he should have great difficulty in 
distinguishing them from each other. 

The fact that antimony was found was never seriously dis- 
puted, nor could it be denied that its administration would 
account for all the symptoms of sickness, &c., which occurred 
during the week before Cook's death. No one but the prisoner 
could have administered it. 

The general result of the whole evidence on both sides 
appears to be to prove beyond aU reasonable doubt that the 

Case of R. v. Palmer. 119 

symptoms of Cook's death were perfectly consistent with 
those of poisoning by strychnine, and that there was strong 
reason to believe that they were inconsistent with any other 
cause. Coupling this with the proof that Palmer bought 
strychnia just before each of the two attacks, and that he 
robbed Cook of all his property, it is impossible to doubt the 
propriety of the verdict. 

Palmer's case is remarkable on account of the extraordinary Remarks 
minuteness and labour with which it was tried, and on account Paimer's 
of the extreme ability with which the trial was conducted on '^'^^^■ 
both sides. 

The intricate set of facts which show that Palmer had a 
strong motive to commit the crime ; his behaviour before it, 
at the time when it was being committed, and after it had 
been committed ; the various considerations which showed 
that Cook must have died by tetanus produced by strychnine ; 
that Palmer had the means of administering strychnine to him; 
that he did actually administer what in all probability was 
strychnine ; that he also administered antimony on many oc- 
casions ; and that all the different theories by which Cook's 
death otherwise than by strychnine could be accounted for 
were open to fatal objections, form a collection of eight or 
ten different sets of facts, all connected together immedi- 
ately or remotely either as being, or as being shown not to be, 
the causes or the effects of Cook's murder, or as forming part 
of the actual murder itself. 

The scientific evidence is remarkable on various grounds, 
but particularly because it supplies a singularly perfect illus- 
tration of the identity between the ordinary processes of 
scientific research, and the priuciples explained above as 
being those on which Judicial Evidence proceeds. Take for 
instance the question. Did Cook die of tetanus, either traumatic 
or idiopathic ? The symptoms of those diseases are in the 
first place ascertained inductively, and their nature was proved 
by the testimony of Sir Benjamin Brodie and others. The 
course of the sjonptoms being compared with those of Cook, 

I20 Case of R.v. Palmer. 

they did not correspond. The inference hy deduction was that 
Cook's death was not caused by those diseases. Logically 
the matter might be stated thus : — 

All persons who die either of traumatic or of idiopathic 
tetanus exhibit a certain course of symptoms. 

Cook did not exhibit that course of symptoms, therefore 
Cook did not die of traumatic or of idiopathic tetanus. 

Every one of the arguments and theories stated in the 
case may easily be shown by a little attention to be so many 
illustrations of the rules of evidence on the one hand, and of 
the rules of induction and deduction on the other. 

On the other hand, a flood of irrelevant matter apparently 
connected with the trial pressed, so to speak, for admittance, 
and if it had been admitted, would have swollen the trial to 
unmanageable proportions, and thrown no real light upon the 
main question. Palmer was actually indicted for the murder 
of his wife, Ann Palmer, and for the murder of his brother, 
Walter Palmer. Every sort of story was in circulation as to 
what he had done. It was said that twelve or fourteen per- 
sons had at different times been buried from his house under 
suspicious circumstances. It was said that he had poisoned 
Lord George Bentinck, who died very suddenly some years 
before. He had certainly forged his mother's acceptance to 
bills of exchange, and had carried on a series of gross frauds 
on insurance offices. There was the strongest reason to suspect 
that the evidence of Jeremiah Smith, referred to in the case 
was plotted and artful perjury. If Palmer had been tried in 
Erance, every one of these and ianumerable other topics would 
have been introduced, and the real matter in dispute would 
not have been nearly so fully discussed. 

No case sets in a clearer light either the theory or the 
practical working of the principles on which the Evidence 
Act is based. 

One special matter on which Palmer's trial throws great 
light is the nature of the evidence of experts. The provisions 
relating to this subject are contained in Sections 45 and 46 

Case of R. v. Palmer. 121 

of the Evidence Act. The only point of much importance in 
connection with them is that it should be borne in mind that 
their evidence is given on the assumption that certain facts 
occurred, but that it does not in common cases show whether or 
not the facts on which the expert gives his opinion did really 
' occur. For instance, Sir Benjamin Brodie and other witnesses 
in Palmer's case said that the symptoms they had heard des- 
cribed were the symptoms of poisoning by strychmne, but 
whether the maid-servants and others who witnessed and des- 
cribed Cook's death were or were not speaking the truth was 
not a question for them, but for the jury. Strictly speaking, an 
expert ought not to be asked, " Do you think that the deceased 
man died of poison?" He ought to be asked to what cause 
he would attribute the death of the deceased man, assuming 
the symptoms attending his death to have been correctly 
described ? or whether any cause except poison would account 
for such and such specified symptoms ? This, however, is a 
matter of form. The substance of the rules as to experts is 
that they are only witnesses, not judges ; that their evidence, 
however important, is intended to be used only as materials 
upon which others are to form their decision ; and that the 
fact which they have to prove is the fact that they entertain 
certain opinions on certain grounds, and not the fact that 
grounds for their opinions do really exist. 



Having thus described and illustrated the theory of rele- 
vancy, it will be desirable to say something of irrelevant facts 
which might at first sight be supposed to be relevant. 

From the' explanations given in the earlier part of the 
chapter it follows that facts are irrelevant unless they can be 
shown to stand ia the relation of cause or in the relation of 
effect to facts in issue, every step in the connection beiug 
either proved or of such a nature that it may be presumed 
without proof. 

What facts The vast majority of ordinary facts simply coexist with- 

^ajit"^"^^^^" *^^^ being in any assignable manner connected together. 
For instance, at the moment of the commission of a crime 
in a great city numberless other transactions are going 
on in the immediate neighbourhood ; but no one would think 
of giving evidence of them unless they were in some way 
connected with the crime. Facts obviously irrelevant therefore 
present little difficulty. The only difficulty arises in dealing 
with facts which are apparently relevant but are not really 
so. The most important of these are three : — 

Facts ap- 1- Statements as to facts made by persons not called as 

Enl Witnesses. 

2. Transactions similar to but unconnected with the facts 
in issue. 

3. Opinions formed by persons as to the facts in issue or 
relevant facts. 

None of these are relevant within the definition of relevancy 
given iu Sections 6 — 11, both inclusive. It may possibly be 
argued that the effect of the second paragraph of Section 11 * 

Section 11 is as follows : — 
Facts not otherwise relevant are relevant. 
(1) If they are inconsistent with any fact in issue or relevant fact. 

Irrelevant Facts. 123 

would be to admit proof of such facts as these. It may, for 
instance, be said : A (not called as a witness) was heard to 
declare that he had seen B commit a crime. This makes it 
higlily probable that B did commit that crime. Therefore A's 
declaration is a relevant fact under Section 11 (2). This was 
not the intention of the section, as is shown by the elaborate 
provisions contained in the following part of the Chapter 
XJ. (Sections 12 — 39) as to particular classes of statements, 
which are regarded as relevant facts either because the 
circumstances under which they are made invest them with 
importance, or because no better evidence can be got. The 
sort of facts which the section was intended to include are 
facts which either exclude or imply more or less distinctly 
the existence of the facts sought to be proved. Some degree of 
latitude was designedly left in the wording of the section (in 
compliance with a suggestion from the Madras Government) 
on account of the variety of matters to which it might apply. 
The meaning of the section would have been more fully 
expressed if words to the following effect had been added to 
it :— 

" No statement shall be regarded as rendering the matter 
stated highly probable within the meaning of this section 
unless it is declared to be a relevant fact under some other 
section of this Act." 

The reasons why statements as to facts made by persons Reason for 
not called as witnesses are excluded, except in certain specified of hearsay, 
cases (see Sections 17 — 39), are various. In the first place it is 
matter of common experience that statements in common 
conversation are made so lightly, and are so liable to be mis- 
understood or misrepresented, that they cannot be depended 
upon for any important purpose unless they are made under 
special circumstances. 

(2) If by themselves, or in connection -with other facts, they make 
the existence or non-existence of any fact in issue or relevant fact 
highly probable or improbable. 


Irrelevant Facts. 

Objection. It may be said that this is an objection to the weight of 
such statements and not to their relevancy, and there is some 
degree of truth in this remark. No doubt, when a man has 
to inquire into facts of which he receives in the first instance 
very confused accounts, it may and often will be extremely 
important for him to trace the most cursory and apparently 
futile report. And facts relevant in the highest degree to 
facts in issue may often be discovered in this manner. ^ 
policeman or a lawyer engaged in getting up a case, criminal 
or civil, would neglect his duty altogether if he shut his ears 
to everything which was not relevant within the meaning of 
the Evidence Act. A judge or magistrate in India frequently 
has to perform duties which in England would be performed 
by police officers or attorneys. He has to sift out the truth 
for himself as well as he can, and with little assistance of a 
professional kind. Section 165 is intended to arm the judge 
with the most extensive power possible for the purpose of 
getting at the truth. The effect of this section,* is that in 
order to get to the bottom of the matter before it the court 
wiU. be able to look at and inquire into every fact whatever. 
It will not, however, be able to found its judgment upon 
the class of statements in question, for the following reasons. 

If this were permitted it would present a great temptation 
to indolent judges to be satisfied with second-hand reports. 

It would open a wide door to fraud. People would 
make statements for which they would be in no way re- 
sponsible, and the fact that these statements were made 
would be proved by witnesses who knew nothing of the 
matter stated. Every one would thus be at the mercy of 
people who might choose to tell a lie, and whose evidence 
could neither be tested nor contradicted. 

Effect of 


* Section 165 is aa follows : 

" The judge may in order to discover or obtain proper proof of 
" relevant facts ask any question lie pleases in any form, at any time, 
" of any witness, or of the parties about any fact relevant or irrele- 
" vant, and may order the production of any document or thing." 

Ir relevant Facts. 125 

Suppose that A, B, C, and D give to E, F, and G a minute 
detailed account of a crime which they say was committed 
by Z. E, F, and G- repeat what they have heard correctly. 
A, B, C, and D disappear or are not forthcoming. It is 
evident that Z would be altogether unable to defend himself 
in this case, and that the court would be unable to test the 
statements of A, B, C, and D. The only way to avoid this 
is to exclude such evidence altogether, and so to put upon both 
judges and magistrates as strong, a pressure as possible to get 
to the bottom of the matter before them. 

It would waste an incalculable amount of time. To try to 
trace unauthorized and irresponsible gossip, and to discover 
the grains of truth which may lurk in it is like trying to 
trace a fish in the water. 

The exclusion of evidence as to transactions similar to, but Uncon- 
not specifically connected with the facts in issue, rests upon "j.^'J'g, 
the ground that if it were not enforced every trial, whether ''c'ions. 
civil or criminal, might run into an inquiry into the whole 
life and character of the parties concerned. Litigants have 
frequently many matters in difference besides the precise 
point legally at issue between them, and it often requires a 
good deal of vigour to prevent them from turning courts of 
justice into theatres in which all their affairs may be discussed. 
A very slight acquaintance with French procedure is enough 
to show the evils of not keeping people close to the point in 
judicial proceedings. 

As to evidence of opinion, it is excluded because its admis- Exclusion 
sion would in nearly all cases be mere waste of time. dence of 

The concluding part of the. chapter on the relevancy of facts °p™'°"- 
enumerates the exceptions which are to be made to the general tions to 
rules as to irrelevancy. The rules as to admissions, statements ^relevancy 
made by persons who cannot be called as witnesses, and state- 
ments made under circumstances which in themselves afford 
a guarantee for their truth, are an exception to the exclu- 
sion of statements as proof of the matter stated. 

Judgments in courts of justice on other occasions form an 


Admission of Statements. 



ments by 
who can- 
not be 


exception to the exclusion of evidence of transactions not 
specifically connected with facts in issue, and the provisions 
as to the admission of evidence of opinions in certain cases 
are contained in Sections 45 — 55. I will notice very shortly 
the principle on which these provisions proceed. 

1. The general rule with regard to admissions, which are 
defined to mean aU that the parties or their representatives in 
certain degrees say about the matter in dispute, or facts rele- 
vant thereto, is that they may be proved as against those 
who made them, but not in their favour. The reason of the 
rule is obvious. If A says, '' B owes me money," the mere fact 
that he says so does not even tend to prove the debt. If the 
statenient has any value at all, it must be derived from some 
fact which lies beyond it ; for instance, A's recollection of his 
having lent B the money. To that fact, of course, A can 
testify, but his subsequent assertions add nothing to what he 
has to say. If, on the other hand, A had said, " B does not 
owe me anything," this is a fact of which B might make 
use, and which might be decisive of the case. 

Admissions in reference to crimes are usually called con- 
fessions. I may observe upon the provisions relating to them 
that Sections 25, 26, and 27 were transferred to the Evidence 
verbatim from the Code of Criminal Procedure, Act xxv. of 
1861. They differ widely from the law of England, and were 
inserted in the Act of 1861 in order to prevent the practice of 
torture by the police for the purpose of extracting confessions 
from persons in their custody. 

Statements made by persons who are dead or otherwise 
incapacitated from being called as witnesses are admitted in 
the cases mentioned in Sections 32 and 33. The reason is 
that in the cases in question no better evidence is to be had. 

In certain cases statements are made under circumstances 
which in themselves are a strong reason for believing them to 
be true, and in these cases there is generally little use in 
calling the person by whom the statement was made. The 
sections whi(>h relate to them are 34 — 38. 

yudgments. Opinions, Character. 127 

It may be well to point out here the manner in whiph the 
Evidence Act affects the proof of evidence given by a 
witness in a court of justice. The relevancy of the fact that 
such evidence was given, depends partly on the general 
principles of relevancy. For instance, if a witness were accused 
of giving false testimony, the fact that he gave the testimony 
alleged to be false would be a fact in issue. But the Act also 
provides for cases in which the fact that evidence was given 
on a different occasion is to be admissible, either to prove the 
matter stated (Section 33), or in order to contradict (Sections 
155, 3) or in order to corroborate (Section 157) the witness. 
By reference to these Sections it must be ascertained whether 
the fact that the evidence was given is relevant. If it is 
relevant, Section 35 enacts that an entry of it in a record 
made by any public servant in the discharge of his duty shall 
be relevant as a mode of proving it. The Codes of Civil and 
Criminal Procedure direct all judicial officers to make 
records of the evidence given before them; and -Section 80 of 
the Evidence Act provides that a document purporting to be 
a record of evidence shall be presumed to be genuine, that 
statements made as to the circumstances under which it was 
taken shall be presumed to be true, and the evidence to 
have been duly taken. The result of these sections taken to- 
gether is that when proof of evidence given on previous occa- 
sions is admissible, it may be proved by the production of the 
record or a certified copy (see Section 76). 

The sections as to judgments (40, 41) designedly omit to judgments 
deal with the question of the effect of judgments in preventing "g^'J^'^' 
further proceedings in regard of the same matter. The law 
upon this subject is to be found in Section 2 of the Code of 
Civil Procedure, and in Section of 460 the Code of Criminal 
Procedure. The cases which the Evidence Act provides for 
are cases in which the judgment of a court is in the nature of 
a law, and creates the right which it affirms to exist. 

The opinions of any persons, other than the judge by whom Opinions, 
the fact is to be decided, as to the existence of facts in issue or 



when mi- 

relevant facts are, as a rule, irrelevant to the decision of the 
cases to which they relate, for the most obvious reasons. To 
show that such and such a person thought that a crime had 
been committed or a contract made would either be to show 
nothing at all, or it would invest the person whose opinion 
was proved with the character of a judge. In some few cases, 
the reasons for which are self-evident, it is otherwise. They 
are specified in Sections 45 — 51. 

The sections as to character require little remark. Evidence 
of character is, generally speaking, only a makeweight, 
though there are two classes of cases in which it is highly 
important :— 

(1) Where conduct is equivocal, or even presumably criminal 
In this case evidence of character may explain conduct and 
rebut the presumptions which it might raise in the absence of 
such evidence. A man is found in possession of stolen goods. 
He says he found them and took charge of them to give them 
to the owner. If he is a man of very high character this 
may be believed. 

(2) When a charge rests on the direct testimony of a single 
witness, and on the bare denial of it by the person charged. 
A man is accused of an indecent assault by a woman with 
whom he was accidentally left alone. He denies it. Here a 
high character for morality on the part of the accused person 
would be of great importance. 




M the preceding pages I have stated and illustrated the theory Chap. v. 
of iudicial evidence on which the Evidence Act is based. I ^° 't*^'" 

'' ence to 

have but little to add to that explanation. The Act. speaks English 
for itself. No labour was spared to make its provisions 
complete and distinct. As the first section repeals all 
unwritten rules of evidence, and as the Act itself supplies a 
distinct body of law upon the subject, its object would be de- 
feated by elaborate references to English cases. In so far as it is 
obscure or incomplete, the judges and the Legislature are its 
proper critics. If it is turned iato an abridgment of the law 
which it was meant to replace, it will be injurious instead of 
being useful to those for whom it was intended. 

I shall accordingly content myself with a verj' short descrip- 
tion of the contents of the remainder of the Act, referring for 
a full explanation of the matter to the Act itself 

The general scheme of Part II., which relates to Proof and Scheme of 

Part II. 

consists of four chapters, containing forty-five sections, may be 
expressed iu the following propositions : — 

1. Certain facts are so notorious in themselves, or are stated Judicial 


in so authentic a manner in well-known and accessible publi- 
cations, that they require no proof. The court, if it does not 
know them, can inform itseK upon them without formally 
taking evidence. These facts are said to be judicially noticed. 

2. All facts except the contents of documents may be proved 9'"'^' ^^''" 

•> '■ dence. 

by oral evidence, which must in aU cases be direct. That is, 
it must consist of a declaration by the witness that he per- 
ceived by his own senses the fact to which he testifies. 



Documentary Evidence. 

Chap. IV, 

when ex- 

3. The contents of documents must be proved either by 
the production of the document, which is called primary 
evidence, or by copies or oral accounts of the contents, which 
are called secondary evidence. Primary evidence is required 
as a rule, but this is subject to seven important exceptiojls in 
which secondary evidence may be given. The most important 
of these are (1) cases in which the document is in the posses- 
sion of the adverse party, in which case the adverse party 
must in general (though there are several exceptions) have 
notice to produce the document before secondary evidence of 
it can be given. 

And (2) cases in which certified copies of public documents 
are admissible in place of the documents themselves. 

4. Many classes of documents which are defined in the act, 
are presumed to be what they purport to be, but this pre- 
sumption is liable to be rebutted. Two sets of presumptions 
will sometimes apply to the same document. For instance 
what purports to be a certified copy of a record of evidence is 
produced. It must by Section 76 be presumed to be an 
accurate copy of the record of evidence. By Section 80 the 
facts stated in the record itself as to the circumstances under 
which it was taken, e.g., that it was read OA'er to the witness 
in a language which he understood, must be presumed to be 

5. When a contract, grant, or other disposition of property 
is reduced to writing, the writing itself (or secondary evidence 
of its contents) is not only the best but is the only admissible 
evidence of the matter which it contains. It cannot be varied 
by oral evidence, except in certain specified cases. 

It is necessary in applying these general doctrines (the 
expediency of which is obvious) to practice to go into con- 
siderable detail, and to introduce provisos, exceptions, and 
qualifications which appear more intricate and difficult than 
they really are. If, however, the propositions just stated are 
once distinctly understood and borne in mind, the details will 
be easily mastered when the occasion for applying them 

Presufnptions. 131 

arises. The provisions in the Act are all made in Order to meet Chap. iv. 
real difficulties which arose iu practice in England, and which 
must of necessity arise over and over again, and give occasion 
to litigation unless they were specifically provided for before' 

One single principle runs through all the propositions Principle 
relating to documentary evidence. It is that the very object sfons^n'" 
for which writing is used is to perpetuate the memory of what "^ocumen- 
is written down, and so to furnish permanent proof of it. In dence. 
order that full effect may be given to this, two things are 
necessary, namely, that the document itself should whenever 
it is possible be put before the judge for his inspection, and 
that if it purports to be a final settlement of a previous nego- 
tiation, as in the case of a written contract, it shall be treated 
as final, and shall not be varied by word of mouth. If the 
first of these rules were not observed the benefit of writing 
would be lost. There is no use in writing a thing down 
unless the writing is read If the second rule were not 
observed people would never know when a question was 
settled, as they would be able to play fast and loose with their 

By bearing these leading principles in miud the details and 
exceptions wiU become simple. Their practical importance is 
indeed as nothing in comparison to the importance of the rules 
which they qualify. 

The third part of the Act, which contains three chapters 
(Chapters VII., VIII., and IX.) and sixty-seven sections, 
relates to the production and effect of evidence. 

Chapter VII., which relates to the burden of proof, deals Presump- 
with a subject which requires a little explanation. This is ''°°^' 
the subject of presumptions. Like most other words intro- 
duced into the law of evidence, it has various meanings, and 
it has besides a history to which ItshaH refer very shortly. 

In times when the true theory of proof' was very imper- 
fectly understood, inasmuch as physical science, by the progress 
of which that theoiy was gradually discovered, was in its 
infancy, numerous attempts were made to construct theories 

132 Presumptions. 

Chap. IV. as to the weight of evidence which should supply the wantof 
one founded on observation. In some cases this was effected 
by requiring the testimony of a certain number of witnesses 
in particular cases; such a fact must be proved by two' 
witnesses, such another by four, and so on. In other cases 
particular items of evidence were regarded as full proof, half 
full proof, proof less than half fuU, and proof more than half 

The doctrine of presumptions was closely -connected with 
this theory. Presumptions were inferences which the judges 
were directed to draw from certain states of facts in certain 
cases, and these presumptions were allowed a certain amount 
of weight in the scale of proof ; such a presumption and such 
evidence amounted to full proof, such another to half 
full, and so on. The very irregular manner in which the 
English law of evidence grew up has had, amongst other effects, 
that of making it an uncertain and difficult question how 
far the theory of presumptions, and the other theories of which 
they formed a part, affect English law, but substantially 
the result is somewhat as follows : — 

Presumptions are of four kinds according to English law. 

1. Conclusive presumptions. These are rare, but when 
they occur they provide that certain" modes of proof shall not 
be liable to contradiction. 

2. Presumptions which affect the ordinary rule as to the 
burden of proof that he who afi&rms must prove. He who 
affirms that a man is dead must usually prove it, but if he 
shows, that the man has not been heard of for seven years, he 
shifts the burden of proof on his adversary. 

3. There are certain presumptions which, though Liable to 
be rebutted, are regarded by English law as being something 
more than mere maxims, though it is by no means easy to 
say how much more. Ail instance of such a presumption 
is to be found in the rule that recent possession of stolen 
goods unexplained raises a presumption that the possessor is 
either the thief or a receiver. 

Prestiinptions. 133 

4. Bare presumptions of fact, -whieli are nothing but Chap.iv. 
arguments to which the Court attaches whatever value it 

Chapter VII. of the Evidence Act deals with this subject 
as follows : — First it lays down the general principles which 
regulate the burden of proof (sections ].01 — lOG). It then 
enumerates the cases in which the burden of proof is 
determined in particular cases, not by the relation of 
the parties to the cause, but by presumptions (sections 
107 — 111). It notices two cases of conclusive presump- 
tions, the presumption of legitimacy from birth during 
marriage (section 112), and the presumption of a valid 
cession of territory from the publication of a notifica- 
tion to that effect in the Gazette, of India, (section 113). This 
is one of several conclusive statutory presumptions which 
will be found in different parts of the statutes and Acts. 
Finally, it declares, in section 114, that the court may in all 
cases whatever draw from the facts before it whatever 
inferences it thinks just. The terms of this section are such 
as to reduce to their proper position of mere maxims which 
are to be applied to facts by the courts in their discretion, a 
large number of presumptions to which English law gives, to 
a greater or less extent, an artificial value. Nine of the most 
important of them are given by way of illustration. 

AU notice of certain general legal principles which are, 
sometimes called presumptions, but which in reality belong 
rather to the substantive law than to the law of evidence, was 
designedly omitted, not because the truth of those principles 
was denied, but because it was not considered that the 
Evidence Act was the proper place for them. The most 
important of these is the presumption, as it is sometimes 
called, that every one knows the law. The principle is far 
more correctly stated in the maxim, that ignorance of the 
law does not excuse a breach of it, which is one of the 
fundamental principles of criminal law. 
The subject of estoppels (Chapter VIII,.) differs from that 

134 Estoppels. 

Chap. IV. of presumptions in the circumstance that an estoppel is a per- 
sonal disqualification laid upon a person peculiarly circum- 
stanced from proving peculiar facts. A presumption is a 
rule that particular inferences shall be drawn from particular 
facts whoever proves them. Much of the English learning 
connected with estoppels is extremely intricate and technical, 
but this arises principally from two causes, the peculiarities 
of English special pleading, and the fact that the effect of 
prior judgments is usually treated by the English text writers 
as a branch of the law of evidence, and not as a branch of the 
law of Civil Procedure. 

The remainder of the Act consists of a reduction to express 
propositions of rules as to the examination of witnesses, 
which are well established and understood. They caU for 
no commentary or introduction, as they sufficiently explain 
their own meaning, and do not materially vary the existing 
law and practice. 






Paet I. 


Chaptek 1. — Pjrbliminaky. 

1. Short title. 
Commencement of Act. 

2. Eepeal of enactments. 

3. Interpretation Clause. 

4. " May presume." 
" Shall presume." 

" Conclusive proof." 

Chapter II.— Of the Eelevancy of Facts. 

5. Evidence may he given of facts in issue and relevant 


6. Eelevancy of facts forming part of same transaction. 

7. Facts which are occasion, cause, or effect of facts in issue. 

8. Motive preparation and previous or subsequent conduct. 

9. Facts necessary to explain or introduce relevant facts. 

10. Things said or done by conspirator in reference to 

common design. 

11. When facts not otherwise relevant become relevant. 

12. In suit for damages, facts tending to enable Court to 

determine amount are relevant. 

13. Facts relevant when right or custom is in question. 

14. Facts showing existence of state of mind, or of body or 

bodily feeling. 

138 The Indian Evidence Act, 1872. 


15. Facts bearing on question whether act was accidental or 


16. Existence of course of business, when relevant. 


17. Admission defined. 

18. Admission — 

by party to proceeding or his agent ; 
by suitor in representative character; 
by party interested in subject-matter ; 
by person from whom interest derived. 

19. Admissions by persons whose position must be proved 

as against party to suit. 

20. Admissions by persons expressly referred to by party to 


21. Proof of admissions against persons making them, and 

by or on their behalf. 

22. When oral admissions as to contents of documents are 


23. Admissions in civil cases, when relevant. 

24. Confession caused by inducement, threat, or promise, 

when irrelevant in criminal proceeding. 

25. Confession to police of&cer not to be proved. 

26. Confession by accused while in custody of police not to 

be proved against him. 

27. How much ofinformation received from accused may be 


28. Confession made after removal of impression caused by 

inducement, threat, or promise relevant. 

29. Confession otherwise relevant not to become irrelevant 

because of promise of secrecy, &c. 

30. Consideration of proved confession affecting person mak- 

ing it and others jointly under trial for some offence. 

31. Admission not conclusive proof, but may estop. 

The Indian Evidence Act, 1872.. 139 

Statements by Persons who cannot be called as Witnesses. 


32. Cases in which statement of relevant fact by person who 
is dead or cannot be found, &c., is relevant. 
When it relates to cause of death ; 
or is made in course of business 
or against interest of maker ; 
or gives opinion as to public right or custom, or 

matters of general interest ; 
or relates to existence of relationship ; 
or is made in will or deed relating to family affairs ; 
or in document relating to transaction mentioned 

in section 13, clause (a) ; 
or is made by several persons, and expresses feel- 
ings relevant to matter in question. 

33. Eelevancy of certain evidence for proving, in subse- 

quent proceeding, the truth of facts therein stated. 

Statements made undee Special Circumstances. 

34. Entries in books of account when relevant. 

35. Eelevancy of entry in public record, made in perform- 

ance of duty. 

36. Eelevancy of statements in maps, charts, and plans. 

37. Eelevancy of statement as to facts of public nature, con- 

tained in certain Acts or notifications. 

38. Eelevancy of statements as to any law contained in 


How much of a Statement is to be proved. 

39. What evidence to be given when statement forms part 

of a conversation, document, book, or series of letters 
or papers. 

140 The Indian Evidence Act, 1872. 

Judgments of Coukt of Justice, when Eelevant. 


40. Previous judgments relevant to bar a second suit or 


41. Eelevancy of certain judgments in probate, &c., juris- 


42. Eelevancy and effect of judgments, orders, or decrees 

other than those mentioned in Section 41. 

43. Judgments, &c., other than those mentioned in Sections 

40 — 42, when relevant. 

44. Fraud or collusion in obtaining judgment, or incompe- 

tency of Court, may be proved. 

Opinions of Third Peksons, when relevant. 

45. Opinions of experts. 

46. Facts bearing upon opinions of experts. 

47. Opinion as to handwriting, when relevant. 

48. Opinion as to existence of right or custom, when 


49. Opinion as to usages, tenets, &c., when relevant. 

50. Opinion on relationship, when relevant. 

51. Grounds of opinion, when relevant. 

Chaeactek when Eelevant. 

52. In civil cases, character to prove conduct imputed 


53. In criminal cases, previous good character relevant. 

54. In criminal proceeding previous conviction relevant,but 

not previous bad character, except in reply. 

55. Character as affecting damages. 

The Indian Evidence Act, 1872. 141 

Paet II. 


Chapter III. — Facts which need not be peoved. 


56. Facts judicially noticeable need not be proved. 

57. Facts of whicb Court must take judicial notice. 

58. Facts admitted need not be proved. 

Chapter IV.— Of Oral Evidence. 

59. Proof of facts by oral evidence. 
GO. Oral evidence must be direct. 

Chapter V. — Of Documentary Evidence. 

61. Proof of contents of documents. 

62. Primary evidence. 

63. Secondary evidence. 

64. Proof of documents by primary evidence. 

65. Cases in which secondary evidence relating to docu- 

ments may be given. 

66. Eules as to notice to produce. 

67. Proof of signature and handwriting of person alleged 

to have signed or written document produced. 

68. Proof of execution of document required by law to be 


69. Proof where no attesting witness found. 

70. Admission of execution by party to attested document. 

71. Proof when attesting -witness denies the execution. 

72. Proof of document not required by law to be attested. 

73. Comparison of signature, writing, or seal, with others 

admitted or proved. 

Public Documents. 

74. Public documents: 

75. Private documents. 

[42 The Indian Evidence Act, 1872. 


76. Certified copies of public documents. 

77. Proof of documents by production of certified copies. 

78. Proof of other official documents. 

Presumptions as to Documents. 

79. Presumption as to genuineness of certified copies. 

80. Presumption as to documents produced as record of 


81. Presumption as to gazettes, newspapers, private Acts 

of Parliament, and other documents. 

82. Presumption as to document admissible in England 

without proof of seal or signature. 

83. Presumption as to maps or plans made by authority 

of Government. 

84. Presumption as to collections of laws and reports of 


85. Presumption as to powers of attorney. 

86. Presumption as to certified copies of foreign judicial 


87. Presumption as to books, maps, and charts. 

88. Presumption as to telegraphic messages. 

89. Presumption as to due execution, &c., of documents 

not produced. 

90. Presumption as to documents thirty years old. 

Chapter VI. — Of the Exclusion of Oeal by Documentary 

91. Evidence of terms of contracts, grants, and other dis- 

positions of property reduced to form of document. 

92. Exclusion of evidence of oral agreement. 

93. Exclusion of evidence to explain or amend ambiguous, 


94. Exclusion of evidence against application of document 

to existing facts. 

The Indian Evidence Aci, 18^2 . 143 


95. Evidence as to document unmeaning in reference to 

existing facts. 

96. Evidence as to application of language vrhicli can 

apply to one only of several persons. 

97. Evidence as to application of language to one of two 

sets of facts, to neither of which the whole correctly 

98. Evidence as to meaning of illegible characters, &c. 

99. Who may give SAadence of agreement varying terms of 

100. Saving of provisions of Indian Succession Act relating 
to wills. 

Part III. 

Chapter VII. — Of the Btjkden of Proof. 

101. Burden of proof 

102. On whom burden of proof lies. 

103. Burden of proof as to particular fact. 

104. Burden of proving fact to be proved to make evidence 


105. Burden of proving that case of accused comes within 


106. Burden of proving fact especially within knowledge. 

107. Burden of proving death of person known to have been 

aUve within thirty years. 

108. Burden of proving that person is alive who has not been 

heard of for seven years. 

109. Burden of proof as to relationship iu cases of partners, 

landlord and tenant, principal and agent. 

110. Burden of proof as to ownership. 

111. Proof of good faith in transactions where one party is in 

relation of active confidence. 

144 The Indian Evidence Act, 1872. 


112. Birth during marriage, conclusive proof of legitimacy. 

113. Proof of cession of territory. 

114. Court may presume existence of certain facts. 

Chapter VIII. — Estoppel. 

115. Estopppel. 

116. Estoppel of tenant ; 

and of licensee of person in possession. 

117. Estoppel of accepter of bill of exchange, bailee or 


Chapter IX. — Of Witnesses. 

118. "Who may testify. 

119. Dumb witnesses. 

120. Parties to civil suit, and their wives or husbands. 
Husband or wife of person under criminal trial. 

121. Judges and Magistrates. 

122. Communications during marriage. 

123. Evidence as to affairs of State. 

124. Of&cial communications. 

125. Information as to commission of offences. 

126. Professional communications. 

127. Section 126 to apply to interpreters, &c. 

128. Privilege not waived by volunteering evidence. 

129. Confidential communications with legal advisers. 

130. Production of title-deeds of witness not a party. 

131. Production of documents which another person, having 

possession, could refuse to produce. 

132. Witness not excused from answering on ground that 

answer will criminate. 

133. Accomplice. 

134. Niimber of witnesses. 

The Indian Evidence Act, 1872. 145 

Chaptee X. — Of the Examination of Witnesses. 

135. Order of production and examination of witnesses. 

136. Judge to decide as to admissibility of evidence. 

137. Examination in chief. 

138. Order of examinations. Direction of re-examination. 

139. Cross-examination of person called to produce a docu- 


140. Witnesses to character. 

141. Leading questions. 

142. When they must not be asked. 

143. When they may be asked. 

144. Evidence as to matters in writing. 

145. Cross-examination as to previous statements in writing. 

146. Questions lawful in cross-examination. 

147. When witness to be compelled to answer. 

148. Court to decide when question shall be asked and when 

witness compelled to answer. 

149. Questions not to be asked without reasonable grounds. 

150. Procedure of Court in case of question being asked 

without reasonable grounds. 

151. Indecent and scandalous questions. 

152. Questions intended to insult or annoy. 

153. Exclusion of evidence to contradict answers to ques- 

tions testing veracity. 

154. Question by party to his own witness. 

155. Impeaching credit of witness. 

156. Questions tending to corroborate evidence of relevant 

fact, admissible. 

157. Former statements of witness may be proved to corro- 

borate later testimony as to same fact. 

158. What matters may be proved in connection with proved 

statement relevant under section 32 or 33. 

146 The Indian Evidence Act, 1872. 


159. Eefreshing memory. 

When witness may use copy of document to refresh 

160. Testimony to facts stated in document mentioned in 

section 159. 

161. Eight of adverse party as to writing used to refresh 


162. Production of documents. 

Translation of documents. 

163. Giving, as evidence, of document called for and pro- 

duced on notice. 

164. Using, as evidence, of document production of which 

was refused on notice. 

165. Judge's power to put questions or order production. 

166. Power of jury or assessors to put questions. 

Chaptee XI. — Or Improper Admission and Eejection of 

167. No new trial for improper admission or rejection of 


Schedule. — Enactments repealed. 

ACT No. I. OF 1873. 

Passed by the Governoe Geneeal of India in Council. 

{Received the assent of the Governor General on the 15th 
March, 1872). 

The Indian Evidence Act, 1872. 
WHEEEAS it is expedient to consolidate, define, and amend Preamble. 
the Law of Evidence ; It is hereby enacted as follows : — 

Part I. 


Chapter I. — Preliminary. 

1. This Act may be called "The Indian Evidence Act, Short title. 

It extends to the whole of British India, and applies to all Extent, 
judicial proceedings in or before any Court, including Courts 
Martial, but not to affidavits presented to any Court or 
Officer, nor to proceedings before an arbitrator ; 

and it shall come into force on the first day of September, Com- 

■' ^ mencement' 

1872 : of Act. 

2. On and from that day the following laws shall be Repeal of 

•' ° enact- 

repealed : — ments. 

(1.) AH rules of evidence not contained in any Statute, 
Act or Eegulation in force in any part of British India : 

(2.) All such rules, laws and regulations as have acquired 
the force of law under the twenty-fifth section of ' The Indian 
Councils' Act, 1861,' in ao far as they relate to any matter 
herein provided for ; and 


The Indian Evidence Act, 1872, 






" Rele- 
vant. " 

"Facts in 

(3.) The enactments mentioned in the schedule hereto, to 
the extent specified in the third column of the said schedule. 

But nothing herein contained shall he deemed to affect 
any provision of any Statute, Act or Eegulation in force in 
any part of British India and not herehy expressly repealed. 

3. In this Act the following words and expressions are 
used in the following senses, unless a contrary intention 
appears from the context : — 

" Court " includes aU Judges and Magistrates and all per- 
sons, except arhitrators, legally authorized to take evidence. 

" ¥act " means and includes — 

(1) any thing, state of things, or relation of things, capable 
of being perceived by the senses ; 

(2) any mental condition of which any person is conscious. 


(a) That there are certain objects arranged in a certain order in a 
certain place, is a fact. 

(J.) That a man heard or saw something is a fact. 

(c.) That a man said certain words is a fact. 

((Z.) That a man holds a certain opinion, has a certain intention 
acts in good faith, or fraudulently, or uses a particular word in a par- 
ticular sense, or is or was at a specified time conscious of a particular 
sensation, is a fact. 

(e.) That a man has a certain reputation is a fact. 

One fact is said to be relevant to another when the one is 
connected with the other in any of the ways refeyred to in the 
provisions of this Act relating to the relevancy of facts. 

The expression " Facts in issue " means and includes — 

any fact from which, either by itself or in connection with 
other facts, the existence, non-existence, nature, or extent of 
any right, liability, or disability, asserted or denied in any 
suit or proceeding, necessarily follows. 

Explanation. — Whenever, under the provisions of the law 
for the time being in force relating to Civil Procedure, any 
Court records an issue of fact, the fact to be asserted or 
denied in answer to such issue, is a fact in issue. 

The Indian Evidence Act, 1872, 149 

A is accused of the murder of B. 
At his trial the following facts may be in issue : — 
^That A caused B's death. 
>That A intended to cause B's death. y ^ .;} , / 

That A had received grave and sudden provocation from B. •^ i^.'1^'-J!Im.i 

> That A, at the time of doing the act which caused B's ^death, was, 
by reason of unsoundness of mind, incapable of knowing its 

"Document" means any matter expressed or described "Docu- 
upon any substance by means of letters, figures, or marks, or 
by more than one of those means, intended to be used, or 
whicli may be used, for the purpose of recording that matter. 

A writing is a document. 

Words printed, lithographed or photographed are documents. 
A map or plan is a document. 

An inscription on a metal plate or stone is a document, 
A caricature is a document. 

" Evidence " means and includes — 

(1) all statements which the Court permits or requires to '' ^^''j 
be made before it by witnesses, in relation to matters of fact 
under inquiry ; 

such statements are called oral evidence : 

(2) all documents produced for the inspection of the 
Court ; 

all such documents are called documentary evidence. 

A fact is said to be proved when, after considering the '^Proved.'- 
matters before it, the Court either believes it to exist, or 
considers its existence so probable that a prudent man ought, 
under the circumstances of the particular case, to act upon 
the supposition that it exists. 

A fact is said to be disproved when, after considering the " Dis- 
matters before it, the Court either believes that it does not P™^^''' 
exist, or considers its non-existence so probable that a pru- 
dent man ought, under the circumstances of the particular 
case, to act upon the supposition that it does not exist. 

r^ fj. j-t' '^ir-' 


The Indian Evidence Act, 1872. 


"May pre- 


" Conclu- 

may be 
given of 
facts in 
issue and 

A fact is said not to be proved when it is neither proved 
nor disproved. 

4. Whenever it is provided by this Act that the Court 
raay presume a fact, it may either regard such fact as proved, 
unless and until it is disproved, or may call for proof of it : 

Whenever it is directed by this Act that the Court shall 
presume a fact, it shall regard such fact as proved, unless and 
until it is disproved : 

When one fact is declared by this Act to be conclusive 
proof of another, the Court shall, on proof of the one fact, 
regard the other as proved, and shall not allow evidence to 
be given for the purpose of disproving it. 

of facts 

Chapter II. — Of the Eelevancy of Facts. 

5. Evidence may be given in any suit or proceeding of the 
existence or non-existence of every fact in issue and of such 
other facts as are hereinafter declared to be relevant, and of 
no others. 

ExplauMtion. — This section shall not enable any person to 
give evidence of a fact which he is disentitled to prove by 
any provision of the law for the time being in force relating 
to Civil Procedure. 

(o.) A is tried for the mvirder of B by beating tim with a club 
with the intention of causing his death. 

At A's trial the following facts are in issue — 
A's beating B with the club. 
A's causing B's death by such a beating. 
A's intention to cause B's death. 
(6.) A suitor does not bring with him, and have in readiness for 
production at the first hearing of the case, a bond on which he 
relies. This section does not enable him to produce the bond or 
prove its contents at a subsequent stage of the proceedings, otherwise 
than in accordance with the conditions prescribed by the Code of 
Civil Procedure. 

6. Facts which, though not in issue, are so connected with 
a fact in issue as to form part of the same transaction, are 

The Indian Evidence Act, 1872, 151 

relevant, whether they occurred at the same time and place part of 
or at different times and places. sa^ron!^"' 


(a.) A is accused of the murder of B by beating him. Whatever 
was said or done by A or B or the by-standers at the beating, or so 
shortly before or after it as to form part of the transaction, is a 
relevant fact. 

(6.) A is accused of waging war against the Queen by taking part in 
armed insurrection in which property is destroyed, troops are 
attacked, and gaols are broken open. The occurrence of these facts 
is relevant, as forming part of the general transaction, though A may 
not have been present at all of them. 

(c.) A sues B for a Hbel contained in a letter forming part of a 
correspondence. Letters between the parties relating to the subject 
out of which the libel arose, and forming part of the correspondence 
it which it is contained, are relevant facts, though they do not con- 
tain the libel itself. 

((Z.) The question is, whether certain goods ordered from B were 
delivered to A. The goods were delivered to several intermediate 
persons successively. Each dehvery is a relevant fact. 

7. Facts which are the occasion, cause, or effect, immediate Facts 

or otherwise, of relevant facts, or facts in issue, or which occasion, 

constitute the state of things under which they happened, or effect oT 

which afforded an opportunity for their occurrence or trans- f^*^''^ ^'°- 
action, are relevant. 



(a.) The question is, whether A robbed B. 

The facts that, shortly before the robbery, B went to a fair with 
money in his possession, and that he showed it, or mentioned the 
fact that he had it, to third persons, are relevant. 

(6.) The question is, whether A murdered B. 

Marks on the ground, produced by a struggle at or near the place 
where the murder was committed, are relevant facts. 

(c.) The question is, whether A poisoned B. 

The state of B's health before the symptoms ascribed to poison, 
and habits of B, known to A, which afforded an opportunity for the 
administration of poison, are relevant facts. 

152 The Indian Evidence Act, 1872. 

Motive, 8. Any' fact is relevant which shows or constitutes a 

tion and motive or preparation for any fact in issue or relevant fact, 
subsequent ^^^ conduct of any party, or of any agent to any party, to 
conduct. any suit or proceeding, in reference to such suit or pro- 
ceeding, or in reference to any fact in issue therein or 
relevant thereto, and the conduct of any person an ofifence 
against whom is the subject of any proceeding, is relevant, if 
such conduct influences or is influenced by any fact in issue 
or relevant fact, and whether it was previous or subsequent 

EocplaTiation 1.— The word "conduct" in this section does 
not include statements, unless those statements accompany 
and explain acts other than statements ; but this explanation 
is not to affect the relevancy of statements under any other 
section of this Act. 

Explanation 2. — ^When the conduct of any person is 
relevant, any statement made to him or in his presence and 
hearing, which affects such conduct, is relevant. 


(a.) A is tried for the murder of B. 

The facts that A murdered 0, that B knew that A had murdered 
C, and that B had tried to extort money from A by threatening to 
make his knowledge public, are relevant. 

(6.) A sues B upon a bond for the payment of money. B denies 
the making of the bond. 

The fact that, at the time when the bond was alleged to be made, 
B required money for a particular purpose, is relevant. 

(c.) A is tried for the murder of B by poison. 

The fact that, before the death of B, A procured poison similar to 
that which was administered to B, is relevant. 

{d.) The question is, whether a certain document is the will of A. 

The facts that, not long before the date of the alleged will, A made 
inquiry into matters to which the provisions of the alleged will 
relate ; that he consulted vakils ia reference to making the will, and 
that he caused drafts of other wills to be prepared, of which he did 
not approve, are relevant. 

(e.) A is accused of a crime. 

The facts that, either before, or at the time of, or after the alleged 

The Indian Evidence Act, 1872. 153 

crime, A provided evidence whicli would tend to give to the facts of 
the case an appearance favourable to himself, or that he destroyed or 
concealed evidence, or prevented the presence or procured the 
absence of persons who might have been witnesses, or suborned 
persons to give false evidence respecting it, are relevant. 

(/.) The question is, whether A robbed B. 

The facts that, after B was robbed, C said in A's presence, ' the 
police are coming to look for the man who robbed B,' and that 
immediately afterwards A ran away, are relevant. 

(g.) The question is, whether A owes B 10,000 rupees. 

The facts that A asked C to lend him money, and that D said 
to C in A's presence and hearing, ' I advise you not to trust A, for 
he owes B 10,000 rupees, and that A went away without making 
any answer, are relevant facts. 

(?!..) The question is, whether A committed a crime. 

The fact that A absconded after receiving a letter warning him 
that inquiry was being made for the criminal, and the contents of 
the letter, are relevant. 

(i.) A is accused of a crime. 

The facts that, after the commission of the alleged crime, he ab- 
sconded, or was in possession of property or the proceeds of property 
acquired by the crime, or attempted to conceal things which were or 
might have have been used in committing it, are relevant. 

y.) The question is, whether A was ravished. 

The facts that, shortly after the alleged rape, she made a complaint 
relating to the crime, the circumstances under which, and the terms 
in which the complaint was made, are relevant. 

The fact that, without making a complaint, she said that she had 
been ravished is not relevant as conduct under this section, though 
it may be relevant 

as a dying declaration under section thirty- two, clause (one), or 

as corroborative evidence under section one hundred and fifty- 

(it.) The question is, whether A was robbed. 

The fact that, soon after the alleged robbery, he made a complaint 
relating to the offence, the circumstances under which, and the terms 
in which, the complaint was made, are relevant. 

The fact that he said he had been robbed, without making any 
complaint, is not relevant as conduct under this section, though it 
may be relevant 

as a dying declaration under section thirty-two, clause (one), or 


154 The Indian Evidence Act, 1872. 

as corroborative evidence under secbion one hundred and fifty- 

Facts ne- 9. Tacts necessarv to explain or introduce a fact in issue 

cessary to o s- 

explain or Or relevant fact, or which support or rebut an inference sug- 
relevaut gcsted by a fact in issue, or relevant fact, or which establish 
facts. jjjg i(Je]i(;ity of any thing or person whose identity is relevant, 

or fix the time or place at which any fact in issue or relevant 
fact happened, or which show the relation of parties by 
whom any such fact was transacted, are relevant in so far as 
they are necessary for that purpose. 


(a.) The question is, whether a given document is the ■will of A. 

The state of A's property and of his family at the date of the 
alleged will may be relevant facts. 

(J.) A sues B for a libel imputing disgraceful conduct to A ; B 
afl&rms that the matter alleged to be libellous is true. 

The position and relations of the parties at the time when the libel 
was published may be relevant facts as introductory to the facts in 

The particulars of a dispute between A and B about a matter un- 
connected with the alleged libel are irrelevant, though the fact that 
there was a dispute may be relevant if it affected the relations 
between A and B. 

(c.) A is accused of a crime. 

The fact that, soon after the commission of the crime, A absconded 
from his house, is relevant, under section eight, as conduct subse- 
quent to and afiected by facts in issue. 

The fact that, at the time when he left home, he had sudden and 
urgent business at the place to which he went, is relevant, as 
tending to explain the fact that he left home suddenly. 

The details of the business on which he left are not relevant, except 
in so far as they are necessary to show that the business was sudden 
and urgent. 

((i.) A sues B for inducing O to break a contract of service made 
by him with A. 0, on leaving A's service, says to A, ' I am leaving 
you because B has made me a better offer.' This statement is a 
relevant fact as explanatory of O's conduct, which is relevant as a 
fact in issue. 

(e.) A is accused of theft, is seen to give the stolen property to B, 

The Indian Evidence Act, \^']2. 155 

who is seen to give it to A's wife. B says, as lie delivers it, ' A says 
you are to hide this.' B's statement is relevant as explanatory of a 
fact which is part of the transaction. 

(/.) A is tried for a riot, and is proved to have marched at the head 
of a mob. The cries of the mob are relevant as explanatory of the 
nature of the transaction. 

10. Where there is reasonable ground to believe that two Things 
or more persons have conspired together to commit an offence done by 
or an actionable wrong, anything said, done, or written by f^^X-a. 
any one of such persons in reference to their common inten- reference 

to common 

tion, after the time when such iatention was first entertained design. 
by any one of them, is a relevant fact as against each of the 
persons believed to be so conspiring, as well for the purpose 
of proving the existence of the conspiracy as for the purpose 
of showing that any such person was a party to it. 


Keasonable ground exists for believing that A has joined in a con- 
spiracy to wage war against the Queen. 

The facts that B procured arms in Europe for the purpose of the 
conspiracy, collected money in Calcutta for a like object, D per- 
suaded persons to join the conspiracy in Bombay, B published 
writings advocating the object in view at Agra, and F transmitted 
from Delhi to G- at Cabul the money which had collected at 
Calcutta, and the contents of a letter written by H giving an account 
of the conspiracy, are each relevant, both to prove the existence of 
the conspiracy, and to prove A's complicity in it, although he may 
have been ignorant of all of them, and although the persons by whom 
they were done were strangers to him, and although they may have 
taken place before he joiaed the conspiracy or after he left it. 

11. Facts not otherwise relevant are relevant — Whenfacts 

(1) if they are inconsistent with any fact in issue or ^se°'^^'' 
relevant fact : relevant 


(2) if by themselves or in connection with other facts they relevant. 
make the existence or non-existence of any fact in issue or 
relevant fact highly probable or improbable. 

15^ The Indian Evidence Act, 1872. 


(a.) The question is, whether A committed a crime at Calcutta on 
a certain day. 

The fact that, on that day, A was at Lahore is relevant. 

The fact that, near the time when the crime was committed, A was 
at a distance from the place where it was committed, which would 
render it highly improbable, though not impossible, that he com- 
mitted it, is relevant. 

(6.) The question is, whether A committed a crime. 

The circumstances are such that the crime must have been com- 
mitted either by A, B, 0, or D. Every fact which shows that the 
crime could have been committed by no one else, and that it was not 
committed by either B, 0, or D, is relevant. 

In suits for 12. In suits in which damages are claimed, any fact which 


facts tend- Will enable the Court to determine the amount of damages 

enabk wMch Ought to be awarded is relevant. 

Court to ]^3_ "v^iiere the question is as to the existence of any right 

determine '- _ jo 

amount or custom, the following facts are relevant : — 
vant. («) Any transaction by which the right or custom in 

Facts rele- question was created, claimed, modified, recognised, asserted 
right or or denied, or which was inconsistent with its existence ; 

(b) Particular instances in which the right or custom was 

claimed, recognised, or exercised, or in which its exercise 

was disputed, asserted or departed from. 

The question is whether A has a right to a fishery. A deed con- 
ferring the fishery on A's ancestors, a mortgage of the fishery by A's 
father, a subsequent grant of the fishery by A's father, irrecon- 
cQable with the mortgage, particular instances in which A's father 
exercised the right, or in which the exerciseof the right was stopped 
by A's neighbours, are relevant facts. 

Facts 14. Facts showing the existence of any state of mind — 

exi'sTenfe ^^°^ ^^ intention, knowledge, good faith, negligence, rashness, 
of state of ill-will or good-wUl towards any particular person or showing 

mind or of . 6 

body or the existence of any state of body or bodily feelino' — are 
feeling. relevant, when the existence of any such state of mind or 
body or bodily feeling is in issue or relevant. 

custom IS 
in question 

The Indian Evidence Act, \Z']2. 157 

Explanation. — A fact relevant as showing the existence of 
a relevant state of mind must show that it exists, not 
generally, but in reference to the particular matter in question. 


(a.) A ia accused of receiving stolen goods knowing them to be 
stolen. It is proved ttat lie ■was in possession of a particular stolen 

The fact that, at the same time, he was in possession of many 
other stolen articles is relevant, as tending to show that he knew each 
and all of the^articles of which he was in possession to be stolen. 

(6.) A is accused of fraudulently delivering to another person 
a piece of counterfeit coin which, at the time when he delivered it, he 
knew to be counterfeit. 

The fact that at the time of its delivery, A was possessed of a 
number of other pieces of counterfeit coin, is relevant. 

(c.) A sues B for damage done by a dog of B's which B knew to be 

The facts that the dog had previously bitten X, T, and Z, and that 
they had made complaints to B, are relevant. 

(d.) The question is, whether A, the accepter of a biU of exchange 
knew that the name of the payee was fictitious. 

The fact that A had accepted other bills drawn in the same manner 
before they could have been transmitted to him by the payee if the 
payee had been a real person, is relevant, as showing that A knew 
that the payee was a fictitious person. 

(e.) A is accused of defaming B by publishing an imputation 
intended to harm the reputation of B. 

The fact of previous publications by A respecting B, showing iU- 
will on the part of A towards B, is relevant, as proving A's intention 
to harm B's reputation by the particular publication in question. 

The facts that there was no previous quarrel between A and B 
and that A repeated the matter complained of as he heard it, are re^ 
levant, as showing that A did not intend to harm the reputation 

(/.) A is sued by B for fraudulently representing to B that C was 
solvent, whereby B, being induced to trust 0, who was insolvent, 
suffered loss. 

The fact that, at the time when A represented C to be solvent, C 
was supposed to be solvent by his neighbours and by persons 
dealing with him, is relevant, as showing that A made the repre- 
sentation in good faith. 

158 The Indian Evidence Act, \'&'] 2. 

ig.) A is sued by B for the price of work done by B, upon a bouse 
of which A is owner, by the order of G, a contractor. 

A's defence is that B's contract was with 0. • 

The fact that A paid for the work in question is relevant, as 
proving that A did, in good faith, make over to the management 
of the work in question, so that was in a position to contract with 
B on C's own account, and not as agent for A. 

{h.) A is accused of the dishonest misappropriation of property 
which he had found, and the question is whether, when he appro- 
priated it, he believed in good faith that the real owner could not be 

The fact that public notice of the loss of the property had been 
given in the place where A was, is relevant, as showing that A did 
not in good faith believe that the real owner of the property could 
not be found. 

The fact that A knew, or had reason to believe, that the notice was 
given fraudulently by who had heard of the loss of the property 
and wished to set up a false claim to it, is relevant, as showing that 
the fact that A knew of the notice did not disprove A's good 

(i.) A is charged with shooting at B with intent to kiU him. In 
order to show A's intent, the fact of A's having previously shot at B 
may be proved. 

(J.) A is charged with sending threatening letters to B. Threaten- 
ing letters previously sent by A to B may be proved, as showing 
the intention of the letters. 

(&.) The question is, whether A has been guilty of cruelty towards 
B, his wife. 

Expressions of their feeling towards each other shortly before or 
after the alleged cruelty, are relevant facts. 

(l.) The question is, whether A's death was caused by poison. 

Statements made by A during his illness as to his symptoms are 
relevant facts. 

(m.) The question is, what was the state of A's health at the time 
when an assurance on his life was effected. 

Statements made by A as to the state of his health at or near the 
time in question, are relevant facts. 

{n.) A sues B for negligence in providing him with a carriage for 
hire not reasonably fit for use, whereby A was injured. 

The fact that B's attention was drawn on other occasions to the 
defect of that particular carriage, is relevant. 

The Indian Evidence Act, 1872. 159 

The fact that B was habitually negligent about the carriages 
which he let to hire, is irrelevant. 

(0.) A is tried for the murder of B by intentionally shooting him 

The fact that A, on other occasions, shot at B is relevant, as 
showing his intention to shoot B. 

The fact that A was in the habit of shooting at people with intent 
to murder them, is irrelevant. 

(p.) A is tried for a crime. 

The fact that he said something indicating an intention to commit 
that particular crime, is relevant. 

The fact that he said something indicating a general disposition to 
commit crimes of that class, is irrelevant. 

15. "When there is a question whether an act was acci- Facts 
dental or intentional, the fact that such act formed part of a question 
series of similar occurrences, in each of which the person ^c't^^'^ 
doing the act was concerned, is relevant. accidental 

or inten- 


(a.) A is accused of burniag down his house in order to 
obtain money for which it is iasnred. 

The facts that A lived in several houses successively, each of 
which he insured, in each of which a fire occurred, and after each 
of which fires A received payment from a different insurance 
office, are relevant, as tending to show that the fires were not 

(&.) A is employed to receive money from the debtors of B. 
It is A's duty to make entries in a book showing the amounts re- 
ceived by him. He makes an entry showing that on a particular 
occasion he received less than he really did receive. 

The question is, whether this false entry was accidental or inten- 

The fact that other entries made by A in the same book are false, 
and that the false entry is in each case in favour of A, are relevant 

(c.) A is accused of fraudulently delivering to B a counterfeit 

The question is, whether the delivery of the rupee was accidental 

The facts that, soon before or soon after the delivery to B, A 
delivered counterfeit rupees to C, D and E, are relevant, as showing 
that the delivery to B was not accidental. 


l6o The Indian Evidence Act, 1872. 

Existence 16. When there is a question whether a particular act was 
of business doiG, the existence of any course of business, according to 
when rele- -^Y^y:^ it naturally would have been done, is a relevant fact. 


(a.) The question is, whether a particular letter was despatched. 

The facts that it was the ordinary course of business for all letters 
put in a certain place to be carried to the post, and that that particu- 
lar letter was put into that place, are relevant. 

(6.) The question is, whether a particular letter reached A. The 
facts that it was posted in due course, and was not returned through 
the Dead Letter OflSce, are relevant. 


Admission 17. An admission is a statement, oral or documentary, 
defined. -wrhich Suggests any inference as to any fact in issue or rele- 
vant fact, and which is made by any of the persons, and 
imder the circumstances, hereiaafter mentioned. 
Admission 18. Statements made by a party to the proceeding, or by 
—by party ^^ agent to any such party, whom the Court regards, under 
ceedingor the circumstanccs of the case, as expressly or impliedly 

his agent ; , ... 

authorized by him to make them, are admissions, 
by suitor in Statements made by parties to suits, suing or sued in a 
tadTC ^"" representative character, are not admissions, unless they were 
character : made while the party making them held that character. 

Statements made by — 
by party (1-) psrsons who have any proprietary or pecuniary interest 

interested jj^ ^]^g subject-matter of the proceeding, and who make the 
by person statement in their character of persons so interested, or 
interest (2.) persons from whom the parties to the suit have derived 

^"^^ ' their interest in the subject-matter of the suit, 

are admissions, if they are made during the continuance of 

the interest of the persons making the statements. 
Admis- 1^- Statements made by persons whose position or liability 

sions by ^^ j^g neccssary to prove as against any party to the suit, are 
whose admissions, if such statements would be relevant as against 
must be such pei'sons in relation to such position or liability in a suit 

The Indian Evidence Aci, i8j7. i6i 

brought by or against them, and if they are made whilst the proved as 

person making them occupies such position or is subject to pf^Jyto 

such liability. si"t- 


A undertakes to collect rents for B. 
B sues A for not collecting rent due from to B. 
A denies that rent was due from to B. 

A statement by C that he owed B rent is an admission, and is a 
relevant fact as against A, if A denies that did owe rent to B. 

20. Statements made by persons to whom a party to the Admissions 
suit has expressly referred for information in reference to a elpressiyre- 
matter in dispute are admissions. ^^'^'^^^ '° ^y 

party to suit 

The question is, whether a horse sold by A to B is sound. 
A says to B — ' Go and ask 0, knows all about it.' C's statement 
is an admission. 

21. Admissions are relevant, and may be proved as against Proof of 
the person who makes them, or his representative in interest . against 
but they cannot be proved by or on behalf of the person who P^^^9^ 

J r J r making 

makes them or by his representative in interest, except in them, and 

. by or on 

the following cases : — their be- 

(1.) An admission may be proved by or on behalf of the 
person making it, when it is of such a nature that, if the 
person making it were dead, it would be relevant as between 
third persons under section thirty-two. 

(2.) An admission may be proved by or on behalf of the 
person making it, when it consists of a statement of the ex- 
istence of any state of mind or body, relevant or in issue, 
made at or about the time when such a state of mind or body 
existed, and is accompanied by conduct rendering its false- 
hood improbable. 

(3.) An admission may be proved by or on behalf of the 
person making it, if it is relevant otherwise than as an ad- 


1 62 The Indian Evidence Act, 1872. 


(a.) The question between A and B is, whether a certain 
deed is or is not forged. A affirms that it is genuine, B that it is 

A may prove a statement by B that the deed is genuine, and B may 
prove a statement by A that the deed is forged ; but A cannot prove 
a statement by himself that the deed is genuine, nor can B prove a 
statement by himself that the deed is forged. 

(6.) A, the captain of a ship, is tried for casting her away. 

Evidence is given to show that the ship was taken out of her 
proper course. 

A produces a book kept by him in the ordinary course of his 
business, showing observations alleged to have been taken by him 
from day to day, and indicating that the ship was not taken out of her 
proper course. A may prove these statements, because they would be 
admissible between third parties, if he were dead, under section thirty- 
two, clause (two). 

(c.) A is accused of a crime committed by him at Calcutta. 

He produces a letter written by himself and dated at Lahore on that 
dg^y, and bearing the Lahore post-mark of that day. 

The statement in the date of the letter is admissible, because, 
if A were dead, it would be admissible under section thirty-two, 
clause (two.) 

(d.) A is accused of receiving stolen goods knowing them to be 

He offers to prove that he refused to sell them below their 

A may prove these statements, though they are adnyssions, 
because they are explanatory of conduct influenced by facts in 

(e.) A is accused of fraudulently having in his possession counter- 
feit coin which he knew to be counterfeit. 

He offers to prove that he asked a skilful person to examine the 
coin, as he doubted whether it was counterfeit or not, and that that 
person did examine it and told him it was genuine. 

A may prove these facts for the reasons stated in the last preceding 


When oral ^^- ^^^ admissions as to the contents of a document are 

admissions not relevant, unless and until the party proposing to prove. 

tents of them shows that he is entitled to give secondary evidence of 

The Indian Evidence Act, xZ"] 2. 163 

the contents of such document under the rules hereinafter documents 

contained, or unless the genuineness of a document produced y^t!^^^' 
is in question. 

23. In civU cases no admission is relevant, if it is made Admis- 
either upon an express condition that evidence of it is not civil cases, 
to he given, or imder circumstances from which the Court ^^^" '^^'^' 
can infer that the parties agreed together that evidence of it 

should not he given. 

Explanation. — Nothing in this section shall be taken to 
exempt any barrister, pleader, attorney or vakil from giving 
evidence of any matter of which he may be compelled to give 
evidence under section one hundred and twenty-six. 

24. A confession made by an accused person is irrelevant Confession 
in a criminal proceedmg, if the making of the confession induce- ^ 
appears to the Court to have been caused by any inducement, JjJ™^'^ 
threat or promise, having reference to the charge against the promise 

. . when irre- 

accused person, proceeding from a person m authority and levant in 
sufficient, in the opinion of the Court, to give the accused p",^eed- 
person grounds, which would appear to him reasonable, for '"S- 
supposing that by making it he would gain any advantage or 
avoid any evil of a temporal nature in reference to the pro- 
ceedings against him. „ , . 

° ° Confession 

25. No confession made to a Police officer, shall be proved to Police 

. , -, J. on officer not 

as agamst a person accused 01 any onence. to be 

26. No confession made by any person whilst he is in the P^°''^^- 

. . Confession 

custody of a Police officer, unless it be made m the im- by accused 
mediate presence of a Magistrate, shall be proved as against custody of 
such person. ^°ll^ "°' 

27. Provided that, when any fact is deposed to as discovered proved 

in consequence of information received from a person accused him. 

of any offence, in the custody of a Police officer, so much of of^^i^a- 

such information, whether it amounts to a confession or not, ''^ ^f: 

' ceivedirom 

as relates distinctly to the fact thereby discovered, may be accused 

proved. proved. 

28. If such a confession as is referred to in section twenty- Confession 

. . 1 • J made after 

four is made after the impression caused by any such induce- removal of 

1 64 

The Indian Evidence Act, 1872. 

caused by 
threat, or 
not to be- 
come irre- 
levant be- 
cause of 
promise of 

tion of 
making it 
and others 
under trial 
for same 

sions not 
proof, but 
may estop. 

Cases in 
of relevant 
fact by per- 
son who is 

ment, threat or promise has, in the opinion of the Court, been 
fully removed, it is relevant. 

29. If such a confession is otherwise relevant, it does not 
become irrelevant merely because it was made under a pro- 
mise of secrecy, or in consequence of a deception practised 
on the accused person for the purpose of obtaining it, or 
when he was drunk, or because it was made ra answer to 
questions which he need not have answered, whatever may 
have been the form of those questions, or because he was not 
warned that he was not bound to make such confession, and 
that evidence of it might be given against him. 

30. When more persons than one are being tried jointly 
for the same offence, and a confession made by one of such 
persons affecting himself and some other of such persons is 
proved, the Court may take into consideration such confession 
as against such other person as well as against the person 
who makes such confession. 

(a.) A and B are jointly tried for the murder of G. It is proved 
that A said, — ' B and I murdered C The Court may consider the 
effect of this confession as against B. 

(6.) A is on his trial for the murder of 0. There is evidence to 
show that was murdered by A and B, and that B said, — ' A and I 
murdered C 

This statement may not be taken into consideration by the Court 
against A, as B is not being jointly tried. 

31. Admissions are not conclusive proof of the matters 
admitted, but they may operate as estoppels imder the pro- 
visions hereinafter contained. 

Statements by Persons who cannot be called as 

32. Statements, written or verbal, of relevant facts made 
by a person who is dead, or who cannot be found, or who has 
become incapable of giving evidence, or whose attendance 
cannot be procured without an amount of delay or expense 

The Indian Evidence Act, x?,']2. 165 

■wliicli, under the circumstances of the case, appears to the dead or 
Court unreasonable, are themselves relevant facts in the found, &c. 
following cases :— *= '^"i"^''"'- 

(1) "When the statement is made by a person as to the whenitre- 
cause of his death, or as to any of the circumstances of the cbmx of 
transaction which resulted in his death, in cases in which the ^^^^^'> 
cause of that person's death comes into question. 

Such statements are relevant whether the person who made 
them was or was not, at the time when they were made, 
under expectation of death, and whatever may be the nature 
of the proceeding in which the cause of his death comes into 

(2) When the statement was made by such person in the or is made 
ordinary course of business, and in particular when it consists business ; 
of any entry or memorandum made by him in books kept in 

the ordinary course of business, or in the discharge of pro- 
fessional duty ; or of an acknowledgment written or signed by 
him of the receipt of money, goods, securities or property of 
any kind ; or of a document used in commerce written or 
signed by him, or of the date of a letter or other document 
usually dated, written or signed by him. 

(3) When the statement is against the pecuniary or pro- or against 
prietary interest of the person making it, or when, if true, it. ^^^^If. 
would expose him or would have exposed him to a criminal 
prosecution or to a suit for damages. 

(4) When the statement gives the opinion of any such or gives 
person, as to the existence of any public right or custom or option as 
matter of public or general interest, of the existence of which, right or 
if it existed, he would have been likely to be aware, and matters' of 
when such statmeent was made before any controversy as to f^j^t . '"' 
such right, custom or matter had arisen. 

(5) When the statement relates to the existence of any orrelatesto 
relationship between persons as to whose relationship the ^f ^kt^on- 
person making the statement had special means of know- ship; iyiCr^^^ 
ledge, and when the statement was made before the question ^^ '^'^'p^^^"^ 
in dispute was raised. 


The Indian Evidence Act, 1872, 

or IS 
made in 
will or 
deed rela- 
ting to 
affairs j 

or in docu- 
ment rela- 
ting to 
in section 
13, clause 

or is made 
by several 
and ex- 
teeling re- 
levant to 
matter in 

(6) When the statement relates to the existence of any 
relationship nsetween persons deceased, and is made m any 
will or deed relating to the affairs of the family to which 
any such deceased person belonged or in any family pedigree, 
or upon any tombstone, family portrait or other thing on 
which such statements are usually made, and when such 
statement was made before the question in dispute was 

(7). When the statement is contained in any deed, will or 
other document which relates to any such transaction as is 
mentioned in section thirteen, clause {a). 

(8) When the statement was made by a number of persons 
and expressed feelings or impressions on their part relevant 
to the matter in question. 

(a.) The question is, wtether A was murdered by B ; or 
A dies of injuries received in a transaction in the course of wUch 
she was ravished. The question is, whether she was ravished by 
B; or 

The question is, whether A was killed by B under such circum- 
stances that a suit would lie against B by A's widow. 

Statements made by A as to the cause of his or her death, referring 
respectively to the murder, the rape, and the actionable wrong under 
consideration, are relevant facts. 

(6.) The question is as to the date of A's birth. 
An entry in the diary of a deceased surgeon, regularly kept in the 
course of business, stating that, on a given day, he attended A's 
mother and delivered her of a son, ia a relevant fact, 
(c.) The question is, whether A was in Calcutta on a given day. 
A statement in the diary of a deceased solicitor, regularly kept 
in the course of business, that, on a given day, the solicitor at- 
tended A at a place mentioned, in Calcutta, for the purpose of 
conferring with him upon specified business, is a relevant fact. 

(Si) The question is, whether a ship sailed from Bombay harbour 
on a given day. 

A letter written by a deceased member of a merchant's firm, by 
which she was chartered, to their correspondents in London to 
whom the cargo was consigned, stating that the ship sailed on a 
given day from Bombay harbour, is a relevant fact. 

The Indian Evidence Act, 1872. 167 

(e.) The question is, whether rent was paid to A for certain land. 

A letter from A's deceased ageflt to A, saying that he had re- 
ceived the rent on A's acoonnt, and held it at A's orders, is a 
relevant fact. 

(/.) The question is whether A and B were legally married. 

The statement of a deceased clergyman that he married them 
nnder such circumstances that the celebration would be a crime, is 

(g^ The question is, whether A, a person who cannot be found, 
wrote a letter on a certain day. The fact that a letter written by him 
is dated on that day, is relevant. 

(fe.) The question is, what was the cause of the wreck of a ship. 

A protest made by the captain, whose attendance cannot be pro- 
cured, is a relevant fact. 

(i.) The question is, whether a given road is a public way. 

A statement by A, a deceased headman of the village, that the road 
was public, is a relevant fact. 

(j.) The question is, what was the price of grain on a certain day 
in a particular market. A statement of the price, made by a de- 
ceased banya in the ordinary course of his business, is a relevant fact. 

(fc.) The question is, whether A, who is dead, was the father of B. 

A statement by A that B was his son, is a relevant fact. 

(Z.) The question is, what was the date of the birth of A. 

A letter from A's deceased father to a friend, announcing the birth 
of A on a given day, is a relevant fact. 

(m.) The question is, whether, and when, A and B were married. 

An entry in a memorandum-book by C, the deceased father of B, of 
his daughter's marriage with A on a given date, is a relevant fact. 

(w.) A sues B for a libel expressed in a painted caricature exposed 
in a shop window. The question is as to the similarity of the cari- 
cature and its libeUous character. The remarks of a crowd of spec- 
tators on these points may be proved. 

33. Evidence given by a witness in a judicial proceeding, Relevancy 
or before any person authorized by law to take it, is relevant "yi^g'j^^™ 
for the purpose of proving, in a subsequent judicial proceed- for prov- 
ing, or in a later stage of the same judicial proceeding, the sequent 
truth of the facts which it states, when the witness is dead fng.'^tL" 
or cannot be found, or is incapable of giving evidence, or is f^^^^^*^ 
kept out of the way by the adverse party, or if his presence in stated. 
cannot be obtained without rn amount of delay or expense 


The Indian Evidence Act, 1872. 

Entries in 
books of 
wiien rele- 

of entry in 
public re- 
cord, made 
in perform- 
ance of 

of state- 
ments in 
charts and 

which, under the circumstances of the case, the court con- 
siders unreasonable. 

Provided — 

that the proceeding was between the same parties or their 
representatives in interest : 

that the adverse party in the first proceeding had the right 
and opportunity to cross-examine ; 

that the questions in issue were substantially the same in 
the first as in the second proceeding. 

Explanation. — ^A criminal trial or inquiry shall be deemed 
to be a proceeding between the prosecutor and the accused 
within the meaning of this section. 

Statements made under special Circumstances. 

J 34. Entries in books of account, regularly kept in the 
course of business, are relevant whenever they refer to a 
matter into which the Court has to inquire, but such state- 
ments shall not alone be sufficient evidence to charge any 
person with liability. 


A sues B for Es. 1,000, and shows entries in the account-books 
showing B to be indebted to him to this amount. The entries are 
relevant, but are not sufficient, without other evidence, to prove the 

35. An entry in any public or other official book, register, 
or record, stating a fact in issue or relevant fact, and made 
by a public servant in the discharge of his official duty, or 
by any other person in performance of a duty specially 
enjoined by the law of the country in which such book, 
register, or record is kept, is itself a relevant fact. 

36. Statements of facts in issue or relevant facts, made in 
published maps or charts generally offered for public sale, or 
in maps or plans made under the authority of Government, 
as to matters usually represented or stated in ^uch maps, 
charts, or plans, are themselves relevant facts. 

37. "When the Court has to form an opinion as to the 

The Indian Evidence Act, i^ji. 169 

existence of any fact of a public nature, any statement of it, Relevancy 
made in a recital contained in any Act of Parliament, or in menfas to 
any Act of the Governor General of India in Council, or of ^'^^°^ 

public na- 

the Governors in Council of Madras or Bombay, or of the ture, con- 
Lieutenant-Governor in Council of Bengal, or in a notification certain 
of the Government appearing in the Gazette of India, or in ^otifica- 
the Gazette of any Local Government, or in any printed ''°"^- 
paper purporting to be the London Gazette or the Government 
Gazette of any colony or possession of the Queen, is a relevant 

38. When the Court has to form an opinion as to a law of Relevancy 
any country, any statement of such law contained in a book ments as 
purporting to be printed or published under the authority contained 
of the Government of such country and to contain any such '" '^^^ 

■^ •' books. 

law-, and any report of a ruling of the Courts of such country 
contained in a book purporting to be a report of such rulings, 
is relevant. 

How MUCH OF A Statement is to be pkoved. 

39. When any statement of which evidence is given forms what evi- 
part of a longer statement, or of a conversation or part of an ^g"*^? '° 
isolated document, or is contained in a document which forms ^''''=" 


part of a book, or of a connected series of letters or papers, forms part 
evidence shall be given of so much and no more of the state- verea't°on, 
ment, conversation, document, book, or series of letters or 'lo^nient, 

' ' book, or 

papers as the Court considers necessary in that particular series of 
case to the full understanding of the nature and effect of the papers. 
statement, and of the circumstances under which it was made. 

Judgments of Courts of Justice, when relevant. 

40. The existence of any judgment, order or decree which Previous 
by law prevents any Court from taking cognizance of a suit ielera^n" to 
or holding a trial, is a relevant fact when the question is ^'^''f ^e- 

° ^ cond suit 

whether such Court ought to take cognizance of such suit, or for trial. 
to hold such trial. 

41. A final judgment, order or decree of a competent Relevancy 

of certain 



The Indian Evidence Act, 1872, 

judgments Court, in the exercise of probate, matrimonial, admiralty or 
&c.^^uiis-^' insolvency jurisdiction, which confers upon or takes away 
diction. fpQj^ g^j^y. pgj^Qj^ a,ny legal character, or which declares any 
person to be entitled to any such character, or to be 
entitled to any specific thiug, not as against any specified 
person but absolutely, is relevant when the existence of any 
such legal character, or the title of any such person to any 
such thing, is relevant. 

Such judgment, order or decree is conclusive proof 

that any legal character, which it confers accrued at the" 
time when such judgment, order or decree came into opera- 

that any legal character, to which it declares any such 
person to be entitled, accrued to that person at the time when 
such judgment. declares it to have accrued to that person ; 

that any legal character which it takes away from any, such 
person ceased at the time from which such judgment declared 
that it had ceased or should cease ; 

and that any thing to which it declares any person to be 
so entitled was the property of that person at the time from 
which such judgment .declares that it had been or should be 
his property. 

42. Judgments, orders or decrees other than those 
mentioned in section forty-one, are relevant if they relate to 
matters of a public nature relevant to the enquiry ; but such 
judgments, orders or decrees are not conclusive proof of that 
those mea- which they state. 

tioned in -m j. i- 

section 41. niMstration. 

A sues B for trespass on his land. B alleges tlie existence of a 
pnbKc right of way over the land, which A denies. 

The existence of a decree in favour of the defendant, in a suit by 
A against for a trespass onthe same land, in which C alleged the 
existence of the same right of way, is relevant, but it is not conclusive 
proof that the right of way exists. 

43. Judgments, orders or decrees, other than those 

and effect 
of judg- 
ments or- 
ders or 
other than 


"her'ftan mentioned in sections forty, forty-one and forty-two, are 

The Indian Evidence Act, 1872. 1 7 1 

irrelevant, unless the existence of such judgment, order or those men- 
decree, is a fact in issue, or is relevant under some other seSfon™ 
provision of this Act. 40-42. 

when rele- 
Illustrations. vant. 

(a.) A and B separately sue for a libel wHch reflects upon each. 
of them. in each case says, that the matter alleged to be libellous 
is true, and the circumstances are such that it is probably true in each 
case, or in neither. 

A obtains a decree against C for damages on the ground that C 
failed to make out his justifi.cation. The fact is irrelevant as between 

(6.) A prosecutes B, for adultery, with 0, A's wife. 

B denies that C is A's wife, but the court convicts B of adultery. 

Afterwards C is prosecuted for bigamy in marrying B during A's 
lifetime. C says that she never was A's wife. 

The judgment against B is irrelevant as against 0. 

(c.) A prosecutes B for stealing a cow from him. B is convicted. 

A, afterwards, sues G for the cow, which B had sold to him before 
his conviction. As between A and C, the judgment against B is 

(d.) A has obtained a decree for the possession of land against B 
C, B's son, murders A in consequence. 

The exi3tence_of the judgment is relevant, as showing motive for a 

44. Any party to a suit or other proceeding may show that Fraud or 
any judgment, order or decree which is relevant under obtaining'" 
section forty, forty-one or fqrty-two, and which has been judgment, 
proved by the adverse party, was delivered by a Court not petency of 
competent to deliver it, or was obtained by fraud or collusion, b^pro^d 

Opinions of third Peksons, when relevant. 

45. When the Court has to form an opinion upon a point Opinions 

„ . , J • 1 , -J (. 1 1 of experts, 

of foreign law, or of science or art, or as to identity ot hand- 
writing, the opinions upon that point of persons specially., , . ,. 
skilled in such foreign law, science or art, are relev3,nt Tacts. ' '' 

Such persons are called experts. 

(a.) The question is, whether the death of A was caused by poison. 


The Indian Evidence Act, 1872. 

The opinions of experts as to the symptoms produced by the poison 
by which A is supposed to have died, are relevant. 

(6.) The question is, whether A, at the time of doing a certain act, 
was, by reason of unsoundness of mind, incapable of knowing the 
nature of the act, or that he was doing what was either wrong or 
contrary to law. 

The opinions of experts upon the question whether the symptoms 
exhibited by A commonly show unsoundness of mind, and whether 
such unsoundness of mind usually renders persons incapable of 
knowing the nature of the acts which they do, or of knowing that 
what they do is either wrong or contrary to law, are relevant. 

(c.) The question is, whether a certain document was written by 
A. Another document is produced which is proved or admitted to 
have been written by A. 

The opinion of experts on the question whether the two documents 
were written by the same person or by different persons, are relevant. 

46. Facts, not otherwise relevant, are relevant if they 

ing upon . ■' 

opinions of Support Or are inconsistent with the opinions of experts, when 
experts. ^^^j^ opinions are relevant. 

Facts bear- 

as to 

ing, when 


(a) The question is, whether A was poisoned by a certain poison. 

The fact that other persons, who were poisoned by that poison, 
exhibited certaiu symptoms which experts afBrm or deny to be the 
symptoms of that poison, is relevant. 

(6.) The question is, whether an obstruction to a harbour is 
caused by a certain sea-wall. 

The fact that other harbours similarly situated in other resnects, 
but where there were no such sea-walls, began to be obstructed at 
about the same time is relevant. 

47. When the Court has to form an opinion as to the 
person by whom any document was written or signed, the 
opinion of any person acquainted with the handwritino- of 
the person by whom it is supposed to be written or signed 
that it was or was not written or signed by that person, is a 
relevant fact. 

Explanation. — A person is said to be acquainted with the 
handwriting of another person when he has seen that person 
write, or when he has received documents purporting to be 

The Indian Evidence Act, 1872. 173 

written by tliat person in answer to documents written by 
himself or under his authority and addressed to that person, 
or when, in the ordinary course of business, documents 
purporting to be written by that person have been habitually 
submitted to him. 


The question is, wtether a given letter is in tte handwriting of A, 
a merchant in London. 

B is a merchant in Calcutta, who has written letters addressed to 
A and received letters purporting to be written by him. C is B's 
clerk, whose duty it was to examine and file B's correspondence. 
D is B's broker, to whom B habitually submitted the letters pur- 
porting to be written by A for the purpose of advising with him 

The opinions of B, and D on the question whether the letter is 
in the handwriting of A are relevant, though neither B, C nor D 
ever saw A write. 

48. When the Court has to form an opinion as to the Opinion as 

. , , . . to exist- 

existence of any general custom or right, the opmions, as to ence of 

the existence of such custom or right, of persons who would "ustom^ 

be likely to know of its existence if it existed, are relevant. '^^^^ ^^^' 
. . . y^rA. 

Uxplanation.—The expression 'general custom or right' 

includes customs or rights common to any considerable class 

of persons. 


The right of the villagers of a particular village to use the water of 
a particular well is a general right within the meaning of this section. 

49. When the Court has to form an opinion as to — Opinions 
the usages and tenets of any body of men or family, ^ages, 
the constitution and government of any religious or t™^'^' ^j^-' 

charitable foundation, or vant. 

the meaning of words or terms used in particular districts 
or by particular classes of people, 

the opinions of persons having special means of knowledge 
thereon, are relevant facts. 

50. When the Court has to form an opinion as to the Opinion 
relationship of one person to another, the opinion, expressed tionship, 


The Indian Evidence Act, 1872. 

of opinion 
when rele- 

when rele- by conduct, as to the existence of such relationship, of any 
person who, as a member of the family or otherwise, has 
special means of knowledge on the subject, is a relevant fact : 
Provided that such opinion shall not be suf&cient to prove a 
marriage in proceedings under the Indian Divorce Act, or in 
prosecutions under section four hundred and ninety-four, 
four hundred and ninety-iive, four hundred and ninety-seven 
or four hundred and ninety-eight of the Indian Penal Code. 

(a.) The question is, whether A and B were married. 

The fact that they were usually received and treated by their 
friends as married persons, is relevant. 

(6.) The question is, whether A was the legitimate son of B. The 
fact that A was always treated as such by the members of the family, 
is relevant. 

51. Whenever the opinion of any living person is rele- 
vant, the grounds on which such opinion is based are also 


An expert may give an account of experiments performed by him 
for the purpose of forming his opinion. 

Chaeactee when eelevant. 

52. In civil cases, the fact that the character of any person 
concerned is such as to render probable or improbable any 
conduct imputed to him, is irrelevant, except in so far as 
such character appears from facts otherwise relevant. 

53. In criminal proceedings, the fact that the person 
accused is of good character, is relevant. 

54. In criminal proceedings, the fact that the accused 
person has been previously convicted of any offence is rele- 
vant ; but the fact that he has a bad character is irrelevant, 
unless evidence has been given that he has a good character, 
in which case it becomes relevant. 

Eayplanation. — This section does not apply to cases in 
which the bad character of any person is itself a fact in 

In civil 
cases cha- 
racter to 
prove con- 
duct im- 
puted, irre- 
In criminal 
cases, pre- 
vious good 
In criminal 
ings pre- 
vious con- 
but not 
bad cha- 
racter, ex- 
cept in 

TJu Indian Evidence Act, xZ"] 2. 175 

55. In civil cases, the fact that the character of any person Character 
is such as to affect the amount of damages which he ought damages"^ 
to receive, is relevant. 

Explanation. — In sections iifty-two, fifty-three, fifty-four 
and fifty-five, the word ' character ' includes both reputation 
and disposition ; but evidence may be given only of general 
reputation and general disposition, and not of particular acts 
by which reputation or disposition were shown. 

176 The Indian Evidence Act, 1872. 

Paet II. 

Chaptee III. — Facts which need not be proved. 
Facts judi- 56. Xo fact of whicli the Court will take judicial notice 

daily no- 
ticeable need be proved. 

proved. ^7. The Court shall take judicial notice of the following 

Facts of facts : — 

Court must (!■) All laws Or rules having the force of law now or 

ciaf notice, heretofore in force, or hereafter to be in force, in any part of 

British India : 

(2.) AU public Acts passed or hereafter to be passed by 

Parliament, and all local and personal Acts directed by 

Parliament to be judicially noticed : 

(3.) Articles of War for Her Majesty's Army or Navy : 

(4.) The course of proceeding of Parliament and of the 

Councils for the purposes of making Laws and Eegulations 

established under the Indian Councils' Act, or any other law 

for the time being relating thereto : 

Explanation. — The word ' Parliament,' in clauses (two) and 

(four), includes — 

1. The Parliament of the United Kingdom of Great 
Britain and Ireland ; 

2. The Parliament of Great Britain ; 

3. The Parliament of England ; 

4. The Parliament of Scotland, and 

5. The Parliament of Ireland : 

(5.) The accession and the sign manual of the Sovereign 

The Indian Evidence Act, 1872. i77 

for the time being of the United Kingdom of Great Britain 
and Ireland : 

(6.) All seals of which English Courts take judicial notice : 
the seals of all the Courts of British India, and of aU Courts 
out of British India, established by the authority of the 
Governor General or any Local Government in Council: the 
seals of Courts of Admiralty and Maritime Jurisdiction and 
of Notaries Public, and all seals which any person is autho- 
rized to use by any Act of Parliament or other Act or 
Eegulation having the force of law in British India : 

(7.) The accession to office, names, titles, functions, and 
signatures of the persons filling for the time being any public 
office in any part of British India, if the fact of the appoint- 
ment to such office is notified in the Gazette, of India, or in 
the official Gazette of any Local Government : 

(8.) The existence, title, and national flag of every State or 
Sovereign recognised by the British Crown : 

(9.) The divisions of time, the geographical divisions of the 
world, and public festivals, fasts and holidays notified in the 
official Gazette : 

(10.) The territories under the dominion of the British 
Crown : 

(11.) The commencement, continuance, and termination of 
hostilities between the British Crown and any other State or 
body of persons : 

(12.) The names of the members and officers of the Court 
and of their deputies and subordinate officers and assistants, 
and also of all officers acting in execution of its process, and 
of all advocates, attornies, proctors, vakils, pleaders and other 
persons authorized by law to appear or act before it : 
(13.) The rule of the road, ct, Qe^ oyoI- oaa. 
In all these cases, and also in all matters of public history, 
literature, science or art, the Court may resort for its aid to 
appropriate books or documents of reference. 

If the Court is called upon by any person to take judicial 
notice of any fact, it may refuse to do so, unless and until 

178 TIu Indian Evidence Act, 1872. 

such person produces any such book or document as it may 
consider necessary to enable it to do so. 
Facts ad- 68. No fact need be proved in any proceeding whicli thp 
not be parties thereto or their agents agree to admit at the hearing, 
or which, before the hearing, they agree to admit by any 
writing under their hands, or which by any rule of pleading 
in force at the time they are deemed to have admitted by 
their pleadings : Provided that the Court may, in its discre- 
tion, require the facts admitted to be proved otherwise than 
by such admissions. 

Chapter IV. — Of oral Evidence. 
Proof of 59. ALL facts, except the contents of documents, may be 

oral evi- proved by oral evidence, 
ence. ^^ Q\z!^ evidence must, in all cases, whatever, be direct : 

Oral evi- _ ;> i > 7 

dencemust That is to Say — 
be direct. 

I If it refers to a fact which could be seen, it must be the 
' evidence of a witness who says he saw it ; 
i If it refers to a fact which could be heard, it must be the 
evidence of a witness who says he heard it ; 

If it refers to a fact which could be perceived by any other 
" sense or in any other manner, it must be the evidence of 
a witness who says he perceived it by that sense or in that 
; manner ; 

If it refers to an opinion or to the grounds on which that 
opinion is held, it must be the evidence of the person who 
holds that opinion on those grounds : 

Provided that the opinions of experts expressed in any 
treatise commonly offered for sale, and the grounds on which 
such opinions are held, may be proved by the production of 
such treatises if the author is dead or cannot be found, or has 
become incapable of giving evidence, or cannot be called as a 
witness without an amount of delay or expense which the 
Coiut regards as unreasonable : 

Provided also, that, if oral evidence refers to the existence 
or condition of any material thing other than a document, the 

The Indian Evidence Act, I'i'] 2. 179 

Court may, if it thinks fit, require the production of such 
material thing for its inspection. 

Chapter V. — Of documentaey Evidence. 

61. The contents of documents may be proved either by Proof of 
primary or by secondary evidence. document"!^ 

62. Primary evidence means the document itself produced Primary 
for the inspection of the Court. evidence. 

Explanation 1. — Where a document is executed in several 
parts, each part is primary evidence of the document : 

Where a document is executed in counterpart, each counter- 
part being executed by one or some of the parties only, 
each counterpart is primary evidence as against the parties 
executing it. 

Explanation 2. — Where a number of documents are all 
made by one uniform process, as in the case of printing, 
lithography, or photography, each is primary evidence of the 
contents of the rest ; but where they are all copies of a 
common original, they are not primary evidence of the con- 
tents of the original. 

A person is shown to have been in possession of a number of 
placards, all printed at one time from one original. Any one of the 
placards is primary evidence of the contents of any other, but no one 
of them is primary evidence of the contents of the original. 

63. Secondary evidence means and includes — Secondary 
(1.) Certified copies given under the provisions hereinafter 

contained ; 

(2.) Copies made from the original by mechanical processes 
which in themselves insure the accuracy of the copy, and 
copies compared with such copies ; 

(3.) Copies made from or compared with the original ; 

(4.) Counterparts of documents as agaiast the parties who 
did not execute them ; 

(5.) Oral accounts of the contents of a document given by 
some person who has himself seen it. 


i8o The Indian Evidence Act, 1872. 


(a.) A photograph of an original is secondary evidence of its 
contents, though the two have not been compared, if it is proved 
that the thing photographed was the original. 

(6.) A copy compared with a copy of a letter made by a copying 
machine is secondary evidence of the contents of the letter, if 
it be shown that the copy made by the machine was made from the 

(c.) A copy transcribed from a copy, but afterwards compared 
with the original, is secondary evidence ; but the copy not so com- 
pared is not secondary evidence of the original, although the copy 
from which it was transcribed was compared with the original. 

(i.) Neither an oral account of a copy compared with the original, 
nor an oral account of a photograph or machine-copy of the original, 
is secondary evidence of the original. 

Proof of 64. Documents must be proved by primary evidence except 

documents . ,, i ■ j-i i_- t 

by primary m the cases heremaiter mentioned. 

evidence. gg Secondary evidence may be given of the existence. 

Cases in . , ,, . 

which condition, or contents of a document in the followmg 

evidence CaseS : 

reiatmg to /^j^ N ■WTjien the Original is shown or appears to be in the 

documents ^ ' ° '-'- 

may be possession or power 

of the person against whom the document is sought to be 
proved, or 

of any person out of reach of, or not subject to, the process 
of the Court, or 

of any person legally bound to produce it, 

and when, after the notice mentioned in section sixty-six, 
such person. does not produce it; 

(5.) When the existence, condition or contents of the ori- 
gioal have been proved to be admitted in writing by the per- 
son against whom it is proved or by his representative ia 
interest ; 

(c.) When the original has been destroyed or lost, or when 
the party offering evidence of its contents cannot, for any 


The Indian Evidence Act, \%']2. i8i 

other reason not arising from his own default or neglect, pro- 
duce it in reasonable time ; 

(d) When the origiaal is of such a nature as not to be 
easily moveable ; 

(e.) When the original is a public document within the 
meaning of section seventy-four ; 

(/.) When the original is a document of which a certified 
copy is permitted by this Act, or by any other law in force 
in British India, to be given in evidence ; 

{g^ When the originals consist of numerous accounts or 
other documents which cannot conveniently be examined in 
Court, and the fact to be proved is the general result of the 
whole collection. 

In cases (a.), (c.) and (d,), any secondary evidence of the 
contents of the document is admissible. 

In case (&.), the written admission is admissible. 

In case (e.) or (/.) a certified copy of the document, but no ' 
other kind of secondary evidence is admissible. 

In case {g'), evidence may be given as to the general result 
of the documents by any person who has examined them, 
and who is skilled in the examination of such documents. 

66. Secondary evidence of the contents of the documents Rules as to 
refeixed to in section sixty-five, clause (a.), shall not be given """f^ 
unless the party proposing to give such secondary evidence 
has previously given to the party in whose possession or 
power the dociiment is,, such notice to produce it as is pre- 
scribed by law ; and if no notice is prescribed by law, then 
such notice as the Court considers reasonable under the cir- 
cumstances of the case : 

Provided that such notice shall not be required in order to 
render secondary evidence admissible in any of the following 
cases, or in any other case in which the Court thinks fit to 
dispense with it : — 

(1.) Wnen the document to be proved is itself a notice ; 

(2.) When, from the nature of the case, the adverse party 
must know that he w^l be required to produce it ; 

notice to 


The Indian Evidence Act, 1872. 

Proof of 

and hand- 
writing of 
person al- 
leged to 
or written 

Proof of 
of docu- 
ment re- 
quired by 
law to be 
where no 

of execu- 
tion by 
party to at- 
tested do- 

witness de- 
nies the 

Proof of 
not re- 
quired by 
law to be 
son of 

(3.) When it appears or is proved that the adverse party 
has obtained possession of the original by fraud or force ; 

(4.) When the adverse party or his agent has the original 
in Court ; 

(5.) When the adverse party or his agent has admitted the 
loss of the document ; 

(6.) When the person in possession of the document is out 
of reach of, or not subject to, the process of the Court. 

67. If a document is alleged to be signed or to have been 
written wholly or in part by any person, the signature or the 
handwriting of so much of the document as is alleged to be 
in that person's handwriting must be proved to be in his 

68. If a document is required by law to be attested, it 
shall not be used as evidence until one attesting witness at 
least has been called for the purpose of proving its execution, 
if there be an attesting witness alive, and subject to the pro- 
cess of the Court and capable of giving evidence. 

69. If no such attesting witness can be found, or if the 
document purports to have been executed in the United 
Kingdom, it must be proved that the attestation of one 
attesting witness at least is in his handwriting^ and that the 
signature of the person executing the document is in the 
handwriting of that person. 

70. The admission of a party to an attested document of 
its execution by himself shall be sufficient proof of its execu- 
tion as against him, though it be a document required by 
law to be attested. 

71. If the attesting witness denies or does not recollect the 
execution of the document, its execution may be proved by 
other evidence. 

72. An attested document not required by law to be 
attested may be proved as if it was unattested. 

73. In order to ascertain whether a signature, writing, or 
seal is that of the person by whom it purports to have been 
written or made, any signature, writing, or seal admitted or 

The Indian Evidence Act, \Z'] 2. 183 

proved to the satisfaction of the Court to have been written sigtiature, 
or made hythat person may be compared with the one which ^ai wfth 
is to be proved, although that signature, writing, or seal has ^-Jted m' 
not been produced or proved for any other purpose. proved. 

The Court may direct any person present in Court to write 
any words or figures for the purpose of enabling the Court to 
compare the words or figures so written with any words or 
figures alleged to have been written by such person. 

Public Documents. 

74. The following documents are public documents : — Public do- 

1. Documents forming the acts or records of the acts, cuments. 
(i.) of the sovereign authority, 

(ii.) of official bodies and tribunals, and 

(iii.) of public officers, legislative, judicial, and executive^ 
whether of British India, or of any other part of Her Ma- 
jesty's dominions, or of a foreign country. 

2. Public records kept in India of private documents. pnvate do- 

75. AU other documents are private. cuments. 

76. Every public officer having the custody of a public Certified 
document which any person has a right to inspect, shall give pXuc do- 
that person on demand a copy of it on payment of the legal cuments. 
fees therefor, together with a certificate written at the foot of 

such copy that it is a true copy of such document or part 
thereof, as the case may be, and such certificate shall be dated 
and subscribed by such officer with his name and his official 
title, and shall be sealed, whenever such officer is authorized 
by law to make use of a seal ; and such copies so certified 
shall be called certified copies. 

E^plairmUon. — Any officer who, by the exercise of official 
duty, is authorized to deliver such copies, shall be deemed to 
have the custody of such documents within the meaning of 
this section. 

Proof of 

77. Such certified copies may be produced in proof of the documents 
contents of the public documents or parts of the public docu- tion^of "'^" 
ments of which they purport to be copies. co^'i*'^'^ 

184 The Indian Evidence Act, 1872. 

Proof of 78. The following public documents may be proved as 

other p ,, 

official do- lOlloWS : — 

cuments. ^j ^ Acts, orders or notifications of the Executive Govern- 

ment of British India in any of its departments, or of any 
Local Government or any department of any Local Govern- 

by the records of the departments, certified by the heads of 
those departments respectively, 

or by any document purporting to be printed by order of 
any such Government : 

(2.) The proceedings of the Legislatures, 

by the journals of those bodies respectively, or by pub- 
lished Acts or abstracts, or by copies purporting to be printed 
by order of Government : 

(3.) Proclamations, orders or regulations issued by Her 
Majesty or by the Privy Council, or by any department of 
Her Majesty's Government, 

by copies or extracts contained in the London Gazette, or 
purporting to be printed by the Queen's printer : 

(4.) The acts of the Executive or the proceedings of the 
legislature of a foreign country, 

by journals published by their authority, or commonly 
received in that country as such, or by a copy certified under 
the seal of the country or sovereign, or by a recognition 
thereof in some public Act of the Governor General of India, 
in Council : 

(5.) The proceedings of a mimicipal body in British India, 

by a copy of such proceedings, certified by the legal keeper 
thereof, or by a printed book purporting to be published by 
the authority of such body : 

(6.) Public documents of any other class in a foreign 

by the original, or by a copy certified by the legal keeper 
thereof, with a certificate under the seal of a Notary Public, 
or of a British Consul or diplomatic agent, that the copy is 
duly certified by the officer having the legal custody of the 

The Indian Evidence Act, 1872. 185 

original, and upon proof of the character of the document 
according to the law of the foreign country. 

Peesumptions as to Documents. 

79. The Court shall presume every document purporting Presump- 

. -n 1 11 J-o tionasto 

to be a certificate, certified copy, or other document, which is genuine- 
by law declared to be admissible as evidence of any particular [Jged" "'^" 
fact, and which purports to be duly certified by any officer in '^°V^^- 
British India, or by any officer in any Native State in alliance 
with Her Majesty, who is duly authorized thereto by the 
Governor General in Council, to be genuine : Provided that 
such document is substantially in the form and purports to 
be executed in the manner directed by law in that behalf. 

The Court shall also presume that any officer by whom 
any such document purports to be signed or certified held, 
when he signed it, the official character which he claims in 
such paper. 

80. Whenever any document is produced before any Court, Presump- 
purportiag to be a record or memorandum of the evidence, or documents 
of any part of the evidence, given by a witness in a judicial as record of 
proceeding or before any officer authorized by law to take evidence, 
such evidence, or to be a statement or confession by any pri- 
soner or accused person, taken in accordance with law, and 
purporting to be signed by any Judge or Magistrate, or by 

such officer as aforesaid, the Court shall presume — 

that the document is genuine ; that any statements as to 
the circumstances under which it was taken, purporting to be 
made by the person signing it, are true, and that such evi- 
dence, statement or confession was duly taken. 

81. The Court shall presume the genuineness of every Presump- 

^ " ■' tion as to 

document purporting to be the London Gazette, or the Gazette Gazettes, 
of India, or the Government Gazette of any Local Govern- pei^^^pri- 
ment, or of any colony, dependency, or possession of the ^^%^y^__ 
British Crown, or to be a newspaper or a journal, or to be ment, and 

, other do- 
copy of a private Act of Parliament printed by the Queen s cuments. 

Printer, and of every document purporting to be a document 

1 86 

The Indian Evidence Act, 1872. 

tion as to 
in England 
proof of 
seal or 

tion as to 
maps or 
made by 
of Govern- 
tion as to 
of laws and 
reports of 

tion as to 

tion as to 
copies of 

directed by any law to be kept by any person, if such docu- 
ment is kept substantially in the form required by law and is 
produced from proper custody. 

82. When any document is produced before any Court, 
purporting to be a document which, by the law in force for 
the time being in England or Ireland, would be admissible in 
proof of any particular in any Court of Justice in England or 
Ireland, without proof of the seal, or stamp or signature au- 
thenticating it, or of the judicial or of&cial character claimed 
by the person by whom it purports to be signed, the Court 
shall presume that such seal, stamp or signature is genuine, 
and that the person signing it held, at the time when he 
signed it, the judicial or official character which he claims, 

and the document shall be admissible for the same purpose 
for which it would be admissible in England or Ireland. 

83. The Court shall presume that maps or plans pui-porting 
to be made by the authority of Government were so made, 
and are accurate ; but maps or plans made for the purposes of 
any cause must be proved to be accurate. 

84. The Court shall presume the genuineness of every book 
purporting to be printed or published under the authority of 
the Government of any country, and to contain any of the 
laws of that country, 

and of every book purporting to contain reports of decisions 
of the Courts of such country. 

85. The Court shall presume that every document purport- 
ing to be a power-of-attorney, and to have been executed 
before, and authenticated by, a Notary Public, or any Court, 
Judge, Magistrate, British Consul or Vice Consul, or repre- 
sentative of Her Majesty or of the Government of India, was 
so executed and authenticated. 

86. The Court may presume that any document purporting 
to be a certified copy of any judicial record of any country 
not forming part of Her Majesty's dominions is genuine and 
accurate, if the document purports to be certified in any man- 
ner which is certified by any representative of Her Majesty 

The Indian Evidence Act, 1872. 187 

or of the Government of India resident in sucli country to be 
the manner commonly in use in that country for the certifi- 
cation of copies of judicial records. 

87. The Court may presume that any book to which it may Presump- 
refer for information on matters of public or general interest, books^ '° 
and that any published map or chart, the statements of -which °Jf P^' '^^^ 
are relevant facts, and which is produced for its inspection, 

was written and published by the person, and at the time and 
place, by whom or at which it purports to have been written 
or published. 

88. The Court may presume that a message, forwarded Presump- 
from a telegraph office to the person to whom such message teWraph 
purports to be addressed, corresponds with a message delivered messages, 
for transmission at the office from which the message pur- 
ports to be sent ; but the Court shall not make any presump- 
tion as to the person by whom such message was delivered 

for transmission. 

89. The Court shall presume that every document, called Presump- 

tion as to 
for and not produced after notice to produce, was attested, due execu- 

stamped and executed in the manner rec[uired by law. of docu- ' 

90. Where any document, purporting or proved to be thirty ""^"'^ not 
years old, is produced from any custody which the Court in Presump- 
the particular case considers proper, the Court may presume documents 
that the signature and every other part of such document, '^""ty years 
which purports to be in the handwriting of any particular 
person, is in that person's handwriting, and, in the case of a 
document executed or attested, that it was duly executed and 
attested by the persons by whom it purports to be executed 

and attested. 

Explanation. — Documents are said to be in proper custody 
if they are in the place in which, and under the care of the 
person with whom they would naturally be; but no cus- 
tody is improper if it is proved to have had a legitimate origin, 
or if the circumstances of the particular case are such as to 
render such an origin probable. 

This explanation applies also to section eighty-one. 

1 88 The Indian Evidence Act, 1872. 


(a) A has been in possession of landed property for a long time. 
He produces from his custody deeds relating to the land showing his 
title to it. The custody is proper. 

(6.) A produces deeds relating to landed property of which he is the 
mortgagee. The mortgagor is in possession. The custody is proper. 

(c.) A, a connection of B, produces deeds relating to lands in B's 
possession, which were deposited with him by B for safe custody. 
The custody is proper. 

Chapter VI. — Of the Exclusion of deal by documentary 

Evidence 91. When the terms of a contract, or of a grant, or of any 

of terms of , . . 

contracts. Other disposition of property, have been reduced to the form 
^hefdi^- °^ ^ document, and in all cases in which any matter is required 
positions of by law to be reduced to the form of a document, no evidence 

property " 

reduced to shaU be given in proof of the terms of such contract, grant or 
document, other disposition of property, or of such matter, except the 
document itself, or secondary evidence of its contents in cases 
in which secondary evidence is admissible under the provi- 
sions hereinbefore contained. 

Exception 1. — When a public officer is required by law to 
be appointed in writing, and when it is shown that any par- 
ticular person has acted as such officer, the writing by which 
he is appointed need notb^^vjd^^^^ ^ ^,^^ j^^^ 

Exception 2. — Wills -wTiAef-tbe-India a Success i on Act m ay 
be proved by the probate. 

Explanation 1. — This section applies equally to cases in 
which the contracts, grants or dispositions of property referred 
to are contained in one document, and to cases in which 
they are contained in more documents than one. 

Explanation 2. — Where there are more originals than one, 
one original only need be proved. 

Explanation 3. — The statement, in any document whatever, 
of a fact other than the facts referred to in this section, shall 
not preclude the admission of oral evidence as to the same 

The Indian Evidence Act, 1872. 189 


(as.) If a contract be contained in several letters, all the letters in 
which it is contained must be proved. 

(6.) If a contract is contained in a bill of exchange, the bUl of ex- 
change must be proved. 

(c.) If a bill of exchange is dravra in a set of three, one only need 
be proved, 

(d.) A contracts, in writing, with B, for the delivery of indigo 
upon certain terms. The contract mentions the fact that B had paid 
A the price of other indigo contracted for verbally on another occa- 

Oral evidence is offered that no payment was made for the other 
indigo. The evidence is admissible. 

(e.) A gives B a receipt for money paid by B. 

Oral evidence is offered of the payment. 

The evidence is admissible. 

92. When the terms of any such contract, grant or other Exclusion 
disposition of property, or any matter required by law to be of oral 
reduced to the form of a document, have been proved accord- agreement. 
ing to the last section, no evidence of any oral agreement or 
statement shall be admitted, as between the parties to any 
such instrument or their representatives in interest, for the 
purpose of contradicting, varying, adding to, or subtracting 
from, its terms : 

Proviso. (1.) — ^Any fact may be proved which would inva- 
lidate any document, or w'hich would entitle any person to 
any decree or order relating thereto ; such as fraud, intimida- 
tion, illegality, want of due execution, want of capacity in 
any contracting party, want «)f failure of consideration, or (r/ 
mistake in fact or law. 

Proviso (2.) — The existence of any separate oral agreement 
as to any matter on which a document is silent, and which is 
not inconsistent with its terms, may be proved. In consider- 
ing whether or not this proviso applies, the Court shall have 
regard to the degree of formality of the document. 

Proviso (3.) — The existence of any separate oral agreement, 
constituting a condition precedent to the attaching of any 

^90 The Indian Evidence Act, i^T 2. 

obligation under any such contract, grant or disposition of 
property, may be proved. 

Proviso (4.) — The existence of any distinct subsequent oral 
agreement to rescind or modify any such contract^ grant or 
disposition of property, may be proved, except in cases in 
which such contract, grant or disposition of property is by 
law required to be in writing, or has been registered accord- 
ing to the law in force for the time being as to the registra- 
tion of documents. 

Proviso (5.) — Any usage or custom by which incidents not 
expressly mentioned in any contract are usually annexed to 
contracts of that description, may be proved : Provided that 
the annexing of such incident would not be repugnant to, or 
inconsistent with, the express terms of the contract. 

Proviso (6.) — Any fact may be proved which shows in 
what manner the language of a document is related to exist- 
ing facts. 


(a.) A policy of insurance is effected on goods 'in ships from 
Calcutta to London.' The goods are shipped ia a particular ship 
which is lost. The fact that that particular ship was orally excepted 
from the policy, cannot be proved. 

(6.) A agrees absolutely in writing, to pay B Es. 1,000 on the first 
of March, 1873. The fact that, at the same time, an oral agreement 
was made that the money should not be paid till the thirty-first 
March, cannot be proved. 

(c.) An estate called ' the Bampur tea estate ' is sold by a deed 
which contains a map of the property sold. The fact that land not 
included in the map had always been regarded as part of the estate 
and was meant to pass by the deed, cannot be proved. 

{d.) A enters into a written contract with B to work certain mines, 
the property of B, upon certain terms. A was induced to do so by a 
misrepresentation of B as to their value. This feet may be proved. 

(e.) A institutes a suit against B for the specific performance of a 
contract, and also prays that the contract may be reformed as to one 
of its provisions, as that provision was inserted in it by mistake. A 
may prove that such a mistake was made as would by law entitle him 
to have the contract reformed. 

The Indian Evidence Act, 1872. igi 

(/.) A orders goods of B by a letter in which nothing is said as 
to the time of payment, and accepts the goods on delivery. B sues 
A for the price. A may show that the goods were supplied on credit 
for a term still unexpired. 

(gi.) A sells B a horse and verbally warranis him sound. A gives 
B a paper in these words : ' Bought of A a horse for Rs. 500.' B 
may prove the verbal warranty. 

(fe.) A hires lodgings of B, and gives B a card on which is written f 
— ' Eooms, Ks. 200 a month.' A may prove a verbal agreement that 
these terms were to include partial board. 

A hires lodgings of B foy a year, and a regularly stamped agreement, ' 
drawn up by an attorney, is made between them. It is silent on the 
subject of board. A may not prove that board was included in the 
terms verbally. 

(i.) A applies to B for a debt due to A by sending a receipt for 
the money. B keeps the receipt and does not send the money. In 
a suit for the amount A may prove this. 

(_/.) A and B make a contract in writing to take effect upon the 
happening of a certain contingency. The writing is left with B who 
sues A upon it. A may show the circumstances under which it was 

93. When the language used in a document is, on its face, Exclusion 

• J- I' of evidence 

ambiguous or defective, evidence may not be given of facts to explain 
which would show its meaning or supply its defects. amb^ous 


(a.) A agrees, in writing, to sell a horse to B for 'Es. 1000, or 
Rs. 1,500.' 

Evidence cannot be given to show which price was to be given. 

(i.) A deed contains blanks. Evidence cannot be given of facts 
which would show how they were meant to be filled. I 

94. When language used in a document is plain in itself. Exclusion 
and when it applies accurately to existing facts, evidence against ap- 
may not he given to show that it was not meant to apply to document 
such facts. l^f^ 


A sells to B, by deed, • my estate at Eampur containing 100 
bighas.' A has an estate at Bampur containing 100 bighas. Evi- 
dence may not be given of the fact tbat the estate meant to be sold 
was one situated at a different place Bind of a different size. 



as to docu- 
ment un- 
in reference 
to existing 

as to appli- 
cation of 

whicli can 
apply to 
one only 
of several 
persons or 

The Indian Evidence Act, 1872. 

95. When language used in a document is plain in itself, 
but is unmeaning in reference to existing facts, evidence may- 
be given to show that it was used in a peculiar sense. 


A sells to B, by deed, ' my house in Calcutta.' 

A had no house in Calcutta, but it appears that he had a house at 
Howrah, of which B had been in possession since the execution of 
the deed. 

These facts may be proved to show that the deed related to the 
house at Howrah. 

96. When the facts are such that the language used might 
have been meant to apply to any one, and could not have 
been meant to apply to more than one, of several persons or 
things, evidence may be given of facts which show which of 
those persons or things it was intended to apply to. 


(a.) A agrees to sell to B, for Es. 1,000, ' my white horse.' A has 
two white horses. Evidence may be given of facts which show which 
of them was meant. 

(6.) A agrees to accompany B to Haidarabad. Evidence may be 
given of facts showing whether Haidarabad in the Dekkhan or Hai- 
darabad in Sindh was meant. 

97. When the language used applies partly to one set of 
existing facts, and partly to another set of existing facts, but 
the whole of it does not apply correctly to either, evidence 
may be given to show to which of the two it was meant to 



A agrees to seU to B ' my land at X in the occupation of T.' A 
has land at X, but not ia the occupation of T, and he has land in the 
occupation of T, but it is not at X. Evidence may be given of facts 
showing which he meant to sell. 

Evidence 98. Evidence may be given to show the meaning of 
asto^mean- yigg^ijje or not commonly intelligible characters, of foreign, 
illegible obsolete, technical, local, and provincial expressions, of abbre- 


&c. viations and of words used in a peculiar sense. 

as to appli- 
cation of 
to one of 
two sets of 
facts, to 
neither of 
which the 
whole cor- 
rectly ap- 

■The Indian Evidence Act, 1872. 193 


A, a sculptor, agrees to sell to B 'aU my mods.' A has both models 
and modelling tools. Evidence may be given to show which he 
meant to sell. 

99. Persons who are not parties to a document, or their Who may 
representatives in interest, may give evidence of any facts dem;e^f 
tending to show a contemporaneous agreement varying the ^7^^"' 
terms of the document. terms of 


A and B make a contract in writing that B shall sell A certain 
cotton, to be paid for on delivery. At the same time they make an 
oral agreement that three months' credit shall be given to A. This 
conld not be shown as between A and B, but it might be shown by 
C, if it affected his interests. 

100. Nothing in this chapter contained shall he taken to Saving of 
afifect any of the provisions of the Indian Succession Act of Indian^ 
(X. of 1865) as to the construction of wills. Success- 

^ ' sion Act 

to wills. 


The Indian Evidence Act, iS/i. 

Part III. 

Burden of 

On whom 
burden of 
proof lies. 

Chapter VII. — Of the Btjeden of Proof. 

101. Whoever desires any Court to give judgment as to 
any legal right or liability dependent on the existence of 
facts -which he asserts, must prove that those facts exist. 

When a person is bound to prove the existence of any 
fact, it is said that the burden of proof lies on that person. 


(a.) A desires a Court to give judgment that B shall be punished 
for a crime which A says B has committed. 

A must prove that B has committed the crime. 

(J) A desires a Court to give judgment that he is entitled to cer- 
tain land in the possession of B, by reason of facts which he asserts, 
and which B denies, to be true. 

A must prove the existence of those facts. 

102. The burden of proof in a suit or proceeding lies on 

that person who would fail if no evidence at all were given 

on either side. 


(a.) A sues B for land of which B is in possession, and which, as 
A asserts, was left to A by the will of C, B's father. 

If no evidence were given .on either side, B would be entitled to 
retain his possession. 

Therefore the burden of proof is on A. 

(&.) A sues B for money due on a bond. 

The execution of the bond is admitted, but B says that it was 
obtained by fraud, which A denies. 

If no evidence were given on either side, A would succeed, as the 
bond is not disputed and the fraud is not proved. 

Therefore the burden of proof is on B. 

The Indian Evidence Act, 1872. 195 

103. The burden of proof as to any particular fact lies on Burden of 
that person who wishes the Court to believe in its existence, plrdcufar" 
unless it is provided by any law that the proof of that fact ^^'^'■ 
shall lie on any particular person. 


(a.) A prosecutes B for theft, and wishes the Court to believe that 
B admitted the theft to 0. A must prove the admission. 

B wishes the Court to believe that, at the time in question, he was 
elsewhere. He must prove it. 

104. The burden of proving any fact necessary to l*® g ^ j „ { 
proved in order to enable any person to give evidence of any proving 

fact to be 

other fact is on the person who wishes to give such evidence, proved to 

Illustrations. evidence 

. admissible. 

(a.) A wishes to prove a dying declaration by B. A must prove 

B's death. 

(b.) A wishes to prove, by secondary evidence, the contents of a 
lost docum«it. 

A must prove that the document has been lost. 

105. When a person is accused of any offence, the burden ^^^^ °^ 
of proving the existence of circumstances bringing the case that case 
within any of the General Exceptions in the Indian Penal comes 
Code, or within any special exception or proviso contained in ^'ceptions. 
any other part of the same Code, or in any law defining the 
offence, is upon him, and the Court shall presume the absence 

of such circumstances. 


(a.) A, accused of murder, alleges that, by reason of unsoundness of 
mind, he did not know the nature of the act. 

The burden of proof is on A. 

(6.) A, accused of murder, alleges that, by grave and sudden pro- 
vocation, he was deprived of the power of self-control. 

The burden of proof is on A. 

(c.) Section three hundred and twenty-five of the Indian Penal 
Code provides, that whoever, except in the case provided for by sec- 
tion three hundred and thirty-five, voluntarily causes grievous hurt, 
shall be subject to certain punishments. 

A is charged with voluntarily causing grievous hurt under section 
three hundred and twenty-five. 

196 The Indian Evidence Act, 1874. 

The burden of proving the circumstances, bringing the case under 
section three hundred and thirty-five, lies on A. 

Burden of 106. "When any fact is especially within the knowledge of 
fact especi- ^ny person, the burden of proving that fact is upon him. 

ally within 

I'now- Ilhish-ations. 

(a.) When a person does an act with some intention other than 
that which the character and circumstances of the act suggest, the 
burden of proving that intention is upon him. 

(6.) A is charged with travelling on a railway without a ticket. 
The burden of proving that he had a ticket is on him. 

Burden of 107. When the question is whether a man is alive or dead, 

deaa"of ^T^^ it is shown that he was alive within thirty years, the burden 

known °^ proving that he is dead is on the person who af&rms it. 

have been 108. When the question is whether a man is alive or dead, 

in thirty and it is proved that he has not been heard of for seven 

B^^^" f y®^^^ ^y t^ose who would naturally have heard of him if he 

proving had been alive, the burden of proving that he is alive is on 

that person , i i ju -^ 

isaiivewho ^he person who amrms it. 

been h d ^^^' ^^^^ *^^ question is whether persons are partners, 

of for seven landlord and tenant, or principal and agent, and it has been 

Burden of ^hown that they have been acting as such, the burden of 

proof as to proving that they do not stand, or have ceased to stand, to 


ship in the each other m those relationships respectively, is on the person 

cases of 

who affirms it. 

landlord HQ. When the question is whether any person is owner 

and tenant, _ _ ^ •' ^ 

principal of anything of which he is shown to be in possession, the 

Burden of l^i"^*i6n of proving that he is not the owner is on the person 

proof as to -vybo affirms that he is not the owner, 

Proof of 111- Where there is a question as to the good faith of a 

good faith transaction between parties, one of whom stands to the other 
tions where in a position of active confidence, the burden of proving the 
is in rela- good faith of the transaction is on the party who is in a posi- 

acti've con *^°^ °^ active confidence. • 

fidence. Illustrations. 

(a.) The good faith of a sale by a client to an attorney is in 

question in a suit brought by a client. The burden of proving the 

good faith of the transaction is on the attorney. 

The Indian Evidence Act, \%'] 2. 197 

(5.) The good faith of a sale by a son just come of age to a father 
is in question in a suit brought by the son. The burden of proving 
the good faith of the transaction is on the father. 

112. The fact that any person was born during the con- Birth dur- 
tinuance of a valid marriage between his mother and any rw^co'n- 
man, or withia two hundred and eighty days after its dissolu- ^^l^^'^e 
tion, the mother remaining unmarried, shall be conclusive legitimacy. 
proof that he is the legitimate son of that man, unless it can 

be shown that the parties had no access to each other at any 
time when he could have been begotten. 

113. A notification in the Gazette of India that any portion Proof of 
of British territory has been ceded to any Native State, territory. 
Prince or Euler, shall be conclusive proof that a valid cession 

of such territory took place at the date mentioned in such 

114. The Cour* may presume the existence of any fact Court may 
which it thinks likely to have happened, regard being had to existence 
the common course of natural events, human conduct and '^^^^ ^'" 
public and private business in their relation to the facts of 

the particular case. 


The Court may presume — 

(a.) That a man who is in possession of stolen goods soon after the 
theft is either the thief, or has received the goods knowing them to be 
stolen, unless he can account for his possession ; 

(J.) That an accomplice is unworthy of credit, unless he is corrobo- 
rated in material particulars ; 

(c.) That a bill of exchange, accepted or endorsed, was siccepted 
or endorsed for good consideration ; 

id.) That a thing or state of things which has been shown to be in 
existence within a period shorter than that within which such things 
or states of things usually cease to exist, is still in existence ; 

(e.) That judicial and official acts have been regularly performed ; 

(/.) That the common course of business has been followed in 
particular cases ; 

{g.) That evidence which could be and is not produced would, if 
produced, be unfavourable to the person who withholds it ; 

{Ji.) That if a man refuses to answer a question which he is 

^9^ The Indian Evidence Act, 1872. 

not compelled to answer by law, the answer, if given, would be un- 
favourable to him ; 

(i.) That when a document creating an obligation is in the hands 
of the obligor, the obligation has been discharged. 

But the Court shall also have regard to such facts as the following, 
in considering whether such maxims do or do* not apply to the par- 
ticular case before it : 

As to illustration (a) — A shop-keeper has in his tiU a marked 
rupee soon after it was stolen, and cannot account for its possession 
specifically, but is continually receiving rupees in the course of his 

As to illustration (6) — A, a person of the highest character, is tried 
for causing a man's death by an act of negligence in arranging cer- 
tain machinery. B, a person of equally good character, who also 
took part in the arrangement, describes precisely what was done, and 
admits and explains the common carelessness of A and himself: 

As to illustration (6) — A crime is committed by several persons. 
A, B and C, three of the criminals, are captured on the spot and kept 
apart from each other. Bach gives an account of the crime impli- 
cating D, and the accounts corroborate each other in such a manner 
as to render previous concert highly improbable : 

As to illustration (c) — A, the drawer of a biU of exchange, was a 
man of business. B, the acceptor, was a young and ignorant person, 
completely under A's influence : 

As to illustration {&) — It is proved that a river ran in a certain 
course five years ago, but it is known that there have been floods 
since that time which might change its course : 

As to illustration (e) — A judicial act, the regularity of which is in 
question, was performed under exceptional circumstances : 

As to illustration (f) — The question is, whether a letter was received. 
It is shown to have been posted, but the usual course of the post was 
interrupted by disturbances : 

As to illustration (g)— A man refuses to produce a document which' 
would bear on a contract of small importance on which he is sued, 
but which might also injure the feelings and reputation of his family: 

As to illustration (fe) — A man refuses to answer a question which 
he is not compelled by law to answer, but the answer to it might 
cause loss to him in matters unconnected with the matters in relation 
to which he is asked : 

As to illustration {%) — A bond is in possession of the obligor, but 
the circumstances of the case are such that he may have stolen it. 

The Indian Evidence Act, 1872. 199 

Chapter VIII.^Estoppel. 

115. When one person has, by his declaration, act or Estoppel. 
omission, intentionally caused or permitted another person 

to believe a tiling to be true and to act upon such a belief, 
neither he nor his representative shall be allowed, in any suit 
or proceeding between himself and such person or his repre- 
sentative, to deny the truth of that thing. 


A intentionally and falsely leads B to believe that certain land 
belongs to A, and thereby indnces B to buy and pay for it. 

The land afterwards becomes the property of A, and A seeks to set 
aside the sale on the ground that, at the time of the sale, he had no 
title. He must not be allowed to prove his want of title. 

116. Notenant.of immoveable property, or person claiming Estoppel 
through such tenant, shall, during the continuance of the ° '^"^'"' 
tenancy, be permitted to deny that the landlord of such 
tenant had, at the beginning of the tenancy, a title to such 
immoveable property; and no person who came upon any 
immoveable property by the license of the person in the pos- ^\° ^ 
session thereof, shall be permitted to deny that such person person in 

, . 1 IT possession. 

had a title to such possession at the time when such license 
was given. 

117. No acceptor of a bUl of exchange shall be permitted Estoppel 

'■ ox of acceptor 

to deny that the drawer had authority to draw such bill or to of bill of 
endorse it ; nor shall any bailee or licensee be permitted to bailee, or 
deny that his bailor or licensor had, at the time when the ^"^™^^^- 
bailment or license commenced, authority to make such bail- 
ment or grant such license. 

Explarmikm (1.) — The acceptor of a biU of exchange may 
deny that the biU was really drawn by the person by whom 
it purports to have been drawn. 

Explanation (2.) — If a bailee delivers the goods bailed to 
a person other than the bailor, he may prove that such person 
had a right to them as against the bailor. 


The Indian Evidence Act, 1872. 


Who may 

Dumb wit- 

Parties to 
civil suit, 
and their 
wives or 
or wife of 
person un- 
der crimi- 
nal trial. 
Judges and 

Chapter IX. — Of Witnesses. 

118. All persons shall be competent to testify unless the 
Court considers that thej'^ are prevented from understanding 
the questions put to them, or from giving rational answers to 
those questions, by tender years, extreme old age, disease, 
whether of body or mind, or any other cause of the same 

Explanation. — A lunatic is not incompetent to testify, 
unless he is prevented by his lunacy from understanding the 
questions put to him and giving rational answers to them. • 

119. A witness who is unable to speak may give his evi- 
dence in any other manner in which he can make it intel- 
ligible, as by writing or by signs ; but such writing must be 
written and the signs made in open Court. Evidence so 
given shall be deemed to be oral evidence. 

120. In all civil proceedings the parties to the suit, and 
the husband or wife of any party to the suit, shall be com- 
petent witnesses. In criminal proceedings against any per- 
son, the husband or wife of such person, respectively, shall 
be a competent witness. 

121. No Judge or Magistrate shall, except upon the special 
order of some Court to which he is subordinate, be compelled 
to answer any questions as to his own conduct in Court as 
such Judge or Magistrate, or as to anything which came to 
his knowledge in Court as such Jiidge or Magistrate ; but he 
may be examined as to other matters which occurred in his 
presence while he was so acting. 

(a.) A, on his trial before the Court of Session, says that a depo- 
sition was improperly taken by B, the Magistrate. B cannot be 
compelled to answer questions as to this, except upon the special 
order of a superior Court. 

(6.) A is accused before the Court of Session of having given false 
evidence before B, a Magistrate. B cannot be asked what A said, 
except upon the special order of the superior Court. 

(c.) A is accused before the Court of Session of attempting to 

The Indian Evidence Ac^, i8y2. 201 

murder a Police ofBcer whilst on his trial before B, a Sessions Judge. 
B may be examined as to what occurred. 

122. No person who is or has been married, shall be com- communi- 
peUed to disclose any communication made to him during ^u^ng 
marriage by any person to whom he is or has been married ; mai>iage. 
nor shaU he be permitted to disclose any such communica- 
tion, unless the person who made it, or his representative in 
interest, consents, except in suits between married persons, 

or proceedings in which one married person is prosecuted for 
any crime committed against the other. 

123. No one shall be permitted to give any evidence Evidence 
derived from unpublished official records relating to any of state?'" 
affairs of State, except with the permission of the ofBcer at 

the head of the department concerned, who shall give or 
withhold such permission as he thinks fit, 

124. No public officer shall be compelled to disclose com- official 
munications made to him in official confidence, when he con- cations, 
siders that the public interests would suffer by the disclosure. 

125. No Magistrate or Police officer shall be compelled to informa- 
say whence he got any information as to the commission of c°^mis-° 
any offence. s'°" °^ 

•' offences. 

126. No barrister, attorney, pleader or vakil, shall at any profes- 
time be permitted, unless with his client's express consent, to ^"n^J.^?™ 
disclose any communication made to him in the course and tion. 

for the purpose of his employment as such barrister, pleader, 
attorney or vakil, by or on behalf of his client, or to state the 
contents or condition of any document with which he has 
become acquainted in the course and for the purpose of his 
professional employment, or to disclose any advice given by 
him to his client in the course and for the purpose of such 
employment : 

Provided that nothing in this section shall protect from 
disclosure — 

• ,Q.) Apy sich communication made in furtherance of any 
criminal purpose ; 
'^ (2.) Any fact observed by any barrister, pleader, attorney, 

202 The Indian Evidence Act, 1872. 

or vakfl, in the course of his employment as such, showing 
that any crime or fraud has heen committed since the com- 
mencement of his employment. 

It is immaterial whether the attention of such barrister, 
attorney or vakil was or was not directed to such fact by or 
on behalf of his client. 

Explanation. — The obligation stated in this section con- 
tinues after the employment has ceased. 

(fls.) A, a client, says to B, an attorney — ' I have committed for- 
gery, and I wish you to defend me.' 

As the defence of a man known to be guilty is not a criminal 
purpose, this communication is protected from disclosure. 

(6.) A, a client, says to B, an attorney — ' I wish to obtain pos- 
session of property by the use of a forged deed on which I request 
you to sue.' 

This communication, being made in furtherance of a criminal 
purpose, is not protected from disclosure. 

(p.) A, being charged with embezzlement, retains B, an attorney, 
to defend him. In the course of the proceedings, B observes that 
an entry has been made in A's account-book, charging A with the 
sum said to have been embezzled, which entry was not in the book, 
at the commencement of his employment. 

This being a fact observed by B in the course of his employment 
showing that a fraud has been committed since the commencement 
of the proceedings, it is not protected from disclosure. 
Sectioni26 127. The provisions of section one hundred and twenty- 
to apply to gj^ shall apply to interpreters, and the clerks or servants of 
ters, &c. barristers, pleaders, attorneys and vakils. 
Privilege 128. If any party to a suit gives evidence therein at his 
by'vohn-'^ own instance or otherwise, he shall not be deemed to have 

teering consented thereby to such disclosure as is mentioned in sec- 

tion one hundred and twenty-six ; and if any party to a suit 

or proceeding calls any such barrister, attorney, or vakil as a 
witness, he shall be deemed to have consented to such dis- 
closure only if he questions such barrister, attorney or vakfl. 
on matters which, but for such question, he would not be 
at liberty to disclose. 

The Indian Evidence Acf, i8y2. 203 

129. No one shall be compelled to disclose to the Court ConSden- 
any confidential communication which has taken place be- munk™ 
tween him and his legal professional adviser, unless he offers J'°°j ™"^ 
himself as a witness, in which case he may be compelled to advisers. 
disclose any such communications as may appear to the 

Court necessary to be known in order to explain any evidence 
which he has given, but no others. 

130. Ho witness who is not a party to a suit shall be com- Production 
pelled to produce his title-deeds to any property, or any deeds'^of 
document in virtue of which he holds any property as ■«''?"essnot 

J -r r J a party. 

pledgee or mortgagee, or any document the production of 
which might tend to criminate him, unless he has agreed in 
writing to produce them with the person seeking the produc- 
tion of such deeds or some person through whom he claims. 

131. No one shall be compelled to produce documents in Production 
his possession which any other person would be entitled to ments 
refuse to produce if they were in his possession, unless such ^therpe" 
last mentioned person consents to their production. son, having 


132. A witness shall not be excused from answering any could re- 
question as to any matter relevant to the matter in issue in produce. 
any suit or in any civil or criminal proceeding, upon the Witness 
ground that the answer to such question will criminate, or cused from 
may tend directly or indirectly to criminate, such witness, or on ground 
that it will expose, or tend directly or indirectly to expose, *g'j.^i']i 
such witness to a penalty or forfeiture of any kiud : criminate. 

Provided that no such answer, which a witness shall be Proviso. 
compelled to give, shall subject him to any arrest or prosecu- 
tion, or be proved against him in any criminal proceeding, 
except a prosecution for giving false evidence by such 

133. An accomplice shall be a competent witness against Accom- 
an accused person ; and a conviction is not illegal merely ^ "^^' 
because it proceeds upon the uncorroborated testimony of an 

134. No particular number of witnesses shall in any case Number of 

„ , witnesses 

be required for the proof of any fact. 

204 The Indian Evidence Act, 1872. 

Chaptee X. — Of the Examination of Witnesses. 
Order of ^35 jij^g order in ■whicli witnesses are produced and 

production ^ 

and exami- examined shall be regulated by the law and practice for the 
witnesses, time being relating to civil and criminal procedure respec- 
tively, and, in the absence of any such law, by the discretion 
of the Court. 
Judge to 136_ When either party proposes to give evidence of any 

to admissi- fact, the Judge may ask the party proposing to give the e'vi- 
evidence. dencB in what manner the alleged fact, if proved, would be 
relevant ; and the Judge shall admit the evidence if he thinks 
that the fact, if proved, would be relevant, and not otherwise. 
•. If the fact proposed to be proved is one of which evidence 
is admissible only upon proof of some other fact, such last- 
mentioned fact must be proved before evidence is given of the 
fact first mentioned, unless the party undertakes to give 
proof of such fact, and the Court is satisfied with such under- 

If the relevancy of one alleged fact depends upon another 
alleged fact being first proved, the Judge may, in his discre- 
tion, either permit evidence of the first fact to be given before 
the second fact is proved, or require evidence to be given of 
the second fact before evidence is given of the first fact. 


(a.) It is proposed to prove a statement about a relevant fact by 
a person alleged to be dead, which, statement is relevant under 
section thirty-two. 

The fact that the person is dead must be proved by the person 
proposing to prove the statement, before evidence is given of the 

(6.) It is proposed to prove, by a copy, the contents of a document 
said to be lost. 

The fact that the original is lost must be proved by the person 
proposing to produce the copy, before the copy is produced. 

(c.) A is accused of receiving stolen property knowing it to have 
been stolen. 

It is proposed to prove that he denied the possession of the 

The Indian Evidence Act, 1872. 205 

The relevancy of the denial depends on the identity of the pro- 
perty. The Court may in its discretion, either require the property 
to be identified before the denial of the possession is proved, or 
permit the denial of the possession to be proved before the property 
is identified. 

(d.) It is proposed to prove a fact (A) which is said to have been 
the cause or efiect of a fact in issue. There are several interme- 
diate facts (B, and D) which must be shown to exist before the 
fact (A) can be regarded as the cause or effect of the fact in issue. 
The Court may either permit A to be proved before B, or D 
is proved, or may require proof of B, C and D before permitting 
proof of A. 

137. The examination of a witness by the party who calls Examlna- 
him shall be called his examination-in-chief. chief. 

The examination of a witness by the adverse party shall be Cross'-ex- 
called his cross-examination. """^ '°"' 

The examination of a witness, subsequent to the cross- Re-exami- 
examination by the party who called him, shall be called his °^''°°- 

138. Witnesses shall be first examined-in-chief, then (if Order of 
the adverse party so desires) cross-examined, then (if the tions. 
party so desires) be re-examined. 

The examination and cross-examination must relate to amination. 
relevant facts, but the cross-examination need not be con- 
fined to the facts to which the witness testified on his ex- 

The re-examination shall be directed to the explanation of 
matters referred to in cross-examination ; and if new matter 
is, by permission of the Court, introduced in re-examination, 
the adverse party may further cross-examine upon that 

139. A person summoned to produce a document does not Cross-ex- 
become a witness by the mere fact that he produced it, and of person 
cannot be cross-examined unless and until he is called as a '^^'^j'^ '° 

produce a 
witness. document. 

140. Witnesses to character may be cross-examined and Witnesses 

■^ to charac- 

re-examined. ter. 

of re-ex- 


The hidian Evidence Act, 1872. 


When they 
must not be 

When they 
may be 

as to 

matters in 

141. Any question suggesting the answer which the person 
putting it wishes or expects to receive, is called a leading 

142. Leading questions must not, if objected to by the 
adverse party, be asked in an examination-in-chief, or in a 
re-examination, except with the permission of the Comt. 

The Court shall permit leading questions as to matters 
which are introductory or undisputed, or which have, in its 
opinion, been already sufficiently proved. 

143. Leading questions may be asked in cross-examina- 

144. Any witness may be asked, whUst under examination, 
whether any contract, grant or other disposition of property, 
as to which he is giving evidence, was not contained in a 
document, and if he says that it was, or if he is about to make 
any statement as to the contents of any document, which, in 
the opinion of the Court, ought to be produced, the adverse 
party may object to such evidence being given until such 
document is produced, or until facts have been proved which 
entitle the party who called the witness to give secondary 
evidence of it. 

Explanation. — ^A witness may give oral evidence of state- 
ments made by other persons about the contents of docu- 
ments if such statements are in themselves relevant facts. 


The question is, whether A assaulted B, 

deposes that he heard A say to D — ' B wrote a letter accusing me 
of theft, and I will be revenged on him.' This statement is relevant, 
as showing A's motive for the assault, and evidence may be given of 
it, though no other evidence is given about the letter. 

as to 
in writing. 

145. A witness may be cross-examined as to previous 
statements made by him in writing, or reduced into writing, 
and relevant to matters in question, without such writing 
being shown to him, or being proved ; but if it is intended 
to contradict him by the writing, his intention must, before 


The Indian Evidence Act, \%'] 2. 207 

the writing can be proved, be called to those'parts of it wbicli 
are to be used for the purpose of contradicting him. 

146. When a witness is cross-examined, he may, in Questions 
addition to the questions hereinbefore referred to, be asked 
any questions which tend 

(1) to test his veracity ; 

(2) to discover who he is, and what is his position in life ; or 

(3) to shake his credit, by injuring his character, 
although the answer to such questions might tend directly 
or indirectly to criminate him, or might expose or tend 
directly or indirectly to expose him to a penalty or for- 

147. If any such question relates to a matter relevant to 

the suit or proceeding, the provisions of section one hundred When wit- 

and thirty-two shall apply thereto. compelled 

148. If any such question relates to a matter not relevant '° ^"^^^''• 
to the suit or proceeding, except in so far as it affects the Qfsaxi. to 
credit of the witness by injuring his character, the Court "^^'"^^^gj. 
shall decide whether or not the witness shall be compelled to tion shall 

bfi asked. 

answer it, and may, if it thinks fit, warn the witness that he and when 
is not obliged to answer it. In exercising its discretion, the ^^elled 
Court shall have regard to the following considerations : — to answer. 

(1.) Such questions are proper if they are of such a nature 
that the truth of the imputation conveyed by them would 
seriously affect the opinion of the Court as to the credibility 
of the witness on the matter to which he testifies ; 

(2.) Such questions are improper if the imputation which 
they convey relates to matters so remote in time, or of such a 
character, that the truth of the imputation would not affect, 
or would affect ia a slight degree, the opinion of the Court as 
to the credibility of the witness on the matter to which he 
testifies ; 

(3.) Such questions are improper if there is a great dis- 
proportion between the importance of the imputation made 
agaiast the witness's character and the importance of his 

2o8 The Indian Evidence Act, 1872. 

(4.) The Court may, if it sees fit, draw, from the witness's 
refusal to answer, the inference that the answer if given would 
be unfavourable. 
Question 149. No such question as is referred to in section one 
asked hundred and forty-eight ought to be asked, unless the person 
reasonable asking it has reasonable grounds for thinking that the impu- 
grounds. tation wMch it conveys is weU-founded. 


(a.) A barrister is instructed by an attorney or vakil that an im- 
portant witness is a dakait. This is reasonable ground for asking 
the witness whether he is a dakait. 

(6.) A pleader is informed by a person in Court that an important 
witness is a dakait. The informant, on being questioned by the 
pleader, gives satisfactory reasons for his statement. This is a 
reasonable ground for asking the witness whether he is a dakait. 

(c.) A witness, of whom nothing whatever is known, is asked at 
random whether he is a dakait. There are here no reasonable 
*» grounds for the question. 

(d.) A witness, of whom nothing whatever is known, being ques- 
tioned as to his mode of Hfe and means of living, gives unsatisfactory 
answers. This may be a reasonable ground for asking him if he is a 

Procedure 150. If the Court is of opinion that any such question was 

case of asked without reasonable grounds, it may, if it was asked by 

question ^^^ barrister, pleader, vakil or attorney, report the circum- 

asked stances of the case to the High Court or other authority to 

reasonable wMch such barrister, pleader, vakil, or attorney is subject in 

grounds. , ■■ . n ■■ • i- • 

^ the exercise ot his proiession. 

Indecent \^\. The Court may forbid any questions or inquiries 

^"'^ , , which it regards as indecent or scandalous, although such 

scandalous ° ° 

questions, questions or inquiries may have some bearing on the ques- 
tions before the Court, unless they relate to facts in issue, or 
to matters necessary to be known in order to determine 
whether or not the facts in issue existed, 
o stions ■'•^^' -"-^^ Court shall forbid any question which appears to 
intended to it to be intended to insult or annoy, or which, though proper 
annoy. in itself, appears to the Court needlessly offensive in form. 

The Indian Evidence Act, 1872. 209 

153. When a witness has been asked and has answered Exclusion 
any question which is relevant to the inquiry only in so far to contra- 
as it tends to shake his credit by injuring his character, no ^n'swersto 
evidence shall be given to contradict him ; but if he answers questions 

° ' testing 

falsely, he may afterwards be charged with giving false veracity. 

Exception 1. — If a witness is asked whether he has been 
previously convicted of any crime and denies it, evidence 
may be given of his previous conviction. 
■ Exception 2. — If a witness is asked any question tending 
to impeach his impartiality, and answers it by denying the 
facts suggested, he may be contradicted. 


(a.) A claim against an underwriter is resisted on the ground of 

The claimant is asked whether, in a former transaction, he had not 
made a fraudulent claim. He denies it. 

Evidence is offered to show that he did make such a claim. 

The evidence is inadmissible. 

(6.) A witness is asked whether he was not dismissed from a situa- 
tion for dishonesty. He denies it. 

Evidence is offered to show that he was dismissed for dishonesty. 

The evidence is not admissible. 

(c.) A affirms that on a certain day he saw B at Lahore. 

A is asked whether he himself was not on that day at Calcutta. He 
denies it. 

Evidence is offered to show that A was on that day at Cal- 

The evidence is admissible, not as contradicting A on a fact 
which affects his credit, but as contradicting the alleged fact that 
B was seen on the day in question in Lahore. 

In each of these cases the witness might, if his denial were false, 
be charged with giving false evidence. 

{d.) A is asked whether his family has not had a blood feud 
with the family of B against whom he gives evidence. 

He denies it. He may be contradicted on the ground that the 
question tends to impeach his impartiality. 

154. The Court may, in its discretion, permit the person Questions 

by party to 


The Indian Evidence Act, 1872. 

his own 

ing credit 
of witness. 


who calls a witness to put any questions to him which might 
be put in cross-examination by the adverse party. 

155. The credit of a witness may be impeached in the 
following ways by the adverse party, or, with the consent of 
the Court, by the party who calls him : — 

(1.) By the evidence of persons who testify that they, 
from their knowledge of the witness, believe him to be un- 
worthy of credit ; 

.(2.) By proof that the witness has been bribed, or has 
nadtne offer of a bribe, or has received any other corrupt 
inducement to give his evidence ; 

(3.) By proof of former statements inconsistent with any 
part of his evidence which is liable to be contradicted ; 

(4.) "When a man is prosecuted for rape or an attempt to 
ravish, it may be shown that the prosecutrix was of generally 
immoral character. 

Explanation. — A witness declaring another witness to be 
unworthy of credit may not, upon his examination- in-chief 
give reasons for his belief, but he may be asked his reasons in 
cross-examination, and the answers which he gives cannot be 
contradicted, though, if they are false, he may afterwards be 
charged with giving false evideiice. 

tending to 


(a). A sues B for the price of goods sold and delivered to B. 

C says that lie delivered the goods to B. 

Evidence is offered to show that, on a previous occasion, he said 
that he had not delivered the goods to B. 

The evidence is admissible. 

(6.) A is indicted for the murder of B. 

says that B, when dying, declared that A had given[B the wound 
of which he died. 

Evidence is offered to show that on a previous occasion, C said 
that the wound was not given by A or in his presence. ^ 

The evidence is admissible. 

156. When a witness whom it is intended to corroborate 
gives evidence of any relevant fact, he may be questioned as 

The Indian Evidence Act, 1872, 211 

to any otlier circumstances which he observed at or near to evidence of 
the time or place at which such relevant fact occurred, if the fact™d- 
Court is of opinion that such circumstances, if proved, would ™'ssible. 
corrohorate the testimony of the witness as to the relevant 
fact which he testifies. 


A, an accomplice, gives an account of a robbery in which betook 
part. He describes various incidents unconnected with the robbery 
which occurred on his way to and from the place where it was 

Independent evidence of these facts may be given in order to 
corroborate his evidence as to the robbery itself. 

157. In order to corroborate the testimony of a witness, Former 
any former statement made by such witness relating to the of witness 
same fact, at or about the time when the fact took place, or "oved^tg 
before any authority legally competent to investigate the corrobo- 
fact, may be proved. testimony 

158. Whenever any statement, relevant under section f^ct, ^^^^ 
thirty-two or thirty-three, is proved, all matters may be What 

, . , . , T , . matters 

proved, either m order to contradict or to corroborate it, or may be 

in order to impeach or confirm the credit of the person by comiection 

whom it was made, which might have been proved if that ^"^ 

person had been called as a witness, and had denied upon statement 

cross-examination the truth of the matter suggested. under 

159. A witness may, while under examination, refresh his ^.l*^''"" 

•" ' 32 or 33. 

memory by referring to any writing made by himself at the Refreshing 
time of the transaction concerning which he is questioned, '"^°^°'7- 
or so soon afterwards that the Court considers it likely that 
the transaction was at that time fresh in his memory. 

The witness may also refer to any such writing made by 
any other person, and read by the witness within the time 
aforesaid, if when he read it he knew it to be correct. 

Whenever a witness may refresh his memory by reference When wit- 

. . "''ss may 

to any document, he may, with the permission of the Court, use copy 
refer to a copy of such document, provided the Court be ment'to 
satisfied that there is sufficient reason for the non-production ""^f"^^* 

^ memory, 

of the original. 

2 1 2 The Indian Evidence Act, 1872. 

An expert may refresh his memory by reference to pro- 
fessional treatises. 
Testimony 160. A witness may also testify to facts mentioned in any 

to facts ■' '' . 1 J J /I 

stated in such document as is mentioned m section one hunarea ana 

meXned fifty-nine, although he has no specific recollection of the 

in section f^pjjg themselves, if he is sure that the facts were correctly 
159. ' 

recorded in the document. 


A book-keeper may testify to facts recorded by him in books 
regularly kept in tbe course of business, if he knows that the books 
were correctly kept, although he has forgotten the particular trans- 
actions entered. 

Right of ig]^ ^jjy •v^rritinCT referred to under the provisions of the 

adverse ■; o 4- 

partyasto two last preceding sections must be produced and shown to 
used to the adverse party if he requires it; such party may, if he 
memory, pl^ases, cross-examine the witness thereupon. 
Production 162. A witness summoned to produce a document shall, if 
ment°s!"' ^^ ^^ iu his posscssion or power, bring it to Court, notwith- 
standing any objection which there may be to its production 
or to its admissibility. The validity of any such objection 
shall be decided on by the Court. 

. The Court, if it sees fit, may inspect the document, unless 

it refers to matters of State, or take other evidence to enable 

it to determine on its admissibility. 

Transla- jf for guch a purposc it is necessary to cause any document 

docu- to be translated, the Court may, if it thinks fit, direct the 

translator to keep the contents secret, unless the document 

is to be given in evidence : and if the interpreter disobeys 

such direction, he shall be held to have committed an offence 

under section one hundred and sixty-six of the Indian Penal 


Giving, as 163. When a party calls for a document which he has 


of docu-' given the other party notice to produce, and such document 
™lied for ^^ produced and inspected by the party calling for its pro- 

The Indian Evidence Act,' xZ"]!. 213 

duction, he is bound to give it as evidence if the party pro- and pro- 
ducing it requires him to do so. nXe.°" 

164. When a party refuses to produce a document which Using, as 


he has had notice to produce, he cannot afterwards use the of docu-' 
document as evidence without the consent of the other party dm;tion™f 
or the order of the Court. which was 

refused on 
_„ . notice. 


A sues B on an agreement and gives B notice to produce it. At 
the trial, A calls for the document and B refuses to produce it. A 
gives secondary evidence of its contents. B seeks to produce the 
document itself to contradict the secondary evidence given by A, or 
in order to show that the agreement is not stamped. He cannot do so. 

165. The Judge may, in order to discover or to obtain Judge's 
proper proof of relevant facts, ask any question he pleases, in put ques- 
any form, at any time, of any M'itness, or of the parties, about o™ej. wo- 
any fact, relevant or irrelevant, and may order the produc- duction. 
tion of any document or thing, and neither the parties nor 

their agents shall be entitled to make any objection to any 
such question or order, nor, without the leave of the Court, 
to cross-examine any witness upon any answer given in 
reply to any such question : 

Provided that the judgment must be based upon facts 
declared by this Act to be relevant, and duly proved : 

Pr&vided also that this section shall not authorize any 
Judge to compel any witness to answer any question, or to 
produce any document which such witness would be entitled 
to refuse to answer or produce under sections one hundred 
and twenty-one to one hundred and thirty-one both inclusive, 
if the question were asked or the document were called for 
by the adverse party ; nor shall the Judge ask any question 
which it would be improper for any other person to ask 
under sections one hundred and forty-eight or one hundred 
and forty-nine ; nor shall he dispense with primary evidence 
of any document, except in the cases hereinbefore excepted. 

166. In cases tried by jury or with assessors, the jury or Power of 

jury or 

214 The Indian Evidence Act, \Z']2. 

assessoreto assessors may put any questions to the witnesses, througli or 
tions^"^^' ^y leave of the Judge, which the Judge himself might put and 
which he considers proper. 

Chapter XL — Of Improper Admission and Eejectiox of 

No new ^^'^- '^'^ improper admission or rejection of evidence shaU 

tnalfor jjq^ ^g ground of itsclf for a new trial or reversal of any 

improper ° 

admission decision in any ease, if it shall appear to the Court before 

ofevi- ' which such objection is raised that, independently of the 

rtence. evidence objected to and admttied, there was sufBcient 

evidence to justify the decision, or that, if the rejected 

evidence had been received, it ought not to have varied the 


The Indian Evidence Act, 1872. 


Enactments repealed. 

[See section 2.] 

Stat. 26 Geo. 
cap. 57. 


Stat. 14 and 15 
Vic, cap. 99. 

ActXVof 1852. 

Act XIX of 1853. 

Act II of 1855 

Act XXV of 1861 

Act I of 1868. 

For the further regulation of the 
trial of persons accused of certain 
offences committed in the Kast 
Indies; for repealing so much of 
an Act, made in the twenty-fourth 
year of the reign of his present 
Majesty (intituled 'An Act for the 
better regulation and management 
of the affairs of the East India 
Company, and of the British pos- 
sessions in India, and for estahlish- 
ing n, court of judicature for the 
more speedy and effectual trial of 
persons accused of offences com- 
mitted in the East Indies') as re- 
quires the servants of the East 
India Company to deliver inven- 
tories of their estates and effects ; 
for rendering the laws more effec- 
tual against persons unlawfully 
resorting to the East Indies ; and 
for the more easy proof, in certain 
cases, of deeds and writings exe- 
cuted in Great Britain or India. 

To amend the Law of Evidence 

To amend the Law of Evidence 

To amend the Law of Evidence in 
the Civil Courts of the East India 
Company in the Bengal Presidency. 

For the further improvement of the 
Law of Evidence. 

For simplifying the Procedure of the 
Courts of Criminal Judicature not 
established by Koyal Charter. 

The General Clauses' Act, 1868 

Section thirty-eight 
so far as it relates 
to Courts of justice 
in the East Indies. 

Section eleven and 
so much of section 
nineteen as relates 
to British India. 

So much as has not 
been heretofore 

Sectito nineteen. 

So much as has not 
been heretofore 

Section two hundred 
and thirty-seven. 


seven and 


Sched. and 
Sohed. and 
Sched. and 
Sched. and 
Sched. and 

Sched. and 

Sohed. and 

Sched. and 

Exclusion of Evidence." 
















Abbreviations, meaning of, evidence admissible to show 

Acceptor of Bill of Exchange estopped from denying anthority of drawer . . . 

may deny drawing 

Accession of Sovereign of TJnited Kingdom, Court must take judicial notice of 
Accession to office, &c., of Indian public officer, when Court must take 

judicial notice of 

Accomplice, competent witness against person accused 

conviction upon evidence of, only, not illegal 
Account, books of, entries in, when relevant 

Act, application of 

commencement of 

extent of ... 

short title of 

Act of conspirator, how far a relevant fact 
See "Relevancy of statement." 

Acts, how proved 

of Parliament, of what Acts Court must take judicial notice 
private, copies of, presumption as to genuineness 


26 Geo, III., c. 57, s. 38, part of 

14 and 15 Vic, c. 99, s. 11, and part of s. 19 

Xy. of 1852 

XIX. of 1863, s. 19 

11. of 1855 

XXV. of 1861, sec. 237 ... 
I. of 1868, ss. 7 and 8 ... 
Adding to terms of written contract, &c. See 

Admissibility of communications made during marriage 122 

document produced by witness 162 

evidence of affairs of State 123 

Judge to decide as to 136 

questions tending to corroborate evidence of relevant fact 158 

Admission by party to proceeding or his agent ... 18 

person interested in subject-matter of proceeding 18 

person from whom interest derived by party to suit 18 

person whose position or liability must be proved as against 

party to suit , ... 18 

person expressly referred to for information by party to suit. . . 20 

suitor in representative character 18 

definition of ... 17 

in civil oases, when relevant 23 

may operate as estoppel 81 

not conclusive proof 31 

of evidence, improper, when no around for new trial 167 

of execution by party to attestea document 70 

oral, as to contents of documents, when relevant , 22 

proof of, against person making it, and by or on his behalf ... 21 

Admissions 17—31160- 

Admitted fact need not be proved 68 ... 


19 9 






Index to Act. 

Affairs of state, admissibility of evidence of 

Affidavits presented to Court or Oiiicer, Act not appKcable to 

Agent. Sea ' ' Principal and Agent." 

Agreement, oral, evidence of, inadmissible to vary terms of written contract, &c. 92 

Ambiguous document, exclusion of evidence to explain 

See "Language" 

Annoying questions. Court to forbid 

Answer of witness. See "Witness." 

Arbitrator, proceedings before. Act not applicable to 

Army of Her Majesty. See " Articles of War." 

Articles of War for Her Majesty's Army and Navy, Court must take judicial 

notice of 

Assessors, questions to witness by 

Attested document, not required by law to be attested, proof of 

required by law to be attested, proof of ... 6; 

Attesting witness, proof when he cannot be found, or document executed in 

the United Kingdom 

proof when he denies execution 

when execution of document must be proved by 

Attorney. Se« "Powers of Attorney." 

certain questions asked by, without reasonable grounds, may be 

reported to High Court 

communication made to, by or for client, when disclosable 

when not disclosable ... 
waiver of privilege 
Authority. See "Estoppel." 

Bad character, relevancy of, in criminal proceedings... 

Bailee estopped from denying authority of bailor 

may prove right of person to whom he delivers goods 

Bailor, authority of, estoppel of bailee from denying... 

Barrister, certain questions asked by, without reasonable grounds, may 

reported to High Court 

communication made to, by or for client, when disclosable 

when not disclosable 
waiver of privilege 
Bill of Exchange, acceptor of, estopped from denying authority of drawer 

may deny drawing 

Birth during valid marriage, when conclusive proof of legitimacy ... 

!o1?s["e of ^*''^ "'■ }^-"Kelevancyoffacts." 
Bona fides, i'ee "Good faith." 

Book of Laws, presumption as to genuineness of 

Books of Account, entries in, when relevant ... 

Books, presumption as to ... ... 

Bribe, credit of witness impeached by showing 

British India, Act extends to whole of 

laws in force in, Court must take judicial notice of 

British territories. Court must take judicial notice of 

British territory, proof of cession of 

Burden of proof 101- 

definition of 

as to asserted legal right or liability 

in suit or proceeding 

as to particular fact 

of fact necessary to be proved to make other evidence ad- 

that case of accused is within exceptions of Indian Penal 

of fact especially within knowledge 

of death of man known to have been alive within 30 years 




... 201 


... 147 

B. 92 

... 189 


... 191 


... 208 


... 147 


... 176 


... 213 


... 182 


... 182 


... 182 


... 182 


... 182 


... 208 


... 201 


... 201 


... 202 


... 174 


... 199 


... 199 


... 199 


... 208 


... 201 


... 201 


... 202 


... 199 


... 199 


... 197 


... 186 


... 168 


... 187 


... 210 


... 147 


... 176 


... 177 


... 197 




... 194 


... 194 


... 194 


... 195 


... 195 


... 195 


... 196 


... 196 

Index to Act. 


Burden of proof that man is alive who has not been heard of for 7 years 

as to relationship in case of partners 

landlord and tenant 

principal and agent 

as to ownership 

of good faith where one party stands in position of active 
Business. Su "Course of business." 




.. 196 


.. 196 

109 . 

.. 196 


.. 196 


.. 196 



Certified copies of foreign judicial records, presumption as to 86 

of public documents 76 

presumption as to genuineness of 79 

proof of public documents 77 

secondary evidence 63 

Cession of British territory, proof of ... ... ... ... ... ... 113 

Character, bad, relevancy of, in criminal proceedings ... ... ... 54 

good, relevancy of, in criminal proceedings 53 

relevancy of, as affecting damages ... ... ... ... 65 

to prove conduct imputed in civil cases, when relevant 52 

when relevant 62 — 55 

witness to, cross-examination and re-examination of 140 

Charts, presumption as to 87 

relevancy of statements in ... ... ... ... 36 

Civil Procedure Law, how it affects proof of facts 5 

CivU proceedings, parties to suit and husband and wife, competent witnesses 120 
Clerk. ;See " Attorney." 
Client. ,Sec "Attorney." 

when compellable to disclose confidential communication 129 

when not compellable to disclose confidential communication ... 129 

Collusion in obtaining judgment, may be proved 44 

Commencement of Act 1 

Communication. <S«e "Confidential communication," "Professional com- 
munication. " 

during marriage privileged from disclosure 122 

not generally admissible 122 

when admissible 122 

Comparison of signature, writing or seal with one admitted or proved ... 73 

power to compel person to write for 73 

Competency of witnesses 118 — 133 

Sm, "Witness." 

"Conclusive Proof," definition of 4 

Conduct, how far relevant 8 

imputed in civil cases, relevancy of character to prove 52 

Confession caused by inducement, tlireat or promise, when irrelevant in 

criminal proceeding ' ... 24 

made after removal of impression caused by inducement, threat, 

or promise, relevant ' ... 28 

of one of two or more accused persons, how far to be considered 30 
otherwise relevant, not to become irrelevant because of promise of 

secrecy, &c. 29 

to Police Officer, not proveable against accused 25 

while in custody of Police Officer, when proveable against 

accused 26 

how much may be proved 

against accused ... 27 

Confidential communication, when client compellable to disclose 129 

when client not compellable to disclose ... 129 

Conspirator, statement or act of, how far a relevant fact 10 

Contents of documents, how proved 61 

in what cases secondary evidence admissible ... 65 

oral admission as to, relevancy of 22 

174, 175 









220 Index to Act. 

Contents of documents, oral evidence of, secondary evidence 

of statements by other persons of, 

when admissible 

Contract in form of document, evidence of terms of 

exclusion of evidence, of oral agreement vary- 
ing terms of 

examination of witness as to ... 

Contradiction of proved relevant statement 


Contradictory terms of written contract, &c. 5ee " Exclusion of Evidence." 

Conviction, previous, relevancy of, in criminal proceedings 

upon evidence of accomplice only, not illegal 
Copy of document, when witness may refresh memory by reference to 

secondary evidence 

Corroboration of proved relevant statement 

Counsel. ^See "Barrister." 

Counterpart, how far primary evidence 

secondary evidence ... 

Course of business, existence of, when a relevant fact 

Course of proceeding of Parliament and Indian Law Couucil-s, Court must 

take judicial notice of 

Court. See "Judge." 

Act applicable to judicial proceedings in 

not applicable to af&davits presented to 

definition of 

names of Members and Officers of, Court to take judicial notice of ... 

to forbid insulting questions 

Court Martial, Act applicable to judicial proceedings before 

Courts, seals of, of wMch Court m'jst take judicial notice 

Credit of witness, how impeached 

questions in cross-examination affecting 146- 

when may be confirmed 

when may be impeached 

Criminal proceedings. iSee "Confession." 

husband or wife of accused competent witness 

relevancy of bad character 

good character 

previous conviction 

Criminating answer, witness not excused from answering on ground of 132— 

Cross-examination of Witness as to previous written statements 

when they must be 

leading questions may be asked 

meaning of 

must relate to relevant facts 

not confined to facts upon which examined in 


on new matter introduced in re-examination 

producing document 

questions to test veracity, &c. ... 146- 

not to be asked without reasonable 


when Court may report asking of 

question to High Court 

to character 

upon answer to Judge's question, when per- 

upon writing with which he refreshes memory 
Custom. Ste. "Relevancy of facts." 

general, relevancy of opinions as to existence of 48 ... 173 

Damages, relevancy of character as affecting 55 ... 175 



63 ... 


144 ... 


91 ... 


92 ... 


144 ... 


158 ... 


153 ... 


64 ... 


133 ... 


159 ... 


63 ... 


158 ..-. 


62 ... 


63 ... 


16 ... 


57 ... 


1 ... 


1 ... 


3 ... 


57 ... 


152 ... 


1 ... 


57 ... 


155 ... 


-150 207 


168 ... 


168 ... 


120 ... 


64 ... 


53 ... 


54 ... 


■147 203- 


145 ... 


145 ... 


143 ... 


137 ... 


138 ... 


138 ... 


138 ... 


139 ... 


.160 207, 

, 208 

149 ... 


ISO ... 


140 ... 


166 ... 


161 ... 


Index to Act 221 

suits for, relevancy of facts in 12 

Dead person, statement of. Sia " Relevant facts. " 

Death of man known to have been alive within 30 years, hurden of proving 107 
who has not been heard of for seven years, burden of proving 

_, . . life 108 

Decision, reversal of. See " Reversal of decision," " Reports of decisions." 
Decree. See "Judgments." 

Deeds, title, of witness not a party, production of 130 

Defective document, exclusion of evidence to explain 93 

Definitions 3 

Disease of body or mind, person affected with, when incompetent as witness 118 

" Disproved," definition of 3 

Divisions of time, when Court must take judicial notice of 57 

Document. See " Evidence," " Presumption," " Production of document." 

contents of, how proved 61 

definition of 3 

if production refused, when party refusing can afterwards give 

it in evidence 164 



presumptions as to 79—90 185—187 

private 75 

produced by witness, translation of 162 

when Court may inspect 162 

when referring to matters of State ... 162 
on notice, party producing entitled to have it in 

evidence 163 

production of, by witness 162 

power of Judge to order 165 

which another person, having possession, could 

refuse to produce 131 

public 74—78 183, 184 

used by witness to refresh memory, production of, to adverse party 161 

Documentary evidence 61 — 90 179 

definition of 3 




exclusion of oral, by 91—100 188—193 


Dumb "Witness, mode of giving evidence by 119 

Enactments repealed 2 

Entry in books of account, when relevant ... 34 

public record, &o., made in performance of duty, relevancy of ... 35 

Estoppel, admission may operate as 31 

definition of 115 

of acceptor of Bill of Exchange from denying authority of drawer 117 
bailee or licensee from denying authority of baQor or licensor 117 
licensee of person in possession of immovable property from 

denying licensor's possession 116 

tenant from denying landlord's title 116 

Evidence. See the various titles. 

admissibility of, Judge to decide as to 136 

admissible as to appUcation of language to one of two sets of facts, 

to neither of which whole correctly applies 97 

which can apply to one 
only of several persons 

or things 96 

as to use of language unmeaning in reference to exist 

ing facts 

as to written document or contents 

to show meaning of illegible characters, &c. 

when statement forms part of conversation, book, &c. 

definition of 


exclusion of oral by documentary 

improper admission of, when no ground for new trial 







































2 22 Index to Act. 


ETidence,improper rejection of, when no ground for new trial 167 ... 214 

inadmissible as to meaning of language when document applies 

accurately to existing facta 94 ... 191 

of affairs of State, admissibility of 123 ... 201 

of Attorney, Barrister, &o 126—128 201—202 

of contemporaneous agreement varying terms of document, who 

may give 99 ... 193 

of dumb witness, mode of giving 119 ... 200 

of fact when not admissible under CivU Procedure Law 5 ... 150 

of facts in issue and relevant facts 5 ... 150 

of husband or wife 120—122 200—201 

of Interpreter 127—128 ... 202 

of Judge or Magistrate... 121 ... 200 

of Magistrate or Police Officer 125 ... 201 

of oral agreement varying terms of contract, &c., exclusion of ... 92 .-.. 189 

of parties to suits 120 ... 200 

of public officer 124 ... 201 

of terms of contract, &c., in form of document 91 ... 188 

of witness, when relevant for proving in subsequent proceeding 

truth of facts stated 33 ... 167 

oral 59,60 ... 178 

must be direct 60 ... 178 

proof of facts by 59 ... 178 

primary... 62 ... 179 

rules of, repealed 2 ... 147 

secondary 63,65, 66 179—182 

to explain ambiguous or defective document, exclusion of ... 93 ... 191 
what matters may be proved when relevant statement proved 

under sec. 32 or 33 158 ... 211 

Examination. See " Evidence." 

of witness as to written document or contents 144 ... 206 

of witnesses. Se^ ' ' Witness. ' ' 

Examination-in-chief of witness, leading question, when maybe asked ... 142 ... 206 

when may not be asked 142 ... 206 

meaning of 137 ... 205 

must relate to relevant facts 138 ... 205 

when cross-examination question may be 

asked in 154 ... 209 

Examinations of witness, order of 138 ... 205 

Exclusion of evidence as to meaning of language when document applies 

accurately to existing facts 94 ... 191 

of oral agreement, varying terms of written contract, &c. 92 ... 189 

to contradict answer to question testing veracity ... 153 ... 209 

to explain ambiguous or defective document 93 ... 191 

of oral by documentary evidence 91 — 100 188—193 

Execution, admission of, by party to attested document 70 ... 182 

of document, proof of, when attesting witness cannot be found, or 

execution in the United Kingdom ... 69 ... 182 

when attesting witness denies execution 71 ... 182 

when must be proved by attesting witness ... 68 ... 182 

Executive, acts of, how proved 78 ... 184 

Existence of foreign State, &c., when Court must take judicial notice of ... 67 ... 177 

Expert, definition of 45 ... 171 

may refresh memory by reference to professional treatises 159 ... 212 

opinion of, expressed in treatise, when proved by production ... 60 ... 178 

on foreign law, &c., relevancy of 45 ... 171 

relevancy of facts bearing upon 46 ... 172 

Explanation of ambiguous document, exclusion of evidence in 93 ... 191 

fact in issue, or relevant fact. S&e, "Relevancy of facts.'' 

Extent of Act 1 ... 147 

Fact. (See "Presumption." 

Index to Act. ' 223 

Fact, admitted need not be proved 

definition of ... ... ... ... ... 

evidence of, when not admissible under Civil Procedure Law 
Fact in Issue. See, " Relevancy of facts." 

evidence of, may be given in suit or proceeding 

Facts in issue, definition of 

not requiring proof 66- 

of which Court must take judicial notice 

proof of, by oral evidence ... 

relevancy of ... ... E 

bearing on opinions of experts 

bearing on question whether act was accidental or in- 

forming part of same transaction ... 

in suits for damages 

necessary to explain or introduce a fact in issue or re- 
levant fact 
not otherwise relevant, when they become relevant 
showing existence of state of mind, body, or bodily feeling 
when course of business concerned 

where right or custom in question 

which are the occasion, &o., of relevant facts, or facts 
in issue 

relevant, evidence of, when admissible 

Fasts, public, when Court must take .judicial notice of 

Festivals, public, when Court must take judicial notice of 

Flag, national, of foreign State, &c., when Court must take judicial notice of 
Foreign expressions, evidence admissible to show meaning of 

Foreign judicial records, certified copies of, presumption as to 

Foreign law, opinions of experts on, relevancy of 

Forfeiture, exposure to, witness not excused from answering on ground of 132, 147 

Fraud in obtaining judgment may be proved ... 

Functions of Indian Public Officers, when Court must take judicial notice of 

" Gazette of India," notice in, of cession of British territory, proof 

<7ffl2eWe, presumption as to genuineness of 

" General Clauses Act, 1868," sections 7 and 8 repealed 

Genuineness of documents, &c. See "Presumption." 
Geographical divisions of the world, when Court must take judicial notice of 

Good character, relevancy of, in criminal proceedings 

Good faith, burden of proof where one party stands in position of active 

confidence Ill ... 196 

Government. See ' ' Notifications of Government. " 

Government Gazettes, of local Governments, &c, presumption as to 
genuineness of 

Grant, evidence of terms of, when in form of document 

examination of witness as to its being in writing 

exclusion of evidence of oral agreement, varying terms of, when in 

form of document ... ... ... ... ... ... 92 ... 189 

Grounds of opinion. See " Opinion." 

Handwriting, identity of, relevancy of opinions of experts on 

proof of, when necessary ... 

relevancy of opinions as to 

High Court, certain questions asked by Attorney, &c., without reasonable 
grounds, may be reported to ... 

Holidays, public, when Court must take judicial notice of 

Hostilities between British Crown and other States, &c,, commencement, 

&c., of, Court must take judicial notice of 

Husband of accused in criminal proceeding, competent witness 

party to civil suit, competent witness 


68 ... 


3 ... 


6 ... 


5 ... 


3 ... 


3—58 176- 


66 ... 


69 ... 


5—16 150- 


46 ... 


15 ... 


6 ... 


12 ... 


9 ... 


11 ... 


14 ... 


16 ... 


13 ... 


7 ... 


6 ... 


57 ... 


67 ... 


57 ... 


98 ... 


86 ... 


45 ... 


2, 147 203 

, 207 

44 ... 


57 ... 


113 ... 


81 ... 


2 ... 


md Sched. 


57 ... 


53 ... 


81 ., 

.. 185 

91 ., 

.. 188 

144 ., 

.. 206 

45 . 

67 .. 
47 ., 

.. 171 
,. 182 
,. 172 

150 . 
57 .. 

.. 208 
.. 177 

57 ., 
120 ., 
120 . 

,. 177 
,. 200 
.. 200 

2 24 ■ ' Index to Act. 


Identity of handwriting, relevancy of opinions of experts on 45 ... 171 

witness, questions in cross-examination to discover ... 146—150 207,208 

not to be 

asked without reasonable grounds ... ... 149 ... 208 

When Court 

may report asking of question to High Court 150 ... 208 

Illegible characters, meaning of, evidence admissible to show 98 ... 192 

Impeaching credit of witness 155,158 210, 211 

Incompetency of Court to deliver judgment, may be proved 44 ... 171 

Indecent questions, when Court may forbid 151 ... 208 

may not forbid 151 ... 208 

India, British, Act extends to whole of 1 ... 147 

" Indian Councils Act, 1861," repeal of rules, &c., having force of law under 

sec. 25 2 ... 147 

, course of proceeding of Councils under, Court 

must take judicial notice of 57 ... 176 

" Indian Penal Code," burden of proof that case of accused is within excep- 
tions of 105 ... 195 

Indian Public Officers, accession to office, &c., of, when Court must take 

judicial notice of 57 ... 177 

"Indian Succession Act," provisions of, as to construction of "Wills not 

affected 100 ... 193 

Wills under, how provable 91 ... 188 

Inference Court may draw when witness in cross-examination refuses to 

answer question as to veracity, &c 148 ... 208 

Information as to commission of offence, source of, Ma^trate and Police 

officer not compellable to disclose 125 ... 201 

Inspection by Court of document produced by witness 162 ... 212 

Insulting questions, Court to forbid 152 ... 208 

Interpretation clause 3 ... 148 

Interpreter. /Sse "Translator." 

communication made to, when disclosable 127 ... 202 

when not disclosable .., 127 ... 202 

waiver of privilege ... 128 ... 202 

Introduction of &ct in issue or relevant fact. /See " Eelevancy of facts. " 

Judge must decide upon proved relevant facts 165 ... 213 

not generally compellable to answer question as to conduct or 

ju(£cial knowledge 121 ... 200 

when compellable to answer question as to conduct or judicial 

may be examined as to other matters which occurred in his presence 
power of, as to translation of document produced by witness 

to compel person to write for comparison 

to examine witness and order production of document 

to inspect document produced by witness 

to decide as to relevancy of facts 

Judgment, fraud or collusion in obtaining, or incompetency of Court, may 

be proved 

Judgments, &c, of Courts of justice, when relevant 

when relevant to bar second suit or trial 

in Probate, &c., jurisdiction, of what conclusive proof 

relevancy of ... 
in other than Probate, &e., jurisdiction, relevancy and 

effect of 

other than above, when relevant ... 

must be based upon proved revelant facts 

Judicial notice, facts of which Court must take 

facts of which Court takes, not necessary to prove ... 
Judicial proceedings before Courts and Courts-Martial, Act applicable to 
Jury, questions to witness by 

.. 121 ... 


ce 121 ... 


... 162 ... 


.. 73 ... 


.. 165 ... 


.. 162 ... 


.. 135 ... 


... 44 ... 


40—44 169- 


.. 40 ... 


.. 41 ... 


.. 41 ... 


.. 42 ... 


.. 43 ... 


.. 165 ... 


.. 57 ... 


.. 56 ... 


1 ... 


.. 166 ... 


Index to Act. 


Landlord and Tenant, burden of proof aa to relationship in case of 

Landlord, title of, estoppel of tenant from denying 

Language. See, "Evidence." 

admissibility of evidence as to application of, to one of two 
sets of facts to neither of which whole correctly applies ... 
when document applies accurately to existing facts, evidence in- 
admissible as to meaning of 

which can apply to one only of several persons or things, 

admissible as to application of 

immeaning in reference to existing facts, evidence admissible 

as to use of 

Law book. /Sue " Law of Country." 

Law of Country, relevancy of statement of, contained in Law Book 

Laws. &e "Book of Laws." 

in force in British India, Court must take judicial notice of 


Leading Question, meaning of ... 

in examination in chief and re-examination when may be 


when may not 
be asked . . . 

may be asked in cross-examination 

Legislatures, proceedings of, how proved 

Legitimacy, in what cases birth during valid marriage, conclusive proof of 

Licensee, estoppel of, from denying authority of licensor 

of person in possession of immoveable property, estoppel of, from 

denying licensor's possession 

Licensor, authority of, estoppel of licensee from denying 

of immoveable property, possession of, estoppel of licensee from 

denying ... 

Lithographed documents, how far primary evidence 

Local expressions, meaning of evidence admissible to show 

London Gazette, presumption as to genuineness of 

Lunatic, when incompetent as witness 


109 . 
116 . 


.. 196 
.. 199 

97 . 

. 192 

94 . 

.. 191 

96 . 

.. 192 

95 . 

.. 192 

38 . 

.. 169 

57 . 

2 . 

141 . 

.. 176 
.. 147 
.. 206 

142 . 

. 206 

142 . 

143 . 
78 . 

112 . 
117 . 

.. 206 
.. 206 
.. 184 
.. 197 
.. 199 

116 . 

117 . 

.. 199 
.. 199 

117 . 
62 . 
98 . 
81 . 

118 . 

.. 199 
. 179 
.. 192 
.. 185 
. 200 

Magistrate, questions as to conduct or knowledge, not generally compellable 

to answer ... -. 

when compellable to 


may be examined as to other matters which occiu:red in his 

not compellable to disclose whence information obtained as to 

commission of oflfence 

Maps, presumption as to 83- 

relevanoy of statements in 

Marriage, birth during valid, when conclusive proof of legitimacy 

communications during, privileged from disclosure 

not generally admissible 

when admissible 

Matters of State, document produced by witness referring to 

' ' May presume," definition of 

Mind, state of. See " Eelevancy of facts." 

Municipal body in British India, proof of proceedings of 

Names of Indian public officers, when Court- must take judicial notice of ... 
National flag of foreign State, &c., when Court must take judicial notice of 
Navy of Her Majesty. See " Articles of War." 

New matter introduced in re-examination 

cross-examination upon 

Newspapers, presumption as to genuineness of 







... 201 


186, 187 


... 168 


... 197 


... 201 


... 201 


... 201 


... 212 


... 160 


... 184 


.. 177 


... 177 


... 205 


... 205 


... 185 

2 26 Index to Act. 


New Trial, improper admission or rejection of evidence, whenno ground for 167 -.. 21i 

Notary public, seal of, Court must take judicial notice of 57 ... 177 

Notice to produce. See. "Presumption" 

document produced under, party producing entitled to 

have it in evidence 163 ... 212 

if production refused when party refusing can afterwards 

give document in evidence ... ... ... ... 164 ... 213 

rules as to 66 ... 181 

When necessary 66 ... 181 

when unnecessary 66 ... 181 

Notification in (?a2e<teo//«(^(ffl. of cession of British Territory, proof ... 113 ... 197 
Notifications. Sk "Relevancy of statement." 

of Government, how proved ... ... ... ... ... 78 ... 184 

"Not proved," definition of ... 3 ... 150 

Obsolete expressions, meaning of, evidence admissible to show 98 ... 192 

Offence, commission of, source of information as to, Magistrate and Police 

officer not compellable to disclose ... 125 ... 201 

Offensive questions. Court to forbid 152 ... 208 

Officer, affidavits presented to. Act not applicable to 1 ... 147 

Official communications, when public officer not compellable to disclose ... 124 ... 201 

Old age, person of extreme, when incompetent as witness 118 ... 200 

Onus. See, "Burden of proof." 

Opinion as to existence of general custom or right, relevancy of 48 ... 173 

handwriting, relevancy of ... ... ... ... ... 47 ... 172 

relationship, relevancy of 50 ... 173 

usages, tenets, meaning of terms, &c. , relevancy of 49 ... 173 

of expert expressed in treatise, when proved by its production ... 60 ... 178 

on foreign law, &o., relevancy of 45 ... 171 

relevancy of facts bearing upon 46 ... 172 

of third person, when relevant 46 — 51 171 — 174 

relevancy of grounds of ... ... ... ... ... ... ... 51 ... 174 

Oral admission as to contents of document, relevancy of ... ... ..; 22 ... 162 

agreement, evidence of, not admissible to vary terms of written contract 92 ... 189 

evidence 69, 60 ... 178 

definition of 3 ... 149 

evidence of dumb witness deemed ... " 119 ... 200 

exclusion of, by documentary evidence 91—100 188 — 193 

must be direct 60 ... 178 

of contents of document, secondary evidence ... ... ... 63 ... 179 

of statements by other persons of contents of documents, 

when admissible 144 ... 206 

proof of facts by 59 ... 178 

Order. 5ee " Judgments." 

of examinations of witness 138 ... 205 

Orders of Government, &c., how proved 78 ... 184 

Ownership, burden of proof as to 110 ... 196 

Parliament, course of proceeding of, Court must take judicial notice of ... 57 ... 176 
Parol. See " Oral Evidence." 

Parties, power of Judge to examine 165 ...' 213 

to civil suit, competent witnesses 120 ... 200 

Partners, burden of proof as to relationship in case of 109 ... 196 

Penalty, exposure to, witness not excused from answering on ground of 132, 147 203, 207 

Photographed document, how far primary evidence 62 ... 179 

Plans, Presumption as to 83 ... 186 

relevancy of statements in 36 ... 168 

Pleader, certain questions asked by, without reasonable grounds, may be 

reported to High Court 150 ... 208 

communication made to, by or for client, when disclosable ... 126 ... 201 

when not disclosable... 126 ... 201 

waiver of privilege ... 128 ... 202 

Index to Act. 



Police officer, confession to, not provable against accused 

confession while in custody of, when provable against accused 

how much provable against 


Police officer not compellable to disclose whence information obtained as 

to commission of offence 

Position in life of witness, questions in cross-examination to discover 146- 

not to be asked without reasonable 


when Court may report asking of 

c^uestion to High Court 

Power of Judge. See "Judge." 
Powers of Attorney, presumption as to .. . 
Presumptions as to documents ... 
Presumption. Sze " death." 

as to books, maps, and charts ... 

certified copies of foreign judicial records 

document produced as record of evidence 

documents 30 years old 

execution &c. of document not produced after notice ... 

existence of probable facts 

genuineness of book of laws and reports of decisions 

certified copies, &e. 

document admissible in England or 
Ireland without proof of seal or sig- 
Gazettes, newspapers, copies of private 
Acts of Parliament and other docu- 

maps and plans 

powers of attorney 

telegraph messages 

Previous conviction. S&& " Conviction." 

Primary evidence how far counterpart is 

printed document &c. is ... 

meaning of 

proof of document by 

Principal and agent, burden of proof as to relationship in case of 

Printed document, how far primary evidence 

Private documents 

Privilege. ,See "Attorney," "Barrister," " Marriage, " &c. 

of communications during marriage _ ... 

professional communications not waived by party giving 
evidence ... 

how far waived when attorney 
&c. examined by party 

Privy Council, proclamations, &:c. of, how proved 

Probate, proof of wUls under " Indian Succession Act," by 

Proceedings before arbitrator. Act not applicable to 

civil, parties to suit and husband and wife competent witnesses 
criminal, husband or wife of accused, competent witness 

Sk "Criminal proceedings." 
judicial, before Courts and Courts-Martial, Act applicable fo ... 

of what facts evidence admissible in 

Proclamations, how proved 

Production of document by witness 

on notice, if refused in what cases party refusing 

can afterwards give it in evidence . , . 

party producing entitled to have it in 


person summoned does not become witness by ... 
power of judge to order 






... 163 
... 163 

... 163 

... 201 
207, 208 

... 208 

I1O ... 208 

85 ... 


-90 185- 


87 ... 


86 ... 


80 ... 


90 ... 


89 ... 


114 ... 


84 ... 


79 ... 






81 .. 

. 185 

83 .. 

.. 186 

85 .. 

,. 186 

88 ., 

. 187 

62 .. 

,. 179 

62 . 

.. 179 

62 .. 

,. 179 

64 ., 

.. 180 

109 ., 

,. 196 

62 ., 

.. 179 

75 . 

.. 183 



128 .. 

. 202 

78 .. 

,. 184 

91 .. 

. 188 

1 .. 

.. 147 

121) .. 

. 200 

120 .. 

. 200 

1 .. 

. 147 

5 ., 

.. 150 

78 ., 

,. 184 

162 . 

.. 212 

164 . 

.. 213 

163 . 

.. 212 

139 . 

.. 205 

165 . 

,. 213 


Index to Act. 

Production of document, which another person, having possession, could 

refuse to produce 131 ... 203 

of title deeds of witness not a party 130 ... 203 

of writing used by witness to refresh memory, adverse party 

entitled to 161 ... 212 

Professional adviser. See "Attorney," "Barrister," &c. 

communication, when disclosable 126 ... 201 

when not disclosahle 126 ... 201 

waiver of privilege, as to ... ... ... 128 ... 202 

treatise, expert may refresh his memory by reference to ... 169 ... 212 
Proof, burden of. See ' ' Burden of proof. " 

admission not conclusive 31 ... 164 

facts not requiting 56—58 176 — 178 

judgments in probate, &c. jurisdiction, of what conclusive 41 ... 170 

of admission against person maiing it and by or on his behalf ... 21 ... 161 

admitted fact, not necessary 68 ... 178 

attested document not required by law to be attested ... ... 72 ... 182 

certain public and of&cial documents 78 ... 184 

cession of British territory 113 ... 197 

contents of documents 61 ... 179 

documents by primary evidence 64 ... 180 

execution of document required by law to be attested ... ... 68 ... 182 

when attest- 
ing witness cannot be found, or execution in the United 

Kingdom 69 ... 182 

when attest- 
ing witness denies execution 71 ... 182 

fact, no particular number of witnesses necessary 134 ... 203 

facts by oral evidence 69 ... 178 

handwriting and signature, when necessary 67 ... 182 

legitimacy, in what cases birth during valid marriage conclusive ... 112 ... 197 

public document, by production of certified copy 77 ... 183 

Wills under " Indian Succession Act " 91 ... 188 

"Proved," definition of ' 3 ... 149 

Provincial expressions, evidence admissible to show meaning of 98 ... 192 

Public documents 74 ... 183 

certified copies of 76 ... 183 

proof of, by production of certified copies 77 ... 183 

proof of certain 78 ... 184 

Public Festivals, &c., when Court must take judicial notice of 57 ... 177 

officer, proof of appointment of... ... ... ... ... ... 91 ... 188 

when not compellable to disclose official communications ... 124 ... 201 
officers, Indian, accession to office, &c., of, when Court must take 

judicial notice of 57 ... 177 

record, &c., relevancy of entry In, made in performance of duty ... 35 ... 168 

Question. See •' Attoriiey," "Leading question,'' •'Relevancy of facts,'' 
"Veracity of Witness," "Witness," &c. 
asked without reasonable grounds, when may be reported to High 
Court 150 


Ee-exaimnation of witness, leading question, when may be asked 

when may not be asked 

meaning of ... 

on new matter introduced by permission of 


to character ... 

to what directed 

Refreshing memory by reference to writing, when made by witness 

when made by other person . . . 
when witness may refer to copy 

142 . 

.. 206 

142 ., 

.. 206 

\■6^ .. 

. 206 

138 . 

.. 205 

140 . 

.. 205 

138 . 

.. 206 

159 . 

.. 211 

159 . 

.. 211 

159 . 

.. 211 

Index to Act. 229 

EefresMng memory, expert, by reference to professional treatise ... 
Regulations of Government, &o., how proved ... 


Rejection of evidence, improper, when no ground for new trial 

Relationship, relevancy of opinions as to ... 

Relevancy of admission in civil cases 

bad character in criminal proceedings ... 

character as affecting damages 

to prove conduct imputed, in oivU cases 

conduct ... ... ... 

confession made after removal of impression caused hy induce- 
ment, threat, or promise 

entry in public record, &c., made in performance of duty ... 


bearing on opinions of experts 

bearing on question whether act was accidental or in- 

forming part of same transaction ... 

in suits for damages ... 

judge to decide as to ... 

"necessary to explain or introduce a fact in issue or relevant 


showing existence of state of mind, body, or bodily feeling 

where right or custom in question 

which are the occasion, &c., of relevant facta or facts in 


good character, in criminal proceedings 

grounds of opinion 

judgments, &c., to bar second suit or trial 

in Probate, &c., jurisdiction 

of what conclusive proof 

in other than Probate, &c., jurisdiction 

other than above 

opinions as to existence of general custom or right 

handwriting ... 


usages, tenets, &c., 

oral admission as to contents of document 

previous conviction, in criminal proceedings 

statement as to fact of public nature contained in certain 

Acts or Notifications 

in maps, charts, and plans 

of Law of country contained in Law Book ... 

or act of conspirator 


" Relevant," definition of 

Relevant fact, existence of course of business, when a 

facts. See " Relevancy of facts." 

examinatiou-in-chief and cross-examination of witness must 

relate to 

proved, judge must decide upon 

when evidence of, admissible 

when facts not otherwise relevant become 

written or verbal statement of, by person dead or who can- 
not be found, &c., when relevant 

Repeal of laws 

Reports of decisions, presumption as to genuineness of 

Reversal of decision, improper admission or rejection of evidence, when 


Eight. ;Se6 "Relevancy of facts." 

general, relevancy of opinions as to existence of 

Rule of the Road, Court must take judicial notice of 



159 ... 


78 ... 


2 ... 


167 ... 


60 ... 


23 ... 


54 ... 


55 ... 


52 ... 


8 ... 


28 ... 


35 ... 


5—16 150 


46 ... 


15 ... 


6 ... 


12 ... 


136 ... 


9 ... 


! 14 ... 


13 ... 


7 ... 


53 ... 


51 ... 


40 ... 


41 ... 


41 ... 


42 ... 


43 ... 


. 48 ... 


. 47 ... 


50 ... 


49 ... 


. 22 ... 


54 ... 


37 ... 


36 ... 


. 38 ... 


. 10 ... 


8 ... 


3 ... 


. 16 ... 



. 138 ... 


. 165 ... 


5 ... 


11 ... 


. 32 ... 


2 ... 


. 84 ... 


. 167 ... 


. 48 ... 


. 57 ... 


Index to Act. 

Eules of evidence repealed 

Scandalous questions, when Court may forbid .. 

when Court may not forbid 

Seal, comparison of, with admitted or proved seal 

Seals, of Courts, &c. , of what Seals Court must take judicial notice 

Second suit or trial, relevancy of judgments, &o., to bar .,„. 

Secondary evidence, after notice to produce 

certified copies 

other copies 

how far counterpart is ..» 

meaning of 

*hen admissible of existence, condition, or contents of 


Servant. ;Se« "Attorney," " Barrister," &c. 

Shaking credit of witness, questions in cross-examination for ... 146- 

not to be asked without reasonable grounds 
when court may report asking of question 

to High Court 

"Shall presume," definition of ... 

Short title of Act 

Sign manual of British Sovereign, Court must take judicial notice of 

Signature, comparison of, with admitted or proved signature ' 

proof of, when necessary ... ... ... 

Signatures of Indian public officers, when Court must take judicial notice of 
Sovereign, foreign, existence &c. of, when Court must take judicial notice of 
State, affairs of, admissibility of evidence as to 

foreign, existence &c. of, when Court must take judicial notice of ... 
matters of, document produced by witness referring to 
State of mind, body, or bodily feeling. See " Relevancy of facts." 
Statement as to fact of public nature contained in certain Acts or Notifica- 
tions, relevancy of ... ... 

forming part of conversation, document, book, or series of letters 

or papers, what evidence admissible 

of conspirator, how far a relevant fact 

of law of country contained in Law Book, relevancy of 

Statements. ySee "Admission." 

by persons who cannot be called as witnesses 32 

in maps, charts and plans, relevancy of 

made under special circumstances 34- 

relevancy of 

written or verba], of relevant facts by person dead or who cannot 

be found, &c. , when relevant 

when relating to cause of death 

when made in ordinary course of business 

when against interest of maker 

when giving opinion as to public right or custom, 

or matter of public or general interest 
when relating to existence of relationship 

made in will, deed, pedigree, or on tomb- 
stone, &c. 

when made in document relating to transaction 

by which right or custom created, &c. 
when made by several persons and expresses 
feelings, &c., relevant to matter in question 

Statutes, parts of, repealed Sch. and 

repealed, 26 Geo. III. c. 57, s. 38, (part) Sch. and 

14 and 15 Vic. c. 99, s. 11, and part of s. 19 Sch. and 
Subtracting from terms of written contract, &c. See "Exclusion of Evi- 




... 147 


... 208 


... 208 


... 182 


... 177 


... 169 


... 181 


... 179 


... 179 


... 179 


... 179 


... 180 


207, 208 


... 208 


... 208 


... 150 


... 147 


... 176 


... 182 


... 182 


... 177 


... 177 


... 201 


... 177 


... 212 



39 ... 

10 ... 
38 ... 


33 164- 

36 ... 

-38 168 

8 ... 


, 169 

32 ... 
32 (1) 








2 ... 
2 ... 
2 ... 


Index to Act. 

Suit. See, " Judgments," &c. 

for damages, relevancy of facts in 

of what facts evidence admissible in ... 

Technical expressions, meaning of, evidence admissible to show 
Telegraph messages, presumption as to 

Tenant. See, " Landlord and tenant." 

estoppel of, from denying landlord's title 

Tender years, person of, when incompetent as witness 

Tenets of body of men or family, relevancy of opiniona as to 

Terms, meaning of, relevancy of opinions as to 

Territory, British, proof of cession of 

Title of Act, short 

of foreign State, &c., when Court must take judicial notice of 
of landlord, estoppel of tenant from denying 

Title-deeds of witness, not a party, production of 

Titles of Indian public officers, when Court must take judicial notice of 

Transaction. See " Relevancy of facts." 

Translation of document produced by witness 

Translator. See " Interpreter." 

divulging contents of document directed to be kept secret 

Treatises. &e" Expert," "Professional treatise." 

Trial. See " Judgments," &c. 

Trial, New. See " New trial." 

United Kingdom, proof of document required by law to be attested when 

executed in, and attesting witness cannot be found... ... ... 69 

Usages of body of men or family, relevancy of opinions as to 49 




12 . 

.. 156 

5 . 

.. 150 

98 . 

,. 192 

88 , 

.. 187 

116 . 

.. 199 

118 . 

.. 200 

49 . 

... 173 

49 , 

... 173 

US , 

... 197 

1 , 

... 147 

57 , 

... 177 


... 199 


... 203 


... 177 


... 212 


... 212 



Vakil, certain questions asked by, without reasonable grounds, may be re- 
ported to High Court ... 

communication made to, by or for client, when di.-'closable 

when not disclosable 
waiver of privilege 
Varying terms of document, who may give evidence of contemporaneous 
written contract, &c. iS'ee " Exclusion of Evidence.'' 

evidence inadmissible of oral agreement 

Veracity of witness, questions in cross-examination to test 146 — 150 

not to be asked without reasonable grounds ... 149 
when Court may report asking of question to 
High Court 150 

Wife of accused, in criminal proceeding, competent witness 

of party to civil suit, competent witness ... 

WiUs, provisions of " Indian Succession Act" as to coustractiou of, not 
affected ... 

under "Indian Succession Act," how provable 

Witness, accomplice, competent, against accused person 

accused, husband or wife of, competent, in criminal proceedings 
attesting, proof when he cannot be found, or document executed 

in the United Kingdom 

when execution of document must be proved by 

attorney as 

attorney's clerk or servant as 

barrister as , 

barrister's clerk or servant as 

client as... 

contradiction of 

credit of, confirmation of 


impeachment of 




... 189 
207, 208 
... 208 


120 .. 

,. 200 

120 .. 

. 200 

100 .. 

. 193 

91 .. 

. 188 

133 .. 

. 203 

120 .. 

. 200 

69 „ 

,. 182 

68 .. 

.. 182 

126 ., 

,. 201 

127 .. 

.. 202 

126 . 

.. 201 

127 . 

.. 202 

129 . 

.. 203 

153 . 

.. 209 

158 . 

.. 211 

155 . 

.. 210 

158' . 

.. 211 


Index to Act. 

Witness, credit of, questions in cross-examination affecting ... 

cross-examination. <See " Cross-examination of witness." 

dumb, mode of giving evidence by 

evidence of, when relevant for proving in subsequent proceediiig 

truth of facts stated 

examination of, as to written document or contents 

examination-in-chief. "<Sfee Examination-in-chief of witness.'' 
husband of accused, competent, in criminal proceedings ... 
interpreter as 

judge as 

power of, to examine 

magistrate as ... .. 

not a party, title deeds of, when compellable to produce 

when not compellable to produce 
not excused from answerin g on ground that answer will criminate 132, 
oral evidence of, as to statements by other persons of contents of 

documents, when admissible 
order of examinations of 

party to civil suit, and husband or wife, competent 

pleader as 

pleader's clerk or servant as 

police officer as... 

production of document by 

proof of former statement of, to corroborate testimony ... 

public officer as 

questions to, by Jury or Assessors 

re-examination. See, " Ee-examination of witness." 

refreshing memory by reference to writing ... 

when made by witness 
when made by another 


when witness may refer 

to copy 

may be cross-examined 

upon it 

statements by persons who cannot be called 

to character, cross-examination and re- examination of 

translation of document produced by 

vakil as ... ... 

vakil's clerk or servant as 

when compellable to answer question in cross-examination testing 

veracity, &o 

in what case Court to 

when he may testify to facts mentioned in document 

wife of accused, competent, in criminal proceedings 


examination of 

no particular number necessary to prove fact 

order of production and examination of 

what persons competent 

Writing, comparison of, with admitted or proved writing 

to refresh witness's memory, adverse party entitled to production 

of, and may cross-examine upon 

when witness may refresh memory by reference to 











32, 33 
, 140 
. 162 
. 126 


207, 208 

... 200 








... 134 

... 135 





... 200 

... 202 

... 200 

... 213 

... 200 

... 203 

... 203 

203, 207 

... 206 

... 205 

... 200 

... 201 

... 202 

... 201 








... 212 
... 205 
... 212 
... 201 
... 202 

... 207 

... 207 

... 212 

... 200 



... 203 

... 204 


... 182