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Full text of "The law of evidence applicable to British India"

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LAW OF EVIDENCE. 



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THE 

LAW OF EVIDENCE 

APPLICABLE TO BRITISH INDIA 



BY 



AMEER ALI, SYED, m.a., ci.e., 

Barristey-at-l'aw, late a Judge of the Hie^h Court of judicature at Fort William, 

in Bengal 



AND 



JOHN GEORGE WOODROFFE, m.a., b.c.l. 

Barrister-at-Law, a fud^e of the High Court ofjudicatute at Fort William 

in Bengal. 



FOURTH BOITION. 



CALCUTTA : 
THACK^ER, SPINK & CO. 



1907. 



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CALCUTTA : 

Printed by thackbr, spink & co. 



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PREFACE TO FOURTH EDITION. 

We draw attention to several additions and alterations in 
the present edition. The Introduction has been re- written and 
enlarged. Portions of it, as it appeared in the last edition, such 
as those dealing with the construction of Codes, have been re- 
moved to the Commentary on Civil Procedure which we have 
in preparation, and which in answer to enquiries we may state 
will be published on, or shortly after, the pubUcation of the new 
Code and before it comes into operation. Others have been 
placed in the text. We have fwsquired the copyright of the 
Introduction to the Evidence Act of the late Sir James 
Fitzjames Stephen and have incorporated it in our own. The 
critical portion of the latter has been expanded chiefly in two 
particulars. A much fuller statement has been given of Mr. 
Whitworth's criticism of Sir J. Stephen's theory of relevancy 
as embodied in the Act than in the previous editions. Some 
apology may appear needed for the extensive citations we have 
made. If so, excuse will be found both in the instructive 
character of the criticism in Mr. Whitworth's pamphlet «is also 
in the fact that it has been out of print now for some twenty- 
four years. We have also thought it better to give, for the 
most part, the criticism in the author's own words rather than 
as before, a summary of such criticism of our own. Nextly 
previous editions though they referred to, did not, we now 
think, sufficiently emphasize the criticism of the historical 
school of which Professor Thayer is the chief exponent. The 
importance of this criticism is the more readily recognized, the 
greater the experience which is gained in the prswtical working 
of the Act. 

Similarly, matters have been withdrawn from, and added 
to the text. The portions withdrawn are those referred to in 
the preface to the last edition, and have been embodied in the 
Authors' Civil Procedure Code. Their place has been taken by 
new matter bearing strictly on the Law of Evidence. Amongst 

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VI PREFACB TO FOURTH EDITION. 

the text-books laid under contribution for this matter we wish 
particularly to indicate tho recent work of Professor J. H. 
Wigmore (Treatise on Evidence : An Encyclopedia of Statutes 
and cases up to March 1904, 4 %'ols., Canadian Edition contain- 
ing English cases), a valuable and exhaustive book written in 
an original and modern spirit and thus free of what Bentham 
calls " grimgribber nonsensical reasons " for the rules of evi- 
dence. 

The commentary has throughout been thoroughly revised 
and in part re-written. New cases have been noted up to the 
end of last year. In some instances either these cases or fur- 
ther consideration have necessitated a change in the Authors' 
views. We may here note for example some of the more im- 
portant changes and additions to which we have referred. 

The question of the admissibility of judgments under section 
13 has been again reconsidered by Geidt, J., in a careful opinion 
[Abinash Chandra v. Paresh Nath, 9 C. W. N., 402 (1904).] 
which is helpful to dispel some of the obscurity in which the 
question was left by the judgment in Tepu Khan v. Rajoni 
Mohun, 2 C. W. N., 501 (1898). The views of Geidt, J , 
constitute a sound re-action from the loose notion that any 
judgment may go in " for what it is worth" for which in our 
opinion no sanction can be found in the decisions of the Judi- 
cial Committee. The opinion however expressed by the 
learned Judge in the first mentioned case that the judgment 
in Bhitto Kunwa'*' V. Kesho Pershad, 2 I. A., 10 (1897), was 
admitted by the Privy Council under section 42, is incorrect 
as will appear from the judgment of the Subordinate Judge 
in that c«ise which we have been able to obtain through the 
courtesy of the Chief Justice of the Allahabad High Court 
and which has been reprinted in the Appendix. The com- 
mentary on this section [has been re-written and enlarged 
upon this point. 

The important question as to the admissibility of evi- 
dence of conduct under section 92 has again come under 
consideration in several recent cases and has been dealt with 
at length in the commentary, and at p. 481 we have stated 



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PREFACE TO FOURTH EDITION. Vll 

what appears to us to be the true rule on the subject which 
has been more recently dealt with in an article in Nos. 20 & 
21 of the Bombay Law Reporter of last year. As further 
supporting the views there expressed the following cases in the 
Addenda should be referred to: — Keshavarao Bhagwant v. Ray 
Pandu, 8 Bora., L. R 287 ; Maung Bin v. Xfa Hlaing, 3 L. B. R , 
100 F. B. In Ram Samp v. Allah Rakha, 107 P. L. R , 1905, 
evidence appears to have been allowed. The grounds on which 
the Privy Council proceeded in Ismail Mussajee v. Hafiz Boo, 
10 C. VV. N., 570, are not clear but the decision apparently 
rested on a construction of the document. 

Considerable additions on the subject of estoppel have 
been made to section 115, and we have thought it necessary 
to expand our observations on the nature and limits of cross- 
examination, a power which is sometimes abused. 

Other alterations and additions will be found in their 
respective places in the text. 

The reported cases in the text and Addenda are noted up to 
the end of 1906. For the summary of decisions in the Addenda 
taken from the L. B. R., N. R., P. L. R., & O. C, which we 
have not previously cited, we are indebted to Mr. Sanjiva 
Row's excellent Digest. The excessive bulk of the Addenda 
is both recognised and regretted. It is due to an unfor- 
tunate accident which prevented for some months the printing 
off of the book after the whole of it htd been set in type. 
As is, however, often the case with reported decisions in 
this country, a large number of those cited in the Addenda, 
.scarcely do more, in their favourable results, than freshen know- 
ledge, either by recalling what has been previously said by 
other judges, or by restating in ampler form the concise definition 
of the Legislature. Such cases therefore while they add to, do 
not alter the text. With a few exceptions we have not drawn 
afresh on American case-law. A very proper tendency 
now prevails to restrict any excessive citation from this 
source. (See In re Missouri Steamship Co., 42 Ch. D. ; 321, 
330, 331). 

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Vin PRBFAOE TO FOURTH EDITION. 



While recourse to it doubtless not infrequently serves a pur- 
pose more useful than a mere display of learning, yet most will 
we think judge the sensible freedom of modern English practice 
to be (particularly in this country) of better example than 
the technicality which is not uncommonly to be found in the 
trials of cases by the American Courts. The few Aanerican 
decisions therefore which have been added are those only which 
have been selected by Prof. Wigmore in support or illus- 
tration of such portions of his exposition of the law as have 
been quoted in this work. It is instructive in this connection 
to note how few are the cases on evidence in the English Law 
Reports of recent years as compared with the past. This 
circumstance is due to the growing sense of the inutility of 
many objections to evidence and to a desire to free all judicial 
enquiry of anything which, without sound and certain justifi- 
cation, may baulk or hinder it. The dictum of the Judicial 
Committee in Ameeroonissa Khatoon v. Abedoonissa. Khatoon, 
23 W. R., 208, 209, now represents also the views of other 
English Courts. It may, however, be necessary to add that a 
proper interpretation and liberal application of the law is not the 
.same thing as the abrogation of it. 

In the Appendix we have at request restored the Pro- 
ceedings in Council prior to the passing of the Bill, which 
appeared in the first two editions but were omitted in the 
last. We agree that these proceedings will be generally consi- 
dered useful as they and the Introduction of Sir James F, 
Stephen, here reprinted, form a complete explanation of the 
Act by its chief framer and others who approved of, and were 
responsible for it. 

) A A 

\Uh March 1907. \ 

S J. G. W. 



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PREFACE TO THIRD EDITION. 

Though but a comparatively short time has elapsed since 
the publication of the Second Edition, a considerable number 
of cases of importance have been decided during that period 
which have been incorporated in the text. The additions 
made are, however, not limited to these. Former editions 
contained generally speaking, only those Indian cases which 
are in the Weekly Reporter, Bengal Law Reports, Calcutta 
Law Reports, Calcutta Weekly Notes and the Authorized 
Law Reports. The present edition includes also cases reported 
in the Madras Law Journal, the Bombay Law Reporter and 
the Allahabad Law Journal. Further, not merely has the 
whole work been revised and brought up to date, but portions 
have been re-written, such as, amongst others, the matter 
relating to Brokers' Books and Notes in the Commentary to 
section 91, and other portions are entirely new, of which the 
Commentary at pp. 254 — 263 dealing with the important and 
recurring question as to the party on whom the onus lies of 
proving the voluntary charsicter of a confession, may be taken 
as an example. The inclusion of all this new matter, and the 
desire on the Authors' part to limit an already bulky work as 
much as possible to its strict subject have necessitated the 
exclusion of certain matters appearing in the last from the 
present editions. They are, moreover, of opinion that the 
Appendices in last editions reproducing former legislation and 
the Debates in Council upon the Evidence Act Bill have been 
sufficiently circulated, at any rate for the present. Some other 
Appendices which dealt with Civil Procedure are strictly 
foreign to, though connected with some of, the matters treated 
by this Act. There still remains much in the text itself which 
is open to the same comment and which therefore appears in 
this edition for the last time. Such of this and of the matter 
already removed which relates to Civil Procedure will be in- 
corporated in the Commentary on the Civil Procedure Code 

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PREFACB TO THIRD EDITION. 



which the Authors have in preparation. It has been suggested 
that the statement on page 39 that the Act is printed as 
modified up to the 10th February 1899 may create misap- 
prehension. That date is given as that of the Government 
publication of the Act. There have been no modifications 
since then. The cases cited including the Addenda are those 
reported up to, and including the month of November 1904. 

Calcutta, ) A A. 

20th January 1905. | J. G. W. 



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PREFACE TO SECOND EDITION. 

The present edition has been revised throughout. The 
text and addenda contain all decisions reported up to the 
present month. Portions of the book have been re-M'ritten, 
such as amongst others, the notes to sections 13, 44, 45 — 47, 
92 and 110. Other portions which appeared in the former 
edition in the text have been placed in the Appendix, such as 
those dealing with Discovery, Evidence on ^Commission, Res 
Jiidicata, Stamps, Registration, Oaths, Bankers' Books and 
others. The matters therein treated are the subject of other 
Acts and, with a view to facilitate reference, an endeavour 
has been made in the present edition to limit the notes in 
the body of the work to an exposition of the law contained 
in the .sections to which they are appended. 

CxLCCTrA, I A. A. 

3Vst Augiist, 1902. ) J. G. W. 



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PREFACE TO FIRST EDITION. 

In the preparation of this Commentary on the Indian 
Evidence Act the Authors have striven to meet the wants, 
both of the profession and of students, believing that a work 
framed merely for the use of one of these classes will prove 
unsuited to the needs of the other. Much that must be set 
out for those who have little or no knowledge of the subject, 
is superfluous to the professional reader ; while the close and 
elaborate detail which the practising lawyer requires is not 
only useless, but often a source of confusion, to the beginner. 
The novel scheme of this work, which is designed to satisfy 
the wants of both classes of readers, demands a few words of 
explanation. 

The Act is divided into three Parts and eleven Chapters. 
Each Part and Chapter is preceded by an Introduction 
dealing with its subject-matter. The Introduction prefixed 
to the Parts or main divisions of the Act are more general 
in character and broader in treatment than those which 
precede the Chapters ; while these again exhibit less detail 
than is found in the notes appended to the sections. Ele- 
mentary notions are explained and a general, and sometimes 
historical, survey of the subject of the sections is given in 
the several Introductions which also contain references to 
matters akin to, but not part of, the actual material of the 
Act. While these Introductions will, as the Authors hope, 
be of aid to students, the separation of their subject-matter 
from the commentary to which alone the profession will 
in general refer, should spare the practitioner in search of 
decisions bearing directly upon the meaning of the sections 
unnecessary reading. A short paragraph immediately follows 
each section presenting with all possible brevity the principle 
upon which it is founded and has been enacted. This para- 
graph is succeeded by a note of cognate sections, which 
in turn is followed by a collection of references to Standard 
English, American, or Indian text-books dealing with the 



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PREFACE TO FIRST EDITION. XUl 

material of the section. The authors are indebted in part 
for the idea of this arrangement to the recent work by 
Mr. S. L. Phipson on the Law of Evidence (London, 1892). 
Next comes the Commentary proper on the section which 
elucidates its important words and phrases by the aid of 
the case-law and text-books. 

The work as thus finished departs in many respects from 
the original and advertised plan of its authors. At the out- 
set they proposed to write a short Commentary for the use 
of the profession only and to collect therein the provisions 
of all other Acts on the Indian Statute-book which touch 
upon this branch of the law. They, however, realised in the 
course of their task that though a book so planned might 
be of assistance to members of the profession practising in 
the Presidency Towns with large libraries available for re- 
ference, it would yet be of little use to others in the mofussil. 
The attempt to serve a wider circle of readers has entailed 
a large increase in the bulk of the work beyond the limits 
originally proposed, while the length of time consumed in 
its preparation in its modified form has prevented the in- 
clusion of that complete collection of provisions of other Acts 
bearing upon this branch of the law to which allusion has been 
made. The more important of these provisions (taken from 
more than a hundred Acts and Regulations) will, however, be 
found in the Commentary and, should another edition be 
called for, the authors hope to make it complete in this 
respect. At the instance of several correspondents the au- 
thors have republished a full record of the proceedings in 
Council and of the Law Commissioners relative to the pre- 
paration of this Act ; as also the text of the preceding Act 
(II of 1855) with reference to the provisions of which many 
of the decisions here cited were decided. The full Index 
which closes the book will, it is hoped, notwithstanding the 
increased bulk of the work, render the search for references 
lx)th easy and expeditious. 

The authors desire to acknowledge the assistance they 
have derived from the standard works on the Law of Evidence 



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XIV PRBFACK TO KIR8T BDITION. 

published in this country, in England, and in America. In 
especial, much aid has been gained from the American text- 
books, amongst which are perhaps the most valuable and 
scientific works on this branch of the law. The Law of 
Evidence as it obtains in the Courts of the United States 
is founded upon the English Law and is in nearly every respect 
identical with the law which prevails in England and in this 
country ; and though it is not of binding authority upon 
Indian Judges, yet the decisions of those Courts are as Lord 
Chief Justice Cockburn said in England {Scaratnanga v. 
Stamp, L. R, 5 C. P. D., 295, 303), and Sir Lawrence Peel 
observed in this country {Braddon v. Ahbot, Tailor and 
Bell's Reports, 342, 359, 360 ; Malcolm v. Smithy ib., 283, 288), 
of great value to a correct determination of questions for 
which our own or the English law offers no solution.* 
Following the Table of Cases cited is printed a Bibliography, 
the first published, • of works upon the Law of Evidence. 
References in the text to any of these works are to the last 
editions, unless where otherwise expressly stated. Every 
effort has been made to collect the whole of the Indian case- 
law touching the subject of evidence. The decisions reported 
during tlie progress of this work through the press (up to 
and including the month of December 1897) are collected in 
the Addenda. 

Calcutta, ^ A. A. 

March, 1898. ( J. G. W. 

* But sec also ol>servnt ions in Preface to the Fourth Bdttion. 



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CONTENTS. 



TABLE OF CONTENTS OF THE INDIAN EVIDENCE ACl' 
TABLE OP CASES CITED ... ... ... 

BIBLIOGRAPHY OF THE LAW OP EVIDENCE 
ADDITIONS AND CORRECTIONS 
INTRODUCTION 



Paob. 

IV XX 

XXXV — xc 

xei — cii 

xxi — xxxiv 

1—96 Int. 



THE INDIAN EVIDENCE ACT. 
PART I. 

BELEVANCT OF FACTS. 



Pbbamblb ... 
SBCnoxs. 

1. Short title 1 
Extent } 
Comipencfment of Act j 

2. Repeal of enactu.entR 

3. Interpretation-clause . . . 
4 "Mav presume" 

".Shall presome" I 
*• Conolnsive proof " | 



CHAPTER I. 
Preuminaby. 



Page. 
1—6 



9—15 
20 



CHAPFER II. 

Or THB Rblrvanoy of Facts ... ... 25 

6. Evidence may he given of facts in irane and relevant facts ... ... 27 

6. Relevancy of facts forming part of same transaction ... ... 34 

7. Facts irhich are the occasion, cause or effect of facts in issue ... ... 36 

8. Motive, preparation and previous or subsequent conduct ... ... 39 

9. Facts necessary to explain or introduce relevant facts ... ... 50 

10. Things said or done by conspirators in reference to common design ... 64 

11. When factH not otherwise relevant become relevant ... ... 56 

12. In suits i(x damages, facts tending to enable Court to determine amount are 

relevant ... ... ... ... ... ... 61 

13. Facta relevant when right or custom is in question ... ... 62 

14. Facts showing existence of state of mind, or of body or bodily feeling ... 87 
16. Facts bearing on question whether act was accidental or intentional . . . lOI 
16. Existence of conrse of business when relevant ... ... ... 103 



Admissions 

17. AdnuMion defined 

18. Admission — 

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



.. 107 
,.. 118 

118— 11» 



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XVI CONTENTS. 

Sections. Page. 

19. Admissions by persons whose position must be proved aa against party to suit 119 

20. Admissions by persons expressly referred to by party to suit ... ... 1 16 

21. Proof of admissions against persons making them and by or on their behalf 140 
. 22. When oral admissions as to contenta of documents are relevant . . . 144 

23. Admissions in civil cases when relevant ... ... ... 145 

24. CJonfession caused by inducement, threat or promise, when irrelevant in 

criminal proceeding ... ... ... ... 147 

25. Confession made to a police-officer not to be proved ... ... 169 

26. Confession by accused while in custody of police not to be proved against him 163 

27. How much of information received from accused may be proved . . . 165 

28. Confession made after removal of impression caused by inducement, threat 

or promise, relevant ... ... ... ... ... 172 

29. Confession otherwise relevant not to become irrelevant because of promise of 

secrecy, &c. ... ... ... — — 173 

30. Consideration of proved confession affecting person making it and others 

jointly under trial for same offence ... ... ... 175 

31. Admissions not conclusive proof, but may estop ... ... ... 187 

Statbuents b¥ Persons who oabhot be called as Witnesses . . . 190 

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 ; } ... 194 — 224 

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 feelings 

relevant to matter in question J 

33. Relevancy of certain evidence for proving in subsequent proceeding, the 

truth of facts therein stated ... ... ... ... 225 

Statements made umdeb Sfboiai. Ciboukstanobs 236 

34. Entries in books of accoont when relevant ... ... ... 237 

36. Relevancy of entry in public record made in performance of duty ... 244 

36. Relevancy of statements in maps, charts and plans ... ... ... 252 

37. Relevancy of statement as to fact of public nature, contained in certain Acts 

or notifications ... ... . . ^ ... 26S 

38. Relevancy of statements as to any law contained in law books ... ... 261 

How MUCH OF A Statement ls to be proved ... ... 263 

39. What evidence to be given when statement forms part of a conversation, 

document, book or series of letters or papers ... ... ... 263 

JUDOMEMTS OF COOBTS OF JUSTICE WHEN RELEVANT 266 

40. Previous judgment relevant to bar a second suit or trial ... ... 268 

41. Relevancy of certain judgments in probate, &c., jurisdiction ... ... 272 

42. Relevancy and effect of judgments, orders or decrees, other than those 

mentioned in section 41 ... ... 278 

43. Judgments, &c., other than those mentioned in sections 40 to 42, when 

relevant ... ... ... ... 281 

44. Fraud or collusion in obtaining judgment, or incompetency of Court may 

be proved ... ... ... ... ... 286 

^ OranoNS OF thibo Persons, when bblevant 293 

46. Opinions of experts ... ... ... ... ... 297 

46. Facts bearing upon opinions of experts ... ... ... 297 

47. Opinion as to handwriting, when relevant ... ... ... 309 

48. Opinion as to existence of right or custom, when relevant ... ... 313 

49. Opinions as to usages, tenete, &c., when relevant ... 316 



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CONTENTS. XVU 

Sections. 

50. Opinion on relationstip, when relevant ... ... ... 317 

61. Grounds of opinion, when relevant ... ... ... ... 321 

Charactbb, when bklevant ... 322 

52. In civil cases character to prove conduct imputed irrelevant ... ... 322 

63. In criminal cases, previous good character relevant ... ... 324 

54. Previous bad character not relevant, except in reply ... ... 324 

55. Character as affecting damagse ... ... ... ... 329 



PART III. 
ON PROOF. 333 



CHAPTER III. 

Facts which nbbd not be pboved 336 

66. Facte judicially noticeable need not be proved 337 

57. Facte of which Court must take judicial notice ... ... ... 338 

58. Facts admitted need not be proved ... ... 348 



CHAPTER IV. 

Of Qrai. Evidbkcb ... 364 

68. Proof of facts by oral evidence . . ... ... ... 359 

60. Oral evidence must be direct ... ... 360 



CHAPTER V. 

Of Documentary Kvioenob ... ... ... 366 

61. Proof of contents of document ... ... ... ... 369 

62. Primary evidence ... ... ... ... ... 369 

63. Secondary evidence ... ... ... ... ,,. 370 

64. Proof of documents by primary evidence ... ... ... 375 

66. Cases in which secondary evidence relating to documents may be given. . . 376 

66. Rules as to notice to produce ... ... ... ... 390 

67. Proof of signature and handwriting of person alleged to have signed or writ- 

ten document produced ... ... ... ... 394 

68. Proof of execution of document required by law to be attested . . . 397 

69. Proof where no attesting witness found ... ... ... 397 

70. Admissitm of execution by party to attested document ... ... 397 

71. Proof when attesting witness denies the execution ... ... 397 

72. Proof of document not required by law to be attested ... ... 397 

73. Comparison of signature, writing or seal with others admitted or proved. . . 402 



PoBuo Documents 

74. PuUic documents ... ... 

75. Private documents 

76. Certified copies of public documents 

77. Proof of documents by production of certified copies 

78. Proof of other official documents 



406 

408 
409 
412 
412 
413 



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XVlll CONTENTS. 

Hbitions. Paue. 

Pebsumptions as to Documents • ... ... 418 

79. Presumption as to genuineness of certified copies ... ... 419 

80. Presumption as to documents produced as record of evidence . . . 420 

81. Presumption as to gazettes, newspapers, private Acts of Parliament and 

other documents ... ... ... ... 425 

82. Presumption as to document admissible in England without proof of seal 

or signature . . ... ... — . . 426 

**3. Presumption as to maps or pl:^ns made by authority of Government 432 

84. Presumption as to collections of laws and reports of decisions . . . 434 

85. Presumption as to powers-of-attomey ... ... ... 434 

86. Presumption as to certified copies of foreign judicial records . . . 436 

87. Presumption as to books, maps and charts ... 438 

88. Presumption as to telegraphic messages ... ... ... 438 

89. Presumption as to due execution. Ac, of documents not produced . . . 439 

90. Presumption as to documents thirty years old . . . ' . . . ... 440 



CHAPTER VI. 

Or THB Exclusion of Oral by Documentary Evidenoe . . . 447 

91. Evidence of terms of contracts, grants and other dispositions of property 

reduced to form of document ... ... ... ... 462 

92. Exclusion of evidence of oral agreement ... ... ... 466 

93. Exclusion of evidence to explain or amend ambiguous document . . . 603 

94. Exclusion of evidence against application of document to existing facte . . . 508 

95. Evidence as to document unmeaning in reference to existing facte . . . 609 

96. Evidence as to application of language which can apply to one only of 

several persons ... ... ... ... ... 609 

97. Evidence as to application of language to one of two sets of facto to nei- 

ther of which the whole correctly applies ... ... ... 600 

98. Evidence as to meaning of illegible chuacters, &o. ... ... 615 

99. Who may give evidence of agreement varying terms of docnment . . . 619 
100. Saving of provisions of Indian Succession Act relating to wills . . . 620 



PART III. 

PRODUOTIOM AND BVFBOT OF BVIDBNOB 



CHAPiTER VII. 

Op the Burden of Proof ... ... 624 

101. Burden of proof ... ... ... ... ... 627 

102. On whom burden of proof lies ... ... ... ... 627 

103. Burden of proof as to particular fact ... ... ... 627 

104. Burden of proving fact to be proved to make evidence admissible . . . 628 
106. Burden of proving that case of accused comes within exceptions . . . 567 

106. Burden of proving fact especially within knowledge ... ... 669 

107. Burden of proving death of person known to have been alive within thirty 

years ... ... ... ... ... ... 672 

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

years ... ... ... ... ... ... 672 

109. Burden of proof as to rdationship in the cases of partners, lancuord and 

tenant, principal and agent ... ... ... ... 674 

110. Burden of proof as to ownership ... ... ... ... 676 

111. Proof of good faith in transacticis where one party is ir relation of active 

confidence ... ... ... ... ... 684 

112. Birth during marriage conclus-ve proof of legitimacy ... ... 688 

113. Proof of cession of territory ... ... ... ... 6M 

114. Court may presume existence of certain facte ... ... ... 696 



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CHAPTER Vni. 



ZIZ 

Paok. 



ElSTOFFEI. 

118. Estoppel ... . ... 

116. Estoppel of tenant ) 

and of licensee of p<n«on in poesessiou f 

117. EMoppel of acceptor of liill of exchange, bailee or licensee 



633 
642 
669 

679 



CHAPTER IX. 



Of Witnesses 

118. Who may testify 

119. Dumb witneeaee 

120. Pttties to civil suit, and their wives or husbands ; I 
Hosband or wife of person under criminal trial f 

121. Judges and Magisteatee 

121 Communications during muriage ... 

123. Evidence as to affairs of State 

124. Official communicatians ... ... ... ... 

12& Informaiaon as to commission of offences 

126. Professional communicatioDS 

127. Section 126 to apply to interpreters, Ac. 

128. Privilege not waived by volimteering evidence 

129. Confidential communicatJons with le^ 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 I 
Proviso . . . • ... • ■ • . • • • . • • ) 

133. Accomplioe 

13i Number of witnesses ... 



682 

684 
687 

687 

688 
690 
692 



694 
695 
696 
696 
706 

705 

708 

710 
717 



CHAPTER X. 



Op the ElxAMXNATioN or WrrNEssBs ... ... 720 

136. Order of production and examination of witnesses ... ... 726 

136. Judge to decide sa to admissibility of evidence... ... ... 727 

137. Examination-in-chief ... ... ... ' " j 

Qroes-examinations ... ... ... " ' ( ■ ■ ■ "^^ 

Be-axamination ... ... ... ... I 

138. Order of examinations ... ... '"I 729 

Direction of re-examination ... ... ... I " ' 

139. Ctoes-examination of person called to produce a doooment ... ... 744 

140. Witnesses to character ... ... ... ... ... 744 

141. Leading questions ... ... ... ... ... 745 

142. When they must not be asked ... ... ... ... 745 

143. When they may be asked ... ... ... ... 746 

144. Evidence as to matters in writing ... ... ... ... 749 

145. Cross-examination as to previous statements in writing ... ... 760 

146. Questi(m8 lawful in cross-examination ... ... ... 763 

147. When witness to be compelled to answer ... ... ... 763 

148. Court to decide when qnestion shall be asked and when witness compelled 

to answer ... ... ... ... 753 

149. Question not to be asked without reasonable grounds ... ... 756 

160. Procedure of Court in case of question being asked without reasonable 

grounds .... ... ... ... ... 757 

161. Indecent and scandalous questions. . . ... ... ... 767 

USL Qoestiaos intended to insult or annoy ... ... ... 757 

W. Exdoaon ai evidence to contradict answers to questions testing veracity . . . 758 

tM. Qoestiai t^ party to his own witness ... ... ... 761 

IW. bajieaohing credit of witaiess ... ... ... ... 766 



VtU 



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X2. 



CONTENTS. 



Sections. 
166. Questions tending to ooiroborate evidence of relevant fact, admissible 
167- Former statements of Tritneas may be proved to corroborate later testimony 
as to same feat 

158. What matters may be proved in connection with proved statement relevant 

nnder section 32 or 33 

159. Befresbing memory ... ... ... ■ • • ( 

When wibiess may use copy of document to refresh memory. . . | 

160. Testimony to facte steted in document mentioned in section 159 

161. Bight of adverse party as to writing used to refresh memory. . . 

162. Froduotion of documents. ... ... ... | 

Translation of doonmente ... ... ... i 

163. Giving, as evidence, of document called for and produced on notice 

164. Using, aa evidence, of document production of which was refused on notice 
166. Judge's pow«r to put questions or order production 
166. Power of jury or assessors to put questions ... 



Paue. 
772 

773 

776 

776 

■"777 
777 

784 

787 
788 
789 
796 



CHAPTER XL 



' Of iMrBOFBB Admission add Rejection or Evidbncb 
16V. No new trial for improper admission or rejection of evidence 



796 
798 



SCHEDULE — Enactments bifealbd 



805 



APPENDIX. 


« 


(A) Flaoes to which the Act has been applied 
(Aa) Law Commiasioners' Report 


809—816 
816-869 


(B) Stamps 


860-863 


(G) Registration 

(D) Tmian Oaths Act ... 


864—868 
867—869 


(E) Bankers' Books 


870-871 


(P) Appendix to s. 13. 


872 874 


Oenkbal Ln>EX 


876-924 



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ADDEJSnA. 



Ss. SS« 11> 116. — ^Wliere, in a suit {or rent of land from defendant, plaintiff alleged that 
be bought the land from the defendant and thereafter leased it to him year by year and the 
defeodant totally denied the sale and the lease, no question of tide was held to arise on the 
pleadings because, if the lease were proved, the defendant would be estopped by s. 116 of 
the Act from denying his landlord's title. The faot in issue in the ease was held to be (be 
lease alone, but evidence might be given of the faot of the sale also, as a relevant fact, corro- 
bocatave of the fact of the lease. Therefore, evidence relating to the sale was rightly 
admitted and was righUy considered by the Lower Appellate Court, but that Court was in 
error in having r^arded the fact of the sale as a fact in issue. Kaung Hla Pru v. iSait Paw, 
3 L. B. B., 90. 

S. 6. Objection to Svidenoe. — The only question in the suit was whether the 
Court of first instance was right in having admitted a copy of a sale-oertifioate in jdaoe of 
tbe original, which was not proved to have been lost. Held, that, when the copy was filed 
bT the defendant, plaintiff did not take any objection to its admission. ConsequenUy, no 
objection ooold be entertained in appeal as to its admissibility. Thet She v. Maung Ba, 3 
K B. B., 49. 

S. 13, — The plaintiff sued the defendants for possession of an estate, on the assertion 
that she was the daughter of its last undisputed owner. The defendants resisted the daim, 
on the ground that the jdaintiff was excluded from inheritance by virtue of a custom pre- 
vailing in the family and tribe to which the partiee, who were Songarha GhcmMans, belonged. 

Hdd that there was no objection to a party jdeading that a custom obtains both in a 
famfly and in the tribe to which that family belongs ; but he must prove that the custom is 
liirwiiwg on the family, whether he confines his evidence and plea to the family or not. 

A custom, to be valid, must be ancient, continuous, reasonable and definite, and all 
this most be established by clear and unambiguous evidence. Muaamat Pariati Kuar 
T. Jtam Chani/rofpai Knar; 6 O. C, 94. 

SS- 18, 85. — It was the practice, in old times, for the Lower Courts in Bengal to set out 
tiie iileadings in tiieir judgments, and this practice was recognised by Circulars issued by tbe 
Sadder Dewany Adalut. Such judgments are, therefore, admissible in evidence under this 
•eoticHi as an admission by a party. They are also admissible under s. 13 of the Act as 
iostanoes in which the right in question was claimed and disputed and disallowed. Bhaya 
Diryuf Deo v. Pande Fateh Baliadoor Bam, 3 C. L. J., 621. 

S. 18. — A decree by a oo-sharer landlord is not admissible as evidence as to the rate of 
reot in a suit brought by another co-sharer. Abdvl AH v. Baj Chandra Dat, 10 C. W. N., 
1084. 

ConfessiOII. p. 108 A 'confession' is 'an admission made at any time by a person 
charged with a crime stating or suggesting the inference that he committed the crime', so, an 
incriminating statement, t^ch faUs short of an absolute confession, but from which the 
inference of guilt follows, is a ' confession. ' Such a statement, if made by the accused while 
m Police custody, ought to be excluded from consideration as inadmissible in evidence. 
Bakiman v. B., 61 P. L. E., 1906 ; 2 Cr. L. J., 230. 

Ss. 21, 84, 25, 26, 27 applied and discussed in Harbant v. B., 8 O. C, 395. 

S. 30. — Statements made in Court by one accused incriminating a co-acoosed, but excul- 
pating himself, are not confessions and cannot legally be taken into consideration as against 
the co-aocmed. A statement made to the police by an accused person to the effect uiat if 
certain other persons were sent for, he would see that some other property was traced out, 
is not evidence to prove that the accused had been guilty of abetment of theft. Bisham Dutt 
T. «.. 2 A. L. J., 53; 2 Cr. L. J., 22. 

S. 82, oL (1). — The commission of a violent assault, by several accused persons, upon 
two persons, caused their death. Held, that the statements of a deceased person, made prior 
to his death, as to the cause of his death, or as to any of the oireumstances of the transac- 
tion which brought about his death, were relevant as against all the accused. Khana v. B., 67 
P. L. R., 1905 ; TCr. L. J., 237. 

S. 82, CI. (1) ; page 201, n. (5) : B. r. aamiruddin foUowed in B. v. Dauiat Kunifra> 
6 0. W. N., 921 (1902) and «e« as to proof of dying declarations. B. v. Maihura Thakur, 6 C. 
W. N., 72 (1901). 

& 88, Cls. (4), (5).— Neither oL (4) nor ol. (6) of b. 32 of this Act justifies the admission 
of hearsay evidenoe upon the question whether a partionlar person survived another or upon 
tbe questMrn wbetiier a man was, at the time of his death, joint with, or separate from, other 



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XXll ADDENDA. 

members of his family, nor can the grounds of the opinion of a deceased person, as to the 
existence of a custom, even if stated to a witness, be, as such, proved under that section. 

When a Tntnees speaks to facts which occurred in his own life-time, in his own family, 
village or neighbourhood, after he emerged from childhood, it may be presumed that he is 
testifying to his own knowledge ; but when he speaks of instances of the application of 
the custom or particular facts which occurred before he was bom and he does not give the 
source of his information, it cannot be presumed that he is repeating information acquired 
from his father or grand-father or some other person, who would be likely to have been 
aware of the facts. 

On the contention that certain documents filed by the defendants were not admissible 
in evidence as they related to the succession to a raj or gaddi, while it was exincesly admitted 
that the succession to the estate in suit was not governed by such a rule, it was held that 
those documents were admissible in proof of the custom set up by the defendants, although 
they related to estates which devolved upon a single heir. Muttamat PmhaH Knar v. Rani 
Chandrapai Kvar, 8 O. C, 94. 

Sa. 88 (5), 85. — A register of baptism, while evidence of that fact and of the date of it, 
furnishes, even if it states the date of a person's birth, no proof of the age of that person 
further than that, at the date of such ceremony, the person referred to was already bom. 
Evidence regarding the date of a man's birth has been held under certain circumstances 
to be admissible under a. 32 (5) ; but, in the case of an entry in the register in question, 
there is nothing to show by whom the statement entered was made, much less that the per- 
son making the statement had any special means of knowledge. Collier v. Baron, 2 N. L. 
R., 34. As to proof of date of birth after lapse of years, see Natoab Shah Ara Begam v. 
Nanbi Begam. 11 C. W. N., 130 (190fi) P. C. 

S. 38. — A Sessions Judge, finding that the witnesses, who had been summoned to give 
evidence for the prosecution, did not appear upon the date fixed, adjourned the case for 
eighteen days and ordered fresh summonses to be issued. On the adjourned date, the 
witnesses were again absent. Thereupon, the Sessions Judge made use of the evidence 
which those witnesses had given before the committing Magistrate, purporting to do so 
under s. 33. Beld, that the evidence could not be so used, but the Sessions Judge ought to 
have directed warrants to issue to enforce the attendance of the prosecution-witnesses and 
compelled their attendance in Court. B. v. Nanhe Khan, A. W. N. (1905), 202 : 2 A. L. J., 
699 ; 2 Cr. L. J., 518. 

S. 85- — Upon a question of custom, a wajib-nl-art is generally more valuable as a record 
of opinion of persons presumably acquainted with the custom, than as an official record of 
the custom ; but, if dmy attested by settlement officials and signed by zemindars of the village 
to which it relates, it may be admitted in evidence under this section- Musamat Parbati 
Kwtr V. Rani Chandrapai Kvar, 8 O. C, 94. 

Entries in v>ajib-vl-arz are admissible under, to prove family custom of inheritance 
Miusamat LaU v. MuHi Dhar, 10 C. W. N., 730 ; 3 All. L. J., 415 ; 8 Bom. L. R., 402 (P. C). 

S. 86. — Maps — substantial accuracy and so on sufficient: Luihi Narain v. Jodu 
Nath, 21 C, 604, 510, 611 (1893) [Burden of proof in boundary suits]. .Vonmohini Debt 
V. Samamoy» Debi, 27 C, 336. 

S. 44. — A consent-decree will, except in cases of fraud or collusion, be binding on all 
parties thereto, so long as it subsists. A party to such a decree cannot escape from its effects, 
merely by the plea tiiat his consent thereto was given by his pleader in excess of his 
authority. The exceptional case of fraud or collusion will have to be specifically alleged 
and substantiated by the oartv setting it uo. Baikantha Nath Roy Chowdhry v. Mohendra 
Nath Roy, 1 C. L. J., 66. 

Haintifi having obtained letters of administration to the estate of a deceased land- 
lord sued a tenant for rent. The latter in his written statement objected that the 
letters of administration had been obtained upon a misrepresentation by the nIaintiS as 
to his relationship with the intestate. 

Hdd, that assuming that the letters of administration could be regarded as an order 
within the meaning of s. 44 of this Act, the allegations of the defendant were not such as 
would entitie him to go into evidence for the purpose of proving that the letters of adminis- 
tration were invalid in law. And also that such a defence comd not be successfully raised 
so long as the letters of administration were not revoked by a competent C!ourt : Ambiea 
Charan Das v. Kola Chandra Das, 10 C. W. N., 422. 

S. 46. — In a suit for infringement of trade-mark evidence of opinion as to the proba- 
bility of the purchaser being deceived o. otherwise is not admissible. For this is the point 
the (Jonrt is asked to decide. Nooroodin Sahib v. Sowden, 15 M. L. J., 45 (F. B.) : Nemi Chand 
V. Wallaee, 4 C. L. J., 268 [and this is so not only on the issue of the infringing nature of 
the mark but also upon the question whether persons in objecting to and taking proceedings 
with reference to the mark did so honestly and without malice] ; foil. North Cheshire, etc 
Brewery Co. v. Matichester Brewery Co.. 1899 H. L.,S3, 84, 86 and «ee also as to evidence 
of expwts and duty of Judge in " passing off' ' cases L. R. (1901), A. C, 308 ; L. R. (I90I), 
I Ch., 136 ; L. R. (1903), 1 Ch., 211— 227. 



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ADDENDA. XXIU 



S. 48- — Entries made in WajA-nl-arz are admissible under, as record of opinions a 
to the existence of family custom of inheritance by persons iikelv to know of it, Mwtsamal 
laU V. MutH Dhar. 10 C. W. N. 730 : 3 AU. L. J.. 415 ; 8 Bom". L. R., 402 (P. C). 

S. 63. — A copy of a copy of a mvlpuUa is not admissible even as secondary evidence 
of the contents of the original. Secretary of State v. Mangheshwar Kriahnayyar, 16 M. L. 
J.. 147 : 28 M., 257. 

Ss. 70, 114. Suit for foreclosure. Some of the original mortgagors admitted, while 
others denied, execution of the mortgage-deed sued on. The first Court threw on the plaintiff, 
the burden of proving the mortgage to be a vtJid one. The attesting witnesses were 
examined and they deposed that they saw the executants sign and that they attested 
the document but they were disbelieved by that Court, which, therefore, held the 
deed to be operative merely as a simide money -bond. The plaintiff appealed and the 
Divisional Judge held, that, as the execution of the deed had been proved and the attesta- 
tion was one prima facie duly made, it should be presumed valid unless there was definite 
evidence showing the contrary, and, that, as the burden of proof lay on the defendants and 
they had not satisfactorily discharged it, plaintiffs were entitled to obtain the foreclosure 
decree prayed for. On second appeal, it was further contended in support of the mortga- 
gees that, 8. 70 of this Act is inconsistent with their being required to do more than prove 
execution by the mortgagor of a deed, which purports, on its face, to have been attested, 
but that contention was overruled on the groimd that there was no such inconsistency 
since the execution of a deed, to whose validity attestation is essential, designates the 
whole operation, including both the signature of the party and the attestation of the sub- 
scribing witnesses and s. 70 lays down no rule as to the burden of proof, but, in a parti- 
cular dass of cases, makes proof of partial execution adequate as proof of complete execu- 
tion. Held, also that, where there is evidence on both sides as to the factum of attestation, 
the maxim ' 'omnia rite, esse acta' ' can only be resorted to, if at all, when the evidence 
on both sides is evenly balanced. The maxim operates when there is no evidence on 
either side, and possibly it may be used to eke out unconvincing testimony on one side 
only. In the present case, therefore, the decree of the lower Appdlate Court was reversed, 
snce it had erroneously proceeded as if the maxim compelled the mortgagors to show that 
the attesting witnesses could not have seen the mortgagors sign the mortgage-deed. 
Jtiama v. Deotmx, 2 N. L. R., 10. 

S. 90. — When a document, which is over thirty years old, has been tendered under 
this section, it is for the Court to determine (which is a matter for judicial discretion), 
whether it will make the presumption mentioned in the section, or will call upon the party 
to offer proof of the document, stating its reason in the latter event, and, in the former, 
whether the presumption has been rebutted or not. SrituUh Patra v. Kvloda Prasad 
Banerjee, 2 C. L. J., 692. 

Although a person appointed manager by the Court, of the property of an insane 
person, ought to restore a document in his possession as such manager to the pro- 
prietor, when he is removed from the management, his failure to do so does not, having 
regard to the explanation to this section, make the custody of the document improper within 
the meaning of the Act. Shyama Charan Nmtdy v. Abhiram Oosuxtmi, 3 C. L. J., 306 ; 10 
C. W. N., 738; 33 C, 511. 

S. 01. — Where two co-parceners, by agreement, appointed a sole arbitrator to effect a 
partition of ibeix joint ancestral property and consented that the partition effected by the 
arbitarstor, by taking the bids of the parties for the property, would be accepted and the 
award was thereon made and written upon the back of the said agreement (which was not 
legistered), held, that the document was intended to be, and was regarded by the parties as, 
an instrument declaring rights in or to immovable property and that, since it did 'operate to 
declare ' such rights in immovable property of value exceeding Rs. 100, it was an instrument 
compulsorily registrable, and being unregistered, not receivable in evidence and that, 
farther, by reason of s. 91 of the Indian Evidence Act, it was not open to the parties to 
prove the partition, independently of the document, by oral evidence aliunde. Azimai 
Sitvh V. Kalwara Singh, 71 P. R., 1906. 

Plaintiff sued to recover money from the defendant alleging that defendant had 
executed a pro-note in his favour on account of rent due, and that, as the said pro-note 
was not property stamped, he claimed the same as a debt due under a prior book account. 
The suit, as based on such account, was admittedly barred by limitation at the date of its 
instatntaon. It was contended on appeal that the suit was maintainable on two other 
grounds, viz. : — 

(1) When the pro-note was executed, the defendant had agreed verbally to pay the 
amount in question on a certain date and that limitation therefore began to run from 
that date. 

(2) Plaintiff could rely upon the defendant's admission of the execution of the pro- 
note, leaving it to him to prove the repayment of the amount. 

ffel(f(l) as the oral agreement was, on the same day, embodied in a written agree- 
ment (pro-note), the pro-note alone could supply the evidence of the agreement, ana the 



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XZIV ADDENDA. 

Utter could not by reaaon of this section be proved aliunde : (2) the admission as to the 
execution of the deed coold not be relied on, in respect of the liabiliti/ thereunder. Under 
these circumstances, granting plaintiff a decree would be 'acting upon' and giving effect to 
the pro-note, a document, which, under section 36 of the Stamp Act, could not be admitted 
and acted upon by a Court for any purpose. Qanga Bam v. Amir Chand, 66 P. R., 1906. 
The consideration for a contract being different from the "terms of such oontraot" in 
proof of which alone this section says that " no evidence shall be given," this section does 
not prevent extraneous evidence as to consideration. Probal Chandra Qangapadkya v. 
Chirag AH, 33 C. 607. 

This section does not preclude a landlord from proving improvements in consideration 
of which enhanced rate was agreed upon. Probol Chandra v. Chtrag Ali, 11 C. W. N., 62 
(1906). 

S. 92. — In a partition, the house in suit and site near it fell to tlie plaintiff's share and 
the adjoining house to the share of the defendant. The plaintiff alleged that, when he 
proceeded to onild a wall over the site, the defendant, who had no right of way over the 
site, and who had other means of access to his house, obstructed the building of the wall. 
A suit was then brought by him for injunction and damages. The defendant mainly con- 
tended that he had an easement of necessity over the site, as his gosha ladies could go only 
by that land to the courtyard, and set up an agreement at the time of partition in support 
of his alleged right of way. Hdd, that the oral evidence of the i^[reement was not ad- 
missible in evidence and the partition -deed made no provision for therightof way claimed. 
Sabapathy Mvdali v. Kuppusami/ Mudali, 16 M. L. J., 226. 

Ordinarily, oral evidence is not admissible for the purpose of ascertaining the inten- 
tion of the parties in interpreting language used in a written document, which is clear and 
unambiguous. Unless the Court is able to assume some oral agreement, it would be im- 
possible to regard the contemporaneous or subsequent conduct of the party, as in itself 
evidence to establish the intention of the parties at the time of the execution of the 
document. Such extraneous intrinsic evidence would necessarily be of value, only as a 
ground for inferring an oral agreement of which evidence is excluded by this section. 

The frand, which under proviso 1 of s. 92 may be proved, must be fraud which woidd 
invalidate the document and, therefore, subsequent fraud in respect of the document, not 
such as to invalidate it, could not be a ground for admitting extraneous oral evidence 
under proviso 1 of s. 92. The real effect of admitting such evidence would not be to prove 
fraud in the execution of the document, but the existence of a different intention than that 
which appears on the document itself. In other words, it would be an attempt to prove 
a different contract from that expressed in the document without proving any fraud in 
the preparation of the document which would invalidate it. 

The "want or failure of consideration" contemplated by the proviso 1 to s. 92 is a 
complete want or failure of consideration, for no consequence invalidating the document 
cotdd follow save from such failure (Contract Act, s. 26). 

Proviso (6) to s. 92 does not cover facts which are intended to show that the language 
of a document meant the exact opposite of what it purports to mean. There is no necessity 
for the exidaiiation of the language used in relation to existing facts. The only object or 
use of sucn evidence, if admitted, would be to show that the language was mtended to 
mean something which is utterly incapable of being expressed by that language. 
Kethavarao Bhagtoant v. Bay Pandu, 8 Bom. L. R., 287. 

On the I7th April, 1892, the defendants passed a sale-deed of certain lands at G. to 
plaintiff for Re. 600. On the same day, the plaintiff sold some lands at T. to the defend- 
ant's sister for Rs. 600. No money passed under any of these transactions, the one 
being a consideration for the other. In 1898, the plaintift were dispossessed by a 
person deriving title from a purchaser at a Court sale on the 6th June, 1886, of G. lands in 
execution of a decree asainst the defendants, who bad somehow remained in possession. 
The plaintiffs, thereupon, nled a suit against the defendants to recover the possession of the 
lands at T., or in the alternative for compensation for the loss sustained by him by reason 
of his dispossession : 

Held (1) that the two deeds professed to be deeds of conveyance ; and the mere fact 
that they were mutual deeds of conveyance would not make the transaction an exchange. 
Whatever might have been the intention of the parties, having regard to this section it was 
impossible to treat the transaction of 1892 as one for exchange. Hanmant Narsinha v. 
Oovitui Paiuhmmg Kamat, 8 Bom. L. R., 283. 

A registered instrument of mortgage takes effect against any oral agreement relating 
to the hypothecated property, snd no parol agreement which purports to modify the 
terms of the contract of mortgage by reducing the amount recoverable thereunder, by 
taking away the right of sale, and by providing for the payment of the reduced debt by a 
sale of other property, can be proved, in view of the provisions of this section. Mahoraj 
Singh V. Baja Mwant Singh, 3 A. L. J., 274 ; A. W. N. (1906), 117 ; 28 A., 608. 



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ADDENBA. ZZV 

The {daiatifE sued to redeem his land alleging that his lands were mortgaged with tiie 
defendants under a nominal sale-deed. The lower Appellate Court treating the contract 
as embodied in the deed as one of sale rejected the suit : 

HM, that the question involved was not whether the document was one of sale or 
mortgage but whether the real agreement between the parties was embodied in the docu- 
ment. Ansa Tvka v. Kenehappa Satappa, 8 Bom. L. B., 669. 

Evidence of intention cannot be given for the purpose merely of construing a docu- 
ment. And this section, subject to the proviso therein contained, forbids evidence to be 
given of any oral agreement or statement for the purpose of contradicting, varying, 
adding to, or subtracting from the terms of any contract, grant or other disposition of 
property, the terms of which have been reduced to writing as mentioned in that section. 

Whil^ there are restrictions on the admissibility of oral evidence referred to ab ove, s. ft2 
in its first proviso recognises that facts may be proved by oral evidence which would invali- 
date a document or entitle any person to any decree or order relating thereto. And where 
one party induces the other to e<Kitract on the faith of representations made to him, any 
one of which is untrue, the whole contract is in a Court of equity considered as having 

been obtained fraudulently. Abaji Annaji v. Luxtnan Tukaram, 8 Bom. I>. R., 663, ; 30 

B.. 426. 

Plaintiff, having executed a deed of sale of his lands to the defendant as an absolute 
and onconditional conveyance, now brought this suit asking for a declaration that a 
^ansaction was a mortgage and not an out-and-out sue and for an order that the 
defendant should reconvey the property to him on his paying the purchase-money 
into Conrt. On the side of the plaintiff, there was evidence to the effect that the transac- 
tion was entraed into as a temporary sale to enable the defendant to raise money for the 
plaintiff and on the understancUng that plaintiff was to be allowed to redeem the property 
whenever he could do so, the defendant having ureed, during the negotiations and when 
the deed of sale was executed, to allow the plaintiff to redeem at any time. There was also 
evidence of the acts and conduct of the parties tending to show that there must have been 
Rich an agreement between them. The Court of first instance, by its decree, allowed t^e 
plaintiff to redeem the property, but the lower Appellate Court reversed that decision on 
the ground that the above evidence to show that the transfer to the defendant was by way 
of mortgage or conditional sale, and not an outright sale, as the instrument of transfer 
purported to be, was inadmissible. On a reference to the Full Bench, on second 
appeal, of the question whether evidence of a contemporaneous oral agreement, or of 
the conduct of the parties, is admissible to show that a transaction reduced to the 
form of a deed of unconditional sale was in foot, or was intended to be, a conditional 
sale or mortgage. Held, that, in cases in which it is attempted to show, by evidence of a 
contemporaneous oral agreement to that effect, that a transaction reduced to the form of 
a document and purporting, by that document to be an absolute sale was in reality a mort- 
gage or conditional s<ue, the Courts cannot admit any such evidence, the same being excluded 
by the terms of this section, unless when admissible as covered by one or more of the pro- 
visos to that section. 

Evidence of conduct of the parties is also inadmissible, as such evidence could be rele- 
vant, (mly on the ground that the conduct leads to the inference that there was a contem- 
poraneous oral agreement or statement between the parties that the absolute sale-deed was 
to operate only as a mortgage and not as a sale, but tiiis section enacts that no evidence of 
any oral agreement shall be admitted to vary the terms of the contract or grant, and no 
exception is made in the provisos in favour of evidence which consists of the acts and 
conduct of the parties from which an inference might be drawn that there was such an oral 
agreement. Maung Bin v. Ma Hlaing, 3 L. B. R. 100 (F. B.). 

Held, that notwithstanding the provisions of this section, tiie defendants were entitled 
to show tiiat a document purporting to be a deed of sale executed by them was intended 
to be a mortgage and not a sale. Bam Sarup v. Allah Bakha, 107 P. L. R., 1905. 

Wheie a partition-deed, in which special provisions were made for giving means of access 
to various portions of the partitioned property, was silent as to means of access over the 
share in question, hdd, that an alleged contemporaneous oral agreement to add to the terms 
of the p^ition-deed was inadmissible in evidence by reason of this section. Krithnamaratu 
V. Uarrajn, 28 M., 496. 

The Privy Council recently have held that a transaction which purported to be a sale 
was really a gift. In this case K B through her attorneys conveyed the property to her 
daughter H B apparently as and by way of sale ; and though K B took under the docu- 
ment and alleged it was a sale ancl that she had paid the purchase price it was held 
as above. ItnaU Miutajee v. Hafiz Boo, 10 C. W. N., 670. 

Ss, 92 (6), 98. — Evidence held admissible under, because it showed how the plaint 
document was related to existing facts and because the nature of the landed t«iures 
was a special matter which could not be stated off hand, but required to be elucidated 
by a iMoence to the particular facts. Raja Qour Chandra v. Saja Makunda DA, 9 
C. W. N.. 710, jitr Pargiter, J. 



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ZXVl ADDENDA. 

Sb. 82, 99. — ^The plaintiff sued to recover one-fourth of tlie price of a house alleged 
to have been gold by the fint defendant to the second defendant, the claim being based 
upon a local custom. The transaction between the defendants was <»tensibly not a sale 
but a usufructuary mortoage. Hdd, that the plaintiff, not being a party to the transaction 
was entitled to give evi^nce to show that what purported to be an usufnictuai^ mortgage 
was not in reality such, but was in fact a sale. Bageshri Dayal v. Paneho, A. W. N. (1906), 
98 ; 3 A. L. J., 314 ; 28 A., 473. 

Ss. 101—104. Presninptloii sUftliie: burden of proof, p. 529.— 

Where the fact, giving rise to such a presumption as may be drawn under s. 114. is un- 
disputed and no explanation negativing the presumption is offered, the Court is justified io 
laying the onus proper where, but for the presumption the onus could not be laid. But, 
where an explanation negativing the presumption is forthcoming, the Court is not in a 
position to draw the presumption until it has heard the evidence in support of the 
explanation and, therefore, must ignore the preanmption for the purpose of determining 
where the onus proper lies, on the principle " when conflicting evidence on a point 
covered by a presumption of law is to be gone into the presumption of law is fundus 
officio as a presumption of law." Such a presumption, therefore, cannot shift " the burden 
of proof ' in the sMot sense of that term and the most that it can effect is a shifting of 
" the burden of evidence" — the burden of going forward with new evidentiary matter — 
and s. 4 of the Act indicates that it is for the Court, which is taking evidence, to decide whether 
such a (Kesumption is strong enough to produce even mat limited effect. PaJcko 
Muaalman v. Dm/ali, 1 N. L. B., 169. 

Aooonnt : ag^enoy, p. 530.— When once the plaintiff establishes that the defend- 
ant is his agent and that he is an accounting party, the defendant ought to prove his 
receipts and disbursements. Ragunaih v. Oanpatji, 27 A., 374. 

Benami, p. 581.— The onus of proving a particular transaction to be t«m/arz<lies 
on the person alleging it. Oumani Singk v. cSakhar Singh, 8 O. C, 349. 

Civil prooednre, p. 534. — Burdenof proof in suit instituted by defeated claimant 
under s. 283, Civil Procedure Code. The plaintiff in a suit under that section is neither in 
a better nor in a worse position than he was as a claimant in the summary proceeding. 
It is sufiScient for him to produce evidence of possession or title. If he shows that he is 
in possession then s. 110 of this Act throws the onus on the defendant. Palaneappa Chetti 
V. Maung Po Sang, D. B. B , 1905. See Narayan Ganesh v. Bhirraj, 2 N. L. R., 87. 

If a defendant insista that an executor is a necessary party, it is for him to show that 
he, the ezecntor, lives witiiin the local limits of the jurisdiction of the Court in which the 
suit is bron^t. Kumar Saradindu v. Dhirendra Kant Soy, 2 C. L. J., 484. 

ColUBiot of laws, p 534. - It lies on him who asserts it to prove that the law 
of a foreign state differs from ours, and m the absence of such proof it must be held that no 
difference exists, except possibly so far as the law here rests on the Specific Acts of the 
Legislature. Ibighnnathji Mulckand v. Jiwanda» Madanjee, 8 Bom. L. R., 536. 

Contntet, p. 536.— if in a suit on a hundi the execution is admitted by tiie execut- 
ant, the burden of proving special circumstances exonerating him from liability to the 
amount of the Hundi liee on the executant. Ram Daa v. Mvihra Dot, 6 P. L. R., 1905. 

In order to make a broker liable on the ground of want of authority, the onus is 
on the plaintiff to affirmatively prove such want of authority. Biatatur Dag v. Smidl, 
10 0. WT N., 14. 

Custom, p. 538. — As under Mahommedan law, adoption is not recognized, the 
onus of proving a custom of adoption contrary thereto lies on the person alleging it. 
Ohulam Ali Shah v. Shahbal Singh, 3 P. B., 1905. 

Primogeniture — Rule in derogation of Hindu Law. Shyamanand Das Mohapafra v. 
Bama Kanta Das Mohapatra, 32 C. 6, and see Ahtd Hossain v. BabibvUah, 18 P. R., 
1906, where evidence of proof was held to be on him who set up special custom inconaiBt- 
ent witii ordinary rules of inheritance ; and see Badam Kumari v. Suraj Kumari, 28 A, 458. 

As to Khaixies being governed by customary law of Punjab in matters of alienation 
of land. See Alar Singh v. Prem Singh (1906), 12 P. R. 

Domicile, p. 539. — Proof that setUer of a settlement was a foreigner with foreign 
domicile. Bonnaud v. Charriol, 9 C. W. N., 394 ; 32 C, 631. 

The onus of proving that a particular form of vicinage gives a preferential right of 
pre-emption rests on the persons asserting it. Dhumimal v. Aa(u, 67 P. R., 1906. 

KlUMmont, p. 539.— Where in a suit for possession of property the defendant 
admits plaintiff's right to it, but claims to use it by right of easement, the onus is on the 
defendant. Mir Mansub Ali v. Muhammad Akbar, 26 P. L. R., 1906. 

Hindu Law : Joint family, p. 641. - Limitation. Under Art. 127 the onus is on 
the defendants to prove that exclusion from the joint famil;^ became known to the 
^aintiff more than 18 years before the suit. Bama Nalh ChaUerju v. Kusam Kamini, 4 
C. L. J., 66. 



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ADDENDA. XXVU 

ffindn Irfk^V : Joint property, p, 641 —To render property in the hands of 
manbers of a joint Hindn family joint property, the consideration for its purchase must 
have either proceeded out of ancestral Funds, or have been produced out of the joint 
pro p er ^ or by joint labour. But neither of these alternatives is matter of legal presump- 
tion. It can only be brought to the cognizance of a Court of Jostice in the same way as 
toy other act, triz.. by evidence Consequently, whoever's interest it is to establish it, he 
must be able to produce the evidence. Htm Natk Rai v. Janki Rat, A. W. N. (1905), 212 ; 
2 A. L. J., 668. 

Hiadn \jKW, p. S4L — Following Hindu law of the Mitakshara School, where 
a member of a joint Hindn left the family home and started a shop with funds 
of bis awa, admittedly non-ancestral, hdd, that any member of the family claiming to have 
a share in the shop, must show, as a matter of fact, and by clear evidence, that in some 
way he was associated in the business and became, by taking part in the business or 
otherwise, a partner. Otherwise the trading member is alone entitled to his entire acqui- 
■itionB from such business and the presumption of Hindu law that the property with a co- 
parcener is the property of the whole joint family does not arise. Rijhu Ram v. Mohan 
iaJ, 25 P. B., 1906 ; 81 P. L. R., 1906. 

Sndn Irftixr : ialieritiaiioe, p. 641. — The presumptimi of Hindu law is against 
&quaGfication and the onus lies on the person who seeks to exclude another, who 
voald be an heir, should no cause of exclusion be established. Hdan Dati v. Ihiroa Da 
Mndal, 4 C. L. J., 323. 

ffiadn Iiaw : alienation by 'widO'W, p. 646. — Consent of some only of re- 
versionera. Consent may be evidence of propriety of transfer. Where in a suit by rever- 
sionerB consent raises no presumption that the sale was necessary or proper, the onus 
of validating t^e sale Ues on the defendant. Chandi Singh v. Jangi Stngh, 8 O. C, 21 

Hindu Itaw : alienation by manager, p. 647.— Persons relying on acts of 
the manager of a joint Hindu family and seeking to - bind the other members must show 
that the acts trsxe done by the manager, either for the benefit of.or for some necessity of 
die family. Narayan v. Political Agent, 7 Bom. L. R., 172. 

Hindn lAlxr : alienation by fatber, p. 660.— Personal decree against father 
of joint Hindu family — Liability of sons' interest to attachment. Kasan Singh v. Bhup 
Singi, 27 A., 16. 

laandlord St tenant, pp. 664—656. — Ordinarily the onus is on the landlord who 
inks for a settlement of additional rent for additional lands, to show that they are on 
excess of those for which rente are being paid. Ishan Chandra Mitter v. Ramranjan 
CnattktrbuUy. 2 C. L. J., 126. 

When a tenant claims exemption from enhancement of rent under s. 50 of the Bengal 
Tenancy Act, the onus lies on him to prove that he has held the tenure at a rent or rate 
of rent which has not been changed since the permanent settlement, or for 20 years or more 
preceding the suit. Oovinda Pnya v. Ralan Dhupi, 4 C. L. J., 37. 

As under the Tenancy Act a landlord has a right to eject a tenant whose holding 
consists entirely of sir land, the burden of proving the existence of a special contract 
mider which he is entitled to resist ejectment Ues on the tenant. Ktsheo Rao v. Poran 
Rami. I N. L. R.. 32. 

The imoa is on the landlord in a suit Ua possession on the ground that land is mat and 
not UMiraj. Sheikh Milan v. Mahomed Ali, 10 C. W. N., 434. 

Onus of proving that partioular lands were included in permanent settlement is on him 
who aflbms it. Value of Utak and survey maps in this regard. Ananda Hart Basak v. 
Saerelary of State, 3 C. L. J., 316. 

Limitation, p. 667. — Art. 95, Limitation Act — Fraud — knowledge of. — It is for 
the defendant to allege and prove that the plaintiff was aware of the fraud on a date 
earlier than that assigned in the plaint. Raja Ralan Singh v. Thakur Man Simjh, 1 N. 
L. R., 20, and see Tants v. Oajadhar, 2 N. U. B., 98. 

Legitimacy, p. 657. — Legitimacy — marriage — continuance of marriage — divorce. 
See Bhima v. Dhulappa, 7 Bom. L. R., 95, referred to in addenda to s. 112. 

Onus of proving allegation of Ul^timacy. The law presumes that a child born to a 
wife is the husband s offspring, and it is for the party who alleges illegitimacy to rebut the 
presumption by proof of non-access. Sakina Khanum v. Laddan Sahfba. 2 C. L. J., 218, 
and see Kalian Singh v. Maharaja, A. W. N. (1905), 214. 

MaUdonS proseontion, p. 659.— If' plaintiff is convicted in first court, and 
acquitted only on appeal. Uie onus cast on him by the law is especially heavy. He must 
show that the original conviction proceeded on evidence, known to the complainant to a 
false, or doe to wUfnl suppression by him of material, information. Thimma Reddi v. 
Chatna Reddi, 16 M. L. J., 18. 

Maliolons arrest and prosecution, p. 569. -Onus. Thakdi Hajji v. Bud- 
Twiin 8aib, 29 M., 208. 



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XXVUl ADDENDA, 

Mort^ftKe, p. 560. — Mortgage— In a suit for redemption the plaintiff must prove 
the existence of a subsisting mortgage which he is entiUed to redeem. Muaafir Jluti v. 
Jagan Barta, 2 AIL L. J., 62. 

MsasnremAIltS, p. 560.— Standard measurement — Onus of proof. Where a 
plaintiff alleges and adduces evidence to show that the standard of measurement pre- 
valent at the time the claim b made was in use when the tenancy was created and the 
defendant asserts that the standard prevalent at the creation of the tenancy was a 
different one, bn( gives no evidence of it. the Court mav presume that the state of things 
in existence at the time of the suit existed also at the inception of the tenancy. Ithan 
Chandra Mitter v. Rammnjan Chaekerhtttty, 2 C. L. J., 126. 

Notloea. p. 560. — Act XI of 1850. Revenue Sale. The onus is on the person, who 
seeks to have a sale set aside, to establish that the requirements of the statutes have not 
been complied with by the Collector. Sheikh Mahomed Aga v. Jadunandan Jha, 10 C. 
W. N., 137. 

The same. Suit for ejectment by purchaser. Onus on ruyat to show that he held 
land as such. Ambika Churn ChakramHi v. Dya Oazi, 10 C. W. N., 497. 

" PoWBingr" off OASe, p. 561.— In a " passing" off case the burden of proving 
that particular words have acquired a secondary signification lies on the person alleging it. 
Smidt V. Seddaway, 32 C, 401. 

Possession, p. 561. -Possession. See addenda to s. 110. 

Pro-ontptioil, p. 561. -If a right of pre-emption is based on custom, the onus 
is on the defendants to show that a custom proved to have once existed had come to 
an end. Birjanandan Lai v. Musaamat Kunvxvri, 3 All. L. J., 661. 

If a Wa^ib-al-arz clearly shows that a clause as to pre-emption embodies a new con- 
tract entered into by the co-sharer, at the time the Wajib-al-arz was prepared, it would be 
necessary lor the plaintiff claiming pre-emption bo prove that he, or some one through 
whom he claims, was an assenting party, to the contract ; but, if the Wajib-al-arz does 
not show or otherwise ptove that the pre-emption clause was thereby the embodiment of 
a new contract as to pre-emption, the reasonable and proper construction to place upon 
such a document would be that the pre-emption clause was merely a recital of a pie-emption 
custom in force in the village : in such a case, it would be for the defendant in a 
pre-emption suit to prove clearly that no snch custom existed, and that the vendor and 
the plamtiff had not agreed to be bound by it. Savak Singh v. Oirja Pande, 2 A. L. J., 6 ; 
A. W. N. (1905), 16. 

Will, p. 564. — If a party writes or prepares a will under which he takes a benefit, 
that is a circumstance which calls for vigilance in examining the evidence. But there is 
no rule of law as to the particular kind or description of evidence by which the Court 
must be satisfied. The degree of suspicion excited and the weight of the burden of 
removing it must depend largely on the nature and amount of the benefit taken, and all 
the circumstances of the case. Bai (htngtdmi v. Bhumcandas Valji, 9 C. W. N., 769 (P. C), 
29 B.. 630. 

S. 106. — General exception. Insanity. The btuden of proving general exception 
lies on the accused. R. v. xVmiz Alt, A. W. N. (1905), 2. 

S. 108. — This section according to its terms, does not require that the Court should 
hold the person dead at the expiration of the seven years therein indicated, but merely 
provides that the burden of proving that he is alive at the time of the suit is shifted to the 
person who aflSrms it Narayan Bhagwant v. Sriniicat Trimbak, 8 Bom. L. R., 226. 

S. 110.— When it is not shown that the defendant's possession began as of a tenant, 
and it is not moved that the plaintiff received any rent from the defendant during 12 years 
prior to the filing of the suit, the plaintiff's suit for possession must be dismissed ; for, the 
defendant's possession must be presumed to be that of an owner and adverse to the plafaitiff. 
Bihari v. Sadho Mai. 73, P. L. R. (1906). 

Ordinarily, in the case of property held in common, the possession of a co-sharer is the 
possession of all. In a case, m which co-sharers set up a title adverse to a co-sharer, it 
lies upon them to show at what time their possession became adverse, or that there was 
clear and definite abandonment with intenton. Haji v. Oohna, 39 P. L. R., 1906. 

Poaaession is primd facie proof of ownership, because it is the sum of acts of owner- 
sliip. This applies both to prior and to present possession. Possession has a two- fold value: 
it is evidence of ownership and is itself the foundation of a right to pos8es.sion. Uari Khardu 
v. Dhondi Natha, 8 Bom. L. R., 96. 

Possession — ^Adverse. In a suit governed by Art. 144, the onus is on the defendant to 
show when the adverse possession he reUes on commenced. Oanpat Rao v. OanmU Rao, 2 
N. L. R., 32. 

Possession ; suit by vendee or vendor having been out of poesewion— onus. Deba v. 
Rohtagh Mai, 28 A., 479. 



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ADDENDA. XXIX 

It is for plaintiff in ejectment to prove posseesion prior to alleged dispossession. At 
the same time on this question of eviclence the material fact of the plaintiff's tide comes 
to his aid with greater or less force according to the circumstances established in evidence. 
Rani Bemanta Ktimari v. Jagadendra Naih Soy, 10 C. W. N., 630 (P. C.) ; 3 All. L. J.. 363 ; 
S Bom. L. R., 400. 

A statement by a witness that a party is in possession is, in point of law, admissible evi- 
dence of the fact that such party was in possession. Vithu Oomnda v. Bamji i'e^nji, 8 Bom. 
L. B.. 19. 

When the defendant to a suit for possession of land pleads adverse possession, it lies 
in the flist instance upon the plaintiff to prove that he was in possession at sometime within 
12 years of the suit. 

Where a party is dispoaaessed by vis major, e.g., floods, the constructive possession of 
the land, so long as the land remains submerged, is in the true owner. Muruki Mathar 
Ha^n v. BthanSituih, 3 A. L. J , 567 : A. W. N. (1906). 234. 

S. 111. — Persons standing in a confidential relation towards others cannot entitle 
themselvee to hold benefits which those others may have conferred on them, uidess they can 
show to the satisfaction of the Court that the person by whom the benefits have been con- 
ferred had competent and independent advice in conferring them. This applies to the 
case of trustees and eestui-que-trusl. Saqhunathji Alulchana v. Varjiuiandas Madanjee, 8 
Bom. L. R., 525. 

The Privy Council did not treat as a pardanashin, a lady, who had no objection to com- 
municate when necessary in matters of business with men other than members of her own 
&mily, who was able to go to Court to give evidence and to attend at the Registrar's Office 
in person. IrnnaU Mumijee v. Hafiz Boo, 33 C, 773 ; 10 C. W. N., 570. 

The mere relation of daughter to mother in itself suggests nothing in the way of special 
influence or control, ib., 10 C. W. N., at p. 570. 

HHd, that the fact that the defendant was as a disqualified proprietor disqualified 
from managing his estate was not in itself sufiioient to bring the defendant witlxin the 
category of those classes of persons whose supposed weakness of intellect or impaired capa- 
city for oontractual purposes, prima facie suggest the inference that they have been imposed 
upon, so that a Court of Equity presumes that when they have made a very hard bargain 
to put it at the lowest, they have been over-reached, and consequently places that onm 
■probandi that the bargain was fair on the other party. Raja Munaahar Bakah Sing v. SJuidi 
Lai. 8 O. C, 210. 

S. 112. -There is, of course, a presumption that children bom of a married woman 
during the life-time of her husband are the legitimate offspring of that woman and her hus- 
band, but this is, after all, a mere presumption, and as such, rebuttable. So, where such a 
woman had admittedly lived for years together with another person and they both had 
admitted and asserted such children to have been born of them, held, the above presump- 
tion must be regarded as having been completely rebutted. Bahadur Singh v. Viru, 
28 P. R., 1906. 

The qaeetion in issue was, whether plaintiff was the legitimate son of D. It was 
sdmitted that his mother was, at one time, married to D. It was contended by the defence, 
and hdd by the lower Courts, that she was either divorced or abandoned by D : Held, (1) 
that mere abandonment would not dissolve the tie of marriage : (2) that, if there was proof 
merely of abandonment and not of divorce, and if the plaintiff had been born during the 
period «f abandonment, the presumption of law as to the parentage of the plaintiff woidd 
prevail, unless it could be shown that the jjarties to the marriage had no access to each other 
at a time when he could beliegotten ; and (3) that the burden of proof as to the divorce 
having taken place at a time, which would disentitle the plaintiff from relying on this section, 
or as to the parties to the marriage having had no access to each other at a time when 
plaintiif could have been begotten, lay on the defendant. Bhima v. Dhvlappa, 7 Bom. 
L B., 76. 

S. 114.— All things done in registration proceedings before the Registrar in his oilicial 
capacity and verified by his signature will be presumed to be done duly and in order. 
Gasfamoyi Debi v. TroUwkyu Nath Chowdhri, 10 0. W. N., 522 . 33 C, 537. 

Ftesnmption. Hindu Law. The presumption in Hindu law that all property held 
by uiy member of a joint family so Innfr as the family remains joint is joint property, 
ap^es to families governed by the Dayabhago. Rama Nalh Chatterjee v. Kusum Kamini,-4 
C. L. J., 66. 

S. 133 ; S- 114. ill. (b).— This section (133) is the only absolute rule of law as regards 
the evidence of accomplices. But there is a rule of guidance as to which the Court also 
should have regard : that rule of suidance to be found in illustration (6) to s. 1 14 of the 
Evidence Act. 

Section 114 enacts a rule of presumption, and, read with s. 4 of the Act, it indicates 
that this is not a hard and fast presumption, incapable of rebuttal, a presvmptio juris et de 
jure. _ _._ 



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ZXX ADDENDA. 

The right to raise this presumption as to an acoomplioe is sanctioned by the Act ; and it 
would be an error of law to disregard it. What effect is to be given to it must be determined 
by the circumstances of each case. 

The evidence of the accomplice requires to be accepted with a great deal of caution 
and scrutiny, because, among other things, he is likely to swear falsely in order to shift the 
guilt from himself. But this consideration hardly applies to the evidence of one who testifies 
that he has bribed the accused ; for, by his own testimony, so far from shifting; the 
offence from himself, he in fact thereby fastens it upon himself, for it is by making himself 
out to be a briber that he shows another has been Dribed. 

The corroboration of the evidence of an accomplice, when required, should be suck 
corroboration in material particulars, as would induce a prudent man on the consideration 
of all the circumstances to believe that the evidence is true not only as the narrative of the 
offence committed, bnt also so far as it affects each person thereby implicated. R. v. Shriniixu 
Krishna and R. v. Nam Bhaskar, 7 Bom. L. E., 969. 

S- 115. — In determining whether an estoppel has been created, the main question is 
whether the representation has caused the person, to whom it has been made, to act on the 
faith of it. The existence of estoppel does not depend on the motive or the knowledge of the 
matter, on the part o! the person making the representation. It is not essential that the 
intention of the person, whose declaration, act or omission has induced another to act or to 
abstain from acting, should have been fraudulent, or that he should not have been under 
a mistake or misapprehension. Hdan Dasi v. Durga Das Mundal, 4 C. L. J., 323. 

A person electing to take a legacy under a will may be estopped from setting up a title 
contrary to its provisions. Probodh Lai Kundu v. Harish Chandra Dey, 9 C. W. N., 309. 

A mere representation of an intention cannot amount to an estoppel which must 
be a representation of an existing fact. If binding at all a representation de futuro must 
amount to a promise. Dhondo v. Keshtv, 7 Bom. L. R., 179. 

Whether acquiescence under a mistaken belief will suffice : see Ooura Chandra v. 
Secretary of State, 9 C. W. N., 553. 

Estoppel in the course of legal proceedings. Where a plaintiff in a pre-emption suit on 
his own invitation amended the plaint and added a second vendee as a party and caused the 
question of the second vendee's preferential rights to pre-empt to be determined, it was held 
that he was estopped from raising the question of lis pendens as a bar to the second 
vendee's claim. Manpai v. Sahib Ram, A. W. N. (1906), 94; 27 A., 644, F. B. 

Held no estoppel ; as the position of the defendants had not been in any way altered 
to their prejudice by any act of the plaintiff. Jangi Nath v. Janln Nath, 2 All. L. J., 225. 

P. 658,n. (2), add followed in Preonatk Koer v. Kati Mahomed Shazed, 8 C. W. N.. 
620(1903). 

A duty to speak, which is the ground of liability, arises wherein and only where silence 
can be considered as having an active property that of misleading. Jog Chandra 
Bandopadhya v. Srinath Ohattopadhya, 1 C. L. J., 23 ; 32 C, 367. 

Compromise during litigation. Where a party had absolutely renounced all his interest 
in the property in suit for consideration, such renunciation being evidenced by a deed 
of compromise nled in the suit and by a final decree passed thereon, the party filing such 
compromise was held estopped from subsequently challenging it. Latafat Husarn v. 
Badshah Htuain, 8 O. C, 143 (P. C.) 

Estoppel is a rule of evidence which in certain circumstances precludes a person from 
establishing real facts and compels him to abide by a certain conventional set of facts. 
Meherally Morraj v. Sakerkhanodbai, 7 Bom. L. R., 602. 

Landlord and Tenant — Rent suit — Objection by defendant that plaintiff not alone 
entitled to realize rent. Subsequent suit for ejectment. Defendant held not estopped 
from relying on tenancy. Sm. MaUika Dassi v. Makham Lai Chowdhry, 9 C. W. N., 928. 

Estoppel in course of legal procee-lings : waiver of legal objection in consideration of 
postponement of sale. Raja Thakur B<i.tham v. Atlanta Ram Marwan, 2 C. L. J.,684. 

Bona fide compromise by guardian of an uncertain claim of a minor — flatter bound by 
and estopped from repudiating the compromise. Malta Reddi v. Aswa Natha Reddi, 16 
M. L. J., 494. 

S. 13 of the Punjab Laws Act does not repeal as regards pre-emption suits s. 1 15 of 
this Act and estoppel or waiver can be alleged against a plaintiff even where no notice 
under s. 13 has been issued. Ghaudhri Ram Kishen v. Sayad Fakir Ali, 185 P. L. R., 1906. 

Estoppel by pleading — pleading invalidity of mortgage— subsequent inconsistent 
pleading. Lakshmi Nachiar v. Ramafhandra Dosai, 16 M. L. J., 6. 

Estoppel — mortgage. In 1887 B mortgaged land to K who mortgaged his mortgage 
rights and other properties to N. The latter sued and obtained a decree in 1896 against A 
personally as well as against mortgaged premises. In a subsequent suit by K against S, 



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ADDENDA. XXXI 

held (bat former was estopped from queetioning the mortgage of 1896 or setting up his prior 
mortgage rights as a mortgagee against N, as he had led iv to believe that the mortgage in 
the suit of 1897 was proper and acceptable to him. Kamhi Ram v. Badda, 23 P. L. R., 
1906. 

Partn«8hip — Evidence necessary to establish liability as partner bv estoppel. ' Porter 
T. Iiua. 10 C. W. N.. 313. 

Mortgage by Manager of Joint Estate — An adult co-sliarer who has agreed to the appoint- 
ment of a manager, whose appointment is subsequently declared illegal is estopped from repu- 
diating the actions of the manager, in some of which be himself joineid and by which he only 
WIS benefited. Gendan Singh v. Inder Narain, 3 C. L. J., 537. 

Hindu Family. Father not estopped from suing to eject son, who had been allowed 
and enconraged by the former to expend money in improvements to the family 
dvetling-house. Dharmadax Kundu v. AmiUya Dhan Kundu, 10 C. W. N., 765. 

Gstoppd during course of legal proceedings. A party who has successfully resisted a 
smton the ground that the matter should be tried in execution cannot subsequently 
object that an application under a. 244, Civil Procedure Code, does not lie Emd that a 
suit ahonld be brought. Oaya Pratad Miser v. Sandhur Singh, 3 All.. L. J., 456. 

A party having accepted office of executor obtained probate, collected assets and 
othenrise ao acted as to cause the plaintiffs to alter their position, was estopped from im- 
peaching the Wk.ll or repudiating his fiduciary position. Srtnivcuamoorthy Venkata v. Varada, 
!9 M.. 239. 

An admission on a point of law is not an admission of a " thing' ' within the meaning 
of 8. 115. DuTtgariya v. Nand Lai, 3 AIL, L. J., 534. 

If a man, under verbal agreement with a landlord for a certain interest in land. 
Of what amounta to the same thing, under an expectation created and encouraged by the 
landlord that he shall have a certain interest, takes possession of such land with the consent 
ol the landlord, and upon the faith of such promise or expectation, with the knowledge of the 
luuDord and 'without objection by him, lays out money upon the land, a Court of Equity will 
compel the landlord to give effect to such promise or expectation. The Crown, too, comes 
witiiio the range of this equity. This eqnity differs essentially from the doctrine embodied 
inthissectionof the Act, which is not a rule of equity, but is a rule of evidence that was 
formnUted and applied in Courts of law, whereas, the former takes its origin from the juris- 
diction asstuned by Court of Equity to intervene in the case of, or to prevent fraud. The 
Mmicipal Corporation of Bombay v. Secretary of SUUe, 29 B., 680 ; 7 Bom. L. R., 27. 

Here attestation of a s^e-deed cannot always he held to work an estoppel, the 
principle on which the law rests is that, it would be most inequitable and unjust to a 
penon that if another by a representation made, or by conduct amounting to a representa- 
tioD, has induced such a person to act as he would not otherwise have done, the person who 
made ibe representation should be allowed to deny or repudiate the effect of his former 
statement, to the loss and injury of the person who acted under it. Unless therefore, the 
repreeentation of the party to be estopped has been really acted upon, the other party acting 
differently from the way in which he would otherwise have acted, no estoppel arises. The 
person deceived must not only believe the thing to be true, but he must also act upon such 
t^ief. so as to alter his own previous position, and where there has been no such b«lief and 
00 such action, there can be no estoppel. CoUier v. Baron, 2 N. L. R., 34. 

S. 116. — Tenant's estoppel — A person who has been let into possession as tenant by 
plaintiS is estopped from denying the latter's title without first surrendering possession. 
MvOnmiyan v. Sinna Samavaiyan, 15 H. L. J., 419 ; 28 M., 526. 

S. 118. — Before a child of tender years is questioned the Court should test his 
capacity to understand and give rational answers and to understand the difference between 
truth and falsehood. The Judge must form bis opinion as to the competency of a 
witness before his actual examination commences. Sheikh Fakir v. B., 11 C. W. N., 51 
(1906). 

S. 120, p. 688n. (8). — Add " The incompetency of defendants and their husbands and 
wives to give evidence for the defence in criminal proceedings was finally swept away by 
"TheC^minal Evidence Act, 1898." See Taylor. Ev., 10th Ed., § 1372 B., Stephen's 
Commentaries on the Laws of England, 14th Ed., Vol. II, p. 307. 

Ss. 120*128. — Privilege claimed for documents obtained for purpose of litigation. 
See Dmbica Chwm Sen v. Bengal Spinning Co., 22 C, 105 (1894). 

Ss. 146, 166, 161. — Statements of witnesses recorded iy Police Officers — Police- 
diaries— obserrations on practice as to. Dadan Qati v. B., 33 C., 1023 (1900). 

S. 165. — It is not illegal to examine a Police Officer for the purpose of impeaching 
the credit of a witness, who gives evidence in favour of an accused at his trial, having 
ptevioady given a statement to the Police Officer different from, and inconsistent with, his 
nbteqveot statement at Uie trial. R. v. Jagardeo Pandi, A. W. N., 64 (1906.) 



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XXxii ADDENDA. 

S. 168.— Though a document may not be secondary evidence of an original, yet it 
may be one which may be referred to for the purpose of refreshing memory. TarudmaA 
MtiUiek T. Jeamat Notya, 5 C. 353 (1879). 

The Court refnaed to compel a witness to refresh his memory when the result of his 
doing so would enable cross-examining counsel to see a document which was otherwise 
privfleged. Nemi Ohand v. Wallaee, 4 C. L. J., 268. 

OfttllS Aet — An oath is not binding as conclusive evidence in any proceeding other 
than that in which it was taken. Badrad Din Ahmed v. Nizamaddin Haider, 33 C, 386. 

The expression " conclusive proof" in s. 11 is to be understood in the sense in which 
it is defined by s. 4 of this Act. VHhu Oovinda v. Ramji Ydluji, 8 Bom. L. B.. 19. 

Registration & Stamp.— See Addenda to s. 91 ante. 



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CORRIOENDA. 



P«ge 7, line 15 For 

17 /«. 10 

23, /«. 8 

24, Itm 28 
2», /«. 7 

37, margin 

40, {(Re 22 
47, K»« 12 
„ 52, /a. coL 1 line 8 „ 

61, margin „ 

62, ;«M 34 

63, line 9 

64, /me 3 

., 64, last line but one „ 

64, laa line 
66, line 30 

7». K»e«6-7 

81, line 17 
84, It'ite 3 
„ 86, margin „ 

105, line 6 
107, Km 26 
155, line 26 
168, line 36 
168, »«e 14 
190, line 13 
208, {>»e 11 
218, {tie 23 

221, line* 24, 25 „ 

242. line 18 
275, line 21 
342, line 46 
344, tt«« 7 
476, /». (4) 
480, line 1 
620, /». (3) 
627. line 18 
•> 664, Une 6 

666, /toe 31 
566, //I. (2) 

667, /». (6) 



Oonrt read Code 

better than read better that. 

VII (R. C.) of 1868 read I (B. C.) of 1895. 

specfically read specifioaUy. 

8ngk read Singh. 

simOar unconnected facta reai{ ^^^^J^^^^ 

befre read before. 

certin read certain. 

deaprtnre read departure. 

In suits damages &o. read In suit for damages &o. 

is to reoti is as to. 

itrconcilable read irreconcilable. 

1891 read 1901. 

of a corporal read of oorporaL 

whether of public read whether of a public. 

is so read if so. 

chair- I' ^jl chari- 
Ubler^^j table. 

created read treated. 

do read so. 

usag read usage. 

conoommitant read concomitant. 

to be re<Kf to the. 

wife one read wife of one. 

nothing happen read nothing will happen. 

concession read confession. 

directoral read direct oral. 

be to read to be. 

of section read of this section. 

''*• Ireo^fl"'*- 

necess / ( ness. 

case read ease. 

monies read moneys. 

Acording re*d .According. 

evidenc read evidence. 

7 B. li. R., read 7 Bom. L. E. 

which involved read which is involved. 

2 C. L. J.. 7. read 2 C. L. J., 338. 

dependant read dependant, 

purchaser read purchases. 

wills read will. 

7 Bom. L. B , 167 read 7 Bom. L. R., 175. 

9 C. W. N., 990 reo<f 9 C. W. N., 290. 



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xxxiv 



CO&BIOENDA. 



Page. 577, line 2 Far to have given read to have been given. 

„ 676, li»e 7 ., distpoting read dispnting. 

„ 712, liitf 7 ,, justiffed read justified. 

783, /«. (6) „ Witneees read Witneeses. 

„ 734, '('"e 27 „ doposed read deposed. 

735, line 25 „ elcited rfad elicited. 

744, line 17 „ attending read attending. 

746, Kh4 19 „ reaeen read reason. 

787, line 27 „ Inoome-Ux (Act H of 1886) read | ^if'^f'^gf'* 

„ 793, line 12 „ socond read seoond. 



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TABLE OF CASES OITED. 



Page. 

.. 660 
.. 66 



Aba «. Soo&bai . . 

ibbu AH T. Qhalam MnhAmmed 

Abbey r. Hill 

Abbott p. Hendrioks 

Abbott V. Hassle . . 

Abdool AH V. Abdoor Rahman 

Abdool All c. Knrrumniua 

Abdol Aziz v. Ebrahim 

Abdxil Hamid v. Kiran Chandra 

Abdol Hosaein v. C. A. Tamer 

Abdnl Karim t>. R. . . 167, 712, 716 

Abdol Karim v. Hanji Haosraj . . 607 

Abdol Karim v. Salimtm 398, 399, 

401. 636 
Abdalla Para v. Oannibai 202, 395 

660 
636 
618 
611 
28, 



103, 106 
.. 466 

606, 619 
.. 395 
.. 686 
.. 211 
.. 266 
.. 640 



Abdnl Rahim v. Madharrao Apaji 
Abdul Rahman v. Mahomed Asim . . 
Abdul Rasak r. Aga Hahomed 318. 
Abed All v. Uoheahor Bnksh 
Abmuh Chandra v. Pareeh Nath 



74, 77, 78, 79, 266, 283 
Abuser V. Ashton .. .. 294 

Abooloff r. Oppenheimer . . 288 

Abraham v. Abraham . . 539 

Abnth V. N. E. B. Co 639 

Abndh Singh v. Ram Raj . . . . 134 

Aoeideatal Death Insnranoe Co. 
V. Mackenzie . . . . . . 676 

Aoem r. Petroni . . . . 748 

Aohhtn Kuar v. Thaknr Das . . 687 

Aebonth Singh v. Kishen Pershad . . S40 
Aehataiamaraja v. Subbaraju 470, 

476, 481 
"AoteMin," The .. ..114 

Ad»m p. Kur . . . . , . 626 

Adams t. Lloyd . . . . . . 706 

Adams v. Meters . . . . . . 316 

AdakkaUm v. Teetham . . 864 

Adarkkalam Chetti v. Harimnthn . . 633 
Admr.-QenL of Bengal v. Prem Lall 

3. 621 
Admr.-Oenl. of Madras v. Ananda 
CSiari 618 

W, L£ 



J9, 171, 


172 


, . 


860 


, . 


132 


. . 


431 


Rakma 




663, 


666 


44. 


125 


619, 




529, 


562 


, , 


722 



Page. 
Adrishappa v. Gurnshidappa . . 538 

Adnrmoni Devi v. Chowdhry 

Sibnarain .. .. .. 660 

Adu Shikdar o. B. 19, 160, 161, 166, 

167, 168, 1 
Afeul-on-nissa v. Tej Ban . . 
Agaoe, Ex parte .. 
Agar, H. W., In the goods of 
Agarohand Gamanohand v. 

Hanmant 
Agassiz V. London Tram Co. 
Aga Synd v. Hajee Jaokariah 

Aghore Nath v. Prem Chund 
Aghore Nath v. Radhioa Pershad . . 

283, 286, 659 
Aghoree Ram v. Ramolee Sahoo . . 641 
Agrawal Singh v. Fonjdar Singh . . 669 
Ahmedbhoy v. Vnleebhoy, 274. 286, 

289, 290 201, 292 
Ahmed Yar ». Secretary of State 

for India in oomicil . . . . 666 

Ahsanallah Khan v. Hnrri Chum . . 660 
Ah Thain v. Moothi Chetty 463, 464 

Airey, Re .. . . • . 443 

Aizmmissa Khatoon v. Karimun- 

nissa Khatoon 
Ajabsingh v. Nanabhau 
Ajoodhya Prashad v. Babu 



319, 617 
.. 217 

Omrao 

7 Int.. 373 
.. 640 



Akbar Husain v. Alia Bibi 

Akbar Khan v. Sheoratan 

Akbar Ali v. Bhyea Lai . . 

Akhil Chandra v. Nayn .. 

Akboy Knmar v. Jsgat Chander 

Akkanna v. Vekaya 

Akshaya Kumar v. Shama Chum . . 

243, 410 
Alagaiya Timohettambala v. Sam- 

inada Pillai 
Alangamonjari Dabee v. Sonamoni 

Debee 
Albonsov. United State .. 
Alohome v. Gomme 



.. 279 
33,563 
241, 780 
.. 711 
.. 609 



609 

1.4 
296 
670 



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XXXVI 



TABLE OF CASES CITED. 



Paue. 
60, 457. 466 
.. 641 
.. 480 
.. 38 
.. 761 



Alderaon v. Clay . . 

Alderson v. Maddison 

Alderson v. White 

AMridge r. G. W. R. Co. 

Alexander v. Qibson 

All Baksh v. Sheik Saniniddin . . 285 

AU Fakir V. R. .. ..802 

Alijan v. Hara Chandra . . 83 

All Khan v. Indar Parshad 412, 636 

AU Heah, Inre .. . . . . 233 

AU Heah v. Magistrate of Chitta- 
gong .. .. .. 723.724 

AU Moidin «. Elayaohanidathil 
Kombi .. .. 139, 363 

Alimnddin e. R. .. .. 762 

AU Nair v. Hanik Chand 246, 248 

AUyon v. FnmiTal .. 381 

Alloard v. Skinner .. .. 687 

Alien V. Aleen . . . . 19. 123, 743 

Allen V. Bennet . . . . . . 462 

AUen t>. Pink .. ..473 

Alluoks V. Kaahee Chonder . . 444 

AUyat Chinaman v. Joggut Chander 

242. 67» 
Alokaoondry Goopto v. Hero Lai.. 657 
Aloo Nathn v. Oagnbha Dipsanji . . 689 
Altab Bibee v. Joognl .. .. 631 

Alter Canfman r. Government of 
Bombay .. .. 694 

Amar Chandra v. Roy Goloke . . 631 
Amar Nath v. Achan Knar . . 646 

Ambabai v. Bhan Bin . . . . 674 

Ambioa Dat ti. Nityanand Singh . . 862 
Ambica Prosad v. Ram Sahay . . 652 
Ambrose v. Clendon . . . . 61 

Ameer Gibee v. Tokrooniasa Bognm. . 681 
Amey v. Long .. 720, 721, 785 

Amirtolal Boae v. Rajonee Kant 122, 

361, 362 
Ammayee v. Yalnmalal . . . . 401 

Ammo V. Rama Kishna . . . . 677 

Amos V. Hoghes . . . . 625 

Amrit Nath v. Oaari Nafb 66, 644 

Amstell V. Alexander . . 763. 764 
Ananda Chunder v. Baan Bndh . . 690 
Anaadarav Sivaji t>. Ganesh Yesh- 
rant ... ... 610 

Ananta Balaoharya v. Damodhar 
Makimd .. ..636 

Anant Das v. Asbbnmer ft Co. . . 638 
Anathnath Der v. Bisbta Chunder . . 137 
Anderson v. Bank of Colambie 698, 

703, 704 
Anderson v. Clay .. .. 674 

Anderson v. -Weston .. .. 626 

Andrews v. Mottley . . 441. 626 



Pack. 
Anknr Chunder v. Madhub Chnnder 

862, 863 
Annada Coomar v. Hari Das . . 674 

Annagurubala Chetti v. Kriahna- 
Bwamy Nayakkan .. .. 493 

Anna Hinde, In the goods of . . 432 

Annakumam v. Muttupayal . , 34C 

Annapaganda v. Keru .. .. 130 

AnnapagEmda v. Sangadigyapa .. 130 
Annesley v. Ford Anglesea 701> 725 

Annoda Mohun v. Bhuban Hobint 

687. 588 
Annod Simdari v. Jogotmoni Dabi . . 566 
Antaji V. Dattaji .. ^. 864 

Antaji Kashi v. Antaji Madhav .. 271 
Anund Chnnder v. Poncboo Lall ~. 4 
Annnd Chunder v. Uookta Keahrc . . 444 
Animdmoyee Chowdhrsin v. Sharb 
Chunder .. .. 134.361 

Anundmoyee Debea v. Shib JJytA . . 540 
Anundo Mohun r. Lamb . , . . 545 

Anupohand Hemohand v. Champsi 
Ugeriihand .. .. 486 

Anwar Hossein v. Secretary of State 666 
Apaji Patil t). Apa .. .. 362 

Apothecary Co. v. Bentley .. 370 

Appamma Nayumula t>. Bamanna . . 466 
Appa Ram v. Sriramulu . . . . 126 

Appa Rau v. Subbunna .. 628, 567 
Apparthura Pattar v. Oopala Pani- 

kar 374.443.625 

App^isami v. Mamkam . . . . 639 

Arbon v. Fussel . . . . . . 405 

Ardeshir Dhanjibhai v. Collector of 
Surat .. .. .. 60« 

Arding v. Flower .. ..721 

Arlapa Nayah v. Narsi Keshavji 66. 87 
Annan Bibi v. Amiraoissa . . 267 

Arman Khan v. Bama Soondorea . . 602 
Armory v. Delamirie .. .. 606 

Armstrong v. Strokham .. .. 435 

Arnold t>. Cheque Bank . . 663, 680 

Amott, Re .. 700, 702 

Arruth Misser v. Juggemath In- 
draswsmee .. .. 548 

Arumugam Chetty v. Perriyannan 

Servai . . 620. 680 

Aruna Chala v. Munisami UudaU . . 651 
Arunmoyi Davi v. If ohendra Nath . . 227 
Asgur Hossein, In the matter of 4. 230 
Ashabai v. Haji Tyeb . . . . 632 

Asha nullah Khao v. Triloohan 

Bagohi .. 602,603 

Ashford v. Price . . . . . . 129 

Ashgar AU c. Delros Baooo . . 687 

Ashghar Reia t>. Hyder Rexa . . 16 



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TABLS OP OA8B3 OITBD. 



XXXVU 



I'AOE. 



Pra- 



Aabootoah Chandra v. Tara 

Mima ..286 

Aahpitel v. Bryan .. 680 

Ashpitel r. Seroombe . . 60 

AshruSoodowtah V. Hyder Hossein .. 616 
Ashmffaiinissa r. Azeemun . . 616 

Aahrufloonissa Begnm v. Rngboo- 

naOi Sohoy . . . . . . 676 

Ashton'B Case . . 191 

Aairnddin Ahmed t>. R. . . 568 

Aamuntoonissa Bebee v. Alia Hafiz 

112, 687 
Aoaanooallah v. Obhoy Chunder . . 630 
Aasannllah v. Bussarat . . . . 566 

Aatky v. Astley .. ..620 

Atchayya v. Gangayya . . 6, 9 

Atohley v. Spigg . . 319, 691 

Atherley v. Harvey . . . . 706 

Atkins V. Tredgold . . l3l, 138 

Atidnson v. Honis . . 134 

Atkyns o. Horde . . 623, 626 

Ateiaram v. Umedram .. 671,672 

Att..GenL o. Ashe ..381 

Att.-GenL v. Berkeley . . 698 

Att..GeaL v. Davison . . 232 

Att-GenL v. Drammond .. ..46 

Att-G«nL V. Hitehcook 2 Int., 758, 

760, 768 
Att.-Cl!Bal. V. Uoore 9 

Att.-a«aL V. MuuTO . . 648 

Att-G«nL V. Badloff ..710 

Att.-GenL v. Stephen . . 673 

AtL-Genl. of N. S. W. v. Bertamd 33, 724 
Augustine v. Challis . . 466 

Aognstine r. Medlyoott . . 346, 346 

Austin V. Evans . . . . . . 786 

Austin V. Ramsey . . . . 229 

Aota Sing v. Ajadhia Saha . . 496 

"At»" and "Brenhilda." In 

Ike malter of a eoUition betipeen the 

' 378, 383, 388. 389, 411 
Avery v. Bowden . . 627 

Aveaon v. Kinaaird . . 90, 94, 692 

Avudh Beharee v. Bam Raj 113, 142 

Ayesha Beebee t>. Kanhye MoUab 681 
Aylesford Peerage case . . 593 

Ayeton V. Bam Sebnk . . 187, 188 

Aumut Ali V. Hurdwaree MuU . . 628 

Azixullah Khan v. Ahmad Ali . . 122 
Asmat Ali e. Lalli Begum . . 617 



Bab»«.Ximm» .. .. 6£0 

Babaji •■. Kriahn* ..668 

Babaji Mafaadaji •. Krishnaji Sevji 562 



Paoe. 

Baban Mayaoha v. Nagn . . 260 

Baboo Bodhnarain v. Baboo Om- 

rao ..3 Int., 797 

Baboo Dhunput ti. Sheikh Jow- 

ahnr .. ..451.491.500 

Baboo Dolee v. Sham Beharee .. 674 
Baboo Doorga v. Hnsst. K.andiln . . 462 
Baboo Gauesh r. Mugneeram Chow- 
dry . . .. .. ..659 

Baboo Ghansam v. Chakowree Singh 535 
Baboo Gooroo v. Durbaree Lai . . 378 
Baboo Gimga V. Baboo Inderjit 3 Int., 29 
Baboo Radhakissen v. Uusst. Shor- 

reefonnissa . . . . . . 651 

Baboo Rambuddan v. Ranee Sree 

460, 451. 609 
Baboo Bam v. Sirdar Dyal . . 669 

Babu V. Sitaram .. 503, 609 

Baoharam Mnndol v. Peary Mohan 

Banerjee ,. . . 663 

Bacon v. Bacon . . . . . . 698 

Badiv. R. .. 176, 178 

Bad! Bibi t>. Jami Pillai . . . . 587 

Badri Narain v, Joy Kishen 136, 143 
Badri Prasad v. Madan Lali . . 650 

Badul Singh v. Chutterdharee 

Singh 644 

Bahadur Singh r. Mohar Singh 221, 644 
Bahir Das v. Nobin Chunder . . 638 

Bai Baiji v. Bai Santok 278. 280, 

313, 639 
Bai Diwali v. Patel Bechardas . . 61U 

Bai Gangadhur v. B. . . . . 804 

Baijnath Sahay v. Baghunath Per- 

shad .. .. 628. 631 

Baij Nath v. Sukku Mahton 245, 

247. 410 
Baikanthanath Kumar v. Chandra 

Mohan .. 116, 116 

Bai Kesserbai v. Narranji Walji . . 381 
Bain v. Whitehaven Ry. Co. 1. 32. 797 
Bainbrigge v. Browne .. .. 686 

Bainee Singh v. Bhurth Singh . . 646 
Bakshi Das v Nadu Das . . . . 637 

Bakstt Lstkshman v. Govinda Kan 

474. 476, 476, 479, 481, 487 
BaU V. Shiva . . . . 629, 660 

Balabuz v. Rathmabai .. ..612 

Balaji Ragfannath v. Balbin Rag- 

hoji 271 

Balayya v. Kistnappa .. .. 673 

Balbadbar Prasad v. Maharajah of 

Botia . . 376. 467, 466, 863 

Baldeo Pershad V. Fakhr-udd-in . . 664 
Baldeo Singh v. Imdad Ali .. 673 

Balkishan v. Kishan Lai 269, 271 



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XXXVUl 



TABLE OF OASES OXTED. 



Page. 
BaUdshen Das v. Legge . . 460, 

4?S, 476. 478, 480. 481 
BaUdshen Das v. Bam Narain 451. 

452. 644 
Balkrishna v. Gopikabai . . 665 

Ball V. Taylor . . . . 625. 626 

Balmaknntlas Atmaram t>. Moti 
Naraytm . . . . . . 98 

Balmakund Ram v. Qhansam Ram 

16, 19, 44, 92, 637, 571 

Bal Mookand v. Jirindhun Roy . . 23 

Bamasoonderee Dossee v. Vemer. . 3 

Bamasoondery Dassyah v. Radhika 

Chowdhrain . . . . . . 665 

Banapa v. Snnderdas Jagjivandas 

468. 475. 479. 487 
Banarsi Das v. Bhikhari Das . . 863 

Banbary Peerage Case . . 319. 

689, 690. 592 
Baadi Bibi v. Kalka .. ..635 

Baadon v. Beoher .. .. 286 

Banee Madhab v. Bhaggobntty 
C!hum .. .. ..611 

Banee Madhnb v. Thakoor Doss 

670, 672. 673, 676 
Banee Pershad v. Baboo Mann 654, 668 
Banerman. v. Radenias . . 133 

Bani Madhub v. Sridhnr Deb 665, 667 
Bank of England v. Vagliano Bros. 

8 Int., 4, 680 
Bank of United States v. Dan- 
dridgo .. ... .. 625 

Bank of Utioa o. HiUaid . . . . 785 

Bankalal v. Chidriamekkansa . . 678 
Banku Behari v. Shama Chum . . 495 
Bankn Behary v. Raj Kumar . . 658 

Banner v. Jackson . . . . 701 

Baaoo v. Kashee Ram . . 543, 544 
Bansi Lai v. Dhapo . . . . 289 

Boosi Lai o. Namji Lai . . 286. 289 

Banwari Das v. Muhamad Mashiat 

602, 656 
Bapuji ff. Senaravji .. .. 635 

Bapuji Bolal v. Sytabhamabhai . . 136 
Baquar Ali v. Anjnmaa Ara . . 219 

Barbat v. Allen . . 31 

Bareli v. Lytle . . . . . . 600 

Barkut-un-nissa t>. Fazl Haq 290, 633 
Barlow v. Chuni Lai 203, 670, 763 

Barnes ft Co. v. Toye . . . . 645 

Bamett v. Allen . . . . . . 296 

Bamett v. Tnkwell ..619 

Barony of Sale, The . . . . 692 

Barough v. White ..111, 136, 139 

Barr v. Oratz . . . . 284 

Barrow's Case . . . . . . 647 



Page. 
Barry v. Bebbington . . . . 213 

Barry v. Ratlin . . . . 664 

Bartlett v. Wells .. ..646 

Barton v. Bank of New South Wales 754 
Barwick v. English Joint Stock 
Bank .. .. ..36 

Barwiok v. Thompson . . . . 676 

Basant Bibi, In re .. .. 722 

Bashi Chonder v. Enayet Ali 135. 

136, 633, 666 

Baso Kooer v. Hnrry Dass . . 652 

Bastin v. Carew .. 730,762 

Basumoti Adhikarini v. Bndrain 

KoUte .. .. ..722 

Baswantappa t>. Shidappa Baau 663, 664 
Batta Krishna v. Chintaman . . 644 

Batai Ahir v. Bhuggobutty Koer 

667, 677 
Bate v.Kinsey ..391 

Bateman V. Bailey .. 47,61,138 

Bates V. Townley .. ..112 

Baugh t>. Cradooke . . . . 699 

Bazendale v. Bennett .. .. 680 

Baxter v. Browne . . . . 462 

Bayliffe v. Butterworth .. ..621 

Bay lias v. Att.-Gen. . . . . 606 

Beale v. Com. . . . . . . 624 

Bean r. Quimby .. ..697 

Beasley v. Magrath .. ..Ill 

Beatson v. Skene . . 692, 786 

Beattie v. Jetha Dnngarsi . . 708 

Beauchamp v. Parry . . 138 

Baufort v. Smith . . . . 222 

Beaumont v. Fell . . . . 619 

Beavan v. McDonnell . . . . 97 

Beckwith v. Bonner .. .. 700 

Beebee Ashrufoonissa v. Umung 
Mohun .. .. ..563 

Beejoy Gobind v. Bheekoo Roy . . 241 
Beer Chonder v. Deputy Colleotor of 
Bhullooah .. .. ..558 

Beer Chonder ti. Ramgutty Dutt . . 

634, 664, 629 
Beer Narain v. Teen Cowrie . . 542 

Beharee Lall In the matter of . . 460 

Beharee Lall v. Kalee Dass . . 554 

Beharee Lall v. Kaminee Soondanse 

3.473 
Behari Hadji, In the matter of . . 160. 

Behari Lai v. Habiba Bibi . . 687 

Behari Patak v. Mahomed Hyat . . 538 
Behary Lall v Joggo Mohun Gos- 
sain . . . . • • 277 

Behary LaU v. Tej Narain 476, 476, 479 
Bejai Bahadur v. Bbopindar Baha- 
dur 216, 219, 319, 346- 



Digitized by 



Google 



TABLE OF CASES OITBD. 



XXXIX 



Pace. 
Belaet Khan v. Bash Beharee 238, 

242. 243 
Bell V. Ansley . , . . 132 

Bell t>. Insestre ..493 

Bell V. Kenoedy .. ..601 

Bellefontaine Ry. Co. v. Bailey . . 306 
" Bellerophon, The " .. ..692 

Belt V. La wee . . . . 308 

Bemola Sossee v. Mohnn Dogsee . . 547 
Benarsl Das t>. Bhikari Das 454, 46^ 

Bengal Banking Corporation v. 

Mackertich . . . . 864 

Bengal Indieo Co., The, v. Tsrinee 

Pershad ., .. ..367 

Beoi Madhnb v. Jai Krishna 66, 84 

BenJ Madhab v. Dina Baadhn .. 142 
Beni Madhnb v. Sadasook Kotary 485, 

486 
Beni Prasad t>. Mokhtesar Bai .. 664 
Bennett r. Marshall . . 510 

Bennison v. Cartwright . . 34, 47 

Benodhee Lall v. Dnlloo Siroar . . 503 
Benson v. OUTe ..229 

Benvon v, Nettlefold . . 488 

Bepisbehari Chowdhry v. Bam 

Chandra .. 484,485,671 

Bepin Behari o. Sreedam Chnnder . . 218 
Berkeley v. Mnsst. Chittiar .. 349 

Berkeley Peerage Case 2 Int., 215, 

216, 221, 318 
Bemandi v. Mottenz . . 276 

.. 625 
.. 41 
.. 126 
.. 457 



Bhawanji Harbhnm v. 



Berryman v. Wise 

Bessela v. Stem . . 

Betham v Benson 

Bsthell V. Blencowe 

Beti Maharani «. Collector of Eta- 



wah 
Bettley v. HoLeod 
Berao v. Waters 
Bewicks v. Graham 
Bishen Dntt v. R. 
Bishop of Meath 

Winchester 



, 450, 502, 733 
.. 720 
380, :oi 
.. 706 
179, 180 
Marqnes of 

..444 



Bhagain Megu v. Gooro Pershad . . 410 
Eha^wan Das v. Balgobind Singh 66 
Bhagbat Chnnder v. Hnrogobind 

Pal 627 

Bhagoji D. Bapnji .. 249, 251 

Bhagnbhai v. Tukaram .. 541, 543 

Bhagrandas Tejmal v. Bajmal . . 63 
Bhagwandas v. HnrjiTan, In re .. 348 
Bhagwan Singh v. Bhagwan Singh 67, 341 
Bhagvan Singh v. Mahabir Singh . . 561 
Bhasker Tatya v. Vi]alal Nathn . . 126 
Bban Kanaji v. Snndiabai 66,67,86 
Bhaniam Madan v. Bam Narayan . . 861 



Bheeknarain Singh v. 
Bhikamber Singh 

Siroar 
Bbim Sen v. Sitaram 
Bhitto Knnwar v. Kesho 



Pa.;k. 
DcTJi Punja 

396, 397. 862 
Necot Kooer 662 
Beoharam 



.. 560 
Pershad 
74, 78, 82 
Bhog Hong Kong v. Romanathen 

Chetty .. .. 240,608 

Bholanath v. Ajoidhya ..542, 545, 611 
Bholanath Khettri v. Kali Prasad 

Agurwalla .. 472,477 

Bholoram Chowdhry v. Administera- 

tor-Oeneral 
Bhoobnn Chnnder v. Ram Dyal . . 
Bhoobnn Moyee v. Umbica Chum . . 
Bhoorun Koer v. Sahebiadee 
Bhootnath Chatterjee v. Kedar Nath 
Bhowanee Persad v. Oheednn 
Bhowany Sunkur v. Pnreem Bibee 
Bhnbnneswari Debi t: Barisaran 

Surma . . 46. 378, 380, 386 

Bhngnt Pershad r. Girija Koer 
Bunggobntty, In the good* of 
Bhugmant Narain v. Lall Jha 
Bbugobutty Misrain v. Domun 

Misser 
Bbugwan-Chunder v. Meoh-,o Lall . . 
Bhugwandeen Doobey v. Myna 

Baee 
Fhngwan Datt v. Sheo Mnngnl 
Bhnpotram v. Hari Ptio 
Bhyah Ram v. Bhyah Agar 
Bhyro Datt v. Hnast. Lekhranee 
Bibee Jokai v. Beglsr 
Bibee Meheroonnissa v. Abdool 

Gnnnee 
Bibi Jyaunesia v. Haast. Uobani- 

kunnessa . . . . 59, 60, 143 

Bibi Khaver v. Bibi Rnkha 58, 249 

Bibee Nuje<>bnnniB6a, /nre ..617 

Bibee Rukhnn v. Shaikh Ahmo'^ .. 687 
Bibee Wnheedim v Wasee Hoasein 617 
Bickerton v. Walker . . 661 

Bidder v. Bridges . . 222, 441 

Biddomoye Dabee t>. Sittaram . . 672 

Biddlev. Bond 681 

Bigsby V. Dickinson . . 308, 732 

Bikao Khan ». B. . . 770, 779 

Bindesnree Dutt v. Doma Singh . . 302 
Bindo Bashinee v. Pearee Mohun.. 

632, 557 
ffinja Bam v. Rajmohan Roy . . 862 

Bipro Doss v. Secy, of State for In- 
dia in Connoil . . . . 703, 704 



409 
361 
226 
547 
558 
657 
657 



550 
40 
112 

544 
121 

635 
243 
680 
67 
654 
349 

561 



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xl 



TABLE or CASES CITED. 



Page. 

Bipro Peiahad v. Kena Dayee . . 645 

Bir Bhaddar r. Sarja Prasad . . 672 

Biroh, /tire ..648 

Biroh V. Depeyster 409.617 

Kroh V. Ridgeway . . 404 

Biroh V. Wright . . . . 672 

Biichall V. BnUngh . . 778 

Bir Chandra v. Bansidhar Maha- 

patar 34, 639 

Birendra Lai v. R. .. ..802 

Birj Mohui v. Bam Nursingh . . 667 

Birj Nath v. Chander Mohan . . 277 

Bishambar Nath c. Nand Kishore SHI, 862 
Bishen Chaod v. Rajendro Kiahore 080 
Bishen Dyal v. Mnsst. Khadeema 388 
Biaheshar t>. Muirhead . . 664, 666 

Bisheshnr Bhattacharjee v. George 

Henry .. .. ..444 

Bishnath Chowdhry v. Radha Cham 664 
Bishnn Banwar v. R. . . . . 178 

Bishonath Neoghy v. Huro Gobind 284 
Bishonath Rukhit v. Ram Dhone 

620. 722 
Bishoo Manjee v. R. 167, 165, 166 

Bishop Hellitas «. Vicar Apoetohc of 

Malabar ..304 

BiBseanir Chuokerbotty v. Ram 

Joy 381, 646. 649 

BiBsestnr Chackerbatty o. Wboma 

Chnni ..563 

BisseMTir Das v. Smidt .537 

Bissessnr Lall v. Lvohmessnr Singh 542 
Bissessur Singh v. Gnnput . . 269 

Bissonath Binds v. Dayaram Jana 401 
Bissonath Roy v. Lall Bahadar . . 546 
Biasnmbhur Sircar v. Soorodhimy 

Dassee . . . . .'>44 

' Blackett v. Royal Exchange Assu- 
rance Co. 460, 498 
Blackstone v. Wilson . . 129 
Blake r. Albion Life Ass. Co. 5 Int.. 

28, 88, 92, 94. 99, 102. 103. 682 
Blake v. Pilford ..693 

Blanford, Henry Francis, In the 

good* of .. .. 670 

Blewett V. Tregonning . . 743 

Blnndell v. Gladstone . . 519 

Board v. Board . . 637, 668, 670 

Boddy V. Boddy ... . . 30 

Bodh Singh ti. Gunesh Chander 188, 

642, 612 
Boidonath Parooye v. Russick Lall 

20.243 
Boiknnt Natb o. Lvkhun Majhi 442, 444 
BoiJeaa v. Miller . . . . 660 

Boilean «. Bvtlin . . 140, 260 



Pack. 
Boisogomoff r. Nahapiet Jute Com- 
pany . . . . . . 16, 233 

Boldron v. Widdows . . . . 106 

Bolton r. Corporation of Liverpool 

696. 703, 706 
Bolton r. Sherman . . . . 361 

Bomanjee Muncherjee v. Hossein 
Abdoolab .. .. .. 662 

Bommarauze Bahadur's v. Ranga- 
. samy Mudaly . . . . 33 

Bond V. Douglas . . 89 

Bonfield v. Smith . . 93 

Boodh Narain r. Omrao Singh . . 30 

Boo Jinatboo v. Sha Nagar 686, 686 

Boolee Singh v. Hurobuns Narain 668 
Borrodaile v. Chainsook Bnxyram 460 
Bonme t>. Gatliff . . 39, 46, 602 

Boverbank v. Monteiro . . . . 470 

Bowes V. Foster . . 188, 661 

Bowes V. Shand . . 409 

Bowman v. Bowman . . . . 702 

Bowman v. Hodgson . . . . 402 

Bowman v. Taylor . . 634 

Boyle V. Wiseman . . 381, 710 

Boyson v. Coles . . . . 666 

Braddon v. Abbott . . 460, 497 

Bradlangh v. De Ren . . 625 

Bradley v. James . . . . . . 213 

Bradley v. Ricardo . . . . 761 

Brain v. Preece . . 204 

Braja Kishor ti. Kirti Chandra . . 660 



Braja Nath v. S. 

Dasi 
Brajanath Kundn 

yan 
Brajendro Coomar v. 

Chander 
Brajeshware Feshakar v. 

uddi 
Brassington v. Brassington 
Brerkon v. Smith 
Brembridge v. Osborne 
Brenchley v. Still 
Brett V. Beales . . 
Brewer v. Palmer 
Brewster v. Sewell 
Brickell V. Hnlse 
Briddon, In the goods of 
Briggs V. Aynsworth 
Briggs V. Wilson 
Brigham v. Fayerwesther 
Bright V. Doe d. Tatham 
Brij Bhookun v. Mohadeo Doboy . . 639 
Brijonath Chowdhry v. Lall Meah 

256,677 
Brimho Moye v. Ram Dalub . . 657 



M. Anandamayi 

..461 

V. Lakhi Nara- 

..629 
Madhnb 

.. 536 
Budhan- 
640, 662, 662 
.. 707 
.. 112 
.. 69 
.. 626 
.. 222 
.. 466 
386, 386 
.. 140 
.. 436 
.. 732 
.. 208 
.. 275 
.. 401 



Digitized by ^OOQlC 



TABLB or OASES OITBD. 



xU 



Paob. 
Brmdabnn Chuider v. Chandra 

Kannokar .. ..618 

Brindabon Chowdhrain v. Radhioa 

Chowdhrain . . 547 

Brindabon Chander p. Taraohand 

Bandyopadhya .. 534 

Brine v. Bazalgette . . 323 

Bringloe «. Ooodson . . 778 

Brisbane v. Daores . . 621 

Brisoo o. Lomax . . . . 216 

Briatow B. Cormiokan . . 60 

Briatow V. Segueville . . . . 300 

Britiah, etc.. Assnranoe Co., Re .. 626 
British and American Telegraph 

Co. V. Colson . . 106, 439 

Broad o. Pitt . . . . 697 

Brooss V. Lloyd .. ..780 

Brodie v. Brodie .. ..47 

Brodie v. Howard ..131 

Brohmo Dntt v. Dhurmodass Ohjsh 646 
Brojendra Coomar v. Chairman, 

Dacoa Mnnioipality 130, 134, 187, 188 
Brojo Kishoiee v. Sreenath Bote . . 649 
Brojo Hohun e. Radha Koomaree 646 
Brojonath Ghose v. Koylash Cknn- 

der . . . . . . . . 666 

Brojonath Roy v. Kishen Lall .. 660 
Brojo Soondery v. Laohmee Koon- 

waree . . . . 627 

Brojo Bonder v. Koylash Chander 681 
Bromannnd Gossain r. Goyt. . . 668 

Bromley v. O. L P. Ry. Co. . . 614 

Brook V. Brook . . . . 679 

Brookes v. Tiohbome . . 404 

Brown t>. E. H. R. Co. . . 38 

Browning v. State . . . . 127 

Bagwan Das v. Dpoooh Singh 666 

BeU V. OSalivan ..862 

Banwaree Lall r. Maharaja Het- 

narain 7 Int. 

Brown v. Voeter . . . .696, 700, 701, 

Brown e. HoCUntook . . 360 

Brown v. Woodman . . . . 374 

Browne v. Hurray . . 528 

Brace p. Garden ..112 

Brace v. Nioolap)>olo .. 48,626 

Bniff p. G. N. Ry. Co. . . 126 

Brnkowaky v. Thaoker, Spink ft Co. 51 
Brnnner, Be . . 139 

Branawiok v. Harmer . . 296 

Bryan «. White ..399 

Bacolenoh «. Metropolitan Board of 

Works .. 688.689 

Boeher v. Jarratt . . 458 

Bndree LaU *. Bhoosee Khan 421. 423 
Bndxee Lan «. Kantee Lall ..660 



Faoe. 
Bailey f>. BuUey ..114, 187,189 

Bullook V. Corrie . . . . 699 

BuUnbee Kant v. Doorjodhnn Shlk- 

dar .. .. .. ..680 

Bonbary v. Bunbnry . . 701 

Bonbnry v. Mathews .. .. 626 

Banwaree Lai v. Maharajah Het- 

narain . . . . 16, 366. 306, 367, 368 

Banwarry Lall v. Forlong 244, 378, 

666, 661 
Bnrdaoant Roy v. Chander Koomar 630 
Bnrdett'e Case . . . . 19 

Borgoyne v. Showier .. .. 626 

Borha Mandari v. Megfa Nath ..211 

Burjorji Carsetji v. Munoherji 

Kayerji 337,348.340.361.352.376,471 
Bnrjorji Dorabj v. Dhanbai .. 136 

Bnrkinshaw v. NicoUs . . 660 

Barling o. Patterson . . 626 

Bormeeter v. Barron . . 105 

Bom V. Aohambit Roy . . . . 256 

Bam ft Co. v. Baahomoyee Daaee 

670, 677 
Bumabie «. Baillie . . 59, 281, 593 

Barndde v. Dayrell . . . . 125 

BarreU v. North . . . . . . 370 

Barroagh v. Martin . . 781 

Burrowes v. Lock . . . . 648 

BarsiU v. Tanner . .700, 701. 707 

Burt V. Walker . . . . 229 

Burton v. Payne . . . . 380 

Burton v. Plummer . . 782, 783 

Bury V. Philpot .. .. 600,592 

Bnstros v. White . . 698. 705 

Butler V. AUnutt .. ..104 

Butler V. Ford . . 625 

Buxton V. Cornish . . . . 465 

Bazloor Raheem e. Shnmaooniss^ 

Begum 3. 4. 627 

Buzrung Sahoy v. Mantra Chow- 
dhrain . . . . 647 
Byathamma v. ArulU 69, 72. 76, 112, 247 
Byjnath Lall v, Ramoodeen Chow- 

dhry . , . . . . . . 668 

Byjonath Sahoy v. Doolhnn Bis- 

wanath . . . . . . 665 

Byne, Exparte .. ..721 

Byrne v. Broadle . . . . 614 



Caine v. Horsefall 
Caimoross u. Lorimer 
Caldeyo. Richards 
Cameron's ftc, Co., Re 
Cammell r. Sewell 



499 
664 
696 
707 
287 



Digitized by ^OOQIC 



z]ii 



TABLE OF CASES CITED. 



Pace. 



Campbell, Ex parte 


.696 


, 690, 700 


Campbell, Se .. 




.. 6 


Campbell v. Campbell 




.. 618 


Campbell v. Loader 




.. 796 


Cannell v. Curtit 




.. 626 


Cantello v. Camtello 




.. 39 


Carew, Ex parte . . 




.. 804 


Cargile v. Wood 




.. 617 


Caristian v. Delanney 




.. 261 


Caraavon v. Villebois 




.. 222 


Carpenter v. Bailer 




634.662 


Carpenter v. Wall 




.. 763 


Carpmael v. Powis 




.. 702 


Carr i>. London and N. W 


• Ry 


Co. 


643, 661, 682, 663 


.663 


664, 667 


Cart«r v. Pryke .. 




.. 38 


Caspenz v. Kedar Nath 


..358,630. 






666 


Cassambhoy Ahmedbhoy 


V. 


Ab. 


medbhoy Hubibhoy 


, 


629.639 


Caston V. Caston 


, 


277. 287 


Castrique v. Imrie 


. 


284, 285 


Cathcart, In re . . 




699,700 


Catt V. Howard 




138, 263 


Cavaly Vencata v. Coll( 


so tor 


of 


MaanHpatam 




.. 646 


Cazenove v. Vanghan 




.. 232 


Central By. Co. v. Kisoh 




.. i860 


Cbadwiok v. Bowman 




.. 706 



Cbakauri Sing v. Soraj Kuar . . 226 

Chamanbu v. Hnltan Cband .. 217 

Cbamamee Bibee v. Ayenoolah 

Sirdar ..243 

Chambers v. Bamasooni . . . . 205 

Chambers v. The Qneen's Proc- 
tor .. .. 6 Int. 
Champabaty v. Bipi Jibnu . . 861 
Chand Hnree v. Rajah Norendro . . 546 
Chendi Charan v. Boistob Charan . . 

406, 409, 415 
Chandika Baksh v. Noma Knnwar . . 86 
Chandi Prosad v. Hohendra Singh . . 270 
Chandler t;. Grieves . . . . 348 

Chandra Kant v. Kartic Chunder . . 862 
Chandra Nath v. Nilmadbnb Bhat- 



tacharjee 


.. 194 


198. 220 


Chango v. Kalaram 




.. 474 


Chant 17. Brown . . 




.. 699 


Chapin t>. Lapbam 




.. 781 


Chapman v. Blnok 




.. 461 


Chard v. Jervis .. 




.. 7 


"Charkieh, •• The 




.. 347 


Charoo v. Zobeida Khatoon 


.. 264 


Charter v. Charter 




.. 510 


Chathakelan v. Oovinda 


Kammiar 143 


Chatha v, Viraryen 




379, 460 



Pa..e. 
Chatney v. Brazilian Submarine 
Telegraph Co .. .. ..517 

Chanraad v. Angerstein .. ..519 

Chedambara Chetty v. Renga Kri- 
shna Muthn . . . , 587 
Chidambaran Chetty r. Karunalya- 
Talangapaty .. ..866 

Cheetha v. Miheen LaU .. 544, 611 
Cheetnn Lai v. Chutter Dharee . . 4S 
Cbenbasapa r. Lakshman Ram 862, 863 
Chenvirappa v. Putappa 291, 635. 

668,661 
Chemkunneth v. Vengunat 346.639 

Cherry v. Colonial Bank of Austra- 
lasia .. .. ..651 

Chhats Bam v. Bilto Ali . . . . 130 

Chidambara v. Thirumani .. 722 

Child V. Grace . . . . 49 

Childerson v. Barrett . . . . 721 

Chinn v. Morris . . . . 61 

Chinnaji v. Dhnnkar Dhonded . . 32 

Chinna Krishna r. Dorasami Reddi 865 
Chinnan v. Ramohandra . . 536. 53T 

Chinnappa Reddi v. Manicka Vasa- 
gam .. .. ..561 

Chinnasami t>. Hariharabadra 276, 277 
Chinna Umayi v. Tegarai Chetti .. 66 
Chinnaya v. Gurunatham Chetti .. 126 
Chintaman Ramchandra v. Dareppa 653 
Chintamanrao Mehendale v. Kashi- 
nath .. .. ..550 

Chintu V. Dhondu . . 659 

Ohitko V. Janaki .. ..659 

Chockalingam PiUai v. Mayandi 
Chettiar .. .. ..008 

Chohnondeley f. Clinton . . 699 

Chooa Kara v. Isabin Khalifa .. 16 

Chotey Narain v. Mussamut Ratau . . 368 
Choutmnll Doogur v. River Steam 
Naviagation Co .. ..614 

Chowdhrani v. Tariny Kanth 532, 627 
Chowdhry Debi f. Chowdhry Dowlat 

489, 562 
Chowdhry HerasutoUah v. Brojo 
Soondur . . . . . . 549 

Chowdhry Pudum v. Koer Oodey 549 
Christacharlu v. Kasibasayya .. 571 

Cbuckun Lall v. Poran Chunder . . 126 
Chumman Shah, In the mattar of . . 150 
Cfaundee Chum v. Mobaraok Ali . . 362 
Chundee Chum v. Eduljee Cowadjee 

260, 048 
Chunder Coomar v. Harbuns Sahai . . 

666. 668 
Chunder Kant v. Bungshee Deb . . 579 
Chunder Kant t>. Pearee Mohun . . 187 



Digitized by 



Google 



TABTE OF CASES CITED. 



xHii 



Paob. 
Okonder Kant v. Brojo Nath .. 445 

Chunder Kant v. Ramnarain Bey . . 112 
Chunder Monee v. Joykissen 

Siicar ... 645 

Chtmder Uone« v. Baj Kishore . . 676 
Chonder Natii v. Kristo Komiil, 

443. 646. 627 
Chtmdemath Roy v. Kooer Gobind- 

nath .. .. ..610 

ChnndrMhwar v. Clinni Ahir . . 123 

Chtmi Knar v. Udai Ram 633, 

636, 608 
Chonni Kuar v. Rap Singb . . 686 

Chnrsman v. Ball) . . 97 

Chutter Lai v. Ooyt. . . 280 

Chyet Narain v. Bnnwaree Singh . . 535 
Citizen Bank v. First National 

Bank . . 643. 644. 666 

Cira Ran v. Jevaaa Ran . . . . 640 

0. J. R. V. Ramantind .. 264 

CUrges V. Sherwin .. .. 283 

Claridge v. Mackenzie . . 677 

Clark r. Adie .. ..672 

CUrk r. Alexander . . . . 674 

Clarke v. Bindabun Chunder 134. 138 
daike V. Magmder . . 627 

Clarice v. Mulliok . . 121 

Clarke v. Saffery ..762 

Clarton v. Shaw . . 462. 463 

Claydon r. Green . . 3 

Clayton v. Lord Nngent . . 606. 617 

Clayton v. Wardell .. ..615 

Cleare v. Cleare . . . . 564 

Cleave r. Jones . . 31. 701. 703 

Clifford V. Barton ..126 

Clifford V. Hunter .. ..737 

Cloak V. Haounond . . 514 

Clocmadene v. Carrel . . 625 

Clones V. Peziey . . 607 

Coates r. Bainbridge . . 125 

Cobbett V. Grey .. ..116 

Cobbett t>. Hudson . . 686 

Cobbett V. Kilminster .. ..404 

Cobden v. Kendrick .. .. 700 

Cochran r. Retborg .. ..678 

Cockrill V. Sparkes . . . . 133 

Coggg r. Bernard .. 614. 681 

Coglan V. Cumberland . . 20 

Cohen v. Bank of Bengal 471. 483. 493 
Cohen r. Sutherland ..473 

Cole V. Hawkins .. ..721 

Cole r. Langford .. ..289 

Cole V. Manning .. ..39. 687. 718 

Colea V. Coles . . 762. 764 

Collector of AUahabad v. Suraj 
Bakah 673, 677 



Page. 

Collector of Gotokhpur w.Palakdhari 

Singh . . . . 1, 2, 4, 5, 28, 46, 

65, 66, 69, 72. 76, 82. 83, 279. 2H2 
Collector of Madura r. Motoo 

Ramalinga .. .. 67.341 

Collector of Masulipatam v. 

Cavaly Vencata .. .. 5*6 

Collector of Monghyr v. Hardai 

Narain .. .. •• 550 

Collector of Rajshahye v. Doorga 

Soonduree . . 63, 264, 266. 2o8 

Collector of Rungpore v. Prosunno 

Coomar . . . . . . 558 

Collector of Sea Customs v. Chit- 

hambaram . . . . . ■ 5 

Collector of Thana v. Hari Sitaram 548 
Collector of Triohinopoly v. Tekkamani 629 
CoUedge v. Horn .. ..129 

Collier v. Simpson 294. 344. 364 

Collins V. Bennett .. .. 670 

Collins V. Blantem . . . . 488 

Colpoys V. Colpoys .. .. 607 

Colaell V. Budd . . . . . . 59 

Com. V. Casey . . . . . . 200 

Com. V. Fox . . . . . . 779 

Com. V. Kimball .. .. .. 614 

Com. t>. Morell . . . . . . 370 

Com. V. Webster .. 311.605 

Concha v. Concha . . 276. 276. 461 

Concha v. Murietta . . . . 294 

Constable t>. Leibel . . . . 303 

Cook V. Wilby . . . . . . 435 

Cooke V. Banks .. .. ..222 

Cooke V. North Met. Tram Co. . . 704 
Coole V. Braham . . 134. 138. 139 

Coombs V. Coether .. ..222 

Cooper, In re . . . . . . 97 

Cooper V. Blandy . . 672. 673 

Cooper V. Dedrick . . . . 574 

Cooper V. Met. Board of Works 125. 12li 
Cooper V. Slade . . . . 17. 26, 127 

Cope V. Cope . . 589, 690, 592. 593 
Corbett v. Brown . . . . . . 650 

Cornish v. Abington 662, 663, 664 

Cornish v. Searell . . . . 676, 677 

Corsen v. Dubois . . 721, 785 

Cory V. Bretton . . . . 145 

Cory V. Gertcken . . . . 046 

Costello V. Crowell . . . . "79 

Cotman v. Orton . . . . 701 

Cotton V. James . . 94, 97 

Coulson t'. Disborough . . 790, 793 

Courteen v. Touse .. 39, 123 

Court of Wards ». Venkata Suriya .. 513 
Coventry v. G. E. R. Co. 651, 662, 

653, C«0 



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xliv 



TABLE OF 0A8B8 CITED. 



Pack. 

Covenfery v- Tubi Porehad . . . . 640 

Covert r. Gray . . . . . . 600 

Cowan V. Abrahams . . 468 

Cowasji Rattonji v. Borjorji Ros- 

tomjee 483, 491 

Oowie t>. Remfrey . • 463 

Cowley r. People .. 687 

Cowper V. Cowper . . 607 

Cox V. Brnce ; . 660 

Cox V. Borbridge . . 88 

Craft V. Com 776 

Crawconr v. Salter . . 701 

Crawford v. Spooner . . ..1.4 
Cream v. Barrett . . 212. 213. 214. 797 

Creevy v. Carr . . 737 

Creaswell v. Jackson . . 404 

Criap V. Anderson . . 604, 626 

Crispin v. DogUoni ..381 

Croft V. Croft . . 626 

Oromaok v. Heathcote . . 697 

Cropper v. Smith . . 667, 672 

Crowdiev. KuUarChowdhry .. 866 

Crowley v. Page . . . . 770 

CrowtUer v. Appleby . . 786 

Canliffe v. Sef ton . . 48 

Conningham, In re . . 26 

Cunningham v. Faublanqae . . 87 

Carrier v. Hampton . . 311 

Cuiry ». Walter . . . . 689 
Coraetji J. Khambatta v. Crowder . . 8 

Cnrteen v. Touse . . 747 

Cnrtee v. Peek . . 296 

Curson t>. Lomaz . . . . 222 

Cothberteon v. Irving . . 671 
Catta V. Brown . . 472. 473, 478, 

479. 487, 491, 566 



Sabeo Misser v. Mnngor Meah . . 639 
Dabce Pershad >'. Ram Coomar . . 70 
Dabee Snhai t>. Sheo Dass . . . . 646 

Dabjee Sahoo v. Shaik Tnmeezood- 

deen . . . . . . 681 

DaCosta v. Jones . . 768 

DaCosta t>. Pym .. ..312 

Dadabhai v. Jamaedji . . 346 

Dadabhai Narsidas v. Sub-colleo- 

tor of Broach .. 681,682 

Dada Honaji v. Babaji Jagnshet . . 493 
Dadoba r. Collector of Bombay . . 503 
Dagdn v. Bhana . . . . 490, 491 

Dagda v. Kamble . . 647 

Dagdu V. Panohom Singh 8 Int 

Dagleish v. Dodd . . 265 

Daimoddee Paik v. Kaim Taridar . . 476 
Uainee v. Hartley ..296 



I'aoe. 

Daintree, In re .. ■■ U7 

Daintree v. Hntohinson .. ..519 

Daitari Mohaati r. Jngo Bnndhoo . . 

64, 68. 72. 399, 580 
Sakhina Kali e. Jagadeshwar Bhat- 

tacharjee .. •• ''* 

Dale V. Hamilton .. ..477 

Dalglisb V. Guzaffnr Hasaain 66. 

280. 314. 315 
Dalip Singh v. Dnrga Prasad 

54, 465. 466, 865 
Dalison p. Stark ..458 

Dalton V. Fitzgerald . . 637 

Damodar Jagannath v. Atmaram 

Babaji . . 385, 862. 863 

Damodara Mndaliar v. The Secre- 
tary of State for India 8 Int 
Damodhar Gordhan v. Deor»m 

Kanji, 339, 344, 346, 346. 437, 694 

Damodar Dass v. Mahiram Pandoh 669 
Dan t). Brown ..131 

DanieU v. Pitt . . 13» 

Daniell ».. Potter ..132 

Daniel v. Metropolitan Ry. Co. . . 100 
Daniel v. Wilkin . . 22* 

DanmuU v. B. I. S. N. Co. . . 668 

Darbha Venkamma v. Rama Sab- 

barayadu . . 639 

Darby t>. Ousely . . 144, 263 

Dattaji v. Kalba . . 655 

Dattaram v. Venayak . . . . 645 

Dattatraya, In re . . 31 

Dattoo V. Ram Chandra ..476.476,481 
Daukins v. Rokeby . . . . 693 

David, In the matter o/ . . 178, 686 

Davies t>. Lowndes 73, 216, 220, 221, 284 
Davies v. Ridge . . 122 

Davies o. Waters . . 701, 707 

Davis V, Dale . . 744 

Davis V. Field . . 779 

Davis V. Jones . . 493 

Davis V. Lloyd . . 193 

Davis's Trusts, In re 348, 435 

Davlata v. Ganesh Shastree 539. 562 

Dawan Singh v. Mahip Singh . . 722 
Day V. Trig . . . . 513 

Dayal Jairaj v. Khatav Ladha . . 635 
Dear v. Knight . . 763, 764 

Debee Pershad v. Ram Coomar . . 268 
Debi Rai v. Gokol Prasad . . 639 

Debi Singh v. R. . . 637 

Debnath Roy t>. Gudadhur Dey . . 671 
DeBretton v. DeBretton & Holme 

682, 688 
DeBussohe v. Alt ..664 

Deby Persad v. Dowint Singh 4 Int. 



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TABLE OF CASES CITED. 



xlv 



Pa«k. 
Deendyal Lall v. Juj^eep Narain . . 550 
DeUny v. Fox . . 672 

Delhi and London Bank v. Orchard 4 
DeMedina v. Owen . . 264 

DeMora v. Concha ^5. 276, 461 

Dennett v. Crocker . . 457 

Dinomoni Devi v. Boy Liichmiput 5 Int. 
Denonath v. Horry Narain 542, 611 

Denonath Batabyalv. AdhorChnnder 639 
Denoo Singh r. Doorga Pershad . . 364 
Deojit r. Pitamber . . . . 606 

Deokinandan v. Sriram . . . . 246 

Deo Knar v. Man Knar . . 547, 587 

Deoli Chand v. Nerban 8ingh . . 662 
Deo Nath e. Peer Khan . . 531 

Deo Pershad v. Lujoo Roy . . 546 

Depy. Comsr. of Bara Banki v. Ram 

Pairiiad . . i>04, 240, 241 

Depy. Legal Remembrancer v. 

Karuna Boictobi . . 19, 

92. 96, 162, 153, 173, 637, 669, 571 
Depy. Legal Rembrancer v. Mr. Sar- 

war .. .. .. ..602 

De Rosaz, In the goods of .. . . 506 

De Ron Peerage Cam . . 319 

Deny v. Peek . . . . 99 

Deaai Motilal r. Parasbotam Nadlal . . 866 
Desai Ranchoddaa v. Rawal Nathubai 85 
DeSonza v. Peatanji . . 65 

Devachand r. Hirachand Kamraj 860 
Devaji Gayaji t>. Godabhai Qodebhai 

445, 638 
Derala Co., Re .. ..125 

Dowan Ran f. Indarpal Singh . . 545 
Dhan Bibi r. Lalon Bibi .. 617 

Dhanmnll v. Ramohunder Ghose 

218, 219. 645, 646 
Dhanookdharee Sahee i'. Toomey . . 243 
Dharmaji Vaman V. GnrrarShrinivas HI 
Dbarm Singh v. Hur Pershad . . 577 

Dhnrnp Nath v. Gobtnd Saran . . 573 
Uhondo Balkrishna v. Raoji . . 665 

Dhondo Bhikaji v. Ganesh Ghikaji . . 573 
Dhondo Ramchandra r. Balkrishna 

Gobind ..546 

Dhnn Monee v. Snttoorghan Seal 563 
Dhnnno Kazi, /n the matter of the 

petetion of . . .. . . 606 

Dhnnookdharee Lall v. Gunput Lall 671 
Dhnnpat Singh, In re .. .. 347 

Dhnn pat Singh v. Gooman Singh.. 628 
Dhanpnt Singh v. Mahomed Kazim 

674, 677 
Dhonpnt Singh v. Rossomoyee Chow- 

dhrain .. 563 

Dhnimadas Ghosh v. Brohmo Dutt 646 



Paoe. 
Dhurm Daa v. Mnsst. Shama 542, 611 

Dickinson v. Inhabitants oi Pitch- 

bnrgb ..321 

Dickson v. Evans . . . . 569 

Digumbnree Dossee v. Banee Mad- 

hnb Ghose .. .. .. 630 

DiUet, He .. . . 804 

Dinanath Mookeijee v. Debnatfa 

Munich .. .. ..866 

Dinendronath Sannial v. Ram- 

kumar Ghose . . 136 

Dinkar v. Appaji . . 126 

Dinnonath Sen t>. Gumohnm Pal . . 639 
Dinobundhoo Suhaye v. Furlong . . 588 
Dinomoney Dabea v. Doorga- 

pershad Mozoomdar ..349,641.674 
Dinomoni Chowdhrani v, Brojo 

Mohini 79, 82. 83. 258, 432. 678 

Dinomoyi Debi v. Roy Luohmiput . . 

354.453 
Dintarini Debi, In the matter of tite 

petition of . . . . 664. 722 

Dintarini Debi v. Doibo Chundra . . 567 
Dip Singh v. Girand Singh . . 608 

Di Sora t>. Phillips . . 301. 517 

Divethi Varada ». Krishnasami Ay- 

yangar 386. 865 

Diwan Rau v. Indarpal Singh .. 612 

Doe V. Allen 46. 610 

Doe V. Barnes . . 251 

Doe ». Barton .. 219 

Doe ti. Beviss . . . . 212 

Doe t). Bird ..129 

Doe V. Bray . . 246 

Doe V. Carttrrigbt . . 467 

Deo V. Date 698, 707 

Doe V. Davies . . 206. 216. 219 

Doe V. Deakin .. 619 

Doe V. Derby .. ..226 

Doe V. Ford . . 470 

Doe t>. Frankis -. . 60 

Doe V. Gosley .. .. 732 

Doe i>. Griffin .. .. ..619 

Doe V. Harvey . . . . 465. 467 

Doe V. Hawkins .. .. 213 

Doe V. Hertford . . . . . . 702 

Doe V. Hisoocks .. .. 610,511. 514 

Doe V. James . . . . 7C1. 786 

Doe V. Jauncey . . . . . . 697 

Doe V. Jones . . . . . . 212 

Doe V. Kelly 721, 785 

Doe V. Kemp . . . . . . 60 

Doe V. Langdon . . . . . . 707 

Doe V. Lloyd .. .. .. 348 

Doe t). Morris .. .. .. 394 

Doe V. Needs . . . . . . 610 

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xlvi 



TABLE OF CASES CITED. 



Doe V. Oliver 
Doe r. Perkins 
Doe V. Pettett .. 
Doe V. PhiUips 
Doe V. Powell 
Doe f. Pnlman 
Doe V. Pye 
Doe r. Robson 
Doe I'. Boe 
Doe V. Ross 



Paoe. 
..638 
..782 
..134 
..441 
229, 230 
. . 70 
. . 46 
..210 
361.732 
129, 374, 381. 
388 414, 785 
Doe r. Steel .. .. ..114 

Doe t'. Suokermore . . 310 

Doe r. Thomas .. .. 698 

Doe V. Tnrford . . 202. 203, 205. 213 
Doe V. Vowles . . . . 210 

Doe f. Webber .. ..138 

Doe r. Westlike . . . . 510 

Doe f. Witcomb .. .. 222, 386 

Doe V. WoUey .. .. .. 441 

Doe d. Barlow v. Wiggins. . 673, 667 

Doe d. Bullen v. Mills . . 676 

Doe d. Child t«. Roe . . . . 638 

Doe d. Derby v. Foster . . 233 

Doe d. Devine v. Wilson . . 404 

Doed. France v. Andrews 244, 248 

Doe d. Gibert v. Ross . . 3 Int. 

Doe d. Higg inbotham v. Barton, 672. 676 
Doe d. Hiscooks v. Hiscocks, . . 501 
Doe d. Jagomohan Rai v. Nimu Dasi 66 
Doe d. Johnson i>. Baytup 670, 675, 678 
Doe d. Knight v. Smythe . . 670 

Doe d. Lloyd v. Evans . . 147 

Doed. Lloyd v. Passingham .. 232 

Doe d. Marriott v. Edwards . . 677 

Doe d. Pearson v. Riea . . 451 

Doed. pie vin t'. Brown 673,677 

Doe d. Spencer v. Beckett . . 675 

Doe d. Spilsbury v. Bnrdett . . 399 

Doe d. Tyler . . . . 797 

Doed. Welsh v. Langfield 3 Int. 

Doed. Wright v. Tatham .. 362 

Dolder t>. Huntingfield ..344 

Doll I'. Morris . . . . 307, 308 

Domun Lall v. Pndmun Singh . . ,'>,<>6 
Donzelle v. Kedar Nath Chucker- 

butty .. 485,634,671 

Dookha Thakoor v. Ram Lall . . 489 

Doolee Chand t». Mnsst. Oomda 587, 656 
Doongrusee Byde v. Gridharee Mull 569 
Doorga Chum v. Shoshee Bhoosun 281 
Doorga Chum v. Syud Najunood- 
deen . . . . . . 560, 570 

Doorga Dass v. Nurendro Coomar 

72, 279, 284 
Doorga Pershad v. Kesho Pershad 562 



Paoe. 
Dorab Ally v. Abdool Azeez 136. 347 
Dorasamy v. Muthusamy . . . . 560 

Dowley v. Winfield . . 619 

Dowling V. Dowling . . 5d 

Downs V. Cooper . . 674. 677 

Doyachand Shaha v. Anund Chunder 555 
Doyanidhi Panda v. Kelai Pandc 559 
Doyle V. Hort . . . . . . 622 

" Draohenfels, " The " Retriever ' ' 
V. " Drachenfels, " In the matter 
oftKe .. .. .. 253,346 

Drant t>. Browne . . 457 

Drinkwater v. Porter . . 214 

Dubey Sahai v. Ganeshi Lai . . 3 

Duchess of Kingstones case . . 286 

Duke V. Ashby .. .. ..670 

Duke of Devonshire v. O'Connor 5 
Duke of Leeds v. Earl of Amherst 654 
Dukhi Mullah t>. Halway . . . . 3 

DuUab Sirkar v. Krishna Kumar 053, 635 
Duncombe v. Daniell 351,380 

Dunne v. Legge . . . . . . 560 

Durga V. Jhinguri . . 667, 672, 673 

Durga Das v. Samash Akon . . 677 

Dorga Dihal v. Anoraji . . . . 724 

Durga Prosad v. Bhajan Lai 463, 491 

Dwarka Bunia v. R. . . . . 328 

DwarkaDasv.SantBaksh 34. 238. 239. 871 
Dwarka Doss v. Baboo Jankee 104, 241 
Dwarka Nath v. Tara Soonduroe . . 244 
Dwarka Nath v. Unnoda Sonduree 639 
Dwarkanath Bose v. Chundee Chum 122 
Dwakanatb Chattopadhya v. Bhog- 
Koban Panda . . . . 495 

Dwarkanath Misser v. Tarita Moyi 411 
Dwyer v. Collins . . 380. 391, 394. 700, 701 
Dyer t>. Pearson . . .. 655 



E. I. Co. V. Tritton . . . . 621 

E. I. Ry. Co. V. Kalidas Mukerji 614. 621 
Eade v. .Jacoba ... . . . . 702 

Earl's Trust, In re .. . . 435 

Earl of Bandon v. Becher .. 291 

Earl of Damley v. Proprietor, &c.. 
of London, Chatham and Dover 
Railway ..496 

Eastern Counties, etc.. Companies r. 
Marriage .. .. 2,3,4 

Eaton V. Swansea Waterworks . . 284 
Ebrahim Pir f. Cursetjee Sorabjee 

483,491 
Ecker v. McAllister . . . . 620 

Eckowrie Singh v. Heera Lall 29, 258 

.354,368 
Ede V. Kantho Nath .. ..672 



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TABLE OP CASES CITED. 



xlvii 



Page. 
Edgington v. Fitemaurice . . 92 

Edie r. Kingsford . . 202, 208, 455 



Edmunds r. Groves 
Edwards, Ex parte 
Edwards t-. MuUer 
Edwards v. Toalls 



349,352 

139. 211 

.. 722 

49,50 



Ekowrie Singh v. Kyiaah Chonder 445 
Elahee Bukgh, /» the matUr of . . 803 
Elgin Mills Co. v. Unir Hills Co. . . 653 
Eliot V. boyles . . . . . . 741 

Elkin V. Janson . . . . . . 569 

Elton t;. Larkins . . . . . . 129 

Ely V. Caldecott . . . . 222 

Enayet Hoosein v. Deodar Bttx .. 631 
Enayetollah Ueah v. Nnbo Coomar 243 
Enayutoolah v. EUheebnkali . . 63< 

England d. Sybnm v. Slade .. 677 

English V. Tottie .. ..704 

Eraajoli Vishnn v. Eranjoli Krish. 

nan . . . * • • 85, 669 

Erava v. Sidramappa Pasar . . 668 

Erfanoonissa v. Pearee Mohan .. 553 
EnUne v. Government .. .. 243 

Ertaxa Hossain v. Baney Mistry . . 581 
Eahaa Chonder v. Protab Chonder 513 
Eshan Chandra v. Nundamoni .. 286 
Ethan Chandra v. Shama Charan.. 16 
EthooT Dass v. Venkatasoba Rau 486 



Eugene Aram's Case 




.. 45 


Evans v. Biroh .. 




.. 104 


Evans v. Evans .. 




19,620 


Evans V. Morgan 




.. 320 


Evans v. Mosely 




.. 744 


Evaos V. Bees 




.. 280 


Evansville B. R. Co. v. 


Yoang 


.. 317 


Exeter v. Warren 




.. 213 



Fabrigas v. Mostyn . . 140 

Fackeroodeen Adam Saw. In the 

matter of .. . . 276 

Faez Box t>. Fakimddin Mahomed 

367. 532 
Fairlifl v. Denton . . . . 50 

Fairlie v. Hastings 120, 124, 126 

Fairtitle «. Gilbert ..647 

Faixolla v. BanJtamal Hitter . . 484 

Faizon-nissa v. Hanii-un-uiasa 480, 

490, 499 
Fakeeraddeen Mahomed v. Official 

Trostee .. .. ..260 

Fakir Mohammad V. Tiiomala Chariar 346 
Fkkoner «. Hanson .. 264 

" Valla of Ettriok. " In the matter 

of 278 

FaaJdnmiissa. ia re . . 722 



P.fdE. 

Farmloe v. Bain . . . . 660 

Farquharson t>. Dwarkanath Singh 

4 Int.. 243 

Farr v. Price . . . . . . 863 

Farrar v. Beswiok .. ..627 

Farrar v. Hntohinson .. ..661 

Farrow v. Glomfield .. .. 144 

Fatechand Harohand v. Kisan . . 862 

Fatimonissa Begom v. Soonder Das 667 

Fatma V. Daiya .. .. 249, 261 

Fatmabai v. Aishabai . . . . 722 

Fatteh Singji v. Bamanji . . . . 678 

Faulkner v. Brine .. .. 763 

Fawkes v. Lamb . . . . . . 499 

Fazlar Rahman v. Raj Chonder . . 681 

Feeham, lie .. .. . . 263 

Fegredo v. Mahomed Modesaor . . 648 

Felder v. State . . . . . . 200 

Fellowes v. WiUiamson . . 89, 143 

Feltham, In the matter of .. .. 500 

Fenn v. Griffith .. .. .. 456 

Fenner v. Daplook 673. 677 

Fenner v. S. E. R. Co. . . . . 702 

Fenwick v. Thornton . . 121, 132 

Fergusson v. Govt. . . . . 243 

Fernandez v. Alves . . . . 401 

Ferrand v. Milligan . . 797 

Few t). Gappy . . . . . . 707 

Fielder v. Ray . . . . . . 456 

Finch V. Finch .. .. ..718 

Firth V. Firth . . . . . . 296 

Fisher v. Owen . . . . . . 706 . 

Fisher V. Ronalds .. ..710 

Fitz V. Rabbits . . . . 386 

Fitzgerald r. Dressier . . . . 627 

Fitzgerald v. Fitzgerald .. .. 232 

Flatau, Ex parte . . . . 287 

Fleming v. Fleming .. 689. 617 

Fleming v. Gooding . . . . 670 

Fletcher v. Braddyll .. ..106 

Fletcher t>. Froggatt .. ..116 

Fkwer v. Llody . . . . 287, 288 

Foakes v. Webb . . . . . . 699 

Folkes V. Chadd ... .. 298.309 

Follett V. Jefferyes . . 695, 690 
Foolooomary Dasi v. Woody Chunder 286 

Fool Kissory v. Kobin Chonder 229, 

235, 770 

Forbes v. Ameeroonissa Begum . . 488 

Forbes v. Meet Mahomed 135, 531, 

663, 557, 663, 630 
Forbes v. Mir Mahomed 121. 134, 189 

Forbes v. Watt . . . . . . 45 

Ford, Ex parU . . . . 649, 665 

Ford V. De Pontes . . . . 698 

Ford V. Yates . . . . . . 451 



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xlviii 



TABLE OF CASES CITSO. 



Pa<ik. 

Fordham v. Wallia ..131 

Fordyce v. Bridges . . . . 4 

Forester e. Seoy. of State for India 

345. 346 
Fonbaw v. Lewis . . 700 

Foster, Bx parte 17 

Foster v. Hall . . 697 

Foster v. Haokinnon . . 680 

Foster v. Pointer . . 392 

Foster v. Shaw . . . . 283 

Fotilkes V. Chadd . . 39 

Fountain v. Boodle. . . 323 

Fowler v. Fowler . . . . . . 707 

Fowler v. Savage . . 284 

Fox V. Waters . . 122. 130, 132. 133. 
Foxall V. International Land Credit 

Co. 87 

Framji Bhicaji v. Mohansing Dhan- 
sing 7. 8 Int., 695. 696. 697. 699. 

700. 701. 702 
Framji Hormusji v. Commissioner 

ofCnstoms ..606 

Franklin v. Merida . . 670, 677 

Franklin Bank r. Pensylvania 123. 124 
Fraser. iJe .. ..287 

Freeman v. ArkelT . . 386 

Freeman r. Cooke 641, 649, 660, 

666, 663. 664 
Freeman v. Cox .. 49, 60 

Freeman «. Fairlie .. 249 

Freeman v. Phillips . . 216 

Freeman v. Reed . . 222 

Frein v. L. 0. & D. R. Co. . . 706 

Freshfield v. Reed ..390 

Friedlander t>. Londcm Assurance 
Co. .. .. ..761 

Frith V. Frith 50, 252 

Fryer t>. Gatheroole . . 296. 310 

Fulli Gibi v. Banisnddi Medha . . 562 
Fnttehsangji v. Dessai 2 

Fuieelan Bibee r. Omdah Bibee . . 617 
Fnzloodeen Khan v. Fakir Maho- 
med .. ..631 



O. v.K. . . 293 

G. I. P. Ry. Co. t>. Hanmandas Ram- 

kison .. 660. 672 

Gahay M. v. Alston . . 386 

Gajanam v. Nilo . . 137. 660 

Qajendar Singh v. Sardar Singh .. 611 
Gajraj Pari v. Achaibar Pun . . 346 

Gale V. Williamson . . 470 

Galpin v. Page 677, 642 

Ganee Mahomed v. Torini Gharan . . 437 
Qaner v. LaoMboroogb . . 300 



Pack. 

Oanesh Lai t>. Bapu . . 644, 646 

Ganesh Daji v. Sukharam Ram 639 

Ganesh Jagannath v. Ramcbandra 

Ganesh .. .. .. 27<> 

Ganga v. Murii Dhur . . . . 639 

Gangadbar Sikhdar v. Azimuddin 
Shah .. .. .. ..630 

Ganga Prasad t>. Ajudhia Pershad 661 
Ganga Ram t>. Chandan Singh .. 671 
Ganga Ram t>. Secretary of State for 
India .. ..664 

Ganga Sahai v. Hira Singh . . 664 

Ganges Manufactnring Co. v. 
SourujmoU 637, 642, 643. 660. 

672, 631 
Gangulee v. Ancha Bapulu .. 662 

Ganonri Lai v. R. . . 364 

Gardner v Irrin . . 699 

Gardner v. Moult . . . . 140 

Gardner Peerage Case . . 306, 319 

Gamett, In re .. .. ..718 

Garth v. Howard . . . . 124, 125. 126 

Oarumdhwaja v. Saparandhwaja . . 

216, 316, 317. 346. 363, 639 
Garrey v. Hibbert . . . . 436 

Gaskill V. Skene .. ..60 

Gasper v. Mytton .. .. 602 

Gatheroole v. Miall . . . . 386 

Gatty ». Fry . . . . . . 862 

Gaurand v. Edison Gower Bell Tele- 
phone Co. .. .. .. 698 

Gaor Mohan v. Taraohand . . 613 

Gee V. Ward .. .. ..216 

Genda Pun v. Chhattur Pari .. 649 
George v. Surrey .. ..311 

George v. Thyer . . . . . . 617 

George Clarke r. Brindabun Chunder 676 
George Whitechuroh, Ld. v. Oav- 



anagh 
Gerisb v. Chartier 
Ghasti V. Umrao Jan 
Ghassee Khan v. Kulloo 
Ghellabhai v. Nandabhai 
Gheran t>. Kunj Behari . 



.. 660 

.- 89 

.. 66 

.. 636 

499. 609 

663. 

664. 666 

Ghirdaree Singh v. Koolahnl Singh 639 

Gholaub Koonwaree v. Eshor Chaa- 

dey 
Gibson v. Doeg . . 
Gibson v. Hunter 
Gilbert v. Endean 
Giles V. Powell . . 
Gillard v. Batas 
Gillies V. Smithers 
Girdbar Nagjiihet v Ganpat Moroba 

46. 860; 861 



.. 627 
.. 89 
7 
723, 726 
.. 700 
.. 400 



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TABLE OF OASES CITED. 



xlix 



Pagb. 
Girdhaiee Lall r. Kantoo Lall 560. 561 
Oirdhuee Lall r. Modho Roy . . 364 

Girdharee Singh v. Lalloo KoonwvT 662 
Girdhari Singh v. Hardeo Narain 640 
Giidharlal Dayaldaa v. Jagannath 

Oirdharbhai .. 660 

Girdlestone v. Brighton Aquarinm 

Co. .. ..291 

Girindra Chandra o. Nogendra Nath 268 
Girindra Chnndra v. Kajendro Nath 3SS 
Girindra Nath v. Be joy Oopal 

Mnkerjee . . 398, 399 

Giriah Cfaunder t>. Broughton . . 276 

Girish Chunder v. R. . . 33 

Giriah Chnnder v. Shama Chum 112, 121 
"denooe," The .. .. 664 

Goberdhan Singh v. Ritu Roy .. 668 
Goberdhun Lall v. Singessor Dntt 661 
Gobind Chnnder v. Doorgapeiaand 

642. 611 
Gobind Chunder t>. Sii Gobind .. 72 
Gobind Lall v. Debendronath 

MuUiok .. 669 

Gobind Nath v. Q. M. Reilly . . 631 

Gobind Prasad v. Mohan Lai , . 676 

Gobind Soain v. Narain Raoot ..718 
Goblet V. Beeohey .. 619 

Goonldas Bnlabdas 

Co. V. Soott 
Goday Narain v. Sri Ankitam 
Goff V. Hills 
Gognn Chunder 

Mondnl 
Gognn Chunder v. R. 
GokaUas Gopaldas t>. 

IVMDSukhdaa 
Goka Prasad v. Radho 
Gokool Kristo v. David 



Manufacturing 

..639 
294,620 
..720 
Dhnronidhur 

..671 

..286 

Pnianmal 

622, 630, 634 

.. 341 

668, 601 

G<dnil Chunder i*. Nilmoney Mitter 669 
Goknl Diohit e. Maharaj Dichit . . 246 
Oolam Ali c. Gopal Lall . , . . 666 

Golam Nubee v. Bissonath Knr . . 680 
Golap Chand t>. Thakurani Mohokoom 863 
Golden River Mining Co. v. Buxton 

Mining Co. .. 738 

Goloke Chnnder v. Magistrate of 

Chittegong ..117 

Golnek Chnnder v. Raja Sreemnrd 364 
Oohiok Kishore v. Nnnd Mohnn . . 364 



Gomaji » Snbbarayappa 


.. 864 


OoodaU r. Little 


.. 698 


Goodman v. Sayrea 


.. 621 


Ooodrioh V. Venkanna 


.. 646 


Goodiig^t V. Btonrood 


.. 666 


Goodrigbt V. San! 


.. 319 


OaodtfUe t>. Soatlieni 


611. 612 



Pagk. 
Goomanee, /n the matter of 20, 364 

Gooroo Doss p. Hnronath Roy . . 558 
Gooroo Doss v. Issur Chunder . . 628 
Gooroo Pershad v. Bykunto Chon- 

dw . . 34, 264. 442 

Gooroo Pershad v. Juggobnndoo 

Mozoomdar . . . . . . ggg 

Gooroo Pershad v. Kalee Pershad 544 
Gooroo Prosunno v. Nil Madhub 649, 610 
Gopal V. Dasarath Set ,. ..271 

Gopal V. Kanaram . . 644 

Gopal r. Krishna . . . . 603 

Gopal V. Mageshwar .. ..271 

Gopal V. Narayan .. .. 662 

Gopalasami Chetti v. Amna Chellam 

219 319,689.612 
Gopalayyan v. Raghnpatiayyan 63, 

66, 66, 85 
Gopal Chnnder t-. Herembo Chunder 630 
Gopal Chnnder v. Madhub Chunder 268 
Gopal Chunder r. Sarat Chunder . . 664 
Gopal Chunder v. Umesh Narain . . 557 
Gopal Lall v. Maniok Lall 731, 793, 794 
Gopal Lall v. Tiluck Chunder 664, 628 
Gopal Mnndul o. Nobbo Kishen 238, 243 
Golpalnarain v. Mnddomutty 126, 660 
Gopal Nsrhar v. Hanntant Ganesh . . 638 
Gopal Sahn v. Joyram Tewaiy . . 638 
Gopanund Jha v. Lalla Gobind 666, 677 
Gopaul Chunder v. Gour Monee . . 662 
Gopeekristo Goeain v. Gunga-persaud 

631, 642, 646, 611, 627 
Gopee Lall v. Husst. Sree Chood- 

raolee 116, 188, 350, 669, 666 

Gopee Mohun t>. Abdool Rajah . . 240 
Gopcen ath Naik «. Jadoo Gboae . . 668 
Gopeenath Singh v. Annnd Moyee . . 

29, 867, 602 
Gopi Nath v. Bhugwat Persaad . . 628 
Gopi Wasadev r, Markande Narayan 658 
Goraofaand Sircar v. Ram Narain 29, 

226, 728. 736 
Gorakh Babaji v. Vithal Narayan ..633 
Goidon Stuart & Co. v. Beejoy 

Gobind . . . . . . 188 

Gore V. Gibson .. .. ..112 

Goreebollab Siroar v. Boyd . . 134 

Goreti Subbarow v. Vrigonda Nara- 

simhamon .. .. 496, 496 

Goriboolla Kacee t>. Gooroodaa Roy 

367. 358, 368 
Gorrison v. Perrin . , . . 619 

Goshain Tota v. Rajah Rinkmunee 

797, 798, 799. 802 
Qoas V, Lord Nugent ., .. 494 

Goas t>. Quinton .. .. 386 



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TABLE OF CASES CITED. 



Page. 
Goss V. Watlington . . . . 133 

Gossain Vast v. Siroo Koomaree 643, 568 
Gossain Ranbharti v. GosaTi Ishvar- 

bharti . . . . . • 538 

Gour Hnri v. Amirunesaa Khatoon . . 679 
Gour Lall v. Mohesh Narain 112, 121 
Gonr Lai v. Rameswsr Bbumik . . 673 
Gour Monee v. Huree Kishore . . 264 
Gout Mcnee v. Krishna Chonder .. 662 
Gonr taroy v. Woma Soondniee 444, 

446,680 
Gonr Patra- t>. Reiiey .. 666 

Gour Sondar v. Hem Chtmder 136, 136 
Gonr Snrun t Kanhya Singh . . 379 
Gonree Bass v. Jagnnnath Roy 670, 676 
Government v. Gridhat«e Lall .. 673 
Govinda v. Josha Premaji 629, 630 

Goyinda Knar >>. Lala Eishun . . 668 
GoTindasami V. Kvppnsami .. 671 

Govind Atmaram v. Santai . . 630 

Govindji Jhnver ». Chhotalal Velsi 

76. 123 
Govindtav Beshmukb v. Ragho 

Desmukh .. .. .. 261 

Govind Yaman v. Sakharam Ram- 

ohandra _. .. .. 639 

Gowree Karain v. Hodhoosoodno 

Dntt .. 636 

Grace v. Baynton .. .. 146 

Grant v. Byjnath Tewaree . . 444 

Grant V. Haddoz .„ ..618 

Grant t>. Norway . . . . 660 

OraTenor v. Woodhonse . . 672, 677 

Graves ». Key .. .. 641.661 

Gray v. Warner .. .. .. 686 

Great Western Railway Co. v. 

MoCarty .. .. ..588 

Great Western Railway Co. t>. Willis * 

124, 125 
Greaves t>. Greenwood . . . . 619 

Green v. New Ring Co. . . . . 283 

Green's Settlements, In re . . 573 

Greender Chunder v. Mackintosh .. 98 
Greender Chunder r. Troylokho 

Nauth 636 

Greenongh r. Eccles ..762,763.764 

Greenough v. Gasket 683, 696, 697, 

699, 700 
Greenshields v. Henderson .. 619 

Greenslade v. Bare . . 97, 296 

Greesh Chunder v. Mnsst Bhng- 

gobntty .. .. .. 687 

Gregg V. Wells . . . . . . 641 

Gregory v. Doidge . . 663, 663, 667 

Gregory v. pooley Ch«nd„. 226. 232 
Gregory v. Howard . . 121, 147 



Page. 
Gregory v. Holesworth .. .. 260 

Qrellier v. Neale . . . . 626 

Grey v. Redman .. ..210 

Gridhar Uari v. Kalikant Roy . . 670 
Oridhari Lai v. Govt, of Bengal . . 660 
Orifiin V. Brown .. .. .. 283 

Griffin v. Mason .. ..626 

Griffin v. Rice . . . . . . 316 

Griffith V. Hughes .. ..698 

Grish Chandra v. Iswar Chandra 

40, 188, 606, 667 
Grish Chunder ti. Mohesh Chunder. . 540 
Grish Chunder ».R. .. 189,690 

Grish Chunder v. Soshi Shikharesh- 

war .. .. •• 466 

Grish Chunder v. Bhagwan Chunder 

312, 674 
Guardhouse v. Blackburn .. 490 

Gudadhur Banerjee v. Xara Chand 

Banerjee .. .. 2.14,267 

Gnddadhar Paul v. Bhyrub Chnnder 4i5 
Guddalnr Rnthna v. Kunnatur 

Arumuga 471, 472, 473, 493, 494 

Gudgen t>. Bissett .. ..493 

Gujjo Koer i;. Aaky Ahmed . . 243 

Gujju Lall V. Fatteh Lall 7 Lit, 3, 4, 

5, 30, 35, 64, 65, 68, 69, 71, 72. 

74.76, 77, 82, 83, 214, 278,281, 

282. 313 
Oulamali v. Miyabhai . . 671, 672 

Gully V. Bp. of Exeter . . . . 336 

Qnlzar Ali o. Veda Ali ..649 

Ouhsari Mai v. Madho Ram . . 136 

Gummanee Kazee v. Hurryhur 

Mnkerjee . . . . . . 663 

Guman Gallubai v. Sorabji Burjorji . . 364 
Gunga Bishen v. Ram Gut . . 673 

Gungadhnr Singh v. BimoU Bassee 663 
Gunga Gobind v. Bhopal Chunder 669 
Gungamala Chowdhrain v. Madhub 

Chunder .. .. .. 634 

Gungamoyee Bebi v. Apurba 9 

Chandra .. .. ..24 

Gunga Narain v. Radhika Mohnn.. 433 
Gunga Narain Gupta v. Tiluokram 

Chowdhry .. .. .. 640 

Gunga Persad v. Inderjit Singh .. 239 
Gunga Pershad v. Gogun Singh .. 113 
Gunga Pershad v. RamphulSahoo 620 
Gungaram Ghose v. Kalipado Ghoso 866 
Gunga Sahai v. Lekhraj Singh . . 8 
Ounindra Prasad v. Baijnath Singh 640 
Gunjra Kuar v. Ablakh Pande . . 247 
Gunnesh Butt v. Mngneeram Chow 

dhry .. .. .. 722 

Gunnesh Pattro v. Ram Nidhee 286. 287 



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TABLE or OASES OITBD. 



Paob. 
Oapta Naraio •». Bijoya Sandari 885 
Gaidayal Mai v. Jhandu Mai 63, 84. 279 
dvreebullah Sirkar •. Hohun Lall 3 
Qnniey r. Gumey .. .. 692 

Onro Das v. Sambhu Nath . . 445 

Garnlingaswami «, Bamalaksb- 

mamma .. .. 640,659 

CaruDath Shrinivae r. Chenbaaappa 8;i5 
darusami Chetti v. Sadaaiva Chetti 562 
Onrnsami Saatrial v. Ganapathia 552 
Gntee Koiburto ». Bbuknt Koiburto 64,72 
Oya Singh r. Hohamed Soliman 690,791 
Gyaa Chtmdor v. Durga Churn .. 639 



Habi Bnllah v. R. 
Hadley «.' Baxendale 
Hadley v. Carter 
Haidar Ali o. Abru Mia 
Haigh V. Brook* 



719 

62 

61 

709 

623 



Haimnn Chull v. Koomar Ganesheain 630 

Haines r. Guthrie .. .• 218 

H«it Singh v. Dabia Singh .. 645 

Haji Jakaria v. Haji Oasim . . 786 

Haji Khan v. Baldeo Dass . . 629 

Haji Mahomed v. E. Spinner & Co. 

46, 600, 619 
Haji Sahoo o. Ayesha Bai . . 60 

Hakim Khan v. Oool Khan .. 611 

Hakim Hnhammad t>. Najebaa 686, 687 

Haladhnr Roy Chowdhry o. Judoo 
Nath 

Hall V. Bainbridge 

Hallo. Hall 

Hall V. Venkata Krishna 

Haller v. Worman 

Halliday v. Holgate 

Hallmark's case 

Hamilton v. Nctt 

Hamilton t>. Tennaitt 

Hamlin v. G. N. R. Co. 

Hammond v. Bradstreet 

Hampden v Wallis 

Haamantrao v. Secy, of 
India . . 

Haoooman Proaad v. Mnsst 



.. 122 

.. 625 

.. 374 

.. 660 

49. 129. 361 

.. 777 

.. 97 

.. 702 

49,62 

.. 62 

216, 222 

49.60 

State for 

357, 582 
Babooe 
647. 634, 661 
Hmuoo v. Parker .. 132 

Hanaman Dat v. Aasadola . . 655 

Hanumao Dutt v, Kishen Kishor 661 
Haauman Kamat v. Dowlat Mun 
dar .. .. .. ... 661 

Haanman Singh v. Nanak Chand .. 661 
Hara Coomer v. Doorgamoni ..^277 

Hantdhnn Roy «. Hulodhnr Chan 
im .. .. .. „ 674 

W, LB 



Paob. 

Harak Chand v. Bishnn Chandra 32. 

486.296 
Haran Chunder r. Russiok Chonder 863 
Haramand Roy v. Ram Gopal 368. 

371, 378. 394,410, 417, 437 
Hara Sundari v. Knmar Dukhinesaur 639 
Harbans Lai v. Maharajah of 

Benares . . . . . . •'>66 

Harbuns Sahai v. Bhairo Perahad 

5 Int. 
Harding v. Cretho'.ne . . 46, 97 

Harding v. Jones .. .. 147 

Harding v. Williams .. ..870 

Hardwick r. Coleman . . . . 93 

Hareehur Majoomdar v. Cham 

Majheo . . . . 7 Int., 30 

Hargrave e. Hargraye . . 619, 600. 691 
Hari v. Lakshman .. 666 

Hari v. Chintaman v. Moro Lakshman 

202, 206, 211, 294, 444, 446, 673, 676 
Hari Das v. Ghansham Narain . . 666 
Harikuhore Mitra v. Abdul BaU 12. 690 
Hori Mohan v. Krishna Mobun . . 499 
Hari Mobun v. Kissen Sundari .. 539 
Hari Narayan v. Ganpatrar Daji . . 636 
Hari Bam v. Bhikaree Roy . . 676 

Harish Chandra v. Tara Chand .. 226 
Harish Chandra v. Proeunno Coomar 

112. 113. 121, 374. 386. 388.389.410, 437 
Harish Chunder v. Nishi Kanta .. 660 
Harjivan v Shivram . . . . 669 

Hamath v. Mandal Dass . . 280 

Harok Chand v. Bishun Chandra . . 469 
Haroprosad v. Sheo Dyal .. 16 

Harratt v. Wise . . 97, 260 

Harripria Debi t>. Bnkmini Debi 378, 386 
Harris, Be .. .. .. 146 

Harris v. Brown ... . . 618 

Harris v. Q. W- R- Co 688 

HarrU v. Knight .. ..387 

Harris v. Rickett 471, 472, 473, 623 
Harrison v. Barton .. ..46 

Harrison V. Mayor .. 689,617 

Uarrod v. Harrod .. 689.617 

Hart r. Hart .. .. 440,626 

Hart V. Newman .. ..113 

Hartley v. Wilkinson .. .. 470 

Harvey v. Croydon Union .. 360 

Harvey v. Famie . . • . 277 

Harvey v. Francis . . 672, 673 

Hasaji v. Dhondiram ■ • - • 729 

Kasha Khand «. Jesha Premaji . . 475 
Haskins v. Warren . . • . 316 

HasUm ». Hall .. 702,704 

Hathaway t; Haskell .. ..131 

HatimwB. .. 345.364 



Digitized by ^OOQIC 



lii 



TABLE OF OASES CITED 







Paob. 


Hawkes v. Draeger 




.. 693 


Hawkea v. Salter 




.. 106 


Hawkins, Re ,, 




.. 287 


Hawkins v. Wsrre 




466. 457 


Hay V. Oordon . . 




.. 123 


Haynes r. MoDermott 




.. 404 


Hayslep v. Gymer 




.. 49 


Haywaid v. Stephens 




.. 435 


Head o. Head 


689. 


590, 592 


Heane t>. Rogers 


142. 


188, 641 


Heath v. Ciealock 




.. 660 


Hedgfey v. Holt 




.. 646 


Heeralall Bnkshee t>. Bajkishore 


Mozoomdar 




.. 671 


Heera Lall v. Bariknnnissa I 


Sebee 


.. 663 


Heera Lall «. Petamber Ma 


ndal 


.. 563 



Heinger v. Droy , . 216, 278 

Helena, The .. .. ..276 

Hellier e. Sillcox .. .. 674 

Hem Chandra v. Kali Prosanna 142, 

203, 210. 629, 604 
Hem Chonder v. Rally Cham 475, 

476, 477, 479 
Hem Coomaree o. R. ^ ..722 

Hem Lotta v. Sreedhone Barooa .'. 602 
Hemnath Rai v. Sanke Rai . . 630 

Henderson, In the goods of 343, 430 
Henderson v Carbondale Coal Co. 626 
Henderson & Co. t>. Williams .. 681 

Henman v. Lester . . 144, 756 

Hennessy v. Wright 6 Int.,683, 692. 

693, 694, 786, 778 
Henry Coxoii, The .. .. 206 

Henry Fran< is Blanford, In the goods 

of 432 

Henry Pack r. In the goods of , . 431 

Henry t>. L.«gh . . . . . . 380 

Henry v. M< rqnis of Westmeath . . 465 
Hetheringtun v. Kemp 103, 105. 203 

Herembdhev Dhamidhardev v. 

Kaehina<h Bbaskar .. .. 405 

Bet Lall Roy, /n rt , . , . qqq 

Hey V. Moorhonse ,. ,, 457 

Heyworth v. Knight , . , _ 453 

Hibberd v. Knight 381 389, 707 

Hicks V. Thompson . . , , 145 

Hidaynt OoUah v. Rai Jan Khanam 616 
Higgins •>. Senior , . ^ _ ^qq 

Higham v. Ridgeway 206, 208, 210, 212 
Hilbonm v. Fogg .. __ g^g 

Hill V. Campbell .. _ ■jqq 

Hill V. Clarke . . , , ^ 4ga 

Hill V. Dolt . . , , " 720 

Hill V. M ^nohester, etc., Co. . . 1 30 

Hill v. Wilson .. ., '\ 7j^ 

Hills e. Ishore Ghose .. ,^ 345 



Page. 
HimmatJSahai v. Llewhellen .. 492 
Hira Lai v. Datadin . . . . 8O3 

Hira Lai v. Ganesh Prasad 387, 392 

Hira Lai v. Saheb Jan . . . . 037 

Hira Lai v. A. Hills 70, 71, 72, 73, 74 
Hiran Miya, In the matter of 169, 

160, 161. 163 
Hirbai e. Gorbai .. ..638 

Hitohins v. Basset ., 509 

Hitchman v. Waltman .. ,. 672 

Hoare v. Ooryton . . . . 826 

Hoare v. Graham . . . . 466 

Hodges V. London Delhi Bank .. 688 
Hodgson, In re .. .. ..718 

Hodsoll V. Taylor . . . . 62 

HoghtoD V. Hoghton .. ..146 

Holbard v. Stephens . , . . 465 

Holcombe v. Hewaon .. ..38 

Hokling V. Elliott ,. ..660 

Holdsworth t>. Dinsdale . . . . 147 

HoUisgham v. Head 38, 39, 100, 600 

Holloway, Rt .. „ . . 706 

Holmes v. Matbewa _ ..476 

Holt> Ex parte .. ^ . . 147 

Holt ft Co. V. Collyer .» ..618 

Holt V. Jesse . . ^ . . 639 

Holt V. Squire . . ^ . . 128 

Home V. Bentinok .. 693, 694 

Homfray, in the goods of . . 436 

Honapa v. Narsapa . . 668, 666 

Hood v. Lady Beaaohamp . , 218 

Hoporaft v. Kibja .. ..677 

Hope t>. LiddeU .. .. ..707 

Horendra Narain v. Chandra Kaota 398 
Hormasji Karsetji v. W. G. Pedder 346 
Hormasji v. Baidhanbaiji . . 296 

Home V. Mackenzie ,. .. 782 

Hossain Ali v. Abid Ali .. ..348 

Hossein Buksh ». R. , . 18, 33, 708 

Hoaldsworth v. City of Glasgow 

Bank .. ., ^ .. 647 

Houliston V. Smyth ., .. 626 

Howard v. Hudson 661, 665, 667 

Howard v. Wilson .. ..8 

Howe V. Malkin 47, 134, 211 

Hridoy Nath v. Mohobutnissa Bibee 644 
Hudson V. Parker .. .. 399 

Hudson V. Roberts . . . . 88 

Buffer V. Allen . . . . 286, 289 

Hughes V. Comelius . . . . 276 

Hughes V. Hughes ,. ..797 

Hughes V. Secy, of State for India 625 
Hughes V. Thorpe .. ..112 

Hughli V. Diachenfels . . . . 306 

Huguenin v. Basely . . 585, 688 

Huknm Chand v. Hiralal.. .. 489 



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TABLE or CASES OFTED. 



liii 



Page. 
Homfrey v. Ball , . . . . . 497 

Hongste v. Gascoigne . . . . 319 

Hanoomsn Persad v. Munraj Kun- 

waree .. .. 548,570 

Htmsa Koer v. Sheo Gobind 64, 72. 189 
Hunt V. Hort ., .. ..506 

Hunt V. Livermore . . . . 470 

Hunter v. Leathley . . . . 707 

Huntingford v. Hassey . . . . 99 

Eantley v. Donoran .. ..251 

Hoidey Narain v. Booder Perkash 652 
Hot Dyal v. HeeraUU . . . . 350 

Hnr Dyal v. Boy Kristo . . 530, 549 

Hnreehnr Mookerjee v. Raj Kishen 

Mookerjee . . . . 638 

Hareehor HoEoomdar v. Chum 

Hajhee . . . . 410, 416 

Hnri Ram v. Bhikari Roy .. 564 

Hari Bam v. Baj Coomar 632, 576 

Hnrjee Mull v. Iman Ali . . . . 19 

Horonath Sircar v. Preonath Sircar 

8. 112, 121, 255 
Hurpurshad v. Sheo Dyal 66, 84 

Horrichum Bobo v. Monindra Nath 368 
Hmo Chunder, Re 686, 689, 690 

Harroohander v. Shooro Dhonee . . 1 
Hnrro Dyal «. Mahomed Oazi 660, 

670. 602 
Horronath MnlUck v. Nittanund 

MnlUok .. .. 70,84,222 

Hnrro Soondery, In re . . . . 721 

Hurry Chum v. R. 346, 364, 605 

Hnrryhur Mookerjee v. Abbas Ally 536 
Hurryhor Mookhopadya v. Madub 

Chimder .. .. .. 653 

Hurry Snnknr v. Kali Coomar . . 667 
Hossey v. Home Pajme .. .. 462 

Hutcheson r. Mannington 348, 435 

Huteheson v. Smith .. ..130 

Hntchins v. Scott .. .. 572 

Hutchinson v. Barnard . . . . 229 

Hutton r. Warren . . . . 497 

Hyde v. Palmer .. ..47 

Hyder Hossain v. Mahomed Hosaain 611 



Iftikamnissa Begnm v. Amjad Ali 622 
Iggnlden r. Hay . . . . 45, 462 

Tna Sheikh v. R. . . 597, 598 

Inayet Rnsen e. Ali Hnsen 580, 683 

IncI«don v. Berry . . . . 283 

Indayet v. Lai Chand .. .. 489 

Inderan Valungypuly v, Bama- 

■awmy ,, .. 618 

Indw Narain v. Mahomed Nazirood- 
*•«» .. .. 66, 27) 



Paqis. 
Indar Chandra v. Lachmi Bibi .. 49ft 
Ingham ». Primrose .. .. 630 

Ingram v. Lea . . . . . . 458 

Innasimnthn v. Upakarthn Dayan 683 
Iqbal Hasen v. Nand Kishoie . . 670 
Ireland v. Livingstone . . . . 623 

Irish Society v. Derry . . 246, 797 

Isab Mandal v. B. .. ., 247 

Isao Mohamed v. Bai Fatma . . 672 

Ishan Chtmdra v. B. 597, 711, 712 

lahan Chunder v. Beni Madhnb 136, 

137. 143 
Ishan Chunder v. Bhymb Chunder 378 
Ishan Chunder v. Haran Sirdar 1 16, 

236, 240 
Ishan Chunder t>. Bam Loohun 296, 678 
Ishan Mnohi v. R. .. ,. . 697 

Ishore Ohose «. Hills .. .. 346 

Ishri Prasad v. Laiji Jas 347, 443, 610 
Ishur Chunder v. Doyamoy Debea 461 
Ismail Ari£f v. Mahomed Gons 664, 582 
Ismail Khan v. Aghore Nath 556. 629 
Ismail Khan v. Bronghton 629, 630, 665 
Ismail Khan v. Fidayutunissa .. 616 
Ismail Khan v. Joygoon Bibee 630, 655 
Ismail Khan v. Mrinmoye Bassi . . 629 
lari Singh v. Gnnga . . . . 246 

Issen Meah r. Kalaram Chunder . . 869 
Issur Chunder v. Nobodeep Chunder 349 
Issur Chunder v. Rnsseek Lall .. 29 
Iswar Chundra, In the matter of .. 7 
Ittapan v. Nanu .. .. 133 



Jaoker v. I. C. Co. . . . . 794 

Jackson v. Irwin ^ .. 601 

Jaokson V. Thomason .. 762,771 

Jackson v. Wood .. .. 284 

Jacob V. Leo .. .. .. 392 

Jacob V. Lindsay .. .. 465 

Jacobs V. Humphrey .. ..139 

Jadabram Dey t>. BuUoram Dey 561, 

631, 787 
Jadoomoney Dassee v. Gungadhur 

Seal .. .. ..646 

Jadubar Singh v. Sheo Saran , . 283 

Jadunath v. Bamaoondur .. 680 

Jadu Nath v. Bup Lai . . . . 688 

Jadu Bai v. Bhubotaran Nundy 

29, 463, 483, 619, 728 
Jafar Haaain v. Mashnq Ali . . 558 

Jafar Hnsen t>. Ban jit Singh 460, 451 

Jagadindra Nath v. Secretary of 

State for India, 266, 267 630 

Jagannadha Narayana v. Pedda 

Pakir .. .. .. 629 



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liv 



TABLB OF OASES CITED. 



PaOB. 
Jagui Nath v. Manna Lall . . 126 

Jagannatha v. Ganga Reddi . . 655 

Jagannath Prasad v. Runjit Singh . . 277 
Jagat Mohini v. Rakhal Das . . 520 

Jagat Pal v. Jageshar Baksh 198, 

205. 212. 218, 220 
Jaggers t>. Binnings .. ..131 

Jaggiin Lall, In the matter of . . 248 

Jagjivandas v. Bai Araba .. 583 

Jagobhai Lalubhai v. Vij Bhnkan- 
das .. .. .. .. 5.50 

Jagun Kooer v. Raghoo Nundan . . 238 
Jai Narayan v. Kadumbini Dasi 670. 671 
Jai Narayan v. R. .. 150, 4i9 

Jaipal Gir v. Dharmapala .. 346 

Jakir Ali v. Raj Chunder . . 343, 

412, 416. 419 
Jambu Ramaswamj v. Sondararaja 
Chetty .. .. .. 55» 

Jameola Khaton v. Pagul Ram .. 65 
James t'. Biddington . . . . 62 

James v. Bion . . . . 46 

James ". Williams . . 863 

James Fegredo v. Mahomed Mod- 
desstir .. .. .. 379 

Jamna v. Nain Sukh ,. 650, 561 

Jamnadas v. Srinath Roy . . . , 457 

Jamsedji Sorabji t>. Lakshmiram 
Rajaram .. .. .. 670 

Jamsetji N. Tata ». Kashinath 650. HryZ 
Jamsbner Sirdar, In re .. .. 588 

Janaki Ammal v. Kamalathammal 

637, 639. 040, 659 
Janan Chowdhry r. Doolar Chow- 

dhry .. 187, 188 

Janki v. Bhairon . . 4.50 

Janki Pershad t>. Ulfat AU .. 136 

Janmajay Maznmdar v. Keshab 

Lai .. .. .. .. .573 

Janokee Dassee v. Kisto Komul 642. 61 1 
Janoki Debi v. Gopal Acharjia .. 549 
Jarao Kamari v. Lalonmoni . . 433 

Jarrett v. Kennedy . . . . 622 

Jairett If. Leonard .. ..132 

Jaswat Sing v. Sheonarain Lai 236, 404 
Jayne ». Price .. .. .. 614 

Jayram v. Narayan .. .. 6.56 

Jaynbunnissa Bibi v. Kuwar Sham 373 
Jehangir v. Secretary of State . . 693 
Jenkins v. Bushby . . 702, 706 

Jervis v. Berridge . . 462 

Jesingbhai v. Hataji . . . . 677 

Jesns Coll. v. Gibbs . . . . 38I 

Jeswnnt Singjee v. Jet Singjee 

580, 616. 724 
Jethsbai Oayialjee v. Girdhar . . 866 



Paci. 

Jethabhai v. Nathabhai .. 684, 666 
Jetha Parkha v. Ram Chandra . . 18 
Jethibai v. Ramohandra Narottam 861 
Jew V. Wood .. .. ..677 

Jewell t). Parr .» .. ..13 

Jhinguri Tewari v. Durga 666, 667 

Jhnbboo Mahton, In the matter of 

the petition of 7S8. 777, 781, 783, 784 
Jianutullah Sirdar v. Romani 
Kant . . . . 68. 73, 82 

JiauUah Sheik v. Ina Khan . . 74 

Jibanti Nath v Shib Nath .. 678 

Jivandas Keshavji v. Framji Nana- 
bhai . . . . .345, 454. 465 

Jnan Chowdhry v. Deolar Chow- 
dhry .. .. .. ..134 

Jnanendra Mohan f. Gopal Daas 496 
Jogendro Narain v. Banki Sing .. 567 
Jogendra Nath v. Sangap Garo .. 713 
Jogendro Chunder v. Dwarka Nath 

103. 106 
Jogendro Deb v. Funindro Deb 273, 274 
Jogendro Nath v. Nitai Cham 402, 626 
Jogessar Singh v. Bycant Nath .. 433 
Jog'ni Mohun v. Bhoot Nath . . 660 

John Eliot, In the goods of . . 430 

John Kerr v. Nuzznr Mahomed and 
Azeem Serang .. .. 434 

Jogun Kooer v. Raghoonundon Lai 611 
Joharmal v. Jejram Jagrup . . 860 
Johnson v. Gibson .. .. 264 

Johnson v. Kershaw ..734 

Johnson v. Lawson .. ..219 

Johnson v. Pye . . 645 

Johnson v. Tucker . . 698 

Johnstone v, Marks . . . . 645 

Johnstone tJ. Todd .. 15.740 

Jolly V. Arbuthnot . . . . 670 

Jolly t>. Taylor . . . . 458 

Jolly V. Young . . . . . . 518 

Joloke Singh v. Qundar Singh . . 564 
Jones V. Edwards .. .. 392 

Jones t>. Godrich .. 665, 700 

Jones t>. Gordon . . . . 699 

Jones v. Howell . . . . 455 

Jones V. James . . . . 324, 330 

Jones V. Jones . . . . 610 

Jones V. Morrell . . . , 49 

Jonei V. Smith . . . . 98 

Jones V. Williams .. 60, 63, 71,80 
Joogul Kishore v. Kalee Chum ., 661 
Joomna Pershad v. Joyram Lall .. fi40 
Joorub Haji v. Kemp .. .. 409 

Jordan v. Money . . 167, 660 

Joshua V. Alliance Bank of Simla.. 96 
Jotadhari Lai t>. Roghobir Perahad.. S62 



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(^oogle 



TABLE OF CASKS CITBD. 



Iv 



Page. 
Jottndra Hohtin v. Ganendramohnn 

Ttgore .. .. 128.346 

Jotendra Ifohnn v. Ranee Brijo . . 260 
JowkU Buksh V. Dhurum Singh . . 696 
Joy Chondm r- Sreenath Chatterjee . . 650 
Joy Coomar e. Bnndhoolal 12, 13, 16 

Joy Kishen v. Doorga Narayan 65, 86 
Joy Kissen, In the matter of . . 804 

JoykiaseaMookerjee V. Peaiee Mohan 654 
Joy Lall V. Gosnain Bhoobnn . . 548 
Joytara Dassee v. Mahomed 

Mobarack . . 16. 254. 256. 679 

Jndoooatii v. Raja Bnrodakanto 113. 

115. 116 
Jndoonath MulUok v. Kalee Kisto 534 
Jndoonath Paul r. Prosannonath 

Dutt .. .. ..671 

Jngdel Naraiii v. Lalla Ram . . 547 

Jagdiah Chnnder v. Chowdhry 

Znhoor-nl-Haq .. .. 254 

Jnggemath Sew v. Ram Dyal . . 486 
Jnggeastir Battobyal v. Roodro 

Karayan .. .. ■• 548 

Jnggesaree Debia v. Qodadhur 

Baneijee .. .. .. 563 

Jaggeswar Hookerjee v. Oopen 

Kishen .. .. ..352 

jDggobondhn Mitter v. Pnmannnd 

Gossami .. .. .. 559 

Jnggobnndha Mnkerjee r. Ram 

Chnnder .. .. .. 569 

Joggobundo Chatterjee v. Wataon 

& Co. .. .. .. 639 

Jnggodannnd Misaer v. Hamid Rna- 

■ool .. .. ..669 

Jnggomohnn Ghose t>. Kaisreeohnnd 497 
Joggomohon Ghoie v. Maniok Chund 

66. 66. 87 
Joggnn Lall, In the matter of . . 232 

Jaggnmath Sahoo o. Synnd Shah . . 46 
^gg:at Chnnder v. Bhagwan Chun- 

der .. .. 636,662 

Jnggnt Hohinee v. Dwarka Nath . . 341 
Jngmohandas v. Mangaldas, 66. 84, 

86. 313 
Jogodomba Chowdhrain t>. Ram 

Chnnder .. .. 658 

Jngtannnd Misaer v. Nerghan Singh 

492. 493, 494 
Jngnl Kishori v. Annnda Lai . . 129 

Jolina V. Biahop of Oxford . . 4 

Jnmat Ali v. Chattardharee Sahee . . 631 
Jnmna Daa r. Srinath Roy 462, 463, 472 
Jvmoona Persad v. Deg Naratn . . 461 

)«nmaioy Mnllick «. Dwarkaaath 
^J** 68,263,268,432 



Pack. 
Jnaaoondah v. Ajodhia Pershad .. 611 



KachaU Hari v. R. . . 422, 423. 603 

Kachubai bin Gulabchand v. Kriah- 
nabaikom Babaji . . . . 456 

Kader Moideen c. Nepean . . . . 475 

Kadombini Daaai v. Kumudini Dasi 

55. 867 
Khal V. Janaen . . 124, 125 

Kaikhuaru Noroji v. Jehangir .. 89 
Kailaaa Padiachi t>. Ponnnkannn . . 130 
Kailaah Chandra v. Harish Chunder 490 
Kailaah Chnnder v. Ram Lall . . 31 
Kain t>. Farrer .. 787 

Kaines v. Knightly .. 466 

Kalachand Sircar v. R. .. 706 

Kalai Haldar v. R. .. ..328 

Kalappa e. Shivaza .. .. 668 

Kalee Chunder v. Adoo Sheikh .. 630 
Kalee Chum v. Bangahee Mohnn .. 648 
Kalee Chum v. Bengal Coal Co. . . 124 
Kalee Doss v. TaraChand .. 662 

Kaleekanund Bhattacbarjee Giree- 
bala Dabia . . . . . . 349 

Kalee Koomar v. Gunga Narain .. 672 
Kalee Kumar v. Maharajah of Bur- 
dwan ., .. ..631 

Kalee Narain v. Annnd Moyee 676. 683 
Kaleenath Knr v. Doyal Kristo 667. 668 
Kalcepershad Tewaree v. Raja 
Sahib Prahlad .. .. .. 636 

Kalian Dasa v. Bhagirathi .. 279 

Kali Chandra v. Shib Chandra 357, 766 
Kali Charan t>. Ram Chandra . . 485 

Kali Charan v. Rasik Lai .. 658 

Kali Chum. In the matter of the peti- 
tion of . . 568. 669, 769, 781 
Kali Churn v. Nobo Kristo . . 891 
Kali Coomar v. Ram Doss . . 646 
Kalidas r. Ishan Chunder . . . . 667 

Kalidhun Chuttapadhya v. Shiba 
Nath .. ..64 

Kali Dutt t>. Abdul Ali ..122 

Kali Kishhore n, Bhnsan Chunder 649 
Kali Kiasor v. Gopi Mohan 130. 131 

Kali Krishna t-. Secretary of State 269 
Kalil Munda o. R. . . 66 

Kalka Perahad v. Kunhaya . . 286 

KaUonaas v. Gunga Gobind . . 689 

Kally Chum v. Secy, of State 658, 559, 601 
Kally Dasa v. Gobind Chunder . . 666 
Kally Nath v. Rajeoblochun .. 639 

Kamala Praaad v. Sital Prasad 710, 

713.717 
Kameahar Praaad t>. Bhikan Narain 3 

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Ivi 



TABLE OF OASES CITED. 



Pace. 
Kameahwar Penhad v. Amanut- 

nUa . . 33, 376, 384, 390. 695 

Kameshwar Prasad v. Run Bahadur 646 
Kameswar Pershad v. Rajkumari 

Button .. .. ..270 

Kamini Sundari v. Kali Proiono . . 586 
KampilikaribsaTappa v. Somaaa- 

mnddiram . . . . . . 354 

Kanai Lai v. Kamini Debi / 586, 587 
Kaoailal Khan v. Soahi Bhooean . . 638 
Kaoayalal v. Pyarabai . . 374 

Kanhai Lall r. Snraj Kunwar . . 272 
Kanhaya Lal,«. Stowetl . . . . 862 

Kanhia Lall v. Debidas . . 642. 645 

Kanya Lai v. Radha Chum 274, 277, 829 
Kanye Chand e. Ram Chunder 8, 16, 71 
Eannamiil v. , Virasami . . 669 

Kan to Praahad v. Jagat Chandra.. 

32, 253,432, 433 
KaraH Charan v. Mahtab Chandra . . 664 
Karamali v. Rahimbhoy . . 286 

KarampalU v. Thekkn .. 495 

Karim Khatav v. Fardhan Manji . . 66 
Karonakar Hahati t>. Nilhadro Chow- 

dhry .. ..628 

Kampan v. Bamaaami . . 639 

Kaahee Chandra v. Noor Chandra . . 411 
Kaahae Kishore «. Bama Soondaree 

121, 264 
Kaahee Nath v. Chundy Cham 463. 

473, 474, 475, 486, 491 
Kaahee Nath v. Hoheah Chandra . . 379 
Kaahi Nath v. Brmdabnn Chacker- 

batti ..487 

Kaahi Nath v. CoUr. of Puna . . 609 

Kaahi Nath v. Hurrihur Hookerjee . . 

474, 476, 476, 477, 480 
Kassim Htmdla. v. Sree Matty 486, 491 
Kasturi V. Venkatachnlpathi . . 656 
Katama Natohier v. Rajah of Shiva- 

ganga . . 544 

Kauaalia r. Gnlab Kuar . . 666 

Kayeiji v. Babai ..659 

Kawa Manji v. Khowaz Nossio, .. 581 
Kay V. Pooranchand Poonalal 699, 702 
Kaue Abdool v. Baroda Kant . . 613 
Kasi Onlam «. Aga Khan 769, 760 

Kaci Koibnt-oollah v. Motee Pesha- 

kar .. ..669 

Kearney v. London, Brighton ft S. 

coast Ry. . . . . 614 

Koaraley v. Philips . , 785, 786 

Kebul Kristo v. Ram Coomar . . 649 
Kedar Nath, /n the inatterof . . 30 

Kedamath Chnckerbutty v. Bon- 

zelle .. .. 617,634 



Pack. 
Kedamath Doss v. Protob Chunder 549 
Kedar Nath v. Bhapendra Nath . . 727 
Kedamath v. Shurfoonneasa Beboe 

457, 465, 466 
Kedamath v. Sreemutty Sorojini . . 567 
Keeling v. Ball 
Kell V. Charmar . . 
Kelly V. Jackson 
Kelly V. Kelly 
Kemble t>. Farren 
Kemp V. King . . 
Kempland v. Macauley 
Kennedy v. I^yell 
Kensington v. Inglis 
Kent V. Lowen 
Keramatoolah t>. Gholam 



Keshub Chunder 

Bossia 
Ketu Bass v. Snrendra Nath 
Kettlewell v. Barstow 
Kettlewell v. Waston 
KettUlamma v. Kelapan . . 
Khadar v. Snbramanya 
Khadem Ali v. Tajimunnissa, 



400, 


402 


■ • • • 


619 


695, 


696 




688 




131 




707 




139 




700 


385, 


783 


103, 


106 


1 Hossein, 




283 


284 


Vyasmonee 




. . . . 


657 


ath 677, 


678 


.. 


786 



285, 286 
.. 662 
244, 
248,- 250 
Khadijah Khanam v. Abdool 

Kureem 6heraji . . 726, 769 

Khajah Abdul v. Oonr Monee . . 349 
Khajah EnaetooUah v. Kishen Soon- 
dur . . . . . . 680, 581 

Khajooroonissa v. Rowshan Jehan 

616, 617 
Khalilal Rahman v. Gobind 
Pershad .. ..650 

Khankar Abdur v. Ali Hafez 476, 481 
Khas Uehal v. Admr.-GenL of 

Bengal . . 666. 587, 588 

Khatija Bibi, In the matter of . . 631 
Kheero Monee v. Hi joy Gobind . . 

236, 241, 242, 244 
Khelat Chunder v. Poomo Chunder 563 
Khenum Kuree v. Gour Chunder 

134, 138 
Kheoraj Jusrub v. Lingaya . . 656 

Kheraj MuUah v. Janab Mullah . . 20 
Khetridaa Agarwallah v. Shib 

Narayan . . 466,476 

Khetter Chunder v. Khetter Paul 

386, 387, 443 
Khilnt Chunder v. Koonj Lall . . 611 
Khoob Lai v. Jungle Singh . . 860 
Khorshed Kazi ». R. .. •• 637 
Khngowlee Singh v. Hossein Bux.. 270 
KhuiTUokdharee Singh v. Proshadee 
Mundal 737 



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TABLE OF OASES CITED. 



Ivii 



Paok. 
Khuulohand v. MadhoTgiri .. 548 
King V. N'orman . . . . 283 

Kip V. Brighsm . . . . 283 

Kirby v. G. W. Ry. Co 688 

Kirkstall Brewery Co. v. Farness Ey. 

Co. 126 

Kirpal Narain v. Sakurmoni 246, 618 
Kinhaw v. Wright . . . . 316 

Kirteebash Maytee v. Ramdhun 

Khoria .. .. ..368 

Kirty Chnnder v. Anath Nath .. 636 
Kishan Lall v. Ganga Bam 136. 137 

Kishen Chnnder v. Baratee Sheikh 666 
Kiahen Chtmder v.Hookoom Chand 675 
Kishen Dhun v. Ram Dhun . . 540 

Kishen Mohim v. CoUypersand .. 726 
Kishore Daas t>. Pursun Mahtoon . . 243 
Kishore Singh v. Gonesh Mookerjee 689 
Kishoree Lall t». Chnmman Lall . . 543 
Kishoree Lall r. Enaeth Hossein . . 659 
Kishori Lai r. Rakhal Das 33, 384 

Kiahori Mohnn v. Mahomed Mujaffar 137 
Kiaaen Kaminee v. Bam Chunder 

31, 32, 33 
Kitehen ». Robbins ..114 

Kitchen, /n re . . . . 286 

Klein v. Landman .. .. 616 

Koight V. Martin .. ..380 

Knight V. Waterford .. ..212 

Knight r. Wiffen 560, 666, 681 

Komolochun Dutt v. Nilruttiin 

Uondle .. .. ..276 

Kondapps v. Snbba .. ..126 

Konda3rya Chetti v. Narasimhalu 

Chetti . . . . 8 Int. 

Konnerav v. Gnrrav .. .. 636 

Kooldeep Narain v. Govt. 136, 628 

Koomar Rnnjit v. Sohoene . . 658 

Koomadinee Debia v. Poomo 263 
Koondo Nath v. Dheer Chnnder 64, 69, 72 
Koonj Beharee v. Khettnmath Dutt 611 
Koonj Beharee v. Shiva Balnk . . 497 
Koonjee Singh v. Jonkee Singh . . 667 
Koonjo Beharee v. Bay Mothora- 

nath .. .. 367,661 

Koonwnr Doorganath v. Bam Chnn- 
der 113, 116, 547, 648, 649 
Kopasan r. Shamn . . 862, 863 
Kottala Uppi v. Shangara Varma. . 560 
Kotta Bamasami v. Bangari Seshma 126 
Kcwer Narain v. Sreenath Mitter.. 349 
Kowanlliah Sundari v. Mnkta 

Stmdari .. 123, 130, 131 

Koylasbashiney Dasaee v. Gooool- 
moni Dassee 621, 663 

KoyUsh Chnnder v. Baj Chnnder 266 



Paok. 
Koylasb Chunder v. Raj Chnnder 255 
Kripamoyi Dabia v. Dnrga Govind 

626. 555 
Krishna v. Vaaudev . . 548. 612 

Krishna Behari ti. Brojeswari 

Chowdhranee .. .. 636 

Krishnabhupati v. Ramamnrti 282, 

289, 291 
Krishnabhupati Devn v. Vikrama 

Devu . . 137, 668 

Krishna Chunder t>. Ueer Snfdar .. 258 
Krishnaharya v. Lingawa . . 254 

Erishnaji v. Moro . . . . 660 

Krishnaji v. Rajmal 350, 463, 863 

Krishnaji v. Wamanji . . . . 640 

Krishnaji Ramohandra v. Antaji 

Pandurang . . . . 673, 674 

Krishna Kishori v. Kishori Lall 374. 

378. 385, 386. 388, 389, 410, 417 
Krishna Kanta v. Bidya Snndaree 8 
Krishna Lall v. Radha Elrishna .. 559 
Krishnamarazu v. Manaju 466, 484 

Krishnarav Yashvant r. Vasndev 

Apaji 682 

Krishnasami Ayyangar v. Rajago- 

pala 71, 76. 114, 128, 134. 247, 281, 284 
Krishnasami Pillai r. Bangasami 

Chetty .. .. .. 862. 863 

Krishno Monee t>. R. .. .. 150 

Kristnappa Chetty v. Ramasawmy 

Iyer ,. » .,544 

Kristo Indro v. Hnromonee Daasee 639 
Kristo Moni v. Secy, of State 257, 

667. 670 
Kristo Nath v. T. V. Brown 343, 435 
Kristo Prea v. Pnddo Loohun . . 635 
Kriteebash My tee v. Ram Dhun . . 351 
Knbeerooddeen v. Jogul Shaha . . 540 
Kulum Mundul v. Bhowaniprosad 

717, 718 
Kultoo Mahomed v. Hurdeb Doss 357 
Knmara v. Srinivasa .. .. 480 

Kumarasami v. Pala Nagappa . . 126 
Knmara Upendra v. Nobin Krishna 610 
Kumeezooddeen Haldar v. Rajub Ali 387 
Kunneth Odangat v. Vayoth Palliyil 

378, 385, 388 
Knnja Lai r. Radha Churn . . 829 

Knrali Prasad v . Anantaram Hajra 405 
Knriz V. Spen .. .. 146 

Kum Chanbi «. Janki Persad . . 642 

Kusum Knmari v. Satya Banjan 549 

Kntti Mannadiyar v Payanu 

Muthan . . . . . . 648 

Knvarbai v. Mir Alam . . 661 

Knverji v. Babai . . 643, 667 



Digitized by ^OOQIC 



Iviii 



TABIA OF CASES CITED. 



Paob. 
L 

Laohho «. Har Sahai . . 581, 583 

Laohman Dos v. Khunnn Lail .. 662 
Laohman Rai v. Akbar Khan, 63, 

65. 85, 279 
Laohman Singh v. Tansukh .. 122 

Laohmi Narain v. Raja Partab 339, 

344. 346, 347, 348. 694 
Laoho Bibi v. Gopi Narain 664, 666 

Lady Dartmouth v. Roberts .. 414 

Lady Ivy's Case.. .. ,.69 

Lafone v. Falkland Islands Co. .. 698 
Lakhee Kowar v. Hari Krishna . . 628 
Lakhi Chandra v. Kali Kamar . . 70 

Lakhoo Khan v. Wise ,. .. 674 

Lakshman v. Anirit .. 32, 33, 

60, 76, 76. 84, 281 
Lakshman Bhankhopkar v. Radha- 
bai .. .. .. .. 646 

Lakshman Dada Naik «. Bam 

Chandra Dada Naik . . 636, 662 

LakshmMi v. Damodar .. .. 496 

Lakshman r. Jamnabai .. .. 643 

Lakshmanna v. Kameswara 864, 465 
Lakshmibai v. Ganpat . . 668, 669 

Lakshmibai v. Vithal Ramchandra 682 
Lata «. Hir* Singh . . 66. 279 

Lata Beoi v. Knndan Lai . . . . 665 

Lala Bansidhar e. Govt, of Bengal 799 
Lai Aohal v. Raja Kazim . . 636 

Lala Himant v. Llewhellen 487, 

489. 492 
Lala Jha v. Musst. Bibee . . . . 16 ' 

Lala Lakhmi v. Sayed Haider 11. 

26, 237, 636 
Lala Mvddnn v. Khikhinda Koer . . 669 
Lala Narain v. Lala Ramannj ,. 363 
Lala Parbhu v. Myhie 135, 136, 137 

Lala Ranglal v. Deonarayan Tewary 72 
Lala Saraj v. Golab Chand 8 Int. 

Lalchand v. R. . . . . . . 469 

Laljee Sahoy r. Fakeer Chand .. 561 
Lalji Singh v. Syad Akram . . 860 

Lalji. fn the matter of Ihe petition 

of 693. 796 

Lalla Beharee v. Lalla Modho .. 544 
Lalla Bunseodhur v. Kanwar Bin. 
deseree .. .. .. 647 

Lalla Probhoo v. Sheonath Roy .. 

116, 351 
Lalla Roodroo v. Benode Ram 540 
Lalla SheebloU v. Sheikh Oholam . . 553 
Lalla Sheopershad v. Jnggemath .. 48 
Lalla Sreedhur e. Lalla Madho .. 611 
Lall Mahomed «■ Kallanns 676. 677, 678 
Lall Mahomed v. Watson ft Co. . . 636 



Paok. 
Lai Singh v. Deo Narain . . 550. 561 

Lain Mulji v. Kashibai .. .. 136 

Lamb v. Munster .. .. 709 

Lamb v. Orton.. .. .. 702 

Land Mortgage Bank v. Roy 

Luohmipnt .. ,. .. 540 

Langdon v. Doud .. 650, 666 

Langhom v. Allnutt .. ..125 

Lano V. Neale . . . . 466 

Lapsley v. Grierson . . . . 615 

Laroa v. Com. . . . . 299 

Lastings v. Gonsalm .. .. 632 

Latch V. Wedlake .. ..130 

Lathuian's Case .. .. 497 

Lauderdale Peerage Case .. 601 

Lavergne v. Hooper .. .. 672 

Lawless v. Quaele .. ..144 

Lawrence t>. Campbell .. .. 698 

Lawrence v. Clarke . . . . 392 

Lawrence v. French .. 226, 233 

Lawrence v. Ingmire .. 687, 718 

Laximan Row t>. Mnller Row . . 544 
Layboum v. Crisp .. .. 279 

Leach c. Simpson .. ..17 

Lee t>. Birrell . , . . . . 697 

Lee V. Merest .. .. 707,787 

Lee I. Pain .. .. .. 519 

Leech r. Schweder .. ..18 

Leeds v. Cooks .. .. 394 

Leeds ». Larcashiie . . . . 470 

Leelinund Singh v. Bashecroonissa 

16, 579, 600 
Leelannnd Singh v. Mnsst. Lakh- 
puttee . . 209, 210. 212, 248 
Lees V. Marton .. .. ..44 

Legal Remembrancer p. Chema 
Nashya .. .. 169. 171 

Le Geyt t». Harvey . . . . 672 

Leggatt V. Tollervey .. ..283 

Legge V. Edmonds 121, 132, 692, 953 
Lekhraj Rai v. Mahtab Chand 129, 661 
Lekhraj Singh t>. Dulhma Koer . . 868 
Lnkraj Kuar v. Hah pal Singh 9 Int., 

2. 28, 244, 246, 248, 249 315 
Leiannnd Singh v. Lncbmnnar 

Singh 631,633 

Lemon v. Damodaraya .. 3 

Lennox, Er parte . . 287 

Lever v. Goodwin .. n ..99 

Levy V. Pope .. .. .. 700 

Lewis V. Davison .. .. 623 

Lewis V. Fermor . . . . 99 

Lewis t>. Hartley .. .. 788 

Lewis t>. Jones . . . . 38 

Lewis V. Levy .. .. .. 685 

Lewis V. Pennington .. 700 

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TABLE or CASES OTTBD. 



lix 



Paob. 
Lewia ». Roj!en . . 94 

Ley p. Barlnw .. 707 

Ley V. Pstfr .. .. 126, 128 

lightfc-ot V. Cameron .. .. 721 

liae^ln v. Wright 478, 780 

Ijndley v. Ijaej .. 493 

Undo V. Bslisaro . . 262, 301 

Line <■. Taylor . . . . 356 

Lishman v. Christie . . . . 660 

Lister v. Smith .. .. ..493 

Liverpool Adelphi Loan Associa- 
tion r. Pairhnrst . . 645 
liTesy n. Smith .. 718 
Llewellyn r. Winckworth 39 
Lloyd V. Freshfield and Kaye ' . . 697 
Lbyd o. Mostyn . . 392, 703 
Uoyd V. Willan ..123 
Lobori Domini v. Assam Ry. & 
Tr«dini? Co. .. .. .. 689 

Lochnn Chowdhry v. Annp Singh . . 656 
Lockett e. Oarey ..707 

Lockett r. Niotljn .. ..451 

Lockwood V. Lockwood . . . . 42 

Lockyer v. Ferryman . . 272 

Lodti MoUah v. Kally Das 672, 673. 

676, 677 
Lottao V. Conrtown . . 4 

Login t». R. ..262 

Lokcssnr Koer c. Pnrgnn Roy .. 659 
LoBt Mohan v. R. 19, 96. 313 

London ft N.-W. Ry. Co. v. West. . 676 
London ft Tilbnry Ry. Co v. Kirk 704 
London ft Yorkshire Bank v. 
Coops' .. ..786 

London Oss ft Co. v. Chelsea 702, 704 
London Joint Stock Bank v. Sim- 
mons . . . , . . 270 
Longman p. Bath Electric Rv. 

649. 652 
Looloo Singh V. Rajendur Laha 

647, 724 
Lootf Ali V. Peary Mohan 98. 106 

Lopez r. Lopez .. ..617 

Lord V. Colvin .. ..743 

Lord Advocate v. Lord Blantyre . . 

4 Int.. 60 
Lord Advocate v. Lord Lovit 70, 558 
Lord Barrymore ti. Taylor . . 264 

Lord Kinnaird r. Lady Saltonn . . 435 
lord Waterpark r. Fennell . . 86 

Longhboro' Highway Board v. 

Cnrzon ._ 126 

I'ovatt ». Tribe . . 97 

l««»»att Peerage Case . . 218, 221 

""•"•deo V. Loveden . . 19 

l*» «. Bonverie 642, 648, 650, 666 



Paok. 
'Lowden «. Blakey . . 701 

Lows V. Telford .. 579 

Lncas v. De la Coiir . . 130. 131 

Lncas v. Novosilieski . . 104 

Lacas v. Williams 296. 313, 371 

Lnohman Chandra v. Kali Chum .. 

349, 351. 641. 656, 668. 669 
Lnohman Das t^ Dip Chand .. 865 

Lachman Dass v. Gridhur Chow- 

dhary .. .. .. 551 

Luchman Ru v. Akhar Khan .. 331 

Lacbmee Dai v. Ashman Singh . . 660 
Lnchmeedhnr Pattuck v. Rughoo- 

bur Singh .. 32, 64. 72. 386 

Luchmeepnt Singh v. SadauUa 

Nashyo .. ..66 

Luchmi Koer t>. Roghn Nath . . 618 

Luohmon Singh v. Puna . . 373. 378, 

379 386 
Luckee Koer v. Ram Datt ..681 

Lnkeemonee Dossee v. Shunkoree 

Dossee . . , . . . 30 

Luokhee Narain v. Taramonee Dossee 667 
Lacy V. Mouflet . . 49, 50 

Lukhee Kan to v. Sameemddi Lusker 352 
Lakhi Narain v. Maharaja Jodha 

Nath ..534 

Lnkhynarain Chattopadbya v. 

Gorachand Oossamy . . . . 245 

Luleet Narain v. Narain Singh . . 265 
Lnximon Bow v. Mullar Row . . 642 

Lyoll p. Kennedy 244. 246, 248. 

250. 696, 700, 701, 702. 706 

M 

Maodonald p. Longbottom . . 600 

Macdonnell p. Evans . . 3 Int 

MaoDuffs, Re .. .. 606 

Macfarlane v. Carr . . 499 

Macgowan, In the goods of . . 676 

Maogregor r. Kelly . . . . 105 

Machell p. Ellis .. ..351 

Maokrnzie t>. British Linen Co. . . 680 
Mackenzie v. Dunlop . . 87 

Mackenzie v. Yeo . . . . 702 

Mankenzie. Lyall ft Co. v. Chamroo 

Sing ft Co. .. .. .. 87 

Mackintiosh p. Marshall^.. .. 97 

Mackintosh p. Nobinmoney Dossee. . 725 
MacNaghten's Case .. 307 

Madapasi Srinivasa v. Triramalai 

Kastnri . . . . 637 

Maddison p. Alderson. .. 666 

Madeleine Smith's Case .. ..18 

Madhabi Snndari v. Cajanendranath 

262. 263, 43.1 



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Ix 



TABLE 07 OASES CITED. 



Paoe. 
Madharrao v. Balkrishna .. 86 

Madhavrao v. Deonak 28. 247, 261, 555 
Madhub Chunder v. Oangadhur 

Samant . . . . . . 475 

MadhavraTV. Gulabhai 145, 147. 799 
Madhab Chunder v. Gobind Chunder 662 
Madhub Chunder v. Law . . . . 651 

Madhub Chunder v. Bajcoomardas . . 87 
Madhub Chunder v. Tomee Bewah 

71. 278. 279 
Madras Deposit and Benefit Society, 

Ld. V. Oonamalai Ammal 398, 399, 864 
Madras Hindu Mutual Benefit Per- 
manent Fund and Rangara Chetti 

644, 672 
Mafeezooddeen Kazee v. Meher 

All .. .. ^. ..602 

Magbulan v. Ahmad Hosain . . 421 

Magnay t>. Knight .. .. 456 

Magniram v. Qurmukh Roy .. 864 

Mahabeer Persad ». Oomrao Singh . . 554 
Mahabeer Persad v. Ramyad Singh . . 551 
Mahabir Prosad v. Bashdeo Sing . . 550 
Mahabir Prasad v. Biahen Dyal . . 536 
Mahadaji Oopal v. Vithal Ballal 

635. 658 
Mahadeo Misser v. Lahoree Misser . . 541 
Mahadevappa v. Basugonda . . 537 

Mahadevi v. Neelamoney 586, 587, 

662, 667 
Mahalal t>. SankaUu . . . . 794 

Mahalatohmi Ammal v. Palani Chetti 450 
Maharajah Oobind v. Raja Anund . . 354 
Maharaja Jagadendra v. Bhaba- 

tarini Dasi .. .. .. 798 

Maharajah Jnggemath v. Musst .4hlad 577 
Maharajah Koowur v. Nund Lall . . 800 
Maharajah Pertab v. Maharanee 

Sabhao Kooer .. .. ..319 

Maharajah Rajendro Kishen v. Sheo- 

pursun Misser . . . . 358 

Maharana Shri Rammalsingji v. Vadi- 

lal Vakhatchand . . 130' 345 

Maharani Beni Pershad r. Dudh 

Nath .. .. ..350 

Maharani Hiranath v. Baboo Ram . . 

85. 86 
Mahatala Bibee v. Prince Ahmed . . 

518, 617 
Mahendro Nath v. Jogendra Nath . . 

486, 491 
Mahesh Chandra v. Srimati Baroda 680 
Mahima Chandra, In the matter of the 

petition of . . . . . . 724 

Mahipat v. Lakshman . . . . 603 

Mahomed v. Abdul . . . . 788 



Page. 
Mahomed Abdul v. Gujraj Sahaid . . 624 
Mahomed Aizaddi v. Shaffi Mnlla . . 446 
Mahomed Akbnr v. Reilly .. 663 

Mahomed All t). R. . . 770, 779 

Mahomed AH v. Nazar Ali 341 476, 

481 
Mahomed Ali t>. Khaja Abdul 667, 

558, 679, 601 
Mahomed Ashruff v. Bijessnree Das- 
see . . . . . . 646 

Mahomed Ausar v. Prokash Chunder 534 
Mahomed Basir v. Kurreem Buksh . . 577 
Mahomed Banker v. Shurgoon Nissa 616 
Mahomed Bhoy v. Chutterput Sing 464 
Mahomed Bnksh v. Hosseini Bibee . . 688 
Mahomed Bus v. Abdool Kurreem 

680, 798 
Mahomed Fedye t>. Ozeeoodeen 

267, 441 
Mahomed Golab v. Mahomed Sulli- 

man .. 287, 28<«, 640 

Mahomed HamiduUa v. Modhoo- 
soodun Ghose . . . . . . 662 

Mahomed Hamid-nd-din t>. Shib 

Sahai 664 

Mahomed Haneef v. Mozhur Ali 

188, 189 
Mahomed Ibrahim v. Morrison 667, 

668 
Mahomed Imam v. Husain Khan . . 114 
Mahomed Ismail v. Bhnggobutty 
Barmanya . . . . . . 371 

Mahomed Jackariah ft Co. v. Ah- 
med Mahomed . . 706 
Mahomed Mahmood v. Safar Ali 

241, 780 
Mahomed Meher v. Sheeb Pershad 264 
Mahomed Mozaffer v. Kishori Mo- 
han .. 137, 654 
Mahomed Mudun v. Khodezunnissa 660 
Mahomed Rowthan v. Husain Row- 
than .. ..860 

Mahomed Sahib, In re . . . . 178 

Mahomed Shumsool v. Shewuk- 
ram . . . . W6 

Mahtab Chand v. Bengal Govt. .. 629 
Maidin Saiba v. Nagappa .. 674 

Mailathi Anni v. Subbaraya Mu- 
daliar . . . . . . 85 

Makbul Ali v.Srimoti Masnad Bibi . . 373 
Makhnn Lall v. Ram Lall . . 646 

Makin v. Att.-Genl. for N. S. W. 

94, 96, 802, 803 
Makund Bahori, In re . . . . 562 

Makundi Kuar v. Balkishan Das . . 060 
Malcolmson v. O'Dea .. 70, 280 



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Google 



TABLE OF OASES CITED. 



Ixi 



Page. 
Halogi Santiji v. Vithu Han . . 662 

Haasda Sundari v. Mahananda 
Samakar .. ..033 

Managers of Met. Asylum v. Hill . . 27 
Mana Vikrama v. Rama Patter 38. 

39, 497 
Uancharun v. Kalidas . . . . 289 

Haagal Sai t>. Hira Singh . . 410 

Mangal Sen v. Shankar Sahai . . 443 
Uao Gobind v. Jankee Ram . . 639 

Haniklal Baboo v. Ramdas Ma- 
zamdar . . . . ■ . 562 

Maniram Deb r. Debi Charan 295, 578 
Manjanali Debi v. Ramdas Shome 

277, 285 
Manjayya v. Shesa Shetti . . 722 

Manknra Passi o. R. . . 101, 328 

Manna Singh v. Umadat Pande . . 586 
Xano Mohan v. Motbura Mohun 

629, 668, 601 
Manobar Das t>. Bhagabati Dasi . . 486 
Mansell r. Clements .. ..93 

Muuer v. Dix . . . . . . 700 

Muion V. Golam Kebria . . 29 

Maqbalan v. Ahmad Husain . . 357 

Marine Inyestment Co. v. Havi- 

side .. 440, 626, 626 

Mark Ridded r. Muthuramen Chetty 860 

Mario r. Beyfns . . 694 

Karqnis of Anglesey v. Lord Ha- 

therton . . . . 86 

Marriott v. Chamberlain .. .. 702 

Marshall v. Berridge . . . . 45 

Marshall. r. Cliff .. ..128 

Marshall v. Davies .. ..726 

Marshall o. Lamb .. ..625 

MarshfieW, Se .. . . . . 869 

Harston v. Dean . . 456 

Uarston v. Downes . . . . 785 

Martin v. Mackonochie . . 18 

Martin r. Martin .. ..261 

Mary Goodrich (Payne v. Bennett) . . 250 
Mary Tug Co. v. B. I. S. N. Co. . . 564 
Hasil-an-neesa v. Pathani . . 618 

Haaon. Re .. .. ..698 

Maaon v. Mason .. ..619 

Mason r. Phelps ..299 

3iUaon v. Wood .. .. .. 104 

Maaaeyv. AUen .. 303.208,211 

Mathews V. Monster .. ..129 

Mathias t. O'Neill . . . . 106 

Mathnra Pandey v. Ram Rucha 369, 641 
Maugham v. Hubbard . . 778, 779 
Maong 8hwe «. Maung Tun . . 672 

May V. Burdett . . . . 88 

Mayan^ Chetti r. Oliver . . 476, 496 



Paok. 

Maybank v. Brooks . . . . 466 

Mayen v. Alston 491, 492. 630, 661. 

670. 613 

Mayenborg v. Haynes . . . . 663 

Mayhew t>. Nelson . . . . 125 

Mayho t>. Williams . . . . 276 

Mayor, etc., of Bristol v. Cox . . 698 

Mayor v. Murray . . . . 736 

Mayor v. Sefton .. .. 734 

Mazhar Ali v. Budh Singh 673, 593 

.. 567 

.. 666 

.. 621 

Ry- 

.. 651 

.. 232 

663. 666 

.. 706 

.. 797 

660. 562 

.. 350 

.. 623 

.. 680 

.. 664 

652 

468 

763 

360 

294 

296 

466 

721 

616 



Mazhar Husen v. Bodha Bibi 
MoAleer v. Horsey 
McAllister v. Reab 
MoCance v. London & N.-W. 

Co. .. 
M'Combie t;. Anton 
MoConnell v. Mayor 
MoCorquodale v. Ball 
MoDougal V. Knight 
McDowell V. Ragada Chetti 
MoGowan v. Smith 
McGrews v. McGrews 
McGregor v. Rhodes 
McKenzie v. British Linen Co. 
McLaren Morrison v. Verse hoyle 
M'Lean v. Hertzog 
McLeod V. Sirdarmnll 
McLeod V. Wakely 
MaXaghten's Case 
McQueen v. Phipps 
Mease v. Mease 
Meekins t: Smith 
Meer Ashruf v. Meer Arshud 
Meer tJadooUah v. Musst. Beeby 5 Int. , 

16, 364, 368, 389 
Meer Yar, Re 88, 92, 96, 598 

Meethun Bibee t>. Bnsheer Khan.. 689 
Megji Hansraj ti. Ramji Joita . . 136 

Megraj v. Sewnarain 237, 371 

Meharban Khan v. Mnhboob Khan 364 
Mekjee Khestn r- DeTachnnd .. 269 
Melen «. Andrews . . . . 49 

Melhuish r. Collier 41, 46, 760. 763 

Memon Hajee v. Moulvie Abdool 

Karim . . . . 699, 700 

Meredith v. Footner . . . . 126 

Meres v. Anselle . . . . 466 

Metropolitan Ry. Co. v. Wright .. 797 
Metiers v. Brown . . . . 132 

Menz Executor's Case . . . . 125 

Mewa Lall v. Bbujun Jha . . 286 

Meyer v. Dresser . . . . 86 

Middleton v. Melton . . . . 207 

Middleton v. Pollock .. ..668 

Mighell V. Sultan of Johore 339, 

342, 343, 348 



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Izii 



TABLE OF OASES CITBD. 



Pagb. 
Uian Khan t>. Sagai Bepari .. 20 

Millar v. Travers .. .. 466 

Millard, In re .. .. 638,617 

Miller, lU .. . . . . 287 

Miller v. Baba Madho 32, 140, 

143, 662, 728, 731, 794 
Miller v. Barber .. .. 625 

Milles V. Laroson .. .. 295 

Milne v. Leisler . . 34, 797 

Mina Konwari v. Juggal Setani . . 640 
Minet v. Morgan . . . . (j96 

Minu Sarkar v. Rhedoy Nath . . 444 

Mirtherjeet Singh v. Choker Na- 

rain .. .. ..631 

Mirza Himmnt v. Sahebzadee .. 617 
Mirza Mahomed v. Radba Romun 656 
Mirza Mahomed v. Snrapntoonissa 

Khannm . . 658 

Misir Raghobur v. Sheo Bnksh . . 270 
Misrut Banoo v. Mahomed Sa- 

yera .. .. ..721 

Mithan Bibi v. Bashir Khan .. 10 

Mitterjeet Singh v. Radha Per- 

■had .. 600 

Mobamck Shah v. Toofany . . 630 

Modee Haddin v. Sandes . . . . 713 

Modee Kaikhoosrow r. Cocver- 

bhaee .. .. 634 

Mohabeer Pershad v. Mohabeer Singh 681 
Mohabeer Singh v. Dhnjjoo 

Singh . . 147, 631 

Mohan Mahtoo v. Meer Shamsod . . 677 
Mohansing ChawMi v. Henry Conder 658 
Moharani Beni v. Goberdhan Koer 606 
Moheema Chunder v. Poomo Chun- 

der .. .. 3Int 

Mohendra Lall v. Rosomojri Dasi . . 72 
Mohendro Chunder v. Surbo Kokhya 

639, 660 
Mohendro Nath v. Koylash Chun- 

<ler .. .. ..560 

Mohendro Nath ». R. . . 794 

Moher Sheikh v. R. 4, 161, 683, 

709, 753 
Mohesh Chunder, In the matter of . . 694 
Mohesh Chunder r. Barada Debi . . 629 
Mohesh Chunder o. Dino Bundhu 64, 72 
Mohesh Chunder v. Gooroo Pershad 

670, 671 
Mohesh Chunder v. Issur Chunder 666 
Mohesh Chunder v. Juggut Chimder 254 
Mohesh Chunder v. Kamini Kumari 671 
Mohesh Chunder v. Madhub Chun- 

<lor . . . . 4 

Mohesh Chunder v. Mohesh Chun- 
der .. .. ..686 



Pack, 
Mohesh Chunder «. Satmghaa 

Dhal .. 86,86 

Mohesh Chunder v. Ugra Kant .. 673 
Mohash Lai v. Mohunt Banran .. 630 
Mohi Chowdhry v. Dhiro Miss- 
rain .. .. ..247 

Mohidin Ahmed v. Sayyid Muham- 
mad .. ..354 

Mohima Chunder r. Huro Lall .. Sli 
Mohima Chunder v. J. P. Wise . . 257 
Mohima Chunder v. Mohesh Chunder 658 
Mohima Chunder v. Rajkumar . . 254 

Mohima Chunder v. Ram 

Kishore .. ..351,546,638 

Mohini Mohun v. Promoda Nath.. 60 
Mohinudin v. Maooher Shah .. 55> 

Mohiny Mohon v. Krishno Kishore 

558, 600, 601 
Mohori Bibee v. Dharmodss 645, 646 

Mohun Lall v. Cotton Mills Co. . . 861 

Mohun Lall v. Umopooma Doasee . . 461 
Mohan Sahoo t>. Chutto Mowar 112, 

134. 135 
Mohunt Burm v. Kashee Jha .. 548 
Mohunt Doss v. Nilkamal Deiraa 

460, 664, 667 
Mohunt Gour v. Hayagrib . . . . 669 

Mohur Sing v. Ghuriba 363, 798, 

799. 800, 802 
Moises V. Thornton .. 311. 386 

MoUwo March v. Ct. of Wards . . 64« 
Momatt V. Castle Steel Co. . . 668 

Monemohiney Dassee v. Greesh 
Chunder .. ..437 

Monkon v. Att.-Gen. . . 216, 221 

Monmohinee Dassee v. Bishomoyee 
Dassee . . . . 86S 

Monmohinee Joginee v. Jugoban- 

dhoo Sadhookha . . 654. 668 

Monohar Singh v. Sumirta Kuar 562, 

662 
Monroe v. Twistleton .. .. 692 

Mochee Ram v. Bissambhar Roy 257, 67!) 
Mooktakeshee Debia v. Collector 
of Moortihidabad .. .. 663 

Mookto K«shee v. Anundo Chunder 532 
Moolji Lilla v. Gokuldas 543, 545 

Moolla Cassim ». MooUa Abul .. 673 
Moonee Uinmah v. The Municipal 
Commissioners for the Town of 
Madras .. .. ..669 

Moonshee Ameer v. Maharani In- 
derjeet . . . . . . 638 

Moonshee Buzlool v. Pran Dhui .. 13S 
Moonshee Buzloor v. Shumsoonissa 
Begum . .631, 639. 685, 686. 687 



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TABLB OF O^ES CITBD. 



Ixiii 



Paob. 
Hoonshee Syud Ameer v. Syef AH 

666. 068 
Moore v. Foley .. ..452 

Moore r« Knight . . 131 

Moore v. Smith . . . . 49 

Moore v. Tnckwell ..707 

Moore v. Tyrrell ..701 

Moran r. Mittu Bibee . . 483 

Morewood V. Wood 193,216 

Morgan v. Bissell . . 452 

Morgui V. Brydges .. 735 

Morgan v. Couchman . . . . 666 

Morgan v. Evans . . 49 

Morgan v. Morgan .. .. 801 

Moriarty r. Gray .. .,386 

Moriarty v. London C. D. Ry. Co. 

28. 40. 46. 133 
Morley t>. Harford .. .. 460 

Moro Desai «. BamchAndra De- 
*a .... 5>8. 660 

Moro Visvanath v. Gonesh Vitbal .. 612 
Morris v. Bethel .. ..39 

Morris V. Daries 319, 589, 690, 

591, 692. 593 
Morrill V. Edwards .. .. 706 

Morria v. Hauser . . 392 

Morris V. Miller .. .. ..116 

Morris o. Panchanada Pillay .. 499 

Morrish v. Murrey . . 49 

Morrison o. Lennard '. . . . 687 

Morton v. Woods .. 670 

Mowly V. Davis ..193 

Mosely t>. Victoria Rubber Co. .. 702 
Moses, D. H. R.. /n the matttr of . . 672 
Moss V. SalUmon . . . . 672 

Moatyn 0. Fabrigas .. 262, 300 

Mostyn t>. West Mostyn Coal 
Iron Co .. .. ..701 

Mote Lall o. Jnddooputtee Doss . . 663 
Motee Lall v. Juggomath Gnrg 536, S40 
Mothoora Pandy v. Ram Ruohea . . 98 
Mothura Daa v. Bhikhan . . . . 602 

Mothoora Mohnn v. Peary Mohan . . 863 
Mothoor Mohnn v. The Bank of 
Bengal .. .. .. 369 

Motichand r. Dadabhai .. .. 638 

Moti Gulibchand v. Mahomed Mehdi 690 
Moti LaU v. Jogumohun Das 861. 862 
Motidahu v. Parshotam Doyal . . 633 

MoaWi Maennooddeen r. Greeah 
Chnnder .. .. .. 680 

Motmtnoy r. Colier . . . . 677 

Mowatt V. Castle Steel and Iron 
Works Co . . . . . . 138 

Mowji t>. National Bank of India , . 660 
MMuSer Wahid v. Abdus Samsd.. 660 



Paob. 
Mrinmoyee Dabea v. Bhoobnn Hoyee 232 
Mritunjaya Sirkar v. Gopal Chandra 673 
Mnddun Mohun v. Bhogoomanto 

Poddar . . . . 658, 676 

Mnddun Mohun v. Kan too Lall 547, 664 
Muddun Mohun v. Sofuna Bewa ..671 
Mudhoo Soodun v. Suroop Chnndor 

16. 356, 368 
Mufeezodeen Kazee v. Mehar Ali 

378, 38S 
Muhammad Abdul v. Ibrahim 378. 385 
Muhammad Allahad v. Muham- 
mad Ismail 9 Int. 2, S9I, 693. 617 
Muhammad Hussain v. Munna 

Lai .. .. .. ..246 

Muhammad Imam v. Sardar Husain 246 
Muhammad Inayet v. Muhammad 

Karamatnllah .. 669' 571 

Muhammad Sami-ud-din v. Mannu 

Lai .. .. .. ..667 

Muhammad V'akoob v. Muhammad 

Ismail .. .. ,. 655 

Muhammad Yusnf v. P. ft O. S. N. 

Co. .. .. .. ..564 

Muir V. Glasgow Bank . . 686, 623 

Mujnee Ram v. Gonesh Dutt .. 560 
Mukhoda Soondary v. Ram Chum 16 
Mukim MuUick v. Ramjan Sirdar 658 
Mukunda Chundra v. Arpan AU . . 666 
Mulchind v. Madho Ram . . 482 

Mulji Lala r. Nityjinund Singh . . 862 

Munchershaw, etc. v. New Dhurum- 

sey Spinning & Weaving Co. 7 Int., 
204, 240, 241, 684, 696, 697, 698, 

699, 701, 751 
Municipal Corporation of Bombay 

V. Cuverji Hirji . . . . 462 

Municipality of Sholapur v. Shola- 

pur Spinning and Weaving Co 602, 

603, 625 
Mun Mohinee v. Joykissen Mooker- 

joe .. ., .. 654 

Mun Mohinee v. Sooda Monee . . 544 
Mun Mohun v. Sriram Ray . . 563 

Munnoo Lall v. Lalla Choonee 651. 

662. 663, 655 
Munrunjun Singh v. Telanund 

Singh .. .. ..628 

Murdock v. State . . . . 600 

Murietta v. Wolfhagen .. .. 619 

Murray v. Lord Stair . . . . 492 

Murray v. R. . . . . 538 

Murray v. Walter . . . . 786 

Mnsadee Mahomed v. Meerza Ally . . 802 
MusaSr Ram v. Treloohun Bagchi .. 660 
Musst. Ackjoo V. I^tllah Ramohundra 128 



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Ixiv 



TABLE OF OASES CITED. 



Page. 
Huast. Ahmedee v. Dabee Persaad 

351, 352 
Mnsst. Akashbutty v. Heeram Bam 352 
Masst. Ameeroonissa v. Musst. Abe- 

doonina . . 374, 378 

Musst. Annndee v. Khedoo Lai . . 61 1 
Mnsst. Azeezoonissa v. Bakur Khan . . 5S7 
Mnsst. Bhagbutty v. Chowdbury 

Bholanatb .. 461,602,609 

Mnsst. Bibee f. Khandkar Khoda 639 
Musst Bibee v. Mnsst Bibee Snfeehun S40 
Musst. Bibee v. Sheik Hamid . . 631 

Mnsst. Ednn v. Mnsst. Beechun 16, 

356. 368 
Musst. Farzharee v. Mnsst. Azizun- 

nissa ' .. .. .. 074 

Musst. Fool V. Goor Snmn . . 188 

Mnsst. Fureedoonissa v. Ram Onogra 445 
Mnsst. Hnrrosoondery v. Mns^t. 

Ameena . . . . . . 676 

Must. Imam v. Hurgobind Ghose .. 364 
Musst. Imrit v. Lalla Debee 136, 

136, 137 
Musst. Inderbuttee v. ShaikMahboob 671 ' 
Mnsst. Jaibnn t>. Mnsst. Bibee . . 617 
Mnsst. Jarint-ool.BatooI v. Mnsst. 

Hosseinee .. .. 699,617 

Mnsst. Jhaloo v. Shaik Fnrznnd . . 662 
Musst. Khoob v. Baboo Moodnarain 671 
Mnsst. Kurutool v. Musst. Bajkalee 662 
Musst. Lalun v. Hemraj Singh 656, 567 
Mnsst. Luteefoonissa v. Goor Snimn 188 
Mnsst. Natukhee f. Chowdhry Chin- 

tamun . . . . 638, 579 

Musst. Oodey v. Musst. Ladoo 187, 

188, 640, 606, 667 
Musst. Oodia v. Bhopal . . . . 636 

Musst. Phool t'. Goor Snmn 442, 668 
Musst. Pumia v. Torab Ally . . 671 

Musst. Bamdee v. Baboo Shib . . 480 
Musst. Ram f. Babn Bishen . . 489 

Musst. Safiqunissa v. Shaban Ali 220, 443 
Musst. Sahordan r. Joy Narain . . 640 
Musst. Shnnemokee v. Isan Chunder 724 
Musst. Ushmfoonessa ' t>. Baboo 

Gridhare .. .. ..188 

Musst. Ustoornn v. Baboo Mohun 378 
Musst. Zaynab v. Hadjee Baba, 207, 208 
Mustapha Saheb v. Santha Pillai . . 683 
Muthoora Dass v. Kanoo Beharee . . 647 
Muttayan Chetti v. Sangli Vira . . 652 
Muttiya Pillai v. Western . . 460 

Muttu V. Ramal Linga . . . . 640 

Muttn Kamppa v. Rama Pillai . . 144 
Muttu Ramalinga v. Perianayagam 

Pillai 248 



Page. 
Muttusawmy Jagavera v. Venoatas- 
"ara .. .. .. ..319 

Mutty Lall V. Annnndo Chnnder .. 475 
Mntty Lall v. Michael . . * . . I7 
Mylne. y» the goods of . . 436, 626 



N 



Nadiar Chand r. Chunder Sikhnr.. 631 
Nagalingam Pillai v. Bama Chandra 612 
Nagappa r. Devu . . 864, 866 

Nagar Mall v. Azeemoollah . . 662 

Naginbhai v. Abdullah . . 632, 627, 628 
Xagindas Harjivandas v. Kara Jesang 644 
Nagore Monee v. Smith . . . . 581 

Nainappa Chetti v. Chidambaram 

Chetti .. .. ..269 

Xallatbambi v. Nellakumara 71, 280 

Nalliappa Goundan v. Kailappa 

Gonndan . . . , . . 560 

Nana v. Shanker . . . . 134 

Nanak Bam v. Mehiu Lall . . 3, 4 

Nana Narain v. Huree Punta . . 358 

Nanda Lai v. Jagneswar Haider 666, 667 
Nandkishor Das v. Bamkalp Boy . . 349 
Nangali <-. Baman . . . . 866 

Nankn Bam v. L M. R. Co. 613, 614 

Nanomi Babnsin v. Modhnn Mohun 660 
Naracott v. Naracott . . 324, 330 

Naragunty Latohmeedavamah v. 

Vengama Naidoo 7 Int., 90, 412, 

541.611 
Narain Chunder v. Cohen . . 296 

Narain Chunder v. Dataram Boy . . 631 
Narain Coomary v. Bam Kishna 112, 113 
Narain Dhara v. Bakhal Gain . . 618 

Narainee Dossee v. Nnrrohurry Mo- 

hunto .. ., .,122 

Naraini Knar f. Chandi Din . . 221 

Narain Singh v. Nurendro Narain . . 267 
Naranji Bhikabai v. Dipa Umed 64, 75, 76 
Narayan v. Chintaman . . . . 648 

Narayan v. Baoji . . 666, 666 

Narayan Kandu v. Kaigunda .. 656 

Narayan Undir v. Motilal Ramdas 

661, 662 
Narendra Lai v. Jogi Hari . . . . 602 

Narendra Narain v. Bishen Chnndra 563 
Narendra Nath r. Bam Gobind . . 692 
Naro Vinayak v. Narhari Bin .. 60 

Narsidas Jitram v. G. Joglekar . . 655 
Narsing Das v. Rahimanbhai 644, 667, 669 
Narsingh Dyal v. Ram Narain 38, 

45, 69, 666 
Narsing Narain v. Dharam Thackur 

634, 677 



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TABLE 07 Oases cited. 



Ixv 



Page. 

Naaarran v. Rasji . . 638 

Nasir Jhandsr v. R. . . 156, 166, 161 

Katha Hari v. Jamne . . . . 666 

Natha Singh v. Jodha Singh . . 540 

Nathn Ram v. Kalya . . . . 287 

Nathubhai v. Mnlchand . . . . 643 

Nawab Azimut v. Hnrdwaree Mull . . 657 
Nawab Khan v. Raghoonath Das . . 802 
Nawab Sidhee v. Rajah Ojoodhyaram 

658,726 
Nawab Syed v. Mnsst. Amanee 640, 

562, 604 
Nawab Tarasseed v. Behari Lall . . 554 
Nawabanissa v. Fuzloonissa . . 616 

Nazir Sidhee v. Woomesh Chnnder. . 558 
Neal r. Erving . . 39, 123 

Neale v. Parkin . . . . 46 

Neamnt Ali v. Gooroo Doss 64, 69, 72 
Neat Kanto v. Jaggobnndho Ghose 

14, 363, 395 
Neare r. Moss . . . . . . 677 

NeeUJsto Deb v. Beer Chnnder 67, 541,|61i 
Nehal Chnnder v. Huree Pershad . . 663 
Keik) V. Jakle . . 40, 49 

Neill V. Devonshire . . 60, 70 

Nebon v. Bridport . . 294 

Nelson v. Whittal .. ..619 

Nemaganda t>. Paresha . . . . 269 

Nepean v. Doe . . 573 

Newaj Bnndopadhya v. Kali Pro- 

sonno Ghose . . 556, 663 

Newsome v. Flowers . . 648 

Newton v. Belcher . . . . 188 

Newton v. Chaplin . . . . 785 

Newton v. Harland . . . . 720 

Newton v. Leddiard . . 188, 640 

Nga Tha Yah v. F. N. Bum . . 530 

Niamntoolah Khadim v. Himmut 
AU .. ..116,122,433 

Nicholas t). Asphar 211,589 

Nicol & Co. V. Castle . . . . 23 

NichoU V. Jones . . . , 702 

NichoOs, /n re .. .. 619 

Kicholls V. Dowding . . 130, 746. 748 

mcholls p. Downes ..113 

Nicholson v. Smith . . 147 

Nidha Chowdhry v. Bnnda Lai . . 638 
Nidhee Singh v. Bisso Nath .. 656 

Nidhikrishna Bose v. Nistarini Dasi 45 
Kielsoa v. Wait .. ..518 

Nilakaadhen v. Padmanabha . . 63 

Nilkanth Soimah v. Soosela Debia 724 
Nitkristo Deb v. Bir Chandra 356, 357 
Nilmani Maitra v. Mathura Nath . . 656 
1^11 Monee v. Zuheerunissa Khannm 

217. 636, 662 



Page. 
Nilmoney Bhooya v. Ganga Nariain 644 
Nilmony Mukhopadhya v. Almnisa 
Bibee .. ..290 

Nilo Ramohandra v. Gobind Ballal 636 
Nilratan Mandal v Ismail Khan 556, 629 
Nimhoo Sahoo v. Boodhoo Jummadar 662 
Ningawa v. Bharmappa, 32, 33, 103, 

195, 203, 204, 206 209, 212, 240, 596, 
Ningawa v. Ramsppa . . . . 379 

Ninnul Chnnder r. Srimati Sarat- 
mani . . . . . , 395 

Nisa Chand v. Kanohriam Bagani 681, 582 
Nistarini r. Kalipershad Dass 629, 

634, 554 
Nistarini Dossee v. Nundoo Lall 
286, 287, 289, 290, 291, 617, 687, 

776, 783,868 
Nitrasur Singh ti.Nund Lall . . 558 

Nitr Pal v. Jai Pal . . . . 86 

Nittanand Ghose v. Krishna Dyal . . 609 
Nittyannnd Roy v. Abdar Raheem . . 411 
Nittyanund Roy v. Banshi Chandra 631 
Nitya Gopal v. Nagendra Nath 398, 401 
Nityanund Surmah v. Kashinath 
Nyalunker . . . . . . 284 

Niven v. Belknap . . . . 653 

Nobin Chunder v. Dokholbala Dasi 

532, 643, 627 
Nobin Krishno v. Russik Lai . . 405 

Nobin Mundul v. Cholim Mullick . . 630 
Nobo Coomar v. Gobind Chnnder 264, 

255, 257 
Nobodoorga, In re . . 31, 566 

Nobodoorga t;. Dwarkanath Roy . . 628 
Nobo Kishore r. Joy Doorga . . 567 

Nocoor Chunder v. Ashutosh Mukerjee 496 
Nogendrabala Dabee t>. R. . . 56 

Noor Bibee v. Shaik Rumzan . . 861 

Noor Bux V. R. .. 179, 180, 730, 793 
Norden Steam Ship Co. v. Dempsey 518 
Nogendra Nath v. Kamal basini Dasi 8 Int. 
North V. Miles . . . . 139 

North-Eastern Railway v. Hastings 508 
Noshai Mistri v. R. . . . . 227 

Nowcouree Chunder v. Birmomoyee 
Debea .. .. .. 559 

Nubo Kant v. Mahatab Bibee .. 617 
Nubo Kishen v. Promothonath Ghose 570 
Nuddarchand Shaha v. Meajan . . 628 
Nnjmooddeen Ahmed v. Beebee Zu- 
hoorun . . . . . . 617 

Nund Coomar v. Gunga Pershad . . 547 
Nund Dhimpat v. Tara Chand . . 244 
Nund Kishore v. Sheo Dyal . . 58I 

Nundo Kumar v. Bonomally Gayan 

649, 665 



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Ixvi 



TABLB or CASES CITED. 



Paob. 
Nundo Lall v. Nisterini Dassi ' . . 869 
Nundo Lall v. Prosunno Hoyee .. 476 
Nund Pandah v. Gyadhur . . 134 

Nund Ram v. Chootoo . . • . 646 

Nundun Lai v. Tayler . . . . 056 

Nor Mahomed v. BismuUa Jan . . 687 
Nnronath Dass v. Goda Kolita 646. 648 
Nurrohurry Mohunto v. Narainoe 

Dassee •■ •• 1" 

Narsingh Das v. Narain Das .. 646 

Nursing Narain v. Roghoobur Singh 666 
NyamutiiUah v. Gobind Churn .. 66 
Nynakka Rowthon w. Vavana 

Mahomed .. .. ..865 

Nye V. Macdonald . . 343, 435 



Oakeley v. Ooddeen • • 626 

Obhoy Chunder v. Pearee Mohun 126 
Obhoy Churn v. Gobind Chunder 643, 644 
Obhoy Chum v. Hari Nath 544, 676, 

69», 601 
Obhoy Chum v. Lukhy Monee . . 639 
Obhoy Chum ». Nobin Chunder . . 668 
Obhoy Chum v. Punchanan Bose 666 
Obhoy Chum r. Treeloohun Chatter- 

jee 667 

Obhoy Chum v. Uma Chum . . 666 

Obhoy Gobind v. Beejoy Gobind 

112. 121. 673 
Ochanram v. Dolatram . . . • 277 

O'Connell's Case .. •• 783 

O'Connor v. Marjoribanks ..691 

Official Receiver, Ex parU . . 287 

Ogra Kant v. Mohes Chunder . . 669 
Olpherts v. Mahabir Pershad . . 367 

Omer Dutt v. Bum . . 64, 72 

Omeah Chunder v. Dnkhina Soon- 
dry .. .. 683.629 

Omrite Lall v. Kalee Pershad . . 633 

Omrunisaa, Bibee v. Dilawar Ally . . 576 
Omyohund v. Barker .. 3 Int. 

O'Neill V. Read .. ..HI 

Onkarappa v. Subaji Pandurang . . 630 
Onraet v. Kishen Soonduree .. 639 

Oodey Chand v. Bhaskar Jagonnath 671 
Oolagappa Chetty v. Collector of 
Triohinopoly .. .. .. 671 

Oomabuttee t>. Parushnath Pandey 129 
Oomda Bibee v. Shah Jonab 616, 617 
Oomut Fatima v. Bhajo Gopal 12, 254 
Oriental Government Security Life 
Ass. Co. V. Narasimha Chari 216, 

218, 348, 360, 562, 760, 774 
Oriental Govt. Security Life Ass. 
Co. V. Snrat Chandra . . 28, 662 



Pacb. 

O'Rorke «. Bolingbroke 4 Int. 
O'Rourke v. Commissioner for Rail- 
ways .. ..689 
Osbome v. Chacqueel .. ..39 
Osborne V. London Dock Co. . . 706 
O'Shea t>. Wood . . . . 699 
Oadh Behari, In re .. . . 13 



Poddock t>. Forester . . 146, 146 

Page ti. Findley .. ..601 

Pahalwan Singh v. Mahajah M&hesh 

Buksh .. .. .. 513 

Paine v. Tilden .. ..772 

Palakdhari Rai v. Manners 87, 801 

Palmer's Case .. ..43 

Panchu Mondul v. R. 294, 304 

Pandaiya Tever v. Puli Telaver 691. 592 
Pandit Hanuman v. Mufti 

AssaduUah .. .. ..644 

Panduranga v. Nagapp* . . . . 664 

Pandya Nayak, In the maUer of the 

petition of . . . . . . 637 

Panna Lai v. Srlmati Bamaanndari 587 
Pannappa PiUai v. Pappudayyangar 650 
Papendick v. Bridgewater 134, 211 

Pappi Anterjenam v. Jeyyan Nayer 619 
Paramma v. Ramachandra .. 671 

Param Singh v. Lalji Mai 634. 

636, 658, 661 
Paranjpe v. Kanade .. .. 286 

Parbati Cham v. Raj Krishna .. 553 
Parbati Kumari v. Jagadis Chunder 609 
Parbutti Dassi v. Ram Chand . . 675 
Parbutty Dassi v. Pnmo Chander 

247. 248 
Pardee v. Price .. .. 385 

Pareman Dass v. Ghattn Mahton 6S0, '>52 
Parfitt V. Lawless .. .. 688 

Parker v. S. E. R. Co. . . . . 688 

Parker ti. Lewis .. .. 286 

Parkin v. Moon .. .. 762 

Parmanand Misr v. Sahib Ali . . 668 

Parnell -. Wood .. .. ..869 

Parrott v. Blimt & Comfopt . . 13 

Parsons v. London County Council . . 285 
Paraotam Narain '• Taley Singh . . 862 
Partab Singh v. Chitpal Singh . . 641 
Parton r. Cole . . . . 465, 457 

Partridge v. Bcre .. •• *72 

Partridge v. Coates .. .. 380 

Parvatibayanuna «. Ramakrishna 

Rai 86» 

Pasley v. Freeman .. ..89 

Paaumarty Jagappa, In the nuMer of 756 



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TABBE OV CASES CITED. 



Izvii 



Paoe. 
Paiupati i>. Narayana . . . . 676 

Patch's Caae .. .. ..42 

Patch V. Ward .. .. ..287 

Pstel KiUbhai o. HargovaD Mansnkh 671 
Patel Vamdravan v. Patel Manila 

65, 86, 213 
Pathammal v. Kalai Kaduthar 

470, 482, 620 
Patman v. Harland . . 98 

Pattabhiramier v. Venoatarow 
Naieken .. .. . . 3S7 

Patterson v. MoCaosIand .. 344 

Paxton V. Douglas . . . . 710 

Payne v. Bennett .. 260 

Peacable v. Watson ..212 

Peacock v. Bell .. ..623 

Peacock v. Harper .. .. 146 

Peacock v. Harris . . . . 46 

Pearce v. Becker . . 31 1 

Pearce v. Foster . . . . . . 699 

Peari Mohan v. Drobomoyi Dabia 

73, 74. 84 

Pearson v. LeMaitre ..89 

Peddamntiialaty v. Timma Beddy . . 667 

Pedda Venoatapa r. Arookala Bood- 

rapa .. .. ..630 

Pedru r. Domingo . . . . 642 

Peek V. Dency .. ..661 

Peek e. Onmey ..660 

Pnnraj Bhavanirani v. Narayan 
Shivaram .. ..682 

Penny v. Hanson .. ..99 

Penmddook r. Hammond .. 701 

Penwaiden v. Roberts ..399 

People V. Holbrook .. ..468 

Peroeival «. Nanson .. .. 212 

Parhlad Sein v. Rajender Kishna 
Singh .. .. ..668 

Perry v. Gibson .. 721, 744 

Perry v. Meddowcroft .. 277 

Perry r. Phosidior Bronze . . . . 860 

Perry v. Smith .. ..699 

Pershad Singh v. Ram Pertab 8 Int. 
Pertab Udai v. Masi Das . . 246 

Parton, I* re .. 114,673 

Pemmal Sethnrayar v. M. Rama- 
Unga Sethnraryar .. ..66 

Pe tarn her Manikjee v. Moteechand 
Mamikjee .. .. 671 

Petch V. Lyon . . . . . . 128 

Petri« V. Nattall . . . . 278 

Peyton v. St. Thomas' Hospital . . 126 
Phaloo Monee v. Greesh Chnnder . . 476 
Phelps V. Prew 3. 381. 706, 707, 786 

Pheoe's Tmsts, /n re .. 673,619 

P1uUpBsnoafD.Att.-G«n. for Jersey 804 
W, LB 



Paob. 

Philip son v. Earl of Egremont .. 286 

Phillips p. Cole . . . . 31 

Phillips V. Gomes .. .. 739 

Phillips V. Martin .. .. 797 

Philpott V. St. George's Hospital . . 3 

Phnl Chand e. Man Singh . . 662 

Phul Knar v. Surjan Pandy 7 Int. 



Piokard v. Sears 
Pickering, ^e 
Pickering v. Noyes 
Picket r. Paokham 
Piggot V. E. C. R. Co 
Pinney v. Hunt 
Pinney v. Pinney 
Pipe V. Faloher 
Pirthee Singh v. Sheo Soondmee . . 611 
Pirthee Singh v. The Court of Wards 411 
Pisani v. Att.-Gen. of Gibraltar 638, 639 
Pitamberdas v. Jambasar Town 
Municipality 



638. 663, 666, 663. 664 
.. 698 
.. 706 
.. 674 
.. 60 
.. 46 
.. 461 



.. 673 
.. 721 
Rattan Bollub 

.. 30 

.. 87 

216, 222 



Pitt V. Coombes 
Pitumber Dass v. 

Dass 
plaice V. AUock 
Plaxton V. Dare 

Plower V. Berry ., 592 

Plume's Case . . 103 

Plumber v. Brisco .. .. 626 

Plumer v. Phuner . , 123, I29 

Poe V. Darrah . . . . 601 

Pogha Mahtoon v. Guru Baboo .. II3 
Pogose V. Bank of Bengal 486. 489 

Pogose V. Mokoond Chunder 264. 266 
Pointer v. M. S. . . . . . . 44 

Pollock r. Garle . . . . . . 869 

Ponnamal v. Sundaram Pillai 246. 248, 412 
Ponnappma Pillai v. Pappnvay- 

yangar .. .. .. 550 

Pontifex v. Bignold .. .. 620 

Pooley V. Goodwin . . . . 626 

Poolin Beharee v. Watson ft Co. 

115, 116. 361. 629. 669 
Poote V. Hayne .. ..701 

Poresh Narain v. Kassi Chunder .. 674 
Poresnath Mookerjee v. Anath Nath I37 



Pointer v. Mooree 
Postlethwaite, Be 
Postlethwaite v., Riokman 
Pothi Reddi v. Velayudasivan 

Pound V. Wilson 
Ponlett Peerage Case 
Powell V. Knox .. 
Powell V. Lay ton 
Powell V. Smith 
Powers, Se 



e 

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.. 662 
., 6»8 
.. 702 
464. 

862. 863 

763. 764 

.. 693 

... 600 



621 
133 



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Ixviii 



TABLE OP CASES CITED. 



Pudit 
Pnhlad Sen ». Budhu Singh 
Prmhlad Sen v. lUjendra 
Prutjivandaa v. MayATMn 
Pranjivan GoTardhandass 



Paoe. 
Viabwambbar 

4 

.. 264 

Kishor 262 

.. 293 

V. Baja 662 



Prankisben Paul v. Mothoora 

Mohan 644,611 

Pran Krishna v. Jadu Nath . . 401 

Pan Kiito v. Bbageerutee Oooptea542, 611 
Pran Nath t>. Jado Nath . . 277 

Prannath Roy v. Rookbea Begum, . . 660 
Premchand HowUtram, In re .. 744 
Prem Chand v. Huree Das . . 680 

Prem Chand t). Suraj Ranjan . . 666 

Pram Chand «. Sureodra Nath . . 667 

Premji Trikamdas v. Madhowji Mnnji 672 
Pram Sookb v. Pirtiiee Ram .. 128 

Praonatii Shaba v. MadbuSodan 476, 487 
PiMton V. Horceau . . . , 466 

Price V. Burva . . . . . . 49 

Price V. Manning . . 762 

Priee V. Page .. ..606 

Price V. Torringtott . . a06 

Price V. Woodhouse . . 49 

Priestman v. Thomas . . 288 

Primrose, In Ihe goods of . . 431, 436 

Prince V. Samo 264, 744 

Prince Mabomed v. Rani Dhojamani 637 
Pritcbard v. Bagshawe ..140 

Pritcbard v. Hitchcock .. .. 283 

Prit Koer v. Mahadeo Pershad Singh 644 



Probhakar Tebari 

Nath Pundit 
Proctor V. Bennis 
Proctor V. Lainson 
Proctor V. Smiles 



Raja Baidya 

.. 600 

. 663, 664, 672 

.. 229 

700,706 



Promotha Nath t>. Dwarka Nath . . 862 
Prosunno Chunder v. Land Mort- 

«•«• 264,579 

Prosunno Coomar v. Koylasb Chond- 

<*•' ..671 

Prosunno Kumar v. Secy of State 

for India 824, 629 

Prosunno Kumar v. Kali Das . . 540 

Prosunno Kumar v. Mahabharat . . 678 
Prosunno Kumari v. Qolab Chand . . 

548. 649 
Prosunno Nath v. Tripoora Soonduree 

862, 863 
Protab Chander v. Ranee Sumo- 

"**y** ..433 

Proteb Chander t>. Arathoon . . 638 

Protab Chunder e. R. . . 20 

Piyanath Chatterjev. Bissessnr Dass 

401. 636 



Pryer v. Oribble 
Puchai Khan v. Abed Sirdar 
Puddo Monee v. Jholla Polly 
Padmarati v. Doolar Singh 



Pace. 
.. 639 
.. 639 
.. 676 
,. 32 



Punchanan Bannerjee v. Raj Kumar 667 
Panardeo Narain v. Ram Sarup . . 3 
Puran Chonder v. Qrish Chunder.. 403 
Puran Dai v. Jai Narain .. 546 

Purcell V. Macnamara . . 283 

Pureeag Lall v. Ram Jewan .. 661 

Purmanandas Jeewandas, In re, .. 

451, 452, 647. 667 

Purmanandas Jivandws v. Cormak 672 

Purmeshur Chowdbry v. Bijoy Lall. . 581 

Pnmima Chowdrain v. Nittanund 

Shah .. ..364 

Purseed Narain v. Bissessur Dyal.. 

664, 564 
Pnrsid Narayan v. Hanuman Sabay 551 
Pusbong V. Munia Halwani 686, 587 

Pyari Lall. In the matter of . . 14 

46, 227, 229, 230. 231 
Pyke V. Crouch . . . . . . 232 

I^ 0. Campbell .. 471.493 

Q 

Quartz Hill Co.. Jte .. . . 737 

Queen's Case 26. 66. 117, 264. 743, 

748, 760 
Queen's Proctor v. Fry .. .. 246] 

Quilter v. Jorss .. ..381 



R. V. Abaji Ramcbandra .. 96 

R. V. Abdool Setar . . . . 724 

R. V. Abdul Kadir .. ..538 

R. V. Abdullah 6, 7. 8. 0, Int., 2. 28. 

39, 41. 44, 47, 200, 360. 747 
R. V, Abraha . . . . . . 47 

R. V. Adam .. .. ..598 

R. V. Adamson . . . . 470 

R. V. Adey .. .. ..710 

R. V. Affazuddeen . . 722. 723 

R. V. Ahmed Ally . . 18, 19 

R. V. Aickles .. .. ..468 

R. V. Alagappan Bali 176, 178, 183, 

184, 186 
R. t>. Alerton .. .. ..689 

R. V. Ali Husain .. ..697 

R. V. Allen . . ... 18, 33 

R. V. AlUaon .. .. ..320 

R. ti. AUomiya Hassan 101, 326, 329, 

798,799 
R. V. Alloo Paroo . . . . 4 

R. V. Alogu Kone . . 867 



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tabu; or gases citbd. 



Iziz 



R. e. 
R. r. 
R. r. 
R. ». 
R. ». 
R. 9. 

R. ». 
R. r. 
R.a. 
R. r. 
R. ». 
R.». 

R.t. 

R.». 

R.*. 

R.«. 

R.C. 



R. V. 
R.r. 
R. ». 
R. r. 
E. V. 



R. V. 
R. ». 

R. >. 
R.C. 
Kt. 
R. .. 
R.r. 
R.<. 
R.;. 
R.r. 

R.. 
R.». 
R... 
R... 
Kv. 
R. f. 
R. r. 
R. t. 
R. r. 
R r. 
R. V. 
R. r. 
R. V. 
R. c. 
R. ». 
S. e. 

a. V. 



Page. 
Amanoollah Moolah 403.405 

Ambergate Ry. Co. ..668 

Ambigsra Hulagu .. 183.184 

Amir Khan 46.61.64.55.713 

Amiraddin 64, 269, 344, 786 

Amrita Oovinda 30, 33, 1 17, 

178, 179, 180, 798 
Annya .. .. ..178 

Anunto ChuckerbuUy 685. 869 
Anuntram Singh . . . . 150 

Appa Snbhana ..723 

Appleby .. ..49 

Arjun Megha ..752 

Amaa .. .. 44, 122 

Anhed AU .. ..320 

Ammugam 406, 409, 411, 714 

Ashgar All 164, 166, 157, 159, 686 
Ashootoah Chuokerbotty, 7, 8, 

9, Int. 2, 9, 13, 16, 16, 67, 

181, 182, 183 184, 186 

A«hruS Sheikh .. ..686 

Avery .. ..702 

Babajl 117, 180, 183,722 

Babo LaU 108 

Baddry 109. 152, 163. 165. 169, 
160, 161 163, 164, 166, 
166, 167, 169, 170, 171, 172 
Bahar Ali .. ..43 

Baijee Chowdry .. 31. 179, 

180, 184, 185, 187, 717 
714, 715 
.. 103 
.. 598 
.. 718 
.. 179 
.. 696 
.. 178 
.. 737 
148, 158 
60, 719 
3, 5. 669 
94,762 
151. 162. 164 
.. 151 
179, 180 
..716 
. . 46 
..186 
..168 
148, 150. 161, 162, 233 
157, 173 



Baikuntnath Banerjee 

Bailey 

Bajo Huri 

Bakhoree Chowbey 

Bakur Khan 

Bala Dharma 

BaU Patel 

Baldeo Sahai 

Baldry 

Bal Gangadhar 

Balkrishna Vithal .. 

Ball 

Balvant 

Balya Dagdn 

Banwaree Lall 

Barnard 

Bartlet 

Bam Nayar . . 

Bashya 

Basvanta 

Bate 

Bayaji Kom Dndu 182, 185, 186 

Beddingfield ..44 

Bediordshim . . 193, 214 

Beharee . . 17. 20, 46, 92, 326 

Behari Sing . . 19, 164, 156 



R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. t>. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. b. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. t>. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. t>. 



Page. 
Behary Lall . . . . 686 

BelatAli ..176. 179. 180 

Bepin Biswas 181. 183, 186. 

638, 710, 716, 716. 717, 773. 776 
Bertrand . . 12, 804 

Beehor Bewa .. ..117 

Bhairab Chunder . . 144, 774 

Bhairam Singh .. ... 151 

Bharma .. .. .. 719 

Bhannappa . . . . 162 

Bhavanrao Vithalrao . . 412 

Bhima .. .. ..161 

Bhista .. .. ..18 

Bholanath Sen 18. 33. 689, 690 

Bholu .. 92, 347, 671 

Bhoobon Isher .. .. 724 

Bbutton Rojwan ..110. 162. 153 
Bidhyapatti .. ..328 

Bindaban BowT«e . . . . 761 

Birdseye .. .. ..36 

Birmingham .. .. 212 

Bishonath Pal 332. 233. 724, 

746, 774, 
Bissen Nath 
Bissorunjun Mookeijee 
Blaokbum 



Blake 

Bleohynden 
Bleesdale . . 
Bliss 

Boidnath Singh 
Borrett 
Boswell 
Boyes 

Brackenbury 

Bradlaugh 

Braintree . . 

Brandeth . . 

Brewer 

Brioe 

Brooke 

Brown 

Buckley 

Bndd 

Budder-ud-deen 

Budhu Nanku, 

BuU 

Burdett . . 

Burke 

Burley 

Burton 

Buahmo Anent 

Bassiroddi 

Bykant Nath 

Bysagoo Noahyo 



773, 776 

121, 199 

166. 169 

. . 55 

..199 

. . 92 

47. 134. 211, 214 

.. 150 

. . 46 

156, 159 

708. 711. 712, 

716 717 

174, 175 

..686 

302, 386 

. . 65 

..697 

..686 

.. 730 

..702. 768. 797 

40, 202. 

.. 600 

19, 162 

184. 186. 716, 717 

..230 

17, 743 

227, 231. 597. 598 

.. 176 

..698 

..161 

.. 176 

324.326 

.. 110 



Digitized by 



Google 



Ixx 



TABLE OF OASES CITED. 



Paoe. 



Page. 



R. V. Carey 


..786 


R. V. Day 




.. 233 


R. t>. Carter 


. . 88 


R. t>. Degumber Thakoor . 




.. 199 


R. V. Cass 


..168 


R. V. Densley 




.. 679 


R. V. Gassy Mul 


. . 88 


R. V. Deodhar Singh 




.. 711 


R. V. Caster 


.. 17 


R. V. Deoki Nandan 




.. 690 


R. V. Castle Morton 


.. 466 


R. V. Derrington 




.. 176 


R. V. Castro 


.. 302 


R. V. Despard 




.. 712 


R. V. Chaddi Khan 


..689 


R. V. Derji Govindji 




.. 668 


R. V. Chagaa Dayaram 


6 Int., 711, 


R. t>. Dhamba Poshya 




.. 638 




712, 713, 714, 716 


R. V. Dhnnno Kazi 




.. 638 


R. V. Chait Ram 


.. 867 


R. V. Dhun Singh 




.. 669 


R. V. Chando Chandalinee 711, 712 


R. V. Dhumm Dutt 


.166, 


169. 166 


R. V. Chandra Nath 


..181 


R. r. Dina Bandho 




.. 770 


R. V. Chand valad 


177,186 


R. r. Dixon 


620, 


721. 786 


R. V. Chapman .. 


..762 


R. V. Doherty .. 




.. 96 


R. V. Charoo 


..723 


R. V. Domun Kahar 




160, 163 


R. V. Chatar Porshotnm . . 186, 716 


R. V. Donaghue .. 




.. 692 


R. V. Cheadle .. 


.. 620 


R. V. Donellan 




.. 46 


R. ti. CberathChoyi 


.. 771 


R. V. Donelly 




689, 690 


R. V. Chidda Khan 


.. 3 


R. V. Dosa Jiva 


183, 


184, 186 


R. t>. Chinna PaTUchi 


177, 178 


R. V. Dossaj Qhulam 




226. 262 


R. V. Chokoo Khan 


.. 117 


R. r. Dossett 




.. 616 


R. V. Chota Jadnb 


.. 868 


R. V. Downer 


. 127 


128. 702 


R. 0. Christopher 


.. 469 


R. r. Dredge 




.. 19 


R. V. Challondee Poramaniok .. 117 


R. V. Drew 




.. 166 


R. V. Chunder Bhattaoharjee 181, 


R. V. Drummond 




.. 199 




182, 186, 186 


R. V. Durbaroo Dass 




.. 176 


R. V. Chunderkant Chookerbotty . . 697 


R. V. Durga Sonar 




.. 426 


R. t>. Chunder Koomai 


.. 30 


R. i>. Durgaya 




.. 163 


R. V. Chutterdharee Singh 13, 711, 


R. t>. Duran 




.. 708 




716, 716 


R. V. Dwarka 




716. 716 


R. V. Clarke 


.. 797 


R. V. Dwarkanath Dutt . 




.. 35 


R. V. Clewes .. 39 


, 40. 117, 166, 173 


R. V. East Fairlie 




.. 386 


R. V. Cobden 


.. 36 


R. t>. Edge 




.. 370 


R. V. Cole 


38, 94 


R. V. Edmunds .. 




.. 40 


R. ti. Coley 


..169 


R. V. Eduljee Byramjee . 




.. 804 


R. V. Commer Sahib 


167, 170. 171, 172 


R. V. Egerton .. 




.. 39 


R. ti. Conde 


.. 42 


R. V. Elahi Bux . . 8 Int 


, 14, 


356. 


R. V. Cook 


.. 46 


710, 712, 713, 714, 


716, 


716, 717 


R. V. Cooper . . 46, 96, 97, 166, 698 


R. V. Elizabeth Sippets . 




.. 112 


R. V. Cotton 


. . 102, 103, 616 


R. V. ElUs .. 35. 


}6, 39, 94, 173 


R. V. Court 


148, 167 


R. V. Exeter 


211, 


212, 232 


R. V. Conrroisier 


.. 46 


R. V. Fagent 




.. 200 


R. r. Cox 


.. 49 


R. V. Fairie 




30, 116 


R. t>. Cox and Railton 696. 696, 701, 702 


R. V. Fakirappa . . 7 Int 


,34. 


36, 36,96 


R. V. Coyle 


.. 49 


R. V. Fakir Mahomed 


. 63, 61. 304 


R. V. Crooks 


.. 797 


R. t>. Farlar 




713, 716 


R. t». Cronoh 


.. 312 


R. V. Farley 




.. 702 


R. V. Croydon .. 


.. 166 


R. 0. Farr 




.. 370 


R. t>. Dabee Pershad 


106,162 


R. V. Farrell 




.. 230 


R. V. Dada Ana 13, 


117, 118, 161, 


R. V. Farrington 




.. 620 




162, 163, 166. 346 


R. V. Fata Adaji . . 




.. 201 


R. V. Daji Narsu 


176, 179, 180 


R. V. Fatik 


. 420. 424. 689 


R. V. Dala Jira .. 


.. 686 


R. V. Fattab Chand 




.. 690 


R. V. Dale 


98, 103 


R. V. Fennel 




.. 168 


R. V. Dan Schai , . 


.. 761 


R. t>. Fenton 




• 370 






Digitized by ^OO^ 


le 



TABLB OP CASKS CITED. 



Ixzi 



Park. 



Paok. 



R. V. Femand . . 


.. 165 


R. p. 


Greenaway 








785 


R.P. Pirth 


.. 36 


R. V. 


Grees Chunder 




, , 


239, 


248 


R, V. Fisher 


637. 621 


R. p. 


Oriffln 




, , 




697 


R. r. Fitzgerald . . 


.. 200 


R. p. 


Qrish Chtjnder 




. , 


730, 


793 


R. r. F!tz8imon8 


.. 468 


R. p. 


Gnngadhar Bhunjo 






690 


R. p. Flaherty . . 


116, 122 


R. p. 


Gunnel 




. . 




97 


R. V. Flanagan . . 


..39 


R. p. 


Gattridge . . 




., 




90 


R. p. Fontaine Moreaa 


281, 284. 285 


E. p. 


Hammond Page 








283 


R. V. Foster 


88, 96 


E. V. 


Hanmant 




• • 


711. 


714 


R. e. Fowkes 


.. 34 


R. V. 


Hanmanta 112, 


113, 


126, 


167, 




R. r. Francis 30, 93. 96, 102. 336, 616 






206. 


241, 


685, 


686 


R. ». Fnrsey 


.. 61 


R. p. 


Hannah More 








164 


R. V. Gadbnry .. 


.. 328 


R. p. 


Haradhan 




.. 




538 


R. V. Gallagher .. 


..716 


R. V. 


Hardewa 




.. 




186 


R. V. Ganapabhat 


183, 184, 186 


R. p. 


Harding . . 








157 


R. V. Gandfield 


.. 46 


R. p. 


Hard wick 




64, 


132, 


156 


R. V. Oaneeh 


.. 47 


R. p. 


Hardy 






66, 


694 


R. V. Oangia 


.. 163 


R. p. 


Hargrave . . 








711 


R. V. Oanraj 


179, 180 


R. r. 


Hari 




. 




398 


R. V. Gana 


.. 714 


E. V. 


Hari Charan 








751 


R. V. Gana Sonba 


.. 709 


R. p. 


Hari Lakshmon 




, « 


710, 


795 


R. r. Gamer . . 102, 


166, 156, 


R. V. 


Harimaniram 




, . 




597 




168, 616 


R. V. 


Harvey 








404 


R. V. Gavin 


174, 176 


R. V. 


Hatts 




.. 




158 


R. V. Gazard 


.. 688 


R. P. 


Hawluns 








614 


R. r. Gearing 


102, 113. 615 


' R. p. 


Hawarth 




, , 




458 


R. V. Gholam Ismail 


.. 6 


R. V. 


Haynes 








43 


R. r. Ghulam Mustafa 


.. 766 


R. p. 


Hayward . . 








702 


R. e. Ghnlet 


718. 719 


R. p. 


Hearon 






166, 


138 


R. V. Gibbons 


166, 697 


R. p. 


Hedger 8 Int, 


17.43. 56, 




R. V. Gibson 


797, 803 




285, 


313, 


368, 


718, 


719 


R. D. Gilhan 


157, 697 


R. p. 


Heenimnn Hnlwye 






44 


R. v. Gillis 


.. 167 


R. p. 


Heeson 






39, 


102 


R. V. Qirjashanlur Kashiram . . 669 


R. V. 


Hesseltine 








308 


R. c. GUwter 


. 90, 94, 199 


R. p. 


Hewitt 








173 


R. 0. Gobardhan 44, 


164, 156, 713 


R. p. 


Heyford . . 




. , 


, , 


210 


R. p. Godai Rant 


.. 713 


H. p. 


Hicks 




164, 


156, 


157 


R. V. Goddard .. 


.. 44 


E. p. 


Hilditch . . 




, , 


723, 


725 


R. V. Gogalao 


.. 353 


R. P. 


Hill 








620 


R. V. Gonowri 


. 423 


R. V. 


Hind 




, , 




199 


R. p. Gokod Kahair 


.. 17 


R. p. 


Hira LaU . . 




, , 




689 


R. r. Qookool Bowreo 


-. 92 


R. p. 


Hodges 




, , 




14 


R. r. Gopal Doss, 6 Int 4, 


, 682, 683, 


R. V. 


Holden 




, , 




538 


684. 689. 690, 692, 694. 


708, 709, 


R. V. 


Holmes 




• • 




167 




710, 763, 764 


R. p. 


Holt 




, , 




347 


R. V. Gopal Thakoor 


.. 326 


R. p. 


Holy Trinity Hall 






457 


R. P. Gopeenath Kolln . 


.. 110 


R. p. 


Hosseinee .. 




, , 




684 


R. p. Gopee Noshyo 


.. 723 


R. p. 


Howes 




, , 




173 


R- P. Gora Chand 


.. 92 


R. p. 


Howgill . . 




, , 




93 


R. P. Gordon 


1, 7, 386 


R. e. 


Hunt 




.. 47 


, 61. 


371 


B. V. Gout Chand 


117, 688 


R. «. 


Hurdeep Sahoy 




, , 


238, 


239 


R. t>. Govind Babli 


179. 180 


R. «. 


Hnrdut Surma 




, , 




781 


R. p. Grant 


.. 797 


R. p. 


Hnrribole Ohnnder 


169, 


160, 




R. V. (Stay 


.. 616 




161, 163. 714, 


798, 


799, 


803, 


804' 


R. V. Qteen 


.. 166 


R. p. 


Hnssein Oaibn 








286 


R. ». GrMnaote .. 


.. 46 


R. p. 


Hussein Haji 




, 




686 



Digitized by 



^^oogle 



Ixxii 



TABLE OF OASES CITED. 



R. V. Hyder Jolaha 

R. V. HeB 

R. V. Imam 

R. V. Imdad Khan 

R. r. Ings 



■ Page. 

.. no 

..283 

7U. 716. 717 

..715 

18. 3S0 

R. V. Inhabitants of Brampton . . 320 
R. V. Inhabitants of Brighteide 
Brierlow .. .. ..280 

R. V. Inhabitants of Oloncestershire 615 
R. V. Inhabitants of Harbome . . 615 
R. V. Inhabitants of Lower Hey- 
ford .. .. ..208 

R. V. Inhabitants of Padstow . . 456 
R. r. Inhabitants of Mansfield . . 592 
R. t7. Ishan Dntt 724, 735, 737 

R. V. Ishri Singh 231, 775, 796 

R. f. Ismal Valad . . 769 

R. V. Jacobs . . 157, 231 

R. V. Jadab Das 150, 163, 160, 185, 

631, 752, 780. 781. 794 
R. V. Jafflr All 176, 177, 179, 180, 

184. 185, 717 
R. V. Jagan Poly . . . . 421 

Jagat Chandra 153, 167, 177 

Jagrup 108, 109, 162, 176, 179 

.. 43 



R. t>. Kashinath Dinkar 



R 

R 

R. V. Jai Chand 

R. V. Jami 

R. V. Jarris 

R. V. JaTecharam 

R. V. Jenkins 

R. V. Jetoo 

R. V. Jhubboo Mahton 

R. V. Jhurree 

V. Jibhai Vaja 

V. John 

V. Johnson 

t>. Jones 



R. 
R. 
R. 
R. 
R. 



.. 968 

167, 168, 171 

161. 162. 712 

.. 156 

.. 150 

.. 799 

.. 110 

..868 

. . 49 

90, 94, 106, 233, 385 

117, 166. 169, 702, 710 



V. Jora Hasji 6, 44, 109, 166, 

167, 168, 169, 171, 172, 397 
V. Justices of Cambridgeshire , . 2 



K. V. Kader Nasyer 
R. V. Kala Chand 
R. V. Kalee Thakoor 
R. t>. Kali Prasanno 
R. t>. Kaliyappa Oonnden 
R. V. Kallu 



R. V. Kally Chum 
R. V. Kalu Hal 
R. V Kalu patil 
R. V. Kamal Fukeer 
R. V. Kamalia 
R. V. Kangal Mali 
R. V. Kanye Sheikh 
R. V. Karoo 
R. v. Kartiok Chnnder 



345, 346, 569 

.. 716 

.. 724 

517, 618 

182, 184. 186 

318, 320 

.. 30, 110, 176 

6 Int. 

177, 178, 368 

..167 

164, 166, 168, 169 

109, 162, 163 R. V. Madho 

722, 723 R. v. Madhub Oiri 
..714 R. V. Magon Lall 
. . 2. 324, 
326. 327. 403, 406 R. t>. Mahabir 



R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 



Kazim Mnndle 

Kenilworth 

Keshub Bhoonia 

Keshnb Mohajan 

Khotab Seikh 

Khandia 

Khem 

Khukree Ooram 

KhyrooUah 

Kisto Soonder 

Koa 

Kodai Kahar 

Kola Lalang 

Koonjo Leth 

Krishnabhat 

Kristo Mundul 
Knarpala . . 
Kulnm Sheikh 
Labouohere 
Lakshman 
Lakshman Bala 
Lakshmoyya Pandaram 



Page. 

161. 163, 

538, 690, 757 
.. 353 
.. 386 
179, 180 
.. 72 
.. 714 
.. 182 
.. 719 
179, 180 



.. 713 

156, 165 

.. 18 

184, 18S 

13, 183, 185, 

716, 717 

.. 110 

.. 166 

.. 326 

.. 100 

.. 620 

181, 182, 792 



177, 

183, 716 
.. 718 
686, 868, 869 
.. 597 
.. 156 
.. 164 



Lalchand Kourah 

Lai Sahai 

Langmead 

Laugher 

Lester 

Laverson 

Lillyman 

Lingate 

Little 

Llanfaethly 

Lloyd 

Long 

Lord George Gordon 

Lord Thanet 

Luchmee Pershad 

Luckhurst .. 

Luckhy Narain 

Lnffe .. 689, 691, 592, 693 

Lukhnn Santhal . . 231 

M. J. Vyapoory Moodeliar 36. 39 

M'Cue .. .. ..283 

McDonald 41, 48, 108, 161, 162 
Madar .. .. 164 

Madhab Chandra 12. 17, 19, 

20, 606, 801 



41, 48 
.. 173 

763, 764, 765 
.. 381 
92, 167 
36, 158 
.. 61 
.. 689 
.. 714 
.. 158 

229, 231, 232 



769,770 
4 Int. 
710, 711, 712, 

713, 714 
163 



Digitized by ^OOQlC 



TABLB OF OASES CITED. 



Ixxiii 



R. 
R. 
R. 
R. 
R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

K. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 

R. 



Page. 
V. Mahomed Ibrahim . . . . 163 

e. Mahomed Hamayoon .. 719 

r. Moikn Lall . . 163 

V. Mainwaring . . 320 

r. Halapa Bin 177, 178, 183. 184, 

186, 716, 717, 773, 774. 776 
r. Malhar .. 698,711 

r. Halings .. .. 808 

r. Mallory 30. 46, 48, 49, III, 139 
r. Mania Dayal ..118 

p. Manikam .. .. 690 

r. Manning and Wife . . 17 

r. Manna 264, 762, 770, 779, 781 

c. Manna Tamoolee . . 160 

r. Mansfipld 168, 169, 319, 691, 693 
r. Mara 623, 685. 799, 868, 869 

r. Matabadal 
r. Mathews 
r. Mathara Prasad 
r. Mayadeb Gossami 
r. McQnire 
V. HoKenna 

Mead 

Meher AU . . 

Merthyr Tidvil 

Meyer 



162, 



719 

163 

.. 246 

228.460 

804, 870 

.. 66 

.. 199 



Michael Stokes 

Millen 

Mills 

Milton 

Misser Sheikh 

Mitchell . . 

Mogg 



108, 162, 294, 308 
..458 
..689 
..43 
..166 
..169 
..222 
151.421 
199, 200, 201 
. . 92 



Mohan Lall 110, 156, 156. 167, 

717 
R. e. Mohesh Biswas 179, 180, 183, 

184, 186, 715 
V. Mohima Chandra . . 713, 714 

e. Mohinddin Sahib .. 712,715 

V. Mohan Banfor 233, 714, 722, 723 
V. Mona Puna 6 Int., 29, 686, 712 



R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 



Monmohun Roy 

Moore 

Morris 

Moss 

Motee Jolaha 

Monlton Coz 



160, 163, 164 

166, 167, 797 

.. 717 

707. 709 

88. 597 

.. Ill 



Mowjan 226, 227, 229, 232, 233 



Mugapa bin 
Mukta Singh 
Mullins 
Mulu 

Mongol Dass 
Morarji Gokaldas 
Mnrlis 



..719 
686, 690 

..712 
179. 180, 226, 
227, 231 
423, 460 

.. 868 

..744 



R. V. 

R. V. 

R. V. 

R. V. 

R. V. 

R. t>. 

R. V. 

R. t>. 
R. V. 
R. V. 
R. V. 
R. r. 

R. V. 
R. V. 



V. 
V. 
V. 
V. 

167, 



R. 1). 
B. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. t». 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. r. 
R. V. 
R. V. 
R. V. 
R. r. 

B. r. 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. V. 
R. t>. 

R. V. 



Paoe. 
Mnrphy 17. 65, 312, 725, 734, 

762, 765 
Murray .. 589 

Murton ..199 

Musst. Itwarya . . 685, 869 
Musst. Jema .. .. 152 

Musst. Laohoo 164, 166. 157, 

158. 161. 166. 173 
Nabadwip Goswami 148, 162, 

175, 340, 343. 602 
Naba Kumar.. lOI, 327 328 

Nadi Chand • . . . . 690 

Naga 179, 182, 183, 184, 185, 186 
Nagla Kala 4, 161, 163, 164. 166 
Nana 48, 108, 109, 162, 165. 

166, 167, 168, 169, 170, 171, 172 
Nand Ram 233, 723, 724, 798, 799 
Narain Bagdee ..88 

Narain Tel . . 182 

Narayan 150, 151 

Nash ..620 

Narroji Dadabhai 33, 164, 156, 
158, 173. 714, 797, 798, 799, 

803, 804 
Nawab Jan 
Neville 
Newton 
Niaz Ali 
Nicholas 
Nidhee Ram 
Nilmadhub Mitter 
Ningappa . . 



714,715 

39, 115 296 

115, 122 

.. 719 

90. 94 

.. 713 

108, 160. 164 

.. 716 

Nirmal Das . . . . 182 

Nirunjnn Singh . . . . 638 

Nityo Oopal .. 117. 155 

Noakes .. .. 716 

Nobokisto Ghose . . 19. 96, 638 
Nujam Ali .. ..798 

Nur Mahomed 88, 176, 178, 326 
Nussuruddin 423, 424, 426 

Obhoy Chum .. ..711 

O'ConneU .. ..47 

Oddy .. .31 

O'Hara 7Ifi. 713. 714, 715. 

799. 804 
Osburns .. .. 41, 48 

Pagaree Shaha 161, 166, 169, 171 

Page 538 

Pahuji 177, 178 

Palany Chetty ..719 

Palmer .. 40. 43 

Paltua .. ..177 

Pancham 169, 160, 161, 163. 

166. 168, 169, 171, 172, 173 
Pandharinath 108, 109, 161. 

162, 163. 799 



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Ixxiv 



TABLE or CASES CITED. 



R. 
R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 



R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 



Paoe. 

e. Paparsani . . A2, 671 

«. Parbhudas 3 Int.. 27, 28, 36, 

66, 68, 94, 95. 282, 327, 799 



V. Parker . . 166 

V. Parmeshar Aheer . . 697, 698 

V. Parratt .. 166, 169 

V. Parridge ■■ 698 

«. Parsons . . 66 

e. Partridge .. .. .. 169 

V. Patch .. 14, 40 

i>. Payne .. .. .. 686 

V. Peacock ... .. ..233 

t). Pearoe . . . . 39 

V. Perkins .. .. ..199 

«. Perton .. .. 203 

V. Peatanji Dinsha 360, 714 

V. Petohirini .. 48, 92, 96 

V. Peter Ram .-. 46 

V. Petta Oazi .. 19, 162, 166 

V. Pherozsha Pestonji . . 689 

t). PhilUpe .. .. 46. 88. 230 

V. Philp .. ..116 

V. Phoolchand .. 326, 327 

V. Pike .. 199 

V. Pirbhn .. 177, 178 

V. Pitamber Jena 9 Int., 161, 162, 

164, 714, 798. 799, 803, 804 

V. Pitambnr Singh „. 318, 320 

V. Pitambnr Sirdar . . 30, 732 

V. Plumer .. .. 106 

V. Pohp Singh 422, 424, 603 



V. Porooaallah Sikhdar 
o. Ponnlaey . . 
V. Price 

V. Prosonno Cbundra . 
V. Proennno Coomar 
V. Pnnchanun Tantee 
V. Pyari Lall 
t). Queen's C. J.'s 
V. Radha Nath 
V. Raghn 
V. Rahimat 
V. Rai Ratan 
V. Raj Krishna 
r. Rama Birapa 
164, 166, 167, 169, 166. 167, 168. 

171, 182, 186 
V. Ramadhan Maharam .. 693 

V. Raman ..163 

r. Ramanund ..156 

V. Ramanjiyya 150, 163 

V. Ramasami Padayaohi 7 Int., 

712, 713 
V. Rama Sattu 199, 774, 798, 799 
V. Ram Chand ..183 

V. Ram Chandra . . 603, 612 



.. 19 

.. 156 

.. 6 

.. 227 

.. 724 

.. 19 

7, 8 Int.. 226 

.. 263 

. . 167. 169, 723 

.. 469 

.. 3 

160, 469 

722, 724 

7 Int., 47. 109, 



PA(iB. 

R. V. Ramchandra Oovind 28. 229. 

232. 233, 734, 799, 803 
R. p. Ram Chnnder 746, 760 751 

R. t». Ram Chum 16, 112, 166, 170, 175 
R. V. Ram Dhone 155, 156, 157. 159 

R. V. Ramgopaal Dhur . . . . 3<> 

R. V. Rami Reddi 7 Int., 226. 227. 

229, 231, 232, 233. 234 
R. V. Ramji Sajabarao ..719 

R. V. Ram Kishan . . 737 

R. V. Ram LaU . . . . . . 9 

R. V. Ramloohun Singh .. ..20 

R. V. Ram Rnchea . . 18, 19 

R. V. Ram Rutton .. ..309 

R. t>. Ram Sahoy .. ..96 

R. V. Ram Saran 177, 178, 183. 

184, 186, 326, 327, 367, 712. 

713, 714, 716, 717 
R. r. Ram Sewak .. ..683 

R. V. Ramsodoy Chuckerbntty 712, 869 

R. V. Ramswami Ifudaliar 

R. V. Ram Vayer 

R. V. Ramzan 

R. ti. Rangi 

R. V. Raoji Falchand 

R. V. Rawden 



R. 
R. 



Rearden 
Reason 



R. V. Rees 
R. V. Reeve 
R. V. Reg. of 

Court 
R. V. Remedios .. 
R. V. Remnant 
R. t>. Rhutten Ram 
R. V. Richards 
R. V. Richardson 
R. r. Rickman 
R. V. Riding 
R. V. Risdale 
R. V. Rigg 
R. V. Riley 
R. V. Robinson .. 
R. f. Rochia Mohato 
R. V. Roden 



798. 799 
.. 152 
.. 341 
.. 152 
329. 364 
. . 455 
.. 36 
168, 159. 200 

175 

157. 158 
Qreenwich County 

..129 

..686 

..790 

. . 92 

..158 

94, 102, 615. 694 

.. 51 

422. 603 

. . 42 

..226 

..771 

.. 90 

200, 229, 234 

29, 102. 103. 

615 



R. V. Rodrigues 
R. V. Rookni Kant 
R. V. Rooney 
R. V. Rosier 
R. V. Ross 
R. V. Rowton 

R. V. Rudra 

R. V. Ranjeet Sontal 

R. V. Russell 



.. 699 
.. 92 
36,51 
.. 173 

718, 719 
326, 330, 331, 
332 

192, 200 
..109 

721. 785 



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TABLE OF OASES OITBD 



Jxxv 



R. t>. Sadha Mandnl 

182. 183, 184, 185, 

R. V. Saffron Hill 

R. V. Sagal Samba 155. 

R. V. Sageena 

R. V. SahadeT 

R. V. Sakaram Maknndji 

R. r. Salemudin Sheik 

R. r. Salisbury . . 

R. F. Sama Papi 

R. V. Sami 

R. V. Samiappa .. 423, 

R. V. Samimddin 

R. V. Savage 

R. V. Scaife 

R. p.'ScamDionden 

R. r. Scott 

R. r. Seetanath Ohosal . 

R. r. Sellers 

R. r. Sewa Bhogta 

R. r. Sexton 

R. t. Shahabnt Sheikh . , 

R. V. Shankar 

R. r. Shaya 

R. V. Shaw 

R. r. Sheikh Boodhoo 

R.'r. Sheikh Bnxoo 

R. r. Sheikh Choollye 

R. V. Sheikh Kyamnt 

R. V. Sheikh Magon 

R. r. Sheikh Mustaffa 

R. c. Shepherd 

R. V. Sherrington 

R. V. Sib Chnnder 

R. r. Shiboo Mnndle 

R. r. Shippey 

R. r. Shivya 160. 421. 

R. ». Sbrimpton 

R. p. Shumffooddeen 

R. r. Siddhn 

R. r. Silverlock 

300, 
R. r. Simmonsto 
R. V. Simons 

R. V. Sitaram Vithal 5. 
R. V. Slater 
R. B. Sleeman 
S. V. Smith 
R. V. Smither 
R. V. SonaooUah 
R. r. Soobjan 
R. V. Sorob Roy 17. 

R. V. Spilsbnry . . 
R. V. Sroemntty Hongola 



Paoe. 

176, 177. 

712, 714 

716. 716, 717 

.. 386 

715. 737. 765 

112. 161. 174 

689. 690 

66. 730. 

769. 767.793 

.. 161 

... 36 

161. 164 

35. 36. 46 

424, 709. 711 

58. 201. 780 

116. 122 

200, 230 

.. 470 

.. 148 

.. 606 

.. 199 

686. 869 

.. 156 

.. 118 

.. 712 

685. 869 

176. 284. 760 

.. 117 

.. 177 

.. 668 

722. 723 

.. 30 

.. 43 

166, 620 

.. 173 

.. 714 

.. 327 

.. 40 

423, 424. 460 

.. 328 

92. 96, 597 

.. 246 

293. 299, 

304. 404. 405 

115, 118. 189 

112. 174 

421, 769, 779 

.. 669 

156, 167 

14, 200 

. 45. 711. 803 

.. 117 

110. 117 

31, 41, 43, 44 

174, 175 

.. 152 



R. 
B. 
B. 
R. 
B. 
B. 
B. 
R. 
B. 
B. 
R. 
B. 
B. 
R. 
R. 
B. 
B. 
B. 
R. 
B. 
B. 
B. 
B. 
B. 
R. 
B. 
B. 
B. 
B. 
B. 

B. 
B. 
B. 
B. 
B. 
B. 
B. 
B. 
B. 
B. 
B. 
R. 

B. 
B. 
B. 
B. 
B. 

B. 
B. 
B. 
B. 
B. 
B. 



Pack. 

Sreenath Mookhopadhia .. 724 
St. Martin's Leicester 468. 772 
.. 306 
.. 39 
.. 17 
Int.. 780 
713. 714. 716. 717 
319. 320 
.. 409 
410. 424 
.. 353 
.. 326 
.. 199 
.. 761 
.. )81 
202. 869 
45, 88 
.. 164 
156. 615 
.. 327 
.. 380 
148. 169. 175 
148. 149, 162. 169 
.. 353 
.. 90 
636, 617, 518 
66, 669. 798 
.. 262 
.. 525 
108. 
109, 162 
TaberBeld . . 324. 326 

Tukaram .. .. ..538 

Tuija . . . . . . 6. 9 

Tulsha .. .. ..620 

Turner . . 49. 325. 569. 737 

Udhan Bind ..717 

UdidPersad .. ..72 

Upchuroh .. .. 156. 159 

Uttamohand 29. 460. 769. 779 

Uzeer .. ..154. 158. 175 

Vahala Jetha . . . . 165 

Vajiram 8 Int.. 13, 34. 36. 68, 

88, 94. 95, 96, 99 102 



Staunton 

Stephens 

Sterne 

Stewart 

Stnbbs 

Subbarayan 

Sudda 

Sandar Singh 

Snrroop Chnnder 

Swendsen 

Synmber Singh 

Taj Khan . . 

Tanyavalad Shivan 

Tarini Charan 

Tattershall 

Tatya Bin 

Taytor 

Thakoor Das 

Thistlewood 

Thomas 

Thompson 

Thomhill . 

Tharbum 

Tiluk 

Tirumal 

Tolson 

Tooke 

Tribhoyan Manekohand 



Vaman 

Vanghan 

Verelst 

Vincent 

Viran 



232 

631 

625 

42 



150, 385, 421, 



422, 
424. 459 
Viraperumal . . . . 685 

Visram Babaji . . 150, 439 

Voke .. .; 90.615 

Vyapoory . . Moodelier 58, 94. 95 
Wainwright . . 47, 362 

Walker .. .. .. 114 



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Ixxvi 



TABLE OF OASES CITED. 





Page. 


R. V. Walktey .. 


..168 


R. ti. Waman 


..803 


R. V. Warden of the Fleet . . 284 


R. V. Warner 


.. 156 


R. V. Warringham 


..149, 156. 166 


R. V. Watson 


..372, 760, 793 


R. V. Watts 


..233 


R. V. Wazira 


.. 320 


R. V. Weeks 


. . 96 


R. «.. Wells 


.. 717 


R. V. Welsh 


. . 49 


R. V. Welton 


..230 


R. V. Westwood .. 


.. 36 


R. V. Whiley .. 34, 


36, 88, 93, 96, 




•119 


R. V. White 


.. 17 


R. V. Whitehead 


100, 685 


R. V. Whitworth 


.. 200 


R. V. Wickham .. 


..470 


R. V. Wild 


.. 157 


R. V. Wilkes 


.. 715 


R. V. Wilkins 


..362 


R. V. Williams .. 


36, 149, 230, 781 


R. t'. Windsor . . 


..159 


R. V. Wink 


. . 42 


R. V. Woodcock .. 


191,200 


R. V. Woodley .. 


..702 


R. V. Woods 


..743 


R. V. Woodward 


..340 


R. f. Woolford .. 


..597 


R. V. Worth 


..203 


R. V. Wrangle 


..458 


R. V. Wyatt 


38, 95, 99, 103 


R. V. Wuzir Hundul 


-.109 


R. V. Yakataz Khan 


..787 


R. t'. Yakub Khan 


..150 


R. V. YellaTaddi . . 


.. 109 


R. V. Yewin 


..760 


R. t». Young 


.. 36 


R. V. Zamimm . . 


709 719 


R. V. Zawar Husen 


..734 


R. V. Ziawar Rohman 


..761 


R. V. Zuhir 


. . 43 


R. R. Co. V. Maples 


..370 


Radford v. M' In tosh 


. . 46 


Radha ••. Rakhal . . 


.. 135 


Radha Bullab v. Kishen Gobind . . 680 



Radha BuUub v. Juggnt Chnnder 648 
Radha Chowdhrain v. Gireedhari 

Sahoo .. .. 254, 266 

Radha Chum v. Anund Sein . . 265 

Radha Chum t>. ChunderMonee 115, 351 
Radha Chum v. Kripa Sindhu .. 644 
Radha Oobind v. Inglish 668, 669, 

683, 601 
Radha Gobind v. Rakhal Das . . 136 



V.KC.K. 

Radha Jeebun v. Grees Chnnder . . 725 
Rahha Jeebun v. Taramonee Bossee 

736, 762 
Radhakant Shaha «. Abhoychurn 

Mitter .. .. ..863 

Radha Kishore v. Ilirtoonjoy Gow 647 
Radha Kissen v. Fateb Ali . . 399 

Radha Kisto v. Radha Munghi . . 553 
Radhamoni Debi v. Collector of 

Khulna .. .. ..583 

Radhan Singh v. Kanayi Dichit . . S3 
Radhanath Banerjee v. Jodoonath 

Singh .. ..562 

Radha Pyari v. Nobin Chandra . . 534 
Radha Raman v. Bhowani Prasad 

481, 495 
Radha Ramon v. Phool Kumare . . 544 
Radhey Lai v. Mahesh Prasad .. 662 
Radhika Mohun v. Gunga Narain 256 
Badhika Prosad v. Bharma Dasi .. 611 
Rae Manick v. Madhoram . . 539 

Raggett f. Musgrave . . . . 50 

Raghavendra v. Kashinath Bhat 539, 560 
Raghunath v. Hoti Lai .. 23,604 

Rahamat Ali v. R. .. .. 802 

Rahiman v. Elahi Baksh . . 481, 482 

Rahimatbai v. Hirbai .. 85,538 

Rahimbhoy Hubbibhoy v. Turner 540 
Rahim Bibi, In the maUer of . . 722 

Rahmatnlla r. Sheik Sari-nt-ulla .. 866 
Raichand Motichand >°. Narayan 

Bhikha .. ..484 

Rai Chum v. Kamud Mohan 270, 272 
Rai Isri V. R. . . 328, 331 

Rainer ». Gou'd . . . . . . 861 

Rainy v. Bravo . . 374 

Rai Seeta Kishun Dass .. ..649 

Rai Sri v. Rai Hnri . . . . 112 

Raja Babn v. Muddun Mohun .. 677 
Raja Boramaraaze v. Gangasamy 

Mudaly . . 244, 725, 799 

Raja Burdacant v. Chunder Coomar 576 
Raja Chandranath v. Ramjai 

Maznmdar . . 528. 532 

Raja Enajret v. Giridhari . . 136 

Ra^a Goundan t>. Raja Goundan 112, 217 
Rajah Kishen v. Karendar Bahadur 529 
Rajah Leelanund v. Mnsst. Basheer- 

oonissa . . . . 368, 533 

Rajah Mahendra v. Jokha Sing . . 538 
Rajah Mahesh v. Keshanund Misr . . 576 
Rajah Nilmoney v. Ramanoograh 

Roy .. .. 115. 116,604 

Rajah of Bobbili •>. Muganti China 863 
Rajah of Pittapur v. Sri Rajah Row 

Rnchi .. .. ..636 



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TABLE OF CASES CITED. 



Ixxvii 



Page. 
Rajah Rajnarain v. Jagunnath 
Pershad .. .. .. 657 

Rajah Run v. Muast. Luoho . . 70 

Rajah Udaya v. Jadublal Aditya . . 639 
Rajah Valad v. Krishnabhat . . 539 

Rajah Valia v. Ravi Vnrma . . 65 

Raja Leelanand v. Raja Mohender 
narain . . . . 533. 534 

Raja Neelannnd v. Nuseeb Singh . . 373 
Raja Nugendur v. Rughoonath 
Narain . . . . 66, 85 

Raja Peaiy v. Xarendro Nath 237. 371 
Raja Prosonno v. Romonee Boasee 718 
Rajaram v. Krishnasami . . 98 

Raja Sahib r. Baboo Bndhoo 635, 

562. 634 
Raja Sahib v. Doorgapershad 
Tewaree .. .. ..678 

Raj Coomar v. Ram Sahaye . . 533 

Rajender Narain t>. Bijai Oobind 

349, 540, 639, 659 
Rajendra Nath v. Jogendra Nath 

46. 319, 404, 567, 610 
Rajeswari Kuar v. Rai Bal . . 633 

Rajib Panda v. Lakhan Sendh 287, 

289, 290 
Raj Kishen v. Peary Mohun . . 577 

Rajkishen Singh v. Ramjoy Surma 65 
Raj Kishore v. Hureehur Mookerjee 563 
Rajkishore Nag v, Mudhoosoodnn 802 
Rajkishore Snrma v. Grija Kant 

672. 674 
Rajkissen Mookerjee v. Joykissen 
Mookerjee . . . . . . 563 

Raj Knmar v. Gobind Chunder 577. 

678, 601 
Raj Kumari v. Bama Sundari . . 285 

Raj Lakee v. Gocool Chnnder 97. 646. 662 
Raj Mohan v. Gour Mohan . . 638 

Raj Narain v. Rowsbun Mall . . 540 

Rajnarain Bose v. Universal Life 
Assurance Co. . . . . 666 

Rajoni Kant v. Asan Mullick 71 1. 713. 715 
Rakhal Das v. Denomoyi Debi . . 630 
Rakhal Das v. Indra Monee . . 378 

Rakhal Doss v. Protap Chunder 723. 724 
Rakhaldaas Moduck v. Bindoo 
Baahinee . . . . 656, 657 

Rakhmabat v. Tukaram . . . . 495 

Rakken v. Alaguppudayan 475, 476, 

477, 478, 480, 481. 487 
Ralli V. Kasamalli Fazal . . 463 

Ralli V. Gao Kim 33. 373. 381. 304 

Ramabai v. Ram Chandra Shivram . . 631 
Rama Karan Sing v. Mangal 
Sing .. .. .. 2», 728 



Page. 
Ramakrishna v. Namasivaya .. 552 

Ramakrishna v. Snbbakka . . 550 

Ramalakshmi Ammal v. Sivanan- 

antha Perumal 3 Int., 65. 84, 367, 368 
Ramalinga Chetti v. Raghunatha . . 269 
Ramalinga Pillai v. Sadasiya Pillai 16 
Ramamani Ammal v. Kulanthai 

Natohear . . . . 356, 367 

Ramanadamisar Aiyar v. Rama 

Bhatear .. .- ■. 354 

Ramanath Doss v. Boloram Phookun 665 
Ramanatb Roy v. Rally Proshad . . 266 
Raman v. Secretary of State for 

India 32,248 

Ramani Pershad v. Mahanta Adaiya 144 
Raman Nayar v. Subramanya Ayyar 722 
Ramanugra Narain v. Mahasundur 

Kunwur .. .. •. 86' 

Ramasami v. Appavu 65. 69. 71, 

75, 76, 82, 86, 280 
Ramasami v. Lokanada . . 527, 669 

Ramasami ». Ramu . . • . 689 

Ramasami Ayyar v. Vengidusami 

Ayyar • • 346 

Ramasami Bhagavathar v. Nagen- 

drayyan . . . . 346, 346 

Ramasami Chetty v. Ramasami 

Chetty .. .. ..860 

Ramasami Gaunden r. R. 711. 713. 715 
Ram Autar v. Raja Muhammad . . 130 
Ramayya v. Sivayya . . . . 660 

Ram Bahabur v. Lucho Koer . . 74 

Rambaksh v. Durjan . . . . 484 

Ram Baksh v. Kishori Mohan 123. 736 
Ram Bandhu v. Kusu Bhattu .. 600 
Rambert v. Cohen . . . . 465 

Rambhat v. Bababhat . . . . 674 

Ram Bhusan v. Jebli Mahto 249. 250 
Ram Bromo v. Kaminee Soondaree 611 
Ram Chand v. Hanif Sheikh . . 743 

Ramchandra Apaji ». Balaji Bhaurav 576 
Ramchandra Bhaskur v. Raghunath 

Bachaset .. ..271 

Ramchandra Chowdhry v. Braja- 

nath Sarma . . . . 580 

Ramchandra Narayan v. Narayan 

Mahadev . . . . . . 558 

Ramchunder Chuokerbutty v. Giri- 

dhur Dutt . . . . . . 567 

Ram Chunder v. Chunder Coomar 544 
Ram Chunder v. Jugesh Chunder 

218, 219. 696, 674 
Ram Chunder v. Hari Das 97. 649. 662 
Ram Chunder v. Bunseedhor Naik 

238, 410, 411,1432, 433 
Ram Coomar v. Beejoy Gobind 556, 570 



Digitized by ^OOQIC 



Ixxviii 



TABLE OF 0ASB3 CITED. 



Paob. 
Ram Coomar f. Debee Pershad . . 563 
Ram Coomar r. Kishori . . . . 865 

Ram Coomar v. Macqneen 654, 656, 

667. 665 
Ram Coomar v. Ram Sahaye . . 608 

Ramclas v. Bhagwat Dass . . 530 

Ram Das v. Official Liq., Cotton 

Ginning Co. 105. 106, 246, 248, 

260, 603. 801 
Ram Dayal v. Madan Mohan . . 4 

Ram Dhone v. Ishanee Dabee . . 546 

Ramdhun Mandul v. Rajbuliab 

Faramaniok . . 724 

Ram Doolal v. Radaha Nath . . 476 

Ram Dayal v. Heera Lali . . 475 

Ram Doyal v. Ajoodhia Khan . . 16 
Ram Dutt v. Mahender Prosad . . 552 
Ramen Clietty v. Mahomed GSouse . . 861 
RamesBur Persad v. Koonj Behari 69, 73 
Rameswar Koer v. Bharat Pershad 

358. 371. 466. 529 
Ramfal Shaw v. Biswaoath Man- 

dal .. .. ..686 

Ram Gobind v. Syed Hossein . . 544 

Ram Gopal >■. Blaquiere . . 634 

Ram Gopal ti. Bullodeb Bose . . 546 

Ram Gopal V. Gord Stuart & Co. 368, 373 
Ram Gulam v. Ram Behari 544, 611 

Ram Gutty v. Mumtaz Beebee 540, 730 
Ram Hart v. Trihirara . . . . 544 

Ramindur Deo v. Boopnarain Ghose 657 
Ramjadoo Gangooly v. Luckhee 

Narain .. .. .. 373 

Ramjeebun Chuckerbutty v. Persad 

Shar .. .. .. .. 554 

Ramjeebun Serowgy v. Rees . . 769 

Ramjiban Serowgy t>. Oghur Nath 

29. 467. 468. 484, 493, 494 
Ram joy Karmokar, In the matter of 

96, 597 
Ram Kant v. Brindabun Chunder . . 349 
Ramkisto Paul v. Hurrydoss Koondo 238 
Ram Krishna f. Surfunissa Begum 530 
Ramlakhan Rai v. Bakhtaur Rai . . 639 
Ramlal v. Saltanat Bag . . . . 868 

Ramlal Chundra t*. Gobinda Kar- 
mokar . . . . 495 

Ram Lall v. Kanai Lai 634, 661 

Ram Lall v. Kishen Chunder . . 657 
Ram Lall v. Rivers Steam Naviaga- 

tion Co. .. .. ..688 

Ram Lall t>. Tara Soondari . . 241 

Ram Lall t>. Tula Ram . . 285 

Ramlochnn Choudhry v. Joy Doorga 568 
Ram Lochun v. Vnnopoorna Dassee 

605, 608 



Pack. 
Ram Mohinee v. Pran Koomaree .. 656 
Ram Mohun v. Jhupproo Dass .. 381 
Ram Monee v. Aleemoodeen 657, 577 
Ram Narain r. Babu Singh . . 868 

Ram Narain v. Mahomed Hadi . . 531 
Ram Narain v. Mohesh Chunder 254, 2oo 
Ram Narain v. Monee Bibee 217 

Ram Narain v. Ramcoomar Chunder 72 
Ram Nath v. Lachman Rai . . 551 

Ram Nundan v. Maharani Janki . . 5.'>0 
Ram Nursing r. Tripoora 
Soonduree . . . . 244 

Rampal Singh t'. Murray A Co. . . 536 
Ram Persad v. Ranee Phoolputee 686. 587 
Ram Persad v. Shiva Persad . . 658 

Ram Pershad v. Lakpati Roer . . 543 
Ram Pershad v. Najbunsee Koer . . 546 
Ram Pershad v. Sbeochum 642, 544 
Ram Pertab v. Marshall . . . . 648 

Ramphul Singh v. Deg Narain . . 551 
Ram Prasad v. Raghunandan Prasad 

368. 629, 604 
Ram Prosad v. Lakhi Narain . . .559 

Ramprotab Misser v. Abhilak 
Hisser . . . . . . 549 

Rampyarabai v. Balaji .. 203, 238 

Ram Ranjan v. Ram Narain74, 78, 

82,83 
Ram Ratan v. Nandu . . . . 536 

Ram Ratnn v. Shew Nandan . . 646 

Ram Rutton v. Furrookoonnissa 
Begum . . . . 576 

Ram Rutun v. Bunmalbe Dass . . 549 
Ram Sarup v. Sital Prosad . . 246 

Ramsbotham v. Senior . . . . 700 

Ramsbottom v. Mortley . . 456, 458 

Ramsbottom v. Tunbridge 466, 463 

Ramsden v. Dyson . . 648. 649. 655 

Ram Shahai v. Sanker Bahadur . . 724 
Ramsoonder Sandial v. Raja Anund 667 
Ram Soondnr v. Akima Bibee . . 354 
Ram Surun t>. Mussmt. Pran 7, 8 Int., 

188, 636, 667. 661 
Ranchhoddas Krishna v. Bapu Narhar 

4, 63, 66, 68. 69, 74. 268 
Ranchod Morar v. Bezanji Eduljee 272 
Ranee Bmamun v. Hnrdyal Singh 378 
Ranee OojuUa v. Gholam Mostafa 724 
Ranee Radha v. Gireedharee Sahoo 45 
Ranee Shomomoyee v. Watson &Co. 576 
Ranee Shurut t>. Collr. of Hyen- 
singh . . . . . . 561 

Ranee Snrmoyee v. Maharajah Sut- 
tee Chum .. .. 367 

Ranee Sunit v. Rajender . Kishore 354 
Ranee Tillessuree v. Ranee Asmedh 676 



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TABLE OF CASES CITED. 



Ixxix 



Page. 
lUngachariar v. Yegna Dikshatur 16 
Rangama t>. Atchama . . 3S6, 664 
Rangammal v. Venkataohari 292, 658 
Ranga Rau v. Bhavayammi 361. 609. 863 
Rangasami Beddi v. Guana Saman- 

tha .. .. 346,656 

Rangasvami v. Kritna . . . . 635 

Rangibhai Kaliandas v. Vinayak 

Vishnu .. .. ..646 

Rango Balaji v. Mudiyeppa 667, 673 
Rani Mewa v. Rani Hulas 450, 649, 661 
Rani Monmohini v. Robert Watson 

i Co. .. .. ..266 

Rani Srimati v. KhagendraNarayan 134 
Ransordas Bhogilal v. Kesrising [66, 87 
Rao Karan v. Baker All . . . . 668 

Rao Knmn t>. Fyazalee Khan . . 646 
Rao Knnin v. Mehtab Koonwer . . 662 
Rapp V. Latham . . 131 

Rash Behari v. Haramoni Debya.. 

629, 631, 656 
Rash Behari v. Pitambori Chow- 

dhrani .. .. 660, 602 

Rashmonee Dabea v. Harronath 

Roy .. .. .. ..566 

Rassonda Rayar v. Sitharama Pillai 

664, 683 
Ratan Koer v. Chotey Narain .. 368 
Ratan Kuar v. Jiwan Singh .. 676 

Ratan Lall v. Jadu Halsana . . 656 

RatoUff V. RatcHS . . 246 

Rattonbhai v. Chabildaa .. 217 

Radji Vinayakrad r. Lakshmibai . . 669 
Rawaon v. Haig . . . . 47 

Rawson v. Walker .. .. 466 

Rawstone v. Corporation of 

Preston .. .. ..702 

Rayner v. Pearson . . . . 126 

Rayner v. Rayner 603, 616, 619 

Rsji-nn-nissa v. Sabir Husain 866 

Read r. Gamble . . . . . . 468 

-Reazooddeen Mahomed v. MoAI- 

pine .. .. .. ..243 

Reazoonissa v. Bookoo Chovdhrain 368 
Redfem v. Bedfem . . . . 706 

Reece p. Trye . . . . . . 701 

Reed v. James . . . . . . 737 

Reed v. King .. ..764 

Reed v. Lyon . . . . . . 674 

Reedoy Kristo v. Puddo Loohun . . 7 
Reere v. Whitmore . . 263 

Reeves v. Lindsay . . . . 626 

Reid V. Batte . . 466, 457 

Reid V. Hoskin . . . . 126 

Reigaid v. McNeill . . 648 

Remiel t>. Spyme . . . . 699 



Page. 
Rennie v. Gunga Narain . . . . 666 

Rennie v. Robinson . . . . 676 

Retriever v. Drachenfels . . 3O6 

Revell, Ex parte .. . . 139, 287 

Reynolds, Ex parte .. .. 708 

Rhidoy Kristo v. Nobin Cbunder . . 634 
Rioe V. Howard . . . . . . 765 

Rice V. Rioe .. .. ..661 

Rioh V. Jackson . . . . 17 

Richards v. Black .. .. 623 

Richards v. Gellatly . . 49, 50 

Richards v. Morgan .. .. 139 

Richards v. Richards .. ..619 

Richardson v. Dunn . . . . 50 

Richardson v. Peto . . 129 

Richardson v. Rowntree . . . . 688 

Rickets v. Gumey . . . . 721 

Ridley v. Plymouth Baking Co. . . 126 
Riggs-Miller v. Wheatley .. 206 

Rishton v. Nesbit . . . . 218 

Rist V. Hobson . . . . . . 627 

River Steam Co., In re . . 146, 146 

Bivett-Camac v. New Mofusail Co. 

647, 649, 660 
Roach V. Garvan . . . . 277 

Robb V. Starkey . . . . 380 

Robert e. Phillips ..399 

Robert Watson & Co. «. Mohesh 
Narain . . . . 45 

Roberts v. Doxon . . . . 734 

Roberts Henderson, In re good* of 431 



Robins v. Maidstone 
Robinson v. Davies 
Robinson v. Markis 
Robinson v. Robinson 
Robson V. Att.-Genl. 
Robson V. Kemp 
Robson V. Warwick 
Rochefoucauld v. Boustead 
Roe V. Dey 
Roe V. Ferrars 
Rogers v. Allen . . 
Rogers v. Cnstance 
Rogers v. Hadley 
Rogers v. Pilcher 
Rogers Sons St, Co. t;. 
Roghnni Singh v. B., 



.. 352 
.. 32 
.. 229 
116, 123 
.. 319 
.. 701 
.. 702 
.. 480 



t 



114,663 
..70 
..392 
..286 
672, 677 
Lambert ..681 
. 294,307, 
309, 421, 770, 779, 780 
Rohimuddi v. R. . . . . 20 

Rookhini Kant v, Sharikatunnissa 352 
Rookia Bano v. Roberts . . . . 721 

Roopchand Bhukat v. Hur Kishen 72 
Roopmonjoree Chowdhramee t>. Ram 
LaU .. .. .. 378.385 

Boop Narain v. Gungadhnx Peiahad 

647, 687 



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Ixxx 



TABLE OF OASES CITED. 



Page. 

Roop Ram v. Saseenm Natb 532, 640 
Rose V. Bryant .. .. .. 208 

Boselle v. Buchanan .. .. 702 

Roahun Dosadh v. R. . . . . 327 

Hoshun Jahan v. Enaet Hoosein .. 617 
Ross V. Bruce . . . , 468 

Ross V. Gibbs 690. 690 

Ross V. Hill . . . . . . 614 

Rouch v. G. W. R. .. 44,61 

Roushan Bibee v. Hurray Kristo.. 

239, 242 
Ronsbun Khatoon v. Collr. of 

Mymensingh . . , . 667 

Rousseau v. Pinto . . 16, 680 

Rontledge t>. Camithers . . . . 689 

RowcliSe V. Egremont 707 

Rowe V. Brenton . . . . 734 

Rowshim Bibee v. Shaikh Kureem 657 
Rowthakonni, In re .. 537 

Royal Exob. Ass. Corp. v. Tod . . 46 
Roy Dhunput v. Prem Bibee . . 722 

Royes Hollab v. Hudhoo Soodun . . 664 
Roy Odyte v. Ubburun Roy . . 676 

Roy Rashbeharee v. Roy Gouree 667 
Rozario V. Ingles 590, 694, 687, 758 

Ruck V. Ruck . . . . . . 277 

Ruokmaboye v. Lulloobhoy . . 2 

Rudge V. UcCarthy .. 466 

Rnghoobur Doyal v. Maina Koer . . 8 
Rugfaoonatb Dass v. Lnohmee 
Narain .. .. 662 

Ruknadowla Nawab v. Hnrdwari Mnl 

632 
Rungo Lall v. Abdool GuSoor 

574, 576, 673, 674 
Rungo Monee v. Raj Coomaree . . 135 
Rnnjeet Ram v. Mahomed Waris . . 647 
Runjeet Bam v. Goburdhun Ram . . 577 
Runjit Singh v. Bunwari Lai . . 659 

Rup Chand v. Sarbessur Chundra 

633. 636. 637, 640, 642, 670, 679 
Rup Sing t>. R. . . . . . . 328 

Rush <;. Peacock ..122 

Rush V. Smith . . 737, 744 

Russell V. Jackson 695, 696, 697, 698 

Russell V. Langstoffe .. .. 680 

Russell V. Symthe .. .. 619 

Russelll t>. Watte ..664 

Rustomj Burjorji v. Kessowji Naik 722 
Ruston's Case ..687 

Ruttancy Lalji v. Pooribai . . 638 

Ruttoo Sing^ t>. Bajrang Singh 631, 633 
Ryall V. Hannam . . 514 

Ryan t>. Sams . . 601 

Ryder t>. Wombwell . . 13, 646 

Ryrie v. Shiv Shankar 684, 701, 704 



PA(iK. 



s 



S. E. Ry. Co. V. Warton . . 661, 062 

Sabbaji v. Shidappa .. 604 

Saboo Bewa v. Nahagan Maiti . . 009 

Sadabart Prasad v. Foolbash Koer . . 550 
Sadakat Hossein v. Mahomed Yusnf. . 617 
Sadashiv v. Dinkar . . . . 551 

Sadasiva Pillai v. Ramalinga PiUai . . 639 
Sadashiv Moreshvar v. Hari 
Moreshvar . . . . . . 659 

Sadhama Upadhya v. R. .. .. 090 

Sadhu Churn r. Basndev Parbeary 034 
Sadhu Sahu v. Raja Ram . . 399 

Sadhu Sheikh v. R. 628,638,719,802 
Sada V. Baiia . . . . . . 636 

Sagurmull v. Marraj . . . . 239 

Sah Lai v. Indarjit . . 470, 490 

Saheb Ferhlad v. Baboo Budhoo . . 662 
Sahib Ferhlad v. Doorga Fershad . . 557 
Sahib Mina v. Umda Khanum . . 566 
Sajid Ali v. Ibad Ali . . . . 346 

Sakharam Shankar v. Ram Chandra 862 
Salamat Ali v. Budh Singh 97, 649 

Salimatul Fatdma v. Koylashpoti 

Narain .. 343, 436 

Salkeld v. Johnson . , , . 1 

Salter r. Melhuish . . . . 607 

Samar Dasadh v. Juggul Kishore 

237, 244, 410 
Sambayya v. Gangayya .. 361, 386 

Sambhnbhai Karsandas v. Sbivlaldas 
Sadashirlaldas . . . . 865 

Sanderson v. Coleman . . . . 679 

Sandilands, Se .. . . . . 625 

Songram Singh v. Raj an Bibi .. 219 

Sankaralingam v. Sabban Cbetti . . 66 
Santacana v. Ardevol . . . . 802 

Santappayya v. Rangapayya . . 659 

Sarabjit Partab r. Inderjit Partab 

315 
Sarah Hobson's Case . . I7, 18 

Saraswati Dasi v. Dhanput Singh 

244, 249, 250 
Sarat Chunder v. Gopal Chunder 
641, 642, 643, 644, 649, 661, 662, 

666. 669, 663, 664, 668 
SardarmuU v. Aranvayal . . 286, 286, 

287, 291 
Sardhari Lall, In re . . . . 9 

Sariatullah v. PramNath .. 66, 314, 316 
Sarkies r. Prosonnomoyee Dossee . . 662 
Saroda Prosad v. Luchmeepnt Sing 

602, 624 
Saroda Prosad t>. Mahananda Roy . . 543 
Saroda Soonduree t>. Muddnn Mohun 

566, 566 



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TABLE OF CASES CITED. 



bcxxi 



Page. 
Statiy VeUider v. Sembyoutty 

V«y«Iie 618 

Sukaohellum Cbetty v. T. Gobind- 
•ppa .. ..662 

S«toowri Ghosh v. Secy, of State 

254. 255, 256 
Satb Chonder v. Mohendro Lai 217, 247 
Satya Moni v. Bhaggobatty Churn . . 531 
S«fye«h Chonder v. Dhunpat Singh 

471 
Stonderson v. Judge .. 103, 105 

Skvage V. Foster . . . . 646 

Stvt V. Obhoy Nath . . 566 

StvUppa t>. Deyohand .. .. 013 

Stwj«r V. BuchmoTe . . 700 

Say* Hnhammad v. Fatteh 
Mohammad . . . . 688 

Sayad Gulamali v. Hnjabhai . . 379 

Sayad N^untula v. Nana ralad .. 659 
Ssjrer v. Gloesop 261, 311, 313. 381 

Sayer v. Kitchen . . . . 788 

Sayynd Azbur v. Bibee Ultaf . . 628 

Scales r. Key .. ..601 

Scaimanga v. Stamp . . 4 Int. 

iUmaltz V. Avery . . . . 667 

Sehoke v. Chadwick .. 134, 211 

Seholes v. Hilton . . 720 

Soholey v. Walton .. ..122 

Seholfield v. Earl of Londesborough 680 
Sehnmaok v. Look .. .. 126 

Schwalbe, The .. ' .. ..34 

SooUv. Clare ..115 

Seott V. Jones . . . . 468 

Soott V. London Dook Co. ..614 

Scott V. HarshaU . . 139 

Scott e. Sampson . . 110, 330 

Soolly o. Lord Dondonald .. 639 

Seal V. Claridge .. .. .. 399 

Sealy p. Ramnarain Bose .. 568 

Seaman v. Netherclift 722, 756 

Sears v. Lyons . . . . 62 

Secretary of State r. Krisbnamoni 
Gopta . . . . 584, 601 

Seey. of State for Lidia in Council 

V. Dattatraya Nayaji . . 655 

Seey. of State for India v. Shanmu- 

gsraya MudaEar . . 346 

Seetharama Baju v. Bayanna Pantuln 

676. 678 
Selby V. HUb . , . . 721 

Seiam Sheikh v. Baidonath Gbatak 630 
Sellai V. Norman . . . . 104 

Selwyn, 7» re .. .. .. 61P 

Seuundan v. KoUaJdram . . 380 

Seshgin Shankabhoy *. Salvador Vas 666 
Seton V. A. S. Bijohn . . 530 



Paob. 
Seton Laing Co. v. Lafone 651, 652, 

660. 663, 664 
Seraram Aiyar t>. Samn Aiyar . . 533 
Siviaji ^jaya v. Chinna Nayana 

356, 357, 368 676 
Sewall o. Evans .. .. .. 619 

Shadal Khan v. Aminullah Khan 72, 76 
Shadhoo Singh v. Ramanoograha 
Lall .. ..351 

Shafiq.un-nissa v, Shaban AH . . 20 
Shah Golam v. Musat. Emanun 142, 530 
Shah Oulam v. Mahommad Akbar . . 676 
Shahebzadee Shahunohah v. Fergus- 
son . . . . . . . . 409 

Shah Makhanlal v. Sri Krishna . . 487 
Shah Mohsum t>. Bilasoo Koer .. 493 
Shaik Abdulla t>. Haji Abdulla . . 666 
Shaik Fyez t>. Omedee Singh . . 389 

Shaik Hameedoolah v. Gendu Lall 352 
Shaik Hanif v. Jagabaddhu Shaha . . 669 
Shaik Hnsain v. Grovardhandas 

Purmanandas . , . , . , 442 

Shaik Komuroodeen v. Shaikh 

Honye .. .. ..188 

Shaikh Koodoo toolah v. Mohinee 

Mohun 66, 279 

Shaikh Kuleemooddeen v. Ashruf 

Ali 513 

Shaikh Omed v. Wibhee Ram . . 3 

Shaikh Shurfuraz t>. Shaikh Dhunoo 

115, 116. 117 
Shaikh Walee v. Shaikh Kumur . . 489 
Shama Charan v. Ifadhub Chandra 559 
Shama Chum V. Abdul Kabeer ..581 
Shama Chum t>. Khettro Moni . . 565 
Shama Soonduree v. CoUectorof 
Maldah . . . . . . ggl 

Shambati Kobri v. Jago Bibee ';93, 587 
Shambu Nath v. Ram Chandra 379, 460 
Sham Chand v. Kishen Prosad ..631 
Sham Chand v. Ramkristo Bewrah 258 
Sham Lall v. Amarendro Nath . . 660 
Sham Lall v. Anuntee Lall . . 770 

Sham Lall v. Radha Bibee . . 219 

Sham Narain v. Admr.-Genl. of Ben- 
gal .. .. .. 5'*« 

Sham Narain v. Court of Wards . . 576 
Shamsh-ul-jahan Begum v. Ahmad 

WaU .. ., ..486 

Sham Sundar v. Achhan Kuar 546, 548 
Shankar Murlidhar t>. Mohan Lai . . 672 
Shankarrao v. Ramjee . . 3I3 

Shan Mull v. Madras Building Co. 94 
Sharfudin v. Gobind 44, 446, 446 

Sharo Bibi v. Baldeo Das . . 46I 

Sharoda Moyee v. Nobin Chunder 634 



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Ixxxii 



TABLE OF CASES CTTBD. 



Page. 
Sharp V. Birch . . . . 39» 

Shsrpe v. Lamb . . . . . . 380 

Shaw V. Beok . . . . . . 526 

Shaw t>. Ctonld . . . . . , 227 

Shazada Mahomed r. Daniel Wedge- 
berry 410.416 
Shearman v. Fleming . . 607 
Shedden v. Att.-Oenl. . . 220, 286 
Shedden v. Patrick . . 216, 221 
Sbeeb Chnnder v. Brojo Nath . . 513 
Sheeb Narain v. Chiddam Doss . , 563 
Sheen v. Bumpstead 89, 99 
SheetuI Pershad v. Janmejoy Mullick 

31,794 
Sheikh Abdnlla v. Shek Muhummnd 387 
Sheikh Akbar ». Seikh Kham 862, 863 

Sheikh Ashraf v. Ram Kishore . . 566 
Sheikh Faizulla o. Ramkamal Mitter 341 
Sheikh Ooburdhnn v. Sheikh Tofail 554 
Sheikh Hossein v. Sheikh Mnnmd 636 
Sheikh Ibrahim v. Parrata 145, 349, 

367. 376, 866, 866 

Sheikh Imdad v. Mnsst Koothy .. 98 

Sheikh Mahomed v. Kalee Peishad . . 866 

Sheikh Mohammed v. Jadunandan 

Jha . . . . . . 561, 562 

Sheikh Parabdi v. Sheikh Mohamed 

476 
Sheikh Rahmatollah v. Seikh SarituUa 865 
Sheikh Rosban v. Nobin Chnnder 559 
Sheikh Sahab v. Lalla BissesBur . . 663 
Sheikh Saltan v. Shekh Ajmodin 346. 346 
Sheikh Tenoo, In the maUer of, 191, 199 
Sheikh Torab ». Sheikh Mahomed 564 
Shelbronne v. Icchiquin . . . . 491 

Sheldon t>. Benham .. .. 617 

Sheobarui v. Bhairo Prasad . . 279 

Sheo Golam v. Beni Prosad . . 639 

Sheo Nath v. Sukh Lall . . . . 868 

Sheopargash Dube v. Dhanraj Dube 661 
Sheoprakash Singh v. Rawlins, 612, 762 
Sheo Prosad v. Jung Bahadur .. 652 
Sheo Prosad v. Udai Singh . . 662 

Sheo Ruttun v. Gour Beharee . . 644 

Sheo Ruttun t>. Net Lall 661. 602 

Sheo Shankar v. Ram Sewak . . 648 

Sheo Snhaye v. Goodnr Roy, 242, 364 
Sheo Sham v. Ram Khelawan .. 121 
Shepherd v. Payne . . 86 

Sheru Sha t>. R. . . . . 762, 770, 779 

ShibesBonree Debia v. Mothoora Nath 648 
Shib Narain v. Shankar Panigrahi 640 
Shibo Prosad, In matter of the peti- 
tion of . . . . 668. 669 

Shiboeoondttri Debia v. Syed 
Mahomed .. .. .. 604 



Paoe. 
Shib Pershad v. Promothonath Ghose 

238. 243 
Shib Singh v. Mukat Singh . . 635 

Shiddapa r. Irara . . . . 860 

Shiddeshwar v. Bamchandrarav .. 663 
Shields v. Boucher . . . . 218 

Shields v. Wilkinson . .529, 636, 670 

Shilling t>. Accidental Death Co . . 362 
Shimbu Nath v. Qyan Chaad . . 280 

Shiu Golam v. Baran Singh 642, 643, 611 
Shivalingaya v. Nagalingaya .. 639 

Shirappa v. Shidlingappa . . 20 

Shirram v. Narayaa . . . . 636 

Shookram Sookul v. Bam Lai 373, 

374, 378. 380, 386 
Shore o. Bedford .. ..699 

Shore v. Wilson 461, 508, 515, 616, 618 
Shoshee Mohnn v. Ankhil 542. 645 

Shoshi Bhnsan v. Girish Chnnder 

244, 247, 249, 250, 411 
Shree Mohant v. Coimbatore Spining 

and Weaving Co. . . . . 610 

Shrewsbury t>. Blount 89, 90 

Shridhar Vinayak v. Narayan . . 270 
Shristeedhur v. Kali Kant . . 674 

Shropshire Union Bys. and Canal Co. 

V. Qaeen .. '..661 

Shumboo Chunder v. Modhoo Kybur 

114, 284 
Shnmdan Ali v. Hothooranath Dutt 664 
Shums Ahmed v. Goolam Mohee- 

oodeen .. .. .. 670 

Shunker Bharati v. Vnikapa Naik 548 
Shusee Mookhee v. Bissessuree Debee 

253 264 
Shnstee Chum, In the tnaUer of 
Shyama Charan v. Hems Hollah 

474. 470, 496 
Shyamsnand Das v. Rama Kanto 

70, 217. 346 
Sia Dasi v. Gur Sahai . . 649, 669 

Sibo Sundari v. Hemangini Debi 398 
Siohel V. Lambert .. ..589 

Sidapa v. Paneakooty .. .. 546 

Sidgier v. Birch .. ..721 

Sievewright v. Archibald .. 464 

Sikher Chand v. Dulputty Singh 

540, 547, 662 
Silbeck v. Garbett .. 103. 106 

Simmons o. London, etc.. Bank . . 126 
SimmoDS v. Mitchell .. 296 

Simon v. Anglo-American Telegraph 

Co. . . . . . . 667, 681 

Simon EUas v. Jorawar Mull .. 630 
Simpson v. Margitson .. 618 

Simpson o. Robinson . . 49, 61 



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TABLE OF OASES CITED. 



Ixzziii 



Page. 
Sinclair v. Baggalay . . . . 626 

Sinclair v. Sinclair . . . . 277 

Sinclair v. Steveiuon . . 380, 392 

Sindh Ponjab and Delhi Bank v. 

Modsoodon Chowdhory . . 660 

Sirdar Kuar v. Chondrawati . . 863 

Sital Pershad r. Monohar Das 112, 134 
Sital Prasad v. Parbhu Lai . . 686 

Sitanath Dass v. Mohesh Chnnder 232 
Sitanath Koer v. Land Mortgage 

Bank of India .. .. 662 

Sitapathi Nayndn v. B. .. 
Sita Ram v. Amir Begum . . 270 

Site Ram v. ZaKm Singh 660, 661 

Siraganga v. Lakahmaaa . . 660 

Sivanananja Perumal v. Athilakahmi 

Ammal . . . . . . 66 

SiTanananja Pemmal v. Mnttn 

Bamalinga 84, 86 

Sirs Bam v. Ali Bakah . . 661, 668 

Sitaram Krishna o. Daji Devaji . . 671 
Sirasaokara MndaU v. Porati Avieri 

660 
Stvasnbramanya v. Seoy. of State 

for India . . 214, 216, 222. 411 

Skaife v. Jackson .. 122, 661 

Skinner v. Orde .. .. .. 631 

Skinner k Co. v. Ranee Shnma .. 634 
Skinner & Co. v. Shew ft Co. . . 43 

Slack V. Buchanan . . . . 121 

Sladen. In re 431,436 

Slater v. Lawson . . 131, 138 

Slatterie v. Pooley . . 144 

Slaymaker t>. Oundacker's Ex. .. 131 
Sleeper v. Van Middlesworth ..601 
Sly t>. Sly .. .. ..211 

Small V. Naime . . 229, 746 

Smart «. Bayner . . 626 

Smith V. Anderson . . 236 

Smith V. Blake . . . . 206, 208 

Smith r. Brownlow .. .. 222 

Smith r. Chadwick .. .. 666 

Smith V. Cramer . , . . 61 

Smith r. Daniell ..697 

Smith V. E. L Co. . . 692 

Badik V. Fell . . 697 

Smith V. HMiderson .. 619 

Smith V. Hoghea 99, 688 

Smith V. Keal 26 

Smith t>. Lndha Ohella 7 Int, 87, 

497, 499.617,619 
Smith V. Lyon . . . , . . 132 

Smith V. Martin .. .. .. 362 

Smith V. Uokhnn Hahtoon . . 666 

Smith V. Sainabory . . . . 312 

8mlth ». Smith , . 184, 136 

ir, US 



Paoe. 
Smith V. Tayler . . . . 187 

Smith V. Whittingham ..133 

Smith V. Wilkins . . . . 38 

Smith V. Wibon ..618 

Smout V. Ubery . . . . 674. 601 

Snowball v. Goodrioke . . 139 

Sobhag Chand v. Bhaiohaad . . 136 

Sobhandri Appa v. Sriramuln .. 130 

Soharuddin Saskar «. B. . . . . 709 

Soim Padmanath v. Narayanrao .. 612 
Solano V. Lallaram . .666, 664, 667 

Solomon V. Bitton .. .. 797 

"Solway, "The .. 114, 126 

Somangonda v. Bharmangonda .. 643 
Somar Doeadh v. Juggul Kishori 

245. 247 
Somasnndara Hndalay v. Dnrai- 
sami Mudaliar . . . . . . 462 

Somn Onmkkal v. Bangammal 134, 

864, 866 
Sonaollah t>. Imamooddeen . . 639 

Sonatun Qhose v. Moalrie Abdul . . 663 
Sonatun Shaha v. Dino Nath 398, 400 
Soobheddnr Doasee v. Bolaram 

Dewan .. 643, 611 

Soojan Bibee V. Aohmut AH 112,, 

113, 121, 188. 189, 232 
Sookram Uisser v. Crowdy 49, 286 

Sooltan Ali v. Chand Bibee 116, 116, 

351 
Soonatun Saha v. Ramjoy Saha 361, 

676, 681 
Soondur Monee v. Bhoobun Hohun 606 
Sooraj Kant v. Khoodee Narain 16, 

689 
Soorendronath Roy v. Musst. 

Heeromonee . . 66, 86 

Sooriah Row v. Cotaghery Booohiah 

629. 604 
Soorjo Coomar v. Bhugwaa Chnnder 

466. 466. 866 
Soorjomonee Dayee t>. Suddanund 
Mohappatter .. ..269 

Soorjo Narain v. Bissambhur Singh 3 
Sooromonian Setty v. Heilgers . . 486 
Soonith Soonderee v. Brodie .. 631 
Sorabjee Vacha v. Koovurjee Hanik- 
jee ., .. .. ..238 

Soroop Chunder v. Troylokho Nath 668 
Sonthwark Co. v. Quick 696, 703, 704 
Sowdamanee Debya v. A. Spalding 492 
Spargo V. Brown .. 107, 111 

Spence v. Stuart .. .. 721 

SpencUey v. DeWillott .. 38, 736 

Spencer v. Billing .. 390, 734 

Spencer v. Williams . . . . 668 



Digitized by 



^Joogle 



Ixxxiv 



TABLE OF CASES OITBD. 



Paob. 

Spicerv. Cooper .. ..618 

Spiers v. WiUison ... . . 467 

Sreekant Bhnttaoharjee r. Raj 

Narain .. .. 444 446 

Sree Mahant v. Coimbatore Spinning 

and Weaving Co. . . • • 647 

Sreeman Chunder v. Gopal Chnnder 

367, 632, 027 
Sreemntty v. Lnkhee Narain .. 647 
Sroemutty Debia t>. Bimola 

Soondnree 188, 667 

Sreemntty Dossee v. Ktamber 

Pondah .- •• ..349 

Sreemntty Gour v. Huree Kiahore 

378, 381 
Sreemntty Mohnn v. Saral Chnnder 

646, 646, 794 
Sreemntty Oodoy v. Bisonath Dntt 

388, 411 
Sreemntty Phoonee v. Gobind 

Chnnder 403, 406 

Sreemntty Soorjeemoney v. Deno- 

bnndooHnUick ■• 602 

Sreenath Mnndle v. SieerMn Bajpnt 724 
Sreenath Nag v. Mon Mohinee . . 188 
Sreenath Roy v. Bindoo Baahinee 

188, 668 
Sreeram Ghose o. Sreenath Dntt ..611 
Sree Sankaraohari v. Varada Fillai . . 660 
Sri Balnsn ». Sri Balnsn . . . . 680 

Sri Braja v. Enndana Deri . - 67 

Sridhar Nandy t>. Braja Nath . . 663 
Sri Gajapathi v. Sri Gajapathi . . 639 
Sri Gonesh v. Keahavrav Goyind . . 649 
Sri Gonesh v. Keshayrao . . 279, 280 

Srikant ». R 294. 804 

Sri Kishen v. Hnri Kishen . . 239 

Srimati Alijan v. Harachandra Chow- 

dhnry . . . . . . 69 

Srimati Anand v. Dhanaadra 

Chandra .. .. ..136 

Srimati Jaikali v. Shib Nath . . 461 

Srimati Lukhimani v. Mohendra 

Nath .. .. 613. 636, 667 

Srinivas ». B. . . . . 12 

Sri Raghunadha «. Sri Brojo 16. 368 
Sri Rajah Sobhanadri v. Sri Rajah 

Venkatanara . . 667 

Sri Rangammal v. Sandammal . . 280 
Srish Chnnder v. Bonomali . . 663 

Sristeedhnr Sanrent «. Ramanath 

Rokhit; .. .. ..663 

Stanes v. Stewart .. 766 

Standage v. Creighton . . . . 129 

Stuap Act. SefereiKe under 411, 413 

Stanford o. Hnrlstone . . . . 46 







Pa(!K. 


Stanger v. Scarle 




.. 312 


Stanley v. White 


, 


.. 46 


Stanon t>. Percival 


111. 


116, 
119. 133 


Stapylton v. Ciongh 




.. 202 


State V. Blackbnm 




.. 200 


State t>. Eiell .. 




.. 744 


Stete V. Glass 




.. 307 


State V. Lapage . . 




.. 615 


Stater. Railroad 




.. 104 


States. Rathbnri 




.. U 


State ». Roe 




.. 772 


State V. Staton .. 




.. 781 


State V. Wilson 




.. 331 


Statfordshire Tramways 


Co 


r. 


Ebbsmith 




.. 871 


Stearine v. Henxman 




.. 617 


Steele v. Stewart 




.. 698 


Steinkeller v. Newton 




232. 782 


Stephen v. Vroman 




.. 663 


Stephenson v. River Tyne 


Improve- 


ment Commissioners 




.. 308 


Stevens v. Lynch 




.. 621 


Stevens v. Pinney 




.. 466 


Stevens v. Thacker 




.. 123 


Steward v. Yonng 




.. 13 


Stewart v. Eddowea 




.„ 473 


Stewart's case 




.. 130 


Stikeman t>. Dawson 




.. 646 


Stilea V. Cardiff S. N. Co. 




.. 126 


Stlmson V. Famham 




.. 667 


Stooken v. Collin 


108. 


106. 439 


Stookfleth V. De Tastet . 




.. 145 


Stookley v. Stookley 




.. 621 


Stone V. Metcalfe 




.. 4-0 


Storr t>. Soott .. 




.. 236 


SteweU t>. Billings 




.. 639 


Starcey v. Blake 




351, 638 


Stratford v. Hogaa 




.. 702 


Stringer's Estate, In re . 




.. 670 


Strong V. Brewer 




302, 311 


Strong V. Dickinson 




.. 721 


Stronghill v. Bnck 




.. 662 


Strother v. Barr 366, 


367. 


376, 467 


Stmthers v. Wheeler 




.. 33 


Studdy V. Sanders 




700, 701 


Stnrge v. Buchanan 




.. 264 


Sturia V. . Freccia 190. 


244. 


246, 
246, 407 


Snbba v. R. 


, 


723,724 


Subbaji v. Shiddapa 


. 


.. 762 


Snbbaraya t>. Krishnappa 




.. 677 


Snbramania Aiyar v. R., 


66 


177, 




708 


.802, 804 


Subramanian Chettiar v. 


Amnacha- 


lam Chettiar ... 


. 


.. 470 


Digitized by^O 


OS 


te 



TABLE OF CASES CITED. 



Ixxxv 



Paoe. 



Snbramanaya Pandya v. Siva Subra- 



manya 



Sabramaniyayyan v. Subramaniy- 



86 



ayyan, 



332 



Snbrahamanyan v. Paramaswaran, 

75, 247 
Sobnktolla p. Hari .. ..671 

Sncearam Morarji v. Kalidas 

KaBanji . . . . 126, 430, 502 

Sndisht Lai v. Mnsst. Sheobarat . . 587 
Sndakhina Chowdrain v. Rajmohan 

Bose . . . . . . 267, 258 

Safiraddeen o. R. . . . . 132 

SoUen V. St. Leonards . . . . 387 

Sogg V. Bray . . . . 392 

Sajtt Ali V. Kashinath Das . . 734 

Siksroo Kobiraj t». B. . . . . 569 

Snkh Dei v. Kedar Nath . . 566 

Snkh Lall r. Madhori Prasad . . 341 
Snkomut Bib«e v. Warris Ali .. 549 
Sdeiman Kader v. Mehndi Afosur 

329, 331 
Soliran v. Norton . . . . 757 

Solivan t>. Snlivan .. .. 5O6 

Sgmbhoo Lall v. Collector of Surat 535 
Summers v. Moorebouse . . . . 506 

Summers r. Mosely . . 721, 744 

Sammersett v. Adamson .. ..115 

Snminn Singh v. ELhedun Singh .. 85 
Sondara Gopalan v. Venkatavarada 

Ayyaoagur .. .. ..136 

Snndaraja Ayyengar v. Joganada 

KU" .. •• .. ..532 

Sanver Lall v. Jaddoobnns Sahaye 

546, 662 
Smmad Alii v. Hnsst. Karimoonissa 601 
Snperundhwaja v. Garuradhwaja 246 
Soppa V. OoTind* Charyar . . 7 

Soiab Naran «. Shew Goyind . . 660 

Snraj Bonsi r. Sheo Prosad 560, 551 

Saraj Mull v. Hndson . . 861, 1862 
Sua) Proaad v. Standard Life 

Insuxanroe Co .. .. .. 738 

Snrat Dhobni, In the maUer of, 34, 36, 41 
Soiendra KeshaT v. Durgasundari 

D«»«ee .. ..116,350,666 

Sorendra Nath ». Brojo Nath 72, 73, 148 
Snrendra Nath v. Hiramoni Bur- 

»■"»» .. .. ..610 

Sorja Narain v. Protab Narain . . 861 
Sorja Prasad c. Oolab Chand . . 561 

Snrjan Singh v. Sardar Singh . . 217 

Smjo Kant v. Banesirar Saha . . 466 
Snrjo Narain v. Bissambhnr Singh 64, 68 
Snijyamoni Dasi v. Kali Kanta . , 618 
Somomoyee v. Lnohmeeput Doogm 628 



Paob. 
Sumomoyee v. Suttessohnndet Roy. . 630 
Snmomoyi v. Johur Mahomed 238, 242 
Sarub Narain v. Shew Gobind . . 647 
Snmj Mookhi v. Bhagwati Konwar . . 130 
Snrut Soondnree v. Bajendur Kishore 266 
Sussex Peerage Case 193, 208, 262, 

294, 300 
Sutto Chum V. Tarinee Chum .. 563 
Sutton B. Deyonport .. .. 607 

Sutton t>. Sutton .. .. 3 

Sutton V. Tatham .. .. 621 

Sutto Surrun v. Moheeh Chunder .. 628 
Sntyobhama Dassee v. Krishna Chun- 
der . . . . . . 639 

Svami Nayudn v. Subramania MudaU 660 
Swamirao v. Collector of Dharwar 

689,690 
Swan, Ex parte 

Swan V. North British Australasiau 
Co. . . . . 66% 666. 664 

Swamamayi Baur «> Srinlbash 

Koyal . . . . 664, 677 

Swinfen v. Lord Chelmsford . . 129 

Swinfen v. Swinfen . . . . 49 

Syama Snnderi v. Jugo Bundhn . . 266 
Syam Lall v. Laohman Chowdry . . 264 
Syed Abbas v. Yadeem Bamy 368, 

386, 386 
Syed Ahmed v. Enayat Hossein . . 563 
Syed Amir v. Heera Singh .. 642 

Syed Ashgar v. Syed Medhi . . 632 

Syed Fuzzul t>. Amjad Ali . . 587 

Syed Lootfoollah v. Mnsst. Mnseebun 388 
Syed Nurul v. Sheo Sahai 660, 662. 666 
Syed Sufdar v. Amjad Ali . . . . 861 

Syers v. Jonas . . . . 497 

Syud Beza ». Bhikun Khan . . 866 



Ta«oordeen Tewaree v. Syed Ali 586, 687 

Tadman v. Henman . . 670, 676 

Tagore v. Tagore . . 115, 350, 666 

Tahboonissa v. Koomar Sham . . 648 

Taju Pramaniok v. B. .. .. 802 

Takanatii «. B. . . . . 184 

Talsibhai v. Ranohod . . . . 684 

Talbot V. Hodson . . 402, 626 

Talbot V. Marshfield .. ..698 

Talluri Venkayya o. B. ., ..737 

Tajudin v. Gobind 441, 446, 446 

Tamarasherri Sivithri v. Maranat 

Vasudevan ,. .. .. 688 



Digitized by ^OOQIC 



Ixxxvi 



TABLE OF CASES CITKD. 



Page. 
Tamur Siagh v. Kalidas Roy . . 343 

Tan Bana v. Abdul Onffnr . . 680 

Tara Chand v. Debnath Roy . . 566 

Tara Cband v. Beeb Bam 66, 66. 86, 86 
Tara Chonder r. Amir Mandal . . 631 
Tara Cham v. Joy Narain .. 611 

Tara Lai v. Sarobur Singh 640, 665, 667 
Taraknath Chuckerbutty v. Joy Soon- 
dur .. .. .. ..613 

Tara Perahad v. Lakhee Narain .. 403 
Taraprasad Mittra v. Ram Nrising . . 136 
Tarinee Perahad t>. Kali Charan . . 664 
Tarinee Pershad v. Dwarka Nath . . 115 
Tarini Charan v. Saroda Sundari . . 

649, 609, 669, 730, 793 
Tarini llohun t>. Gonga Persad . . 674 
Tamiok Chunder v. Jobeshur Chun- 

der 642,643,646.611 

Taruok Kath v. Qaree Chum . . 232 

Taniok Nath v. Mohendra Nath 267, 

268, 432 
Taniok Nath v. Prosono Coomar . . 
Tarn Patur v. Abinash Chtindra . . 409 
Tatia t). Sadashiv . . 674 

Tawakkal Rai v. Laclunan Rai . . 661 
Taylor v. Barclay . . 342, 347 

Taylor t>. Blaoklaw . . . . 703 

Taylor v. Brigg .. ..619 

Taylor t>. Cook ..626 

Taylor v. Crcsswell . . . . 600 

Taylor v. Kinlooh . . . . 626 

Taylor v. Needham .. 676 

Taylor v. Rnndell . . . . 786 

Taylor v. Willans . . 30, 43, 129 

Taybr v. Williams . . 41, 100 

Taylor v. Witham . . 210, 212 

Tayammanl t>. Saohalla . . 659 

Teencoorie v. Hureehnr . . . . 276 

Tegendro Narain v. Bakai Singh . . 
Tekait Doorga v. Tekaitni Doorga 65, 85 
Tekait Roop v. Anund Roy . . 662 

Templeton v. Lawrie . . 66, 722 

Tepu Khan v. Rojoni Mohon 60, 65, 

69. 71, 74, 77, 82 
Tetai Abom r. Oagia Oiira.. .. 860 

Thaooor Bromma v. Thaooor Lnllit 256 
Thaoooranee Dasme t>. Bisseshur 
Hookerjee . . . . 346 

Thakoor Deen v. Nwab Synd 364, 549 
Thakoor Dyal, In the matter of . . 737 
Thakoor Jeetnath v. Loke Nath . . 538 
Thakoor Uahtab v. Leelannnd Sing 640 
Thakoor Pershad v. Mnssamut Bash- 

mutfy 443, 445 

Thakore Fatesingji v. Bamanji 
Dalai . . . . 654, 864 



Paob. 

Thakurain Balraj e. Rai Gagat Pal . . 3 

Thakor Dasa v. Jairaj Singh . . S86 

Thakur Garunn v. Kunwar Shapa- 

ram .. .. ..313 

Thaknr Singh r. Bhogeraj Singh 677. 579 
Thama v. Kondan ..247 

Thandavan v. Vallima . . . . 864 

Thiagaraja v. Giyana Sambandha . . 556 
Thickness v. Bromilow .. ..680 

Thirthasami v. Gopala .. ..16 

Thirukumaresan Chetti v. Snbbaraya 
Chetti . . . . 630, 661 

Thomas v. Connell ..94 

Thomas v. David .. ..760 

Thomas v. Jenkins .. .. 403 

Thomas v. Morgan 88, 147 

Thomas v. Newton .. ..710 

Thomas v. Secretary of State for 

India in Council . . 69S 

Thompson v. Trevanion . . 44, 47 

Thomson v. Ansten .. 116, 147 

Thomson v. Hall .. ..626 

Thome v. Heard .. ..26 

Thomhill v. Thomhill . . . . 786 

Thoyi Ammal v. Subbaraya Mudali . . 868 
Thunder v. Warren . . . . 466 

Thnrsby v. Plant . . . . 629 

Thurston i>. Nothingham Perma- 
nent Benefit Building Society .. 646 
Tiery v. Kristodhun Bose . . 676 

Tikamdas Javahirdas v. .Oangakom 

Mathnradas , . . , 672 

Tikam Singh v. Dhan Kunwar 346, 692 
Tilak Sing v. Chok Sing . . . . 130 

Tiley v. Cowling .. ..113 

Till V. Ainsworth .. ..787 

Timangavda v. Rangangavda 443, 444 
Timma ti. Daramma . . . . 217 

Timmana v. Putobhata . . . . 64C 

Tinappa v. Mnmgappa . . . . 666 

Tinckler'g Case . . . . . . 686 

Tiruchuran Perumal t> Sangudien 674 
Tirumala v Pingalai . . . . 634 

Tirumalasami Reddi v Rama Sami 683- 
Tiruvengada Ayyangar v Ranga- 

sami Nayak . . 493, 494 

Tofaluddi Peada v Mahar Ali ..398 
Tokee Bibee v. Abdool Khan .. 687 
Tollemache, In re 139, 208, 287 

Toolsee Money v. Maria Margery 
Cornelius . . . . . . - 647 

Toolsey Das 0. Premji Tricnmdas 642, 643 
Toosey v. Williams' . . . . 106 

Topham v. McGregor . . . . 734 

Torab Ali v. Chooramun Singh . . 636 
Tota Ram v. Mohun LaU . . 279. 280 



Digitized by ^OOQ IC 



TABLE OF OASES CITED. 



Ixxxvii 



Page. 
Townshend Peerage Caae ■ . . 319 

Townsend v. Strangroom 4 Int. 

Tnoey Peerage Case . . 294, 319 

Tiulokia Nath v. Shnrno Chnngoni 

442. 444. 445 
Tnven v. Blondell .. ..512 

Traebehim Roy v. Raj Kishen .. 544 
Tnwhitt r. Lambert .. .. 457 

TribhoTandas Jekisandas v. Krishna- 

nm Knberam .. 512,613 

Tiieoam Panaohand v. Bombay, 

Bwoda.etc., Ry. Co. .. .. 34S 

Triloohnn Ghose'v. Eoilaah Nath 581, 630 
Trimbak Gangadbar v. Bhagwandas 

Hulchuid .. .. ..496 

Trilok Nath v. Mnsst. LaoUmien . . 592 
Trimbleetown v. Kemmis 114, 210, 212 
Trotter e. Maclean . . 103, 105 

Troop, Bx parte ..287 

Troylokhanath Biswas, In the 

matter of .. ..787 

Trustees of the Harbour of Madras 

«. Best ft Co. . . . . . . 614 

Twicer ft Linger .. ..66 

Tngwetl V. Hooper . . . . 702 

Tnkaram bin Atmaram v. Ram- 

Chandra bin Badharam .. 655 

Tokeya Rai v. Tnpeee Koer 746, 750, 751 
ToUidge o. Wade .. ..62 

ToDock V. Donn . . . . 122 

Tnlsi Pershad v. Raja Misser . . 558 

Tnhi Ram e. Mutsadi Lai ... 657 

Timley v. Evans .. .. ..138 

Tomer v. Power . . . . . . 455 

Tomer v. Railton .. • ..146 

Tarqnand v. Knight . . 701, 702 

Tnrton v. Turton .. ..600 

Tweedie r. Poomo Chnnder 640, 661 
Twynam v. Knowles .. ..45 

Tyrell v. Pointon .. ..665 



Ubilack Rai v. Dallial Rai . . 443 

Uda Begom v. Imam-nd-dJn I, 2, 664 
edit Upadhia v. Bhowandin .. 458 

Vggrakmat Chowdhiy v. Horro 

Clinnder .. .. 442, 443 

Diagar Singh v. Pitman Singh . . 552 
Ulfatannissa Elhaijan v. Hossain 

Khan .. .. .. .. 864 

Uma Ouun «. Ajadaoissa Bibee . . 2 
Cma Shankar t>. Mansnr All .. 534 

Oaiaa Prasad v. Gandharp Singh . . 16 
Cmfaios Chom v. ^oggobatty 
**««« .. .. 544 

Ui&Yiica Chora v. Madhab Ghosal 569 



Page. 
Umedmal Motiram v. Davubin 

Dhondiba .. 494 

Umesh Chandra v. Sageman 602. 

605, 610. 612 
Umeehchunder Baneya v. Mohini 

Mohan .. .. ..492 

Cmritfa Nath v. Gouree Nath ... 642 
Unapooma Dassee v. Naffer Poddar 

137. 143 
Underwood v. Wing . . 59, 609 

Ungley v. Ungley . . . . 477 

Unide Rajaha v. Pemmasamy 

Venkatadry . . 7 Int., 30, 368. 373 
United Company v. Raja Baddinath 726 
United States Exp. Co. t>. Henderson 786 
United States v. Dickinson . . 745 

Upendra Krishna v. Ismail Khan . . 629 
Upendra Mohon v. Gopal Chandra 801 
Upendra Narain v. Gopee Nath .. 544 
Upooroop Tewary v. Lalla Bandhjee 551 
Urquhart v. Bntterfield . . . . 350 

Ushar Ali v. Ultaf Fatima . . 627 

Uttamchandra Krithy v. Khetra 

Nath .. .. .. ..638 



Vaoher v. Cocks . . 89, 94, 97 

Vagliano v. Bank of England .. 663 
Vaillant t>. Dodemead .. .. 669 

Valippa Raonthan •. Mahomed 

Khaaim .. .. ..863 

Vallabha v. Madasadanan 86. 346 

Vallabh Bhalee v. Rama . . 646 

Vanderdonckt v. Thelluson 262, 298, 301 
Van Omeron ti. Dowiok 104, 340, 

347, 626 
Van Wart v. Walley . . . . 129 

Varadarajalu Naidn t>. Sriniva- 

salu Naidu .. 291,658 

Varajlalv Bhaiji Nagardas .. 640 

Varvar Nicholas v. Asphar . . 441 

Vasanji v. Haribhai 387, 380, 409 

Vasanji Haribhai v. Lallo Akhu . . 668 
Vaaudeva Bhatlu v. Narasamma . . 486 
Vasudeva Shanbhoy v. Naramapai 869 
Vasudev Daji v. Babaji Ranu 670, 

672, 673, 677 
Vaughan v. Martin . . . . 781 

Vedamntta, In re . . . . 869 

Vedanayagar Madaliarv. Vedammal 286 
VedavaJli v. Narayana . . 542, 545 
Velampndnoherri Padmanabhaa 

V. Chowakaren . . . . . . 603 

Veliyammal v. Katha Chetti . . 552 

Venoatratnam v. Reddiah 475, 470, 479 
Vengama Naikar v. Raghavaoharry 660 



Digitized by ^OOQIC 



Ixxxviii 



TABLE OF CASES CITED. 



Paoe. 
Venkaji Krishna v. Lakshman 
Derji .. • .. ..674 

Venkaji Shridhar v. Vishna Babaji 126 
VMikata Chandrappa v. Venka- 
tarama Redi .. .. ..260 

Venkatadri v. Peda Venkayamma 

636 
Venkatagiri r. Bagfaava . . 865 

Venkata Gopala v. Lakshmi Ven- 
kama . . . . . . 544 

Venkata Gopal t>. Rangappa .. 673 

Venkata Krishnamma v. Anna- 
pumamma . . . . . . 609 

Vankata Natasimha v. Bhashya 

Karln 351 

Venkatanarasimha Naidu v. Don- 
damndi Eottaya .. .. 346 

Venkatarama Ayyar t>. Venkata 
Snbrahmaniam . . . . 269 

Venkataramanna v. Chavela . . 125 

Venkatarammanna v. 'gramma . . 5S0 
Venkataratnan Naidn v. CoIIeotoT of 
Qodavari .. .. .. 554 

Venkatasami o. R. . . 177. 178 

Venkataaami v. Venkatreddi 65, 70, 

76 
Venkatasrami Nayakhaa v. Snbba 
Ran .. .. .. ..280 

Venkatesa v. Sengoda .. 466 

Venkayyar p. Venkata Snbbayar 

466, 466 865 
Venour's Settled states. In re .. 3 
VeTmloombe v. Butler . . . . 626 

Verabhai Ajnbhai v. Rai Hiraba . . 346 
Vimpakshappa, v. Shidappa . . 560 

Vinayak v. Colleotor of Bombay . . 607 
IHnayak Naraingh v. Datto 

Gorind . . 545 

'^Hnayaek v. Qovind . . . . 649 

Vincent v. Cole . . 375, 466, 467 

Virabhai Ajnbhai v. Bai Hirabai . . 549 
Virohand Lalohand ti. Kumaji . . 865 
A^rgo V. Virgo . . . . . . 285 

^^rjivandas Madhavdass t>. Mahomed 

Ali 513 

Tubnn v. Krisbnan 70. 664 

Viahnn Teshawant «. New York lafe 
Insaranoe Oo. . . . . 703 

Vishvanath Charondn t>. Subraya 
Shiyappa . . . . . . 136 

Vithaldas v. Secretary of State for 
India . . . . 679, 583, 672, 677 

Vithal Mahadeb v. Dand valad . . 445 
Volant V. Soyer . . 707. 786 

Volkart Bros. v. Vetfaveln Nadan . . 87 
Vythilinga «. Venkatachela 66, 69, 76 



Page. 



W 



Waddington v. Roberts . . . . 104 

Waddeer v. E. I. Co. . . . . 692 

Wafadar Khan v. R. . . 799, 902 

Wagstaff V. Watson . . 128 

Wahidnnnessa v. Durgadass . . 680 

Wain V. BaUy . . . . . . 863 

Wajid Hossain v. Nankoo Singh . . 390 
Wajibun v. Kadir Buksh 130, 379, 460 
Wajid Khan r. Ewaz Ali Khan . . 586 
Wake V. Harrop . . 484, 490 

Waldridge v. Kennison .. 146, 147 

Wali Ahmad v. Ajadhia Knndu . . 630 
Wali Ahmad v. Tota Meah 583, 584 

Wali-wallah v, Chulam Ali . . 869 

Walker «. Burrow . . . . 104 

Walker v. Frobisher .. ..797 

Walker v. Wilaher . . 146, 147 

Walker's Case .. .. ..616 

Wallace v. Jafferson . . 696, 704 

Wallace v. Small . . . . 147 

Wallingford r. Mutual Society Co. . . 540 
Wallis V. Littel .. 493. 494 

Walkner v. Atma Ram Mundnr .. 576 
Walls t>. Atoheson . . 723, 726 

Walpole V. Alexander .. ..721 

Walsham o. Stainton . . 702 

Waltean v. Fenwiok .. ..26 

Walter v. Haynes . . 106. 626 

Waman Ramchandra r. Dhondiba 
Krishnaji . . . . 466, 466, 865 

Ward V. Hobbs .. ..99 

Ward ti. Lord Londesborough 103. 105 
Ward V. Marshall .. ..701 

Warren t». Wtrren .. 103, 105 

Waterpark v. Fennell .. ..452 

Watkins v. Rymill . . 98. 688 

Watkins v. Vince .. 39. 123 

Watson, Ex parte .. ..647 

Watson V. Gopee Soonduree . . 801 

Watoon v. Little .. ..283 

Watson V. Smith .. ..560 

Watson & Co. t>. Govt .. ..600 

Watson & Co. v. Mohendro Nath.. 243 
Watson & Co. v. Nobin Mohnn . . 135 
Watoon & Co. v. Nnkee Mondul . . 724 
Watson & Co. v. Ranee Shumt . . 694 
Watts V. CiesBwell .. ..646 

Watts V. Lawson .. ..147 

Weatherall v. Dillon . . . . 660 

Webb V. Byng . . 600. 506 

Webb V. East . . . . 698' 706 

Webb V. Fox .. .. ..575 

Webb V. Smallwood .. ..718 

Webb V. Smith ,. ..697 

Webber v. Corbett .. ..610 



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TABLE OF 0ASS8 CITED. 



Ixxsix 



Page. 



Webster v. Friedeberg 


.. 797 


Weeks v. Sp*rke 


.. 193 


Wells V. L. T. ft S. Ry. Co. 


.. 3 


Wentwortii v. Lloyd 


601. 703 


West V. Lawd»y 


.. 612 


Weetinghouse r. M. R. Co. 


704, 706 


Westmacott v. WeetmMott 


.. 260 


Westoo V. Emee 


.. 466 


Whaley v. CarUsle 


.. 212 


Wharam v. Routledge 


.. 788 


Wharton v. Lewis 


723, 738 


Wheatley v. Williams 


700, 701 


Wheeler v. LeMarohant ..696, 


697, 


698 


703, 706 


Whicker v. Home 


276 461 


Whiaterlo's Case 


.. 691 


Whitaker v. Izod 


.. 706 


Whitcombt). Whiting 


130, 131 


White V. DowUng 


.. 140 


White V. Greenish 


641, 674 


White V. White . . 


.. 116 



Whiteohnrch, Ld. r. Carana^ . . 663 
Whitehead v. Scott .. 393, 468 

Whitelock v. MnsgroTS . . 130, 142. 

401, 619 
Whitley, Inre .. .. 120, 122, 689 

Whitfield r. Brand ..467 

Whitoash v. George .. .. 133 

Whiten V. Snyder . . . . 30S 

Whittaker v. Morrison .. .. 677 

Whittley Partners, Int., . . . . 861 

WOdemann v. WalpoUe .. 49, 60, 718 
Wilke's Case 6 Int. 

William Abbott Green, /n Me good* 

of .. 430 

William Cornell, In the gooth of . . 432 
Williams v. Bridges .. .. 139 

Williams v. Cnrtis .. ..62 

Williams v. E. I. Co. .. .. 613 

Williams v. Graves .. .. 210 

Williams «. Hall 6 Int. 

Williams v. Innes .. 139 

Williams v. Thomas . . . . 147 

Williams r. Wilcox .. .. 796 

Williams v. Williams .. 19. 116, 668 
Willooghby v. Willoughby .. 348 

Wihnott V. Barber ..664 

Wilson V. Rastall . . 702 

Wilson V. Wilson .. ..93 

Wiltzie V. Adamson .. ..60 

Wing V. Angrave . . 69, 609 

Winsor ». R. .. .. .,686 

Winteiacale t>. Sarat Chonder . . 629 

Wmtte. Inre .. .„ .,260 

Wise V. Anunmnissa Khatun ..681 

Wis© V. Bhoobnn Moyee 634, 664 



Pare. 
Wise V. Sundaloonessa Chow- 

dranee .. ..366, 367. 368 

Witmer v. Schlatter .. .. 284 

Wolmershansen, Inre . . . . 138 

Wolverton, In re .. ..610 

Womesh Chunder v. Chonder Chum 

799. 801 
Womesh Chunder v. Shama Sundari 

386, 387 
Wood V. Braddick .. 130. 131 

Wood V. Cooper .,. .. 781 

Wood V. Corporation of the Town of 

Calcutta .. .. ..689 

Wood V. Durham .. ..330 

Wood V. Maokinnon .. .. 737 

Woodbury v. Obear . . . . 306 

Woodcock V. Hoaldsworth 103 106 

Woodley v. Coventry .. ..681 

Woodward v. Gonlstone .. ..387 

WooUey v. N. L. R. Co. 701, 704, 705 
Woohray v. Bowe .. ..136 

Wooma Chum v. Haradhon Mojoom- 

dar .. .. .. 647 

Wooma Kant v. Gunga Narain . . 798 
Wooma Soondnree v. Kishoree 

Mohun .. .. ^ 564 

Woomesh Chunder v. Rashmoni 

Dassi .. .. i2. 564, 666 

Worthington v. Scribner .. 694 

Wright V. Beckett . . 29, 764, 766 

Wright v. Doe d. Tatham 47, 232, 797 
Wright V. Holdgate . . . . 692 

Wright V. Lainson .. ..626 

Wright t>. Rogers .. ..402 

Wright V. Fstham 47, 48, 93, 296 

Wright's Case .. .. ..168 

Wutzler V. Sharpe .. 604 

Wuzeer Ali r. Kali Koomar 378, 387 

Wyatt t>. Bateman . . 229, 362 

Wynne v. Tyrwhitt ..441 



Yanumala Venkayanamah v. Yanu- 

mala Poochia . . 644 

Yarakalamma v. Annakala 273, 274 

Yasamati v. Chundra Papayya . . 658 
Yashvaat Puttee t>. Badhabai 187, 

644, 659 

Yasin v. R. .. 163, 186, 469, 460 

Yates ». Pym .. .. .. 498 

Yenamandra Sitaramasami v. 

Kidatana Sanyasi . . 662 
Yeshwadabai v. Ramchandra 311, 

312, 466, 630, 666 

Young V. Brown . . . • 303 

Young, Ex parte . . 286, 737 



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zo 



TABLE OF OASES CITED. 



Young V. Qrote 

Yusan Khatun v. Ramnath Sen 



Page. 
. 680 
. 534 



Zabeda Bibi v. Sheo Charan .. 639 

Zakeri Begtim v. Saina Begum . . 202 
Zamindar Serimatn v. Virappa 
Chetti . . . . 634, 661 



Page. 
Zamorin of Calicut v. Narayanan 
Mossad .. .. ..674 

Zamtinia v. Bam Tahal . . 737 

Zeenut Ali v. Bam Boyal . . 513 

Zemindar of Rainnad v. Zemindar of 
Tettaapooram .. .. ..540 

Zinlnissa Ladli v. Motidev Batandev 

379, 460 



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BIBLIOGRAPHY. 



The Bibliography here given ia by no means strictly complete. Omitted 

there&om arc : (1) Works on psychology, logic and rhetoric ; (2) Works of the 

civilian and scholastic jurists [such as the Corpus Juris Glossatum, Heineccius 

on the Pandects, Mascardus De Probationibus, Menochius De Praesumptionibus, 

Endemann's Beweislehre, Weiske's Rechtslexicon, Savigny's Romische Recht, 

Pufendorf, Grotius, Chijaccius, Voet, Hertius, Strykius, Puchta, Hefter and 

others] ; (3) Works on CJontinental law ; (4) Works incidentally, but not 

specifically and directly, dealing with the subject of Evidence [as, for 

example, Russell on Crimes, Foster's Crown Law, Hawkin's Pleas of the 

Crown, Blackstone's Commentaries, Collinson, Pope, and Shelford on Lunacy, 

Bbhop on Marriage and Divorce, etc., etc., all of which, as also other works 

treating of the law generally or its specific branches, contain incidentally much 

matter relating to the subject ; or general Digests, e.g., Comyn's Digest sub 

toe. ' Estoppel' ; Buller's Nisi Prius or the like] ; (5) Articles in Legal 

Magazines [of which there are a great number]. The lists given contain for 

the most part well known practical works specifically dealing with the subject, 

and in present or past use by the profession. They reproduce moreover only 

those which have come into the compiler's hands to date, but there are doubtless 

others. — Ed. 



(A) CHRONOLOGICAL CLASSIFICATION. 

(WOKKS ON THE ENGLISH, ScOTCH AND AMERICAN LaWS OP EVIDENCE.) 

1786. The Law of Evidence wherein all the cases that have yet been 
printed in any of our Law Books or Trials, and which in any wise relate to 
points of Evidence are collected and methodically digested under their proper 
beads, with necessary tables to the whole. 

2nd Ed., London, 1735. 

fThe anonymoos aathor observefl in his Preface that prior to this collection there was 
nothing of this nature extant besides the 11th Chapter of a Book entitled TrUds per Pais 
which was very defectiTe. Ed.] 

1766. The Law of Evidence, by Lord Chief Baron Gilbert. 

London, 1756. 

[2nd Ed. (?) ; 3rd Ed., 1769 ; 4th Ed., 1777 ; 5th Ed., in 4 vols.. 1791—1796 ; 6th Ed., 
I|01, by James Sedgwick. This is the first of the recognised text-books on the subject. 
Mr. Best (Ev., p. 70) says, that it is to Lord Chief Baron GQbert, that we are principally 
indebted for reducing our law of evidence into a system. Ed.] 

1761. Theory of Evidence. 

(This anonymous work is in substance Fart VI of the anonymous first edition (1767) 
of what afterwards appeared as Buller's NUi Prim; it is found also in all subsequent 
eoitjona. Thayer's Cases on Evidence, p. 1028.] 

London, 1761. 
1801. A Compendium of the Law of Evidence, by Thomas Peake. 

London, 1801. 

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XCn BIBUOOBAPHY. 

1802. The Rules of Evidence on Pleas of the Crown illustiated fiom 
Printed and Manuscript Trials and Cases, by Leonard McNally. 2 vols. 

London and Dublin, 1802. 

1810. A Digest of the Law of Evidence in Civil and Criniinal Cases, by 
Zephaniah Swift, one of the Judges of the Supreme Court of the State of 
Connecticut. 

HaHford, 1810. 

1812. The Philosophy of Evidence, by Daniel M'Kinnon. 

London, 181^. 

1814. A treatise on the Law of Evidence, by the Right Hon. S. March 
Phillips and Ames, and (subsequently) Thomas James Arnold. 

London, 1814. 

[2nd Ed.. 1815; 3rd Ed., 1817; 4th Ed., 1820; 6tb Ed., 1822; 6th Ed., 1824; 7th 
Ed., 1829 ; 8th Ed., 1838 ; 9th Ed., 1843 ; 10th Ed., 1852 (Utest). Ed.] 

1820. An Essay on the Principles of Evidence and their application to 
subjects of judicial enquiry, by James Glassford. 

Edinburgh, 1820. 

1824. A pEftctical treatise on the Law of Evidence, by Thomas Starkie. 
3 vols. 

London, 1824. 

[2nd Ed., 1833 (2 vda.) ; 3id Ed., 1842 (3 toIs.) ; 4th Ed., 1853 (Utest), by George 
Morley Dowdeewell and John Georae Malodm. There is an American Edition (lOtii, 1876) 
taken from the fourth En^iah Edition with references to American Cases by George 
Sharswood. PhOaddplua, 1876. Ed.] 

1826. A treatise on Judicial Evidence extracted from the Manuscripts of 
Jeremy Bentham, Esq., by M. Dumont, Member of the Representative and 
Sovereign Council of Geneva. Translated into English. 

London, 1825. 

[A (ranalation of Dumont's " Traite des Preuves Judiciairee," published in 1823, t. 
VoH, 1827. Ed.], 

1826. A practical treatise on the settling of evidence for trials at ISisi 
Prius and on the preparing and arranging the necessary proofs, by Isaac 
Espinasse. 

London, 1825. 

This is a 2nd Ed. : gucere date of first. Ed.] 

1826. Evidence forming a title of the Code of legal proceedings accord- 
ing to the plan proposed by Crofton Uniacke, Esq., hy S. B. Harrison. 

London, 1825. 

[An early attempt at codification. Ed.] 

1827. Roscoe's Digest of the Law of Evidence on the trial of Actions at 
A'm Prius. 

London, 1827. 

{Qucare title of first edition ; 2nd Ed., 1831 ; 3rd Ed., 1834 ; 4th Ed., 1836 ; 6th Ed., 
1839; 6th Ed., 1844 ; 7th Ed., 1849 ; 8th Ed., 1861 ; 9th Ed., 1868 ; 10th Ed., 1861 ; 11th 
Ed., 1866; 12th Ed., 1870; 13th Ed., 1875; 14th Ed., 1879; 16th Ed.. 1884; 16th Ed., 
1891 (latest), 2 vols., by Maurice Powell. Ed, 



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BIBUOORAPHY. XCIU 

1827. Rationale of Judicial Evidence specially applied to English Practice 
from tlie Manuscripts of Jeremy Bentham, Esq., Bencher of Lincoln's Inn, in 
five volumes. Ed. John S. Mill. 

London, 1827. 

[The papers from which this work was extracted were written by Bentham at various 
times from uie vear 1802 to 1812. They comprise a very minute exposition of liis views 
on all the branches of the snlneot of judicial evidence, intermixed with criticisms on the 
Law of Kvidence as it was estaUished in England and with incidental remarks on the state 
of that branch of law in most of the continental systems of jurisprudence. Bentham's 
speculations on Judicial Evidence had already been published in a more condensed form 
mr M. Dnmont of Geneva in the "Traite des Prenves Jndiciaires," published in 1823, an 
KigUsh translation of which appeared in 1826. See ante, and the Preface of J. S. Mill. 
As Professor Wigmore says, in less than three generations nearly every reform which 
Bentham advocated for the liaw of Evidence has come to pass. Law of Evidence, vol. iii, 
5 2251. Ed.] 

1880. A practical treatise on the General Principles and Elementary 
Rales of the Law of Evidence, by Richard Garde. 

London, 1830. 

1881. An Examination of the Rules of Law respecting the admission of 
extrinsic evidence in aid of the interpretation of Wills, by the Right Hon. Sir 
James Wigram. 

London, 1831. 

[2nd Ed.. 1835; 3rd Ed.. 1840; 4th Ed.. 1858 (Utest). by W. Knox Wigram. Ed.] 

1884. A treatise on the Law of Evidence in Scotland by George Tait. 

Edinburgh, 1834. 
[This is the 3rd Edition by Adam Urquhart. Ed.] 

1885. Roscoe's Digest of the Law of Evidence in Criminal cases. 

London, 1835. 

[QHore title of first edition ; 2nd Ed., 1840 ; 3rd Ed., 1846 ; 4th Ed., 1867 : 5th Ed., 
1861 ; eth Ed., 1862 ; 7th Ed., 1868 ; 8th Ed., 1874 ; 9th Ed., 1878 : 10th Ed., 1884 ; 11th 
Ed., 1890 : 12th Ed. (latest), by A. P. Percival Keep, 1898, 1 voL Ed.] 

1886. A treatise on the Law of Evidence in the Courts of Equity by 
Richard Newcombe Gresley. 

London, 1836, 

[A work dealing with the system of evidence prevalent in the Court of Chancery, 2nd 
Ed.. 1847 (latest), by Christopher Alderson Calvert. Ed.] 

1888. An Essav on the Principles of Circumstantial Evidence, by 
William Wills. 

London, 1838. 

[Quart date of 2nd Ed. : 3rd Ed., 1860 ; 4th Ed.. [1862 (latest), edited by Alfred Wills. 
Ed.] 

1842. A treatise on the Admissibility of Confessions and Challenge of 

Jurors in Criminal cases in England and Ireland, by Henry H. Joy. 

DuUin, 1842. 

1842. A treatise on the Law of Evidence, by Simon Greenleaf, ll.d. 

Philadelphia, 1842. 

[1st Ed., in one vol. ; 2nd Ed., 1844—1846 ; 3rd Ed., 2 vob., 1846, qyicert as to subse- 
quent editions until 1896, the date of the last edition in 3 vols., revised with additions by 
WiDiam I^per Lewis, who states in his preface that in upwards of 20,000 cases on 
evidence, the Courts have referred to some section of Mr. Greenleaf s work to support their 
decisions. Ed.] 



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XCIV BIBUOGBAPHT. 

1844. A treatise on Presumptions of Law and Fact with the theory and 
rules of presumptive or circumstantial proof in Criminal cases, by W. M. Best. 

London. 1844. 
[The 1844 Ed. is tbe only edition of this work. Ed.] 

1848. A treatise on the Law of Evidence as administered in England 
and Ireland with illustrations from American and other foreign Laws, by His 
Honour Judge Pitt Taylor. 

London, 1848. 

[Qucere title of first edition; 2nd Ed., 1855: 3rd Ed., 1858 ; 4th Ed.. 1864; 5th Ed., 
1868 ; 6th Ed., 1872 ; 7th Ed., 1878 : 8th Ed., 1885 ; 9th Ed , 1895 (the latest), by G. Pitt 
Lewis, Q. C. The last edition appearing during the passage of this book through the press, 
both the 8th and 9th editions have been referred to. The 8th Ed. in Part I, and the 9tb 
Ed. in Parte 11 and III of the Act. Ed.] 

1849. The Principles of the Law of Evidence with elementary rules for 
conducting the examination and cross-examination of witnesses, by W. 
M. Best. 

London, 1849. 

[2nd Ed., 18.55: 3rd 'Ed., 1860; 4th Ed., 1866: 5th Ed., 1870; 6th Ed., 1875: 7th 
Ed., 1883 : 8th Ed.. 1893 (latest), by J. M. Lely, with Notes to American and Canadian 
Cases, by Charles F. Chamberlayne of the Boston Bar. Ed.] 

1860. The History and Principles of the Law of Evidence as illustrating 
our social progress, by John George Phillimore. 

London, 1850. 

1866. A treatise on the Law of Evidence in Scotland, by William 
Gillaspie Dickson. 2 vols. 

Edinburgh, 1855. 
[2nd Ed., 1864 ; 3rd Ed. (?) 1887, by P. J. Hamilton Grierson. Ed.] 

1866. Powell's Principles and Practice of the Law of Evidence. 

London, 1856. 

[Qwere title of first edition ; 2nd Ed., 1869 ; 3id Ed., 1868 : 4th Ed., 1876 ; 5th Ed. 
1885 ; 6th Ed., 1892 ; 7 (latest), bv John (hitler and Charles F. Cagney. The law is here 
reduced to the form of general rules with a running commentary thereto attached. Ed.] 



1861. A treati.se on Facts as subjects of Enquiry by a Jury, by James 
Ram. 

London, 1861. 

[There is an American Edition (the 4th, New York, 1890), by J. Townshend and C. F. 
Beach, with an Appendix, containing D. P. Brown's Golden Bules for the examination of 
a witness ; Coxe's advice for conducting the examination of witnesses and opening a case to 
the jnry ; Whewell on Theory and Fact : Hofimim's fifty resolutions in regard to profes- 
siontd deportment ; cases of mistaken identity and erroneous conviction. Ed.] 

1866. Privilege of confessions, religions, by Baddely. 

1868. A treatise on the Nature, Principles and the Rules of Circum- 
stantial Evidence, especiallv that of the presumptive kind in criminal cases, by 
A. M. Burrill. 

New York, 1868. 

1872. A treatise on the Law of Estoppel and its Application in Practice, 
by Melville M. Bigelow. 

Boston, 1872. 
[Qwere date oi 2nd and^Srd Ed.; 4th Ed., 1886; 6th Ed., 1890 (latest). Ed.] 



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BIBLIOGBAPHT. XCV 

1876. A Digest of the Law of Evidence, by Sir James Fitzjames Stepheo. 

London, 1876. 

[Reprinted with slight alterations, September, 1876 ; December, 1876 : with many 
alterations, 1877 ; 2nd E<L, 1881 ; 3rd Ed., 1887 ; 4th Ed., 1893 (lateet). There is also 
ao American Edition (Boston, 1886), from the Fourth English Edition, with Notes from 
American cases, including those of J. W. May. E!d.] 

1877. A Commentary on the Law of Evidence in Civil Issues, by 
Francis Wharton, ll.d. 

PhiUadelphia, 1877. 
L2nd Ed., 1870 ; 3rd Ed., 1888 (latest). Ed.] 

1879. Famous cases of Circumstantial Evidence, by S. M. Phillips. 

Jersey, 1879. 

[This is the 4th American Edition of the English work by the author of Phillips on 
Evidence. Ed.] 

1880. An Exposition of the Practice relative to the Right to Begin and 
Reply, by W. M. Best. 

Burlington, N. J., 1880. 

[This is an American Edition of the English work. Quart date. Ed.] 

1880. A treatise on the Law of Evidence in Criminal Issues, by Francis 
Wharton, ll.d. 8th Ed. 

Philadelphia, 1880. 

[8th Ed., 1880 ; »th Ed., (latest), 1884. Previous to 1880, the date of the 8th Ed., 
this book was one of the volumes of the same author's Treatise on Criminal Law, the 
editions of which are as follows : 1st Ed., 1846 ; 2nd Ed., 1862 ; 3rd Ed., 1866 ; 4th Ed., 
1857 ; bth Ed., 1861 ; 6th Ed., 1868 ; 7tb Ed., 1874. In the same manner Dr. Wharton's 
Treatise on Criminal Pleading and Practice, 9th Ed. (1889), was, previous to 1880 tiie date 
of the 8th Ed., one of the voliunes of his abovementioned Treatise on Criminal Law. Ed.] 

1888. The Theory of the Law of Evidence as established in the United 
States and of the Conduct pf the Examination of Witnesses, by W. Reynolds. 

Chicago, 1883. 
[2nd Ed., 1890 : 3rd Ed., 1897. Ed.] 

1883. The Law of Expert Testimony, by H. W. Rogers, ll.d. 

St. Louis, Mo., 1883. 
[iad Ed., 1891, re-written'and enlarged. Ed.] 

1884. The Law of Estoppel, by L. F. Everest and E. Strode. 

Lotidon, 1884. 

1886. A treatise on Communication by Telegraph, by Morris Gray. 

Boston, 1885. 

[A fourth of this book deals with tiie subject from the point of view of the Law of 
Evidence. Ed.] 

1886. The Law of Presumptive Evidence including presumptions, both 
of law and of fact, and the burden of proof both in Civil and (iHminal cases, 
by John D. Lawson. 

San Frarudsco, 1886. 

CThe Uw of presumptive evidence is here reduced to defimte rules. Ed.] 

1888. The Law of Expert and Opinion Evidence reduced to rules, by 
John D. LawBon. 

San Francisco, 1886; 

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ZCVl BIBLIOORAFHY. 

1886. Wood's Practice Evidence for ready use in the trial of causes, by 
H. G. Wood. 

New York, 1886. 

1887. A treatise on the Law. of Witnesses, by Stewart Rapaljee. 

New York, 1887. 

1887. Law of Evidence under the Code of Civil Procedure of the State 
of New York, by Henry, E. Warner. 

Albany, 1887. 

1887. The Practice relating to Witnesses in all matters and proceedings, 
Civil and Criminal, at, after, and before the trial, or hearing both in the 
superior and inferior Courts, by Walter S. Sichel. 

London, 1887 

1888. An Essay on the Principles of Estoppel, by M. Cabab^. 

London, 1888. 

1889. Privileged Commtmications as a branch of Legal Evidence, by 
John Frelinghuysen Hageman. 

New Jersey, 1889. 

1888. The Ohio Law of Opinion Evidence, expert and non-expert, by 
Francis B. James. 

Cincinnati, 1889. 

1801. A brief on the modes of proving the facts most frequently in issue 
or collaterally in question on the trial of Civil or Criminal cases, by Austin 
Abbott of the New York Bar. 

New York, 1891 

[Bj tt» same author "A brief tor the trial of civil iasnes before a jmy" and 
"A bnef for the trial of criminal oaaes." See also 18Q{S. Ed.] 

1892. The Law of Evdence, by Sidney L. Phipson. 

London, 1892. 
(2nd Ed., 1898 ; 3rd Ed., 1902.] 

1802. The General Principles of the Law of Evidence with their applica- 
tion to the trial of civil actions and criminal cases, 3 vols., by Frank S. Rice. 

Rochester, N. Y., 1892. 

[The first' two volumes deal with'ciTil actions and the third with criminal cases. 
Ed.] 

1802. A treatise on the Law of Identification, by G. E. Harris. 

Albany, 1892. 

gi,. [Identity of persons and things — animate and inanimate— living and dead— 
° taken identity— eorpiM Mieti — opinion evidence. The author omito the sabjeot 
leisoning and.drowning, Ed.] 

186Gf^2. Select Cases on Evidence at the Common Law with notes, by J. B. 
stantial Evil.d., Professor of Law at Harvard University. 
A. M. Burrill. Cambridge, 1892. 

ily writer who has added mnoh to our knowledge of the principles of 
...» .e Bentham:" Sir William Harkby in Preface to his Indian Evidence 
1872. A 

by Melville M^ treatise on the Admissibility of Parol Evidence in respect to 
aments, by Irving Browne. 
[Queere <ia,te New York, 1893. 



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BIBLIOGBAPHY. XCVll 

1894. The Theory and Practice of the Law of Evidence, by William 
Wills. 

London, 1894. 

1894. A treatise on Disputed Handwriting and the determination of 
genuine from for^d signatures. The character and composition of inks and 
their determination by chemical tests. The eifeet of age on documents, by 
W. E. Hagan, Expert in Handiwrting. 

New York, 1894. 

[See also Le Faux — Maquillage, Decalquage Graphotypie par GosteTe Haese, Paris, 
1898. Ed.] 

1896. Select cases in the Law of Evidence as applied during the 
examination of witnesses, by Austin Abbott, ll.d. 

New York, 1895. 

1896. The taking of Evidence on Commission, by W. E. Hume Williams 
and A. Romer Macklin. 

London, 1895. 

1896. The Law of Evidence in Civil Cases, by Burr W. Jones, 3 vols. 

<Son Francisco, 1896. 

1896. A Preliminary Treatbe on Evidence at the Common Law, Part 
I, Development of Trial by Jury, by J. B. Thayer, ll.d. 

Boston, 1896. 

1896. A treatise on the Law of Circumstantial Evidence, by Arthur P. 
Will. 

PhUaddphia, 1896. 

1896. The Law of Evidence in Criminal cases under the Act of 1898, 
by Ernest Arthur Jelf. 

London, 1898. 

1898. A Preliminary Treatise on Evidence at -the Common Law, by 
James Bradley Thayer, ll.d. 

London, 1898. 

[This is the fall work of which the voliunes published in 1806 contained the first four 
Chapteia. Xd.] 

1896. Rules of Evidence as prescribed by the Common Law for the trial 
of actions and proceedings, by George W. Bradner. 

Chicago, 1898. 

1899. Compendium of Evidence, by D. Augustus Straker. 

Detroit, 1899. 

1904. Treatise on Evidence. An Encyclopedia of Statutes and cases 
until March 1904. Canadian Edition in 4 vols., by J. H. Wigmore. 

(Works on the Law of Evidence in India.) 

1868. The Law of Evidence applicable to the Courts of the Late East 
India Company explained in a course of lectures delivered by the Hon'ble 
John Bruce Norton, Barrister-at-Law, Advocate-Oeneral of Madras. •■ 

Madras, 1858. 

[2nd Ed., 1869 ; 3rd quoere date ; 4th;Ed., 1866 ; 6th Ed., quart date ; 6th Ed., 

1868 ; 7th Bd., 1869. This book oontainB the substance of the lectures the author 

ddirered as PnrfMsor of Law in the Madras Preeidenoy College.] 



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ZCVin BIBUOOBAFHT. 

1862. A Manual of the Law of Evidence of the Madras Provinces, by 
J. R. Kindersley, Madras Civil Service and of Lincoln's Inn. 
[This is tile date of 2nd Edition : 3rd Ed., 1865. Ed.] 

1862. The Law of Evidence as administered in England and applied to 
India, by Joseph Croodeve, Barrister-at-Law, Acting Master of the Supreme 
Court of Calcutta, and Lecturer on Law and Equity in the Presidency College. 

Calcutta, 1862. 

[In the preface the author says : — "Some progress had been made in the work before 
he had become aware of the existence of, and more before he liad seen, the able treatise of 
Mr. Norton — " The Law of Evidence apidicableto the Courts of the East India Com- 
pany," — a treatise, however, which in effect addresses itself still more generally to the Law 
of Evidence, and, of course, to English as well as Indian Law, and which is justly entitled to 
a higher and more ambitious designation. Regard being had, however, to the somewhat 
differing scope uid character of the two works, and the widenees of the field open to 
both, it was felt that there was still abundant room for each ; and the anUior 

persevered in his original design. ; it is trusted that the pradiai 

character to which at the same time it aspires will not make it useless to tiicse of 
more advanced position." The autitor subsequently, and in 1872 after the passing of 
the Evidence Act, published a Supplement to this book, Ed.] 

1867. The Law of Evidence in British India, by C. D. Field. 

Calcutta, 1867. 

[2nd Ed.. 1873 : 3rd Ed., 1878 ; 4th Ed., 1884 ; 6th Ed.. 1894. The pietMW of the 
first edition is dated let May 1867. The first edition dealt in Part I witA the geneitl 
outlines of the Law of Evidenoe. In Part II, the Old Evidence Act (II of 1856} wm 
reprinted and notes were appended to its sections. The sections of two other Acts 
touching the subject of evidenoe were also reprinted with annotations, viz., ss. 98, 145— 
160, 202—206, 366, 146, 164 of Act XXV of 1861 : (Cr. Pr. Code) ; ss. 4, 20 of Act XIV 
of 1859 (Limitation). In the |n«face the author as his apology for coming befcNre the 
public on ground already occupied by the able works of Mr. Norton and Mr. Goodeve 
says : — " Ttat» works have long since taken iheir appropriate places in the Indian Law 
Idorary beyond the reach of competition or criticism. The present pnbUoation seeks to fill 
a place, wmch the author ventures to think, is as yet unoccupied. It is intended to be a 
smcJl practical treatise solely for Mofussil use and for the Mofuasil Courts." The anthor 
in his preface to the 2nd Edition, published after the appearance of this Act (April 1873), 
which preface is reprinted in the last edition says that ' it is rather a new book than a 
new edition, the contents having increased threefold and the matter of the first edition so 
far as it was then relevant) having been recast in a new shape." Ed.] 

1872. An Introduction to the Evidence Act. The Principles of Judi- 
cial Evidence, by James Fitzjames Stephen, Q. C. 

London, 1872. 
rSeveral times reprinted ; last reprint,' Calcutta, 1902. Ed.] 

1872. The Indian Evidence Act (I of 1872) being a Supplement to 
"The Law of Evidence as administered in England and applied to India," 
by Joseph Goodeve. 

Calcutta, 1872. 
[See ante, 1868, for author's principal treatise. Ed.] 

1872. The Indian Evidence Act (I of 1872), together with an Intro- 
duction and Explanatory Notes, Rulings of the (Courts and Index, by Sir 
Henry Stewart Cunningham, k.c.i.e. 

Madrat, 1872. 
9th Ed., (Uteet), 1894.] 

1878. The Law of Evidence applicable to India adapted to the Indian 
Evidence Act (I of 1872), by John Bruce Norton, late Advocate-Cieneral of 
Madras. 

Madrat, 1873. 



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BIBLIOGRAPHY. XCIX 

[8(h Ed., 1873 ; 9th Ed., 1877. Edited by W. M. SoharUeb. The 8th and 9th 
EditionB Me apparently so styled in oontiauation of the Editions of the author's provious 
wor . fiist published in 1858.] 

1875. The Theory of Relevancy for the purpose of Judicial Evidence, 
by George Clifford Whitworth, Bombay Civil Service. 

Bombay, 1875. 
r2nd Ed. 1881. Ed.] 

1882. The Indian Evidence Act with speeches delivered by the Law 
Member with reference to the Indian Evidence Bill, etc., by C. 6. Lewis. 

Calcutta, 1882. 

1890. The Indian Evidence Acts (I and XVIII of 1872), with an 
Introduction on the Principles of Judicial Evidence and Commentaries, by 
WiUiam GriflSth, Barrister-at-Law. 

London, 1890. 

1898. Estoppel by Matter of Record in Civil suits in India, by L. 
Broughton. 

London, 1893. 

1898. The Law of Estoppel in British India (Tagore Law Lectures, 
. bv Arthur Caspersz. 

Calcutta, 1893, 

[A second edition was published in 1896 under the title " Estoppel by representation 
and Bet Judicata:' Ed.] 

1804. The Indian Evidence Act with notes, illustrative cases and other 
explanatory remarks and comments, etc., by Eishori Lall Sarkar, m.a., b.l. 

Calcutta. 
[Sod Ed., 1894. QudBre date of 1st Edition. Ed.] 

1894. The Case-noted Evidence Act, by Bijay Kesab Mitra and Ashutosh 
Sirkar, b.l. 

Calcutta, 1894. 

1894. A treatise on the Law of Res Judicata, by Hukm Chand 

London, 1894. 
[Print«d at Bombay. Ed.] 

1896. The Law of Evidence in British India with Notes, etc., by A. C. 
Mitra. 

Calcutta, 1895. 

1896. The Indian Evidence Act (No. I of 1872 as amended by Act XVIII 
of 1872), together with an Introduction and Explanatory Notes, Rulings of the 
Courte and Index, by Tarapada Banerji, b.l. 

Calcutta, 1896. 

1897. The Indian Evidence Act with notes, by Sir William Markby, 
K.C.I.B., Late a Judge of the High Court of Judicature at Calcutta ; Reader in 
Indian Law in the University of Oxford. 

London, 1897. 

(B) CLASSIFICATION BY NAMES OF ALTHORS. 

NOTE. — For the works of the authors, see the entry given in the 

previous list against the date mentioned in this. 

(ACTHORS OF WORK ON THE ENGLISH, SCOTCH, AND AMERICAN 
LAWS OF EVIDENCE.) 

Abbott, 1891, 1895. Bentham. 1825, 1827. 

Anonymous, 1736, 1761. Best. 1844, 1849. 1880. 



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BIBLIOOKAPHY. 

Bigdow, 1872 Phillimore, 1860. 

Bradner. 1898. Phillips, 1814, 1879. 

Browne, 1893. Phipeon, 1892. 

BuTrill, 1868. PoiroU, 1866. 

Cabab4 1888. Ram, 1861. 

Dickson, 1855. . Rapalje, 1887. 

Kspinaase, 1825. Reynolds, 1883. 

Garde, 1830. Bice, 1892. 

Gilbert. 1756. Rogere. 1883. 

Glaasford, 1820. Rosooe, 1827, 1836. 

Gray, 1886. SichelJ887. 

Greenleaf, 1842. Starkie. 1824. 

Grealey, 1836. Stephen. i876. 

Hagan, 1894. Straker, 1899. 

Hageman, 1889. Swift, 1810. 

Harris, 1892. Tait, 1834. 

Harrison, 1825. Thayer, 1892, 1890,1898. 

James, 1889. Taylor, 1848. 

Jelf, 1898. Warner, 1887. 

Jones, 1896. Wharton, 1877, 1880 

Joy, 1842. Wigmore, 1904. 

Lawson, 1886. Wigram, 1831. 

Maoklin, 1896. WiB. 1896. 

M'Kinnon, 1812. Williams. 1895. 

MacNaUy, 1802. Wills. 1838, 1894. 

Peake, 1801. Wood, 1886. 

(AUTHORS OP WORKS ON THE LAW OF EVIDENCE IN INDIA.) 

Banerjee. 1896. Lewis, 1882. 

Broughton, 1893. Markby, 1897. 

Caspersz, 1893. Mitra (A. C), 1896). 

Cunningham, 1872. Mitra and Sircar. 1894. 

Field, 1867. Norton, 1868, 1877. 

Goodeve, 1862, 1872. Sirkar, 1894. 

Griffith, 1890. Stephen. 1872. 

Hukm Chand, 1894. Whitworth, 1876. 
Kindersley, 1862. 

(C) CLASSIFICATION BY SUBJECTS TREATED OF. 

NOTE. — For the works of the authors, see the entry given in the 
Chronological List against the date mentioned in this. 
HISTORY OF THE LAW OP EVIDENCE. 
Phillimwe, 1860. 

GENERAL WORKS ON THE LAW OF EVIDENCE. 

Anonymous, 1736, 1761. Phipeon, 1892. 

Bradner, 1898. PoweU, 1866. 

Bentham. 1826, 1827. Ram, 1861. 

Beet. 1849. Reynolds. 1883. 

Dickson, 1855. Rice, 1892. 

Garde, 1830. Starkie, 1824. 

Gilbert, 1756. Straker, 1899. 

Glassford, 1820. Swift, 1810. 

Greenleaf, 1842. Stephen. 1876. 

Harrison, 1825. Tait. 1834. 

Jones, 1896. Taylor, 1848. 

M'Kinnon. 1812. Thayer. 1892. 1896. 1898. 

Peake, 1801. Wharton. 1877, 1880. 

Phillips, 1814. Wigmore, 1904. 



Wood. 1886. 



Wifls. 1894. 



EVIDENCE IN COURTS OF EQUITY. 
Grealey, 1836. 

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BIBLIOGRAPHY. CI 

NISI PRIU8 EVIDENCE. 

Abbott, 1891, 1895. Peake, 1801. 

Eapinaaee, 1825. Roocoe, 1827. 

EVIDENCE IN CRIMINAL CASES. 

Bnirill, 1868. Bioe, 1892. 

Jelf. 1898. Rosooe, 1835. 

MacNally, 1802. Wharton. 1880. 

RELEVANCY (See Aetll^pf 1872, 86. 5—16). 
Whitworth, 1876. 

CIRCUMSTANTUL EVIDENCE, 

Borrill. 1868. Will, 1896. 

Phillipe, 1879. WUls, 1838. 

CONFESSIONS AND CHALLENGE OF JURORS (See Act I of 1872, as. 24-30). 

Joy, 1842. 
Baddely (leligions), 186& 

Note. — See also works on Criminal Evidence. 

EXPERT AND OPINION EVIDENCE (See Aet I of 1872, as. 46—61). 

Haiiis, 1892. Leiws<Hi. 1886. 

James, 1889. Rogen. 1883. 

EVIDENCE ON COMMISSION. 
Home Williams & Macklin, 1896. 

PRESUMPTIONS (See Aa I of 1872, as. 79—90. 101—114). 

Best, 1844. Burrill, 1868. 

Lawson. 1886. 

Note. — The work ' ' Mathews on Presumptive Evidence ' ' has not come 
into the editor's hands. 

EXTRINSIC EVIDENCE AS AFFECTING DOCUMENTa 

(See Act I of 1872, as. 91—100). 
Wigram, 1831. Browne, 1893. 

BURDEN OF PROOF (See Aet I of 1892, as. 101—111). 

Best, 188a Lawson. 1886. 

ESTOPPEL (See AU I of 1872, as. 116—117). 

Biodow, 1872. Caspenz, 1893. 

Cabab^ 1888. Everest and Strodeu 1884. 

Hnkm Chand, 1894. 

WITNESSES (See Aet I vf 1872, as. 118—166). 

Best, 1849. Ram, 1861. 

Rapalje, 1887. Reynolds, 1883. 

Siohel. 1887. 

PRIVILBOED COMMUNICATIONS (See Aet I of 1872, as. 121—132). 
Hageman, 1889. 

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oil BIBLIOOBAPHY. 

RIGHT TO BEGIN AND REPLY. 
Best, 1880. 

HANDWRITING. 
Hagan. 1894. 

IDENTIFICATION. 
Harris, 1892. Ram, 1861. 

COMMUNICATION BY TELEGRAPH. 
Gray, 1886. 

EVIDENCE UNDER THE NEW YORK CODE. 
Warner, 1887. 

TEXT-BOOKS ON INDIAN LAW OP EVIDENCE PRIOR TO ACT I OF 1872. 

Field, 1867. Goodeve, 1862. 

Kindetaley, 1862. Norton, 1868. 

COMMENTARIES ON THE INDIAN EVIDENCE ACT {Act I of 1872). 

Banerii, 1896. Lewis, 1882. 

Broughton, 1893. Markby, 1897. 

Caspenz, 1893. Mitra (A. C), 1869. 

CuimiiuEham, 1872. Mitni(B. K.), and Sirkar, 1891. 

Field, 1873. Norton, 1873. 

Goodeve, 1872. Sarkar, 1894. 

Griffiths, 1890. Stephen, 1872. 
Whitworth, 1876. 



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THE 

LAW OF EVIDENCE 



APPUCABLB TO 



BRITLSH INDIA. 



GENERAL INTRODUCTION. 

Fbblihinabt. 

The gubstantive law of this countiy defines the rights, duties and liabili- bvUhim » 
ties the ascertainment of which is the purpose of every judicial proceeding. SSSJlft •' 
The Criminal branch of that law is contained in the Indian Penal Code, as i*w. ^* 
also in various special and local laws dealing with the subject. The substan- 
tive civil law of India has not as yet been codified. Generally speaking, it is to 
be found in various Acts of the Indian Legislature, in the English Statutes 
extending to India and in the personal law of the Hindus and Mussalmans- 
In cases for which no special provision exists, the Courts are enjoined to act ac- 
cording to justice, equity and good conscience. Adjective law defines the plead- 
ing procedure and proof by which the substantive law is applied in practice. 
It U the machinery by which that law is set and kept in motion. The rules 
relating to pleading and procedure are contained in the Civil and Criminal Pro- 
cedure Codes. Proof, the remaining branch of adjective law, logically defined, is 
the sufficient reason for assenting to a proposition as true.(l) Practically con- 
sidered it is the establishment of facts in issue (ascertained in each particular 
case by the pleadings and settlement of issues) by proper legal means to the 
satisfaction of the Court.(2) This is done by the production of evidence, the law 
relating to which is to all legal practice what logic is to all reasoning whatever 
subject it may be concerned about. Accurately speaking the terms 1 'proof" 
and "evidence" are distinguished in this ; that proof is the effect or result of 
evidence while evidence is the medium of proof.(3) The facts out of which the 
rights and liabilities arise must be determined correctly. Facts which come 
in question in Courts of justice are enquired into and determined in 
precisely the same way as doubtful or disputed facts are enquired into 
and determined by men in general except so far as positive law has inter- 
posed with rules to secure impartiality and accuracy of decision or to exclude 
collateral mischief likely to result from the inve8tigation.(4) Some portions of 
the law of Evidence such as those which deal with the relevancy of facts are 
intimately connected with the whole theory of human knowledge and with 



(I) Whaiton, Br., { ], id., C». Et., {2. (4) id: f 8: Wliether all th«M rule* are effeotire 

(S) BtM, St., I IOl {or tlw pnipoae tot which they wen enacted or 

W A. an neoeaaaiy ia of course another qaeatktn. 

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2 INTRODUCTION. 

logic as applied to human conduct (1) Othei rules aie of a technical character 
designed to secure the objects mentioned or are based on principles of general 
policy, 

i%^ The ambiguity of the word "evidence " has given rise to varying defini- 

dence." ' tions. Bentham used it in its broadest sense when he defined it as " any mat- 
ter of fact the efiect, tendency, or design of which is to produce in the mind a 
persuasion affirmative or disaffirmative of the existence of some other matter 
of fact."(2) It is, however, clear that the term as used in municipal law must 
have a very much more limited meaning. It is manifest that every fact, some 
having it may be but the very slightest bearing on the issue, cannot be adduced. 
Courts are so organized that there must be some limit to the facts which may be 
given in evidence, as there must be an end of litigation. (3) The great bulk, 
therefore, of the English Law of Evidence consists of negative rules declaring 
what, as the expression runs, " is not evidence. "(4) In its legal and most 
general acceptation, 'evidence ' has been defined to include all the means, ex- 
clusive of mere argument, by which any alleged matter of fact, the truth of which 
is submitted to investigation, is established or disproved to the satisfaction 
of the Couit.(5) According to the concise definition of the California Code, 
" Judicial Evidence is the means, sanctioned by law, of ascertaining in a judi- 
cial proceeding the truth respecting a question of fact. "(6) 

Judicial evidence is thus a species of the genus "evidence, " and is for the 
most part nothing more than natural evidence, restrained or modified by rules 
'':'; of positive law. (7) "A law of evidence properly constructed would be nothing 

less than an application of the practical experience acquired in Courts of Law to 
the problem of enquiring into the truth as to controverted questions of fact. "(8) 
The law of evidence (which is contained mainly in Act I of 1872) (9) deter 
mines how the parties are to convince the Court of the existence of that state of 
facts which, according to the provisions of the substantive law, would establi.^h 
the existence of the right or liability which they allege to exist.(10) This law, 
in 80 far as it is concerned with what is receivable or not, is founded in the words 
of Rolfe, B.(ll) : — "on a compound consideration of what, abstractedly con- 
sidered, is calculated to throw light on the subject in dispute, and of what is 
practicable. Perhaps if we lived to the age of a thousand years, instead of 
sixty or seventy, it might throw light on any subject that came into dispute, if 
all matters which could by possibility affect it were severally gone into ; and 
enquiries carried on from month to month as to the truth of everythins; 



(1) Steph. Introd. 1, 2. The game learned See also Steph. Dig., Art. 1 : Tkylor, Et., J I, 

author (D%. xi) stated that Chief Baron Gilbert's and the definition given by Prof. Thayer in his 

work on the Ijiw of Evidence (1766) the first of Cases on Evidence p. 2. 

the recognised English text books on the sabjeot (6) Cal. Code, s. 1823. See observatioiu on 

is founded on Locke's Essay much as his' own the definitions given in the California Code (which 

work ii founded oo Mill's Logic. are said to express and typify the judicial senti- 

(8) Benth., Jud. Ev., 17. ment of the American Judiciaiy) in Rice's Oeoe- 

(3) Burr. Jones, Ev., {1. ral Principles of the Law of Evidmoe, p. 9. 

(4) Steph. Introd. : these rules are closely con- (7) Best, Ev., H 34> 70- 

ueoted with the institution of trial by jury : see (8) Speech in Council of the Hon. Mr. Stephen. 

Thayer's Cases on Evidence, 4 ; and Thayer's Oaulte «/ India, 18th April 1871, p. 42 (Eitr». 

Preliminaiy Treatise on Evidence at the Com- Supplement). 

moo Law : Part I, Development of trial by Jmy, (9) Other Acts also contain provisions relating 

and ftr Lccd HaosfieM in the BerteUy Peerage to evidence : as to this see poet, s. 2. 

COM, 4 Camp., 414. (10) Steph. Introd., 10. 

(5) 1 Greenleo^ Ev., { 1 ; Best, Ev., { II, p. (11) In The Attorney-Oeneral v. Bitelicoet, 7 



.19; Steph. Intzod., 7 ; as to the definition of the Bzoh., 91, lOS. 
word a* mtd in the Act, see Not<a to { 3, ponf. 



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JNTROPUOTION. 3 

connected with it. I do not say how that would be. but such a coiirse is found 
to be impossible at present. "(1) 

Rules respecting judicial evidence may be generally divided into those re- What the: 
lating to the quid prohandum, or thing to be proved and those relating to the ^'Joe'deter- 
modus proibandi, or mode of proving. (2) It has been said that there is but mines. 
one general nile of evidence, the best that the nature of the case will admit.(3) 
This rule does not require the production of the greatest possible quantity of evi- 
dence, but is framed to prevent the introduction of any evidence which raises 
the supposition that there is bMer evidence behind, in the possession, or under 
the control, of the party, by which he might prove the same fact. The two 
chief applications of this principle are as foUows : (a) With regard to the quid 
frobatidum the law requires as a condition to the admissibility of evidence (either 
direct or circumstantial) an open and visille connection between the principle 
and evidentiary facts. (4) If the belief in the principal fact which is to be as- 
certained is to be, after all, an inference from other facts, those facts must, 
at all events, be closely connected with the principal fact in some of certain speci- 
fic mode8.(5) This connection must be reasonable and proximate, not conjec- 
tural and remote. This, which is the theory of relevancy, is dealt with in the first 
Part of the Evidence Act.{6) The first question therefore which the law of evi- 
dence should decide is : what facts are relevant and may be proved.(&) With 
T^ard to the modut prohandi the law rejects derivative evidence, such as 
the so-called "hearsay evidence,"(7) and exacts original evidence prescribing 
that no evidence shall be received which shows, on its face, that it only derives 
its force from some other which is withheld. (8) In other words, the best evidence 
most be given. If a fact is proved by oral evidence it must be direct ; that is 
to say, things seen must be deposed to by some one who says he saw them with 
his own eyes : things heard by some one who says he heard them with his own 
ears :(9) and original documents must be produced or accounted for before any 
other evidence can be given of their contents. (10) In addition to the above- 
mentioned rules English text-writers treat as a portion of the law of evidence 
the rale — ^that the evidence must correspond with the allegations, but it will be 
safficient if the substance of the issues be proved. The rights of parties litiga- 
ting must be determined secundum allegata el probata (according to what is 
averred and proved). This rule has not been incorporated in the Act, as 
it is one, strictly speaking, rather of the law of procedure proper than of 
evidence.(ll) 



(1) Sm abo Jt. T. ParbJndat, 11 B. H. a B., 01 (167S) ; Moktma Ohundv t. Poorno OhuMUr, U 
(1874), ptr Weat. J. : " One of the objeota of a W. R., IBS, 167 (1869) ; Dinomoyi DM v. Xnat- 
kv ct eridenoe is to mtriet the inveetigatiaas nuput, 7 L A., 8 ; as to the meaning of the rnle, 
Miia by Gonrta within the boanda preecribed by Se» Ti,yUx, Et., 8th Ed., pp. 36(^—396 ; Norton, 
l«Benl coDTenieoce ; " aa to the utility of the Er., 89; Beat, Ev., pp. 70^73, 87, 88, 91—93, 
nbi. M B<at, Br., f 30, <l m;. ; Fldd. Er., 13, 36, 216, 216, 89, 431, 434, 416, 276, 489, 261, 262 ; 
' «f. ; nanctiflM, Beat, IBr., { 16, et Mq. ; aeonri- Steph. IntnxL, 3, 7. 

tiea lor inaaring Teraoity and oompleteneaa of (4) Beat, Et., {} W' 3& 

'nimet, ib^ ^ U, H tej. ; 100. (6) OaztUt of India, 18th April 1871, npn. 

(2) Beat, Et., { 111, Mr. Stephen aaid in his (6) t. fmM. Introdaotion to Ch. IL 
abon-mcntianed apeech of the 18th April 1871 :— (7) 8u Steph. Introd., 4, 6 ; Beat^ Er., H 496. 
" The mam feature of the Bin conaiate in the dia- 112. 

tisctain drawn by H Mmseit Ikt reUmney of fael* (8) Beat, Er., { 9 ; Am <f. WdA r. LmgfitU, 

-i Us ikA 0/ froving ntevant faeU. " 16 M. ft W., 497 ; JDoe <i. OUbert r. Sou, 7 U. ft 

(3) Pt Lord Hardwire, Ch., in Omydnad r. W., 102, 106 ; MaedofnneU r. Xvmu, 11 a B., 930, 
barter, 1 Atk., 21. 49. See Bamalaktkmi r. Bita- 942. 

a. 14 IL L A., Sm, 688 (1872) ; Baboo 5oA- (9) v. m. S», 90, potL 

r. Btioo Omrao, 13 H. I. A.. 619, 627 (10) «. aa. 69, 61, 64 poM. ^ 

(inO); a. r., 16 W. B., 1 P. a ; Baboo Onnia (11) See oaaea cited in Field. Er., 367—369. 



ftrml t. Bakee Indrnfit, 23 W. R., 390, P. C. 



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4 INTBODUCTIOK. 

The law of evidence thus determines : — (o) The relevancy of facts,(l) or 
what sort of facts may be proved in order to establish the existence of the right, 
dnty, or liability defined by substantive law. (b) The proof of facts,(2) that is. 
what sort of proof is to be given of those facts, (c) The production of proof of 
relevant facts,(3) that is, who is to give it and how it is to be given ; and the 
effect of improper admission or rejection of evidence(4) (see post). 

sn'B^Jooy The sufficiency of evidence must be distinguished from its competency- 

By competent evidence is meant that which the very nature of the thing to be 
proved requires, as the fit and appropriate proof in the particular case, such as 
the production of a writing where its contents are the subject of enquiry. By 
satisfactory, or as it is also called sufficient, evidence is intended that amount 
of proof which ordinarily satisfies an unprejudiced mind beyond reasonable 
doubt. The circumstances which will amount to this degree of proof can never 
be previously defined ; the only legal test of which they are susceptible is their 
sufficiency to satisfy the mind of an ordinary man, and so to convince him that 
he would venture to act upon that conviction in matters of the highest concern 
and importance to his own interest8.(5) The effect of evidence considered from 
the point of view of the weight which should be attached to it cannot be regulat- 
ed by precise rules as the admissibility of evidence may be.(6) For these rea- 
sons considerations upon the sufficiency of evidence have no place in the Act 

The weight of evidence cannot be regulated by precise rules as the admissi- 
bility of evidence may be(7): it depends on rules of common-sense,(8) and the 
weight of the aggregate of many such pieces of evidence taken together is verj 
much greater than the sum of the weight of each such piece of evidence taken 
separately. (9) The Draft Bill contained the following section, which, though it 
was not thought necessary to retain it in the Act, must still be borne in mind :— 
' ' When any fact is hereinafter declared to be relevant, it is not intended to in- 
dicate in any way the weight, if any, which the Court shall attach to it, this being 
a matter solely for the discretion of the Court." So also the Law Commissioners, 
in the second paragraph of their Draft Bill, said: "Whenever any 
evidence is said to be admissible, it is not meant that it is to be regarded as 
conclusive, but only that the weight, if any, which the deciding authority may 
consider due shall be allowed to it." In this connection a few dicta of general 
application may be here cited. When one witness deposes to a certain fact 
having occurred, and another witness, stating that he was present at the same 
time, denies that any such fact took place, greater weight, other things being 
equal, is to be attached to the witness alleging the affirmative.(lO) "Upon 
general principles affirmative is better than negative evidence. A person 

(1) ErideDOe Act, Part I ; T. po»t, s. 3, and In- there can be no canon. Each caae prcseoti it> 
tiodnction to Chapter IL own pecnljaritiee, and common-sense and •hmrd- 

(2) Evidence Act, Part II ; v. pott, and Intro- neas must be brought to bear npon the facts elicited 
duotion to Part II. in every case, which a Judge of fact in (tii 

(3) Evidence Act, Part III ; tee Introduction to country, discharging the functions of a jfoy >> 
thk Fart, poit. England, has to weigh and decide upon : " B. v. 

(4) Steph. Introd., II. ifwani Om. 20 W. R.. Cr., 13, 19(1874.) "TUt 
(6) Oreenleaf, Ev., f 2. inconvenience, " says Lord EMon in Totnwi 

(6) StxiFarjtJuurimT. DvarkmuM, '8 B. L. R., v. Strangroom ( 6 Ves., 333, 334), " belong Is 
504, 608 (1871) ; Lard AdvocaU v. Lord Blantyrt, the administration of justice, that the miodi <f 
L. B., 4 App. Cas., 792 ; S. v. Madhvb Oiri, 21 different men will differ npon the result of dw 
W. B., Cr., 13, 19(1874): Toumrnndv. Strangroom, evidence, which may lead to different decmka 
fl Tea., 333, 334 : O'Sorkt v. Bclingbroh, L. R., upon the same case, " Ste also remarks of U*i 

5 H. L., 837 ; Best, Ev., { 81. Blaokbum in O'Sorke v. BeUngbrokt, L. R-. 2 

(7) rargvXantm v. Duarkmuilk, 8 B. L. R.,S04 H. L., 837. 

MS (1871) ; Best, Ev., { 81. (9) Lord Advocatt v. Lord Omtgre, supra. 'U- 

(8) Lord AdvocaU v. Lord BUmtfrt, L. R., 4 (10) Z><6y Ptnad v. Amv'tii 5iiv*. 3 H. I. A, 
App. Cu.. 792. ;ier Lord Blackburn : "For weigh- 347, 3e7 (1844) ; & C, 6 W. R. (P. C), <U ; Will's 
ing eiidenc" and drawing' mfereoces from it, Ciro. Ev., S90. 

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IMTRODUCmOH. 5 

deposing to a fact, which he states he saw, must either speak truly, or must have 
invented his storyi or it must be sheer delusion. Not so with respect to negative 
evidence ; a fact may have taken place in the very sight of a person who may 
not have observed it : and if he did observe may have forgotten it. "(1) As 
a general rule, witnesses should be weighed not numbered.(2) More weight 
should be attached to the evidence given of men's acts than ot their alleged 
words which are so easily mistaken or misrepresented. (3) A Judge, however, 
cannot properly weigh evidence, who starts with an assumption of the general 
bad character of the prisonera.(4) 

The Act in many of its sections leaves matters dealt with thereby to the ^2^£tftL 
discretion of the Court.(5) "Discretion, when applied to a Court of law, means 
discretion guided by law. It must be governed by rule and not by humour. 
It must not be arbitrary, vague, and fanciful, but legal and regular. "(6) In 
using a judicial discretion the Courts have to bear in mind not only the statutes, 
but also the great rules and maxims of the law, such, for example, as those of 
logic or evidence, or public policy. The right discretion is not scire quid sit 
fttslum, but' scire per legem, as Coke insi8ted.(7) " 

The English system of Judicial evidence is comparatively of very modern ^^^*"**' 
date.(8) Its progress is marked by the discarding of those restrictions of 
scholastic jurisprudence which firstly compelled much that was material to 
be excluded from the issue and then wfien the issue was thus arbitrarily 
narrowed shut out much evidence that was relevant and attached to the 
evidence received certain arbitrary valuations which the Courts were required 
to apply.(9) The progress has as in all cases of legal reform been a slow one.(lO) 
Bat it has been said in England, where the traditional theories still possess 
tome strength, that artificial rules upon matters of evidence are better avoided 
as much as possible,(ll) and that the law now is that, with a few exceptions on 
the ground of public policy, all which can throw light on the disputed transac- 
tion is admissible. (12) The Evidence Act may be regarded as being itself an 
application of these principles. "Under the Evidence Act admissibility is the 
rale and exclusion the exception, and circumstances which under other systems 
might operate to exclude, are, under the Act, to be taken into consideration only 
in judging of the value to be allowed to evidence when admitted." (13) Accord- 
ingly, where a Judge is in doubt as to the admissibility of a particular piece of 
evidence, he should declare in favour of admissibility rather than of non-ad- 
iBia8ibility.(l() The principle of exclusion enacted by the fifth section of this 

(I) ThepaiMeeinqnotetion miuica is per'^SirH. t. AOnon Life Aumrance Co., 4 C. P. P. 109 (1878) 
', iaChambtrfr. Tkt Quteiu Pnelor, Z'flKOt., "In any bat an English Cottrt and to the mind 



4U,434:«Hakolfi2(Mia»iT.ffaiZ,l Curt., 606. of any bat an English lawyer the oontroreray 

(t) Ah notes to s. 134, jkuL whether tihs eridence is or is not evideooe whioh 

(3) Mttr VtdodUak t. Bttky Imaman, 1 M. L A. a Court of Justice shoold reoeive would seem I 

4Z. 43 (1836): think sapremely ridionlona beoaose erery one 

(0 R. V. Kdu Mai, 7 W. R., Cr., 103 (1867): would say that the OTidenoe was most oogeot 

ttt Anther, »Uei to s. 16fi, fod. and material to tha plaintiff's aUim. 

(6) See as. 32, 33, 39, 68, 60, 66, 73. 86—88, (4) Ptr Wills, J., in Hmnutg v. Wright, L. K.. 

tt, 114, 118. 13S, 186, 142, 148, IM, 161, 164— 21 Q. B. D., 618 (1888). 

iM, IM, 102. 104—166. (6) Per Lord Coleridge, C. J., in Blaie v. 

<6) Ptr Lord Jfanefield in WiUee'e ease, 4 Bar- AH on Life Attimnce Co., L. R., 4. C. P. V., 



Rep., 2630, oited in Harban'e SaJuti v. 103 (1878) adding :—" Not, of oonrse, matters 

Perekai, 6 C, 860, 266 (1879). o( more prejudice nor anything open to real 

(7) R. T. Chaga* Dagmrom, 14 B., 331, 344, 362, moral or sensible objection, but all things whu}\ 

per JaHia^ J. (1810); Bast, Et.,{ 86. fairiy throw light oo the case. " 

(S) Eest. F.T., {{ 100k 110. See PhiOimcn's (6) S. v. ilona Puna, 16 B., 661, 668 (1802) ; 

Hi s t o ij and PriuBiplei of the Law of Endeoee ptr Jardhie, J., citnig Romeah Chander Hitter 

(1800). pp. 18S d «sf. and Field. J J. ; and «e< oaees oited, poA 

<•) Whaiton Et., {s. (7) The OolUelor of OtnUifm ▼. PalaUluiH. 

(lO) Seercmarksef LoniCMeridge,a J., inBinie 13 A., 26 (ISSOX 



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6 INTBODUOTION. 

Act should not be so applied as to shut out matters which may be essential for 
the ascertainment of truth.(l) The Privy Council in Ameeroonisia Khatoon v. 
Abedoonissa Khatoon (2) said : ' ' Objections made with the view of excluding 
evidence are not received with much favour at this Board." But it must 
not be assumed either that all technical rules are unnecessary, or that all the 
rules of evidence are technical. It may be safely asserted that the enforcement 
of most of such technical rules as are contained in this Act is necessary, and 
that many other rules possess no element of technicality whatever. Thus as 
the Judicial Committee have also observed : "It is a cardinal rule of evidence 
not one of technicality but of substance, which it is dangerous to depart from, 
■ that where written documents exist they shall be produced as being the best 
evidence of their own contents. "(3) And other instances might be adduced 
than those covered by what is technically known as "the beet evidence " rule. 

Uie Uw ot -^^ English rules of evidence were always followed in the Courts establish- 

evidence In ed by Royal Charter in the Presidency Towns of Calcutta, Madras and Bombay, 
tws ooun- pj^^j^ ^£ these rules, as were contained in the Common and Statute law which 
prevailed in England before 1726, were introduced by the Charter ol that year : 
some others were rules to be found in subsequent Statutes expressly extended 
to India ; while others, again, had no greater authority than that of use and cus- 
tom.(4) In the Courts outside the Presidency Towns no complete ndes of evi- 
dence were ever laid down or introduced by authority. (5) The law on this sub- 
ject rested in a state of great indefiniteness. In the Full Bench decision of the 
Calcutta High Court in the case of the Queen v. Khi/roolah,(6) decided in 1866, 
it was held that the English law of evidence was not the law of the raofnssil : 
that at that time the Mahommedan criminal law, including the Mahommedan 
law of evidence, was no longer the law of the country, and that by the abolition 
of the Mahommedan law, the law of England was not established in its place. 
The Mofussil Courts were thus not required to follow the English law, although 
they were not debarred from following it where they regarded it as the most 
equitable. 

The first Act of the Governor-General in Council which dealt with evidencft 
strictly so-called, was Act X of 1835, which applied to all the Courts in British 
India and dealt with the proof of Acts of the Governor- General in Conncil.(7) 
This was followed by eleven enactments passed at intervals during the next 
twenty- years which effected various small amendments of the law and appbed 
to the Courts in India several of the reforms in the law of evidence made in Eng- 
land. (8) In 1855, an Act was passed(9) for the further improvement of the law 



(1 ) B. T. AMuOah, 7 A., 40 (1888) ; «ee obMrra- Offioen ; others from English Tezt-boolu ; WUt- 

tions ot the Hon. Ur. Maine in moving the re- ley Stokes, II, 818, 813 : and tee Act XDC of ISO. 

ferenoe of the Eridence Bill to Committer. (6) B. L. R., 8 p. Vol, App. 11 ; & C 8 W. R.. 

" Anything like • eaprioioaa adminis' ration of the Cr., 21 ; Field, Er., 16 — 18 ; Whitley StoJces, nr 

law of evidence wa« an evil, but it would be an m, and seef. v. Ram*irami, 6 B. H. C. B.. &■■ ^ 

eqnal, or periiapa even a greater evil, that snoh (1809). 

■tiict mlee of evidence shonM be enforced ag (7) Whitley Stdcea. II, 81S. 

praotioally to leave the CVmrt without the materiah (8)7i. ;Aot XIX of 1837 ( ab<dished ioooni- 

for • deoiiion. " potency by reaeon d conviotioo); Act V et 

(8) 83 W. B., 208, 809 ; P. C. (187S). 1840 (afBimations ) : Me ako Acta XVIU of IW. 

(8) Dimmoyi Dtbi v. Boy Luckmijml, 7 I. A., s. 9 ; VI of 1872 ; X of 1873] ; Acta IX of 184»4 

8, 16 (1879). Vn of 1844 ( incompetency by reMon of orime 

(4) Field, Et., U; Whitley Stofes, Anglo- or intenrt); XV of 1862 (lompeteucy of partiK 

Indian Codea. VoL n, 812. See Report of Uw and other matter* ) ; Aot XIX of 1863 extaoded 

Commjndonen, Appendix. aevaral of tlieae reform* to the CSril Comts of the 

(6) Regalatiom made between 1793 and 1834 East Indian Company bx the Bengal Freodeocgr 

oontained a few mlei : othen were derived bom (g) Aot U of 1866. A* to this Act, see R. r. 

a vagne onatomaiy law of erideooa, partly drawn Oopal Do—, 3 M., 271, 888. 
from the Hedaya and the Mahommedan Law 



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INTRODUCTION. 7 

of evidence, which contained many provisions applicable to all Courtaiu British 
Iiidia.(l) These provisions were repealed and re-enacted with certain modifi- 
cations and alterations by the present Act. While, therefore, within the Presi- 
dency Towns the English law of evidence was in force, modified by certain Acts 
of the Indian Legislature, of which Act II of 1855 was the most important ; 
the Mofussil Courts, on the other hand, had, down to 1872, hardly any fixed 
rules of evidence save those contained in Acts XIX of 1853 and II of 1855.(2) 
Before and even for sometime after 1872 the lax character of the evidence in 
the Mofussil Courts was the subject of frequent judicial comment.(3) To re- 
medy this unsatisfactory(4) state of the law a Draft Bill was drawn up by Her 
Majesty's Commissioners and introduced by Sir Henry Sumner Mame, then 
the Legal Member in Council. This first Draft Bill did not, however, meet with 
approval. A new Bill was therefore prepared by Sir James Fitzjames Stephen 
which was ultimately passed as Act I of 1872 ( The Indian Evidence Act). 
This Act is based on the English law of evidence modified to suit India.{5) It is 
in the main in accordance with English law though as will be seen on a reference 
tothe Commentary it does in several respects materially diverge from that law.(6) 
Together with certain Acts saved by,(7) or enacted subsequent to it, this Act 
contains the law on the subject of evidence now in force in British India.(8) 

It has been said that with some few exceptions the Indian Evidence Act 
was intended to, and did, in fact, consolidate the English law of evidence ; (9) 
that the Act itself is little more than an attempt to reduce the English law 
of evidence to the form of express propositions arranged in their natural order. 
Kith some modifications rendered necessary by the peculiar circumstances of 
India ; (10) and that it was drawn up chiefly from Taylor on Evidence.(l 1) It is 



(1) Hie foUowing Acta were sabeeqaeotly paaa- 
ed: X of 1805 (attendance of wltoeseea); Til 
of 18SS ( CKtO Frooedme ; contained like the pre- 
Mot Code prorisions as to witneaies ) ; XXV of 
IWI ( Oiminal Procednra ; contained proviaioin 
u to witneses, confearioaa, poUoe.diaries ex- 
«minitiop <rfaoon»ed. and Civil-Surgeon : report* of 
Oh wni oal offioen, and dying declarations ; wliiob 
hsTv been re-enaoted in the present Aot or in the 
prtMDt Code ) ; XV of 1609 (eridenoe of prisoners) ; 
«e Whitley Stokes, 817. 

(2) Whitler Stokas, 817 ; FieU. Er., 17, 18. 19. 
See Report of Law Commissiaoera. 

(3) Set ohaerratians in UniiU Jtajaha r. Ptm- 
mmmt, 7 IL I. A., 1S8, 137 (18S8) s. c, 4 W. B., 
P. a. 121 : Hmrakm Mofumdar v. Gkm Maput, 
ffi W. R., 36S, 386, 367 (1874) ; NangmUy T. Fm- 
fma, 9 H. I. A., 90 (1861) & C 1 W. B. P. C, 30 
0^ LaU V. Faith LaU, 6 C, 193 (1880). 

Eno as late as 1881 Staart, C J., had oaose 
to oomplain: Pkti Kuar r. SurjaH PamUy, 
L, i4», 200. 

(4) See remarks of Pifry Council in Bunmme 
Lai r. Maianjak Behiarain, 7 H. L A., 148. 168 
(1868); s. c, 4 W. R., P. C, 148 ; Uniit Baiaha 
r. Pmrnammg, 7 IL I. A., 128, 137 (1888) s. r., 
« W. R.. P. C 181 ; AjoiMta Protkad v. Baboo 
Omno. IS IL L A., 619 (1870) ; r. r., 16 W. R.. 
P. (1, 1. 

(5) Baport <d Sdect Committee. "It is little 
■note than aa attempt to rednce the Bngtish law 
oi eridenoe to the form of express proposition* 
inanged in their natural order, with some modi- 



fioatioos rendered necessary by the peooliar oir. 
onmstanoes of India. " Steph. Introd., 2. The 
dlfferenoes betweoi the Indian and English law 
will be found hereafter noted in the eotnmentary 
to the sections : «m also Whitley Stokes, p. 8iS7, 
Vol n, and Wilson's C(»nparative Tables of 
English and Indian Law, 1890, p. 14. As however 
pointed out later fundamental dintinctiona 
exist in the mode of treatment between English 
and Indian Law. 

(6) See last note and BaneModdat Krithnatbir 
T. Bapu Ntarkar, 10 B., 439. 442 (1886) CoUtttor 
of Oorakhjmr v. POakhdari Singh, 12 A, 1, 37 
(1889) ; B. T. AbduBah, 7 A., 400, 401. 

(7) a 2, j»»t 

(8) Bee note to s. 2, poet. 

(9) Oujpi LaU Y. FaUeh LM, 6 C, 171, 188 (1880) 
per Oarth., C i. 

{V»Btnithr. Ludha OhtOa, 17 B., 189, 141 (1898)i 
per Bayley, C. J., adopting the words of Sir James 
F. Stephen Introd., Et. Aot, 2. 

(II) Muneher^aip Baottji r. New Dhurymt*)! 
SpinntTig <b Weaving Company, 4 B., 876, 881 
(1880), per West, J. : tat remarks of Jaokson. J., 
in B. V. Athoolotk ChuekerintUg, supra, 481 ; Tkylor 
on Et., rafetnd toin £. t. Pyari LaU, 4 C L. B., 
806, 609; OunuLaBy. FattthLatt, 6 0., 179; B. 
T. Amm Btidi, 3 H., 68 ; B. r. Bama Birapa, 3 
B, 17 (1878); Jl. r. Fahraipa, 16 B., 802 (1880); 
Fnm)i t. Mohantinf, 18 B., 279 (1888). and 
namsfoaa other o**es. Mr. Norton, howerw, at p. 
iT of the Preface to his Edition of the Aot sayi — 
that in his opinion it is a mere figure of speech to 



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8 INTBODUCTION. 

true that, although the Code is, in the main, drawn on the lines of the English 
law of evidence, there is no reason to suppose that it was intended to be a 
servile copy of it:(l) and indeed as already stated it does in certain respects 
differ from English law. Moreover these dicta do not recognise the undoubted 
original character of sections (5 — 16) dealing with the relevancy of facte. 

Although as all rules of evidence which were in force at the passing of the 
Act are repealed, the English decisions cannot be regarded as binding authori- 
ties they may still serve as valuable guides ; though of course English author 
ities upon the meaning of particular words are of little or no assistance when 
those words are very different from the ones to be considered.(2) 

Even where a matter has been expressly provided for by the Act, recourse 
may be had to English or American decisions if, as is not infrequently the case, 
the particular provision be of doubtful import owing to the obscurity or incom- 
pleteness of the language in which it has been enacted. Authority abounds for 
the use of the extraneous sources to which reference has been made in cases 
such as these.(3) As was observed by Edge, C. J., in the Collector of Oorakhjm 
v. Palakdhari Singh :{i) " No doubt cases frequently occur in India in which 
considerable assistance is derived from the consideration of the law of England 
and of other countries. In such cases we have to see how far such law was 
founded in common-sense and on the principles of justice between man and 
man and may safely afford guidance to us here. ' ' 

It must not, however, be forgotten that the Indian Evidence Act is a Code 
which not only defines and amends but also consolidates the Law of Evidence, 
repealing all rules other than those saved by the last portion of its second sec- 
tion.(5) The method of construction to be adopted in the case of such a Code 
has been expoimded by Lord Herschell(6) in terms which have been adopted by 
the Privy Council (7) and cited and applied in other cases in this country.(8) 

A similar rule had been previously laid down in this country with reference 
to the construction of this Act. In the case of the R. v. Ashootosh Chwk- 
er&u((y(9) it was said : "Instead of assuming the English Law of Evidence, and 
then inquiring what changes the Evidence Act has made in it, the Act should 



> that the 167 Motkwi of the Act oontun all O.. 21 [RoMioe. Et.] ; S r. Htigtr, Mtttf LM 

that is applicable in India on the two vohinei of and Midtael (1858), p. 1S2 (StaiUe oo Er. ) : and 

Taylor on Evidence and that a great uam <A the p. 144 (Paley) ; 1 B., 475. 11 & H. C 93 

principles and rulei which Ur. Taylor'a work [Roaell on Crimea]; 14 B., 335 IPhilHp'a St.]; 

oontaina will have to be written bnck between the 4 B.; 581 [Orealey on St.] : B. L. R., F. B., Sop 

line* ct the Ck>dr. Vol, 482 (Norton on Ev. ) ; and other cans too 

(1) SaiuMoiUat Krithnada$ v. Bajm Narhar, numerous to meotaoo. Concerning the w«^t t« 

10 B., 439, 442 (1886), pir Saigent, CJ.-.teTtu be given to American decisions. «e< remarfa of 

OdkeUw of ChnMjmr v. PciaUkari, 12 A., I, 37 Cockbum, L. C. J., in Seanmanga t. Stamji; 

),R.T. Abinttak. 7 A., 400, 401 (1885). 5 C. P. D., 295, SOS. 



(8) Re Ptiari LM, 4 C. L. R., 608, 509 : £. t. (5) TKt CdUdor of Oonaptr t. PalakkUmi, 

OMtt 7 A., 44 (1884) ; English cases iireleTant 12 A., 86 (1889) ; and see po><. 

when Indian Legialatora has not followed English (6) In Bant of Snt/land t. VagUaiU) Bnllun, 

law. L. R., App. Cas. (1881), 107 (at pp. 144, 146). 

(8) See « T. Vajinm. 16 B., 433 (1892); O) InSorendra NatMy. ATomaftosint, 23 I. A., 

Pmtluid Siugk r. Ram PtrUb, 22 C, 81 (1804) 18, 26 (1896). 

and the oases cited, pott. (8) Dafdu v. Panehom Singk, 17 B. 388 (1892) 

(4) 12 A., II, 12 (1889); and tu also remarits Damodan MvdaUof v. Tht Becntary of 8Ut for 

at Stni^t, J. ; at pp. 19, 20, a : Fnmji v. Mokun India, 18 U.. 91 (1894) ; Kondan/a CAM r. Nm- 

Sing. 18 B., 280 (1893) [refereooe to American atimlulU Chetk, 20 M., 103 (1896) ; Lola Sm) 

Case-law]: S ▼. BaU Bux, B. L. B., Sap. Vol, t. Oviab Chand, 28 C, 517 (1901). Tha subject 

F. B., 459 (1866) [English, American and Scotch will be found fully discussed in the Author's Civil 

I aw] ; 6 W. R., C^., 59 ; [Best. Er. ; Qflbert en Er.; Procedure C!ode now in course of prqwntica. 

cutty's Oiminal Uw ] ; 7 W. R., 338 F. B. [Cirjl (9) 4 C, 941 (1878) ; fier Jackaoo, J. 
law; Austin Jnr. ; Ooodere, Br.]; II W. R,, 



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mTBODUcriON. 9 

be regarded as containing the scheme of the law, the principles and the applica- 
tion of these principles to the cases of most frequent occurrence, but in respect 
of matters expressly provided for in the Act we must, so to speak, start from 
the Act and not deal with it as a mere modification of the law of evidence 
prevailing in England." 

Questions, however, may arise as regards matters not expressly provided 
for in the Act. It has been held that the second section in effect prohibits the 
employment of any kind of evidence not specifically authorised by the Act 
itself,(l) and that a person tendering evidence must show that it is admissible 
under some one or other of the Provisions of this Act.(2) It is to be regretted 
that the Act was not so framed as to admit other rules of evidence on points 
not specifically dealt with by it as was in effect done by the Commissioners in 
the second section of their Draft. In that case whenever omissions occur 
(and some do in fact occur) in the Act, recourse might be had to the present 
or previous law on the point existing in England or the previous rules if any in 
this country. 



(1) R. T. AUmUa, 7 A.. 386, 399 (1886) Singlt, 12 A.; 11, 12.19, 20. 34. 35. 43; (1888). 
Muh m mma d AUaUad y. MttJtammad Itmaa, 10 And see last noU; Though in Jt. v. AtlUxitM 
A., 326 (1886); S. t. Pitambtr Jina, 2 B., 64 CkyekaimUy, 4 C, 491 (1878) itwM uid that 
(1876) and in next note. when a ca<ie arises for which no poritiTe adution 

(2) LMmf Knar r. MAfol Sin^ 7 I. A.. 70 ran be found m the Act it«iU reoonrae may be had 
(1879) ; CaUtetor of OonMfm t. PalaUMari to the Engliah rales if an; on the point. 



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CHAPTER I.* 

General distribution of the subject. 

Technloal Almost every braaoh of law in composed of rules of which some are grounded 

•tom^bs'^ upon practical convenience and the experience of actual litigation, whilst 
law. others are closely connected with the constitution of human nature and society. 

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 [2]t of this nature. Other branches of the subject, such as the relevancy of 
facts, are intimately connected with the whole theory of human knowledjge, 
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 
technical matters, the Act speak.s for itself, and I have nothing to add 
to its content. 

of Bvi%nce ^I^ Indian Evidence Act is little more than an attempt to reduce the 
uish *ii»w°of English law of evidence to the form of express propositions arranged in their 
evidence. natural order, with some modifications rendered necessary by the peculiar 
circumstances of India. 

^fS? evi- ^'^® almost every other part of English law, the English law of evidence 
denoe. was formed by degrees. No part of the law has been left so entirely to the 

discretion of successive generations of Judges. The Legislature till 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 dbqualification 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 subject. 

Its want of It is natural that a body of law thus formed by degrees and with reference 

mentl** *•* particular cases, should be destitute of arrangement, and in particular that 
its leading terms should never have [8] been defined by authority ; that 
general rules should have been laid down with reference rather to particular 
circumstances than to general principles, and that it should have been found 
necessary to qualify them by exceptions inconsistent with the principles on 
which they proceed. 



When this confusion had once been introduced into the subject it was 
"n«u!''"" htirdly capable of being remedied either by courts of law, or by writers of text- 



DUBooltles 
of amend- 



* This and tbe following chapten down to p. 78 are Sir James Fitzjamce Stepheno' intrcdoc- 
tion to tbe Eviilence Act. 

t Thi* and the followiog niimbera indicate the paging of the original book (Ed. 189S) at re- 
ferred to in thi« oonimentary. 



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INTBODUCTION. 11 

bookx. The courts of lav could only decide tbe 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 Legislature 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 well-known cases been attended with signal success in 
India. 

That part of the English law of evidence which professes to be founded upon Pundamen 
anything in the nature of a theory on the subject may be reduced to the follow- BnguSflaw 
ing rules : — of evideoce. 

{1) Evidence most be confined to the matters in issue. . ,' 

(2) Hearsay evidence is not to be admitted. 

(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. 

[4] 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 particular 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. Sometimes 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 in issue were ^^„^^g^o 
construed strictly, it would run thus : 'No witness shall ever depose to any oonfining 
fact, except those facts wluch by the form of the pleadings are affirmed on the 5^^°"* *° 
one side and 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 £ on a promissory note. B denies that he made the note. 

A has a letter from B in which he admits that he made the note, and 
promises to pay it. This admission could [S] 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 inter- 
preted, 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 thu 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 
exoeptions to the mle which excludes hearsay. 



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12 INTRODUCTION. 

For instance, tliere 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 against 
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 all 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. 

AmbUnuty [6]The rule that 'hearsaj^ is no evidence ' is vague to the last degree, as 

•xoinding * each of the meanings of which the word 'hearsay' is susceptible is sometimes 

hearsay. 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 difierent meanings of the word 'hearsay. ' 

Thus it is a rule that evidence may be given of statemenls which accompany 
and explain relevant actions. As no rule determines what actions are relevant, 
this is in itself unsatisfactory ; 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 be allowed to depose to any thing which he 
has heard said by any one else. ' The result of this would be that no verbal con- 
tract 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 information of some one else, and not upon 
the evidence of his own senses. This, with certain exceptions, is no doubt a valu- 
able rule, but it is not the natural meaning of the words 'hearsay is no evidence,' 
and it is in [7] practice almost impossible to divest words of their natural 
meaning. 

The rule that documents which support ancient possession may be admitted 
as between persons who are not parties to them, is treated as an exception t^o 
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 relevancy. 

bMt '*vi* *** "^^^ ^^ which requires that the best evidence of wliich a fact is susceptible 

d«iio«. should be given, is the most distinct of the three rules referred to above, and it 

is certainly one of the most useful. It is simply an ampUfication of the obvious 

maxim, that if a man wishes to know all 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 and found that its 

contents were difEerent, he would conclude, without the intervention of any 

conscious process of reasoning at all, that they had sworn what was not true. 

Ambi«i^w The ambiguity of the word 'evidence' is the cause of a great deal of ob- 

Evidence.' scurity 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, 
[8] (2) the facts so believed, and 

(3) the arguments founded upon them. 

For instance, in the title of " Paley's Evidences of Christianity," the word 
is used in this sense. The nature of the work was not such as to give much 
importance to the distinction which the word overlooks. So, in scientific 



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INTRODUCTION. 13 

inqoiries, it is seldom necessary (for 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. 

The use of the one name 'evidence' for the fact to be proved, and the means fS^** ^, 
by which it is to be proved, ' has given a double meaning to every phrase in which guity?" 
the word occurs. Thus, for instance, the phrase ' primary evidence' sometimes 
means a relevant fact, and sometimes the original of a document as opposed to a 
copy. 'Circumstantial evidence' is opposed to 'direct evidence.' But 'cir- 
cumstantial evidence' usually means a fact, from which some other fact is in- 
ferred, 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 [9] must be proved by direct evidence — a clumsy mode 
of expression 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 con- 
trasted 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 character and absence Merits of 
of arrangement which belong to the English law of evidence that the substance ^^vidence. 
of the law itself is 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 deliberate opinions. It is full 
of the most vigorous sense, and is the result of great sagacity applied to vas^' and 
varied experience. 

The manner in which the law of evidence is related to the general theorieo Natorai 
which give it its interest can be understood only by reference [10] to the natural tiQn'*of* the 
distribution of the subject, which appears to be as follows : — Buijjeot 

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

In order to effect this result, provision must be made by law for the follow- 
ing objects : — Firttf. 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 pariicular 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 deteimJn>>s 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 light or liability which they allege to exist. 

The following is a simple illustration : A sues £ on a bond for Rs. 1,000. ^Sf*** 
B lays that the execution of the bond was procured by coercion. 

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14 



INTRODUCTION. 



Aeault. 



2. 
facts. 



[11] The substantive law is, that a bond executed under coercion oannot 
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 stated. 

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 much of the substantive law as de- 
termines what, under given states of facts, would be 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 proceeding. 

Thus in general terms the law of evidence consists of 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 [12] the matter is 

exhaustive. For if we assume taat 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 afiects the existence, nature, or extent of the right or kability, 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. The Relevancy of facta. — Facts may be related to rights and liabilities 
in one of two ways, — 

(1) They may by themselves, or in connection with other 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 tha> status involves. From the fact 
that A caused the death of B under certain circumstances, and with a certain 
intention 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 tiieir 
existence )s undisputed. 
Relevant (2) Facts which are not themselves in issue in the sense above explained, 
may afiect the [18] probability of the existence 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 claeses. 

The firs* 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 following chapter. 



Relevamoy 
of facts. 



1. Pacts In 
Issue. 



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DITBOD0CTION. 15 

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

II. The Proof of Relevant Facts. — ^Whether an alleged fact is a fact in issue Vvoot of 
or a relevant fact, the court can draw no inference from its existence till it facta*" 
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[14] 
confession of crime ; but whatever 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 men- 
tioned, by the same or similar means. If the courc 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 ^ot to the pro- 
ceeding. 

Some facts are too notorious to require any proof at all, and of these the *• Judicial 
court will take judicial notice ; but if a fact does require proof, the instrument a,°Orui avid- 
by which the court must be convinced of it is evidence; by which I mean the "o""- 
Mtnal words uttered, or documents, or other things actually produced in court, l^"?^""* 
and not the facts which the court considers to be proved by those words and denca. 
documents. Evidence in this sense of the word mui>t 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 commit- 
ted, or the property to which damage had been done, but this division would 
introduce needless intricacy into the matter. The reason for distinguishing be- 
tween oral and documentary evidence is that in many cases the existence of 
the latter excludes the employment of the former ; but [16] the condition 
of material things, other than documents, is usually proved by oral evi- 
dence, so that there is no occasion to distinguish between oral and material 
evidence. 

It may be said that in strictness all 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 ovidence' is not ambiguous, and is convenient and in com- 
mon use The only reason for avoiding the use of the word 'evidence' in the 
(j^neral sense in which most writers use it, is that it leads, in practice, to confu- 
sion, as has been already pointed oiit. 

ni. The Production of proof.— This includes the subjerst of the burden of Production 
proof : the rules upon which answer the question. By whom is proof to be given ? °* p"^'- 
Bie 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 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 : — 



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16 



IMTBODUOTION. 



(16J '^be object of le^al proceedings b the determination of rightd 
and liabilities which depend on facts (| 8). 



In issoe, 8 3. 



Relevant to the iasae 
(8 3) which may be- 



They may be 



— ooaneoted with the issae, | 5—1$. 
— admissions, § 17 — 81. 
— statements by persons who cannot 
be called as witnesses, | 32—33. 

— statements under special drcam- 
atances, 8 34—30. 

jodgments in other cases, § 40—44. 

—opinions, § 45 — 51. 

—character, $ 62 — 66. 



Judicially noticed, 
ch. iil. 



proTod by oral 
eTidence, oh. ir. 



I 
proved by docu- 
mentary eridence 
(oh. ▼.) which ii 



I 



This Proof must be produced by the party on 

whom the burden of proof rests (ch. vil.), 

anless he is estopped (ch. viii.) 

If giren by witnesses (ch. iz.) they most testi- 
fy, subject to rules as to examination (oh. 
z.). Conseqnence of mistakes defined, oh. zi. 



—primary or secondary, § 61— 6& 

—attested or unattested, 1 67—73. 

— public or private, | 74—78. 

— sometimes presumed to be ge- 
nnine, f 79—90. 

— ezduaive or not of oral evidence, 
oh. vi. 



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[17] CHAPTER II. 

A STATEMENT OF THE PRINCIPLES OF INDUCTION AND 

DEDUCTION, AND A COMPARISON OP THEIR APPUCATION TO SCIBNTIFIO 

AND JUDICIAL INQUIRIES. 

The general analysis given in the last chapter of the subjects to which the 
law of evidence mnst 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 theoiy of judicial evidence. The 
object of the present chapter is to explain this theory and to compare its appli- 
cation to physical science with its application to judicial inquinea. 

Mr. Huxley remarks in one of bis latest works — " The vast results obtained Mr. Hasl*r 
by science are won by no mystical faculties, by no mental processes, other s?ieS5^*JS* 
than those which are practised by every one of us in the humblest and meanest Judicial la- 
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 [18] 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 sorapulobs exaot- 
ne88 the methods which we all habitually and at every moment use carelessly.' ' 

These observations are capable of an inverse application. If we wish to AppUeation 
apply the methods in question to the investigation of matters ol every-day oc- °f"^ "• 
corrence, with a greater degree of exactness than is commonly needed, it is law of evt- 
necessary to know somethmg of the theory on which they rest. This is specially **°**' 
important when, as in judicial proceedings, it is necessary to impose condi- 
tions by positive law upon such investigations. On the other hand, when such 
conditions have been imposed, it is difficult to understand their importance 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 oarticular branch of it which relates to 
judicial proceedings. 

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

First, then, what are facts ? 

[16] Daring the whole of our waking life we are in a state ol perception. In- Pacta, 
deed, 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. More- 
over, our perceptions are distinct from each other, some both in space and time, 
as is the case with all oar perceptions of the <>xtemal world ; others, in time inly, 
as is the case with our perceptions of the thoughts and feelings of our own minds. 

Whatever may be the objects of our perceptions, they make up collectively Hxtomai 
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 

* Ltty Sermoiu, p. 19. i 

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18 INTBODOCrriON. 

the existence of the external world, it may be asserted with confidence that our 
knowledge of it is composed, first, of our perceptions ; and, gecondly, of the in- 
ferences which we draw from them as to what we should perceive if we were 
favourably situated for that purpose. The human body suppUes an illustra- 
tion of this. No one doubts that his own body is composed not only of the ex- 
ternal 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 will ever 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 affirms the existence of these organs, say the brain 
or the heart, what he means is that he is led to believe from what he [20] has 
been told by other persons about human bodies, or observed himself in other 
human bodies, that if his skull and chest were led open, those organs would be 
perceived by the senses of persons who might direct their senses towards them. 
Internal There is another class of perceptions, transient in their duration, and not 

'*«*•• perceived by the five best marked senses, which are nevertheless, distinctly 

Esrceptible and of the utmost importance. These are thoughts and feelinps. 
ove, 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 hrwws the meaning of a word, that he struck 
a blow voluntarily and not by accident, each propow^ion 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 propositions 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 perc^ved not only by the man himself, 
but by an^ other person able to see, and favourably situated for the purpose. 
But the circumstance 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 all that 
we mean, when we say that it easts or existed, or when we denote the same 
thing by calling it a fact. The word 'fact' is sometimes [21] opposed to theory, 
sometimes to opinion, sometimes to feeling, but all these mode<4 of vas^ 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 oonoeivable oir- 
oumstances 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 perception did not, exist. 

Deamtion It is with reference to this that the word ' fact ' is defined in the Evidence 

BMdmca *" Act ( § 3 ) as meaning and including— 

^**' (1) Any thing, state of things, or relation of tUngs 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 all thought and 
language contains a certain 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 specified. 

Proposi- Sooh being the nature of facts, what is the meaning of a proposition I A 

tJons. proposition is a [22] collection of words so related as to raise m the minds of 

those who understand them a corresponding group of images or thoughts. 

The characteristic by which words are distinguished from other sounds 
is their power of producing corresponding thoughts or images. I sav thouffbts 

* (Sic) read or 

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INTEODUCTION. 19 

or images, because though most words raise what may be intelligibly called 
images in the mind, this is true principally of those wluch relate to Adsible ob- 
jects. Such words as ' hard,' 'soft,' 'taste,' ' 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 the name, must lUastra- 
raise in the mind a distinct group of thoughts or images, may be explained '^*' 
by two illustrations. The words ' that horse is ntjrcr' 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 being a proposition, what is a true proposition ? A true proposition True Pro- 
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 [28] a distinct group of images. The proposition is true if all per- 
sons fovourably 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 ascertain whether How true 
any given proposition about facts is true, and in order to frame true proposition £^^S^'°"° 
about facts ? This, as already observed, is the general problem of science, which tra.mea. 
is only another name for knowledge so arranged as to be easily understood and 
remembered. 

The facts, in the first place, must be correctly observed. The observations Facts must 
made must, in the next place, be recorded in apt language, and each of these ^baSrvSS^^^ 
operations is one of far greater delicacy and difficulty than is usually supposed ; K"**''SSSr 
for it is almost impossible to discriminate between observation and inference, or '***' 
to make language a bare record of our perceptions instead, of being a rtmning 
commentary upon them. To 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 ? 

An answer to these questions sufficient for the present purpose will be sup- theory of 
plied by giving a short account 6f what is said on the [24] subject by Mr. Mill in ^'S'^Ji 
his treatise on logic. The substance of that part of it which bears upon the prevails in 
present subjeot is as follows : The first great lesson learnt from the observation *•** world, 
of the world in which we live, is that a fixed order prevails amongst the various 
facts of which it is composed. Under given conditions, fire always bums 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 conditicms necessary to the ednking of lead in water ; that the maintenance 
by the heavenly bodies of their respective positions, and the persistency of the 
various forcoe bj which their paths are determined are the conditions under 
which day and mght succeed each other. 

The great problem is to find out what particular antecedents and conse- ^^'^^'^g. 
queiita are thus connected together, and what are the conditions of their con- tu>a. 
neotioni For thu porpose two processes are employed, namely, induction and 
deduction. Deduction assumes and rests upon previous inductions, and derives 



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20 



UrTBODUOTION. 



Mere obeer- 
▼atlon of 
teota 
tnsufflolent. 



Proceedlns 
eflndnetlon, 



Methods of 
aBreement 
and differ- 
ence. 



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 ques- 
tions. What is [26] the ultimate foundation of induction ? Why are we justified 
in believing that all men will die because we have reason to beheve that all men 
hitherto have died ? Or that every particle of matter whatever will 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 questions which lie beyond the limits 
jof the present inquiry. For practical purposes it is enough to assume that 
such inferences are valid, and will be found by experience to yield true results 
in the shape of general propositions, from which we can argue downwards t» 
particular cases according to the rules of verbal logic. 

True general propositions, however, cannot be extracted directly from the 
observation of nature or of human conduct, as every fact which we can observe, 
however, apparently simple, is in reality so intricate that it would give us little 
or no information unless 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. Natiual 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 air, whereas the water 
fell [26] back into the pond from which it was splashed ? To see in all 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 in particular. 

Generally speaking, this problem is solved by comparing together different 
groups of facts resembling each other in some particulars, and differing in 
others, and the different inductive methods described by Mr. Mill are in reaUty 
no more than rules for arranging these comparisons. The methods which he 
enumerates are five,(*) but the three last are little more than special applica- 
tions of the other two, the method of agreement and the method of difference. 
Indeed the method of agreement is inconclusive, 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 : — 

All 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. 

[27] 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 argu> 
ments 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 wa» 
produced, and was absent when it was not produced, is the true cause of the 
effect. Arguments founded onsuch a state of things are arguments on the 
method of difference. 



(*) 1— The method ofagroement. 2 -The method of difference. 3— Thn joint metliod of agree- 
ment and difference. 4 — The method of residuP!>. 6— The method of concomitut T«riHtion«. 



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INTBODUCTION. 21 

The following illustration makes the matter plain : Various materials are lUua- 
mixed together on several occasions. In each case soap is produced, and in *"*"<""• 
«sch case oil and alkali are two of the materials so mixed. It is probable from 
this that oil and alkaU are the causes of the soap, and the degree of the proba- 
InUty is measured by the number of the experiments, 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 oil and alkali, are 
mixed and soap is not produced. The mixtiue of the oil and alkali is the cause 
of the soap. This is the method of difference. Theca8e[28] 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 induction is Difflonities 
4Hily one step towards the solution of the problems whioh nature presents. In cSSm^- 
the statement of the rules of induction it is assumed for the sake of simplicity '*'"''°*^5jfL 
that all the causes and all the effects under examination are separate and inde- —result as 
pendent facts, and that each cause is connected with some one single effect, ^^^^f* 
This, however, is not the case. A given effect may be produced by any one of m«nt. 
aeveral causes. Various causes may contribute to the production of a single 
effect. Tlus 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 alkali, 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 com- 
bination of oil, or of alkali, with A, B, C or JD, would be altogether uncertain. 

[29] A vratch is stolen, from a place to which A, B, and C only 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 with it having been stolen by any of the other 
persons mentioned. 

This weakae-ss of the method of agreement can be cured only by so great Weakness 

« multiplication of instances as to make it highly improbable that any other ms^od or 

antecedent than the one present in every instance could have caused the effect agreement 

__ . • • . '^ ■' hOTT cured. 

present in every instance. 

For the statement of the theory of chances and its bearing on the proba- 
bility of events, I must refer those who wish to pursue the subject to the 
many works which have been written upon it, but its general validity will be 
inferred by every one from the common observation of life. If it was certain 
that ather A ot B, A or C, A or D, and so forth, up to A and Z, had commit- 
ted 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 neces- 
sary to ascertain separately in each of the cases relied upon, first, that a theft 
bad been committed ; then, that one of two persons must have committed it ; 
and [80] lastly, that in each case the evidence bore with equal weight upon 
each of them. 

The intermixture of effects and the interference of causes with each other inter- 
is a matter of much greater intricacy and difficulty. ^^Suuid 

It m»y take place in one of two ways, viz : S'<»uSj"°* 

•vrXtb eacli 
other 






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nrTRODUOTION. 



Daduotlve 
method. 



lUastirtf 
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(1) " In the one, which is exemplified by the joint operation of different 
forces in mechanics, the separate efiects of all the causes continoe to be pro* 
duced, 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 by phenoinena altogether different, and 
governed by different laws." 

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 discernible. 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 e^ts. 
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 1 

A balloon ascends into the air. This appears, if it is [81] 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 busts and 
independent theories must be understood and combined together before this 
can be ascertained. 

The difficulty of appljdng 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 
invariablv 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 method, the nature 
of which is as follows : A general proposition 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 inductive 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) Reasoning according to the rules of logic to a conclusion ; 
[82] (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 ss 
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 varying inversely as the square of the 
distance. 

This is the first step, the establishment of the premiss by a process rest- 
ing 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 on 
and no more acted upon by extraneous forces than terrestrial bodies are. 



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INTBODOOTION. 23 

This is the seoond 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 agree. 

This is the verification. The facts observed agree with the facts calcula- 
t«d, therefore the true principle of calculation has been taken. 

This paraphrase, for it is no more, of Mr. Mill — is, I hope [88] sufficient to 
show, in general, the nature of scientific investigation, 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 scientific inquiry. Before 
inquiring 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 Inquiries into matters Jodioiaiand 
of fact, of whatever kind and with whatever object, are, in all cases whatever, ^^i^u w>m- 
inqniries from the known to the unknown, from our present perceptions or our S^fti^JjL- 
present recollection (which is in itself a present perception) 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 oases, 
and of specifying the manner in which it works, though a difficult and delicate 
operation, can be performed. 

There are, however, several great differences between inquiries which DUferences 
are commonly called scientific, inquiries that is, into the order and course of 
nature, and inquiries into isolated matters of fact, whether [84] for judicial or 
historical purposes, or for the purposes of every-day 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. 

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

The great object of physical science is to invent general formulas (perhaps in aotentuie 
unfortunately called laws), which when ascertained, sum up and enable us to {SliaJfted. 
understand the present, and predict the future course of nature. These laws 
are ultimately deduced by the method already described from individual 
facts ; 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 occu- 
pied by different bodies in falling through given spaces, and every such observa- 
tion 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 from any one set of 
experiments[86] 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 



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Iteaimotbe 
InarMUMd. 



24 INTBODUOnOK. 

a strong argument that the course of nature does impress mankind as being 
uniform under superficial variations. For many centuries before the modem 
discoveries in astronomy were made, the motions of the heavenly bodies, were 
carefully observed and inferences as to their future course were founded upon 
those observations. Such observations would have been useless and un- 
meaning, but for the tacit assumption that what they had done in times past, 
they would continue to do for the future. 
taQBliles 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, 
f because the groups of events which form the subject of historical or judicial 
inquiry are so intricate that it can scarcely ever be assumed that they will 
repeat, or that they have repeated themselves. If we wish to know what 
happened two thousands 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. 

[86] With reference to such events we are tied down inexorably to a certain 
limited amount of evidence. We know so much of the assassination of Ceesar 
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 all the deductions 
which experience shows to be necessary in receiving 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 cannot 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 rise from inherent improbabilities in the story 
itself, from differences of detail in the different narratives, or from general 
considerations as to the untrustworthy character of historians writing ou 
hearsay, and at a considerable distance of time from the events which they 
relate, are, and must remain for ever, unsolved and insoluble. 
oldMtof Besides this difference as to the quantity of evidence accessible in 

-' '•' scientific and historical inquiries, there is a 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 [87] nature ; and the attainment of 
practical 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 in- 
complete, so long as any one ascertained fact does not fit into and exemplify 
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 judgment. 

In judicial inquiries (I need not here notice historical inquiries) the case 
tuOMmi is different It is necessary for urgent practical purposes to arrive at a decision 
'"ptrimm. w'hich, after a definite process has been gone through, becomes final and irre- 
versible. It is obvious that, under these circumstances, the patient suspension 



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nrPEODUonoN. 25 

of judgment, and the high standard of certainty required by scientific inqiurers, 
eannot be expected. Judicial decisions must proceed upon imperfect materials. 
and must be made at the risk of error. 

[88] Finally, inquirers into physical science have an additional advantage Bvidenoe in 
over those who conduct judicial inquiries, in the fact that the evidence before Bcientiflc 
them, in so far as they have to depend upon oral evidence, is infinitely more trust- *" 
trustworthy than that which is brought forward in courts of justice. The '"orthy. 
reasons of this are manifold. In the first place, the facts which a scientific 
observer has to report do not affect his passions. In the second place, his 
evidence about them is not taken at all unless his powers of observations have 
been more or less trained and can be depended upon. In the third place, he 
can hardly know what will be the inference from the facts which he observes 
until his observations have been combined with those of other persons, so that 
if he were othermse disposed to mis-state them, he would not know what 
mis^atement 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 observations, and a careful record of its results. 

The very opposite of all this is true as regards witnesses in a court of justice. Bvidenoe 
The facts to which they testify are, as a rule, facts in which they are more or inqumeif' 
less interested, and wluch in many cases excite their strongest passions to the **"rt*h""* 
highest degree. [89]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 according to the effect which they wish to produce. They are generally so 
gttoated 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 conduct are so intricate that even with the best intention on the part of 
the witness to speak the truth, he will generally be inaccurate, and almost 
always incomplete, in his account of what occurred. 

So far it appears that our opportunities for investigating and proving the Advantasee 
existence of isolated facts are much inferior to our opportunities for investing over sclmtl- 
and proving the formulas which are commonly called the laws of nature. There *" tnquiriee. 
is, however, something to be said on the other side. Though the evidence avail- 
able in judicial and historical inquiries is often scanty, and is always fixed in 
amount, and though the 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 ascertaining 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. 

[40] The question whether it is in the nature of things possible that general Maxims 
formulas should ever be devised by the aid of which human conduct can ^praoiated. 
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 pro- 
bability 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 dis- 
tance, no one would feel disposed to deny that a recent possessor of stolen pro- 
perty 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 



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26 INTRODUCTION. 

contents of the document are probably unfavoarable 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 pur- 
poses. 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 bv 
working the pump handle, is as useful as the most perfect knowledge of hydro- 
statics. But if the question were as to the means by which water[41] coidd be 
supplied for a house and field during the year, considerable knowledge of the 
theory and practice of hydrostatics and of varioits other subjects might be 
necessary, and the more extensive the undertaking might be, the wider would 
be the knowledge required, 
^elr Umi- Xo this it must be added that the approximate rules which relate to human 

more easily conduct are warranted principally by each man's own experience of what passes 
perceived, j^ j^jg ^^^ mind, corroborated 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 individual 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, be- 
cause 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 possessor of stolen 
goods is the tliief.' The rise of a balloon into the air would constitute an 
unexplained exception to the first of these rules, which might [42] 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 obser\'ation of a 
neutral, unsympathetic kind, whereas every man knows more of human nature 
than any general rule on the subject can ever tell him. 
Jodtci&i To these considerations it must be added that to inquire whether anisolat- 

are sin^pler ed fact exists, is a far simpler problem than to ascertain and prove the rule ac 
flo*prS *' cording to which facts of a given class happen. The inquiry falls within a small 
biems. er 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. 

For instance, from one series of facts it may be inferred that A had a strong 
tions. motive to commit a crime, say the murder of B. From an independent set of 

facts it may be inferred that 6 died of poison, and from another independent 
set of facts that A administered the poison of which B died. The question is 
whether[43] A falls within the small class of murderers b}- poison. If he does, 
various propositions about him must be true, no two of which have any neces- 
sary connection, except upon the hypothesis that he is a murderer. In this case 
three such propositions are supposed to be true, viz., (I) the death of Bby 
poison, (2) the administration of it by A, and (3) the motive for its administra- 
tion. Each separate proposition, as it is established, narrows the number of 



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INTEODUOTION. 27 

possible hypotheses upon the subject. When it is established that B died of 
poison, innumerable hypotheses which would explain the fact of his death con- 
sistently with A' 8 innocence are excluded ; when it is proved that A adminis- 
tered the poison of which B died, every supposition, consistent with A's inno- 
cence, except those of accident, justification, 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- 

This suggests another remark of the h^hest importance in estimating real {q^qi^^' 
weight of judicial inquiries. It is that such inquiries in all civilized countries parttea in- 
aie, or at least ought to be, conducted in such a manner as to give every person ^Xvi*t^vor- 
interested in the result the fullest possible opportunity of establishing ^^'ij*'^*** 
the conclusion which he wishes to establish. In the illustration just given 
A would have at once the strangest motive to explain the fact that he had administered 
the poison to[44] 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 infinitesimally small 
class of persons who, having a motive to commit murder, and having ad- 
ministered poison to the person whom they have a motive to murder, are un- 
able to suggest any probable reason for supposing that they did administer 
it innocently. > 

The results of the foregoing inquiry may be shortly summed up as ^r'^SSStf 
follows : — 

I. 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 in- 
duction and deduction stated by Mr. Mill, and generally employed for the pur- 
pose of conducting and testing the results of inquiries into physical nature. 

III. By the due application of these rules facts may be exhibited as stand- 
ing 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 accessible. 

IV. The leading differences between judicial investigations and in- 
quiries into physical nature are as follows : — 

1. In physical inquiries the number of relevant facts is generally unlimit- 
ed, and is capable of indefinite increase by experiments. 

[46] 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 that may be required 
in order to obtain full proof of the conclusion 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 testi- 
mony 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 de- 
tection if they make mistakes, and who could not tell the effect of misrepre- 
sentation, 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 



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28 INTRODUCTION. 

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 in- 
quiries every man's [46] individual 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 condition as is to be got out of the materials is far easier than the pro- 
cess of establishing a scientific conclusion with complete certainty, though 
the conclusion arrived at is less satisfactory. 

Jodldai It follows from what precedes that the utmost result that can in any case 

{JJjJJ^^^i^jj. be produced by judicial evidence is a very high degree of probability. Whether 
dooe only upon any subject whatever more than this is possible — whether the highest form 
S^wof *** ^^ scientific proof amounts to more than an assertion that a certain order in 
probability, nature has hitherto been observed to take place, and that if that order conti- 
nues to take place such and such events will happen, are questions which have 
been much discussed, but which lie beyond the sphere of the present 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 isthe probability that a witness or a set of 
witnesses afiirming the existence of a fact which they say they perceived by their 
own senses, and upon which they could not be mistaken, tell 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 [47] any practical 
purpose to attempt to do so. It is enough to say that the process by which a 
comparatively low degree of probability 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. 

o«4^ea of The degrees of probability attainable in scientific and in judical inquiries 

^^BBOTiai'iw- *'* infinite, and do not admit of exact measurement or description. Cases might 
tainty. easily be mentioned 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 distin- 
guish between the two. Whether any higher degree of assurance is conceiv- 
able 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 belong to this inquiry. For all 
practical purposes such conclusions 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[48] happens to be placed in reference to the matter 
of which he is said to be morally certain. 

Moral oar- What constitutes moral certainty is thus a question of prudence, and not 

wa^ra of * question of calculation. It is commonly said in reference to judicial inquiries 
pradMio*. that in criminal cases guilt ought to be proved ' ' beyond all reasonable doubt, ' ' 
and that in civil cases the decision ought to be in favour of the side which is 
most probably right. To the latter part of this role there is no objection, 
though it should be added that it cannot be applied absolutely without 
reserve. For instance, a civil case in which character is at stake partakes 
more or less of the nature of a criminal proceeding ; but the first part of the 

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INTBODUCnON. 29 

rule means nothing more than that in most cases the punishment of an 
innocent man is a great evil, aud ought to be carefully avoided ; but that, on 
the other hand, it is often impossible to eliminate an appreciable though un- 
definable 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 " reasonable " 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. 

[49] Though it is impossible to invent any rule by which difEerent probabi- Principle of 
lities can be precisely valued, it is always possible to say whether or not they probabU?*^ 
fulfilthe conditions of what Mr. Mill describes asthe method of Difference; and ff^S^^Su,, 
if not, how nearly they approach to fulfilling it. The principle is precisely method of 
the same in all cases, however complicated or however simple, and whether the <>"•'•"«•• 
nature of the iuqu'-ry is scientific or judicial. In all case's the known facts must 
be arranged and classified with 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 hypothesis is 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 ultimate 
question in judicial proceedings is and must be in most cases a question of pru- 
dence. 

Let the question be whether A did a certain act ; the circumstances are such muBtration. 
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,[50] 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 stronger than B, 
bat the disproportion between their strength is less, it is probable that A did 
it, but not impossible than 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. 

Such being the general nature of the object towards which judicial inquiries Jndioial 
are directed, and the general nature of the process by which they are carried on, Svoi^two 
it will be well to examine the chief forms of that process somewhat more parti- classes of 
CUlarly. inferoncwi. 

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 documentary, 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 there- 
fore be classed [61] under the general head of inferences from an assertion to 
the truth of the matter asserted. 



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30 



INTRODUCTION. 



Direct and 
clronma- 
tantial evi- 
denoe. 



Illostra- 
tlon. 



This is the distinction usually expressed by saying that all evidence is either 
direct or circumstantial. I avoid the use of this expression, partly because as 
I have already observed, direct evidence means direct assertion, wheteaa 
circumstantial evidence means a fact on which an inference is to be founded, 
and partly for the more important reason that the use of the expresdou 
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 already stated. In every case the question is, 
are the known facts inconsistent with any other than the conclusion suggested ? 
The known facts in every case whatever are the evidence in the narrower sense 
of 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 witnesses, entirely 
above suspicion, come,[62] 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 proceed- 
ing 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) im- 
probable in the highest degree, and generally speaking they would be so. In 
such a case the first hypothesis, i.e., 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 witnesses 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 C 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 circum- 
stantial evidence ; yet it is obvious that the principle on which the[68] investi- 
gation proceeds as in the last case is identically the same. The only difference 
IS in the number of inferences, but no new principle is introduced. 

It is also clear that each case is identical in principle with the method of 
thtepSij^ difference as explained by Mr. Mill. 

Mii^s^^eo- ^^- bill's illustration of the application of that method to the motions of 

•v. the planets is as follows : — The planets with a central force give areas propor- 

tional 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, i.e., no other cause can account for those assertions 
having been made. If the will had not been executed those assertions would 
not Ifove been made. But the assertions were made. Therefore the will 
was executed. 



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INTBODUCTIOM. 31 

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 pecuharities. 

The inference from the assertion to the truth of the matter asserted is inf«r«nce 
usuallj regarded as an easy matter, calling for little remark. semoo^ 

Though in particular cases it is really easy, and though in a certain sense Sertedf ^* 
it is always easy, to deal with, to deal with it rightly, is by far the most difScult 
task which falls to the lot of a ^udge and miscarriages of justice are almost 
[64] invariably caused by deabng with it wrongly. This requires full ex- 
planation. 

To infer from an assertion the truth of the matter asserted isinone 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 uncon- 
sciously. But to draw the inference in those cases only in which it is true is a 
matter of the utmost difSculty. If we were able to affirm the proposition, 
"All men upon all occasions speak the truth " the remaining propositions, — 
"This man says so and 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 observation and memory of jta dUBcni- 
a man seen once for a few minutes to 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 will 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 bafHe the most skilful cross-examiner in the absence of accidents which 
ue not BO common in practice as[65] persons who take their notions on the 
subject from anecdotes or fiction would suppose. 

No roles of evidence which the legislator can enact can perceptibly afEect oannot be 
this difficulty. Judges must deal with it as well as they can by the use of J^*^*^ ^j. 
their natural faculties and acquired experience, and the miscarriages denoe. 
of justice in which they will be involved hj 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 or 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. 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 
oome 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 
faimliar moments he will have great difficulty in finding any good reason for 
believing one man rather than another. The [66] 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 teDs the truth or what inference is to be drawn from a particular fact. 



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32 



INTRODUOnOM. 



Orounds for 
balleTlng 
and dla- 
beltoTloff a 

witness. 



Power. 



Will. 



The oorreotnesa wifch which this is done must depend npon the oatonl 
sagacity, the logical power and the practical experience of the judge, not 
upon his acquaintance with the law of evidence. 

The grounds for believing or disbelieving particular statements made by 
particular people under particular circumstances may be brought under three 
heads, — ^those which afiect the power of the witness to speak the truth ; those 
which afiect his will to do so ; and those which arise from the nature of the 
statement itself and from surrounding circumstances. 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 expression depends 
upon an infinite number of circumstances, and varies in relation to the subject 
of which he has to speak. 

A man's will to speak the truth depends upon his education, his characier, 
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[67] other circums- 
tances as to the presence or absence of which in any particular case it is often 
difficult to form a true opinion. 

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

Probability Many discussions have taken place on the efiect of the improbability of a 

men?** statement upon its credibility in cases which can never fall under judicial con- 
sideration. It is unnecessary to enter upon that subject here. Looking at the 
matter merely in relation to judicial inquiries, it is sufficient to observe that 
whilst the improbability of a statement is always a reason, and may be, in prac- 
tice, a conclusive reason for disbelieving it, its probability is a poor reason for 
believing it if it rests upon uncorroborated testimony. Probable falsehoods 
are those which an artful liar naturally tells ; and the fact that a good opportu- 
nity for telling such a falsehood occurs is the commonest of all reasons for its 
being told. 

■xperience Upon the whole it must be admitted that little that is really serviceable 

la uie only can be said upon the inference from an assertion to the truth of the matter as- 
rabjM^" * serted. The observations 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 impossible 
to do so.' The most acute observer would never be able[68] 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 obser- 
vations would probably be of little use to others. Every one must learn 
matters of this sort for himself, and though no sort of knowledge is so im- 
portant to a judge, no rules can be laid down for its acquisition.(l) 



(1) I may give a few anecdotes which have no 
particular valae in themBelres, but which show 
what I mean. ' ' 1 always nsed to look at the wit- 
nesses' toes when I was croas-oxamining them>'* 
said a friend of mine who had practised at the bar 
in Ceylon. ' ' As soon aa they began to lie they 
always fidgeted about with them. " 1 knew a 
judge who formed the opinion that a letter had 
been forged because the expression "that woman' ' 
which it contained appeared to him to be cme 
which a woman and not a man would use, and 
the question was whether the letter in question 



had been forpod by a woman. In the IJfe of 
Ijord Keeper Cuilford it is said that he always 
acted on the principle that a man was to be be- 
lieved in what he said when be was in a psssioo. 
The commonplaces about Uie evidence of poHee- 
men. children, women, and the natives of parti- 
cular countries belong to this subject. The only 
remark I feel inclhied to add to what is ccounanly 
said on it is that, according to my obserratioa, 
the power to tell the truth, which imjdice aceorat* 
obaervation, knowledge of the relative impor- 
tance of facts, and power of desoriptioa, properly 



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iNTBODnarioN. 33 

If the opinion here advanced appears strange, I would invite attention to lu^atra- 
the following illustration : — Is there any class of cases in which it is, in practioe, tlon. 
[59] 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. No- 
thing particular is known about the character or previous history of either. 
The woman is not betrayed on oross-dxamination 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 complicated 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 
S3 being the conclusions of syllogisms in this form : — 

All men situated in such and such a manner speak the 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 fasely (as the case may 
be). 

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

[60] In many cases the defects of inferences of the first kind may be inciden- inference 
tally remedied by inferences of the second kind, namely, inferences from facts trom facts 
which are asserted, and, on the ground of such assertion, believed by the court SoS^ot** 
to exist, to facts not asserted to exist ; and these I now proceed to examine, otherwise 

I have observed that the inference from an assertion to the truth of the inferenoe 
matter asserted often is as easy as it always appears to be. In very many Jf""* to***'^ 
instances, which it is much easier to recognise when they occur than to reduce truth acme- 
to role, a direct assertion, even by a single witness of whom little is known, is ^^y" "'"'^ 
entitled to great weight. Suppose, for instance, that the matter asserted is of a 
character indifierent in itself and upon which the witness is, or for aught he can 
tell may be, open to contradiction. A single assertion of this sort may out- 
weigh a mass of artfully combined falsehood. Suppose, for instance, that a 
number of witnesses have been called to prove an alM, and that they allege that 
on a given day they were all present together with the person on behalf of whom 
the alibi 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 till 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 assertions. Why? Because the magistrate of the 
district would be a man of [61] 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 cogni- 
zant and on whioh he could hardly be mistaken ; and lastly, because the fact 
would be known to a vast number of people, and he would be open to contra- 
diction, detection, and ruin if he spoke falsely. Change these circumstances 

proportioned to each othpr, u mack lees common cult for euch a person to distingniBh between whet 

then people nraaOy snppoae it to be. It i» ex- they themaplves «aw and heard and what they 

*™«i>ely diflkoH for an untrained penon not to were told by others, unleea their attention is spe* , 

■»ht «p infetenoe and eseertion. It is also diffi- oially directed to the disUnotioo. 

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34 INTBODOCTION. 

and the equally explicit testimony of the vei>' 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 inan 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 estab- 
lished by direct assertions made undfer 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 unsatisfactory witnesses. 

enoea com- These inferences are generally considered to be more difficult to draw than 
•a^.*'^*''' the inference from an assertion to the matter asserted. In [62] fact, it is fat 
easier to combine materials supposed to be sound, than to ascertain that they 
are sound. In the one case no rules for the judges' guidance can be laid down. 
No process is gone through, the correctness of which can afterwards be indepen- 
dently 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 Mr. Huxley remarks, every one has a general superficial 
acquaintance tested by every-day practice, and the theory of which it is easy 
to understand and interesting toJoUow out and ^^pply. 

fami"t€jrt*of The facts supposed to be proved must ultimately fulfil tb conditions 
diffenmoe' "^ *^® method of difference, but they may be combined by any of the 
recognised logical method or by a combination of them all. The object, 
indeed, at which they are all 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 account 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 guilt in each and every case. It 
would be practically impossible to account for such facts except Upon the as- 
sumption of [68] systematic fraud. Logically, this is an instance 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. 

proSSm-"* The well-known cases in which guilt is inferred from a number ot separate 

ticB independent, and, so to speak, converging 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 bad an opportunity for murdering B. 

Whoever murdered B made preparations for the murder of B. 

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

In each of these instances, which might of course be indefinitely 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 hap- 
pen that these coincidences may be multiplied to such an extent and may be 



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INTRODUCTION. 36 

of such a character as to exclude the supposition of chance, and justify the in- 
ference that A was guilty. (1) The case, however, is a [64] rare one, and there is 
always a great risk of injustice unless the facts proved go beyond the mere 
multiplication of circumstances separately indicating guHt, 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 mostra- 
prove that Sir Philip Francis was the author of Junius' s letters, is an instance tlon. 
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 im- 
pertinent to refer here, but that the method on which it proceeds is legitimate 
there can be no doubt. 

The cases in which it is most probable that injustice will be done by the s,u\9 as to 
application of the method of agreement to judicial inquiries are those in which ^''^^ 
the existence of the principal fact has to be inferred from circumstances point* 
ing to it. This is the foundation of the well-known rule that the corpus delecti 
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 per- 
son has been discovered. Neither of these rules is more than a rough and par- 
tial application of the general principle stated above. If the circumstances are 
[66]such as to make it morally certain (witin the definition given above) 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 with no other luoatra- 
vessel in sight, is seen to run into his cabin, pursued by several mutinous sailors. *io°« 
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 opened. 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 dis- 
appears. The man being pursued, runs away and swims across a river ; he is 
anested 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 inference that a crime nxiBtency 
has been committed at all is a mistake. They may often be resolved into a S^fiJJJf" 
case of begging the question. The process is this : suspicion that a crime has sometimes 
been committed is excited, and upon inquiry a number of circumstances are f^^^§}^ *"' 
discovered which if it is assumed that a crime has been committed are suspicious, 
but which are not suspicious unless that assumption is made. 

[d8]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 preparation and expectation on his part if the ship 
really was made away with, but which would justify no suspicion at all if she 
was not. It is manifestly illogical first to regard the antecedent circumstances 
as suspicions, because the loss of the ship is assumed to be fraudulent, and next 

(1) Sw Richardson's Case, p. S9 (». e., *6 of this introduction) 

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86 mTEODUOIION. 

to infer that tie ship was fraudulently destroyed from the suspicious character 
of the antecedent circumstances. Tlus, however, is a fallacy of very common 
occurrence, both in judicial proceedings and in common life.(l) 

The modes in which facts may be so combined as to exclude every hypo- 
thesis 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 prac- 
tice than from abstract theories. One of the objects of the illlustrations 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 : — 

Snmmaryof I. In judicial inquiries the facts which form the materials for the decision 

oono naions. ^£ ^^^ court are the facts that certain persons assert certain things under 

certain circumstances.[67] 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 those inferences is an inference from the efiect to the cause, 
and each ought to conform to the Method of Difference ; that is to say, the cii- 
comstances m each case should be such that the effect is inconsistent (subject 
to the limitations contained in the following paragraphs ) with the existence 
of any other cause for it than the cause of which the existence is proposed to 
be prove'd. 

IV. The highest result of judicial investigation must generally 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. 



(1) An iUuBtration of thisform of error occurred away the Schooner Krin, and eubaeqaently receif- 
in ths esse of B. ▼. Steward and two other;, who ed a free pardon on the ground of their innocence- 
were ooovicteil at Singapore in 1867 for casting 



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[68] CHAPTER III. 

THE THEORY OF RELBVANCT, WITH ILLUSTRATIONS. 

An intelligence of sufficient capacity might perhaps be able to conceive SSm^^oon- 
cf all events as standing to each othei in the relation of cause and effect ; and °«otion »' 
though the most powerful of human minds are unequal to efforts which fall Saoae^ax^ 
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 legard to inanimate 
matter, to very considerable lengths, but to see that numerous events are 
connected together, although the precise nature of the links which connect 
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 existence of any fact, 
all facts arc 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. 

It may be said that this theory would extend the limits of relevancy beyond otijeotiotis. 
all reasonable bounds, inasmuch as all events whatever are or may be more or 
[60]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. 

The answer to this objection »s, that wide, general causes, which apply to r.ll Answer. 
occurrences, are,in most cases, admitted, and do not require proof ; but no doubt 
if their apj^lication to the matter in question were doubtful or were misunder- 
stood, it might be necessary to investigate them. For instance, 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 substantially 
the same as the patentee's machine. All the facts, therefore, which went to 
make up each machine would be facts in issue. But each machine would be 
constructed with reference to the general formulae called 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 inventor of barometers had taken out 
a patent, and had had to defend its validity, the variation of atmospheric 
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 arn connected together more or Traceable 
less remotely as cause and effect, it is to be observed that though this is or may SS*ea"'on'^ 
be true, it is equally true that the limit [70] within which the influence of effeote nar- 
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 in 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 eff^ 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 
inquiring 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 which can be Rule as to 
shown to stand either in the relation of cause or in the relation of effect to the SIS^ ^Sme 

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38 



INTRODUCTION. 



sobjact to 
caution that 
every step 
In the oon- 
neotlon 
mast be 
made out. 
niostra- 
tlon. 



Obscurity 
of this 
definition. 



Importctnoe 
of their' 
seotione. 



(2) 
(4) 



fact to which thej are said to be relevant, may be accepted as true, subject to 
the caution that, when an inference is to be founded upon the existence of such 
a connection, every step by which the connection is made out must either be 
proved, or be so probable under the circumstances of the case that it may be 
presumed without proof. Footmarks are found near the scene of a crime. The 
circumstances are such that they may be presumed to be the footmarks made 
by the criminal. These marks [71] 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. 

The person who committed the crime probably wore his own shoes. 

The shoes so pressed were probably these shoes. 

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 them. 

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

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

(4) The flight of the criminal was caused by the commission of the crime. 
[72] (5) Therefore the marks were caused by the flight of A the criminal. 

after committing the crime. 

Though this mode of describing relevancy might be correct, it would not 
be readily understood. For instance, it might be asked, how is an alibi relevant 
under this definition? The 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 obscure, and it was for 
this reason that relevancy was very fully defined in the Evidence Act ( ss. 6- 11 
both inclusive). These sections enumerate specifically the different instances 
of the connection between cause and effect which occur most frequently injudi- 
cial 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 (8.7). Subsequent conduct influenced by it (s. 8) is part of its effect (s. 7). 
Facts relevant under s. II 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 ss 
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 the most original 
part of the Evidence Act, as they affirm positively what facts may be proved, 
whereas the English law assumes this to [78] be known, and merely declares 
negatively that certain facts shall not be proved. 

Important as these sections are for purposes 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 wasformerlys.57 of Ilof 1865, renders it practically a matter of little 
importanoe 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 



*( Sic ) read these. 



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INTRODUCTION. 39 

question and answer would give a right to a new trial in a civil case, and would 
upon a criminal trial be snmcient 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 will lead to anything relevant, 
ask about it himself under s. 165. 

In order to exhibit fully the meaning of these sections, to show how the Act lustra 
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 following remarkable trials : — 

[74] 1. R. ». Donellan. 

2. R. V. Belany. 

3. R. V. Richardson. 

4. R. V. Patch. 

5. R. V. Palmer. 

To every fact proved in each of these cases, the most intricate that I could 
•liscover, 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 principles of evidence are, 
perhaps, more clearly displayed in trials for murder, than in any others. Mur- 
ders are usually concealed 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 punish- 
ment and excite peculiar attention, the evidence is generally investigated 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. 



I. 
'[76] Case of R. ». Doneli.an.(1) 

John Donellan, Esq., was tried at Warwick Spring Assizes, 1781, before 
Mr. Justice BuUer, for the murder of Sir Theodosius Broughton, his brother-in- 
law, a young man of fortune, twenty years of age,(2) who, up to the 
moment of his death, had been in good health and spirits, with the exception 
of a trifling ailment, for which he occasionally took a laxative draught.(2) 
Mrs. Donellan was the sister of the deceased, and, together with Lady Brough- 
ton, his mother lived with him at Lawford Hall, the family mansion.(3) 

In the event of Sir T. Broughton' s death, unmarried and without issue, the 
greater part of his fortune would descend to Mrs. Donellan ;(4) but it was 



(1) Wirb, nn ■' (ircumatantui KTideoci-, " pp. (3)8t»teof tilings under which facts in iesue 
"*•*• happened (section 7). 

(2) Introdoctarv fact (section 9). (4) Motive (section 8). 



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40 ItJTBODUCTION. 

stated, though not proved, hj the prisoner in his defence that he on hig 
marriage entered into articles for the immediate settling of her whole fortune 
on herself and children, and deprived himself of the possibility of enioying 
even a life estate in [76] case of her death, and that this settlement extended 
not only to the fortune, but to expectancies. (1) 

For, some time before the death of Sir Tbeodosius the prisoner bad on 
several occasions falsely represented his health to be very bad, and bis life to 
be precarious. (2) On the 29th of August the apothecary in attendance sent 
him a mild and harmless draught to be taken the nert moming.(3) In the 
eveninfr the deceased was out iishin^,(4) 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 falBe.(5) When Sir Theodosius was called on the follow- 
ing morning he was in good health,(6) and about seven o'clock his mother 
went to his chamber to give him his draught, (7) of which be immediately 
complained, (8) and she remarked that it smelt like bitter almond8.(9) 
[77] In about two minutes he struggled very much as if to keep the medieine 
dcwn, and Lady Brougbton observed a gurgling in his stomach ;(13) in ten 
minutes he seemed inclined to doze ;(10) but m 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. "(10) 

Lady Brougbton ran dowiutairs to give orders to a servant to go for the 
a}>othecary, who lived about three miles distant.(ll) and in less than five 
minutes after Sir Theodosius had been taken Donellan asked where the 
physic bottle was, and Lady Brougbton showed him the two bottles. The 
prisoner then took on one of them and said " Is this it ?" 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 Brougbton 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 
Brougbton 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.(12) though(12) 
he had not tasted the first bottle. (13) The prisoner ordered a [78] servant to 
take away the basin, the dirty things, and the bottles, and put the bottles mto 
her hands for that purpose ; she put them down again on being directed by 
Lady Brougbton to do so, but subsequently removed them on the peremptory 
order of the prisoner.(14) On the arrival of the apothecary the prisoner said 
the deceased bad been out the preceding evemng fishing, and had taken cold, 
but he said nothing of the draught which he had taken.(li) The prisoner bad 



(1) Fact rebutting on inference suggmted by a gested to be imiaoned -vrw ft fact in Imuc (sertioo 
relevant fact (section 9). Tbeee facts are omitted 6). 

by Hr. Wills, but are mentioned in my account (8) As to tbis, see section 14. 

of the case. Gen. View, Crim. Lav, p. 338. (9) t. c, of pniesic acid. Lady Brongfatca 

(2) Facts shoving preparation for facts in issue perceived by smell the presence of the poisco. 
(seoticHi 8). The statements are also adn.issicns Therefore she smelt a fact in issue (section fi). 
as against the prisoner (section 17). X 1 0) Effects of facts in issue (section 7). All that 

(3) A fact affording an opportunity for facts in facts go to make up the fact of his deatlu iHuch 
J ssue (seotion 7). was a fact in issue. 

(4) Introductory to vhat follows (section 9). (11) Introductory to next fact aa fixing the tgne 

(5) Preparation (section 8). Admission (section (section 9). 

17). (12) Subsequent conduct influenced by a fact in 

(6) Stete of things under which fact in issue issue and statements explanatory of conduct (sec- 
happened (section 7). tion 8). 

(7) It was suggested that Donellan changed the (13) This word is Ur. Will's comment, 
apothecary's draught (or a poisoned one admi- (14) Subsequent conduct and explanatc: v r -• 
nistered by Lady Brougbton, an innocent agent. n.cnts (&r?tioii ^'. 

Therefore the administration of <he drauirht sue- 



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INTBODUOTION. 41 

a still in lus own room wUch he used for distilling roses ;(1) and a few days 
after the death of Sir Theodosioshe brought it full of wet lime to one of the 
servants to be cleaned.(2) The prisoner made several false and inconsbtent 
statements to the servants as the cause of the young man's death ;(3)and on 
the day of his death he wrote to Sir W. Wheeler, his guardian, to inform him of 
the event, bat made no reference to its suddennes8.(3) The coffin was soldejed 
up on the fourth day after the death.(4) 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 poi8on,(5) wrote a letter to the prisoner reque8ting[79] that 
an examination might take place, and mentioning the gentlemen by whom 
he wished it to be conducted. (6) 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,(7) and finding the body in an advanced 
state of putrefaction, the medical gentleman declined to make the examination 
on the ground that it might be attended with — personal danger. On the 
following 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. (8) On the same day the prisoner 
wrote to Sir W . Wheeler a letter in which he stated that the medical men had 
folly satisfied the family, and endeavoured to account[80] for the event by the 
ailment under which the deceased had been suffering ; but he did not state that 
they had not made the examination. (9) Three or four days after. Sir W. 
Wheeler having been informed that the body had not been examined(lO) wrote 
to the prisoner insisting that it should be done,(ll) which, however, he pre- 
vented by various disingeneous contrivance8,(12) and the body was interred 
without examination.(13) 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.(14) When Lady Broughton, in giving evidence 
before the coroner's inquest, related the circumstance of the prisoner having 
rinsed the bottles, he was observed to take hold of her sleeve and endeavour 
to check her, and he afterwards told her that she had no occasion to have 
mentioned that circumstance, but only to answer such questions as were 
pat to her ; and in a letter to the coroner and jury he [81] endeavoured to 



(I) Opportunity to distil Isurel water, the poi- effect of preventing oxaininationa (section T). The 

MO said to liSTe been used (section 7). ground on which they refused tends to rebut this 

(1) SufaMquent conduct (section 8). inference (section 9), but the second doctor's 

(3) Admiasions, 17, 18. offer, and the prisoner's conduct thereon, tend 

(4) Introductory to what follows (section 9). to confirm it (section 9). 

(5) Introductory to, and expUnatory of, what (9) Subsequent conduct (section 11) and admia- 
ioUows (section 6). It should le otserved that sion (section 17). 

frooj o< the tumours and suspicions for the (10) Introductory (section 9). 

pwp«« of shoving the truth of the matters (11) Statement to the prisoner affecting bis con- 

ramonred and suspected would not be admissible. duct (section 0, ex. 2.) 

Th* fact that there were rumours and suspicions (12) Each contrivance and each circumstance 

eipUins Sir W. Wheeler's letter. which showed that it was disingenous would come 

(t) Statement to the prisoner and affecting his under the head of subsequent conduct (section 8). 

eoaduot (section 8, ex. 2). (13) The burial was part of the transaction (sec- 

17) Subsequent conduct of prisoner (section 8) tion 6.) The absence of examination is explanu- 

and Mr. Wills's comment on the conduct. tory of parts of the medical evidence. The whole 

(8) Subsequent conduct (section 8). The fact is introductory to medical evidence (section 9). 

that the first set of doctors refused explains the (14) Introductory to opinions of experts (seo- 

P*'»<«>er's conduct by showing that it bad the tions 9, 45, 46). 



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42 INTRODUCTION. 

impiess them witU the belief that the deceased had inadvertently poisoned 
himself with arsenic, which he had purchased to Idll fish.(l) 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 post-mortem 
appearances, the smell of the draught as observed by Lady Broughton, and the 
similar effects produced by experiments upon animals, that the deceased 
had been poisoned with Uurel water ;(2) one of them stating that on 
opening the body he had been affected with a biting acrimonious taste like that 
which affected him in all the subsequent experiments with laurel water.(3) 
An eminent (4) surgeon and anatomist stated a positive opinion that the 
symptoms did not necessarily lead to the conclusion that the deceased had 
been poisoned, and that the appearances presented upon dissection explained 
nothing but putrefaction.(2) The prisoner was convicted and executed. 



II 

[82] Case of R. k. Belaney. (5) 

A surgeon named Belaney was tried at the Central Criminal Court, Aogiut 
1844, before Mr. Baron Ourney, for the murder of his wife. They left their 
place of residence, at North Sunderland, on a journey of pleasure to London 
on the Ist of June ( having a few days previously made mutual wills in each 
other's favour),(6) where on the 4th of that month they went into lodging8.{7) 
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. (8) On the 8th being the Saturday morning after the arrival in 
town, the prisoner rang the bell for some hot water, a tumbler, and a 
spoon ;(9) 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 
upstairs, saying that his wife was very ill ; and she found her lying motion- 
less on the bed, with her eyes shut and her teeth closed, and foaming at the 
[88] mouth. On being asked if she was subject to fits, the prisoner said 
she had had fits before, but none like this, and that she would not come out 
of it. On being 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 being further pressed to send for a doctor and his friends he assented, 
adding that she would not come to ; that 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 

(1 ) Subsequent conduct (section 8) sod sdmis- (5) Will»,on " rirrumrtRntinl Evidence, " pp. 
sions (MCtion 17). 175-178. 

(2) Opinion of expert* (section 46). (8) Motive (section 8). 

(3) Thi* is a case of tasting a fact in issue. (7) Introductory (seclion 9). 

m., the laurel irater present in the body. See (8) State of tl;inrs ur.der vbicli f«ct in iwn« 

definition of fact,' section 3. happened (sec'ion 7). 

(4) Thia was the famous .John Hunter. (9) Prepnr,".tion (section 8). 
(5) 



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INTRODUCTION . 43 

arrival the patient had died.(l) There was a tumbler close to the head of the 
bed, about oae-third full 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.(2) 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.(3) On the same morning the prisoner 
ordered a grave for interment on the following Monday.(4) In the 
[84] meantime the contents of the stomach were examined and found^to con- 
tain prussic acid and Epsom salts. It was deposed 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 aSusion, 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 efFetuaL 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.(5) The prisoner had purchased prussic acid, 
as also acetate of morphine, on the preceding day, from a vendor 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. (6) 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 [86] 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 write to his friends 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 H 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 Eustom 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. 
For these statements there was no foundation. At that time moreover he had 
removed from the Eustom Hotel into lodgings, and on the same day he had 
made arrangements for leaving his wife in London, and 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 [86] 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 pronounced her heart to be diseased ; these re- 
presentations were equally false. In another letter, dated the 9th of June, but 

tl) The death liiid attendant circumstances are (8) Kllect of poisoning (section 7), opnions ot 

'sets in issne and part of the transaction (sections experts (sections 45, 46). The absence of the 

5, 26). The other facts are oondoct (section 8) smell of prussic acid and the presence of tlie drafts 

»nd admissians (sections 17, 18). are respectively a fnct suggesting the absence of 

(2) State of things at death, or cause or effect prussic acid, and a fnct rebutting tlmt inference 
«< adminktration of poison (section 7). (section 9). 

(3) AdmiisioDS (sections. 17, 18). (6) Preparation (section 8) and fact rebutting 
4) Condnot (section 8). inference from purchase of poison (section 9). 



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44 INTBODUOTIOK. 

not posted until the 10th. he stated the fact of his wife's death, but without 
any allusion to the cause ; and in a subsequent letter he stated the reason foi 
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 falsehood, the prisoner having himself stated in 
writing to the registrar of burials that brain fever was the cause of death.(l) 
It was, however, proved that the prisoner was of a kind disposition, that he and 
his wif( had lived upon aSectionate terms and that he was extremely carelesE 
in his habits ;(2) 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. (3) 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 
acquittal. 
of Th0 two cases of Donellan and Belaney are not merely curious in them- 



^d'seSt- selves, but throw li^ht upon one of the most important of the [87] points 
ney. connected with judicial evidence, the point namely as to the amount of 

uncertainty which constitutes what can be called reasonable doubt. This I 
have already said is a question, not of calculation, but of prudence. 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 
fielaney's case the jury thought that the possibility 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-important principle that every case is independent of every other, 
and that no decision upon facts forms a precedent for any other deoinon. If 
two juries were to try the very same case, upon the same evidence and with 
the same summing up and the same arguments by counsel, thejr might very 
probably arrive at opposite conclusions, and yet it might be impossible 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 at [88] 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 better 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. 



(1) All these nre ndmiasions (sections 17, 18), (2) Character (rection 63). 

and conduct (section 3). (3) Motive (section 8). 



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INTBODUOTION. 45 

III. 

[89] Case of R. v. Rtchardson.( 1) 

In the autumn of 1786 a young woman, who lived with her parents in a 
remote district in the stewartry of Kirkcudbright,(2) was one day left alone 
in the cottage,{3) her parents having gone oat to the harvest-field.(4) On 
thuir return home a little after mid-day,(2) they found their daughter murder- 
ed,(6) with her throat cut(6) in a most shocking manner. 

The circumstances in which she was found, the character of the deceased, 
and the appearance of the wound, all concurred in excluding all supposition 
of suicide ;(7) while the surgeons who examined the wound were satisfied 
that [90] it had been inflicted by a sharp instrument, and by a person who 
must have held the weapon in his left hand. (8) Upon opening the body the 
deceased appeared to have been some months gone with child ;(9) 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 quagmire or bog, in which there were stepping- 
8tones.(10) It appeared, however, that the person in his haste and confusion 
had slipped his loot and stepped into the mire, by which he must have been 
wet nearly to the middle of the leg.(ll) The prints of the footsteps were 
accurately measured and an exact impression taken of them,(12) 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.(l2) These were discovered also 
along the track of the footsteps, and at certain intervals drops of blood, and 
on a stile or small gateway near the cottage, and in the line of the footsteps 
some marks resembling those of a hand which had been bloody.(12) Not 
the slightest suspicion at this time [91] attached to any particular person as the 
murderer, nor was it even suspected who might be the father of the child of 
which the girl was pregnant. (13) At the funeral a number of persons of both 
sexes attended,(H) and the steward-depute thought it the fittest opportunity 
of endeavouring, if possible, to discover the murderer conceiving rightly that, 
to avoid suspicion, whoever he was he would not on that occasion be 
abeent.(12) With this view he called together, after the interment, the whole 
of the ipen who were present, being about sixty in number.(14) He caused 
the shoes of each of them to be taken 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 



(1) Willi, p. 225-329. Mr. Wills olserres, "This relevant fact (section II). 

cue is »lao concisely st.ated in the Memoirs of the (8) Opinions of experts (section 46). 

Ufe of Sir Walter Scott. IV, p. 52, and it supplied (9) State of things under which death happened 

«w of the most striking incidents in Ouy Man- (section 7). Motive (section 8). 

nering. " (10) Efiects of fact in issue (section 7). 

(2) Introductorjr (section 9). (II) This is so stated as to mix up inference and 

(3) Opportunity (section 7). tact. Stripped of inference, the fact might have 

(4) Explanatory (section 9). been stated thus, — ' There were such marks in 

(5) Mr. Wills' comment. They found her with the bog as would have been produced if a person 
the thro«t cut. and Mr. Wills says she was crossing the stopping-stones had slipped with 
murdered ; bat her murder was to them an one foot. The mud was of such a depth that a 
inference, not a tact (section 3). person so slipping would get wet to the middle 

(0) Fact in issue (section 5). of the leg. ' 

(7) Sakide would be a relevant fs«t as being (12) Effects of fact in issue (section 7). 

mcomteteikt with murder. The facts which ex- (13) Observation. 

Hud* tuidde are relevant as inconsistent with a (14) Introductory (section 9). 



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46 INTBOD0CTION. 

the shoe, it was discovered that it was pointed at the toe, whereas the im- 
pression of the footstep was round at that place.(l) The measurement of 
the rest went on, and after going through nearly the whole number one at 
length was discoverd which corresponded exactly with the impression in 
dimensions, shape of the foot, form of the sole, and the number and position 
of the nails.(2) William Richardson, the young man to [92] 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,(3) — a statement which his master and 
fellow servants who were present confirmed. (4) This going so far to remove 
isuspicions a warrant of commitment was not then granted, but some circum- 
stances occurring a few days afterwards having a tendency to excite it anew, 
the young man was apprehended and lodged in Jail.(5) Upon his examina- 
tion (6) he acknowledged that he was left-handed ;(7) and some scratches 
being observed on his cheek, he said he had got them when pulling nuts in a 
wood a few days before.(8) He still adhered to what [88] he had said of his 
having been on the day of the murder employed constantly in his master's 
work ;(9) but in the course of the inquiry it turned out that he had been 
absent from his work about half an hour, the time being distinctly aacertained, 
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. (9) 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 Richardson was absent from his fellow- 
servants), she saw a person exactly with his dress and appearance 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. (10) 

His fellow-servants now recollected that on the forenoon of that day they 
were employed with Richardson in driving their master's carts, and that, 
when passing by a wood which they named, he said that he most ran to the 
[94] 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 haviqg at the time looked at his watch, they 



(1) Irrrlevant. (7) The fact that he iras left-banded TonM be 

(2) The makinK of the footmark was an effect a cause of a fact in iaaue, en':., the pecuKar way 
of. or conduct aubseqnent to and effected hy, a in vhich the fatal wound was given. The admia- 
fnrt in ifwue (section 7). The measurement of sion that he was left-handed would be relevant a« 
the sixty shoes, of which one only corresponded proof of the fact by sections 17, 18. 

exactly with the mark, was a fact, or rather (8) If it was suggested that the scratches were 
a set of facts, making highly probable the made in a struggle with the girl, they wouM be 
relevant fact that that shoe made that mark effects of a fact in issue (section 7), and the state- 
(section II). The experiment itself is an appU- nient would be relevant as against the priMoer as 
cation of the method of difference. Thin shoe an admission (sections 17. 18). 
would make the mark, and no other of a very (0) Opportunity (section 7). Admissians (see- 
large number would. tions 17, 18). The call at the shop was ptepars- 

(3) This would be relevant against him, but tion by making evidence (section 8. illustration e). 
not in his favour as an admission (sections, 17, (10) There is here a mixttire of {act and infer- 
18 ). ence ; the girl could not know that a muidor was 

(4) The fact that his master and fellow-servant committed at the time when it was committed, 
conflrmed his statement is irrelevant. If they Probably she mentioned the time, and it corres- 
had testified afterwards to the fact itself, it would ponded with the time when Richardson was sway, 
have been relevant. This would be preparatioo and opportunity (see- 

(.1) Irrelevant. tion 7). The existence of the small emineooe 

(0) By Scotch law, as well as by the Code of explains her not seeing him return (aectiaa D). 
Criminal Procedure, a prisoner may be examined. 



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INTRODUCTION. 47 

remarked on liis return that he had been absent a longer time than he said he 
would be, to which he rephed 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 
iihehad stepped in a puddle. He said he had stepped into a marsh, the name 
of wlucb 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, committed the 
murder, and returned to them.(l) A search was then made for the stockings 
he had worn that day. (2) 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. (3) 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, [96] and had stood at such a 
distance that the blood could not have reached him. (4) On 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 being found in that neighbour- 
hood. (5) 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. (6) It then came 
out that Richardson had been acquainted with the deceased, who was con- 
sidered 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 her, and, on being taunted with having such con- 
nection with one in her situation, he seemed much ashamed and greatly 
[06] hurt.(7) 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 ? "(8) 

On the other hand, evidence was brought to show that 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 ;{9) 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 beinf; 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. 



(1) All these facta are either opportunity or in the marsh was one of the effects of the slip 
preparation or subsequent or prerioas conduct which wss the effect of the murder. 

« admissioDS (sections 7, 8, 17). (6) That the marks were made by the prisoner's 

(2) Introductory to next fact (section 91). shoe was relevant as an effect of facts in issue. 

(3) The coDcealment is sutsequent conduct That the shoes which made the marks were the 
(s«etioa 8). The state of the stockings is the effect prisoner's had been already proved by their being 
<rf • fact in issue (section 7). found on his feet. This further proof seems 

(4) The falsehoods are subsequent conduct superfluous, unless it wes suggested that they 
(•eetion 8), or admiasioDS, (sections 17 & 18). The belonged to some one else. 

priaoner's allegation about the horse is an allega- (7) The opinion about her would be irrelevant. 

tioQ <rf a f act explaining the relevant fact, that Thefact that her intellect was weak would be part 

^c* was blood on the stockings (section 9) ; and of the state of things under which the murder 

the tact proved about his distance from the horse happened, and with what follows would show 

•• a fact rebatting the inference suggested thereby, motive (sections 7, 8). 

tbat the Uood was the horse's (section 9). (8) Subsequent conduct (section 10). The 

(5) Effect of a fact in issue (section 7). The weight of this is very slight. 

ainrilarity d the aand on the stockings to the sand (9) Opportunity for the murder (section 7). 

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48 IKTBO0UCTION. 

Aemarks on This case illustrates the application of what Mr. Mill calls the method of 
so^^M. agreement upon a scale which excludes the supposition of ^hance, thus :— 

(1) The murderer had a motive, — Richardson had a motive. 

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

[97] (3) The murder was left-handed, — Richardson was left-handed. 

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

(6) If Richardson 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 kind of sand. 

(6) If Richardson was the murderer, he would naturally conceal his stock- 
ings, — he did conceal his stockings. 

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

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

(9) If Richardson 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 Richardson was the murderer, he would probably tell lies about 
his 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 wotdd be found in him. 

All ten were found in Richardson. 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 
[98] 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 
murder, and that the other should have causelessly hidden the stockbgs 
which had got soiled in the marsh. Yet this would be the only possible 
supposition consistent with Richardson's innocence. 



IV. 

[99] Case op R. t>. Patch.(I) 

A man named Patch had been received by Mr. Isaac Blight, a ship-breaker, 
near Greenland Dock, into his service in the year 1803. Mr. Blight having 
become embarrassed in his circumstances in July, 1805, entered into a deed of 
oomposition with his creaitors ; and in consequence of the failure of this arrange- 
ment, he made a colourable transfer of his property to the prisoner.(2) It 
was afterwards agreed between them that Mr. Blight was to retire nominally 

(I) Will's CiroamsUntiftl Evidence. (2) Introductorr (section 0). 

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INTBODUOnON. 49 

from the bosiness, which the prisoner was to manage, and the former was to 
have two-thirds of the profits, and the prisoner the remaining third, for which 
he was to pay £1,250. Of this amount, £250 was pnid in cash, and a draft 
was given for the remainder upon a person named Groom, which would become 
payable on the 16th of September, the prisoner representing that he had re- 
ceived the purchase-money of an estate and lent it to Goom.(l) On the 16th 
of September the prisoner represented to Mr. Blight's bankers that Qoom could 
not take[100] up the bill, and withdrew it, substituting his own draft, upon 
Goom to fall due on the 20th September.(2) On the 19th of September the 
deceased went to visit his wife at Margate, and the prisoner accompanied him 
as far as Deptford,(3) and then went to London and represented to his bankers 
that Goom would not be able to face his draft, but that he had obtained 
from him a note which satisfied him, and therefore they were not to present 
it.(4) The prisoner boarded in Mr. Blight's house, and the only other inmate 
was a female servant, whom the prisoner about eight o'clock the same 
evenmg (the 19th) sent out to procure some oysters for his supper.(6) During 
her absence a gun or pistol ball was fired through the shutter of a parlour 
frontmg the Thames, where the family, when at home, usually spent their 
evenings. It was low water, and the mud was so deep that any person attempt- 
ing to escape in that direction must have been sufiocated, and a man who was 
standing near the gate of the wharf, which was the only other mode of escape, 
heard the report, but saw no person.(6) From the manner in which[101] the 
ball entered the shutter it was clear that it had been discharged by some person 
who was close to the shutter, and the river was so much below the level of the 
house, that the ball, if it had been fired from thence, muft have reached a much 
higher part than that which it struck. The prisoner declined the ofEer of the 
neighbours to remain in the house with him that night. (7) On the following 
day he wrote to inform the deceased of the transaction, stating his hope 
that the shot had been accidental ; that he knew of no person who had any 
animosity against him, that he wished to know for whom it was intended, 
and that he should be happy to hear from him, but much more so to see 
him.(8) Mr. Blight returned home on the 23rd September, having previously 
been to London to see his bankers on the subject of the £1,000 draft.(9) 
Upoa 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.(lO) 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.(ll) About eight o'clock the prisoner went from the parlour into 
the kitchen, and asked[102] the servant for a candle,(12) complaining that he 
was disordered. (13) The prisoner'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 

(1 ) Motire (acctioo 8). The la«t fact illuBtrates the remarlu made at 

(S) Preparation (aeotion 8). pagee 40, 41. The inference from the facta stated 

(3) Introductory (aeoticni 9) but unimportant. awwiming them to be true, ia neoeasary ; but, mp- 

(4) Preparation (aeotion 8). peae that the " man standing near the gate" 

(5) Explain* what foDows (section 9). Prepara- aav some one running, and for reasons of hi* oim 
tico (aectiaa 8). denied it, how oonld he be contradicted T 

(6) The saggestiOD was that Patch fired the (7) Conduct (aeotion 8). 
riio^himaelf in order to make evidence in his ova (8) Preparatiim (section 8). 

bToor. This woald be prepantioo (seotioo 8). (9) Hardly relevant, except as introductory 

Hsoce hi* flting the shot would be a relevant fact. to what follows (seotioo 9). 
TIm faeU in the text are faets which, taken (10) Motive (section 8). 

together, make it highly probable that he did so, (11) State of thing* under which facts in issue 

as they show tiiat he and no one else had the happened (seoticn 7). 
opportunity and tliat it was done by some one (12) Preparation (section 8). 

I II). (13) Preparation (section 8). 



W,LB 



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50 INTRODOCTION. 

house which was enclosed by palisades, and through a gate over a wharf in iront 
of that court, on which there was the kind of soil peculiar to premises for break- 
ing 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 flash 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 prisoner 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 
outside of the premises, no person could have escaped from them.(l) 

In consequence of this event Mrs. Blight returned home,(2) and the 
prisoner in answer to an inquiry about the draft[108] which had made her 
husb&nd so uneasy told her that it was paid, and claimed the whole of the 
property as his own.(3) Suspicion soon fixed upon the prisoner,(4) 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.(5) The prisoner usually wore boots ; but 
on the evening of the murder he wore shoes and stockings.(6) 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.(7) All the prisoner's statements as to 
his pecuniary transactions with Gtoom and his right to draw upon him, and 
the payment of the bill, turned out to be false. (8) He attempted to tamper 
with the servant girl as to her evidence before the coroner, and urged her to 
keep to one account ;(9) and before that officer he made several inconsistent 
statements as to his pecuniary transactions with the deceased and equivocated 
much as to whether he wore[104] boots or shoes on the evening of the murder, 
as well as to the ownership of the soiled stockings,(10) which, however, were 
clearly proved to be his, and for the soiled state of which he made no attempt 
to account.(lO) The prisoner suggested the existence of malicious feelings in 
twopersons with whom the deceased had been on ill terms,(ll) but they had no 
motive(]2) for doing him any injury ; and it was clearly proved that upon both 
occasions of attack they were at a distance. (13) 
Rra^ks on Patch's case illustrates the method of difierence(14) and the 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 mudrer, 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 mur- 



(1) These facto collectively are inconsutent tliingiiraa such that ttie deceased and hu wrvaai 
with the firing of the shot by any one except Patch would have heard the steps of a man with shoe* oo 
(section U). They would also be relevant as being under the window; and (2) that a person w*o 
either facts in issue, or the state of things under wished to throw anything into the Thames wauM 
which facta in issue happened (section 7). or as have to go on to the wharf. 

preparation or opportunity (sections 7 & 8, illus- (8) Preparation (section 8). 

tration A). (9) Subsequent conduct (section 8), and ad- 

(2) Introductory (section 9). missions (sections 17 & 18). 

(3) Subsequent conduct inflneuoed by a fact (10) Effect of fact in issue (lecticn 7). 
in issue (section 8). (II) Motive (section 8). 

(4) Irrelevant. (12) ». t., no special motive beyond gcocral m. 

(5) Effect of fact in issae (section 7). will. 

(6) State of things under which facto in issue (13) Facts inconsistent with relevant fact (aae- 
happened (section 7). tion 11 ). 

(7) Fact and inference are mixed up in this (H) P. 34. 
sutament; the facts are (1) that the state of 



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niTBODUOTlON. ^ 51 

deied man had enemies who wished to muider 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 [105] combination of circumstances was precisely similar in 
piinciple 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 dis-similar kind ; and this proves 
that it is impossible to draw a line between relevant and irrelevant facts other- 
wise than by enumerating as completely as possible the more common forms in 
which the relation of cause and effects displays itself. In Patch's case the fir- 
ing of the first shot was an act of preparation by way of what is called ' ' making 
evidence,' ' but the fact that Patch fired it appeared from a combination of oir- 
cumstances which showed that he might, and that no one else could, have done 
so. It is easy to conceive 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 
n^atived in order to show that no one but Patch could have fired the shot. 
Tbe 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 
tbe gate had not been used for a long time ; that spiders' webs had been span 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 afterthe shot was fired and [106] before the gate was 
examined. In that case the proof would have stood thus : — 

Patch'' 8 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 incon<«istent with his not having fired the shot were re- 
levant to the question whether he fired it. The fact that a certain door was not 
opened between oertain 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 ot the second shot was a fact in issue ; therefore th(i, integrity of the spiders 
web was relevant to a fact in issue. 



V. 

[107] Case op R. v. Palmer.(I) 

On the 14th of May, 1856, William Palmer was tried at the Old Bailey, un- 
der powers conferred on the Court of Queen's Bench bv 19 Tic, c. 16, for 
the murder of John Parsons Cook at Rugeley, in Staffordshire. The trial lasted 

(1) Reprintad from my "General View of theOiminal Law of England, " p., 367. 

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52 INTBODUOTION. 

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 Rugeley, much engaged in 
sporting transactions. Cook, his intimate friend, was also a sporting man ; and 
after attending Shrewsbury races with him on the 13th November, 1855, re- 
turned in his company to Rugeley, and died at the Talbot Arms Hotel, at that 
place, soon after midnight, on the 2l8t November, 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 con- 
duct before, at the time of, and after his death, coupled with the circumstances 
of the death itself, left no reasonable doubt [108] 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 
strychnine. 

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, 1854, and on her death he received £13,000 on policies 
on her life, nearly the whole of which was applied to the discharge of his liabili- 
ties.d) 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 
already overdue and six others falling due — some in November and others 
in January. About £1,000 had been paid oS in the course of the year, so that 
the total amount then due or shortly to fall due to Pratt, was £12,600. The 
only means which Palmer had by which these bills could be provided for was a 
policy on the life of his brother, Walter Palmer, for £13,000. Walter Palmer 
died in August, 1855.(2) 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 [100] 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 princi- 
pal, 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 Birmingham held bills for 
£10,400. Part of these, amounting to £6,500, purported to be accepted by 
Mrs. Palmer, were collaterally seciued by a bill of sale of the whole of William 
Palmer's property. These bills would fall due on the first or second week of 
November. Mr. Padwick also held a bill of 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 ante- 
dated on the 28th November, for the other £1,000. Mrs. Sarah Palmer's 
acceptance was on nearly all these bills, and in every instance was forged. 

The result is, that about the time of the Shrewsbury races. Palmer waa 
being pressed for payment on forged acceptances to the amount of nearly 
£20,000, and that his only resources were a certain amount of personal pro- 
perty, over which Wright held a bill of sale, and a policy for £13,000, the pay- 
ment of which was refused by the [110] office. Should he succeed in obtaining 
payment, he might no doubt struggle through his difficulties, but there still 



"'"• der 



(1) A bni was foand agninst him for her mur- (2) A bUl vriia found against Palmer for hi« mar- 

»r. 

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UTTRODUCTION. 53 

remained the £1,000 antedated cheque given to Espin, 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 Wallbank, to go 
to Shrewsbury races. It follows 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 
fo^ed acceptances. 

Besides the embarrassment arising from the bills in the hands of Pratt, 
Wright and Padwick, 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 has discounted, giving £365 in cash, and a wine warrant for 
£65, and charging £60 for discount and expenses. He also required an assign- 
ment of two race-horses 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 at 
the bank at Rugeley. On the part of the prosecution it was said that this trans- 
action afforded a reason why Palmer should desire to be rid of Cook, inasmuch 
as it amounted to a forgery by which [111] Oook 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 
lor 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 
trrantrement seems not improbable, as it would otherwise be hard to explain 
why Cook acquiesced in receiving nothing for his acceptance, and there was 
evidence that he meant to provide for the bill when it became due. It also 
appeared late in the case that there was another bill for £500, in which Cook 
and Palmer were jointly intere8ted.(l) 

Such was Palmer's position when he went to Shrewsbury races, on Monday 
the i2th 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 
tobepaidat Tattersall's on the following Monday, the 19th November.(I) 
After the race Cook invited some of his friends to dinner at the Raven Hotel, 
and on that occasion and on the following day he was both sober and well.(2) 
On the Wednesday night a man named Ishmael Fbher came into the sitting- 
room, which Palmer shared with Cook, and [112] found them in company with 
some other men drinking brandy and water. Cook complained 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 Read, asked him if he thought there was anjrthing in it to which 
Read replied, ' ' What's the use of handing me the glass when it's empty 1 ' ' 
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.(3) He then became sick again, and was ill all 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.(4) Next day Palmer 

(1) AnthewfMtogo toBhoir inotive(BeetionS). condnot (section 8 ; ezp. 1). 

(3) Stete of things nnder vhich the following (4) The administration of antimony by Palmer 

facts oocorred (section 7). would be a fact in issae, as being one of a set of 

(S) Condnot of person against whom offence was acts of poisoning which finally oaaiied Cook's 

committed, and statement explanatory of such death. Cook's feelings were relevant as the effect 

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54 INTRODUCTION. 

told Fisher that Cook had said that he (Palmer) had been putting something 
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.(l) Fisher did not expressly say that he returned the money [118] 
to Cook, but from the course of the evidence it seems that he did,(2) 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 contain- 
ed some clear fluid like water, and which he was shaking and turning in his 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.(3) George 
Myatt was called to contradict this for the prisoner. He said that he 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 Read ; that he 
did not see anything put in it, and that if anything had been put in it he shoold 
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 
Read.(4) 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 friend of 
Palmer's, he probably remembered the matter ( perhaps honestly enough ) in 
a way more favourable to him than the- other witnesses. 

[114] It appeared from the evidence of Mrs. Brooks, and also from that of 
a man named Herring, that other persons besides Cook were taken ill at 
Shrewsbury, on the evening in question, 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. (5) 

The evidence as to what passed at Shrewsbury clearlyj proves that Pahner, 
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 hira 
a dose of antimony, though the weight of the evidence to this effect is weakened 
by the proof that diarrhoea and vomiting were prevalent in Shrewsbury at the 
time. It is, however, important in connection with subsequent events. 

On Thursday, November 15th, Palmer and Cook returned together to Ruge- 
ley, which they reached about ten at night. Cook went to the Talbot Arms, and 
Palmer to his own house immediately opposite. Cook still complained of bemg 
unwell. On the Friday he dined with Palmer in company with an attorney, 
Mr. Jeremiah Smith, and returned perfectly sober about ten in the 
evening.(6) At eight on the following morning (November 17th ) Palmer 
came over, and ordered a cup of [115] coffee for fiim. The coffee was given 
to Cook by Mills, the chambermaid, in Palmer's presence. When she next 



of his being i>oisoned(geotion 7); and hia statement (4) Evidence against last fact (section 6). 

as to them was rekvant under section 14 as a (6) Facts rebutting inference suggested by pre- 

stateiiient showing the existence of a relevant ceding fact (section 9). 

bodily fcelinK. (6) Introductory to what follows (section 9). 

(1) Admisaion (sections 17, IB). and shows state of things under which following 

(2) Motive (section 8). facts occurred (section 7). 

(3) Preparation (section H). 



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XNTRODUcrriON. 56 

irent to his room, an hoar or two afterwards, it had ,been vomited.(l) lathe 
coarse of the day, and apparently about the middle of the day. Palmer sent a 
charwoman, named Bowley, to get some broth for Cook at an inn called the 
Albion. She broaght 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.(l) In the course of the afternoon Palmer called in Mr. Bamford, a sur- 
geon 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.(2) Mr. Bamford, 
however, found no bilious symptoms about him, and he said he had only drunk 
two glasses.(3) On the Saturday 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, [116] Hawley, with some more broth for Cook.(4) Elizabeth 
iGUs, 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.(5) 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,(6) It was 
observed on the part of the defence that this letter was strong proof of inno- 
cence. The prosecution suggested that it was ' ' part of a deep design, and was 
meant to make evidence in the prisoner's favour." The fair conclusion seems 
to be 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 
eaid, "I thought that you would be all fast asleep, [117] and not hear it. " He 
also said he was disturbed by a quarrel in the street. It might have waked and 
distarbed him, but he was not sure. This incident was not mentioned at first 
by Barnes and Mills, but was brought out on their being re-called at the request 
of the prisoner's counsel. It was considered 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 witness for 
the defence, Mr. Nunneley, referred to it, with this view.(7) 

On the Monday, about a quarter-past or half-past seven. Palmer again 
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 
mach better. He dressed himself, saw a jockey and his trainer, and the 
sickness ceased. (8) 

(1) Fact in ianie and iU effects aa this vm an (aeotion 5). 

act of p«iaoning (aection 6). (6) EffecU of facta in iaaue (section 7). 

(2) Coodoet and statementa explaining condnot (6) Conduct (aection 8), and explanation of 
(Mctiaa 8). it (aection 9). 

(3) Rebota inference in Palmer'a favour, eug- (7) Fact tending to rebut inference from 
feated by preceding fact and explains the object previous fact (section 9). 

ol Ida ccndoct by ahowing that bia statement was (8) Supports the inference suggested by the 

falae (aection 9). Oidk's statement relates to previous fact that Palmer's doses caused Ckwk's 
bia state of body (section U). illness (section 9). 



(4) Faet in iuaa-adminiitration of poisons 



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56 INTKODUOTION. 

In the meantime Palmer was in London. He met by 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 

Firoved in evidence, as Padwick himself was not called. Palmer told Herring 
118] 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 £501 have just paid you, and the £460 you will receive from 
Mr. Herring, together £500, and the £200 you received on Saturday' 
(from Fisher) " towards payment of my mother's acceptance for £2,000 due 
25th Oct6ber.{l) 

Herring received upwards of £800, and paid part of it away according to 
Palmer's directions. Pratt gave Palmer credit for the £450 ; but the £350wa8 
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 Padwick quiet as to the ante-dated cheque for £1,000 given to Espin 
on Padwick's account. There was no evidence of this, and it is hot of much 
importance. It was clearly intended to be 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.(2) 

This is a convenient place to mention the final result of the transaction re- 
lating to the bill for £500, in which Cook and Palmer were jointly interested. On 
the Friday[119] when Cook and Palmer dined together (Nov. 16), Cook wrote 
to Fisher (his agent) in these words: — "It is of very great importance to both 
Palmer and myself that a sum of £500 should be paid to a Mr. Pratt of 5, Queen 
Street, Mayfair ; 3001 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 will greatly oblige 
me. I will settle it on Monday at Tattersall's." Fisher did pay the £200, 
expecting, as he said to settle Cook's account on the Monday, and repay him- 
self. On the Saturday, Nov. 17th (the day after the date of the letter), "a per- 
son, ' ' 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 3001. ) ' ' was a cheque of Mr. Fisher's." When Pratt heard of Cook's 
death he wrote to Palmer, sajdng, ' ' The death of Mr. Cook will now compel 
you to look about as to the payment of the bill for £500 due the 2nd of 
December,"(3) 

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 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 coidd be [120] 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 

(1 ) Conduot and statement explanatory thereof natorj of it (ecctioiu 7, 9). 

(Motion 8, ex. 2). (3) Motive for not poieoning Conk (leotica 

(2) All thie is Palmer's conduct, and Is ezpla- 8). 

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INTRODUCTION. 57 

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 liabilities the £200 which Fisher had 
advanced to the credit of the bill 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 A«w been 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 Pamer get the money ? The sugges- 
tion of the prosecution was that Cook gave it him to pay to Pratt on account of 
their joint bill, 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 
bill was genuine, and collaterally secured by the assignment of the race-horses, 
and that the other bill bore a forged acceptance, and must be satisfied at all 
hazards. [121] The result is that on the Monday evening Palmer had the 
most imperious interest in Cook's death, for he had robbed him of all he had in 
the world, except the equity of redemption in his two horses. 

On Monday evening (Nov. 19th) Palmer returned to Rugeley, and went 
to the shop of Mr. Salt, a surgeon there, about nine p.m. He saw Newton, Salt's 
assistant, and asked him for three grains of strychnine, which were accordingly 
given him. (1) Newton never mentioned this transaction till 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 bet- 
ween Palmer and Salt, his (Newton's) master, and that he thought Salt would 
be displeased 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 perjured. 

Cook had been much better throughout Monday, and on Monday evening 
Mr. Bamford, who was attending him, brought some pills 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 canie 
( according to Barnes the waitress) between eight and nine, and Mills said she 
saw him sitting by the fire between nine and ten. (2) 

[122] If this evidence were believed he would have had an opportunity of 
substituting poisoned pills for those sent by Mr. Bamford just after he had, 
according to Newton, procured strychnine. The evidence, however, was con- 
tradicted by a \vitness called for the prisoner, Jeremiah Smith the attorney. 
He said that on the Monday evening, about ten minutes past ten, he saw 
Pabner coming in a car from the direction of Stafford ; that they 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 vcould of course have proved 
that Cook took the pills which Bamford sent as he sent them.(3) 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 £1-3,000 by Walter to William Palmer ; that ho wrote to an 
office to effect an insurance for £10,000 on the life of Bates, who was Palmer'. s 

(1) PreparatioD (section 8). (3) Rvidence agninst the rxistence of the fact 

(2) Opportunity. The re«t » introductory lant mentioned (section 6). 
(Mctiona 7, 9). 



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58 INTRODUCTION. 

groom, at £1, a week ; that he tried, after Walter Palmer's death, to get 
hie 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.d) 

[128] 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 fraudulent proceedings." 

It is curious that though the credit of this witness was so much shaken la 
cross-examination, and though he was contradicted both by Mills and Newton, 
he must have been right and they wrong as to the time when Palmer came down 
to Rugeley that evening. Mr. Mathews, 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 quaiter to nine. It is about ten miles from Stafford 
to Rugeley, so that he could not have got across by the road in much less 
than an hour ;(2) yet Newton said he saw him " about nine, ' ' and Mills 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 
could not have seen him at all that night, and Mills, if at all, must have seen 
him for a moment only in Smith's company. Mills never mentioned Smitl, 
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 
[124] 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 olearlr 
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 bell 
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 bed clothes ; 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 swallowing the pills. After this he got more easy, and Palmer 
stayed by him some time, sleeping in an easy chair.(3) 

Great efforts were made in cross-examination to shake the evidence of IGlls 
by showing that she had altered the evidence which she gave before the coroner, 
so as to make her description of the symptoms tally with those of poisoning by 
strychnine, and also by showing that she had been drilled as to the evidence 
which she was to give by [125] persons connected with the prosecution. She 
denied most of the suggestions conveyed by the questions asked her, and 
explained others. (4) 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 net properly taken at the inquest. (5) 



(1) This croes.examination tended to test the (3) Effect o£ fact in issue, viz., the administr*- 
verncity of the witness and to test his credit tion of poison (section 7). 

(section 146). (4) Former statements inconsistent with 

(2) Facts inconsistent irith a relevant fact (sec- evidence (section 168). 

tion 11), and fixing the time of the occurrence of (.5) The depositions before the coroner would be 

a relevant fact (section 9). a proper mode of proof a* being s record of a rele- 



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INTRODOCTION. 59 

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 
coSee. 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 cofiee was 
afterwards thrown up.(l) 

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 appren- 
tice Roberts with two drachms of pnissic acid, six grains of strychnine, and two 
drachms of Batley's sedative. (2) Whilst he was making the purchase, 
Kewtun 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 ; 
[lS6]and when he was there asked him a question about the farm of a Mr. 
Kdwin Salt — a matter with which he had nothing at all 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 
prevent Newton from seeing what he was about. No attempt even was made 
to shake, or in any way discredit, Roberts the apprentice.(3) 

At about four p.m. Mr. Jones, the friend to whom Palmer had written, 
arrived from Lutterworth. (4) 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. (5) 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 luid a private consultation. 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 wijth him and 
got the pills, and was present whibt they were made up, put into a pill-box, 
[l27]and directed. He took them away witjh him between seven and eight. (6) 
Cook was well and comfortable all the evening ; he had no bilious symptoms, 
no vomiting, and no diarrho3a.(5) 

Towards eleven Palmer came with a box of pills directed in Bamford's 
hand. He called Jone's attention to the goodness of the handwriting for a 
man of eighty.(7) 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 Bam- 
ford. 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 ill the nijrht before. At last he did so, and immediately afterwards 
vomited. Jones and Palmer both examined to see whether the pills had been 
throMm up, and they found that they had not. Thia was about eleven. Jones 
then had bis 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 ill ; ring the bell for Mr. Palmer." 
He also said, ' ' Rub my neck. ' ' fte back of his neck was stiff and hard. Mills 

Tsnt fact made by a public wrvant in the discharge tion 8). 

oi hia official dnty (aectioo 36). and any document (2) Preparation (section 8). 

purporting to be saoh a deposition would on (3) Conduct (section 8). 

productifln be preaumed to be genuine and the (4) Introductory (section 9). 

eTidenee ironid be preaumed to be duly taken (5) State of things under which Cook was 

(•ectioDS 79 and 80 ). but this might be rebutted poisoned (section 7). 

(•ection 8), definition of "shall presume.' (6) Preparation (section 8). 

(I) Part of the transaction of poisoning (sec- (7) Conduct and statements (section 8, ex. 2). 



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60 INTRODUCTION. 

ran across the road to Palmei's and rang the bell. Palmer immediately c&me 
to the bed room window and said he would come at once. Two minutes after- 
wards he was in Cook's room, and [128] 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.(l) 

By the time of Palmer's arrival Cook was very ill. Jones, Elizabeth MiQs, 
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 vera 
two ammonia pills. Immediately afterwards — too soon for the pills to have any 
effect — he was dreadfully convulsed. He said, when he began to be convulsed, 
" Raise me up, or I shall be suffocated. " Palmer and Jones tried to do so, 
but could not, as the limbs, were rigid. Hei 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 stimiUate 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.(2) 

[129] As soon as Cook -was dead, Jones went out to speak to the house- 
keeper, 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 found.(3) 

On Wednesday, the 21st instant, Mr. Wetherby, the London racing 
agent, who kept a sort of bank for sporting men, received 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 peculiar 
circumstances. Palmer sent for Mr. Cheshire, the postmaster at Bngeley, 
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 
[180] 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.(3) 
It was called for, but not produced.(4) This was one of the strongeBt 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 

(1) Fact ill issup (section 1.5). Conduct (sec- fasue (section 5). 

tion S). (3) Conduct (section 8), 

(2) rook's deatli, in all its detail, was a fact in (4) See section 66 a« to notice to prodaoe. 



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INTRODOCTION. 61 

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 stealing his stakes at the time when to all outward appearance 
there was every prospect of his speedy recovery which must result in the detec- 
tion of the fraud. If he knew that Cook would die that night, this was 
natural. On any other supposition it was inconceivable rashnes8.(l) 

Either on Thursday, 22nd, or Friday, 23rd, Palmer sent for Cheshire 
again, and produced a paper which he [131] said Cook had given to him some 
days before. The paper purported to be an acknowledgement that certain 
bills — the particulars of wlach 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 purported 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 cheqae.(2) 

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'b death. He paid Pratt £100 on the 24th ; 
he paid a farmer named Spilsbury £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(3). The general result of these money transactions is, that 
Palmer appropriated to his own use all 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 inform- 
ed Sfr. 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, 
[182] and then went on to Rugeley, where he arrived about the middle of the day 
on Thur8day.(4) 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 1 never had any benefit frOm them." Mr. 
Stephens said that at all events he must be buried. Palmer o£fered 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 coffin. (5) 

In the afternoon Mr. Stephens, Palmer, Jones, and a Mr. Gradlord, 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 be understood Cook bad 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 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 [133] Palmer answered that no doubt it 

(1) Ak to these inferences see section 114. (3) Condaot (section 8). 

jQust. (y). (4) Introductory and explanatory (section 9). 

(2) Ccndoct (teoUon 8). 8ee sectioh 66 aa to (6) Admiasion and conduct (sections 17. 18; 
notice to produce. A* to the«e ioferencee see sectioo 8). 

wetian I14,illost.(9). 



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62 INTRODUCTION. 

would be.(l) Before leaving the inn Mr. Stephens went to look at the bodv, 
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 Rogeley 
on Saturday, the 24th, and informed Palmer of his intention to have a post- 
mortem examination, which took place on Monday, 26th. (2) 

The post-mortem examination Was conducted in the presence 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 till 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. ]£irland, but Hi. 
Devonshire thought that there was some congestion. (3) 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 [184] 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 stomach Palmer 
pushed against bim, 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 ^et." As they were all crowding together 
to see what passed, the push might have been an accident ; and as Hr. 
Stephens' suspicions were well known, the remark was natural, though 
coarse. After the examination was completed, the intestines, &c., were put into 
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 replaced it was found that a 
slit had been cut through both the bladders.(4) 

After the examination Mr. Stephens and an attorney's clerk took the jars 
containing the viscera, fee, in a fly to StafEord.(5) Palmer asked the postboy 
if he was goina to drive them to Stafford ? The postboy said, ' ' I believe I am." 
Palmer said, " Is it Mr. Stephens you are going to take. ? " He said, " 1 
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 
[185] not." Palmer said if be would there was a £10 note for him. He also 
said something about its being " a humbugging concern." (6) 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 all in one fly, and must be upset together if at all. 

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 6th 
December. On Sunday, 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, 

(1) These facta and sUtementa together make it (3) Facta supporting opinions of experts (aec. 
highly probable that Palmer stole the betting- tion 46). 

book, which wonld be relevant as conduct (aeo> (4) Conduct (section 8). 

tions 8, II). (6) Introductory (sectioD 9). 

(2) Introductory to what follova (section 9). (6) Conduct (section 8). 



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INTRODUOTION. 63 

who had analyzed the content of the stomach, Sk., to Mr Gardiner, the 
attorney for the prosecution, and informed Palmer that Dr. Taylor said in 
that letter that no traces of trychni a 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 [186] pheasants, and a turkey.(I) These circumstances 
certainly prove improper and even criminal conduct. Cheshire was imprisoned 
for hia 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 ^va8 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 contrac- 
tion of the respiratory 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 stTychnine.(2) 

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 Cook of the £300 which, as Cook sup- 
posed, 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 [187] another forged document 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 pur- 
chased 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 the 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 £12,00() and was articled to a solici- 
tor. Instead of following up that profession he betook himself to sporting pur- 
suits, and appears to have led a rather dissipated life. He suffered from syphilis, 
and was in the habit of occasionally consulting Dr. Savage on the state of his 
health. Dr. Savage saw him in November 1864, 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 carefully whenever he came. Dr. Savage 
said that he had two shallow ulcers on the tongue corresponding to bad teeth ; 
that he had also a sore throat, one of his ton8ils[188] 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 pahnonary affection under the left lung. ' ' Wishing 

(1> Ccodoct and facta introductory thereto (»eo- (2) Fact •hoving knowledge (aection U). 

tion* 8, 9). 



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64 INTRODUCTION. 

to get him away from his turf associates, Dr. Savage recommended him to go 
abroad 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 botti 
hunted and played at cricket. (1) 

On the other hand, witnesses were called for the prisoner who gave a 
difierent account of his health. A Mr. Sargent said he was with him at 
Liverpool a week before the Shrewsbury 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.(l) 

Such being the state of health of Cook at the time of his[139] death, the next 
question was as to its cause. The prosecution contended that the symptoms 
which attended it proved that he was poisoned by strychnia. 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 affec- 
tion of the voluntary muscles of the body which at last ends in death, produced 
either by sufEocation 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 
without any assignable external cause; traumatic tetanus, which results from 
wounds ; and the tetanus which is produced by the administration of strychnia, 
bruschia, and nux vomica, all of which are difierent 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 Hospital, 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 difierent, their symptoms are the same. They were described in 
similar terms by several of the witnesses. Dr. Todd said the disease begins 
with stifiness about the jaw, the symptoms[140] 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 intermission of the symptoms. In acute cases the disease terminates 
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. Ross, 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 d3ys.(2) 

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



(1) Stftte of things under which crime wna com- were founded (Beotions 45, 46). The nst ol the 
mitted (section 7). evidence falla under thia head. 

(2) Opmions of pxperte, and facts on which they 



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nrrEODuonoN. 65 

die of idiopathic tetanus ? Did 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. Ciuling said no doubt there was spasmodic action of the muscles 
(which was his definition of tetanus) in Cook's case ; and even Mr. Nunneley, 
the principal witness for the prisoner who contended that the death of Cook 
was [141 ] 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 all 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 sjrmptoms and the 
symptoms of the tetanus of strychnia. It might, therefore, be considered 
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 
traamatic or idiopathic tetanus, because there was no wound on his body, and 
aiso because the course of the sjrmptoms was different. They further 
siwrted that the symptoms were those of poison by strychnia. 

Upon these points the evidence was as follows : — Mr. Curling was asked, Q. 
'• Were the symptoms consistent with any form of traumatic tetanus which 
hag 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 sjrmptoms. 
In all 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 1 " A. "Yes. " He also 
[142] mentioned " the sudden onset and rapid subsidence of the spasms " as 
inconsistent vrith the theory of either traumatic or idiopathic tetanus ; and he 
said he had never known a case of tetanus which 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 ascertained. In general, the time required was from one to several 
days. Sir Benjamin Brodie was asked, " In your opinion, are the symptoms 
those of traamatic 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 
different.' ' He added, ' ' The symptoms of traumatic tetanus always begin as 
far as 1 have seen, very gradually, the stiffness of the lower jaw being, I 
beUeve, 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 tnmk, except in some 
cases, where the infury has been in a limb, and an early symptom has been a 
contraction of the muscles of that limb. I do not myself recollect a case in 
which in ordinary tetanus there was that contraction of the muscles of the 
hand which I understand was stated to have existed in this instance. The 
ordinary tetanus rarely runs it' course in less than two or three days, and 
often is protracted to a much longer period ; I know one case only in which 
the (iUsease was [143] said to have terminated in twelve hours." He said, in 
conclusion, ' ' 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 cotild be referred to idiopathic or 
traumatic tetanus, said, "ui my judgment they could not." He also said 
that he shoiUd repeat Sir Ben|amin Brodie' s words if he were to enumerate 
the distinctions. Mr. Solly said that the symptoms were not referable to 
any disease he ever witnessed ; and Dr. Todd said, " I think the symptoms 



W,LE 

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66 INTKODUOTIOM. 

were those of strychnia. " The same opinion was expressed with equal 
confidence by Dr. Alfred Taylor, Dr. Rees, 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 
French, or Senet, who was accidentally poisoned at Glasgow Infirmary, in 
1845, by some pills which she took, and which were intended for a paralytic 
patient. According to the nurse, the girl was taken ill three quarters of an 
hour, according to one of the physicians (who, however, was not present) 
twenty minutes after she swallowed the pi Us. 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 ; [144] there was a retraction of the mouth and &ce, 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 examination. 

The second case described was that of Mrs. Serjeantson Smyth, who vas 
accidentally poisoned at Romsey in 1848, by strychnine put into a dose of ordi- 
nary medicme 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 bell. 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 
examination the heart was found empty. 

The third case was that of Mrs. Dove, who was poisoned 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 twitch- 
ings 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 [146] hours and a half. The 
hands were semi-bent, 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 ot a paralytic patient 
of Mr. Moore's. He took an overdose of strychnia, and in 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 Rees 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 svmptoms 
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 in part, but their own witnesses, and in 
part by the witnesses for the Crown in cross-examination. The replies suggest- 
ed by the Crown were founded partly on the evidence of the»r own witnesses 

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INTRODtJOTION. 67 

given by way of anticipation, and partly by the evidence obtained from the 
witnesses for the prisoner on cross-examination. 

[146] The first and most conspicuous argument on behalf of the prisoner 
wasjwhat the fact that no strychnia was discovered by Dr. Taylor and Dr. Rees 
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, sttychnia 
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 considered a most unfavourable 
conation 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. Rogers, — thought that it would only increase the difficulty 
of the operation, and not destroy its chance of success. 

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 circum- 
stances 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 strych- 
nia 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 [147] 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 till 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 
difinsed over the whole mass, and so no more than an extremely minute 
portion 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, be- 
cause the colours might be produced by other substances. 

Dr. Taylor further detailed some experiments which he had tried upon ani- 
mals jointly with Dr. Rees, 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 [148] taste and by the colour. In a case where one grain was ad- 
ministered, he obtained the taste but not the colour. In the other two cases, 
where he administered 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 he did not discover strychnia did not prove 
that no strychnia was present in Cook's body. 

Mr. Nunneley, Mr. Herapath, Mr. Rogers, Dr. Letheby and Mr. Wrightson 
contradicted Dr. Taylor and Dr. Rees upon this part of their evidence. They 
denied the theory that strychnine undergoes any change in the blood 
and they professed their own ability to discover its presence even in most 
minttte quantities in any body into which it had been introduoedi and their 



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68 INTBODUOTION. 

belief that the colour tests were satisfactory. Mr. Herapath said that he had 
found strychnine in the blood and in a small part of the liver of a dog poisoned 
by it ; and he also said that he 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 ) 
ako 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 hare any 
opinion. The evidence given for the prisoner, however, tended to prove not 
80 much that there was no strychnia in Cook's body, [149J as that Dr. Taylor 
aught 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. Tay- 
lor'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 nature of Cook's 
symptoms was shared by many other medical witnesses of the highest eminence, 
whose credit was altogether unimpeached. 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 vigourously 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. Thiis 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 useless 
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 poisoning by strychnine. Mr. 
Nunneley and Dr. Letheby thought that the facts that Cook sat up in [160] bed 
when the attack came on, that he moved his hands, and swallowed, and asked 
to be rubbed and moved, showed more power of voluntary 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 move- 
ments 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 full. 

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. Chiistison 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 referr ed to the length of time before 
the symptoms appeared, as inconsistent wit h poisoning by strychnine. The 
time between the administration 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 
[151] would be broken up would depend upon the materials of which they were 
made. Mr. Christison said that if the pills were made up with resinons 
materials, such as are within the knowledge of every medical man, their 



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piTRODUOTION. 69 

operation would be delayed. He added, " I do not think we can fix, with our 
present knowledge, the precise time iorthe "poison beginning to operate." 
According to the account of one witness in Agnes French's case, 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 inconsis- 
tent 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 different witnesses for the Crown, it was frequently 
suggested that the case was one of traumatic tetanus, caused by syphilitic sores; 
bot 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 traumatic tetanus ; and in the third place, several 
doctors of great experience in respect of syphilis — specially [152] 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 tetanus who had sores on lus elbow and 
elsewhere, which were possibly sjrphilitic ; but it did not appear whether he had 
robbed 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 conscious- 
ness. 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 supposing 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 Rugeley for nearly a week before 
his death ; and that it was within the range of possibility that sexual inter- 
course 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 symptoms 
of the case, and asked to point out how they difiered from those of poisoning by 
strychnia, and what were the reasons why they should be supposed to arise from 
anything else. After [158] 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 pro- 
dace 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 laughing and joking with 
Mi. 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 pro- 
duced. They deserve to be carefully studied by any one who cares to under- 
stand 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 admitted that he 
had said that he thought that there was strychnine in the body, but that Dr. 



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70 niTRODUOTION. 

Taylor did not know how to find it. He added that he got his impression 
from nevrspaper reports ; bat 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 — strychni* 
poison included. He 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. Partridge was called to 
[164] 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 frankness, 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 concluded 
by saying that in the whole course of his experience and knowledge he had 
never seen such a death proceed from natural causes. Dr. Robinson, from 
Newcastle, was called to show that tetanic convulsions preceded by epilepsy 
were the cause of death. He, however, expressly admitted in cross-examina- 
tion that the symptoms were consistent with strychnia, andthat some of them 
were inconsistent with epilepsy. He said that in the absence of any other 
cause, if he " put aside the hypothesis of strychnift, ' ' 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. Richardson, 
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 disputed, nor could 
it be denied that its administration [166] would account for all the symptoms of 
sickness, Ac., 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 all reasonable doubt that the 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. 

ReTMirlLe on Palmer's case is remarkable on account of the extraordinary minuteness 
"' and labour with which it was tried, and on account 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 com- 
mitted, 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 occasions ; 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 [166] together immediately 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 pounds, but parti- 
cularly because it supplies a singularly perfect illustration of the identity 



Palmer's 



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INTBODUCTION. 71 

between the ordinary processes of scientific research, and the principles explain- 
ed 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 symptoms being compared with those of Cook, 
they did not correspond. The inference by 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 
certam 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 
00 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 *ith 
the trial pressed, 'so to speak, for admittance, and if it had been admitted, would 
bve swollen the trial to immanageable proportions, and thrown no real [167] 
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 
otfourteen persons had at difierent times been buried from his house under sus- 
picious 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 ofiBces. 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 France, every one of these 
and innumerable 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 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, [158] Sir Benjamin 
Brodie and other witnesses in Palmer's case said that the symptoms they had 
heard described were the sjrmptoms of poisoning by strychnine, but whether 
the maid-servants and others who witnessed and described 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 symp- 
toms attending his death to have been correctly described ? or whether any 
cause except poison would account for such and such specified symptoms 1 
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. 



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72 imtboduotion. 

[160] Irrelbvant Facts. 

Having thus described and illustrated the theory of relevancy, 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 foUovs 
that facts are irrelevant unless they can be shown to stand in the relation of 
cause or in the relation of eSect to facts in issue, every step in the connection 
being either proved or of such a nature that it may be presumed without proof. 
What teots 7be vast majority of ordinary facts simply co-exist without being in any 
Sat"*'*^ 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 evi- 
dence of them unless they were in some way connected with the crime. Facte 
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 : — 

«mti& iStS^ ^' Statements as to facts made by persons not called as witnesses. 

^■"^ [100] 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 in sec- 
tions 6 — 11, both inclusive. It may possibly be argued that the efiect of the 
second paragraph of section 11* 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 highly 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 II. (sections 32 — 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 Qovernment) [161] 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 efiect 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 re- 
levant fact under some other section of this Act." 

B«B|^ for The reasons why statements as to facts made by persons not called as wit- 

tacarmy. nesses are excluded, except in certain specified cases ( see sections 17 — 39 ), are 
various. In the first place it is matter of common experience that statement* 
in common conversation are made so lightly, and are so liable to be misunder- 
stood or misrepresented, that they cannot be depended upon for any important 
purpose unless they are made under special circumstances. 

Ofcdeotion. ^* ^^7 "'^ ^^ *^** *^^ '^ ^^ objection to the weight of such statement^ 

and not to their relevancy, and there is some degree of truth in this remark. 



* Section U ie as foUorira: — (2) If by themBelveg, or in connectiga with 

Foot* not otherwise releT»nt are relevant. other facts, they make the exiatenoc or non<xi»t- 

(1) If they are inconsistent with any fact in enoe of any fact in iarae or relerant fact highly 

inue or relevant fact. probable or improbable. 



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INTRODUCTION. 73 

No doubt, when a man has to in(^uire into facts of which he receives in the fiist 
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. A 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 [162] 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 pos- 
sible for the purpose of getting at the truth. The efiect of this section,* is ^u^les. 
that in order to get to the bottom of the matter before it the Court will 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 follow- 
ing 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 responsible, 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 those evidence could neither be tested nor contradicted. 

Suppose that A, B, C, and D give to E, F, and G a minute detailed account of 
a crime which they say was [168] 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 un- 
authorized 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 not specifically iTnoonnect- 
connected with the facts in issue, rests upon the ground that if it were not Sctiona"^ 
enforced every trial, whether civil or criminal, might run into an inquiry into 
whole life and character of the parties concerned. Litigants have frequently 
many matters in difierence 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 afEairs may be discussed. A 
very slight acquaintance with French procedure is enough to show the evil.« 
of not keeping people close to the point in judicial proceedings. 

As to evidence of opinion, it is excluded because its admission would in ozoioaion 
nearly all cases be mere waste of time. Sr?^^** 

[164] The concluding part of the chapter on the relevancy of facts enume- Bxoeption 
rates the exceptions which are to be made to the general rules as to irrelevancy. JJ ^J^^ 
The mlea asto admissions, statements made by persons who cannot be called anoy. 
as witnesses, and statements made under circumstances which in themselves 



* Section 165 1* a« foUowii : — ness, or of tha parties about any fact relerant or 

** The Jndge may in order to disrover or obtain irrelorant, and may order the prodnction of any 

proper proof of relevant facte aak any qaeation dooament or thing." 

he pleaaea in any form, at any time, of any wit- 



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74 INTRODUCTION. 

afEoid a guarantee for their truth, are an exception to the exclusion of state- 
ments as proof of the matter stated. 

Judgments in Courts of Justice on other occasions form an 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 cer- 
tain oases are contained in sections 45 — 56. I willnotice very shortly the 
principle on which these provisions proceed. 

Admissions. 1- The general rule with regard to admissions, which are defined to mean 
all that the parties or their representatives in certain degrees say about the mat- 
ter in dispute, or facts relevant 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 statement 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 [166] not owe me anything, ' ' this is a fact of which 
B might make use, and which might be decisive of the case. 

OonfMBions. Admissions in reference to crimes are usually called confessions. 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 XXy 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 Statements made by persons who are dead or otherwise incapacitated from 

es wbo**""^ being called as witnesses are admitted in the cases mentioned in sections 32 

cannot be and 33. The reason is that in the cases in question no better evidence is to be 

'"^^'^- had. 

statements In certain cases statements are made under circumstances which in them- 

SpmUI dr- -''^Ives are a strong reason for believing them to be true, and in these cases there 
oumstances. is generally little use in calling the person by whom the statement was made. 
The sections which relate to them are 34 — 38. 

It may be well to point out here the manner in which the Evidence Act 
afEects the proof of evidence given by a witness in a Court of Justice. The re- 
levancy 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 [166] 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 Ci\'il 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 together is that when proof of evidence given on previous occasions is 
admissible, it may be proved by the production of the record or a certified copy 
( see section 76 ). 

fn* oSer"*^ The sections as to judgments (40, 4 1 ) designedly omit to deal with the ques- 

<»»•»■ tion of the effect of judgments in preventing further proceedings in regard of 



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INTBODUCTION. 75 

the same matter. The law upon this subject is to be found in section 2 of the 
Code of Civil Procedure and in section 460 of the Code of Criminal Procedure. 
The cases which the Evidence Act provides [187] 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 person, other than the Judge by whom the fact is to Opinions, 
be decided, as to the existence of facts in issue or relevant facts are, as a rule, 
irrelevant to the decision of the cases to which they relate, for the moat 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 
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 character 
is. generally speaking, only a makeweight, though there are two classes of Stt^ant" 
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 posses- 
sion 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 [168] 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. 



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[169] CHAPTER IV. 



No refer- 
ence to Sngr- 
llsb 



Scheme of 
Fartn 



Jadldal 
notice. 



Or»l vrl- 
denoe. 



Dooiunents. 



'Writings 
\rhen ezcla- 
alve evlden- 
oe. 



GBXERAL OBSERVATIONS ON THE INDIAN EVIDENCE ACT. 

In the preceding pages I have stated and illustrated the theory of 
judicial evidence on which the Evidence Act is based. I have but little to add 
to that explanation. The Act speaks 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 
subjects, its object would be defeated by elaborate references to EngUsh cases. 
In so far as it is obscure or incomplete, the Judges and the Legislature are its 
proper critics. If it is turned into 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 very short description 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 consists of four 
chapters, containing forty-five sections, may be expressed in the following 
propositions : — 

[170] 1. Certain facts are so notorious in themselves, or are stated in 
so authentic a manner in well-known and accessible publications, that they 
require no proof. The Court, if it does not know them, can inform itself 
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 by oral 
evidence, which must in all cases be direct. That is, it must consist of a 
declaration by the witness that he perceived by his own senses the fact to which 
he testifies. 

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 exceptions in which 
secondary evidence may be given. The most important of these are (1) cases 
in which the document is in the possession 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 admis- 
sible in place of the documeilts themselves. 

4. Many elasses of documents which are defined in the Act, are presumed 
to be what they purport to be, but this presumption is liable to be rebutted. 
Two sets of presumptions will sometimes apply to the same document. For 
[171] instance what purports to be a certified copy of a record of evidence is pro- 
duced- 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 over to the wit- 
ness in a language which he understood, must be presumed to be true. 

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 considerable detail, and to introduce provisos. 



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raTRODXTCTION. 77 

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 oc- 
casion for applying them arises. The provisions in the Act are all made in or- 
der to meet real difficulties which arose in practice in England, and which must 
of necessity arise over and over again, and give occasion to litigation unless they 
were specifically provided for beforehand. 

Frtnciple of 
One single principle runs through all the propositions relating to document- prortsToiis 

ary evidence. It is that the very object for which writing is used is to perpetu- taxys^San- 

ate the memory of what i s written down, [172] and so to furnish permanent proof «*• 

of it. In 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 

.Indge for his inspection, and that if it purports to be a final settlement of a 

previous negotiation, as in the case of a written contract, it shall be treated as 

ftnal, 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 anless 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 writings. 

By bearing these leading principles in mind the details and exceptions will 
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 ( CJhapters VII, 
Tni and IX ) and sixty-seven sections, relates to the production and effect 
of evidence. 

Chapter VII., which relates to the burden of proof, deals with a subject Som?™''^ 
which xequires a little explanation. This is the subject of presomprtions. 
Like most other words introduced into the law of evidence, it has various mean- 
ings, and it has besides a history to which I shall refer very shortly. 

In times when the true theory of proof was very imperfectly understood, 
inasmuch as physical science, by the progress of which that theory was gradual- 
ly discovered, [178] was on its infancy, numerous attempts were made to con- 
struct theories as to the weight of evidence which should supply the want of 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 full, and proof more than half fuU. 

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 
t hat he who affirms must prove. He [174] who affirms that a man is deadmust 
nsnally 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. 



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78 INTRODUCTION. 

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. An 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. 

4. Bare presumptions of fact, which are nothing but arguments to which 
the Court attaches whatever value it pleases. 

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 101 — 106). 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 presumptions, the presumption of legitimacy from birth during 
marriage (section 112), and the presumption of a valid cession of territory 
from the publication of a notification 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 1 14, 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 [176] 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. 

All notice of certain general legal principles which'are, sometimes called 
presumptions, but which in reality be long rather to the substantive law than 
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 presump- 
tion, 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 of presumption 
in the circumstance that an estoppel is a personal disqualification laid upon a 
person peculiarly circumstanced 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 writ«r8 as a 
branch of the law of evidence, and not as a branch of the law of Civil 
Procedure. 

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



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INTRODUCTION. 79 

Some Criticisms on the Act. 

It h.<is been said that in its main features the anangement of Sir James 
Fitzjames Stephen is not capable of being improved upon (1), and it will gener- 
ally be conceded that, except as regards sections 5 — 16 of Ch. D, a great advan- 
tage has undoubtedly been given to the legal practitioner by the codification of 
the law of evidence which the Act has elected. The criticism perhaps more 
discnminating of others may be divided into two classes. Some there are who 
approve of the general principle upon which the Act proceeds (viz., that it is 
both possible and advisable positively to determine what is evidence), but 
criticise the actual terms in which such determination is made. Others dis- 
approve, preferring the more practical and historical method of English law 
wluch confines its^f mainly to the negative task of declaring not what is but 
what is not evidence. 

Of the first class Mr. Whitworth in his able pamphlet on the theory of 
relevancy(2) while of opinion that probably no enactment in such few vroids as 
sections 6—16 brought so much assistance to the administration of justice, says 
tliatthe question yet suggests itself whether even these rules give the theory of 
relevancy in its simplest form, and states that they certainly do not show in them- 
selves upon what principle it is that they have been founded. Differing from 
the aathor of the Act in regard to the adequacy of his definition of relevancy 
as the connection of events as cause and effect, he works out from the rules pro- 
pounded under the Act what he conceives to be a fuller and more satisfactory 
statement. He arrives by this process of exposition at exactly the same re 
suit as Sir James Fitzjames Stephen, but claims for the new rules which he sug- 
gests that although different in form, they are identical with those of the Act in 
their ef!ect.(3) 

Mr. Whitworth uses the word relevant as Sir James Fitzjames Stephen uses 
it m the third chapter of his Introduction, and not as it is sometimes used as 
co-extensive ynth admissible. What is thus meant by a relevant fact is a fact 
that hat a certain degree of jtrobative force. All such facts are not admissible. 
They may be excluded under rules of evidence other than those which treat of 
relevancy. For example, as he points out, a fact may be relevant, but it may be 
one of a kind so easy to fabricate, or so difficult to test or of so suspicious an ori- 
gin, that it is more convenient to declare that it shall not be taken into coiisi- 
detation at aU. With such questions he is not concerned, but only with the 
simpler and narrower question as to what facts are relevant in |the strict sense 
of the term. 

He points out that the word is used in both senses in the Evidence Act, as 
will appear from a reference to the Table of Contents. Part I treats of ' ' Rele- 
vancy of Fttcts, " and, in this Part, Chapter II has several divisional headings 
one of which is " of the Relevancy of Facts. " Part I deals with relevancy in 
its wide sense ; Chapter II of Part I with relevancy in its strict sense. The 
ambiguity is unfortunate. Sir Fitzjames Stephen has said that relevancy 
is fully defined in sections 6 — 11 of the Act, and imtil the double meaning 
of the word is observed, it seems as Mr. Whitworth points out inconsistent with 
this that many subsequent sections should declare certain things to be relevant, 

(1) Btynold's Theory of the Law of Evldenoe, pamphlet and the frank aooeptanoe of his rriti. 

M Bd., 1887. Preface ri. Set also obmrva- oism by Hr. Stephen enables us to eojoy the oon- 

ttou in Preface to Rioe'a General Principles of emplation as gratifying as it is rare, of a oon- 

the Lnr ct ETidenoe. trorersy which has ended in a real advancement 

(8) The thecfy of relevancy for the purpose of knowledge, and in a manner perfectly satisfy- 

of Judicial Eridenoe by Oeorge CliSord Whit- ing and honourable to both parties." — Fort- 

worth, 2nd Ed., I88I. "Hr. Oeoige Cliffcrd iu;My Bnieic, 1878. 

Whitworth of the Bombay Oivil Service has lately (3) 8a Law Magazine and Review, 187S-6. 
crilkJMd this theory fai an ingenioos and able 



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80 INT&OSUOnON. 

as do sections 22, 23, 24, 28, 32, etc. What such sections as these have to de- 
clare is really not that the things they mention are relevant or irrelevant (using 
the words strictly), but (that question being decided by sections 6 — 16), that 
those things are not to be excluded or admitted under rules relating to subjects 
other than relevancy, which would, without the provision made, exclude or ad- 
mit them. 

The theory of relevancy is concerned with the question : — Why is one 
thing relevant and another thing irrelevant ? There must, Mr. WTiitworth 
says, be some principle apphcable to all cases by which it may be 
determined whether a particular fact is or is not relevant to another fact, with- 
out reference to a number of rules framed to meet different classes of cases. The 
purpose of judicial enquiries is not a purpose peculiar to them. All men upon 
occasion endeavour to ascertain, as quickly and as satisfactorily as they can, 
whether facts unknown to them personally have or have not happened. And 
what is calculated to aid the human mind in such enquiries must be something 
capable of being defined by the enimciation of its essential difference, as well as 
by an enumeration of its details. Sir James Fitzjames Stephen, in the third 
Chapter of his Introduction to this Act, has briefly considered this question, and 
has said that relevancy means the connection of events as cause and effect: 
"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 existence 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." Mr. 
Whitworth criticises this definition as follows: — "But the proviso that the 
words cause and effect must be taken in their widest acceptation does not 
seem to be sufficient, it seems necessary rather to take them in a trans- 
cendent sense. Suppose a man is charged with stabbing another, and it is 
alleged that at the moment of striking he uttered a certain expression. What 
he said is by the rules of evidence relevant (not merely upon the issue as 
to his intention, but also) upon the issue whether he stabbed the man or not 
But in what acceptation of the words is his expression a cause or effect of the act 
of stabbing ? Or consider the case of the Whitechapel murder now imder in- 
vestigation in London. Upon the issue, Did Wainwright murder Harriet Lane ? 
it is offered in evidence that the body before the Court is that of a woman who 
never bore children. How is this a cause or effect of the fact in issue ? The 
widest acceptation of the words 'cause' and 'effect' will not include such facts 
as these. And if we give them the meaning necessary to make true the state- 
ment that relevancy means the connection of events as cause and effect, then 
the statement itself becomes of no use, because every fact will be relevant. No 
doubt to a being of such capacity of intelligence as to see the whole cause of 
every effect and the whole effect of every cause, everything that ever happened 
becomes one rigid fact and nothing is irrelevant. But for human purposes 
there is no question that relevancy and irrelevancy are realities; the difference 
between the two is recognizable by an ordinary human capacity, and must be 
something expressible in ordinary language. 

The definition that relevancy means the connection of events as cause 
and effect, leaves us, then, in this difficulty : that if we take the words in any, 
even the widest, comprehensible sense, the definition does not include all facts 
which we know from our experience to be really relevant ; and if we give them a 
transcendent meaning based upon our knowledge that all things preojdent have 
gone together to make up the state of things existing at any time, and that no 
fact could ever have existed without the co-existence of every other fact that 
did exist at the same time, then the definition includes everything, and so ceases 
to be a definition. 

Thus the statement that relevancy means the connection of events as cause, 
and effect, requires some addition, if the words are used in any ordinary sense 
and some limitation, if they are given a transcendent sense. 



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INTBODUOTION. 81 

Ml. Stephen, using the words in the latter sense, imposes one limitation 
and declares the practical existence of another. He says, (a) the rule is to be sub- 
ject to the caution that every step in the connection must be made out, and (6) 
that wide, general causes, which apply to all occurrences, are, in most cases, 
admitted, and do not require proof. The first of these limitations goes far to 
get rid of the objection that everything is relevant. The connection must be 
discernible, and every step in the connection proved or presumable. But if it 
is meant that each step must be recognizable as a proceeding from cause 
to effect, then, as shown above, things really relevant will be excluded. And 
if any other kind of connection will suffice, then it may be said of both the limi- 
tations, that they are of Uttle service, that the help they give in deducing prac- 
tical rules from the general principle is small. For those rules are least likely 
to be appealed to in the case of wide general causes, or occurrences, the con- 
nection of which with the fact in issue is not traceable. The object of the rules 
b to keep out irrelevant matter that is brought forward. As a fact such 
matter b submitted as evidence every day. Such matter does not usually 
consist of wide general causes that are admitted, nor of occurrences that have 
no connection with the facts in issue, and therefore these limitations do not 
exclude it. Therefore these limitations are not sufficient. 

Now as the theory propoimded faUs short of defining what relevancy is, 
so we may expect to find in the rules themselves things that cannot be explained 
by the theory. Again, as the rules are not deduced from first principles but 
ue generalizations from actual experience, it is possible that in some unusual 
cases the language of the rules may not prescribe with accuracy the true limit 
of the relevancy. And, thirdly, and for the same, reason, it is possible that the 
raks laid down may not be in every part strictly confined to the subject of re- 
levancy. 

Thus it is not immediately apparent, from the theory set forth, why one 
part of a transaction throws light upon another part which is so distinct from 
the first as to form in itself a fact in issue. When Mr. Hall shot three or four 
Gaekwari sowars, and it was a fact in issue whether he shot a particular one, 
no doubt the fact that he shot the others increased the probabihty of his having 
shot the one in question. But the theory does not^afiord a ready explanation 
of this. 

By section 7 those &ctB are relevant to facts in issue ' which constitute the 
state of things under which they happened.' A Magistrate lately convicted 
some persons of rioting, and, the object of the riot having been to ofiend some 
Hindu religious reformers, he commenced his judgment with a general history 
of religion and religious reformation down to the present time. The Judge, 
before whom the case came on appeal, remarked upon the irrelevancy of tUs, 
and of course it was utterly useless ; but the rule quoted does not seem to ex- 
clude evidence of it. By the same section, facts which afiord an 'opportunity* 
for Ihe occurrence of a fact in issue, or relevant facts, are relevant. The theory 
does not explain why. When Mr. Hall shot the sowars, the fact that he had a 
rifle, gave him an opportunity of shooting the man he shot; but it gave him 
equal opportunity of shooting other persons whom he did not shoot. Its par- 
ticular bearing upon the fact in issue to make it relevant is not explained. 

Sectign 8 is partly concerned with the admiasibihty of evidence of state- 
ments. It includes the substance of the English rule tiiat declarations which 
are part of the res geslCB may be proved. But this has nothing to do with 
relevancy strictly so called, {v. 'pott, remarks upon HL (j) of this section.) 

Section 9 declares facts necessary to explain or introduce a fact in issue to be 
relevant, but prescribes no test of the necessity. Is there no danger of useless 
matter being brought upon the record under this role on the ground that it ex- 
plains or introduces something to follow ? It is true there is a provision, under 
tiie law for the examination of witnesses, that when either party proposes to 
w. lae , ' [ 

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82 IMTBODUOnON. 

give evidence of any fact, the Judge may ask in what mannei the fact would be 
relevant, and need not admit it unless he thinks it would be relevant (section 
136, Evidence Act) ; but still whether or not the fact is necessary to explain or 
introduce may be a disputable matter. The first illustration says that when 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. Now, 
it is obvious that some particulars about the property would be useful to be 
known, and some would be useless. 80 the rule seems partly to &il of its ob- 
ject, in that it does not define what class of particulars is relevant 

Section 10 is a rule relating to one particular kind of transaction, conspiracy ; 
and section 12 refers only to the question of damages. But the mind sets to work 
to ascertain such facts as these in just the same way as any other facts, and it does 
not appear why special rules are requisite. When any person is charged with 
conspiracy, one of the facts in issue is the existence of the conspiracy, its abecrfnte 
existence without reference to the accused person ; and from the nature of the 
thing itself, requiring as it does the action of more than one mind, it is to be ex- 
pected that causes of it and effects of it will be foimd existing oatside the mind, 
and without the knowledge, of a particular person. Therefore no rule is required 
to make such causes or effects or other connected facts relevant to the fact in 
issue. 

But the rule goes on to declare that such facts are relevant also for tiie pui' 
pose of showing that the accused person was a party to the conspiracy. Well, 
if such facts will show that, clearly they are in very truth relevant. But it is 
obvious that very many such facts will have no bearing whatever upon the 
question of the accused person's complicity. And it seems an error in tiie rule 
to declare all such facts relevant for that purpose, instead of showing which 
are and which are not. (Consider some such ccmspiracy as that which went by 
the name of Fenianism. Suppose a man is being tried in Ireland for so con- 
spiring. Suppose he had been in prison for a month before trial. Suppose the 
Court had received abundant evidence of the existence, nature and objects of 
the conspiracy. Still under this nde the Court could not refuse to listen to 
witnesses just arrived itora America stating that a party of Fenians had burnt 
a farm there a fortnight before the day of trial — thus to prove the accused 
person's complicity in the conspiracy. 

Section 14 declares that facts which show the existence of any state of mind 
are relevant when the existence of such 'state of mind' is in issue or relevant. 
Looking at the illustration, it seems doubtful whether the expression 'state of 
mind' is wide enough. One of the states of mind mentioned is ' knowledge.' 
Illustration (c) is an example of this. There the question is .whether a man knew 
that his dog was ferocious ; and the facts that the dog had bitten several persons 
and that they had complained to the owner are relevant. These facts are reaUy 
connected with the &ct in issue through the owner's knowledge. But Illus. (a) 
also purports to be an example of a fact being relevant as tending to show know- 
ledge. The question there is whether a person found in possession of a stolen 
article knew that it was stolen ; and it is said that 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 to be stolen. No doubt the 
fact is relevant, but it is not through the receiver's knowledge that it is con- 
nected with the fact in issue. What it proves is not a state of mind, but a 
habit, a habit which makes the receiving with a guilty knowledge a more likely 
fact tiian it would be without proof of tiie habit. " 

Mr. Whitworth then proceeds to propound his theory of relevancy with the 
new rules which he deduces from it : — 

" Every &ct in issue may be affirmed or denied ; and that not merely in 
the bare form in which it may be stated as a fact in issue, bat in every detail 



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INTBODUOTION. 83 

of the meaning of that statement. The whole includes the part ; if any &ct is 
affirmed as a whole, any part of it may be affirmed or denied ; anything implied 
by an affirmation is really part of that affirmation and may be expressly affirm- 
ed or denied. It may be in issue merely. Did A murder B 1 But if, as the 
affirmation is enquired into, it is found to mean that A murdered JS at a parti- 
cular hour and a particular place, then, that^ was in that place at that hour, may 
be affirmed or denied. The issue may be merely, Did Wainright murder Harriet 
Lane ? But if those affirming it produce a body saying it is Harriet Lane's, 
then anything showing that it is or is not may be put forward. Or the issue 
may be, did the accused person attempt to poison Colonel Phayre ? But if 
it is found that the charge means that the accused person put arsenic into a 
glass of sherbet which, from his knowledge of Colonel Phayre s habits, he knew 
Colonel Phajnre would drink, then Colonel Phayre's habit of drinking sherbet 
at a particular time and the prisoner's knowledge of this are parts of the fact 
in issue. 

But besides the matters expressly or virtually in issue, some siurroimding 
matters may aid in determining an unknown fact. Knowing that the progress 
of events is from cause to efiect, any fact that seems likely to have caused the 
fact to be determined, or any fact that suggests the fact to be determined as a 
cause of it, may be of use. 

Again, one cause may have many effects and the cause may be ascertain- 
able from one effect as well as from another. If then in endeavouring to ascer- 
tain whether a particular event has happened we see some other event that sug- 
gests as its cause something that would probably have caused the thing we want 
to ascertain, then that event will be of use. For example, we want to ascertain 
whether A stabbed B, and we hear that on the occasion on which he is said to 
have done so, A said to B, "then die. " Now this seems to imply just such 
volition employing the tongue as would employing an armed hand stab B. 
The words and the fact in issue are effects of the same volition. Similarly were 
A charged with poisoning B, the fact that before the death of B he procured 
poison of the kind that was administered to B would be relevant. The procur- 
ing the poison is an effect of a cause which might be the cause of the fact in 
issue- 
Thus there are four classes of fact which aid in determining a fact in issue : 

(1) Any part of the fact alleged or any fact implied by the fact alleged ; 

(2) Any cause of the fact ; 

(3) Any effect of the fact ; 

(4) Any fact having a common cause with the fact in issue. 

But it is not the whole of these facts that are of use. Some facts connect- 
ed with the fact in issue in one of the four ways mentioned may be of a general 
nature, existing whether or not the fact in issue happened and therefore indi- 
cating nothing as to whether it happened or not. For example : A is charged 
with the murder of B by pushing him over a precipice. Here the fall of £ to 
the ground after he was pushed over is as much a cause of his death as the push- 
ing over, and as much an effect of the push as his death is. But gravitation is 
a general fact and exists all the same whether B went over the precipice or not, 
and proof of it is therefore needless. 

Besides such general facts there may be facts connected with the fact in 
issue in one of the four ways, but with such a very sUght bearing upon it that 
their probative force is quite insignificant as, for instance, if a bo^nsh qtianel 
of fifty years ago were brought forward to prove ill-feeling between two men 
who had joined in partnership twenty years before. 

To meet both these classes of cases, one proviso only is requisite, namely, 
that no fact is relevant to another unless it makes the existence of that other more 



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84 INTBODtTOnON. 

likely. It is not necessary to say anything of the degree of probability the fact 
must raise. The test is obvious. The Judge who has eventually to decide 
whether the fact in issue is proved or not, must decide whether the fact offered 
in evidence mil, if proved, aui kirn in that decision. 

The theory, then, so far as we have gone, is this. Those facts are relevant 
to a fact in issue, the existence of which makes the existence of the fact in issue 
more probable, and they are found to be connected with the fact in issue in one 
of these ways, as being, (a) part of the fact in issue, (6) cause of it, (c) effect of it, 
or (({) an effect of a cause of it. 

But as, relying upon the principle that effects follow causes, we take from 
the surrounding circumstances facts that appear to be probable causes or pro- 
bable effects of a fact unknown, as a means of proving it ; so, upon the same 
principle we may first consider what would be probable causes or effects of the 
fact unknown and look upon their absence as a means of disproving it. 

Therefore in addition to the four classes of facts above mentioned, which 
may be said to be positively relevant, we have the following four dassee which 
may be called negatively reieoant : (a) facts showing the absence of what might 
be expected as part of a fact in issue or of what seems to be imphed by a fact 
in issue ; (b) facts showing the absence of cause of the fact in issue ; (c) facts 
showing the absence of effect of the fact in issue ; (d) facts showing the absence 
of effects (other than the fact in issue) of the probable cause of the fact in issue. 
And as it is essential to facts positively relevant that they make the fact in 
issue more likely, so those facts only are negatively relevant which make the 
existence of the fact in issue less likely. 

Again, as facts are relevant only by reason of their being coimected with 
the fact in issue, it follows that to disprove the connection of an allied rele- 
vant fact with the fact in issue is as emcacious as to disprove the existence of 
the fact. To show, for instance, that an alleged cause of a fact in issue would 
not really have as effect the fact in issue ; or to show that an alleged effect of a 
fact in issue is really the effect of some other cause, does as well as to show that 
the alleged facts never existed. And as the connection of an alleged relevant 
fact may be disputed, so it may be afiSrmed in anticipation of dispute. That 
is to say, all facts which tend to prove or disprove the connection in the way of 
relevancy between facts in issue and alleged relevant facts are themselves 
relevant. 

As relevant facts may be proved and as the mode of proof of any fact is 
(beyond the affirmation of witnesses of the fact) by means of facts relevant to 
it, it foUows that " facts relevant to relevant facts are themselves relevant." 

These considerations suggested to Mr. Whitworth the following roles, 
which he considered sufficient to decide, and the simplest test by which to decide, 
whether any fact offered in evidence is relevant : — 

RtTLE I. — No fact is relevant which does not make the existence of a fact 
in issue more likely or unlikely, and that to such a degree as the Judge consi- 
ders will aid him in deciding the issue. 

RlTLB II. — Subject to Rule I, the following fapts are relevant: 

(1) Facts which are part of, or which are implied by, a fact in issue ; or 

which show the absence of what might be expected as a part of, or 
would seem to be implied by, a fact in issue ; 

(2) Facts which are a cause, or which show the absence of what might 

be expected as a cause, of a fact in issue ; 

(3) Facts which are an effect or which show the absence of what might 

be expected as an effect of a fact in issue ; 

(4) Facts which are an effect of a cause, or which show the absence of 

what might be expected as an effect of a cause, of a fact in issue. 



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86 



Rule III. — Facts which affirm or deny the relevancy of facts alleged to 
be relevant under Ride II are relevant. 

Ruifi IV. — Facts relevant to relevant facts are relevant. 

Mr. Whitworth gives a single example of each kind of relevancy according 
to his classification, taking all examples from a simple case, that of Muller, 
who was tried for the murder of an old gentleman, a banker, named Briggs, by 
beating him with a life-preserver, as they were travelling together by rail, and 
then throwing him out of the train. Muller tried to make his escape to America, 
but was pursued and arrested on his arrival there. One point urged in the 
piiBoner's defence was that he was not physically strong enough to commit 
the murder as alleged. His object appeared to be robbery. 

The kinds of relevancy according to Rule II are four ; but, as the first clause 
contains two classes with an apparent difference, they may, Mr. Whitworth says, 
be taken for the purpose of illustration as five ; and as each kind may be either 
positive or negative, the number becomes ten. And as by rule III the connec- 
tion of a fact with the fact in issue may be disputed as well as its existence the 
nnmber of illustrations required is twenty. 

These he gives in order as cited in the footnote(l) : — 

After giving this single example of each land of relevancy according to his 
classification Mr. Whitworth proceeds to decide by reference to the above rules 
all the cases quoted in illustration of the rules set forth in this Act and shows 



(1) (a) Pari of fact in ut,uf. — It would be rele- 
wnt to prove that, at the time the offence was 
nidtobe oommitted, a witness by the roadside 
gst > glimpse, as the tr&in passed, of the prisoner 
•tsoding up io the carriage with his hand raised 
•boTs his bead. 

(M Diftting the eonneclion. — It would be re- 
leTant to show that at the time in question, the 
pritonet had o^asion to close u ventilator in 
the top of the carriage. 

(c) Ahmiee of what might bt expected an fart 
of tie fact in imut. — It would be relevant to show 
tlut no noise was heard by the oooupants of the 
next compartment. 

(if) Ditfuling the eontuetiox. — It would be re. 
Irvant to show that the occa)Mnts of the next 
compartment were fast asleep. 

(() fact implied by <: feet in ietue. — It would 
bs relevant to show that Miller was armed with 
a weapon. 

(/) Dieputin^ the eoi>Heei(on.~It wonld be re- 
levant to show that such a weapon could not 
have caused the mark* found on the body. 

(;) Abtetue of fnet impliei 6y fact in iene. — It 
vould be relevant to show that Holler was 
physically a very weak man. 

(k) DitpmHng the eonneetion. — It wonld be re- 
levant to show that under the circumstances 
but little strength waa required. 

(() Catue — It wonld be relevant to show that 
Mr. Briggi had done Muller some great injury. 

(i) Ditpmtinj the eonmcCton.— It wonld be 
relevant to show that HnOer was not aware that 
it was Ur. Briggt who had done him the injury. 

(t) Attner. of eoiiK.— It would be relevant 
to show that Ur. Briggs had nothing valuable 



about him to tempt a robber. 

({) Ditputiitg the connection. — It wonkl be 
relevant to show tiiat Hnller had reason to be- 
lieve that Mr. Briggs had valuables in hia 
possession. 

(m) Effect. — It would be relevant to show 
that immediately after the occurrence Muller 
took passage for America. ' 

(n) Disputing (he eonneetion. — It would be 
relevant to show that Muller had sudden and 
urgent business that called him to America. 

(o) Absenee of effect. — It would be relevant 
to show that the railway carriage bore no marks 
of a struggle. 

(p) Disputing ike connection.— \t would be 
relevant to show that Mr, Briggs was too old 
and feeble to offer any considerable resistanoe. 

(;) Effect of a ecuue of a fact in iuue. — It 
wonld be relevant to show that Huller had just 
before provided himself with a life-preserver. 

(r) Dieputing Ai eonnrction. — It would be 
relevant to show that Muller anticipated violence 
to himself on the day in question. 

(<) Abtenee- of effect of eauie of fact in vuue. — 
It would be relevant to show that Huller and 
Mr. Briggs had travelled together for a long 
distance before the fatal occurrence, and that 
through all that time Muller had equal oppor- 
tunity to attack Mr. Briggs and bad not done so. 

(i) Disputing the connection. — It would be 
relevant to show that Muller had aaoertained 
how far Mr. Briggs was going to travel, and that 
he (Muller) could beet effect his escape by getting 
out at »ame place the train came to after the 
occurrence. 



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86 INTBODUCTION. 

that his rules are identical in effect with the law by reference to them of the 
illustrations in the Act as follows : — 

SECTION 6 . Illustration, (a).(l) For upon examination every part of a 
transaction will be found to be connected with every other part as cause or efiect 
or as effects of one cause. 

lUuttration (b), (2) — That war was waged is one of the facts in issue. These 
occurrences are part of that fact. 

lUustration (c), (3). — Besides the fact of the publication there may be in 
issue the question of B'« good faith or malice, of the sense in which the woids 
were used, whether the occasion was privileged or not. Other parts of the 
correspondence may be causes or effects of the publication, or effects of B'» 
good faith or malice, or effects of the words having been used in a particular 
sense, or effects of a relationship between the parties showing that the occa- 
sion was or was not privileged. 

Ilhutration (d), (4). — Each delivery is a relevant fact as being part of tiie 
fact in issue, Did the goods pass from Bto A'i 

SECTION 7 : lUuttration (a), (5).— The first fact is relevant as a fact implied 
by the fact in issue ; and the second is relevant as a cause of the fact in i&sue. 

Illustration (6), (6).— The marks are relevant facts as effects of part of the 
fact in issue. 

Illustration (c), (7). — That B was ill before the symptoms ascribed to poison 
is relevant as denying the connection of cause and effect between the fact in 
issue (the poisoning) and the relevant fact (the death) : that B was well is rele- 
vant as asserting tihis connection. The habits of B are, if it is alleged that the 
opportimity was availed of, relevant as part of the fact in issue. (If the oppor- 
tunity was not availed of, the habits are not relevant.) 

SECTION 8 : lUustraiion (a), (8).— The facts are relevant as causes of the 
fact in issue. 
• Illustration (6), (9). — The fact is relevant as a cause of the fact in issue. 

lUustration (c), (10). — The i&ct is relevant as an effect of a cause of the fact 
in issue. 

(1) ^ ii Booiued of the mnider ot B by beating ihowed it or mmtioned the fact that he had it 
him. Whatever was aaid or done by ^ or £ to a third penon are relevant. 

or the byittinden at the beating or lo shortly be- (6) The qoeetiao ia whether A mxadtni B. 

fore or after it us to form part of the transaotion, Marks oo the grouid prodaoed by a stnggle at 

is a relevant fact. or near the place where the murder was committed, 

(2) A is aoonsed of waging war against the are relevant fttcts. 

Queen by taking part in armed insurrection in (7) The qnestion is whether A poisoned fi. 
which property is destroyed, troops are attacked The state of £'( health before the symptoms al- 
and gaols are broken open. The occurrence of oribed to poison and habits of B known to A 
these facts is relevant os forming part of the whi^ afforded an opportunity for the admisii. 
general transaction though A may not have been trati<m of poison, are relevant facts, 
present at all of them. (8) A is tried for the murder of B. That A 

(3) A sues B tot a libel contained in a letter moidered C, that B knew that A had murdered 
fonning part of a correspondence. Letters bet- 0, and that B had tried to extort money from A 
ween the parties relating to the object out of by threatening to make his knowledge pnUic, 
which the libel arpse and forming part of the cor- are relevant. 

respondence in which it is contained are relevant (0) A sues B upon a bond for the payment o( 

tacts though they do not contain the Ubel itself. mcaej. B denies the making of the bond. The 

(4) The qnestion is whethw certain goods tact tiiat at the time when the bond was alleged to 
ordered from B were delivered to A, The goods be made, B required money for a partieolar 
were delivered to severs intermediate parties pnrpose is, relevant. 

sneceasivdy. Each delivery is a relevant fact. (10) A is tried for the mnider of £ by poison. 

(5) The question is whether A robbed B. The fact that before the death ct B, A procured 
The facts that shortly before the robbeiy B went poison similar to HM which was administered to 
to a' fair with money in his possession and tiiat he B, is relevant. 

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INTBODtTOTION. 87 

lUtutration {d), (1). — The facts are relevant as effects of the cause of the 
fact in issue. 

IBustration (e), (2). — The facts are relevant ; for thw are all effects of the im- 
mediate cause (namely, A^g resolution to commit the offence) of the fact in issue. 

lUuttration (/), (3). — The latter fact is relevant as an effect of the iaet in issue, 
and the former as a cause of the latter. As to the sense in which C« statement 
is relevant, see remarks below, iUustration (;*), post. 

lUiutration (g), (4). — For A' 8 going away without making any answer is an 
effect of the fact in issue, and the other two facts are causes of that effect. 

IBustration {h), (5). — The first fact is relevant as an effect of the fact in 
tssne, and the second as a cause of that effect. 

Illustration (i), (6). — ^The t&cts are relevant as effects of a fact in issue. 

Illustration (7), (7). — ^The &cts are relevant as effects of the fact in issue. 
The illustration goes on to say that the fact that without making a complaint, 
she said that she had been ravished, is not relevant as conduct under section 8, 
though it may be relevant as a dying declaration or as corroborative evidence. 
Now here, as Mr. Whitworth points out, the strict use of the term 'relevant' has 
been departed from. That the woman said she had been ravished is relevant, 
though it does not follow that it is admissible. The Act declares when state- 
ments of fact in issue or relevant facts may be proved. When the statement 
is a dying declaration is one instance ; that such statements may under certain 
circumstances be proved as corroborative evidence in another, and another is 
to this effect, that when the conduct of any person is a relevant fact, his state- 
ments accompanying or explaining that conduct, or statements made to him 
or in Ids hearing affecting tiiat conduct, may be proved. This has nothing to 
do with relevancy, and the rule seems out of place in section 8. It is because 
the woman's statement without complaint is not admissible under this rule, 
that the Act says that statement is "not relevant as conduct under this section." 
So above in Illustrations (/), (q), (h), some of the relevant facts are statements. 
They are also admissible as being connected with conduct. They are simply 
pronounced relevant. It is plain that it is meant that they may be proved. 
But that the statements are relevant in the strict sense is sufficient for we pre- 
sent purpose. 

(I) The qoMtioQ >■ whetiier a certain doen- (4) The qaeetion is whether A owea B 10,000 

ii the vin of A. The iaots that not kng rupeee. The facta that A aaked C to lend him 



before the date of the alleged will, A made en- money, and that D aaid to C in A'4 preaence and 

qnirj into matten to which the provieione of the bearing, " I adviM 70a not to troat A, for he 

alleged will relate, that he conaolted rakila in owea B 10,000 rupee*," and that A weat away 

niennoe to making the will, and that he oaorad without making any answer, aie relevant facU. 

diafia of other wills to be prepared of which he (6) The qnestion is wheUm A committed a 

did not approre, are relevant crime. The fact that A abeoonded after receiving 

(8) A is aocoaed of a crime. IDie acta that a letter warning him that inqniry was being made 

either before or at the time (rf, or after the alleged {or the criminal, and the contenta of the letter, 

crime, A provided evidence which woald tend to are relevant 

give to the beta of the case an appearance favor. (6) A is aooosed of a crime. The facta that 

sUe to himself or that he destroyed or onnoealed after the commission of the alleged orime, he ab- 

evidenoe, or p' event-^ the preseooe, or procured soonded, or was in possession of property or the 

the absence of pencoa who might have been proceeds of property acqnired by the crime, cr 

witnesses, or sabomed persons to give falsa evi- attempted to conceal things which were or mi(^t 

deoee respeoting it, are relevant have been used m committing it, are rdevant 

(3) The qoeation is whether A robbed B. The (7) The qnestiaa is whether A was ravished, 

faota that, after B was robbed, O said in A't pre- The tacts thatshortly after the alleged tape, she 

' The police an coming to kxA for the man made a complaint relatjag to the crime, the cir- 



who robbed B,' ' and that immediately afterwards cnmstncee under which, and the terms in iriiich 
A ran away, are relevant the complaint was made, are relevant 



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88 INTBODUOTION. 

lUustraiion (k), (1). — The facta in the first sentence of the illustration are 
relevant as efiects of the fact in issue. The fact that he said he had been robbed, 
without making any complaint, is relevant, though whether it is admissible 
or not depends upon the law relating to the question what statements may be 
proved. 

SECTION : 9 Illustration (a), (2).— The Act says the state of A't property and of 
his family at the date of the all^^ed will may be relevant facts. But it may be 
stated absolutely that so much of the state of A's property or of his fiimily as 
shows probable cause for his making such a will as the alleged one, or as shows 
the absence of such probable cause, is relevant. 

Illustration (b), (3). — Upon this issue so much of the position and relations of 
the parties at the time when the libel was published as shows cause for B'» 
publishing a true libel or a false one, or the absence of such causes and so much 
as bears upon the matter asserted in the libel as cause of its truth or otherwise, 
is relevant. 

The particulars of a dispute between A and B about a matter unconnected 
with the alleged libel are, the illustration says, irrelevant, because they do not 
make any fact in issue more or less likely to have happened. But the fact that 
there was a dispute is relevant if it affected any part of the position and rela- 
tions of the parties defined above. 

Illustration (c), (4). — The absconding is relevant as an effect of the fact in 
issue. 

The fact of the sudden call is relevant as denying the connection of cause 
and effect between the fact in issue and the alleged relevant fact. 

The details further than as stated in the illustration do not make the fact 
in issue more likely or unlikely to have happened. 

Illustration {d), (5). — This statement is relevant as aiiirming the connection 
of cause and effect between the fact in issue {B's persuasion) and the relevant 
fact (C» leaving A's service). 

Illustration (e), (6). — B's statement is relevant as an effect of a fact in issue. 

Illustration if), (7). — ^That the riot occurred is a fact in issue, and the cries of 
the mob are relevant as parts or as effects of the fact. 

SECTION 10: Illustration, (8). — And any of these facts that are so connected 
with the other fact in issue, A's complicity, as to make it more or less likely, are 
relevant for that purpose also. 



(1) The question is whether A wss robbed. iras sodden or urgent 

Hie fiot that, soon after the alleged robbery, he (6) A saes B for inducing G to break a cootnct 

made a complaint relating to the offence, the cir- ot service made by him with A. C, on leaving A't 

cnmstances under which and die terms in which service, says to A, "I am leaving yon beoaoM 

thp oomplaint wis made, are relevant. B has made me a better offer." This statomeot 

(2) The question is whether a given document >s a relevant fact as ezplanatory of C« ocodoct 
is the win (rf A. which is relevant as a fact in issuer 

(3) A sues £ for a libel imputing disgraceful <S) A accused of theft, is seen to'give the stolen 
cflodnot to A; B afflrms that the matter alleged property to B, who is sem to give it to A'i wifet 
to be libellous is true. B says, as he delivers it, 'A says 'you are to hide 

(4) A is accused ci s crime. The fact that this.' £"« statements is relevant as ezplanatwy 
oon after the conunissioo of the crime A absoood- "^ * '■ot which is part of the transaction. 

ed from his house, is relevant under s. 8 as conduct (7) J^ i* tried for a riot and is proved to have 

SD>«)quent to, and affected by facts m issue. The marched at the head of a mob. The cries cf the 

fact that at the time he left home, he had sadden '"o^ *" relevant, as explanatory of the nature of 

and urgent business at the place to which he went, the transaction. 

is relevant as tending to explain the faot that he (S) Reasonable ground exiita for believing 

left home suddenly. The details of the business that A has joined in a oonspnaoy to wage tst 

CO ^lioh he left are not relevant, except m so far against the Queen, 
(s they are neoessaty to show that the business 



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89 



SECTION 11 • lUuttratioH (a), (1).— Presence at Lahore b relevant as denying 
a part of the fact in issue. The other fact is relevant as making a part of the 
fact in issue unlikely. 

lUuttratwn {b), (2). — That the crime was committed is adduced as an effect 
of the fact in issue that A committed it. To show that some other person com- 
mitted it is relevant as denjdng the connection of cause and effect between the 
fact m issue and relevant fact ; and to show that no other person committed it 
b relevant as affirming that connection. 

SECTION 12, (3) :— For the amount of damages is a fact in issue, and any 
fact which will enable the Court to determine it will be found to be connected 
with the fact in issue in one of the ways specified. 

SECTION 13- lUugtration, (4).— The deed is relevant as a cause of the fact 
in issue. The mortgage is relevant as an effect of the father's right, which is 
relevant as a cause of A's right. The subsequent grant of A' 8 is relevant as deny- 
ing a fact implied by that relevant fact. Particular instances of exercise of the 
right are relevant facts as effects of the father's right. And instances in which 
the exercise of the right was stopped are relevant as contradicting those rele- 
vant facts. 

SECTION 14 : lUustration (a), (5) The fact that, at the same time, he was 

in possession of many other stolen articles is relevant as an effect of a habit of 
receiving stolen goods, the habit being relevant as a cause of his receiving the 
particular article with a knowledge that it was stolen. 

lUustration {b), (6)— The fact is relevant as effects of a habit, which habit is 
a cause of his delivering the particular piece with a knowledge that it was coun- 
terfeit 

lUustration (c), (7). — The facts are relevant as the causes of a fact in issue, 
B*! knowledge that the dog was ferocious. 



Tha hel* thst B pcoenred arms in Europe for 
the pnipcM of the ooiupiraoy, C oolleoted monegr 
in Caloatta for s like object, D perauaded penona 
tojojn the oonapiraoy in Bombay, E published 
wriliqga idTOcating the object in view in Agrai 
ud F transmitted frcan Delhi to O at Cabnl, the 
Bcnsjr which C had oollectad at Calcutta, and the 
Motsnti of a letter written by B giviag an account 
°< the conapiraoy, are each relevant to prove the 
sritteoee of the conspiracy, although he may 
liSTe been ignorant of all of them, and although the 
psocos by whom th-y were done were strangett 
to him, and ahfaongh they may have taken places 
More he joined the conspiracy or after be left it. 

(I) Tile question is whether A committed a 
crime at Calcutta on the certain day. The fact 
that, CO that day. A was at Lahore is relevant. 
Tie bet that near the time when the crime was 
ocmmitted A was at a distance from the place 
vhtre it was committed, which would render 
it U^dy improbable, though not hnpoesible, that 
he aommitted it, is relevant. 

(!) The question is whether A committed a 
aima. The oiroumatanoee are such that the 
crime most have been committed hy A, B,C or 
D, Svery fact which shows that the crime could 
have been oommitted by no one else and that it was 
not ooounitted by eiUwr £, C or D, is relevant. 

(3) In soita in which damages are claimed, any 
faet wfaioh will eoaUe the Court to determine the 



amount of damages which ought to be awarded 
isjirdevant. 

(4) The question is whether il has a right to a 
fishery. A deed conferring the fishery on A't an- 
cestors, a mortgage of the fishery by A'a father, a 
subsequent grant of the fishery by A'» father, irre- 
conoileable with the mortgage, particular instanoet 
in which A't father exercised the right, or in 
which tiie exercise of the right was stopped by 
A't neighbours, are relevant facts. 

(5) A is accused of receiving stolen goods, 
knowing them to be stolen. It is proved that he 
was in possession of a particular stolen article. 
The fact that at the same time he was in posses- 
sion 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 whicli 
at the time when he delivered it, he knew to be 
counterfeit. The fact that at the time of its deli- 
very A was possessed of a number of other pieoex 
of counterfeit coin is relevant. (The rt-st of the 
illiwtration was added after Hr. Whitworth's 
pamphlet by Act UI of 1891). 

(7) A sues B toe damage done by a dog of £*> 
which B knew to be ferocious. The facts that 
the dog had previously bitten X, 7, and Z and that 
they had made complaints to £, are relevant. 



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90 INTRODUOTION. 

lUustration (d), (1).—¥otA's knowledge on the previous occasions area cause 
of his knowledge on the occasion in question, and that there was not time for 
the previous bills to be transmitted to him by the payee if the payee had been a 
real person is a cause of his knowledge on previous occasions, and the fact that 
A accepted the bills is an affirmation of the connection of cause and effect be- 
tween the fact concerning time and the fact of ^'« knowledge. 

Illustration (e), (2). — The fact of previous publications is relevant as an effect 
of the same cause as that of which the fact in issue is an effect. 

The fact that there was no previous quarrel between A and B, is relevant 
as alleging absence of fact in issue. The fact that A reported the matter as he 
heard it is relevant as denying the connection of cause and effect between the 
two facts, the malicious intention and the publication. 

lUustration (/), (3).— For A's good faith is in issue, i.e., did A, when he 
represented C as solvent, think him solvent ? is an issue. As Cs insolvency 
may be put forward on one side as a cause of AU thinking him not solvent, so, 
that his neighbours and persons dealing with him supposed him to be solvent, 
may be put forward as effects of causes which are causes also ol A's thinking 
him solvent. Thus the neighbour's suppositions are effects of causes of a fact 
in issue. 

lUustration (y), (4). — The fact that A paid C for the work in question is re- 
levant. For it is in issue. Was B's contract with A ? Therefore that A con- 
tracted for the same piece of work with C is relevant as showing absence of 
cause to contract with B, and that he paid C is relevant as an effect of the re- 
levant fact that he contracted with C. 

lUustration (A), (5). — The fact of notice is relevant as a cause of his know- 
ledge that the real owner could be found. 

The other fact is relevant as showing that the alleged cause of the fact in 
issue had not the effect of causing the fact in issue. 



(1) Theqaeition is whether A, the sooeptor of aentation in good faith. 

a bill of exchange, knew that the name of the (4) A is sued by B tot the price of work done by 

psjee was fiotitioos. B upon a house of which A is owner, by the order 

The fact that A had accepted other bills drawn of C, a eontraotor. A't defence is that £*« oai> 

in the same manner before they could hare been tract was with 0. The fact that A paid C for tite 

transmitted to him by the pay*e if the payee had work in question is relevant, as proving that A did. 

been a real person, is relevant, as showing that A in good faith, make over to C the management 

knew that the payee was a fictitious person. of the work in qnestion, so that C was in a posi- 

(2) A is aooosed of defaming B by publishing tion to contract with B oa Ct aoconnt and no* 
an imputation intended to harm the reputation as agent t<a A. 

of B. The faot of previous publications by A (6) A i» accused of the dishonest misa|^iro> 

respecting B, showing ill-wPl, on the part of A, priation of property which he had found, and tlM 

towards B is relevant as proving A'» intention question is whethn when he appropriated it, he 

to harm iTs reputation by the particnlar publi- believed in good faith that the real owner oonld 

cation in question. The facta that there was not be found. The faot that public notice of thrs 

no previous quarrel between A and B, and that loss of the property had been given in the plwM 

B repeated the matter complained of as he where A was is relevant, as showing that A did 

heard it, are relevant as showing that A did not not in good faith, believe that the real owner ol 

intend to harm the reputation of B. the property could not be found. The t»et 

(3) A is sued by £ for fraudulently represent- that A knew, or had reason to believe, that ths 
ing to B that C was solvent, whereby B, being in- notice was given fraudulently by C, who had 
duced to trust C, who was insolvent, suffered loss. heard of the loss of the property and wished to aet 
The fact that, at the time when A represented up a false claim to it, is relevant, as showing that 
C to be solvent, was supposed to be solvent by ^he fact that A knew of the notice did not die. 
his neighbours and by persons dealing with him, '°ve A't good faith. 

U relevant, as showing that A made the repre- 



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INTBODUOTION. 91 

Illustration (t), (1). — ^For A's intention is a fact in issue. The fact is one 
which may continue through a space of time, and the previous shooting is an 
effect of it. 

Illustration (i), (2). — For the intention to cause fear is a fact in issue. It is 
a fact capable of prolonged existence, and the previous letters may be effects 
of it. 

Should it, however, be objected that the fact in issue is intention at a parti- 
cular moment and not intention through a space of time, Mr. Whitworth's 
reply is, that previous intention is a cause of subsequent intention, or both are 
effects of the same cause. 

Illustration (i), (3). — The expressions are relevant as effects of the cause of 
the fact in issue or as showing absence of cause of the fact in issue. 

Illustration (/), (4). — The statements are relevant as effects of effects of the 
fact in issue. 

Illustration (m), (5). — The statements are relevant as effects of the fact in 
issae. 

Illustration (n), (6). — The drawing of ffs attention is relevant as a cause of 
Bs knowledge, which is a fact in issue. 

The fact that B was habitually negligent is irrelevant, for it is not con- 
nected with the fact in issue. 

Illustration (o), (7). — The fact is relevant as an effect of a fact in issue, E's 
intention. 

The fact that A was in the habit of shooting at people irrelevant, for it is 
ont connected with a fact in issue. 

Mr. Whitworth adds that this case, in which a habit is declared irrelevant, 
has some resemblance to that of Illustration (a), where a habit is relevant. But 
that there i& a real difference between the two. He says : ' ' The man who 
habitually shoots at people with intent to murder them has in each case a defi- 
nite intention of killing the particular person shot at. There is not, as far as 
the facts are stated, any ulterior common object to connect together the fact of 
the previous shooting and the fact in issue. But in the case of receiving stolen 
property the ulterior common object of making dishonest gain by receiving 
supplies the connection." 

Illustration (p), (8). — The first fact is relevant as an effect of the cause of tus 
committing the crime. 



H) d k charged with shooting at B with in- are relevant facta. 

t«iit to km him. The fact of A't having pre- (6) A sues B for negligence in providing him 

ymmty shot at B may be proved. with a carriage for hire not reaaonably fit for use, 

(2) A is cfaaiged with sending threatening let- whereby A was injured. The fact that B't at- 
ten to B. Threatening letters previously sent tentico was drawn on other occasions to the de- 
I? J to fi may be proved, at showing the inten- feet of that particiilar carriage is relevant. The 
tinn cf the letters. fact that B was habitually negligent about the 

(3) The qaestloo is whether A has been guilty carriages which he let to hire is irrelevant. 

oi cmdty towards B, his wife. Expressions of (':)AiB tried for the murder of B by intention- 

tbdr feeling towards each otfan shortly before tHy shooting him dead. The fact that A on other 

" after the alleged cruelty are relevant facts. occasions shot at S is relevant as showing his in. 

(4) The qaeation is whether A' a death was tention to shoot B. The fact that he was in the 
caased by poiaoa Statements made by A dur- habit of shooting at people with intent to murder 
ing his iUneu as to his symptoms, are relevant them is irrelevant. 

'x^ IS) A k tried for a crime. The fact that he said 

{a) The question is, what waa the state of hn something indicating an intention to commit that 

'nith at the time when an assurance on his life particular crime is relevant. The fact that he 

**s effected. Statemmts made by ^ as to the said something indicating a general disposition 

ttateof his health at, or near the time in question to commit crimes of that class, is irrelevant. 

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92 INTBODUCTION. 

The second fact is irrelevant, as it is not connected with the fact in issue 
namely, whether he committed the particular crime. 

SECTION 15 : Illustration (a), (1).— The facts are relevant as efiectb of the 
cause of the fact in issue. 

lUustraiion (6), (2). — The facts are relevant as effects of the cause of A'a 
making the particular false entry intentionally. 

lUustration (c), (3). — The facts are relevant as effects of the cause of the in- 
tentional delivery of the rupee in question. 

SECTION 16 : Illustration (a), (4). — The facts are relevant as causes of the 
fact in issue. 

Illustration (b), (5). The facts are relevant, the first as a cause of the fact 
in issue, and the second as affirming the connection of cause and effect between 
the first and the fact in issue. 

Mr. Whitworth was unfortunately prevented by want of lebure from dealing 
generally with the criticisms which has essay provoked. One of theie was that 
his first rule was a practical abandonment of the scientific form of the others. 
Mr. Whitworth's answer to this in his Preface to the Second Edition of his Pamph- 
let was that an examination of the connection of the first with the other rules 
would show that their scientific form was of independent value. The second, 
third and fourth rules suppUed, he contended a definition o^ relevancy and 
would be complete if the subject were the theory of relevancy absolutely. The 
qualification applied by the first rule was required, because the subject is the 
theory of relevancy for the purpose of judicial evidence. The theory is one thing : 
its application to a particular purpose is another. He added : — "It might be 
well to have rules that would express at once both the principle and its limita- 
tion. Failing this, I have propounded one rule (an unscientific one) as to the 
limitation and three others (scientific in form) as to the principle. But the im- 
portance or unimportance of the failure is to be measured by considering whe- 
ther questions of difficulty in actual practice usually relate to the limitation of 
the principle or to the principle itself ; in other words, whether, for the 
solution of such questions unscientific or scientific rules are provided. Now 
the first rule relates chiefly to what Sir James Stephen speaks of as ' wide 
general causes which apply to ail occurrences, are, in most cases, admitted and 
do not require proof ; and the test in cases of disputed relevancy will, I think, 
usually be found to be one of the other, the scientific rules." 

The theory contained in Mr. Whitworth's essay was subsequently adopted 
by Sir James Stephen himself in the earlier editions of his Digest of the Law of 
Evidence.(6) In the present edition Sir J. F. Stephen substituted another 

(1) A is accused of buining down hia house in (3) A m accused of bsudulently delrrcring to £ 
order to obtain money for which it is insured. a counterfeit rupee. The queetion is whether 
The facts that A lived in several house* sucoee- the delivery of the rupee was aooidentaL Th» 
sively, each of which he insured, in e«oh Incts that soon before or soon after the detrefy 
of which a 6re occurred, and after each of wliioh U> B, A delivered counterfeit rupee* to C, D and 
fires A received payment from a different in- K are relevant, as showing that the delivei; to 
surance office are relevant, as tending to show Bwas not accidental. 

that the fires were not accidental. (4) The question is whether a partionlar letter 

(2) A is employed to receive money from the was despatched. The facta that it waa th* gr- 
debt<»i of A It is bis duty to make entries in a dinary course of busineas for all lettan pat ia 
book, shoring the amount received by him. He a certain place to be carried to the post, and tk»t 
makes an entry showing that on a particular that particular letter was put into that place are 
occasion he received less than the really did re* relevant, 

ceive. The qaestim is whether this false eattj (6) The question is whether a partkolar lei' 

was accidental or intentional The facta that ter reached A. The facts that it was postad in 

other entries made by i4 in the same book are f Ise, due oonise, and was not retomed through the 

and that the false entry is in each case in favour. Dead Letter Office are relevant, 

of ^ ore relevant (6) See St^h. Dig., pp. IM, I6Z 



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iNTBODncnoN. 93 

definition of relevancy in place of that contained in the earlier editions and 
taken from Mr. Whitworth's essay, not as Sir J. F. Stephen observes, because he 
thought the former definition wrong, but because it gave rather the principle 
on which the rule depends than a convenient practical rule.(l) 

Dr. Wharton(2) while defining relevancy as that which conduces to the 
proof of a pertinent hypothesis ; a pertinent hypothesis being one which, if sus- 
tained, would logically influence the issue ; and adopting several of Sir J. F. 
Stephen's positions offers two criticisms as explaining why he cannot accept his 
«cheme as affording a complete solution of the difficulties which beset this branch 
of evidence. In the first place, the words " cause" and " effect" are open, 
when used in this connection, to an objection which, though subtle, is in some 
cases fatal. The " cause" of a fact in issue, it is alleged is relevant ; yet whether 
such a cause produced such a fact is the question the action is often instituted 
to try ; and it is a petitio princijni to say that the "cause" is relevant because it 
is the " cause" and that it is shown to be the cause because it is relevant. In 
the second place, the distinction between " facts in issue" and " facts relevant 
to fiicts in issue" cannot be sustained. An issue is never raised as to an evi- 
dential fact ; the only issues the law knows are those which affirm or deny con- 
clasions from one or more evidential facts. Thus, Sir J. F. Stephen when ex- 
plaining the supposed distinction says : " A ia indicted for the murder of B 
and pleads guilty. The following facts may be in issue : the fact that A 
killed B, etc." But if the group of facts classified as facts in issue be scruti- 
nized, it will be foimd that, as they are facts which could not be put in evidence, 
they are not relevant facts, though they might be relevant hypotheses to be 
sustained by relevant fact. If Counsel should ask a witness wheuier "A killed 
B " the question would if excepted to, be ruled out, on the ground that it called 
not for " facts," but for a conclusion from facts, and to such conclusions 
witnesses are not permitted to testify.(3) The only way of proving " facts in 
issue," as they are called by Sir J. F. Stephen, is by means of what he calls 
" facts relevant to the issue." Did 4 kill S ? We cannot say that it would be 
relevant to the issue for a witness to say " A killed S," for a witness would not 
be permitted so to testify. No facts are relevant which are inadmissible; and 
the fact that A killed B, being in this shape inadmissible, is irrelevant. It is, 
however, admissible, adopting Sir J. F. Stephen's illustration of facts relevant 
to the issue to prove that ' 'A had a motive for murdering B ; the fact that A 
admitted that he had murdered B" and the like. From such facts, taken in 
connection with facts which lead to the conclusion that A struck the blow from 
which B died, the hypothesis that A murdered B^ to be verified or discarded. 
We must, therefore, it is said, strike out from the category of relevant facts 
what Sir J. F. Stephen calls "facts in issue," or what may be more properly 
called pertinent hypotheses and limit ourselves to the position that all facte 
relevant to " facte in issue" (or to pertinent hypotheses) are, as a rule, ad- 
mianble. If we discard as ambiguous the word " fact" and substitute for it 
the word " condition" then the position we may accept is that all conditions 
of s pertinent hypothesis are relevant to the issue ; and that such conditions 
may be either proved or di8proved.(4) 

The other class of criticism to which we have referred is altogether ad- 
verse to the system on which the Act proceeds, namely, ite departure from the 
principle of English law which consiste of negative rules declaring what (as the 
expereeaon runs), is not evidence and ite attempt instead to positively define 
evidence by placing ite rules wholly into terms of relevancy. As pointed out 



(1) A. p. 1S8. The lobstitated defioitiOQ h 1888, Phibdelphia, ff 80, 26. 
gnn, p. 8S potf, in tha IntradDotkia to Ch. II. (3) 8t* Wharton, Sr. {, 607. 

(8) A Ooomentaijr on the Law o( Erideiioe (4) Wharton, Er., { SO. 

a CWa bmea by F. Whartco. U..D., Sid Kd, 



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94 INTRODUCTION. 

by Professor Tha7ei(l), it is here that Sir James Stephen's treatment of the 
Law of Evidence is perplexing and has the aspect of a tour de force. Helpful 
as his writings on this subject have been, they are injured by the small con- 
sideration that he shows for the historial aspect of the matter and by the 
over-ingenious attempt to put the rules of evidence wholly into terms of 
relevancy.(2) The difficulty of dealing with the subject of evidence b 
increased by the confused way in which in several respects the subject b 
treated in the Act particularly the obscurity which is tlurown over the rules 
of evidence by the false assumption that rules of exclusion are based solely 
upon irrelevancy.(3) Ss. 6-16 are, even when intelligible, for the most part 
difficult to practically apply, and as the practising lawyer knows, many of them 
are scarcely ever referred to, and then only for the most part to support a case 
for the reception of "evidence " which, bears on its face so little the aspect 
of relevancy that for an attempt to receive its admission, some section or 
other must he pressed into service. The Legblature has entertained the idea 
of instructing Judges and juries as to what constitutes relevancy giving as 
Mr. Markby says(4) in s. 7 a statement in quasi-scientific language of the 
meaning of relevancy ; in s. 11 a statement in popular language of what in s. 7 
is attempted to be stated in scientific language, and lastly an enumeration of a 
few facts which are declared to be relevant, though the catalogue of such rele- 
vant facts b inexhaustible. The truth b that everybody b assumed (and rightly 
assumed) to know what evidence b in the sense that the law takes it for 
granted that people know how to find out what is and what is not probative 
as matter of reason and general experience.{b) The rules which govern here are 
the general rules which govern everywhere ; the ordinary rules of himian thought 
and human experience to be sought in the ordinary sources and not in law 
books. There b a principle — not so much a rule of evidence as a pre-supposi- 
tion involved in the very conception of a rational system of evidence as con- 
trasted with the old formal and mechanical systems which forbids receiving 
anything irrelevant that is not logically probative. (6) How, asks Professor 
Thayer(7), are we to know what these forbidden things are ? Not by any rule of 
law. The English law furnishes no test of relevancy. For thb it tacitly refers 
to logic and general experience — assuming that the principles of reasoning are 
known to its Judges and Minbters just as a vast multitude of other things are 
assumed as already sufficiently known to them. Unless excluded by some rule 
or principle of law all that is logically probative is admissible. The Judge 
simply has to ask himself : — Does testimony of thb fact help me to detenmne 
the issue I have to decide. .Whether it does or not, his reason and experience 
will tell him. If it does not then the rule of reason excludes it. If it does 
then since there are tests of admissibihty other than logical relevancy, 
enquiry must be made whether there b any rule of law which excludes it. It is 
this excluding function which is the characterbtic one in the Englbh law of 
Evidence, which is, as Professor Thayer caUs it, the child of the jury system. 
It seems, he 6ays(8), " that our Law of Evidence, while it b emphatically a 
rational system, as contrasted with the old formal methods, b yet a peculiar 
one. In the shape it has taken, it is not at all a necessary development 
of the rational method of proof ; so that where people did not have the 
jury, or having once had it did not keep it, as on the continent of Europe. 

(1) Who during, at any rate, the laet century indeed the rest of the worit of the mort oarefnl 
was, s« Mr. Markby joatly saya, the only writer study. 

who added mnch to oar knowledge of the prin- (3) iScc Markby's Evidence Act. Intnd. 

ciplee of evidence since Bentham. Markby's (4) Id. 17. 

Eridenoc Act, Introd. (5) Thayer op etC, SeSn. 

(2) Thayer's Freliminaiy treatise on Evidence (6) Id. ZIB, 264. 
at the Common Law, p. 266ii. The whole of ob. (7) Id, 26S. 

VI in which this passage oocois ia worthy as is (S) Id. 270. 



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ISTBODUOTION. 95 

although they, no less than we, worked out a rational system, they developed 
under the head of evidence no separate and systematized branch of the law." 
The main object of the law is to determine not so much what is admissible 
in proof as what is inadmissible. Assuming in general that what is evidential 
is receivable, it is occupied in pointing out what part of this mass of matter 
is excluded ; and it denies to this excluded part not the name of evidence 
but the name of admissible evidence. Some things are rejected as being 
of too slight a significance, or as having too conjectural and remote a con- 
nection ; others as being dangerous in their eflect on the jury and likely to be 
misused or overestimated by that body ; others as being unpolitic or unsafe 
on public grounds ; others on the bare ground of precedent. It is in fact this 
sort of thing : — the rejection on one or another practiad ground, of what is 
nally probative which is characteristic of the English law of Evidence stamp- 
ing it as the child of the jury 8ystem.(l) Admissibility is thus determined, 
&st by relevancy — an affair of logic and experience and not at all of law ; 
stcond, but only indirectly, by the law of evidence which declares whether any 
given matter which is logically probative is excluded. 

A practical experience of many years in the working of the Act shows it 
to be a matter of regret that the English system which has its basis in the his- 
torical reasons to which we have referred, was rejected in favour of the attempt 
at a constructive treatment adopted in sections 5-16 of the Act. As Mr. Markby 
very justly puts it :(2) ' ' What then it will be asked is a Judge to do when he 
has to consider whether a fact is relevant ? In the first place I answer that 
this is a question which he has very rarely to consider. Parties to a litigation 
01 their advocates very rarely attempt to ofier irrelevant evidence. Their 
only object in doing so would be to waste time. They hope to influence the 
opinion of the Judge — and this they cannot expec^t to do by evidence which is 
leaDy irrelevant. But if a Judge thinks that he is being asked to listen to what 
is really irrelevant he would certainly not resort to any abstruse consideration, 
about cause and effect: he would simply consult his own experience." 
The real discussions which take place before a Judge upon evidence are, as he 
points out, not as to its relevancy but as to its admissibility. And this Act 
would have been far more intelligible if the language of it had corresponded 
with a collection of rules not upon relevancy but upon admissibility. In that 
case whilst their own reason and common-sense would have told the Judge and 
parties what was relevant, it would only have been necessary on an objection 
to look into the provisions of the Act to see whether there was any rule prohi- 
biting the reception of the particular evidence in question. Whether or no cer- 
tain kinds of evidence shall be admissible depends on a variety of considerations 
besides relevancy : and the putting forward of relevancy in the Act as if it were 
the only test is not only erroneous but unfortunate as it makes the Act difficult 
to explain and adds to the mystery by which this branch of the law is usually 
suppMed to be surrounded. There is, however, no mystery about the matter 
if it be remembered that the ordinary processes of reasoning or argument are 
not left at the door of the Court House and that within it the law does not pro- 

(1) U. 2M-2e9. It ia thus the creatoie of ex- Ions attended to by tribnnalg, which like the Court 

pennoe rather than of logic. Founded aa being a of Chancery adjudicate both on law a« on fact 

ntaonal Bystem upon the lawB of thought, it through the same oigaoB and the same procedure, 

yet reoognizes another mfluenoe (the jury) that 21aine'» Vittagt Commi.nitiu ^d Ed., 302. 
msat at erecy moment be t^cn faito aooonnt; (2) E-ridenceAot, pp. 17, 18. According to the 

fn it ia ttiji '^lioh broogjit it into being, as it ia learned author notwithatanding that this b an 

tba ifaaeooe of thia which alone aoooonts for the Act which professes to contain the whole law of 

PCPp^nUtsnoe of it in bH other than English- evidoice, two at least of the geaeral rules of ex- 

* P' '* **' 8 ooontriea, whether onoient or modem ; dusion (including that againat hearsay) are not 

Id' 207.868. In fact, it may be added, that the treated in it The language of s. 60, he contends, 

Knpi Mi mlaa of eridenoa are nerer ytrj aompa- does not, aa ia generally supposed, exclude heaisay. 

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96 INTBODUOnON. 

perly undertake to regulate these processes except as helping by certain roles 
which may be presented in a readily intelligible manner to discriminate and 
select the material of fact upon which these are to operate. Legal reasoning, 
at bottom, is like all other reasoning though practical considerations come in to 
shape it. Rules, principles and methods of legal reasoning have, however, 
figured as rules of evidence to the perplexity and confusion of those who sought 
for a strong grasp of the subject. The notion may be dismissed that legal 
reasoning is some natural process by which the human mind is required to 
infer what does not logically follow. What is caUed the " legal mind " is still 
the human mind and must reason according to the laws of its constitution. But 
to understand properly the law of evidence one must detach and hold apart 
from it all that belongs to that other untechnical and far wider subject.(l) The 
position may be summed up by saying that the laws of reasoning indicate what 
facts are rdevant. The law of evidence declares which of those facts are tn- 
admitsUile. These latter should be concisely stated and codified. But just as 
other organic processes are ordinarily and in most cases are the better carried on 
unconsciously, so little of use is attained and the risk of confusion is involved in 
an attempted analysis of that of the reason. The common sense and experience 
of both the parties and the Judge will tell them what they have to prove and 
what should be proved, and what is relevant for that purpose. And if these 
do not, abstract considerations of causality will not help them, interesting 
though these may be in enquiries less practical than those which come before a 
Court of Justice.(2) 

(1) Thayeropetf., Cb. VI,aiidthe«aiiMAathor's enter into the mizea of the Uw of caustlity Hut 
geleot cue* en Evidence, 1.4, there is such popolor reaort to a. 11. In a Ctdt 

(2) A) mattwa now stand on an objection to eri- which aimed merely at embodying the mki <i 
denoe the party tendering it haa to searoh the Act exolnaion all evidence would be jm'nd fadt ad- 
for the aeotioa which jnstiflea its reoeptico. Thia miwble unless the objectmg party could Apt 
is not always an easy matter, and it^^is probably some positive rule in the Code excluding it 
owing to thia and a not unnatural relnotanoe to 



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ACT No. I OF 1872. 



PASSED BY THE GOVERNOR-GENERAL 
OF INDIA IN COUNCIL. 

(R«c*tv«d the aasent of the Oovemor^Oeneral on the 15th March 11872.) 

THE INDIAN EVIDENCE ACT, i872. 

Tlie Title of an Act may be resorted to, to explain an enacting clause Title. 
when donbtful.(l) As to the title of an Act giving colour to, and controlling 
its provisions, vide note.(2) 

The law of evidence applicable in every case is that of the lex fori which Lex fieri. 
" governs the Conrts whether a witness is competent or not, whether a certain 
matter requires to be proved by writing or not, whether certain evidence 
proves a certain fact or not ; these and the like questions must be determined, 
not lege loci contractus but by the law of the country where the question 
arises, where the remedy is sought to be enforced and where the Court sits to 
enforce it.''(3) As to the law applicable in this country (vide post). 

Whereas it is expedient to consolidate, define and J'*««a»>i»- 
amend the Law of Evidence ; it is hereby enacted as 
follows :— 

OOHmNTART. 

The Preamble shows that this Act is not merely a fragmentary enact- The Pre- 
nient, but a consolidatory enactment repealing all rules of evidence other than *"»**•• 
those saved by the last part' of the second section. (4) 

The Law of Evidence applicable to British India is contained in this Act 
and in certain Statutes, Acts, and Regulations relating to the subject of evidence 
saved by the proviso of the second section, or enacted subsequent to this Act. 
This Act doe« not therefore contain the whole of the law of evidence. It 
has repealed all rules of evidence not contained in any Statute, Act, or 
Regulation in force in any part of British India. A person tendering evidence 
must therefore show that such evidence is admissible under some provision 
either of this Act or of the Acts abovementioned ; for there are no other rules 
of evidence in force in British India except .such as are contained in these 
Acts. So where certain administration -papers were tendered on behalf of the 
plaintiff, the Privj- Council observed and held : " The Indian Evidence Act 
has repealed all rales of evidence not contained in any Statute or Regulation, 



(1 ) Bmtto Cktmitr V. Skooro Dhmun, 9 W. R., 4 M. 1. A., 17», 187 (1848). 

402. 404, 405 (F. B.). (1868 ) : •«« SolMd v. {■») Bain v. WhUtkatm BaiUvy (. o.. 3 H. L. 

J»lm$o», 2 Exch., 2S6. 282, 283. I'm., 1, l», )>»■ Lord Broagham. 

(2) Cio Btftm V. Imam-ud^in, 2 A.. 90 (4) Colltctor o/ GoraikfUT v. Palakdkari 
(1878); uid Me Alanfamonjcri r, Sonamoni, Sinfk, 12 A., 36 (1889). A* to coostraction of 
8 C, WJ, 639, 643 (1882); Cnvfordv. Spcontr, ronaoUdfttind Acts, t»* Introduction. 



W, I.K 



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OON8TRUCTJON. 



H— iHnga. 



<■tw^ 

■NtatJoo- 



UtaMM- 

«1«MI. 



and the plaiutifi muet therefore show that these papers are admissible under 
some provision of the Indian Evidence Act."(l) " Instead of assuming the 
English Law of Evidence, and then inqairing what changes the Evidence Act 
has made in it, the Act should be regarded as containing the scheme of the 
law, the principles, and the application of these principles to the cases of 
most frequent occurrence." (2) The Evidence Act is, as it was intended to be, a 
complete Code of the Law of Evidence for British India.(3) 

The Headings prefixed to sections or set of sections are regarded ai 
preambles to those section8.(4) The headings are not to be treated as if they 
were marginal notes, or were introduced into the Act merely for the purpose of 
classifying the enactments. They constitute an important part of the Act 
itself, and may be read not only as explaining the sections which immediately 
follow them, as a preamble to a Statute may be' looked to, to explain its 
enactments, but as affording a better way to the construction of the sections 
which foUow than might be afforded by a mere preamble.(5) 

Legislative definitions or interpretations, being necessarily of a very geuerel 
nature, not only do not control, but are controlled by, subsequent and ex- 
press provisions on the subject-matter of the same definition ; they are by no 
means to be strictly construed ; they must yield to enactments of a special 
and precise nature, and, like words in Schedules, they are received rather u 
general examples tiian as overruling provi8ions.(6) The effect of an interpre- 
tation-clause is to give the meaning assigned by it to the word interpreted in 
all places of the Act in which that word occurs ; wherever that word appears, 
it must, unless the contrary plainly appear, be understood in accordance with 
the meaning put upon it by the interpretation-clause. But it is by no means 
the effect of an interpretation-clause that the thing defined shall have annexed 
to it every incident which may seem to be attached to it by any other Act 
of the Legislature.(7) Where a definition "includes" certain persons or things, 
it does not, therefore, necessarily exclude other persons and things not so 
included ; for when a definition is intended to be exclusive, it would seem 
the form of words (as in the definition of " fact ") is " means and includes."(8) 
Where a particular expression has for a long time previously acquired a 
special technical signification, that special sense, in the absence of a defin- 
ing clause in the Act, may be attached to that expression. (9) 

The words of the section are not limited to the Illustrations given. 
Illustrations ought never to be allowed to control the plain meaning of the 
section itself, and certainly they ought not to do so, where the effect would be 
to curtail a right which the section in its ordinary sense would confer.(lO) 
Illustrations, although attached to, do not in legal strictness form part of the 



(1 ) See LeUtraj Kuar y. Makpal SingK, 7 
1. A., 70 (1879); 6 C, 784; 6 C. L. R., 593; »ko 
Goltector ol OoraUipur v. j>aiafattari Sitith, 
12 A.. II, 12, 19, 20^ 84, Sfi^ 43 (1889). This 
•eotion in effeoi prohiUta the employment of 
•ay kind o{ evidenoe not tpeoifioally Aothoriied 
by the Aot itMH. K. y. AbMlaM, 7 A., 399 (188«) 
(but Bee»lM>«6.,p. 401). jr««aMiM<i Attahdad 
T. MtAummai Imail, 10 A., 326 (1888) ; K. 
». i>i«<»ii&«r Jena, 2 B., 64 (1877). 

(2) A. ▼. Aakoototh Clmtirrbiitty, 4 C, 491 
(1878),prr Jackson, J. 

(8) R. V. Kartirk Ctmnitr, 14 C\ 721, 728, F. 
B.(1887). 

(4) HMwell on SUtutei, W. 

(6) KatUrn Covntitt, etc^ Oompaniet t. Mar- 
"Off, 9 H. L. C, 41. 



(«i) Vda Begamv. /nuun-iui-iiiM, 2 A., 74, 8( 
(1878): Dwkrrison Statute^ 2nd Ed. (1848), 
SM9 i It, y. Jnitittt of Cambridgedmt, 7 A. ft 
K., 480, 491. 

(7) Vma ChuTK v. Ajaianiua Bibee, IS C, 
430,482, 433 (188S); tee abo B. v. AtkooloA 
CTtuekerbiiUf, 4 C. 492 (1878). 

(8) B. V. Askoolotk rkuekvbuUg, 4 C., 493 
(1878). 

(9) BMctrntbogt V. LuUoobttof M<i4iek»ni, d 
M. I. A., 234 (1852) ; r^Muangji Jtumntmmtii 
T. Dmai KvOianraifi, 21 W. R., 178 (1874). 

(10) foyiasjk Ciunder y. Bonutmu Ohumg, T 
C, 182, 136 (1881); a o., 8 C I.. B.. 283 
" Stempla ittiutrant ntm retkinfwU leftwt," 
Co. litt., 24 (a). 



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OONBTBDCnON. .') 

ActB, and are not absolutely binding on the Couxta. They merely go to show 
tile intention of the frsmers of the Acts, and in tiiat and other respects they 
may be useful, provided they are. correct. (1) The practice of looking more -at 
the niustrationg than at the words of the section of the Act is a mistake. 
The Illustrations are only intended to assist in constrqing the language of 
the Act.(2) 

It has been held in England that marginal notes are no pan of sections so Margtnai 
as to throw light upon questions of construction, and that th«y are merely ab- ''°*'"* 
stracts of the clauses intended to catch the eye and to make the task of re- 
ference easier and more expeditious.(3) As regards Indian Acts, there appears 
to have been some difference of opinion- In the undermentioned case(4) the 
Oonrt was disposed to think that such notes might be used for the purpose of 
interpreting Indian Acts, the State Publication of such Acts being framed 
with marginal notes. In a subsequent case(6) Petheram, C.J., referred to the 
marpnal notes to s. 5, Act XXI of 1870, and s. 149, Act V of 1881, and said 
that although the marginal notes were not any part of the Act, they did indicate 
the object of the sections ; and in a still more recent decision, (6) it was said 
•mth reference to s. 147 of the Criminal Procedure Code : — " The only reference 
to easements is in the ma^inal note which is no part of the enactment ; but 
«ven the marginal note does not restrict the application of the section in the 
manner suggested." In both of these cases the Court, while holding that mar- 
ginal notes formed no part of an enactment, appear to have referred to the 
same on the question of construction. In, however, the latest reported de- 
cisions the Court held that marginal notes did not form part of the section and 
«ouId not be referred to for the purpose of construing it. (7) 

General observations on this matter are contained in the ItUrodiiction to Oeneral 
which the reader is referred. The modem general rule is that Statutes must ti^^uSii 
be construed according to their plain meaning, neither adding to, nor subtracting ^ot. 
from, tiiem.(8) The Court will put a reasonable construction upon an Act, and 
will not allow the strict language of a section to prevent their giving it such a 
construction. (9) In considering the rules of evidence it is necessary to look 
-to tlie reason of the matter. (10) A construction efieoting a most important 
departure from the English rule of evidence was considered in the nnder-men- 

(1) Sanak Sam t. Mdtin Lai,! A., 487, 496, t( C. W. N^ OW (1904) ; x.o. 2tf A^ 393. 
-496(1877); ste abo Dnbey Sakai v. Oanuki (8)v. HazweD. S ; OtretMlah Sirkar v. Mokuu 

Lai, 1 A., 34, 36 (1875). UM, 7 C. 127 (1881): when tfa« temw of an 

(2) aiiaikh Omtd t. Sidhtt Bam, 22 W. B., Aot u« «l<»r and {dkin, it ia th« duty of the Ckiurt 
367 (1874) ; «ee »]so R. t. Ai*«ma<, 1 B., 147, to give eSeot to it « It standa : PhUpoU v. Bu 
ISS (1876): Boorjo Sarain t. Bitnmhkwr Bingh, George' s Hospital, 6 H. U Ciw., 838 ; Bvzloor 
23 W. R., 311 (1876); Ouj}% laU v. rvUdt Btiktem v. ahumtoonnitta Betum, S W. tL, V. C, 
UU, 6 C, 171. 186. 187 (1880) [iUostration 3, 12 (1867); •.c, 11 U. L A., 561, 604; B. 
nferred to, to show meaning of word in ■. 13, r. Bal Krithna, 17 B^ 677, 578 (1893), bat 
potd ; B. X. Chidda Khan, 3 A., 673, 575 many oaMB may be quoted, in wfaioh, in order 
<1881) (ii.) to avoid injuatioe or absurdity, words of general 

(3) WUberioroe, 293, 214; Maxwell, 52; Hard. import hare been restricted to particular mean- 
castle, 3rd Ed., 205 ; Claydon r. Crsen, 3 C P., ings ; ib., 578 ; Bamatoonitrte v. Vtrntr, IS 

Jill : anUon T. Button, tS C!h. D., 511 (1882); B. L. B., 193 (1874) ; WtUt t. L. T. * B. ily. 

oorracting dictam in In re Venovr't BetlUd Co,, 6 Cb. D., 126, 130 ; Eastern Oountit*, tic., 

KMates, 2 Ch. O., 622, 626. Oomftniu \. Maniagt, 9 H. L. C, 32, 36. 

(4) KmmeAat Proud v. Bkikan Nantitt, 20 C, (») Chiieaidlak Bvrkar v. Mohun LaB, snpra, 
109 (1893), per Pigot, J., at p. 628. 130; as t« " latent propositions of law ;" see 

{H) Admituttrator-Otiural, Bengal v. Prem Latl, Leman r. Damodaraya, I M., 158 (1876), 
21 O.^ 768 (I8»4). (10) Gujjtt LaU t. Fatteh LaU, 6 0, 171, 182 

(6) DuHi MuUah r. Halway, 23 0., 66, 69 (1880). ' AU rales must be oonalnwd with 
..(1896). reference to their objert : " per Erle^ },, in 

(7) Punarieo Sarain t. Bam Samp, 26 C. Pktlpi t. Pretc, 3 E. * B., 441. S« also (lourh, 
.868(1896.); Tkatttrain Bulraj t. Bai J^gatpal, C. J., in Behartt LaU v. hamiife Svnndaref. 



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■4 COXSTRUCTION. 

toined ca8e.(l) Whatever be the meaning of a word in one portion of a sectioD. 
the meaning" of the same word in another portion must, according to the 
principles of construction, be the same. (2) The meaning of a word may be 
ascertained by reference to the words with which it is associated, and its use 
in a particular sense in subsequent parts of the Act ;(3) and to its allocation in 
a section with other conditions of a certain character. (4) A construction making 
surplusage should be avoided. (5) " In order to a conclusion on a question of 
construction, it is relevant that the Indian Evidence Act was passed by the 
Legislature under the direction of a skilled la^v\-er : that- the construction of 
the Act is marked by careful and methodical arrangement ; and that many of 
the more important expressions used in it are plainly interpreted. It would 
be wholly inconsistent with the plan of such an enactment that a specific role 
contained in one part of it should at the same time be contained in, or deducibie 
from, one or more other rules relating apparently to topics quite distinct, which 
rules should be at the same time so expressed as to include not merely the specific 
rule in question, but also matters which that rule taken by itself would speci- 
fically exclude. "(6) A construction may be adopted by reference to the entirety 
of a section and also to other sections.(7) The word " may " in a Statute is 
sometimes, for the purpose of giving effect to the intention of the Legislature,, 
interpreted as equivalent to " must " or "shall," but in the absence of proof 
of such intention, it is construed in its natural, and therefore in a permissive, 
and not in an obligatory sense.(8) It is not for a Civil Court to speculate upon 
what was in the mind of the Legislature in passing a law : but the Court most 
be bound by the words of the law judicially construed.O) The intention of the- 
Legislature must be ascertained £rom the words of a Statute, and not from any 
general inferences to be drawn from the nature of the objects dealt with by 
we Statute.(lO) The Court knows nothing of the intention of an Act, except 
from the words in which it is expressed applied to the facts existing at the 
time.(Il) In case of doubt or difficulty over the interpretation of any of the- 
sections of the Evidence Act, reference for help should be made both to the 
case-law of the land which existed before the passing of the Act, and also to 
juristic principles, which only represent the common consensus of juristic 



14 W. B., 319, 320 (1870). in deaUng with re Psari Latt, supra S06— SOS; dlangaiHOH)ori 
the 8abject-n:atter of t. 92, pott, said, " in Dahte v. Sonamoni Dabte, 8 0.. 637, OtO, M3 
applying the rule we moat ahraya consider what (1882) : [no clause, sentence or word shall be super- 
is the reason of it," fluons, void, or insignificant; Mohtr Shtikh t. 

(1) Banekoidat Krithnada* v. Bapu Narhar, S^ 21 C, 399, 400 (1893). 

10 B., *39, 442 (1896); Qnjiu laU r. Fattdi UU, {«) avjpt Lall r. Fatteh Loll, supra, 183. 184. 

supra, 189 (intention to depart entirely from (1) In te A»gur Houtin, 8 C. L. R., 135 (1880). 

English role ) ; Pnbhakarbluit v. Vithatnbkar (8) Delhi and London Bank v. Orchard, 3 C, 

Pandil, 8 B., 313, 321 (1884); B. v. Oofni 47 (1877); see also i?. v. 4{oo Poroo, 3 M. I. A., 

Dot, 3 M., 271, 279, 283 (1881); [aoostructkm 488, 492, 493 (1847); Anund Chtmder v. Punekoo 

{roni consideration of alteration called fw in Ult, 14 W. R., F. B., 33, 36 (1870); s.c. 5 B. 

English Law of Evidence, »., 279 ]. See remark; L. R., 891, 699 ; Julivf v. Bithop of Oxford, L. 

of Lord Herschell as to the interpretation of codes R., S App. Can., 214; Bam Datial \. Madan 

in Btmk of tngtaiidv. VajUano Brolhett, L. R., Mohan, 21 A., 432 (1899). 

Appw Cas. (1891), 107 at pp. 144, I4S; cited ante, (9) Mtheeh Chundtr v. Mahdhnb (h'under, 13 

in Introdnotion. W. R., 85 (1870); Cravfordy. Stooner, supra, 

(2) CoUtctor of Gorakhpur v. Palakdhari Singh, 187 ; Butlur Baheem v. ^'At(iiwocmNf«M Btgum,. 
supra, 14 ; so with reference to m. 26 and 80 of supra, 12 ; Easltm Counliet, tic, Companiet v. 
this Act the Court in J?, v. Ifafh Kola, 22 B., Marriage, supra, 40 [judicature trespaming on 
886, 238 (1896), obaerred that it would be un- province of Legislature], 

reasonable to hold that the Legislature used (10) .VowjJ: Bam v. Mehin Lall, 1 A., 496, 

the same word in different senses in the same Act. supra : Fordyce v. Bridges, 1 H. L. Ca«., I, 4. 

(3) <htn» LaU T. Fatteh LaO, supra, 168k 187. (11) /*., Lofan v. CourUnm, 13 Bear., 22 ; and 

(4) InrePjioHIoU, 4 C.L. B., 804,806 (1879). see Crawford v. Spoontr, supra, 187,188, ptr 

(5) Ovjju LaU V. FatMt LaU, supra, 183; In Lord Broogham: aa to cases dealing with the in- 

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CONSTBfCTION. O 

reasoiiing.d) When the rules of exclusiou and the exception to them arc 
definitely laid down, the exception is not to be extended to cases not properly 
falling within it.(2) Where a clause in an Act which has received a judicial 
interpretation is re-enacted in the same terms, the Legislature is to be deemed 
to have adopted that interpretation.(3) It is an elementary rule of construc- 
tion that a thing, which is within the letter of a Statute, is not within the 
Statute, unless it be also within the meaning of the Legislature. (4) A saving 
clause cannot properly be looked at for the purpose of extending an enact- 
ment, nor can it give a new or different effect to the previous sections of the 
enactment.(5) Upon a question of construction arising upon a subsequent 
Statute on the same branch of the law, it is perfectly legitimate to use the 
former Act though repealed.([6) In the under-mentioned ca8e(7) Lord 
Esher, M.R., said, " To my mind, however, it is perfectly clear that in an 
Act of Parliament there are no such things as brackets any more than there 
are such things as stops." 

tention uud«r this Act : tt e. g., Gujju Lalt v. sections <>( this Act with those of Act II of 

htt<k Loll, snpra, 181 ; In re Pl/ari Loll, supra, 1856 :— 18, 32, 37, 57, 81, 83, 84, 118, 120, 133, 

m-.Fnmjiy.Moluintint, 18 B., 263, 278, 279 124,126,129,131, 162, 1«7, HOd 25, 26, 27, 

(1893) lidenMjr of language used in section with with sa. 148 — 150, Act XXV of 1861. 

th«t employed in Taylor on Ev.], K. v. Qopal (4) «. v. Hal Kritlma, 17 B., 677 (1893). 

ftoM, supra. (3) B. y. Silaram Vitkal, 11 B., <i58 (1887). 

[\)CollKtor olGorahKpnrv. Palakdharitiingh, {6) ColUftor of Sea Cuttotiu v. P. CMIum- 

snpra, 37, 88. baram, 1 M., 114 (1876). 

(2) S. T. Jora Batn, 11 Bom. H. C. R., 242 (7) Duke o/ Devonekire ». O'Connor, L. R., 24 
(1874). Q. B. It., 478. 

(3) Be Camfbell, 6 Cb. App., 703; o/. following 



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PART I. 

RELEVANCY OF FACTS. 



CHAPTER I. 

Pbkuminabt. 

shoptTttie. 1- This Act may be called "The Indian Evidence Act, 

1872." It extends to the whole of British India, and applies 
to all judicial proceedings in or before any Court,(l) including 
Court Martial, but not to affidavits presented to any Court 
or Officer, nor to proceedings before an Arbitrator : 

oommMM- aiid it shall come into force on the first day of Sep- 

"•■**>' ^«'- tember. 1872. 



Bxt«ot of 
Act. 



OOMMBNTART. 

The Act extends to the whole of " British India,'' which means the terri- 
tories vested in Her Majesty by the first section of 21 Sc 22 Vic. Cap. 106, with 
the exception of the Straits Settlements, which, under the provisions of 29 k 
30 Vic, Cap. 115, ceased to form portion of British India.(2) The Act, there- 
fore, applies to the Scheduled Di8trict8,(3) and has been declared to be in force 
by notification under the Scheduled Districts Act in the districts of Hasari- 
bagh, Lohardaga, Manbhoom and Pargana Dhalbhoom and the Kolhan in the 
district of Singhhoom,(4) and the North-Western Provinces Tarai.(5) The 
Act has also been declared to be in force in Upper Burma generally except the 
Shan States,(6) in the Hill District of Arakan ; (7) in British Baluchistan ; (8> 
in the Baluchist-an Agencv Territories ;(9) and in the Santal Parganas :(10) and 
lias been applied to certain Native States in India or places therein- The Act 
has been made applicable by Her Majesty in C-ouncil in certain places 
beyond the limits of India for the purposes of cases in which Her Majesty has 
jurisdiction : and has been adopted by certain Native States of India as their law. 



(1) Defined in s. 3. pott, Ae to the meaning ol 
" judioifti enquiry " and " Jadivial procee<iinft " 
te^B.v.Tvlia, 12 B., 86,41, 42(1887) : JMJkoyyu 
r. (Jangayyar, 19 M.. 188, 143 (1891); Cr. Pr. 
Code, !i. 4 (m), Hayne'i Criminal l«w of India, 
1896, pp. 618—820 : «. T. Price, L. R., 6 Q. B., 
418 ! R. V. ahnlam ItmaU, I A., I. 13 • I87S). 

(2) See Act X of iMT. 

(1) ». AoU XIV and XV o( 1874. 
(4\ OattUe of India. 0«t. 22. 1881. Pt. I. |>. 
Mt4. 



(6) lb., Sept. 28, 1876, Pt. I., p. 506. 

(6) .\ot Xm of 1898. I. 4 [ BormaCode, Rd. 
1898, p. 364 ] . 

(7) Beg. IX of 1874, ». 3 £ ib., p. 364 ]. 

18) Reft. I of 1890. •. 3, BalnohiMan Cod^ Kd. 
1890, p. 09. 

(9) Balttchiataii Agencj Law Law, 1890. 
». 4[ »., p. 187]. 

(10) Reg. Ill nl 1872, M amnnded by Ke^. Ill 
of 1899. ■. 3. 



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[a. 1.1 ARBITRATION. 7 

In the Appendix will bo found a complete list revised by the Legislative 
Department of the Native States in India or places therein to which the 
Indian Evidence Act (I of 1872) has been applied by the Govemor-GJeneral in 
Cooncil. 

The Act only applies to Native Court6-Martial.(l) In the case of European ooarta- 
Courts-Martial, a Court- Martial is not, as respects the conduct of its proceed- S^ gbrine. 
ings or the reception or rejection of evidence, or as respects any other matter 
or thing whatsoever subject to the provisions of the Indian Evidence Act. 
The rules of evidence to be adopted in proceedings before such Courts-Martial 
shall be the same as those whieb are followed in Ci\'il Courts in England. (2) This 
is therefore an exception to the general rule that the lex fori determines the 
law of evidence (vide post). The Act is (subject to such modification as the 
Govemor-Greneral in Council may direct) applicable to all proceedings before 
Indian Marine Courts.(3) 

The Civil Procedure Court regulat«s the matters to which affidavits must AaiUvita. 
be confined. These are such facts as the declarant is able of his own know- 
ledge to prove, except on interlocutory applications on which a statement of 
his belief may be admitted, provided that reasonable grounds thereof be set 
forth.(4) The exception here mentioned does not apply to any proceeding which^ 
though interlocutory in form, finally decides the rights of the parties.(6) In 
interlocutory applications the Court acta on evidence given on information and 
belief because no other evidence is obtainable at so short a notice.(6) So, too, 
in interlocutory proceedings cross-examination will not be allowed on affidavit 
because it woald defeat the object of the whole proceedings which is despatch.(7) 
The costs of every affidavit unnecessarily setting forth matters of hearsay or 
argumentative matter or copies of extracts from documents, are (unless the 
Court otherwise directs) payable by the party producing the 8ame.(8) The safe- 
guards for truth in affidavits are the provisions for the production of the witness 
lor cro88-examination,(9) and the provisions of the Penal Law relating to the 
giving of false evidence.(lO) 

Proceedings before arbitrators are regulated by the Civil Procedure Code.(l 1) Arblt r a tt — . 
Ks an arbitrator is not in procedure bound by technical rules of Court and is 
appointed to give an ec|uitable award,(12) so also he is unfettered by technical 
rales of evidence, and it is not a valid objection to an award that the arbitra- 
tor has not acted in strict conformity to the rules of evidence.(13) The word 
"Court " in this Act does not include an arbitrator.(14) Though the Act does 
not apply to proceedings before an arbitrator, yet the latter must not receive 
and act upon evidence or decide upon grounds which render his award utterly 
unfair or worthless. He must not import his own knowledge into a case or 
base his decision upon information obtained otherwise than from the evidence 
submitted to him by the parties to the canse. Where on the face of an 



(1) Under Act V of Ifm. >* p. 364, per Jrgnl, M.S.: <» »l«a Chard t. 

(S) 44 and 40 Vio., cap. 69, w. 127 ft 128 ; v. Jergit, 9 Q. B. D.. 178, ISO. 

•bo m. 1<3— 186 (Army Duciplinp and Kegnla- (7) See O'Kinesly's CiT. Pr. Codp, •. 194. 

tioo Art, 1881). (8) Civ. Pr. Code, ». 19«. 

(3) Act XrV of 1887, «. Of. (9) 76., u. 194, 196. 

(4) Ci». Pr. Code, m. 194—197, ». «47 ; «< (10) Penal Code, Oh. XI. 
WMtley Stoker 838 ; Cr. Pr. Code, ». 839. (U) Civ. Pr. Code, Cb. XXXVll. 

lo the natter of tlie petition of [near CKmdra, (l2) Beeioy Kritio v. Pvddo Loehun, 1 Vi. R., 

14 C, 453; On eridence by affidavit, v. PowpII 12(1864). But as to ttamp. ft now Act 11 of 

ET..6«»;Beet,ET.,H lOl. 118. 121 ttteq. .Tay. 1899. a. 33, 34. 

lor, Et, { 1394, tt ttq. (18) Suppu t. Qovinia Charyar, II M.. 87 

(.5) aUbert T. Andean, L. R.. 9Ch. Div., 239; (1887). 

Taylor, St., } 1396 B. (14) 8. 3. po»C. 

( «) «itt«rt T. Kndean, L. B.. » C*. Div.. 289 



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6 ABBITRATION. [s. 2.] 

award it appeared that the arbitrator principally relied on an admissioud) 
which he alleged was made to him by the defendant when a former suit be- 
tween the plaintiff's mortgagee and the defendant was depending, and the arbi- 
trator further stated that he relied on enquiries made by him before the refer 
ence to arbitration, and that he made further enquiries since the reference, 
not stating of whom these different enquiries were made, and not seeming to 
have taken evidence and examined witnesses in the ordinary way, it wag 
hdd that he acted improperly in importing the previous enquiry alleged to 
have been made by him, and was quite wrong in relying on what he called 
admissions, made to him by the defendant in the former proceedings, and that 
an award based upon such a foundation was utterly unfair and usele88.(2) An 
arbitrator must not receive afiSdavits instead of viva voce evidence when lie 
is directed to examine the witnesses on oath. He must not make his award 
without having heard all the evidence, or having allowed the party reasonable 
opportunity of proving his whole case. He roust not, contrary to the prin- 
ciples of natural justice, examine a witness or a party privately, or in the 
absence of his opponent, unless the irregularity be waived by the parties. If 
the arbitrator proceed, ex- parte, without sufficient cause, or without giving 
the party absenting himself clear notice of his intention so to proceed, the 
awan] will be avoided- So likewise if he refuse to hear the evidence on a 
claim within the scope of a reference on a mistaken supposition that it is not 
within it ; but not if he erroneously reject admissible, or receive inadmissible, 
evidence. His refusing to hear additional evidence tendered when the ^oh 
case is referred back to him by a Court is fatal, bat not so when the award is 
sent back with a view to a particular amendment only being made.(3) The rule 
of law which excludes commimications made " without prejudice " is as bind- 
ing upon arbitrators as upon Courts of Justice, notwithstanding the first section 
of the Evidence Act, and an arbitrator is wrong in receiving and acting upon 
such a communication. (4) As much as possible the arbitrator should decline to 
receive private communications from either litigant respecting the sabject- 
matter of the reference. Except in the few cases where exceptions are unavoid- 
able, as where the arbitrator is justified in proceeding ex- parte, both sides must 
be heard and each in the presence of the other.(5) Refusal by an arbitrator to 
call witnesses produced by either party amounts to judicial miscondnct.(5) 
Lastly, arbitrators ought only to take such evidence as is required by the terms 
of the agreement referring the question in dispute to arbitration.(7) 

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

repealed : — 

J, All rules of evidence not contained in any Statute, 
Act or Regulation in force in any part of British 
India ; 
2. AJl such rules, laws and regulations as have ac- 
quired the force of law under the 25th. Section 
of the "Indian Councils Act, 1861," (1) in so far 

(1 ) At U> the uae of evideuce in a subxequent (1894) [ arbitrator ought not to reoeive erideocr 
•uit o{ admiMioDt by parties in a former arhitra. from one side in the absence of tlie other J, 
tiou, see Huronath Sircar v. Premath Sircar, (4) Uowari v. WiltOH, 4 0., p. 331 (1878), 

7 W. R., 249 (1887), and noUa to se. 17, 18, 33, Set s. 23, potl. 
pot(. (o) Russell, op. cit., pp. 18] and 182; cited and 

(2) Kankye Chand v. Sam ChantUr, 24 W. R., adopted in Ounja Baluu v. LeUtraj Singli, » A., 
81 (1876). 266(1888). 

(3) RussHl on Tki Poaer and Duty of an Arbi- (6) Kufhoobur Doyal v. Maina Koer , 12 C 
(rotor, 4th Ed., p. 64«, cited and adopted in I>. R., 664 (1883). 

Ounjo Sahai v. Ukkraj Singh, 9 A., 264, 266 (7) Krima Kama v. Biiya Sundartt, 2 B. U 

(1886); Cwtetji Khambatta v. Crowder, 18 B., 299 R., App., 25 (1869). 

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neat*. 



[8.3.] 



FACT, 



in schedule hereto, 
the third column of 



as they relate to any matter herein provided 
for ; and 
3. The enactments mentioned 
to the extent specified in 
the schedule. 
But nothing herein contained shall be deemed to affect 
any provision of any Statute, Act or Regulation in force in 
any part of British India and not hereby expressly repealed. 

Se<' Introduction and mte» on Preamble. Repeal. 

8. In this Act the following words and expressions are J}^!^J^. 
used in the following senses, unless a contrary intention 
appears from the context : — 

"Court" includes all Judges(2) and Magist^ates,(3)••oo«^t.•• 
and all persons, except arbitrators, legally authorized to take 
evidence. 

•• 1 {Proctedinqs h«l«Te Arbitmtort.) t. 8 (" £tirf«»ce.) ' 



OOMMBNTART. 

See notes to Preamble. 
The defiuitiou of " Court " is framed only for tlie purposes of the Act it«elf " oourt' 
and should not be exteuded beyond its legitimate scope. Special laws must be 
confined in tbeii opmtiou to their special object.(4) The definition is not 
meant to be exhau8tiTe.(5) The word means not only the Judge in a trial by 
a Judge with a jury but includes both Judge and jury .(6) A Commissioner 
is a person legally authorized to take evidence, and therefore the provisions of 
the Act will apply to Commissions to take evidence under the Civil or 
Oriminal Procedure Code8.(7) 

"Fact" means and includes : — -Faot." 

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. 

lUtulrationt. 

(a) Tbst there are certain objects arranged in a certain order iii a certain place, 
it a fact. 

(b) That a man beard or saw something, is a fact. 

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

[ii That a man holds a certain opinion, has a certain intention, acts in good faith, or 
fraodidentiy, or uses a particular word in a particular sense, or is or was at a specified 
time oonacious of a partionlar sensation, is a fact. 

(() That a man has a certain reputation is a fact. 
«.3{XtleraHtfaei.) s. 8 (Fact in Ume.) 



(I) 24 A 2fi ;>„ cap. s7. Clanae (2) repeals 
rale* iclating to evidence enacted in ' ' Non.Re. 
filiated Prorinces " prior to this Statute and 
wliieh acqnired the fore* of Law ooder the 26th 
TCrtien thereof. 

(J) CIt. Pr. Code, ». 2 ; Penal Code, s. 19 • 
tiMMisI ClMun Act. 

(») Cf. Oniersl aaosr* Art ; Cr. Pr. Code, ». 3- 

(4) *. T. Tmtja, 12 B, 43 (1887); Attoriuy- 
Otntral ». Moort, I.. K., 3 Ex. Biv, 276 ; B. t. 



Sam tall, 15 A., 141 (1893); but see Alckayya 
V. Gangayya, 19 .M., 138, 144, 147. 148 (1891) ; 
and In re Sardkari Lall, 13 B. L. R., App., 40 
(18-4); ,. c, 22 W. R., Cr., 10. 

(5) S. T. Athooloth Chwtfrbullg, 4 C, 488, 
493 (1878). 

(6)/6., 490. 

(7) CiT. Pr. Code, m. 38:}— .?».?; Cr. Pr. Codr, 
as. fi03 — 808 : »«< »l»o Alekayya v. ilaH^ayya^ 
supra at p. 147. 



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10 



FACT IN I88UB. 



[8. 3.] 



Pact. 



"R*l«vant.' 



'Paota in 
lasae" 



OOmCBNTART. 

The first clause refers to external facts the subject of peiceplaon by the 
five " best- marked " senses, and the second to internal facts the subject of con- 
sciousness ;(1) (a), (6) and (c) are illustrations of the first clause ; {d) and (e) of the 
second- Facts are thus (adopting the classification of Bentham)(2) either phy- 
sical, e.g., the existence of visible objects, or psychological, e.g., the intention 
or animus of a particular individual in doing a particular act- The latter 
class of facts are incapable of direct proof by the testimony of witnesses ; 
their existence can only be ascertained either by the confession of the party 
whose mind is their seat or by presumptive inference from physical fact8.(3) 
This constitutes their only difference. ' ' When it is affirmed that a man has 
a given intention, the matter affirmed is one which he and only he can per- 
ceive ; 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 
person 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 all that we mean, 
when we say that it 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. "(4) F&cts ta&y aho he eithet events or states of things. By an 
" event*' is meant " some motion or change considered as having come about 
either in the course of nature or through the agency of human will;" in which 
latter case it is called an " act " or " action." The fall of a tree is an " event;" 
the existence of the tree is a " state of things :" both are alike facts.(5) The 
remaining division of facts is into positive or afjirmative and negative- The exis- 
tence of a certain state of things is a positive or affirmative fact, — the non-exis- 
tence of it is a negative fact. ' ' This distinction, unlike both the former, does 
not belong to the nature of facts themselves, but to that of the discourse which 
we employ in speaking of them."(6) " Matter of fact" has been defined to be 
anything which is the subject of testimony ; "matter of law" is the general 
law of the land of which Courts will taike judicial cognisance. (7) The fact 
sought to be proved or factum proibandum is termed the "principal fact ;" tiie 
means of proof or the facts which tend to establish it "evidentiary facts. "(8) 

One fact is said to be relevant to another when the one 
is connected with the other in any of the ways referred to in 
the provisions of this Act relating to the relevancy of facts. (9) 

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 ex- 
tent 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 



(I) Stj-ph. Introd., 19— 21 : Norton, Ev.. »»; 
Steph. Dig., Art. I. Fact is anything that ik th^ 
«i(hjt-ct of testimont-y ; Ram on factn, 3. 

(2t I Hentb. .Tud! Ev.. 46. 

(3) BMt, Ev., «, 7. 

(4) 8t»ph. Introd., 20, 21. 

(3) Beat, Ev., 7 : I Benth. Jud. Kv., 47, +>i. 

(6) 1 Bentb.. Jud. Ev.. 49 : B»«t, Ev., 7. 

(7) Ba*, Br, 19. 



t») I Benth. Jud. Ev.. 18 : ef. Steph- Dig.. 
.4rt. 1 : dtoph. Introd., 19—21 : Baat, Ev., S. 7, 
19; Norton. Ev., 93; Qoodrvn, Ev., 4— IS. 

(9) •?« m. .1—55, poH ; Steph. Dig., p. 2 ; "R». 
levant :" cognate exprraaiona occur in aa. 8^ 13^ 
32, ol. (8), 1S6, 147. 148, 163; the expnaioD ' ir- 
relevant' ' oocure in aa. 24, 29, 4.\, 52, 54, 166 ; 
Whitley Stokea. 851. 



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[S. 3-] UOCUHBNT. 1 1 

Court records an issue of fact, the fact to be asserted or denied 
in the answer to such issue is a fact in is8Ue.(l) 

lUuttratioM, 
Aitaeeuaed of the murder of £. Athtstrutltha following faots may bein issue : — 
That A caused B'a death ; 
That A intended to oause B'd death ; 

That A had reoeired grare and sadden provocation from B ; 

That A, at the time of doing the act which caused B'a death, was by reason 
of unsonndness of mind, incapable of knowing its nature. 

s. 3 {"Fact. ") 

OOMBIBNTART. 
' Relevant ' iu this Act means, it has been said, admi88ible.(2) Facts may ^latioa of 
be related to rights and liabilities in one of two ways. — (o) ' ' They may by them- rti^%«**»ad 
selves or in connection with other facts, constitute snch a state of things that uSoUittea 
the existence of the disputed right or liability would be s legal inference from 
them. From the fact that A is the eldest son of B, there arises of necessity the 
inference that ^ is by the law of England the heir-at-law of B, and that he has 
mch tights as that status involves. From the fact that A caused the death of B 
ander certain circumstances, and with a certain intention or knowledge, there 
vises of necessity the inference that A murdered B, and is liable to the punish- 
ment provided by law for murder. Facts thus related to a proceeding maybe 
called facts in issue, imless their existence is undisputed. — (h) Facts which are 
not themselves in issue in the sense above explained, may aSect the probability 
of the existence 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. 
.in the facts with which it can in any event be necessary for Courts of Justice 
to concern themselves, are included in these two classes. What facts are in 
iasne 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." (3) A judgment must be based upon facts 
declared by this Act to be relevant and duly proved.(4) 

"Document " means any matter expressed or described "Document.- 
upon any substance by means of letters, figures or marks, or 
by more than one of those means, intended to be used, 
or which may be used, for the purpose of recording that 
matter.(5) 

a. 3 ( DocuMtnt produced for im-ptction of Courl.) 

ttlvttrations. 
A writing is a document ; 

Words printed, lithographed, or photographed are dooiiDientA ; 
A map or plan i» a document ; 

An inscription on a metal plate or stone is a document : 
.\ caricature is a document. 

II) CiT. Pr. Code, Chap. XI, «. KS— l«l : pcliviii il»99), per Lord Hobhoune. 
Tke expnanoo "facU (or fact,') in issue," (3) Steph. Introd., 12, 13: «/. Uooderev Er., 

««iirs is a*. S. tf. 7, 8, », U , 17, i\, ill. (d), 33, 36 316, rt mj. , Brat, Ev., 20 ; Steph. Dig.. 2. 
*» ; ■• qnettioiia in iaaue. ' a. 38 " matter in (4) S. 166, poM. 

ivmt," t. 132; Whitley Stokea, 882. (^) P/- P"<»' t'o^e. '• 29- 

■*>r«4i Utkmi y. flat^Baiitr, JC. W. .V.. 



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12 



BVIDEXOK. 



[8. 3.] 



' BTldeno*.' 



"Evidence " means and includes: — 

1. All statements which the Court permits or requires 

to be made before it by witnesses, in relation to 
matters of fact under enquiry ; such statements 
are called oral evidence: 

2. All documents produced for the inspection of the 

Court; such documents are called documentary 
evidence.(l) 

IV (Oral evidence.) S8. 62, 64, 166 (Primary Evidtnec.) 

V (DoeumeiUarg Evidence.) as. 6S, 66, 66 (Seeondarp Evidenu.) 



C!h 
Cb. 
8. 60 (Direel Evidence.) 



OOMMBNTART. 



'BTidenc*." The word "evidence" as generally employed is ttiubiguous. (a) It some- 
times means the words uttered and things exhibited by witnesses before a Court 
of Justice ; (h) at other times it means the facts proved to exist by those wordi 
or things, and regarded as the groundwork of inferences as to other facts not so 
proved; (c) again it is sometimes used as meaning to assert that a particular fact 
is relevant to the matter under enquiry .(2) The word in this Act is used in the 
sense of the first clause. As thus used it signifies only the instrumenU by meaus of 
which relevant facts are brought before the Court {viz., witnesses and docu- 
ments), and by means of which the Court is convinced of these facts.(3) 

Instruments of evidence or the media through which the evidence of facts, 
either disputed or required to be proved, is conveyed to the mind of a judicial 
tribunal have been divided into — (a) witnesses ; {b) documents ; (c) real evidence : 
including evidence furnished by things as distinguished from persons, as veil as 
evidence furnished by persons considered as things, i.e., in respect of such pro- 
perties as belong to them in oomnion with thing8.(4) 

This real evidence may be (o) reported, or (b) immediate.(5) CI. (a) proper- 
ly falls under the first class of instruments (witnesses). CI. (b) describes that 
limited portion of real evidence of which the tribunal is the original percipient 
witness ; e.g., where an offence or contempt is committed in presence of a tribunal, 
it has direct real evidence of the fact.(6) The demeanour of witne88e8,(7) the de- 
meanour, conduct and statements of parties,(8) local investigation by the Judge, (9) 



(1) Steph. introd., 3; «*., Dig., Art. I. The 
expreiwion • ' Docomentary Evideuee ' ' occun 
onlv ■■> the hesdingR to Cbapt«n V »nd VI ; 
Whitley Stokm, 852 ; as to oral e\-ideuce v. po»t, 
«s. .W, «0, 01 Expl. (3), 119, 44 Expl. The 
meaning of ihe terni is not confined to proof 
before a judicial tribunal ; Srinimsa v. R., 4 M., 
305 (1881). 

(2) Steph. Introd., 3, 4. 

(3) Norton, Ev., 96 ; Field, Ev., 26 ; as to in- 
struments of evidence, tee Best, Ev., § 123. 

(4) Best, Ev., pp. 109, 196; Goodeve, Ev., II. 
° ' Personal Evidence' ' is that vhich is reported 
b; witnesses ; another division of evidence is that 
into ' ° original ' ' or immediate, and " hearsay ' ' or 
mediate. The former is that which a witness 
reports himself to have seen or heard through 
the medium of his own senses; the latter that 
which is not arrived at by the personal knowledge 
of the witness ; «« Norton, Ev., 28, 29 ; Best, 
Ev., ^ 27-31 and text, pott. 



(5) Best, Ev. pp. 183, 184; Goodeve, Ev., II. 
1-2, 14. 10. 
(b) Best, Ev., p. 182. 

(7) V. Civ. Pr. Code, s. 188; Or. Pr. fode, 
s. 343. As to the importance of observation of 
demeanour, see. B. v. iladhnb Ckuiukr, 21 W". 
R., Cr., 13, 14 (1874); Starkic, Ev., 818;B«««. 
Ev., I 21; Field, Ev., 80 ; «. v. Btrlnnd, U B., 
1 P. C, 536. In all case* in which the evidroce 
IS cnnflictinK it is the duty of a Court of AniK*l 
to have great regard to the opinion forn.ed by 
the Judge in whose presence the witocise* gsv* 
their evidence as to the degree o( credit to be 
given to it; n'oome«Jk Chvnder v. Jf<M*iM*>"' 
hawi, 21 C, 279 (1893). 

(8) r. Whitley Stokes, 862. 

(9) Civ. I'r. Code. s. 392 ; Jon Coonar v. BkkJ- 
ho<Ml, 9 C, 363 (1882) ; Oomut Fatima v. ii>^> 
Gopal, 13 W. B., 61 (1870); floriKsiWw**™ 
v. .4bd«l Baki, 21 C, 920 (1894). 



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[S. 8.j EVIDENCE. 13. 

a view by jury or a88e88or8,(l) are all instances of real evidence. CI. (6) 
thus also includes material things other than documents produced for 
the inspection of the Court (called iu the Draft Bill "material e\-idence") 
e.g., the property stolen, models, weapons or other things to be produced 
in evidence and which are required to be transmitted to the Court of 
Sessions or High Court.(2) This " real evidence" does not form part of 
the definition of "evidence" given in the Act, inasmuch as the Court is in 
all cases the original percipient witness; and further in the case of "material 
evidence" in so far as it is spoken to by witne8ses,(3) it falls properly 
under the first class of instruments. The things so produced are relevant 
facts to be proved by '.'evidence," i.e., by oral testimony of those who 
know of them.(4) The Court may require the production of such material things 
for its inspection .(5) The definition has been objected to(6) for incompleteness, 
in so far as by its terms it does not include the whole material on which the 
decbion of the Judge may rest. Thus, in so far as a statement by a teitness only 
i» "evidence," the verbal statements of parties and accused iu Court by way 
of admission or confession or in answer to questions by the Judge,(7) a confession 
by an accused person affecting himself and his co-accused, (8) the real 
evidence abovementioned, and the presumptions to be drawn from the 
absence of producible witnesses or evidence, (9) are not " evidence" accord- 
ing to the definition given. The answer to] this objection, however, 
is that this clause is an interpretation-clause, and the Legislature only ex- 
plains by it what it intended to denote whenever the word " e^^de^ce " is 
uted in the Act.(iO) This definition must be considered together with the 
following definition of "proved."(ll) "It seems to follow therefore that 
if a relevant fact is proved and the law erpressly authorises its being 
taken into consideration, that is, considered for a certain purpose or against 
persons, in a certain situation, the fact in question is' ' evidence' ' for that 
purpose, or against such persons, although the result has not been expressed 
iu these words by the Legislature : and being evidence it must be used in the 
same way as everything else that is " evidence."(12) Thus au oral admission in 
Court and the result of a local enquiry instituted by a Munsifi is matter 
before the Court which may be taken into consideration,(13) and the confession 
of a prisoner sfiecting himself and another person charged with the same 
offence is, when duly proved, admissible as evidence .against both.(14) 
(See next section.) 



(I) Or. Pr. Code, ». 293. See Jt. v. Chu'- (i3) ^oy Cvomor v. BuHdIioolall, 9 C, 36«. 
laOaree Sinfi, 5 W. R., Cr., S9 (1866); Oudh nipra. 

e«taK,lC. I,. R.. 143(1877); Kailaih Chmidrr (J4) B. v. Athootosh Chuckerbnttg, 4 C, 483, 

». Sam LaU.t«C.. 869 (1899). »upra, referred «o iu X. v. Kriihm Bhal, 10 B. 

(J) Cr. Pr. Code. ». 218 ; see Whitley Stokes 326, (1886); S. v. Dada Am, IS B., 469 (1889); 

834: •». 60, pror. (2), 65 (rf). pool. c a. 30, poel ; see also generally »s to " evidence" 

(3| Steph. Introd., 15. following sections : — Ss. 5 (eyidence of facts in 

(4) r. Xortoa, Er., 95- . issue and relevant facts), 59, 60 (oral), 60 (must 

(3) r. s. 60, poit be direct), 61— 100 (documentary), 91— KK) (ex- 

(6) r. Thayer'* Preliuunarr Treatise on Evi- elusion of oral by documentary), 114 (;), (produ- 
intt (1898), 268 : Whitley Stokes, 852. eible but not produced), at. 101—166 (produc- 

(7) r. s. 166, fott. tion and effect of), 118—166 (witnesses), 167 (im. 

(8) r. s. 30, post. proper admission and rejection of evideuce) ; as 

(9) r. ». 114, iU. (j), pott. to the meaning of " evidence to go to the jury," 

(10) «. T. Athoototh C'hueixTbuttji, 4 C, 492 see Parratt v. Blitnt Com/oof, 2 Cox, C. C, 242 ; 
('• B.). Jemll V. Parr, 13 C. B., 909, 916 ; Sydtr v. 

(II) 7ay Coomar X. BundhoolaU, 9 V., 366: H'om6iiW/, 1.. R., 4 Ex., 32, 38 ; iS«einin* v. rotinj^ 
»«d see B. v. Aehooh^ Ckuehrbtniy, 4 ( .. 492, L. R., 6 C. P., 122, 128 ; J?, v. Vajinm, 16 B., 
'^f. 414 (1892) : as to verdict against evidt-nce, R. v. 

(121 Per Jackson, J., in R. v. A$hooto»k ( hvr- Dada Ana, supra: and v. potl. 
Iw».»«y, 4 C, 493. supra. 



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14 



BVIDKNCE. 



[»• 



Evidence has beeu further divided iiito direct evidence and circumstantial 
evidence.(l) Diiect(2) evidence is the testimony of a witness to the ezistencr 
oi non-existence of the fact or facts in issue ; hy ciicumstantial evidence is meant 
the testimony of a witness to other &icts (relevant facts) from which the fact in 
issae may be inferred.(3) As regards admiMibilUy, direct and circumstantial 
evidence stand, generally speaking, on the same footin^(4) and the testimony 
whether to the factum probandum or the facia probantta is equally as original 
and direct- As to the several values and cogency of direct and circumstantial 
evidence much has been both written and said, but both forms admit of every 
degree of probability. Abstractedly considered, however, the former is of 
superior cogency; in so far as it contains only one source of error, fallibi- 
lity of testimony, while the latter has, in addition, fallibility of inference.(6) 
But "when circumstances connect themselves closely with each other, when 
they form a large and strong body, so as to carry conviction to tbe 
minds of a jury, it may be proof of a more satisfactory sort than that 
which is direct. When the proof arises from the irresistible force of a 
number of circumstances, which we cannot conceive to be fraudulently 
brought together to bear upon one point, that is less fallible than, 
under some circumatances, direct evidence may be."(6) It has been said 
that "facts cannot he "(7) but men can. ^d as we only know fact* 
through the medium of witnesses, the truth of the fact depends upon the trotiu 
of the witn68S.(8) Primary evidence is that which its own production 
shows to admit of no higher or superior source of evidence. Seconduy 



(1) 8u WillUm Will'* Eawy on Circumstan- 
tial Eridenoe, 4th Ed. (1862); A. H. Barrill's 
Treatise on Ciicumstantial Evidence, 1868 ; Phil- 
lips' Famous Cases oi Circumstantial Evidenoe, 
itb Ed. (1879); also a treatise on Circumstantial 
Bridonoe by Arthur P. Will (1896). 

(S) This meaning oi the vord ° ' direct' ' must 
not be ocoionnded with that in which it is used 
in s. 60, foit, which does not exclude dronmstan. 
tial eridenoe. Neet Kanio t. J%ggobiti>4koo Okot, 
12 B. L. R., App., 18 (1874). In the Utter sense 
circumstantial evidenoe must always be **direct;" 
i.t., the fact from which the existrace oi the fact 
in i»ue is to be inferred must be proved by direct 
evidence. Bit 8teph. Introd., 8, 51; Best, Ev.. 
K 293—295 ; Wills' (Srcumstantial Ev., 16. The 
term ° ' presumptive' ' is frequently used as syno- 
nymous with "circumstantial" evidence. But 
they differ as genus and species. Wills' drc. 
Ev.. 18. 

(3) r. pott. Introduction to Ob. II, (.;.— 
".4 is indicted for the murder of B, the apparent 
cause of death being a wound given with a sword. 
If C saw .4 kill B with a sword, his evidence of 
the fact would be iirat. If, on the other hand, 
a short time before the murder, D ww A walk- 
ing with a drawn swotd towards the spot where 
the body was found, and after the lapse of a time 
long enough to allow tbe murder to be committed, 
saw him returning with the sword bloody, these 
etfci>iii«toiic«4 are wh<dly independent of the evi- 
dence of C (they derive no force whatever from 
it) and, coupled with others of a like nature, 
might generate quite as strong a persuasioo of 
guiH." Best, Ev., { 294. 



(4) Best, Ev., i 294. 

(6) Phipson, Ev., 3rd Ed., 2 ; Norton, Kv., pp. 
14, 18, tt nq., 71; PhilUps* Famous Cases oi Cii- 
cumstantial Evidence, 4th Edition, Introdnctkc; 
Best, Ev. { 295; Taylw, Ev.. {{ 66—69; Wnb' 
Ciro. Ev. 34 ; see remarks of .Udersoo, B,, in S. 
V. Boifu, 2 Lewin,C. C, 227. ' Pn*aii» ff 
tvidaUkm rst omnibu* ttt pMaUieT tl nfer ssiaw 
ejus gentru major at iOa, gaae ftt per Mlm it 
n'w" (Mas oardus J7e fraib atu mi i lMM, v. I, q. 3k 
u. 8). 6o also Menoohins who displays a par. 
tiality for that circumstantial proo^ which is tfce 
subject of bis treatise, yet says ' 'fr<lh»*io sea /Ut« 
qvat KMhu lit, ceterU aueUee' (De fr an m flii m,- 
btu, L. 1, q. 1) ; Phillqps op. oU., Bunill, of. cil. 

<tf) Per Lord Chief Baroo Maodoasld in M. 
V. Patch, and B. ▼. amitk, dted in Wills' Cii«. Et., 
32 ; V. ib., 28—36 and passim ; Nottou, Ev., U, 
d sej., Cunningham, Ev., 16. set also (tetp t» 
BuUeo, J., in tbe trial of Captain Donneasii, 
cited and oriticiiied in Phillips' Gm. Sv., zr; bat 
evidence of a circumstantial nature can never be 
justifiably resorted to^ excqit where erideoiT 
of a direct and therefore of a superior natare i< 
unattainable ; Wills' Oiir. Ev.. 32. 33, 187 ; 8 
men have been convicted cxTOSMoas^ «a i ii i lai- 
stantial evidence, so have tbey on diiec* testi. 
nioiiy, but is that a reasco f«i refuing to a(< <• 
such testimony f Greeo leaf Ev., 1, «., 4 ; ,«• 
to the disregard of circumstantial evidaace b; 
mofussil juries, see remarks in 72. v. BmU Jha, 
B. L. B., Sup. Vol. 481, 482 (1866). 

(7) PerBaronLeggeinthetriaJofllsxjBlaiidj. 
8Ute Trials (1752). 

(8) Phillips' CSrc. Ev.. xiv, iviL 

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[S. 3.] PROOF. 15 

evidence is that which from ite production impUes the existence superior 
to it8elf.(l) 

A fact is said to be proved(2) when, after considering -Proved, 
the 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 (3) when, after consider- ^J^"''' 
ing the matters before it, the Court either believes that it 
does not exist, or considers its non-existence so probable that 
a prudent man ought, under the circumstances of the parti- 
cular case, to act upon the supposition that it does not exist. 

A fact is said not to be proved when it is neither proved '^o* p">'- 
nor disproved. 

Part n (On Proof.) Part III {Prodiif4ion and Bffeet of Evi- 

Ob. Vn (Of the burden of> Proof.) dence.) 

OOUMBNTART. 

Whether an alleged fact is a fact in issue or a relevant fact the Court can ^root. 
draw no inference from its existence till 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 tiie relation of the fact, to the object 
and nature of the proceeding in which its existence is to be determined. Eri- 
denee of a fact and proof of a fact are not synonymous terms. Proof in 
strictness marks merely the effea of evidence.(4)- Proof considered ae the es- 
tablishment of material facts in issue in each particular case by proper and legal 
means to the satis^tion of the Court is effected by : — (a) eviaenee or statements 
of witnesses, admissiojiB of confessions of parties, and production of docu- 
ments ;(5) (6) presumption ;(6) (c) judicial notice ;(7) (d)ins^edion, — which has 
been defined as the substitution of the eye for the ear in the reception of 
evidence ;(8) as in the case of observation of the demeanour of witne8se8,(9) 
local inve8tigation,(10) or the inspection of the instruments used for the 
commission of a crime.(ll) The extent to which any individual material 
of evidence aids in the establishment of the general truth is called ite 
pnbative force. This force must be sufficient to induce the Court either (a) to 
btUece in the exittence of the fact sought to be proved, or {b) to consider ite 
•existence so probMe that a prudent man ought to act upon the supposition that 

(I) B««, Rt., pp. 70, 416. ment); 1S8 (sUtemeuts iuid«rss. 32, 33); R. \. 

(5) CofpM,vr expr«mioii< occur in the ioUoving Atkoctootk Ckuekerb«tty, 4 ('.., 492 (1878) r. ante ; 
•MtioiM :— «t>. 104—111; 42,80, 101: 101—4. 'Kvidfnce." 

101, i02: 165, 77: 91; 82; Whitley Stokes, 883; (<t) .Se. 4, 7»—W. 11^—114, po-<. 

Bahmakmnd Ham t. OhanMm Kam, 22 <'., 4117 (7) Sb. M, 87. fOM. 

11894). (8) WbartoD, Et., t,. 348; Phipwn, Kv., 3rd 

<8) The expreaaiou ° ' diaptoved " occurs only Ed., 3. Beat, Ev., 8 : v. ante ; t. s. 60, }»«<. 

ID M. 3 Mid 4 : the exprenion " not t« be pror- (9) r. Civ, Pr. Code, b. 188 ; Cr. Pr. Code, f, 

ed," or "not proved," doe« not occur at all i 363 (v. antr) : ae to demeanour of vltnemee and 

Whttby iHokea, 863. diBcrepanciea, «ee remarks of Lord Lnngda)*- in 

(4) 8t«ph. iDtiod., 13 : id. Dig., 67, Art. 88 ; JohntUm t. Toii, 6 Bear., 601. 

<;oodeTe, St., 3, 4 ; iodgment ii to be baaed on (10) «. t'iv. Pr. Code, e. 392; 9 C, 363, 

faets duly proved, r. e. 166, foit ; btirden of supra ; tte remarks in £<eeA t. Schtctdrr, 43 

IJroof, «. ••. 101—114. L. J.. Ch., 332; Cr. Tr. Code, s. 2M (▼. ante). 

(6) A* as. 3, 8— 66, 88, 89, 60 (oral proof ) : 61 (11) v. s. 60, fOJit ; Or. Pr. Code, s. 218. 
— ino (docnmentary procf) : 187 (former state- 



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Iti MATTERS BEFORE THE COURT. [|.3.] 

it exists. So if after examining a fair number of samples taken from 
different portions of a bulk, it is found that the samples are all of inferior 
quality, the probability that the bulk is of the same quality is so great that 
every prudent man would act upon the supposition that it is of such quality ; 
and if that is so, the Court ought to held that the fact that the goods are of 
inferior quality is proved in such a case.(l) "The true question in trials of 
fact, is not, whether it is possible that the testimony may be false, but 
whether there is sufficient frobability of its truth ; that is, whether the facts 
are shown bj- competent and satisfactory evidence."(2) When there is 
sufficient evidence of a fact, it is no objection to the proof of it that more 
evidence might have been adduced.(3) 

w*'**th "^^^ expression " matters before it " includes matters which do not fall 

Cow?" * within the definition of " evidence" in the third section. Therefore, in deter- 
mining what is evidence other than " evidence" in the phraseology of the .^ct, 
the definition of " evidence" must be read with that of " proved." " It would 
appear, therefore, that the Legislature intentionally refrained from using the 
word 'evidence' in this definition, but used instead the words 'matters before it.' 
For instance, a fact may be orally admitted in Courts- The admission would 
not come within the definition of the word 'evidence ' as given in this Act, but 
still it is a matter which the Court before whom the admission was made would 
have to take into consideration in order to determine whether the particular foot 
was proved or not ."(4) So the result of a local investigation under s. 392, Civil 
Procedure Code, must be taken into consideration by the Court though not 
"evidence" within the definition given by the Act. (5) The judgment must be 
based on facts hefme the Court relevant and duly proved(6) upon a consideration 
of the whole of the evidence and the probabilities of the case.(7) The Judge mar 
not, without giving evidence as a witness, import into a case his own know- 
ledge of particular facts,(8) and should decide the rights of the parties litigating 
secundum alligata et probata (according to what is averred and proved).(9) 
The Court should abstain from looking at what is not strictly evidence- In 
this connection may be noted the dicta of two English Judges- " In this 
case I have fomid myself upon two different occasions where it has come 
before me in that difficulty into which a Judge will always bring himself when 

(1) Boimgomoif v. Xakapief Jute Co., 6 C. W. (5) ^6. 

N., 496, at p. A05 (1902). • (6) 8- 165, potl. 

(2) Oreenleaf on Ev., Sth Ed., p. 4, citrd in (7> See temarka o{ Mitter, J., in L u k n mni 
Gooderr, Er., 6. ProbabOity in the word< of Si»gh v. Badtteroonitta, 16 Vf. R., 102 (1871): 
Locke, it likelinna to be true— m( Ram on F»ct», i: FieU, Et., p. 68, et teq. (t. ante) ; tet not«» to 
Ch. VIII. A» to the probabilities of a case. v. 8. 16, poM. 

Bunwaree Lai v. Moharajah Helnanin, 7 M. I. A., W Haroprotad v. Sheo Dyal, 3 I. A., 286; Uit- 

\&6; «.c., 4 W. R., 128; Sri Raghvuadha v. Sri hat). Bibi \: Batkir Khan, U H. I. A., 21S: 

Brojo,3 I. A., 176: Jliidhoo Soodvn v. SiirMp ». c. 7 W. R., 27 : Soora; £aii( r. JTAoriee A'aram, 

Chunder, 4 M. I. A., 441 ; g.c, 7 W. R.,73 : Ijila 22 W. R., 9; Karthai Omni v. Sam Ckamiia, 24 

Jha V. Bibee TMebmalool, 21 W. R., 436; JIftr W. R., 81 (arbitrator); *. v. Bam Ciaran, i* 

Utdootah V. Betby Imaman, l M. I. A., 44, 4.'> : W. R., Cr., 28 (aawMor) : v. ». 294, Cr. Pr. Code: 

8.C., 8 W. R., 29; MxiMamvt Sdvnv. Jltummul Xoutttau v. Pinto, 7 W. R., 190: tee notee to 

Beckun, 11 W. H., 346: Vmati Parehad v. «. 21, port. 

GanAarp Sinfk, 15 C-. 20, 23 ; Beat, Ev., ff 24, (9) Behan Ciandra r. Shama Ckaran, 11 M.I. A-, 

25, 100: tee alto Wille' Circ. Er., 6: Steph. 20j 6 W. B., P. C, 67; an Bamdof/tl K%m ▼. 

Introd., 46; GUMford's EMay on the Principles Ajoodkia Khan, 2 C, 15 ; Joytara Dattee t. Mokm. 

of Evidence, 106. med Mobarvek, 8 C„ 976 ; Bonfa Ciaria v. Tertm 

(3) Bamalinfa Pillai v. Sadativa Pillai, 9 M. I. Dikthatvr, 1 M., 629 ; Okooa Kan t. /«*»» 



A., 606; a.c., I W. R. (P. C), 25 (1864): tee Khalila, 1 B., 21S; MvVMa Soondtiry t. 

Field, Er., p. 41. Churn. 8 C, 876; Atyhar Beta v. Ufdar <M^ 

(4) Per Mitter, J. : Joy Coomar v. Bundhoolall, 16 C, 291 ; r»if«»o«nii» v. Oop^ IS M., 3S: 

9 C, 366(1862) ; and aee B. r. Athooloth Chvcixr. Beit, Er., $$ 78, et teq ; m note* to ». 166, put. 
»i(«y, 4U., 402,»«pro. 



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[8. 3.] PROOF. 17 

bis curiosity or some better motive disposes him to know more of a cause 
than judidally he oiiffht."(l) Amin, "I shall decline to look at what is not 
ngolarly in evidence oefore the Court. The proceedings before the Commis- 
sioners are, in my opinion, no evidence of an act of bankruptcy. I purposely 
abstain in all these oases &om looking at the proceedings, for my mind is so 
constituted that I cannot in forming my judgment on any matter before me 
separate the regular from the irregular evidence."(2) 

Certain provisions of the law of evidence are peculiar to criminal trials ; Proot in 
e.g., the provisions relating to confe8sion8,(3) character,(4) and the inoompe- ^t^i^ 
tency of parties as witnesses ;(5) but apart from these, the rules of evidence are <*•••- 
the same in Civil and Criminal cases.(6) But there is a strong and marked 
difference as to the ^ect of evidence in Civil and Criminal prooeedings.(7) " The 
circumstances of the particular case" must determine whether a prudent num 
ought to act upon the supposition that the facts exist from which liability is to 
be inferred. What circumstances will amount to proof can never be matter 
of general definition.(8) But with regard to the proof required in C^vil and 
Ciinunal proceedings there is this difference : that in the former a mere pre- 
fwdemnce of probability is Bufficient,(9) but in the latter (owintr to the serious 
conaequencea of an erroneous condemnation both to the accused and society) 
the pennasicn of guilt must amount to " such a moral certainty as convinces 
the minds of the tribunal, as reasonable men, beyond all reasonable doubt.'VlO) 
" It is the business of the prosecution to bring home guilt to the accused to 
the satisfaction of the minds of the jury, but the doubt to the benefit of 
which the accused is entdtled must be such as rational thinking, sensible men 
may fairly and reasonably entertain : not the doubts of a vacillating mind 
that has not the moral courage to decide but shelters itself in a vain and idle 
scepticism: They must be doubts which men may honestly and oonscien- 
tioasly entertain."(ll) The same principle which requires a greater degree of 
proof demands a strict adherence to the formalities prescribed by the law of 
procedure. For " in a criminal proceeding the question is not alone whether 
substantial justice has been done, but whether justice has been done according 



(1) Per The Lord Chancellor in Skk v. Jack. { 112; R. t. WhUt, 4 Foat. * Fin., 38S; «M 

•M, note to (, 6 V««., 334. tune principle laid down in R. v, MatOnib Olmm. 

(t| Per Sir John CroM. Ex parte Po4ler, 3 der, 21 W. B., Cr., 18, 19, 20 (1874); it. t. 

Dmcoo, 178. Bedger, aupra, 132, 133, ISA, per Sir I^vTenoe 

(3) 8*. 34 — 30, pott. Peel, C. J., qnoting and adopting Starkie, Et., 

(4) 8*. 53, 64, pott. 817. 818 : R. v. Sorob Roy, 6 W. B., Cr.. 28. 31 
«) 8. 120, pott and note. (1866): R. y. BOtaru, 3 W. B., 23, 2S, (186S) 
(e) S. T. Jfttrpky, 8 C. * P., 297, 306; R. t. [priaoDer not to be convicted on surmiae]. " It 

BwM;4 B. * A.,9S, 122, jgerBeat, J.: £eae& V. js a maxim of EngHab law that it is better 

Snum, 5 M. & W., 309. 312, per Parke, B.: Trial than ten goilty men ahooM eacape, than that 

of WilUam Stone, 26, How. St. Tr., 1314; Trial one innocent man ahould auffer," ptrHoUroyd, J. 

oi Lcri UelWlle, S0t(f..764: Beat, St., | M. in Sarak Hobxm't oaae, 1 Lewin, C. C, 261 ; «M 

(7) Beat, Er., | 95. alao Beat. £v„ ff *^. **0. 

(8) Starkie, Br., 866; diflereooea in the proof (U) R, t. Coafor, VoL II, 816, per Cookbum, 
requited of the aame fact in different caaea very C. J-: "If." aaid L. C. Baron Pollock to the 
oftoi ariae out of the dronmatancea of the caac ; R. jory in B. v. Jianninf and Wile (cited in WiUa' 
'. MoMub Clm%d*r, 21 W. B., Cr., 13. 17 (1874). Ciro. Er., 194, 196): " the oonoluaion to whieh 
Set Arthnr P. Willa' Treatiae on the Law of Qr. you are oondaoted be that there ia that degree 
cumitantial Erldenoe (1896), Ch. IV (quantity of certainty in the caae that you wouM act upon 
of eridence neoeaaary to conriot). it in your own grave and important concema, 

(9) Cooper r. Blade, 6 H. L. Caa., 77, per WiUea, that ia the degree of certainty which the law re- 
J.;8tarkie, Br.,8I8;aDd Me remarkaof Sir Law quirea, and which will uatify you in returning 
rence Peel in B. r. Htdfr, MuUy Latt r. Midiael a verdict of guilt} ." See alao the other caaaa 
( 1863), iq>. 132, 133; B. v. Madlmb Ckunder, poat. cited in Willa, «6., and the R. v. Madhub Chundtr, 

(lO)PerParfce.B.,in£.r.£<em«. cited in Beat, aupra, 20: R. v. Ookoo Kahar, 26 W. B., O., 

Ev., p. 76; V. Starkie, Ev.,817, ?6d;Tftylor, Ev., 36 (1876). 



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18 PROOF IN CRIUIMAL CASES. [S. 3-] 

to law. All proceedings in patiam are, it need scarcely be observed, ttrie- 
tissimi }urw."(l) Criminal proceedings are bad unless they are conducted in 
the manner prescribed by law, and if they are substantially bad, the defect 
will not be cured by any waiver or consent of the pri8oner.(2) Sir Elijah 
Impey in his charge to the jury in Nuncomar's case said : " You will consider 
on which side the weight of evidence lies, always remembering that, in 
criminal, and more especially in capital, cases, you must not weigh the evi- 
dence in golden scales ; there ought to be a great difference of weight in the 
opposite scale before you find the prisoner guilty. In cases of property the 
stake on each side is equal and the least preponderance of evidence ought to 
turn the scale ; but in a capital case, as there can be nothing of equal value 
to life, you should be thoroughly convinced that there does not remain a pos- 
sibility of innocence before you give a verdict against the pri8oner."(3) Even 
as between criminal cases a distinction has been declared to exist. Thus 
" the fouler the crime is, the clearer and plainer ought the proof of it to be."(4) 
" As the crime is enormous, and dreadfully enormous indeed it is, so the proof 
ought to be clear."(5) " But the more atrocious, the more flagrant the crime is, 
the more clearly and satisfactorily you will expect that it should be made 
out to you. "(6) " The greater the crime, the stronger is the proof required for 
the purpose of conviction."(7) These and the like dicta, however, in so far as 
they may be said to imply that the rules of evidence may be modified accord- 
ing to the enormity of the crime, or the weightiness of the consequences 
which attach to conviction (for if they may be made more stringent in one 
direction, it is said they may be relaxed in another) have been severely criticis- 
ed. (8) To quote the language of L. C. J. Dallas in the earlier portion of a 
passage of which the latter part is to the effect of the dida, already cited :— 
" Nothing will depend upon the comparative magnitude of the offence : for 
be it great or small every man is entitled to have the charge against him 
clearly and satisfactorily proved."(9) 

Every criminal charge involves two things ; first, that a crime has been 
committed ; and secondly, that the accused is the author of it. If a criminal 
fact is ascertained — an actual corpus ddieti established — presumptive proof 
is admissible to fix the criminal.(lO) A restriction has been said to exist 
against the use of circumstantial evidence in the case of the well-known 
rule that the corpus delicti (that is, the fact that a crime has been commit- 
ted) should not in general be inferred from other facts, but should be proved 
independently. But it is not necessary (and indeed in the case of some 
crimes it would be impossible) to prove the corpus delicti by direct and posi- 
tive evidence. If the circumstances are such as to make it morally certain 
that a crime has been committed, the inference that it was committed, is as 
safe as any other inference. More accurately stated the rule is that no 
person shall be required to answer, or be involved in the consequences of 

<1) Per Cookbnrn, C. J., in Martin v. Mac (4) Trial of Loid Comwallit, 7 Stole Tnth, 

konochie. L. R, 3 Q. B. D., 730, 775; see H. v. 149. 

Kola Lalang, 8 C, 214 (1881) ; R. v. Bhula Bin, (5) Trial of R. T. CroMfield, 2« Stole Trial.. 

I B., 308 (1876) ; Jeiha Partha v. Bam C/iandm, 21& 

16 B., 693, 694 (1892); B. v. Bholanath, 2 C, (u) Trial of Uaiy Blandy. 18 Stote IViab, 

23—27 (1876); 26 W. B., Cr., 57; but mc abo J186. 

■8. 629— S38, Cr. Pr. Code. (7) Sarah Bobson's ca»e, per iHoIro^ J., 

(2) *. V. Bholanath, 2 C, 23 (1876); S. v. AHen, 1 Lewin's Crown Ciweg, 281. Set alio «. t. /»»», 
6 C, 83 (1880); Hoasein Buksh v. B.,« C, 96, 33 8t. Tr., 1136, and Maitiane Smith' tease titei 
99 ; «e also notes to as, 5, 121, poet. jn Wills' Circ. Ev., 196. 

(3) The story of Nunoomar and the impeach. (8) Wills' Circ. Et., 196. 
ment of Sir Elijah Impey, by Sir James Fitz- (9) B. v. Inge. 33 St. Tr., 1136. 

James Stephen, Vol, I., p. 168. See abo Lord (10) B. v. Ahmed Ally, U W. K., Cr., 25, 2» 

Cowper's speech on the Bishop of Rochester's (1869); B. v. Bam Buchea, 4 W. R., Cr., 22 
Trial; Phillips' Circ. Et., xxvii. (1865). 



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[8.3.] 



PROOF IN CBIHINAL CASBS. 



19 



guilt without satisfactory proof of the corpus ddieti either by direct evidence 
or by cogent and irresistible grounds of pre8umption.(l) 

(a) The onus oi proving everything essential to the establishment of theOwter^ 
charge against the accused lies upon the prosecutor. Every man is to be ^SilwTto 
legaraed as legally innocent until the contrary be proved. Criminality is KS^^j 
therefore never to be presumed.(2) (6) The evidence must be such as to Oaaeo- 
exclude, to a moral certainty, every reasonable doubt of the guilt of the 
accn8ed.(3) If there be any reasonable doubt of the guilt of the accused, he is 
entitled as of right to be acquitted.(4) The above hold universally; but there 
are two others peculiarly applicable when the proof is presumptive (v. ante); 
(c) There must be clear and unequivocal proof of the corpus ddieti (v. ante).(6) 
(i) In order to justify the inference of guilt, the inculpating facte must be 
incompatible with the innocence of the accused, and incapable of ex^ana- 
tion upon any other reasotMUe hypothesis than that of his gailt.(6) While 
the concurrence of several separate facts, all of which point to the same con- 
clusion may, though the probative force of each be slight, be quite suffidentin 
their cumulative effect to produce conviction, a mere aggregation of separate 
facts, all of which are inconclusive in the sense that they are quite as consistent 
^th the innocence as with the guilt of an accused person cannot have any 
probative force. The principle is a fimdamental one and of universal appli- 
cation in cases dependent on circumstantial evidence that in order to justify 
the inference of guilt the incriminating facts must be incompatible with the 
innocence of the accused and incapable of explanation upon any other reasonable 
hvpotbesis than that of his guilt.(7) It is not, however, correct to say that 
before circumstantial evidence can be made the basis of a safe inference of 
guilt it must exclude every possible hypothesis except that of the guilt of the 
acca8ed.(8) 



(1) Steph. IntrodL, 6^—66 ; WUb' Ctrc. Ev., 
199-272; ArtboT WUb* Ciro. Er. (1896), Part 
V (Proof of the corjnu ielieli) and caan there 
cited ; Nertoo Et., 74 ; Canningham, Ev., 17 ; 
Beat., Et, { 441 e< «$. ; Powell, £t., 72. See 
Bmuy. Evatu, I Hagg., C. R., 3S, 106 ; the Courta 
majactnpaa preaamptiona aa well in criminal 
M in ciril caaea : BunkU't caae, 4 B. & Aid., 9S. 
So in caaea o{ adultery it is not neccaaary to prove 
the fact by direct evidence; Lovtdtn v. Lovt- 
it%, i Uagg., C. B., 1 ; WiUiamt v. WiUiamt, I 
Or., 299; followed in Attt% v. AlltH, L. R., P. D. 
(1894), 248, 252 ; even in a criminal caae, R, v. 
XaiM Oiunder, 21 W. R., Cr., 13, 16, 17 (1874). 
Ste provisiona of O. Pr. Code, a. 174, and 
alao Bengal Reg. XX of 1817, i. 14 ; and gene, 
rally aa to the eorjmi itlieti, R. v. Petia Oaxi, 4 
W. R., O., 19 (186S) ; R. v. Aim Rwkta, ib., 29 
(18(6), R. V. Poorootuttah SilMor. 7 Vf R., O., 
14 (1807); R. v. Buider-vd-ieen, 11 W B., O., 
» (1869); R. V. Ahmtd Ally, aupra ; R. r. Dreige, 
IC^z, C. C, 236: Aiu Shikdar v. It., II C, 
«42 (1886) ; R. r. Bikari Bing, 7 W. R., Or., 3, 4 
(1867), in which caae the alleged " dead " man 
re-appeared npon the eeene at the cntoherry. 

(2) lawson'iPreaamptive Ev., 93, 432; Whar- 
ton, Cr. Ev, H 319, 717 ; Beat, Ev., $ 440 ; Green- 
teaf, Ev. I., 34 ; Willa' Grc. Ev., 183 ; Powell, 
Et., 76; Beat, Treatiae on Preaumptioos of law and 
act (1844): Me m, 101, 102, 103, 105, 106, 114, 



po$l. Aa to the meaning of the preaumption of 
innocence in criminal caaea ; set Thayer'a Prelimi- 
nary Treatiae on Evidence (1898), 651. See alao B, 
V. Ahmed Attt, 11 W. R., Cr., 26, 27 (1869) ; 
where facta are aa conaiatent with a priaouer'a 
innocence aa irith hia gnitt, innocence mnat be 
preaumed, and erimhial intent or linowledge la 
not necesaarily imputable to every man who acta 
contrary to the provisiona of the law; S. t. 
Nobokioto Qhote, 8 W. R., Cr., 87 (1867); S. 
v. Madhub Chunder, 21 W. R., Cr., 13, 20 (1874), 
[the accused is entitled to the benefit of the legal 
presumption in favour of innocence ; the burden 
of proof is undoubtedly upon the proaecutor] 
The Deputy Legal Semembrancer v. £ar«na Bote- 
lobi, 22 C, 174 (1894). 

(3) Beat, Ev., *., and v. ante. 

(4) Willa' CSrc. Ev., 192 ; Beat, Ev., J 440 ; and 
v. anU. LolU M<*«n v. iJ.,22 C, 323 (1894); R. 
V. Madhub Chunder, aupra, 20 ; «. v. Punchanun, 
5 W. R., Or., 97 (1860). 

(5) Beat, Ev., { 440, 441, Wills' Ore. Ev., 
199—272. 

(6) Wills' Cric. Ev., 188 ; Beat, Ev., if 461 ; 
rule approved in Balmakund v. Ohantam, 22 C., 
409 (1894). 

(7) Hurjee Mutt v. /mom Ali Sircar, 8 C. W. 
N., 278 (1904), 1 All., L. J., 28. 

(8) Balmakund v. Ohantam, supra ; " the 
bypotheais of the prisoner's guilt should 



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20 



APPEALS. 



[S.4.3 



Oriinlnal. 



"IbF 
man*: 



" Even where the appeal tonu on a question of fact, the Court of Appeal 
has to bear in mind that its duty is to re-hear the case, and the Court must 
re-consider the materials before the Judge with such other materials as it may 
have decided to admit. The Court must then make up its own mind, not 
disregarding the judgment appealed from, but carefully weighing and consider- 
ing it ; but not shrinking from overruling it, if, on full consideration, the 
Court comes to the conclusion that the judgment is wrong. When, as often 
happens, much turns on tiie relative credibility of witnesses, who have been 
examined and cross-examined before the Judge, the Court is sensible of 
the great advantage he has had in seeing and hearing them. It is often 
very difficult to estimate correctly the relative credibility of witnesses from 
written depositions, and when the question arises which witness is to be be- 
lieved rather than another, and that question turns on manner and demeanour, 
the Court of Appeal always is and must be guided by the impression made on 
the Judge who saw the witnesses. But there may obvioudy be other circum- 
stances, quite apart from manner and demeanour, which may show whether 
a statement is credible or not ; and these circumstances may warrant the 
Court in differing frum the Judge even on question of fact turning on the 
credibility of witnesses whom tiie Coxat has not 8een."(l) 

" The sound rule to apply in trying a Criminal appeal where questions of 
fact are in issue is to consider whether the conviction is right, and in this respect 
a Criminal appeal differs from a Civil one. In the latter case the Court must 
be convinced before reversing a finding of fact by a lower Court that the find- 
ing is wrong.(2) ' It seems to us that the Judge treated the appeal before him 
more as if it was a special appeal than a regular appeal ; and because he did not 
find sufficient on the recoil to convince him that the Magistrate was entirely 
wrong, he therefore affirmed his decision. But the Judge was in the situation 
of an Appellate Court, in which the matter came before him on regular 
appeal, and he ought to have judged, as best he could, from the materials put 
before him in the Magistrate's written judgment, whether or not as a matter 
of fact the prisoners had committed the offence of which they had been con- 
victed. If the evidence which came before him — whatever its shape — was not 
sufficient to reasonably satisfy him that the prisoners had been rightly con- 
victed, he ought to have acquitted them."(3) An Appellate Court is bound 
precisely in the same way as the Court of first instance to test evidence 
extrinsically as well as intrinsically.(4) 

4. Whenever it is provided by this Act that the Court 
may pre3Uine(5) a fact, it may either regard such fact as 
proved, unless and until it is disproved,(6) or may call for 
proof of it: 



flow natunUy {rom the fMtf proTed, and be 
consiatent vith them all :" R, ▼. Bthartt, 3 W. 
R„ Cr., 23, 28 (1886). 

(1) Per Barnm, J., in Coghm y. Cumberland, 
13th Hay 1898, cited in 2C. W. N., Short Note*, 
oczxxi : as to demeanonr t. axle, p. 12, note 7. 

(2) ProlapChiinder v. «., 11 C. L. R„ 26(1882), 
per White, J., referred to in Bci>imuMi t. S„ 
20 C, 383, 367 (1892); bat aee R. r. Ramlochun, 
18 W. R„ Cr„ 16 (1872). The case of Protap 
Ohunier t. R., 11 C. L. R.; 26 (1882), was follow, 
ed in ilihn Khan r. Sagai Bepari, 23 C, 
347, 349 (1896). The Court is bound in form- 
ing its conclusions a* to ths credibility of the 
witnesses to Mtach great weight to the opi- 



nion which the judge who heard them h— ex- 
premd upon that matter. B. t. JfaA*^ 
Ch%nder, 21 W. R., Cr., IS (1874). 

(3) Kheraj MvOak r. Janab JfnOO, SO V. R.. 
Cr., 13 (1878), per Phear, J., referred to in Raki- 
muiJU r. R., anpra: nealso remarki of Mitter, 
J., inthe petition of Ooonumee, 17 W. K., Cr., 09 
(1872); Shivappa y. ShitUintappa, 15 B., II 
(1891). 

(4) In re Ooomanee, 17 W B., Cr., 69 (1871). 

(5) Shafiq-un-nitta v. Siabem Ali, 26 A., Stl, 
686 (1904). 

(u) That which rebuts, or tends to rebate ^ 
presomption which b not declared to be ( 
sire, is relevant and may be proTed ; r. t. 9, ; 



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[>. 4.] PBB8UMPXION0. 21 

Whenever it is directed by this Act that the Court shall '«h»u pr^ 
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 "^oiusiv* 
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. 

N. 86, 87, 88, 90, 114 ("Jfoy pruume,") w. 112, 118 C'Conduaive proof.") 
M. 79, 80, 81, 82, S8, 84, 85, 89, 106 s. 41 (Judgment when conclusive proof.) (1) 
CBhaU presume.") 

OOHMINTART. 

Inferences oi presumptions are always necessarily drawn wherever the Pr««amp- 
testimony is circumstantial ; but presimiptions, specially so-called, are based *'<"" 
upon that wide experience of a connection existing between the facta 
prdbantia and the factum frobandum which warrants a presumption from the 
one to the other wherever the two are brought into contiguity.(2) Presump- 
tions according to English text writers are either (a) of law, or \p) of fact. 

Presumptions of law or artificial presumptions, are arbitrary inferences Of law. 
which the law expressly directs the Judge to draw from particular facte and 
may be either condusive or rebuttable. They are founded either on the connec- 
tion usually found by experience to exist between certain things, or on 
natural law, or on the principles of justice, or on motives of public policy. Con- 
closive presumptions of law are " rules determining the quantity of evidence 
requisite for the support of any particular averment, which is not permitted 
to be overcome, by any proof that the fact is otherwise. They consist chiefly 
oi those cases in which the long experienced connection just alluded to has been 
found 80 general and uniform as to render it expedient for the common good 
that this connection should betaken to be inseparable and universal. They 
have been adopted by common consent, from motives of public policy, for the 
<ake of greater certainty, and the promotion of peace and quiet in the com- 
munity ; and therefore it is that all corroborating evidence is dispensed with, 
and all opposing evidence is forbidden. "(3) Bebuttable presumptions of law 
are, as well as the former, " the result of the general experience of a connec- 
tion between certain facts or things, the one being usually found to be the 
companion or the effect of the other. The connection, however, in this class 
is not so intimate or so uniform as to be conclusively presumed to exist in 
every case ; yet it is so general that the law itself, without the aid of a jury, 
mfers the one fact from the proved existence of the other in the absence of all 
opposing evidence. In this mode the law defines the nature and the amount 
of the evidence which is sufficient to establish a frima fade case, and to throw 
the burden of proof upon the other party ; and if no opposing evidence is offered, 
the jury are bound to find in favour of the presumption.(4) A contrary ver- 
<lict might be set aside as being against evidence. The rules in this class of 

(1) 8tt abo «. 13^ 42, tion,{orthe wotion permit* o{ evidence being 

(2) Nortoo, Et., 07 : «ee Beet, £v., H 2M, 42, offered o( nm-aooeas (Korton, Et., 97) and 
43, 290, a teq., pp, S8, 281 ; and Will*' Circ. Er., a. 113 ii vUra vires (Whitley Stoke*, 836) : see also 
18 : Powell, St., lo. See t, 114, potl. Field, Et., (20 ; Steph. Introd., 174, and notes 

(3) Taylor, Et., | 71 : Beat, Et., p. fiS, { 304 ; to a*. 112, 3, pott : and Frooeedings of the tegis- 
tbe ETidenoe Act notice* two case* of eonolo- latiTe Cooocil, 12tb March 1872, pp. 234, 23S 
•iTe preaomptiaM (i*. 112, 113). It ia a qae*> of the Supplement to the QateUe of India, 
tion, however, whether the preiiunption mentioD- 20th March 1872. 

«d in *• 112 i* not alter all a rcbottable presomp- (4) Oh. VII of the Act deals with thia aubjeot 

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22 PRBSCMPTIONS. [S. 4.] 

presumptioDB, as in the former, have been adopted by common consent from 
motives of public policy and for the promotion of the general good ; yet not, 
as in the former class, forbidding all further evidence, but only (Sspensing whit 
it till some proof is given on the other side to rebut the presumption raised: 
Thus, as men do not generally violate the Penal Ciode, the law presumes every 
man innocent ; but some men do transgress it ; and therefore evidence is re- 
ceived to repel this presumption."(^) 
Of fMt Presumptions of fact or natural presumptions are inferences which the mind 

naturally and logically draws from given facts without the help of legal direc- 
tion.(2) They are always rebuttable. They can hardly be said with propriety 
to belong to that branch of the law which treats of presumptive evidence.(3) 
" They are in truth but mere arguments of which the major premiss is not s 
rule of law ; they belong equally to any and every subject-matter, and are to 
be judged by the common and received tests of the truth of propositions and 
the validity of argument3.(4) They depend upon their own natural efficacy in 
generating belief, as derived from those connections, which are shown by 
experience, irrespective of any legal relations. They differ from presumptions 
of law in this essential respect, that while those are reduced to fixed rules, and 
constitute a branch of the system of jurisprudence, these merely natural 
presumptions are derived wholly and directly from the circumstances of the 
particular case by means of the common experience of mankind, without the 
aid or control of any rules of law. Such, for example, is the inference of guQt 
drawn from the discovery of a broken knife in the pocket of the prisoner, the 
other part of the blade being found sticking in the window of a house, which, by 
means of such an instrument, had been burglariously entered. These presump- 
tions remain the same under whatever law the legal effect of the facts, when 
fotmd, is to be decided. "(5) Presumptions of law are based, like presumptions of 
fact, on the uniformity of deduction which experience proves to be justifiable ; 
they differ in being invested by the law with the quality of a rule, which 
directs that they must be drawn ; they are not permissive, like natural pre- 
sumptions, which may or may not be drawn.(6) 



(of preeomptions) u follove: — First it tey« Er., 84; Wilb' Circ. £▼., 22. 

down the general principles which regulate the (3) Taylor, Er., { 214. 

harden of proof (s*. 101 — 106). It then enu- (t) Sir James Fitzjames Stephen diTidn pre- 



■Derates the eases in which the burden of proof samptioos of fact in English law into two ( 

is determined in particular cases not fry Iht rdation — (I) Bare presumptions of fact which are nothing 

ef the purtiu to On eaute but (y pretvmplioiu (as but arguments to which the Court attaches whst- 

107 — 111). Such presumptions affect the ordi- erer value it pleases; (2) certain presumptiou 

oary rule as to the burden of proof that he who which, though liable to be rebutted, are regsni. 

alBrms must prove. He who affirms that a man ed as being something mare than mere 

it dead must nsually prove it, but if he shows maxims, though it is by no means easy to My 

that the man has not been heard of for seven how much more. An instance of such a presomp- 

years, he shifts the burden of proof upon his ad- tion is to be found in the rule that leceot 

versary, who must displace the presumption which possession of stolen goods unexplained raises a 

has arisen. Steph. Introd., 173, 174; see presumption that the poss es sor is either tbr 

Norton, Ev., 97, and Prooeedings of the I.egisla- thief or a receiver. Steph. Introd.. 174. In 

Uve Council, cited aaM. this act presumptions of fact partake of the 

(1) Taylor, Ev., If 10», 110; Best, Ev., J 314. character of class (1): v. pott; see Taylor 
See observations as to the treatment of rebut. Ev., f III. 

tablepremimptionsbythis Act in Whitley Stokes, (8) Taylor, Ev., { 214 ; see Wills' Circ. Ev. 

83S. fOMim ; ttt also other instances of this citsi o( 

(2) Phipson, Ev., 3rd Ed., 3 : "Such in- presumptions in s. 114, po</; and Best, Ev.,ill& 
terenoes are formed not by virtue of any taw, English text writers also deal with mixed prr- 
but by the spontaneoos operation of the reason. sumptions or presumptions of mixed law and 
ing faonlty: all that the lav does for them is fact: tee Norton, Ev., 97 ; Beat, Ev., f 3S4. 
t) noognise the propriety of their being so (tf) Norton, Ev., 97. 

drawn if the Jndge think fit." Cunningham. 



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[8. 4.] PRE3CMPTION8. 23 

The abovementioned section appears to point at these two classes of pre- soop* of th* 
sumptions, those of fact and those of law. The first clause points at presump- ■•owoa- 
tions of fact, the second at rebuttable presumptions of law, and the third, at 
conclusive presumptions of law.( 1 ) As has been already mentioned, presumptions 
of fact are really in the nature of mere arguments or maxims. The sections 
which deal with such presumptions have been noted above.(2) Of these sections, 
s. 114 is perhaps the most important. " 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 tiaeit 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."(3) Of course others 
besides those specified may be, and are in fact frequently, drawn.(4) In respect of 
such prestimptions Courts of Justice are enjoined to use common sense and 
ezpenence in judging of the effect of particular facts and are subject to no 
technical rules whatever. This section renders it a judicial discretion to 
decide in each case whether the fact which under section 114 may be pre- 
sumed has been proved by virtue of that presumption. Circumstances may, 
however, induce the Court to call for confirmatory evidence. (5) Sections 79-85, 
89 and 105 of this Act create presumptions corresponding to those described 
by English text-writers as rebuttable presumptions of law, and there are 
others to be found in the Indian Statute Book.(6) The third clause of this 
section embraces those presumptions described by these text- writers as con- 
dosive presumptions of law. The Evidence Act appears to create two such 
presumptions by ss. 1 12 and 1 13;(7) and there are some others to be found in the 
Indian Statute Book.(8) 

English text-writers have, it has been said, in treating of the subject of pre- 
sumptions, engrafted upon the law of evidence many subjects which in no way 
belong to it, and numerous so-called presumptions are merely portions 
of the substantive law under another form. (9) "All 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 " (from this Act) " not because the truth of those 
principles was denied, but because it was not considered that the Evi- 
dence 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 
mndamental principles of criminal law." Of such a kind also is the pre- 
sumption tJiat every one must be held to intend the natural consequences 
of his own act8.(10) The like presumptions and others of a similar character 
belong to the province of substantive law, and have been dealt with by 



(I) Norton, Kv., 96; Field, Ev., 89, 620, 821. Code, ». 87 (Proclamatioo for person abscond^ 

(J) 8fc 88, 87, 88, 90, in fact aU the •ections ing) ; Act I of 1894, i. 6 (Land Acqudaition) j ». 8. 

from ifc 79to90incl<imTe areillu»tration»of,and Act VII (B. C.) of 18«i8 (Recovery of Publio 

{oaadcd upon, the maziin. Omnia ttte rile atta. Demands) ; see Dal Mokoond v. JirjuMun, 9 

Kortoo, Ev., S60; Powell, Ev., 83. C. 271 (1882): Act II (B. C.) of 1869,8. 2«(Chota 

(5) Steph. Introd., 174, 176. Proceedings of Nagpore Tenures); sees. 36, porf; Act XXVII of 
the LegMlatire Council, cited in n. 1, p. 38; tet ». 1871, s. 6 (Criminal Tribes) ; Act XIV of 1874, 
114, foM. SS.4, 8 (Scheduled Dutricts); Act IX of 1858, 

(4) Bee notes to s. 114, fott. «. S (Bills of Lading) ; see If. A'«coJ * Co. T. 

(6) Ba^Moaa r. BoH Lai, I AU. L. J., 14 C«»««. 9 Bom. H. C. R., 321 (18721; see notes 
(IWt), to s. 36, pott. 

(8) Field, Et., 621. (9) Sir J. Fitijames Stephen ; Proceedings of 

(7) But see p. 21, ante. the Legislatire CouncU. ante. 

(8) See for example. Act XXI of 1879, s. 5 (lO) Steph. Introd., 176; Powell, Ev., 82, 
(Foreign Jurisdiction and Extradition); Cr. Pr. 



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24 



INFRRBNCE< 



[..4.] 



Btatute,(l) or have gradually come to be recognised as binding rules through 
the course of judicial decision. (2) In this sense the subject of presumptioiu is 
co-extensive with the entire field of law, and each particular presumption 
must in each case be sought under the particular head of law to which it refen.(3) 
inferwDO*. This Chapter, as originally drafted, contains the following section: — 

"Courts shall form their opinions on matters of fact by drawing inferences : 
(a) from the evidence produced to the existence of the facts alleged ; {b) from 
facts proved or disproved to facts not proved ; (c) from the absence of witnesses 
who, or of evidence which, might have been produced ;(4) (d) from the ad missions, 
statements, conduct and demeanour of the parties and witnesses, and generally 
from the circumstances of the case." " The Select Committee decided to omit 
this section 'as being suitable rather for a treatise than an Act.' The object 
of its introduction was originally stated to be to point out and put distinctly 
upon record the fact that to infer and not merely to accept or register evidence 
is in all cases the duty of the Court."(5) Further, as has been already observed, 
a distinction must be drawn between the general act of inferring facts in issue 
from relevant facts, and those inferences which, for the reasons above given, 
are specfically known as presumptions (6) (v. ante). 



(1) See for exunple Act V of 1869; ^rt. 114 
(IndUn Article* of War, Preaomptive Evidence 
at DcMrtioo) ; Act XXI of ' 1866, ■. 21 (M»tiTe 
CoDTerte' Marriages; PreeamptiTe Evidenoe 
of Marriage); Act IV of 1872, n. 10,11 (Punjab 
Laws; Preenmptim a< to ezistenoe of right of Pre- 
emption) ; Act I of 1877, «. IS (Specilic Belief ; 
Freeumpticn that breach of contract to tiang. 
fer immoveable property cannot be adtqnately 
relieved by compensation in money). For an 
initance of the convendon of presumptions of 
the snbatantiTe law into statutory rules. Me s. 
38, Act X of 1866 (Succession Act). In EngUrd 



the rules as to subsUtntional or cumolalim 
gifts are treated as rijci* of presumptioa; tk 
afaorementioned section deals with these ralea 
without any reference to a {vesumption ; «e G. 
8. Henderson, The Law of Wills in India, p. 191 

(2) liee notes to s. 114, pott. 

(9) See Cunningham, Ev., 301—303. 

(4) 5ee a. 114, ill. (g), post. 

(6) Cited in Field, Et., 89. 

(6) As to the ambiguity attending the we of 
the term " presumption," see Best^ Et., p. 306; 
«>., § 299. 



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CHAPTER II. 

Of the Rblbvanoy of Facts. 
As with many othei questions connected with the law oi evidence, the 
theoiy of relevancy has been the subject of varying opinions. Relevancy has 
been said by the framei of the Act to mean the connection of events as cause 
and efiect.( 1 ) But this theory, as was admitted afterwards, " was expressed too 
widely in certain parts, and not widely enough in others."(2) For the former 
definition the following was substituted : ' The word ' relevant ' means that 
any two facts to which it is applied are so related to each other that, according 
to the common course of events, one, either taken by itself or in connection with 
other facts, proves or renders probable the past, present, or future existence 
or non-existence of the other. (.3) But tiiis is " relevancy" in a logical sense. 
Legal relevancy which is essential to admissible evidence, requires a higher 
standard of evidentiary force. It includes logical relevancy, and for reasons of 
practical convenience, demands a close connection between the fact to be proved 
and the fact offered to prove it. All evidence must be logically relevant — that 
is absolutely essential. The fact, however, that it is logically relevant does 
not insure admissibUUy ; it must also be legally relevant ; a fact which ' in con- 
nection with other facts renders probable the existence of a fact in issue,' may 
still be rejected, if in the opinion of the Judge and under the ciroumstances of 
tiic case it be consideiod essentially misleading or remote."(*) The tendency, 
however, of modem jurisprudence is to admit most evidence logically relevant 
Logical relevancy may not thus be assumed to be the sole test of admissibility ; 
relevancy and admissibility are not co-extensive and interchangeable terma 
" Public policy, considerations of fairness, the practical necessity for reaching 
speedy decisions, — these and similar reasons cause constantly the necessary re- 
jection of much evidence entirely relevant. All admissible evidence is relevant ; 
but all relevant evidence is not admissible."(5) The question of relevancy strict- 
ly so called presents as a rule, little difficulty. Any educated person, whether 
lay or legal, can say whether a circumstance has probative force which is the 
meaning of relevancy. This is an affair of logic and not of law. It is, otherwise, 
with the question of admissibility which must be determined according to rules 
of law. A fact may be relevant, but it may be excluded on grounds of policy as 
already noted. A communication to a-legal adviser may be in the highest degree 
relevant, but other considerations exclude its reception as a privileged commu- 
nication. Again a fact may be relevant, but the proof of it may be such as is 
not allowed as in the case of the " hearsay " rule.(6) In this Chapter the word 
•' relevancy" seems to mean the having some probative force. In the title to 

(1) Stepfa. Intnid., 68; *u geuenUy a« to adviaer, or a criminal confeaaiaa improperly ob- 
Ralnaocy, Introdnotion. tained, may, nndoabtedly, be relevant in a high 

(2) Stcffa. Dig., p. 158; «« WhiUey Stokes, depee. They are none the leaa inadminible ; 
«20, 861, Mfc. ib. See aUo Taylor, Et., K 63—86, 298-316; 

(3) Stepb. Dig^ Art.1: "I have subetitnted Powell, Er., S27, 1>28 ; Steph. Introd., Steph. 
the pnaent definition {or it not beoaau I think Dig., Art*. 1 and 2, and Appendix, Koto 1 ; The 
it (the former d^nition) wrcog, bat became Theory of Relevancy by 0. C. Whitworth, Bom- 
I tiiiak it give* rather the principle on which the bay, 1881. 

rale depends than a conrenient practical rnir." («) Ai to the meaning of the expreikion 

A., p. 166. " hearsay i« no eviilenoe " see Steph. Dig., p 

(4) Beat, Er., p. 251. IgO, Arts. 14 and 62, and notes to s. flO, poet. 
(6) lb., 262; thus • communication toa legal 



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26 



RKLEVANCY. 



[». 4] 



this Part it appears to denote admi8sibiUt7.(l) However, the considerations 
mentioned go merely to the the<vv of relevancy and to the construction of, or 
definitions given in, the Act as based on that theory. For practical purposes 
one fact is relevant to another and admissible (2) when the one is connected 
with the other in any of the ways referred to in the provisions of this Act 
relating to the relevancy of fact8.(3) Relevancy, in the sense in which it is 
used by the framerof the Act, is fully defined in ss. 6-11 both inclusive. 
"These sections enumerate specifically the different instances of the con- 
nection between cause and effect which occur most frequently in judicial pro- 
ceedings. 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 ]>art of its cause 
(s. 7) ; subsequent 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 sec- 
tion8."(*) Not only may the acts and words of a party himself, if relevant, 
be given in evidence, but when the party is, by the substantive law, rendered 
liable, civilly or criminally, for the acts, contracts, or representations of third 
persons, and such facts are material, they may generally be given in evidence 
for or against him as if they were his own.(5) The chief instances of such rela- 
tionships (which must in the first instance, be proved aliunde to the satisfac- 
tion of the Court) are agency,(6) partnership,(7) the liability of companies for 
the acts and representations of their directors or other agents,(8) and conspi- 
racy in tort or crime.(9) 

The following sections have been considered by the author and others to be 
the most important, as all will admit ; they are the most original part of the Act, 



(1) Whitlej Stokes, 849. 

(2) Lah Lakmi v. Sayed Haider, 3 0. W. 
N., cclxTiii (ISM); ["Relevant" in thi* Act 
means admissible.] 

(3) S. 3, ante: v. ss. 5— S9, pot. 

(i) Steph. Introd., 72; *et criticism of these 
sections ia Whitley Stokes, p. 819; " two of these 
sections are so drawn (ss. 7, U), as to permit 
eridenoe of mai.tei wboUy irrelerant;" ib,, and 
Me notrsto*. U, t-o*'; but see also Steph. In- 
trod., 160; and Best, Er., 262. In the sections 
mentioned in the text the salijeot of einmm- 
stantitl rvidepoe is distributed into its elements. 
FirtI Keport o/ the Bdut Committtt, 3Ist March 
1871. 

(5) 8u rhipson, Er., 3rd Ed., 69. 

(6) In civil cases the acts and representations 
cf the agent will bind the principal if made with- 
in tho nop? of the authority conferred upon him, 
or snbseqaently ratified by the princioal (Act 
IX of 187:!, s^ 182—180, >96,22«t): as to implied 
authority, see In re Cunninflam, 36 Ch. D., fi32; 
WaUtan v. Fenmek(l»vZ), 1 Q. V-, 346 ; and gene- 
rtUy as to ageiicy. Contract Act, ss. 182 — 238; 
as to responsibility in a tori and the doctrine of 
rtiponient wpertor, see remarks of Jeisel, H. 
R., in Smith ▼. Keai. 9 Q. B. D., 340, 361, and 
jadgmonc of Willcs, J-, in Barwiek v. Englith 
Joint Sloet Bant, L. R.. 2 Ex., 269, 266, 266 ; 
noriM V. BtarJ (1804), 1 Ch., 699 ; a party U 
not in general erimiaaily responsible for the acts 
of his agents and servants unless such acts have 
been directed or assented to by Him ; Cooper v. 
Slade, 6 H. L C, 746, 703, 794. per Lord 
WMislrydale, l.ofd Melville's case, 29 H-w. St. 



T. B., 764; The Quren't ecM, 2 B- ft !) , 306, 
367. See generally, Taylor, Ev., {{ 115, 602— 
606, 906—906; Best, Ev., } 631; PhipMm, 
Ev., 3rd Ed-, 69 ; Powell, Ev., 290 ; Eraos. 
Principal and Agent, 123-200, and panim. ioA 
Ed. ; Beven on Negligence, 271 — 312 ; Rowoe, 
Cr. Ev., I2th Ed., 46 ; Boscoe, N. P. Ev., G9— 
71 ; T. A. Pearson, " The Law of Agency in 
British India," 1890. Bowstead, Dig. of Agency, 
Arts. 79—82, 103, 104. Norton, Ev., 144; as 
to admissions by agents, see ss. 17, 18, jott ; 
and as to notice given to agents, s. 14, pott. 

(7) The liability of co-partners for the act of 
their partner is established on the gftmnd of 
agency, each partner being the agent for the 
others for all purposes within the scope cf the 
joint business: Re CiiniiiitfhiM, supra : Lindley 
on Partnership, 6th Ed., 80—90, 124—263; Pol- 
lock on Partnership; Taylor, Ev., H 743— 752-. 
Roscoe, N. P. Ev.. 71 ; Art IX of 1872 (Conlmrt 
Act), ss. 239 — 266; as to admissions by partners,. 
•es sa. 17, 18, poH. 

(8) As to the general principles of agency ••- 
applied to Companies in the course of, or after, 
formation, see lindley on Company Law, 6th Ed., 
143 — 181 ; Companies can only be bound by the 
acts of their real or ostensible agents : ih., 182 ; 
liability for torts, f*., 206 ; »e« also Act VI c< 1882, 
Act VI of 1887 (Indian Companies): Commm- 
tariesonthe same by L. P. Russell (1888) : aCom- 
pany is not liable for acts done nMns rires, 
Russell, 12 : Brice on «/fto rtres; as to admisstosi* 
by the officers of a Company, see ss. I'. 18, 
pot. 

(9) 5<e s. 10, pot, and notes thereto. 



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[«. 5.] FACTS OF WHICH EVIPKNCK MAY BK GIVEN. 27 

as they affirm positively what facts may be proved, whereas the English law as- 
sumes this to be known, and merely declares negatively that certain facts shall 
not be proved. In the opinion of many others the English law proceeds upon 
sounder and more practical grounds. While importance is claimed for these 
sections in that they are said to make the whole body of law to which they be- 
k>ng easily intelligible, yet such importance cannot, owing to the provisions of 
88. 165 and 167, cause an undue weight to be attached to their strict applications 
when a failure to so strictly apply them has not been the cause of an improper 
decision of the case.' For the improper admission or rejection of evidence in 
Indian Courts has no effect at all unless the Court thinks that the evidence im- 
properly dealt with either turned or ought to have turned the 8cale.(l) A Judge, 
moreover, if he doubts as to the relevancy of a fact suggested, can, if he thinks 
it will lead to anything relevant, ask about it himself.(2) 

5. Evidence may be given in any suit or proceeding of Bvideno* 
the existence or non-existence of every fact in issue, and of SSSfiS'iB- 
8uch other facts as are hereinafter declared to be relevant, su^andrBie- 

1 . , , vsnt flMta. 

and of no others. 

Explanation. — 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. 

lUuMrations. 
(a) A U tried for the murder of B by beating bun with a club with the intention of 
Mosing his death. 

At A' a trial the followin); facts are in issue : — 
A'» beating B with the club ; 
A't causing B'a death by such beating ; 
A'» intention to cause B'a death. 

(6) A suitor does not bring with him,' and have in readiness for production at the 
fint hearing of the case, a bond on which he relies. This section does not enable him to 
pToduce the bond or prove its contents at a subsequent stage of the proceedings, other- 
wise than in accordance with the conditions prescribed by the Code of Civil Procedure. 

Principle. — The reception in evidence of facts other than those men- 
tioned in the section tends to distract the attention of the tribunal and to waste 
its time. Fnutra prdbatur quod probatutn non rdevat. The laws of evidence 
are framed with a view to a trial at Nisi Print, and a proceeding at Nisi Prius 
ought to be restrained within practical limits.(3) 

s. 8 ( " Svidenee. " ) s. 60 ( Oral evidence muM he direct.) 

8. 8 ( " Fact in issue. " ) ee. 64, 165, Pbov, 2. (Proof of document 

s. 8 ( " Pact. " ) by primary evidence.) 

s. 8 ( " Relevant " ) bb. 186, 162 {Judge to decide as to admit- 

•8. 6-66 {"Of the Relevancy of fads. ' ' ) stWity.) 

(1) 8t«ph. Introd., 72, 73; aliter in England. relation to the principal question in dispute and 

(2) lb., 72. 73, 162: i>. IW. p"*'. P«s^, Er., evidence relating to collateral facts vhich will, 
M: u to "indicative " evidence, i6., { 03. if established, tend to elucidate that question; 

(!) Beat, Ev., {2S1; J?. V. i>arM«da«, 11 Bom. andante. Introduction. " Facts, which are not 

H. C. R., 90, 91 (1874), on/c/ Taylor, Ev., f 316; themselves in issue, may aSect the probability 

Jfrnojers of the Metropolitan Atylitm DiOriet of the existence of facts in issue, and these may 

v.{ria,47L.T.(H.L.),29,34,fier LordO'Hagan; be called collateral facts." rirtt Report of the 

•w abo jndgment of Lord Watson as to the Select Committee, 31st March 1871. 
diitinetion between evidence having a direct 



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28 ADMISSIBILITY. [S. 6.] 

SB. 145, 146, 148, 168, 166, 168 (Be- s. 167 {Improper odmiMion or rtjection «/ 

kvaney of questions to witiiesses.) evidence.) 

8. 165 [Judge's power to put questions.) 

Civil Prooedure Code, bs. 66 — 63, 138, 139, 568 (Prodnotion of evidence) ; Crimiiul 
Procedure Code, s. 298 ; Civil Procedure Code, ee. 140 — 146. 187; Criminal Procedure Code, 
s. 369 : Steph. Introd., 12 : Chs. II, III ; Steph. Dig., Art. 2 ; Best, Ev., § 261, p. 261 : Ttylor, 
Ev., § 316 ; Wigmore, Ev., §§ 9—21. 5 

OOMMBNTART. 

" AiiA of no This section theiefoie excludes eveijthing which is not covered by the pui- 

otbers. ^^^ ^j some other section which follows in the Statute.(l) All evidence ten- 

dered must therefore be shown to be admissible under this or some one or other 
of the following 8ections,(2) or the provision of some other Statute saved 
by,(3) or enacted subsequent to, this Act. These words in conjunction with the 
language of other portions of the Act further tend to show that the Court should 
of itself and irrespective of the parties take objection to evidence tendered 
before it which is not admissible under the provisions of this Act. (4) This sec- 
tion must be read as subject to the restrictions of Part II as to proof, and Patt 
III as to the production of evidence. Thus the terms of a contract between the 
parties might be relevant, but oral evidence of it will be excluded if those terms 
have been reduced to writing.(5) Though a document may not be legal evidence 
of a fact within ihe provisions of this Act, it may yet be a document which the 
parties by their contract have made proof of tibat fact. (6) 
▲dmiasibUi- All questions as to the admissibility of evidence are for the Judge.(7) Where 
' a Judge is in doubt as to the admissibility of a particular piece of evidence, he 

should declare in favour of admissibility rather than of non-ad missibility. (8) 
" Under the Evidence Act admissibility is the rule and exclusion, the exception, 
and circumstances which under other systems might operate to exclude are, 

(1) The CMtctor of Oorahhpur r. PotolAar*, ii prcMed by one party, mad objected to by the 
12 A. (1899) at p. 43 ; " but the principle of other, of receiving the evidence at the peril ol the 
exolnsion should not be so appUed aa to exclude party presenting it. " Bnt«ee aho S. t. Paiihm- 
matters which may be etaential for the aaoeitain- das, ' ' the tendency to stray from the issues is so 
ment of truth." S. t. Abdullah,! A.,40{19S6)i strong in this countiy, that any indulgence of 
and set observations on the modem rule as to it beyond the clear provisions of the law is oertain 
admissibility in BUtie v. Albion Life Asmranee to lead to'future embarrassment, " per Weal, J., 
Sodety, L. B., 4 C. F. D., 109. II Bom. H. C. B., 90, 96 (1874): and in criminal 

(2) LtUtraj Ktmr v. Mahpal Sinth, 7 I. A., proceedings, it has been observed, that the necea- 
70, ante ; Abinash Chandra v. Paresh Salh, sity of confining the evidence to the issue is 
9C. W. N., 402, 406 (1904). stronger if possible, than in civil cases, for when 

(8) S. 2, ante. e prisoner is charged with an oSenoe it is of tlie 

(4) Field, Ev., 668; Whitley Stokes, 854. See utmost importance that the facts proved should 
following paragraphs. be such as he can be expected to come prepared to 

(5) 8. 91, post; and cf. ss. 92, 115—117, 121— answer, 3 Buss. Cr., 368, 6th Ed., cited in & ▼. 
127. Parbhudas, 11 Bom., H. C. B., 93(1874); Boscoe, 

(6) Oriental Qovemaient Security Life Atsur- Cr. Ev., 86, 12th Ed., 78-79. " It is of high im- 
anet Companj/, Ld. v. Sarat Chandra, 20 B., portance that no security for truth, especially ia 
103 (1896). criminal cases, should be weakened. On oar 

(7)8. 136, post. rules of evidence, said Lord Abinger, the property, 

(8) The CMtetor of Oorakhpur v. Palatdhari, the liberty and the lives of men depend," p*r 

supra, at p. 26: and Uoriartyy. London C. d) D. Jardine, J., in R. v. Bamchundra Oovind, 19 B., 

By. Co., L. B., 6 Q. B., 314, 323, per Lnsh, J. : 766 (1896). For suboidinate Courts whose jadg- 

' ' I also think on further consideration the evi- ment is subject to appeal the safest course m 

dence was receivable. I had formed no defi- cases of doubtful relevancy of evidence isto eosi- 

nite opinion on the subject at the trial. It was a template the possibility of the evidence being 

new point, and I adopted what I centered to admissibleand todeal withthecaaeonsuohasoip- 

be the usual and the safer couree, where evidence position— afodSawoo v. Deonak, 21 B., 698(1896). 



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[S. 5.] ADMISSIBILITY. 2i> 

under the Act, to be taken into consideration only in judging of the value to be 
allowed to evidence when admitted. "(1) " The objectof a trial in every case is 
to ascertain the truth in respect of the charge made. For this purpose it is 
necessary that the Court should be in a position to estimate, at its true worth, 
the evidence given by each witness, and nothing that is calculated to assist it 
in doing so ought to be excluded, unless for reasons of public policy, the law 
expressly requires its ezclu8ion."(2) The Judge's apprehension of possible 
ds^r in admitting certain evidence cannot create a rule for excluding it. "(3) 
"Whether the Court does or does not consider evidence given on another occa- 
sion and between other parties approjpriate and valuable for the decision of the 
case which is before it, is not of itself a reason for the admission or rejection of 
mch evidence. Tlie Court is bound to try the matter between the parties who 
are before it upon such evidence as those parties in their discretion produce 
for the purpose and at the time when the evidence is tendered to decide whether 
or not it is legally admissible."(4) The value of evidence cannot affect its admis- 
fflbility.( 5) Questions as to^the tulmissibility of evidence should be decided as 
they arise and should not be reserved until judgment in the case is given.(6) 
Where the question was as to the admissibility of certain documents it was re- 
marked : — " What, if all such documents are excluded, shall we have left but 
oral evidence? That this is not a desirable result probably no one will deny ; 
and in all discussions on the law of evidence, it seems to me very desirable to 
consider how that result can be avoided."(7) No argument in favour of the ex- 
dosion of evidence can be founded on the inability of Judicial Officers to per- 
form the task of attributing to it its proper influence in the decision : to exclude 
evidence because in some cases Judges might found upon it a wrong conclusion, 
would be utterly inconsistent with the assumption on which all rules of law are 
founded that the constituted tribimals are fairly competent to carry them out.(8) 
"To admit documents, not strictly evidence at all, to prop up oral evidence too 
weak to be relied upon, is not a course which their Lordships would be inclined 
to approve; and none of the chiUahs which have been laid aside by the High Court 
are uiown to have been admissible in evidence according to the laws of evidence 
legulating the decisions of those Courts. It would expose purchasers to much 
danger if their possession could be disturbed by inferences from, or statements 
in, documents not legally admissible in proof against them."(9) Where a Judge 
la influenced in his estimate of parol testimony by the result of his considera- 
tion of documents which he ought not to have dealt with as evidence, there 
is no proper trial of the case.( 1 0) Where certain decisions of the Privy Council 
were referred to, in which it was said that with regard to the admissibility of 
evidence in the native Courts in India no strict rule can be prescribed, it waa 
remarked as follows : — "But these cases, it must be borne in mind, occurred 
many years ago, at the time when the practice in the Mofussil in this respect was 
very lax and before the Evidence Act was passed ; and the observations of the 



(1) B. T. Mom Puna. 16 B., 661, 668 (1892). st p. 169 (1867), per Hukby, J. ; for the prooe- 

it) B. T. VUamchand, 1 1 Bom., H. C. B., 121 dure with regard to the admission of documentary 

1874). evidence, see Manton v. Oolam Kebria, 16 W. B., 

(3) Ptr LordDenman in Wright r. Btckttt,\ 490 (1871); I—w Chvnder v. Butteet LaU, . 
Moo. * R., 414. W. B., 676 (1868). 

(4) Qimektni Sirear v. Bam Narain, 9 W. B., (8) lb. ; (and as to standard of value as applied 
<87 (IS68). to evidence, ib. at p. 169). 

(.M B. V. BoitH, 12 Cox., 630. (9) Eehnme Sing v. HuraMl Stal, 11 W. K. 

IS) JainBai v. Bhnbatamn Nundy, 17 C, 173 (P. C), 2 (1868) s. c, 12 Moo. I. A.. 136 (" Each 

(18$7) ; Bamjiban Sertncgy v. Ogkur Nath, 2 C. relaxation is apt to become a precedent for an- 

W. N., 188 (1898) ; Bama Kamnting v. Mangal other, " »i. at p. 4) ; see notes to s. 36, pott. 
Sing, 1 A. L. J. Diary, 224 (l904). See Wigmore, (10) Boidonath Parooyt v Bu$tiek Lall, 9 W. R., 

Bv., 1 19. ' 274 (1868). 

(7) Ooftenatk Sngh v. Anundmoyte, 8 VV. R., 



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30 ADMISSIBILITY. [s 5.] 

Privy CounciK 1) were made, as I humbly couceive, not as approvbg of this laziiy 
of practice, but rather as excusine it, upon the ground that the l£>fu88il Courts 
were not at the time so sufficiently acquainted with our English rules of evi- 
dence as to be able to observe them with anything like accuracy. I conceive 
that one great object of the Evidence Act was to prevent this laxity, and to in- 
troduce a more correct and uniform rule of practice than had previously pre- 
vailed. "(2) " In deciding the question whether certain evidence be admissible 
or not, it is necessary to look at tne object for which it is produced, and the point 
it is intended to establish : for it may be admissible for one purpose and not 
another."(3) " In civil and criminal cases there is no difference in tiie rules as to 
the admissibility of evidence, though there may be a difference in their appli- 
cation ; and it may be that a piece of evidence admissible in either clat» of 
cases may not be sufficient in a criminal case, that is, without further 
evidence."(4) In cases tried by jury it is the duty of the Judge to decide all 
<)uestions of admissibility ; and in his discretion to prevent the production of 
inadmissible evidence, whether it is or is not objected to by me partie8.(5) 
It is the duty of the Appellate Court to see that this judicial discretion is 
exercised in a proper manner.(6) " The moment a witness commences giving 
evidence which is inadmissible, he should be stopped by the Court. It is not 
safe to rely on a subsequent exhortation to the jury to reject the hearsay evi- 
dence and to decide on the legal evidence alone." (7) The duty of a Judge in 
civil cases is nowhere laid down so distinctly as this ; and it has been said that 
there may be some doubtastowhether, and,if atall, to what extent, a Judge 
ought to interfere where no objection is raised by the parties. But if t£e 
Courts themselves be passive in this respect, the utility of the Code of evidoioe 
may be seriously impaired. Further, having regard to the imperative language 
of 5th, 60th, 64th, 136th, and 165th sections (8) and of other portions of the 
Act, it would appear that it was the intention of the Legislature that a Gvil 
Court should, irrespective of objections made by parties, compel observance 
of the provisions of the law.(9) Procedure as to admission and rejection of 



(1) Vnidt Bajaha t. Pemmatamy VeHhUairy, 7 (6) B. t. Amrita Oovinda, 10 Bom., H. C B. 
H. I. A., 128 at p. 137 (1858) b. o. 4 W. R. 498 (1878). 

<P. C), 121 yaratunl]/ Lutckmeedavamah r. Fat- {^) S. r. Pittambur Sirdar, 7 W. B., 0.,26 

tamoNaidoo, 9 U. J. A., 66 at p. 90 (1891) 8. c, (1867). Where hearaay w not adnuMible m 

1 W. R. (P. €.), 30 ; Boodkmrai* Singh v. Om- evidence it should not betaken down : i'ttoittr 

roo5.»i^», 13M. X.A.,629(1870),». c, 16W. R., Dott v. Buttun Buttub, V/.H., 1864,213; »n 

P- C., 1. (1 pnort consent to abide by the teatimony of • 

(2) Gu)j« Latt V. FaUeh lull, 6 C. at p. 193 certain witness cannot bind the consenting party 
<1880), per Garth, C. J., and as to the reception to hearsay testimony, but only to such evideBoe 
of loose evidenoe, v. ib. ; Uaruhur Majoomdar as is legally admissible ; Lucittmente t. 5>«s- 
T. Chum ilttjhee., 22 W. R., 385, 356, 357 (1874). kuru, 2, W. R., 262 ; B. t. Sktik Mogon, 6 W. 

(3) Taylor v. WiOant, 2 B. 4 Ad., 846, 865, R.,Cr.! Jt. v. AmiyoiwJ, 10 W.B.,Cr., 76(1868); 
ftr Lord Tenterden, C. J. B. v. Katty Churn, 7 W. R., Cr., 2 [hearsay eri- 

(4) «. T. MaUory, 15 Cox., 450, 460, ptr denoe prohibited]. Re iCedor AoM, 18 W. B., Cr., 
Grove, J., V. o«l«. no«M los. 3, and cases there 16 (1872); B. v. C*iM«f«f A'ooMor, 24 W. B., 
cited ; and see also A v. Francit, 12 Cox. C. Cr., 77 (1875). 

C, 612, 016; Lord MtMlU't Trail, 29 How. (8) v. e. S 'and of no oAtn" ; s. 60^ "ocml 

St. Tr., 740, 764 [a fact must be established evidence mttst be direct"; s. 64, 



by the same evidence, whether it is to be foUow- muH be proved by primary evidenoe except, 

ed by a criminal or civil consequence; but it *c." ; s. 165, " nor «Aa2< be dispense with primary 

is a totally different question, in the considers- evidence, &c. ; " s. 136, " sikofi admit evidence 

tion of criminal as distinguished from civil if relevant and not dAannse. " 

justice, how the accused may be affected by the (9) Field, Ev., 668; see pp. 667, 668, 671—673, 

fact when so established ; per Lord Erskine, L. 637, where the question is discussed : and ae* 

C] Best, Ev., { 94. Whitley Stokes, 864. On the other hand, ft baa 

(6) Cr. Pr. Code, s. 298. See Best, Ev., f been said that, subject to certain well-reoognised 

97, cited, pott, in no<e 1, p. 10. exceptions, the general principle, Omius coutn- 



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[S. 5.] OBJECTIONS TO EVIDKNCB. 31 

documents is dealt with in the undermentioned sections of the Code.(l) 
The Judge is to decide as to the admissibility of evidence and may ask in 
what manner any evidence which is tendered is relevant. He is bound to try 
a collateral issue when the reception of evidence depends on a preliminary 
question of fact.(2) The rules of evidence cannot be departed from because 
there may be a strong moral conviction of guilt. The moral weight of evi- 
dence is not the test.(3) 

The proper time to make an objection is in the Court of first instance. Otdeotiona 
For, if it is made at the time when the evidence is tendered, it may be in the ''"'*'^*'' 
power of the party tendering the evidence to obviate the objection if a valid 
one.(4) It has been held that where a valid objection is taken to the admis- 
sibility of evidence, it is discretionary with the Judge whether he will allow 
the objection to be withdrawn.(5) Some latitude should be allowed to a mem- 
ber of the Bar, insisting in the conduct of his case upon his question being 
taken down or his objections noted where the Court thinks the question 
inadmissible or the objections untenable. There ought to be a spirit of give 
and take between the Bench and Bar in such matters, and every little persis- 
tence on the part of a pleader should not be turned into the occasion of a cri- 
minal trial unless the pleader's conduct is so clearly vexatious as to lead to 
the inference that his intention is to insult or to interrupt the Court.(6) 

An objection may be waived, but waiver cannot operate to confer on evi- 
dence the character of relevancy ( v. poa ). If the objection is primd facie 
sustainable, then the opponent must show the Court that the evidence 
satisfies the law. (7) If, however, the evidence appears to the Court to be primd 
facie admissible it is for the objector to make out the grounds of his objection. 
The objection should be specific. It should declare that the evidence vio- 
lates a named principle or rule of evidence. The cardinal principle is that a gene- 
ral objection if overruled cannot avail. The only modification of this broad rule 
being that if on the face of the evidence in its relation to the rest of the case 
there appears no purpose whatever for which it could have been admissible, 
then a general objection, though overruled, will be deemed to have been suffi- 
cient. The opposing counsel can make no reply to a general objection except to 

nuMBtKrrorem, spplie* to evidence in civil caaes ; (1) Civ. Pr. Code, S8. 140 145. 

» maxim which ia in one Mnae cf doubtful appKca- (2) S. 136, fott ; and me b. 162, poat ; Cleave 

tion under thia Act «« to orinmud c«M» v. poet, v. Jonee, 7 Ex., 421 ; PhilUpe v. Cok, 10 A. ft E., 

p. 33]. Unch inadmiwible evidence is con- 106. 

stantly received in practice, becanse (he opposing (3) S. v. Baijoo Chowdhree, 28 W. B., Cr., 43 

connwl either deemi it not -worth while to object, (1876) ; when it was objected that the moral 

or thinks its reception will be beneficial to his weight of certain evidence not legally admissible 

client. Best, Er., f 97 : In Skeeiul Pertliad v. was almost irresistible. Lord Campbell, C. J., 

Jntwujog MuUick, 12 W. R., 244 (1869), the Court said : " The moral weight of evidence is not the 

Mid : " It is somewhat difficult to ascertain ex- test. Many facts are excluded by law, which 

Mtly how matters stood before the Judge : but might be important on account of the inconve- 

it rather appears that the objection now taken nience of admitting them : " S. v. Oidy, 6 Cox. 

u to there being no evidence to bring (ho case C. C, 210, 213; " convictions must be baaed 

Tithin cl, 1, s. 17, Act X uf 1869, was not taken on substantial and sufficient evidence not merely 

Iwfare the Judge. There is no doubt that even moral convictions ;" S. v. Sorob Roy, S W. R., 

if the evidence on the record were in itself insnfS- Cr., 28 (1866) ; as to judicial disbelief, sec dicttOH 

vient, the Judge might properly have decided the in Re Ndbodoorga, 7 C. L. B^ 391 (1880), 

ose opoa the evidence such as it was if the defen- (4) Kitten Kaminee v. Ram Chunder, 12 W. K, 

dsDt had waived his objection to its insufficiency 13 (1869) ; Sheetul Perthad v. Junmejoy MvUick 

and consented to its being taken as sufficient. " 12 VV. R., 244 (1869); Wigmore, £v., { 18. 

In this caae it seems the party dispensed with (6) Barbat v. Alku, 7 Exch., 409. 

proof, and the case was not one in which evidence (ti) Per Cur, in In re DatUUraya, 6 Bom. h. 

was wrongly admitted. As to objections by par- R., 641 (1904). 

ties, and admissibility of evidence on appeal, tee (7) See Wigmoie, £v,, { 18. 
next paragraph. 



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32 OBJECTIONS TO EVIDENCE. [s. 5.] 

throw the whole responsibility upon the Judge at once or else begin syste- 
matically and argue that under any possible objection the testimony should 
come in. Many trials under such a system would practically never end>(l) 

When dealing in appeal with the admissibility of evidence admitted 
by the lower Court) a distinction has been drawn between the cases (a) in 
which evidence whoUy irrdevant has been erroneously admitted by the lower 
Court ; and (b) those cases in which a relevant fact has been erroneously aQow- 
ed to be proved in a manner different from that which the law requiiee ;(2) 
e.g., where secondary evidence of the contents of a document has been admitted 
without the absence of the original having been accounted for. (3) In the fint 
case it is obvious that the decree can be supported upon relevant evidence 
only [cf. s. 165, Prov. 2, fost). An erroneous omission to object to the 
admission of irrelevant testimony does not make it available as a ground of 
iudgment.(4) Nor can evidence be nven which the law excludes as tiiat a 
person who is liable on a note of hand signed it as surety only.(5) The Act 
(s. 165) also enacts that the judgment must be based upon fact« duly proved, 
that is, proved in accordance with the provisions relating to proof contained 
in the Act. Where no proof has been offered, as where a document has been 
admitted in the lower Court without being proved, the Court of appeal may 
rqect the document notwithstanding want of objection by the other party. (6) 
Wliere proof has been given of a document but the proof is primd facie impro- 
per, an apparent exception exists in civil suits based on principles akin to 
estoppel ; as where no objection is taken to secondary evidence of documents 
being given.(7) In this case want of objection may mislead the party tendering 
the evidence and prevent him from producing primary evidence, or from show- 
ing that the secondary evidence offered is admissible- (8) So it has been 
held that if no objection is taken in the Court of first instance to the recep- 
tion of a document in evidence (e.g., as being the copy of a copy) it is not 
within the province of the AppeDate Court to raise or recognise it in 
appeal.(9) Where also the Court of first instance admitted in evidence the 
depositions of certain witnesses in a previous litigation and no objection 
was taken, but in appeal it was objected that the witnesses who were aUve 
ought to have been called and examined and the Court excluded the evidence, 

(1) See Wigmore, Et., { 18 and see per l.ord from any quettion of eatoQpel aa where the objec- 

Brougham in Bain v. WhiUhaven F. B. Co., tioa is to the proof ; or where the reosptioo oltlw 

H. li. C, 1, 16. evidence has affected the position of the other 

(9) Field, £▼., MS ; and *ole to a. 167, fOH. party, the question of admissibility most be deter- 

(3) As to parol evidence of written contntot mined by tiie proviiiona of the Act. 
admitted without objection, see Article in 14 {B)BarakCltaHdy. Bii)HmCha»ira,8C.W.II., 
Mad. L. J., 189. 101, 102 (1903). [Inadmissibility of oral erideaee ; 

(4) A, B. Hitter ▼. £afrt( Maiho Dai, 19 A., (question not raised in either of lower C^>arte, bat 
76 ; s. c, L. B., 23 I. A., 106 (1896) ; the deci- taken and allowed in appeal.] 

sion in Ltuhmetikur t. Ruthoolmr, 24 \V. B., 286 (6) KaiUo Pnului v. Jagal CImuin, 23 C. 

(187S), appears therefore to be incorrect. In 386, 338 (1895); in this case the eontentioii that 

Pudmavatt v. DoUar Singh, 4 H. I. A. at pp. a map was admissible in evidence was held to be 

286, 286 (1847) , s. c, 7 W. R., P. C, 41, the open to the appellant on special appeal, although 

Privy Council observed that the evidence ' ' was, he had not appealed against an order of remaad 

however, received below, and therefore we do not made by the lower Appellate Court rejecting tke 

apprehend that we can treat it as not being evi- map as not being admissible ; but see Oil isJsa 

dence in the cause. " These observations appear, Chandra v. Bajendra Naih, I C. W. N., 630 (1W7). 

however, to liave referred to the weight and not (7) See Bobinton v. Daviu, S Q. B. D., 96 

to the admissibility of the evidence. See also (1879),wheresecondary evidenceof thecootents of 

NinfoKa V. Bharmapfa, 23 B., 99 {1891). It has written documents was received under a ( 



been said that a party who has filed an exhibit sion to take evidence abroad without objectioa. 
cannot plead its inadmissibility if the other party (8) Kieem Kaminee v. Bam Chanier, i 



seeks to use the document against Urn. Baman v. (9) Chimnaji Oovind v. Dkunhir Dhoadeu, 

Sterttary of State, Had. L. J. Dig. 65. But apart 11 B., 320 (1886) followedin laktkman v. .imrit. 



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[8.5.] OftlKCTIONS TO KVIDENOI:;. 33 

it was held in second appeal that, as in consequence of the want of objec- 
tion the party tendering the evidence had cancelled his application to have 
his witnesses summoned, the lower Appellate Court ought either to have 
accepted the evidence or if it required the party tendering the evidence 
to bring the witnesses before it for examination, it was bound to give him an 
opportunity of doing so, and that in no case was it justified in excluding the 
evidence altogether and deciding the case on the remaining evidence on the 
record. The appeal was remanded.(l) But of course the Appeal Court has a 
perfect right to attach such weight to the documents as it thinks proper, or to 
say whether they ought to be treated as evidence as against particular parties 
to the suit.<2) 

Objections to the admissibility of documents attached to the return of a 
commission if not previously made cannot be taken at the hearing of the suit.(3) 
If when evidence is taken before Commissioners a document is tendered and 
objected to on any ground, the opposite party is not precluded from 
objecting to the document at the trial on any other ground. It is not 
necessary to state all the objections to the admissibiUty of a document 
when it is first tendered, but the party objecting is at lioerty to take any 
fresh objection whenever the party producing the document tenders it in evi- 
dence.(4) 

In the undermentioned case,(5) the Privy Council held that the exa- 
mination of a material witness of the plaintiff in the i^bsence of the defendant, 
his vakil having been removed and no other vakil then acting for him, was such 
an irregularity that if objected to at the proper time would have been fatal 
to the reception of such evidence ; but that no objection having been urged 
during the time or until an appeal was interposed, the objection came too late 
and could not be sustained as, notwitbstau(&ng such irregularity that fact did 
not taint the whole proceedings so as to prevent the plaintiff recovering upon 
the other evidence which was sufiScient to establish his case. 

It has been held that the ground of waiver cannot be allowed to prevail in 
a criminal ca8e,(6) and that a prisoner on his trial can consent to nothing.(.7) 
As to objections to the reception of evidence by the Court itself {see the 
preceding paragraph) ; and as to the procedure when a question is objected to 
and allowed by the Court {see the Civil Procedure Code).(8) A Court is bound 
to decide upon the evidence without reference to any previous arrangement 

24B., S«e(1900):inttuBthe copy from which the f"j,6) S.r. AmritaOovinda, 10 Bom. H.C.R.,i9T, 

copy w«a taken had beea filed in a suit between 498 (1873). On the qaestion how {ar the roles 

the predecesson in title of the parties : Akbur AH of evidence may be relaxed by consent, Hr. Best 

T. Bhfta Lai, 6 C. (1880) at pp. 669, 670 ; Kissen remarlu : — " In criminal cases at least in treason 

KaaHUM V. Bam Clundtr, 12 W. B., 13 (1869) : and felony, it is the duty of the judge to see that 

•a which suit the case was renuknded with liberty the accused is condemned according to law ; 

to mpply the necessary proof ; see Singavca and, the roles of evidence forming part of that 

T. Btiarmapfa, 23 B., 6S (1897); we note to s. law, no admissions from him or his counsel will 

165, foU. No objection should be allowed to be received. " % VI : see also s. 66, poit. 

be taken in the Appellate Conrt as to the admiisi. (7) S. v. Buhtmatk, 12 W. R., Cr., 3 (1869) ; 

bilityofacotqrofa document which was admitted AUomey-Oentralof New SouthWaU* v. Bertrand, 

in evidence in the Court below without any ob- 36 L. J., P. C, SI s. c, L. R., I. P. C, 53S, 

Section. Kithori Lai v. BakM Dai, 31 C, 15S see also S. v. A'avroji DadiAhai, 9 Bom. H. C. R., 

(1903), dissenting from Kamethtr Penkad v. 3S8, 383 (1872) ;«. v. £Ao2aiui(A, 2 C, 23(1876) ; 

AmamttBa, S6 C, 53 (1898). ft. v. AlUn, 6 C, 83 (1880) ; HoMein Buluh v. Jt., 

(1) Labhrnan v. Amrit, 24 B., S6 (1900). 6 C, 96, 99 ; as to objections, we observation of 

(2) AOitr AH v. fiAyea Lai sapra. Trerelyau, J., in Oi'rts* CKutidtr v. B., 20 C, 



' 'f (3) SinUlitfv. WhttUr,^ C. L. R., 109 (1880). 861 (1893); Beet, Bv., § 97 ; as to admissions of 

',4' (4) BaUi V. Oat Kim, 9 C, 939 (1883). fact by legal practitioners, tee ss. 17, 18,68, post. 

' . f (5) Bommaraaat Ba^dnr v. Kangatamy 3fu- (8) Civ. Pr. Code, s. 187 : «/. abo s. 369, Cr. 

"'^ dWy, 6 M. I. iu. 8» (1886). Pr. Code. 



W, I.E 



a 



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34 CONSTITUBNT FACTS. [s. 6.] 

between the parties as to the mode in which the evidence is to be dealt witl».(l) 
Upon the question of placing a favourable construction on doubtful evidence 
BO as to entitle the Court to treat it as substantive evidence in the case and 
not to exclude it as inadmissible ;(2) and as to the case where both parties 
have put indifferent portions of inadmissible proceedings and rested arguments 
thereon,(3) {see the cases noted below.) 

luievwDcir 6. Facts which, though not in issue, are so connected 

formins with a fact in issue as to from part of the same transaction, 
"Mmmct^are relevant, whether they occurred at the same time and 
place or at different(4) times and places. 

Ittuttraliona. 

(a) A it 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) 

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

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

(d) The question is whether the owtain goods ordered from /i were delivered to il. 
The goods were delivered to several intermediate persons successively. Each delivery is a 
relevant fact.(7) 

Prinolple. — If facts form part of the transaction which is the subject of 
enquiry, manifestly evidence of them ought not to be excluded. (8) Moreover, 
such facts, forming part of the res geeta in most cases could not be excluded 
without rendering the evidence unintelligible,(9) for every part of a transac- 
tion is connected with every other part as cause or effect The point for deci- 
sion will always be whether they do form part, or are too remote to be con- 
sidered really part of the transaction before the Ck)urt.(lO) 



(1) Qeoroo Perthad v. Bykunto Chandtr, 6 W. (6) v. s. 10, pott. Thst war wu vaged it one 
R., 8S (1866). of the facta in iraue. These oooarrenoes ue put 

(2) Dmrha D<u v. ^iK Bahih, 18 A., 92 (I8»5). of that fact. 

(3) Bir Chander v. Blutiui Dkar, 3 B. L. R., (7) As being part of the fact in inae, did the 

A. C, 217 (1869). goods pass to A. 

(4) Thns where a man committed three bar- (8) See Norton, Ev., 101. 

glaries in one night, and stole a shirt at one place (9) Roscoe, Cr. Ev., 79, 12th Ed., Acta, declars- 

and left it in another, and they weru all so eon- tions and circumstances which conMvit or oc- 

nected that tha coui-t heard the history of all three company, and explain, the fact or tnnaootioo 

burglaries. Lord Ellenborough remarked that "if in issue, are admissible as forming part of the ret 

crimes do so intermix, the Court must go through fttla. The term res getUB, though genenOy 

the detail. " X. v. WhiUy, 2 Lea., 98S, cited in applied to a fact or transaotiOD in issue, may be 

B. V. Vafinm, 16 B., 431 (1892). used in the above connection of any material 

(5) See /* re Sturat DMni, 10 0., 302 (1884) ; fact. Phipson, Ev., 3rd Ed., 46. 

B. V. ^oMrajn, 15 B., 491, 496 (1890) ; as to ex- The earlier term was res ga/a ; see. oa to 

elamations o* mere by-standers, see B. v. Fouku, the history of this ' ' catch oU ' ' i^raae, Thayer's 

eitsd StepK Dig., Art. 3, i]hist.(a) ; UUnt v. Cases on Evidence, 629 ; same in American Law 

lA—ltr, ? H. * N., 786 ; .Bemtiam v. CartmitU, 6 Review, XV, 6, 81 ; Wigmore, Ev., { 1796. 

B. * 8., 1 ( Tkt Sehtmlba, Swab., 521 ; Wharton (10) Norton, Ev., 101. 
Bv., { 260. 



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[b. 6.J CONSTITUENT FACTS. 35 

«. 8 ( " Fact. " ) 8. 8 ( " Relevant. " ) 

*. 8 {"Fact in it»*e. ") 

Steph. Dig.. Art. 3 ; Rosooe. Cr. Ev., 8», 12tb Ed.. 79 ; Stepb. Introd., Ch. Ill : 
Phipson, Ev., 3rd Ed.. 46; Norton, Ev.. Ill; Canningham, Ev.. 87; Whitley Stokes, 
«54 ; Taylor. Ev., $§ 320. 326—328 ;' Wharton, Ev.. § 258 ; Thayer's Cases on Evidence. 629; 
Rice on Evidence, 369.392. 

OOMMBNTART. 

A tiansaction is a groap of facts so connected together as to be referred to paota form- 
ty a single legal name, e.g., a contract, tort or crime. Whether any particular JS5,5*trana- 
fact is, or is not, part of the same transaction as the fact in issue is a question of aotlon. 
law upon which no principle has been stated by authority and on which single 
Judges have given different decisions.(l) The area of events covered by the 
term re* getUe depends upon the circumstances of each particular case. The re$ 
getUe may be defined as those circumstances which are the automatic and un- 
designed incidents of a particular litigated act and which are admissible when 
Illustrative of such act. These incidents may be separated from the act by a 
lapse of time more or less appreciable. A transaction may last for weeks. The 
incidents may consist of sayings and doings of any one absorbed in the event 
whether participant or by-stander ; they may comprise things left undone 
as well as things done. They must be necessary incidents of the litigated 
^ct in the sense that they are part of the immediate preparations for or ema- 
nations of such act and are not produced by the calculated policy of the 
actors. They are the act talking for itself, not what people say when talking 
about the act. In other words, they must stand in an immediate causal 
relation to the act — a relation not broken by the interposition of voluntary 
individual weariness, seeking to manufacture evidence lor itself. Incidents 
that are thus immediately and unconsciously associated with an act, whether 
such incidents are doings or declarations, become in this way evidence of 
the character of the act. They are admissible though hearsay, because in 
such cases it is the act that creates the hearsay, not the hearsay the act. 
It is the power of perception unmodified by recollection that is appealed to ; 
not of recollection modif3dng perception. Whenever recollection comes in, 
whenever there is opportunity for reflection and explanations — then state- 
ments cease to be part of the res gesUe. Declarations to be admissible must 
be made during the transaction. If made after its completion they are too 
late ; but it is no objection that they are self-serving. (2) Whenever a fact is a 
link in a chain of facts necessary to establish another fact, it is, of course, 
admissible. In some cases an offence consists of a series of transactions : in such 
cases evidence is admissible of any act which goes to make up the offence. (3) 
A fact besides being relevant under this section, by virtue merely of its being 
so connected with a fact in issue as to form part of the same transaction, may 
also be relevant on the grounds mentioned in one or other of the succeeding 
sections. So where several offences are connected together and form part 
of one entire transaction, then the one is evidence to show the character of the 
other.(4) And where the only evidence against a prisoner charged with having 

(1) steph. Dig., Art. 3j S.v. 3t. J. Vf/apoorg of Sapreme Court of Georgia cited in Rice, Ev.. 
Moeddiar, 6 O., 655. 662 (1881) ; e/. use of word 375. *' the oiroamstanoes. facte and declarations 
in n. 235, 236^ Cr. Pr. Code, and lee R. v. Fakir- which grew out of the main fact, are contempor. 
opu, 15 B., 496. 502. anpra ; R. v. Vafiram, aneoos with and serve to illustrate it« character 
I« B., 414, 424 (1802) ; S. v. Dwarkatiath, 7 W. R., ae pwt of the ru ffUt." 

Ot., 15 (1807) ; R. ▼. Sami, 13 M., 426 (1690). (3) Roecoe, Cr. Ev., 79, 12th Ed. ; Norton, 

The term " transaction" occurs in s. 13, pott, Er.. 102. 

aad a* used io that section was defined in Oajju (4) R. v. Ettit, 6 B. ft C, 146, cited in R. v. 

J«a v. FatUh Latt, 6 C. at p. 186 (1880). />ar»Ai«iiM. 11 Bom. H. C. K., 94 (1874) ; e. s. 

(2) Wharton, Ev., ^ 258-262. Stt definition 14, jxx/. Stt also Introduction, anU. 



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36 CAUSATION. [8 7.] 

voluntarily caused grievous hurt was a statement made in the presence of 
the prisoner by the person injured to a third person immediately after the 
commission of the offence and the prisoner did not, when the statement was 
made, deny that she had done the act complained of, it was held that the 
evidence was admissible under this section and s. 8, illust. {g) of this Act.(l) 
The doctrine of election (in criminal trials) is closely coimected with that 
about the admissibility of collateral facts, which, though not in issue, may be 
relevant under this section if they form part of the same transaction.(2) The 
cases cited below may be further consulted in connection with this section .(3) 
Certain persons were convicted of robbing and murder, and on ita appearing 
that the two offences constituted parts of the same transaction ; hdd that 
recent and unexplained possession of the stolen property which would be 

£ resumptive evidence against the prisoners on the charge of robbing was simi- 
alj evidence against them on the charge of murder.(4) 

FMUwhiota 7. Facts which are the occasion, cause, or effect, im- 
•loaLOMiw mediate or otherwise, of relevant facts, or facts in issue, or 
Srtsin **' which constitute the state of things under, which they hap- 
pened, or which afforded an opportunity for their occurrence 
or transaction, are relevant. 

lUuitrationa. 
(o) The question is, whether A robbed B. 
The facts that, shortly before the robbery. B went to a fair with money in hi* 
possession, and that he showed it, or mentioned the fact that be had it, to third 
person, are reIeTant.(6) 
(6) The question is whether^ murdered B. 
Marks on the ground, produced by a struggle at or near the place where the 
murder was committed, are relevant facts.(6) 
(e) The question is, whether A poisoned B. 
The state of B's health before the symptoms ascribed to poison and habit« of 
B, known to A, which afforded an opportunity for the administration of poison, 
are relevant facts.(T) 

Principle. — The reason for the admission of facts of this nature is that, 
if it is desired to decide whether a fact occurred or not, almost the first Matural 
step is to ascertain whether there were facts at hand calculated to produce ot 
afford opportunity for its occurrence, or facts which its occurrence was cal- 
culated to produce. Further, in order to the proper appreciation of a fact, it 
is necessary to know the state of things under which it occurred.(8) 



lamie. 



(l) Inre5iin>(V>Aoini, 10C.,M2 (1884), «ii|ira. (5) As giving occasion or opportunity or 

(S) B. T. Fakirava, 15 B., 4M, 602, ntpra ; see being the cause. Me Norton, Er., 103 ; Cunning- 

also ss. 235, 239, Cr. Pr. Code ; Taylor, Er., §329. bam, Ev., 90 ; Whitley Stokes, 855. 

(3) R. y. Birdttye, 4 C. ft P., 386; B. v. Bear. (6) As effects of the fact in issue : this is sa 
den, 4 Post, ft Fin., 76 ; B. t. Mlli*, supra ; B. r. instance of real evidence : see Norton, Er., 103 ; 
CoMsn, 3 Fost. ft Fin., 833 ; B. t. Tounf, R. ft Best, Et., § 92 ; as to proof from foot-mark ; 
R., C. 0. R., 280, note ; B. t. Wmhnod, 4 C. ft f« Wills" C'ir. Ev., 641, 126, 291, 305. 

P., 647; B. r. frilUamf, Dears, C. C, 188; B. {') As constituting the state of things under 

Booney, 7 C. ft P., 617 ; B. v. Wkilty, 2 Lea., 985 ; which the alleged fact happened, and ss afford- 

B. T. Long, 6 C. ft P., 179 ; B. v. Firth, L. R., 1 ing opportunity. 

0. C. R., 172 ; B. v. 8aUM>urt, 5 C. ft P., 155, (S) Cunningham, Et., 90, 91 ; Steph. Introd., 

167 : see cases cited in Steph. Dig., Art. 3 ; Ch. Ill ; knowledge of oircomstanoes enabling •- 

2 East. P. C, 934. person to do the act is thus also relevant [ilhist. 

(4) B. T. Sami, 13 II., 426 (1890). (c).] 



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[B. 7.] CAUSATIOS. S7 

1. 8 (" Fact. ••) s. 3 (•• ROewHU.") 

i. 8 (" Fad in utne.") 

St«ph. Dig.. Art. 9, aad note; Stepb. Introd., Cfa. Ill; Phipson, Ev.. 3rd Ed., 
M, 109 ; Norton, Et.. 103 ; Cuaningham, Et., 90 ; Wigmore, Ev., H 131- 134 ; Best. Ev.. 
1453; Wills' Circ. Et., pattim. 

OOMMBNTART 

Leavjng the transaction itself the present section embraces a larger o»aafttt<m 
area and provides for the admission of several classes of facts, which, though 
not possibly forming part of the transaction, are yet connected with it in 
particular modes {viz., as occasion, cause, effect ; as giving opportunity for 
its occurrence, or as constituting the state of things under which it hap- 
pened), and so are relevant when the transaction itself is under enquiry. 
These modes — occasion, cause, effect, opportunity — are really different 
aspects of causation. When an act is done and a particular person is alleged 
to have done it (not through an agent but personally), it is obvious that 
his physical presence, witiiin a proper range of time and place forms one 
step on the way to the belief that he did it. If it be awed whether the 
mere possibiUty involved in opportunity is not too slender and whether some- 
thing more than mere opportunity for exclusive, exclusive opportunity, should 
not first be shown; the answer is that by the ven^ showing of an oppor- 
tnnity countless hypotheses are negatived ; and the person charged who 
might otherwise have been one of innumerable other persons at the time is 
diown to have been one of the limited number who were in a position to 
do this particular act. In short, opportunity alone, and not exclusive 
opportunity, is a sufficient showing for aamissibility.(l) On the other hand no 
circumstance can be more infirmative of a charge than that the accused 
had no opportunity of committing the crime. On the strength of this rests 
the force of a defence founded on an alibi.(2) But care must be taken against 
a hasty inference from opportunity for, to commission of, a crime. There 
can be no crime without the opportunity ; but there is a wide gulf to be 
bridged over by evidence between opportunity and commiasion.(3) 

Generally speaking, it is not admissible to prove the fact in issue by show- iwwuiiti. ua- 
ing that facts similar to it, but not part of the same transaction, have occurred SmiS?"**^ 
on oUier occasions. (4) The meaning of the rule excluding transactions similar 
to but unconnecteid witli the facts in issue is that inferenoee are not to be 
drawn from one transaction to another which is not specifically connected 
with it merely because the two resemble one another. They must be linked 
together by the chain of cause and effect in some assignable way before an in- 
ference may be drawn.(5) They are not facts in issue and are therefore exclud- 
ed by the fifth section. They are not parts of the same transaction so as to be 
admissible under the sixth section, and there is no principle of causation which 
would render them relevant under this section. The maxim res inter alios actfin 
is frequently supposed to express the principle of exclusion in such cases : but 
this is incorrect for similar transactions inter 'partes would be equally inadmis- 
sible in this relation. The maxim has its principal utility in the domain of 
substantive Iaw.(6) And so when, as in a well-known case, the question 



(1) Wigmoiv. Et., { 131. N*. P. Et., 64— W; Powdl,ET., S28— fi36, and t. 

(2) au s. n, |io«t. poti. 

(S) Norton, Et., 104 ; Best, Et., { 453 ; M€ (5) Steph. Dig., p. 163. 

cue cited in 8t«rkie, Et., 4th Ed., 864, note ; (H) Phipron, Et., 3rd Ed. ; 13S, Steplt. Dig., 

Wjlh' Ore. Et., 53. Xtt. 10, and n. Tj, p. 162 ; BmL, Et., { 112. 

(4) Steph. Dig., Art. 10; Phipsoo, Et., 3rd 506—510 : Taylor, Et., 317—326 ; Brown's Lega' 

Ed., 134: Bert, Et., |{ 506—610; Taylor, Et., Maxims, 964-968. 
H 317—326; Broom's Legal Maxims. 908 ; Boscoe, 



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38 



CAUSATION. 



[8. 7.J 



was whether A, a brewer, sold good beer to J3, a publican, the fact that A sold 
good beei to C, Da,nA E, other publicans, was held to be irrelevant.(l) Nor, 
when an act has been proved to show that a given party did th6 act, may evi- 
dence be tendered of similar acts done either by himsdf, with the object of 
showing a disposition, habit or propensity to commit, and a consequent pro- 
bability of his having committed, the act in question, or by others, though 
similarly circumstanced to himself to show that he would be likely to act as 
^they.(2) And so when the question is, whether A committed a crime, the fact 
'that he formerly committed another crime of the same sort, and had a ten- 
dency to commit such crimes, is irrelevant.(3) The so-called exceptions 
(though they are, not strictly speaking, such) to this rule consist in the 
admissibility of evidence of acts showing intention, good faith, and the 
like,(4) and of facts showing accident or system. (5) Judgments also ia 
Court of Justice on other occasions have been said to form an exception to 
the exclusion of evidence of transactionsnot specifically connected with facts in 
issue. (6) On the other hand and on the same principle, in cases where causa- 
tion is well-known and regular, as in the case of physical and mechanical 
agencies, the conditions of mental disease, the propensities of animals and the 
luce, evidence of similar but unconnected acts is often admi8sible.(7) Where in 
an action brought in respect of a nuisance alleged to be caused by the construc- 
tion and maintenance of a hospital for infectious diseases, the plaintiff proposed 
to call evidence as to the effect of other similar hospitals on the surrounding 
neighbourhoods, it was hdd that evidence of facts by which the effect (or 
absence of effect) of such hospitals could be either positively or approximately 
ascertained was admissible and material.(8) Where the discharge of gaseous 



(1) Holcombt V. Htwfm, 2 Ckmp., 391: alHer 
if it had been Bhown (h»t the beer add to »U 
WM of the Mme brewing. Steph. Dig., Art. 
10, illost. (() ; ID (nnlew » geoerM custom be 
proved) tlie term* on which A left land to B, are 
no evidence of the terms on which A left lands to 
other tenants: Carter v. Pryht, Peake, 130; 
•ee Hottiniham v. Htad, 4 C. B. N. S., 388 ; 
apencttg r. DtWiUott, 7 Eart., 108: 8mit\ v. 
Wakittt,iC. *P., 180; Taylor, Er., {{317—326; 

(2) Phipson, Ev., Srd Ed., 109; and text-books 
cited ante, and nolt* to s. 14, pott ; m to the 
converse oases of character and course of 
bnsinees, v. post, ss. 62 — 59, 16. 

(3) Steph. Dig., Art. 10. illust. (a): R. v. CoU, 
1 Phillippa, Ev., 608 ; Steph. Dig., pp. 162—164 . 
«e« •. 14, pott, illust*. (■), (0), (p). 

(4) 5(es. 14, pott; cf. Steph. Dig., Art. 11, 
and pp. 162— 1<'>4, •6.; Phipson, 3rd Ed., 135. 
As to evidence of intention, see f/attingh Dgal 
V. Sam Strain, 30 C, 883, 896 (1903). 

(B) See s. 16, pott ; d. Steph. Dig., Art. 12 ; 
LavMo's PrMomptivp Evidence, 182 ; Steph. 
Dig., 162—164, see also Taylor, Ev., {{327— 348 ; 
RoM)oe, Cr. Ev., 87, 12th Ed., 81 « ttj. ; Beat, 
Ev., p. 463 ;Ro«coe, N. P. Ev., 86 ; Jt v. WyoU, 
1 K. B., 188 (1904) ; 1 All. L. J., 42. 

(6) Staph. Introd., 164; «ee ss. 40—44, pott, 

(7) Phipson. Ev., 3rd Ed., 126—129 ; Best, 
ET.,pp. 463, 464; Taylor, Ev.. {337; so in an 
American case it being in dispate whether a 
horse was or was not frightened by a certain pile 



of lomber, evidence that other hones were fright- 
ened by the same pile, under a variety o( 
circumstances, was held admissible. Best, Ev., 
p. 464: for a similar case, see Brovn v. H. E. R. 
Co., 22 Q. B. D., 391 ; " so where the question 
was whether A '« dog liilled a sheep belonging to 
R; the fact that the same dog had killed other 
sheep on different occasions belonging to other 
people was hekl admissible; Letri* v. J(mt», 1 T. 
L. R., 153; Wharton, Ev., { 1295 ; so akm the 
question being whether A'l premises were 
ignited by sparks escaping from a railway 
engine, proof that (1) the same engine, and (2) 
oMer engines of similar construction belonging 
to the same Company had previously caused 
fires along the same line, is admissible: AlirUgt 
v. a. W. R. Co., 3 M. ft Gr., 522; Pinott v. E. C. 
R. Co., 30. B., 229 ; the question bein.T whether 
A was insane at a certain time, evidence that he 
exhibited symptoir s of insanity prior and sabse. 
quent to snch time, and that his ancestors and 
collaterals had been insane, is admissible : Pope 
on Lunacy, 392." Phipson, Ev., Srd Ed., 129— 
134 ; as to the presumpticn of regularity in the 
case of scientific instruments, tee Taylor, Ev. 
{ 183. As to Manorial and Trade Cnstoms, tte 
Taylor, Ev., {{ 320-322; Roscoe, N. P. Ev. 
86, 86; Phipson, Ev.,3rd Ed., 127 ; s. 13, pol, 
acts, showing title ; see s. 11, pott. 

(8) The JUanagertof the Metropolitan Atytvm 
DittricU v. HiB, 47 L. T. (H. L .), 29 ; per Lord 
Selbome, L. C: " Evidence relating to collateral 



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(8. 8.] M0TIV« : PRBf ABATION : CONDUCT. 39 

matter from the chimney of a chemical works was complained of as a nuisance 
by the proprietor of land in its vicinity, it was hdd that the effect of the dis- 
charge upon other properties in the neighbourhood was legitimate matter of 
enquiry ;(1) on the same principle evidence of the effect of similar discharges 
from other chimneys would have been admi88ible.(2) When the doings of 
animals are in question, it is admissible to prove the general character of the 
species, or of the particular animals, as well as the doings of the same, or 
similar animals on other occa8ions.(3) Further, similar facts may become 
admissible in confirmation of testimony as to the main fact which would be 
inadmissible as direct proof. So an admission of liability on one bill accepted 
by the same agent is no evidence of a general authority to accept, though it is 
admissible to confirm independent proof of such authority.(4) And proof of 
particular instances are admissible to confirm a general course of business. 
And under this Act (though not,(5) generally speaking, in England) even pre- 
vious similar statements made by a witness are admissible to corroborate 
him by showing that he is consistent with himself.(6) Similar facts may be 
admissible in proof of agency. Where the question is whether one person 
acted as agent for another on a particular occasion, the fact that he so acted 
on other occasions, is relevant.(7) In a suit for dissolution of marriage, 
evidence of acts of adultery, subsequent to the date of the latest act charged 
in the petition, are admissible, for the purpose of shewing the character of 
previous acts of improper familiarity. (8) 

8. Any fact is relevant which shows or constitutes a*^"^*',. 
motive(9) or preparation (10) for any fact in issue or relevant "^^S^ 

fact. ■nbjwjMnt 

The conduct of any party, or of any agent to any party, 
to any suit or proceeding, in reference to such suit or pro- 
ceeding (11) or in reference to any fact in issue therein or rele- 
vant thereto,(12) and the conduct of any person an offence 

beta it only •dmianble when toch facts will, <8) 8. 197, fo«l. 

if Mtiblkhed. nteMtth reuonable prwomption (7) Steph. Dig., Art. 13; Blakt v. Albion Lift 

wto the matter in diapat«, and when such Atauranct Society, L. U., 4 C. P. D., 94; tee alio 

•Tidence it reaeonably conrlamre," per Lord Courken y. Totue, I C»mp., 4in ; Ntal v. Srving, 

Wttton ; ttt alto Ftmlkt* v. CkoM, 3 Doug., 1S7. 1 Bap., 00; WatUut r. Vinet, 2 Starkie, 368. 

(1) Hamilton r. Tennanl * Co., 1 Rob., 821, (8) Boiiy v. Boddg, SO L. J. P. ft H., 23; 
7 C. t F., 122 ; A. t. Ktville, 1 Pea. N. P. C, 12fi; Taylw, Er., § 340; tee remarkt on thit caae in 
bat m at to tbia latt rate, R. v. fairie, 8 E. ft B., Phipton, Ev., 80, Igt Ed. omitted in 2itd Ed. 
4M. It haa been held that ante-nuptial incontinence 

(2) MttropcMan Atyhim Didritl r. tlUl it relevant to prove pottHinptial mitoonduct 
•■pia, 35, per Lord Watton. charged between the same parties. Cantetto 

(3) Phipaoo, Et., 3rd Ed., 148, 128; Oabonu v. CanttUo, Time^ March 2, 189S, cited in Phi p- 
T. Clmtfual, 2 Q. B. (1896), 109; tee also cases, son, Er., 3rd Ed., 127. 

p. 38, «. (7), a»«e. (9) lUnttt. (a), (h\ and v. pot. R. v. M. 

(4) Utmttfm 1. Wineheorth, 13 M. ft W., 598; J. Vyapoory Mooidiar, 6 C, «5S, 662 ; at to 
HeUinfltam r. Htad, 4 C. B. N. 8., 388; Morri* the admittibility of timilar lacttto prove motive 
r. BetkrU, L. R., 4 C. P., 765; Phipton, Ev., 3rd (or a crime, tee for its admittion, ff. v. Btt*o», 
Ed.. 78. 14 Cox, 40; R. v. 8Upktn», 16 Cox, 387; R. 

(5) fioarae v. Otaliff, II C. ft P., 45; tee at to v. Ckutt, 4 C.ft P., 22, contra; R. v. FhnuMfon, 
similar facta admitaible hi corroboration of the 16 Cox, 403. 

mahi fact, *. v. Ptarct, Peake,N. P. R., 106; (10) lUostt. (c), (rf), and v. |iot>. 

t. V. Kttrtmt, R. ft R., 376, cited in R. v. £»t«, 6 (11) lUnst. (t). 

B. ft C, 148; Cofc V. Manning, 2 Q. B. D., 611, (12) Illaett. (d), («), (•), R. v. AMM>, 7 A., 40 

wd catet in pieceding wXr. (1885). 

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40 MOTIVE : PBBPARATION : CWNDUCT. [8. 8.] 

against whom is the subject of any proceeding,(l) is relevant, 
if such conduct influences or is influenced by any fact in issue 
or relevant fact, and whether it was previous (2) or subse- 
quent (3) thereto. 

Explanation l.-*-The word "conduct" in this section 
does not include statements, unless those statements accom- 
pany and explain acts other than statements ;(4) but this 
explanation is not to afiect the relevancy of statements under 
any other section of this Act.(6) 

Explanation 2. — When the conduct of any person is rele- 
vant, any statement made to him or in his presence and(6) 
hearing, which affects such conduct, is relevant. (7) 

JUutlraliont. 
(a) A is tried for murder of B. 
The facts that A murdered C. that B knew 'that A had mnrdered C, and 
that B had tried to extort money from A by threatening to make hi* know- 
ledge public, are relevant. (8) 
(&) A sues B upon a b(»d 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, 
(e) A it tried for the mnrder of B by poison. 
The fact that, befre the death of B, A procured poison similar to that which was 
administered to B, is ieleTant.(9) 

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

The facte that, not long before the date of the alleged will, A made enquiry 
into matters to which the provisions of the alleged will relate ; that he coo- 
salted vakils in reference to making the will, and that he caused drafts of other 
wills to be prepared, of which he did not approve, are relevant. (10) 

(e) A is accnsed of a crime. 

The facts, that, either before, or at the time of, or after the alleged crime, A provid- 
ed evidence which 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 person to give false evidence respecting it, are relevant.(ll 



(1) lUntts. («V (*)• will beforeis relevaiittoshow that he faadadit- 

(3) ninsts. ii), (•). posing mind. In tbegoods of Bkuffoindy, (d«- 
(t) niDsts. («X «). ceased), CaL H. C, Mh February 1900. 

(4) Uasts. ii), (tX sod ▼• f>M<. (11) " A party wbo gives or prodooet blm 

(5) iSae iS. 10^ 14, ilhitts. (i), (Q, (•>), 17—89, evidence may by so doing give rise to a gMHral 
1 66^ 1S7. presumption against the tmth of his ease ; " 

(ti) Not '* or " but for English rule, see Xtile 0rM Ohandtr v. Itumr CkBmdra, 8 B. L. B.,A. 

T. JaUt, 2 0. * K., 709. C. J., 841 (1M»). .See also R. v. FUdi. in 6t^. 

(7) niosts. (f), (t), (A), B. V. Bimundt, « C k Introd., 99—106, and Wills' Cire. Ev.. 239; B. 
P., 164. V. Palmer, mfn ; Steph. Dig., Art. 7, illnst. (c) ; 

(8) Ste also B. v. BwMey, 18 Cox, 298 ; & eee s. 114, illnst. (;), pot. Where the qneatiia 
V. Skifptf, 12 Coz, 161 ; B. v. Clewu, 4 0. * P., was whether A saSered damage in a railway se- 
22] ; 6 Coz, 0. C, 214 ; Beet, Ev., { 92. cident ; the fact that A poospixed with B, C »ai 

(9) See B. v. Palmer; Steph. Introd., /) to enbotn false witnesses in snpport of Us eas* 
107— IfiS; Steph. IMg., Art. 7, illnst. (6). was held to be reWuit, as condoot snhseq n ent 

(10) Where tiie factum of a will is in dispute to a fact in iieue tending to show that it had not 
the question whether the testator had made a happened. Moriarly t. L. C. A D. Bf. Ctk, L* B., 

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[g. 8.] MOTIVE : PBEPABATION : CONDUCT. 41 

(/) Tlie qaectioD is, whether A robbed B. 

Hie facta that, after B wa» robbed, Csaid in A'$ presence— ' the police are 
coming to lo<A for the man who robbed B'— and that immediately afterwards 
A ran away, are relevant.(l) 
(y) The question is, whether A owes B rupees 10,000. 

The facts that tasked C to lend him money, and that 2) said toC in A't pre- 
sence 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.(2) 
(A) 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 releTant.(3) 
(t) A is accused of a crime. 

n»e facts that, after the commisuon of the alleged crime, he absconded, or wa» in 
possession of property or the proceeds of property acquired by the crime, or at- 
tempted to conceal things which were or might have been used in committing 
it, are releTant.(4) 
<}) 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 com- 
plaint was made, are releTant.(5) 

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-seven, 
(t) The question is, whether A was robbed. 

The fact that, soon after the alleged robbery, he made a complaint relating to 
the offence, the oiroumstanoes under which, and the terms in which, the com- 
plaint was made are re1evant.(0) 

The fact that, he said he had been robbed, without making any complaint, is 
not relevant as conduct imder 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-seven. 



i Q. B., 314. ' ' The oondnct of s party to a cauae bnnal which hu to judge of the facts : and there- 
may be of the highest importance in determining f ore^ I think, that the erideDoe was admissible 
whether the canaeof action in which he is plaintiff inasmnch as it went to show that the plaintifl 
or the groond of defence, if he is defendant, ii thought he had a bad case. " Ih., per Cookborn, 
boDsst sod just : just as it is evideDce against a C. J., see Taylor, Ev., { 804 ; as to conduct of a 
' ttiat ha has said one thing at one time party in a ease for malicious proseontion, see 



•ad soother at another, as showing that the re- Taylor t. WiOiatiu, 2 B. ft Ad., 887 ; as to admis- 

eeune %o falsehood leads fairly to an inference of sion inferred from the oondoot of parties, «ee s. 

niH. 8<^ if yonoanshowthataplaintifl has been fiS, pott; tu also Taylor, Bv., ) 388; Bosooe, 

aabamaig false testimony, and has endeavonred N. P. Ev., 62 ; MetkuUk v. Cottier, U Q. B., 878, 

to hare reoonrseto porjnry, it is strong evidence Best, Ev., { 624. 

tkatheknewperfeotly wen that his case waa an (1) B. v. AbduOah, 7 A., 400 (1885); v. foil, 

aar^hteoas one. I do not say that it is oonoinsive; notes. 

it doa not always fdlow, becanse a man, not sore (2) See In the paitvm of Sural Dhobni, 10 C. 

he dkall be able to succeed by righteous means, 302 (1884) ; v. pott, notes ; Besaela v. Stem, 2 C, 

has recourse to means of • different character, p. C., 266. 

that that which he desires, namely, the gaining (3) As to the inferences to he drawn from ab- 
et the victery, is not his dne, <» that he has not sconding, see K. v. Sorob Boy, 6 W. R., Cr., S8, 
geodgronndforbelleTing that justice entitles him 30(1866). 

to It It does not necessanly follow that he has (4) Steph. Dig., Art. 7, iCnst. {d) ; see s. 9, Olnst. 

not a good cause of action any more than a pri- (e), pott. 

aoaae's making a talae statement to mcrease his (S) See B. v. LiUyman, 2 Q. B. (1896), 167 

sppaaraoce of innocence is neoeasarily a proof C. 0. B.; B. v. Otbonu, I K. B. (1906), 661. 

«l Us guilt: but it is always evidence which ought (R) ii.v. Jf(K/>onaf(i,10B. L. B.,App.2(1872), 

to be submitted to the consideration of the tri. the absence of the accused at the time when a com 

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42 MOTIVE : PKEPAItATION : CONOLCr. [S. 8.] 

Principle. — This section is an amplificatiou of the preceding one. A 
motive is, strictly, what its etymology indicates, that which move* or influences 
the mind. It has been said that an action without a motive would be an effect 
without a cause, and as, to take for example criminal cases, the particulars of 
external situation and conduct will in general correctly denot« the motive for 
criminal action, the absence of all evidence of an inducing cause is reasonably 
regarded, where the fact is doubtful, as affording a strong presumption of in- 
nocence.(l) Preparation is also relevant, it being obviously important in the 
consideration of the question whether a man did a particular act or not to 
know whether he took any measures calculated to bring it about. Pre- 
meditated action must necessarily be preceded not only by impelling motives 
but by appropriate preparations.(2) The existence of a design or plan is 
usually employed evidentially to indicate the subsequent doing of the act 
planned or designed. (3) Preparation is an instance of previous conduct of 
the party influencing the fact in issue or relevant fact ; but other conduct 
also whether of a party or of an agent to a party, whether pre^^ou8 or subse- 
quent, and whether influencing or influenced by a fact in issue or relevant 
fact, is also admissible, the conduct of a party beiug always extremely 
relevant for reasons some of which appear in the Commentary to the 
section. (4) See Introduction, ante, and Notes, post. 

8. 8 ("Facf.") ». 17 — 31 {Oral and Documenlarif admitgiou.) 

s. 3 {"Releimil.") 

fs. 10, 14, 17—89, 166, 167 {State- s. 60 {Opinioti on relationship erprcfttj tjr 

menta relevant under other sections.) eondnct.) 
8. 8 (" Fact in ittue. ") 

Motive, Preparation and Conduct. — Steph. Dig., Art. 7 : Wills" Circumstantial Evidence, 
passim ; Best. Ev., J§ 91. 92. 452—467 : Burrill on Circuuistantial Evidence; Auther, Will« 
on Circumstantial Evidence: Phillip's Famous Cases on Circumstantial Evidence, passim; 
Phipson. Ev., 3rd Ed.. 109 ; Norton. Ev., 107 : Cuningham, Ev.. 93 ; Taylor. Ev., H 
104. 1204. 1205 : Roscoe. N. P. Ev., 28. (J7 ; Roscoe. Cr. Ev., 12h Ed., 6. 13—21. 85 : Wilh, 
Ev., 59. Wigmore. Ev.. § 1 17, 237, et acq. Statements accompanffing Acts. — Steph. Dig, 
Arts. 7. 8 : ib.. Note V : Best. Ev.. § 495 : Greenleaf, Ev., fl 108 : Wharton, Ev., fj 268. 25», 
Phipson. Ev., 3rd Ed., 48 : Starkie, Ev., 51—63, 87—89. 166—171 ; Taylor, Ev., H583— 
689 ; Roscoe. N. P. Ev., 61—63 : Powell, Ev., 157 ; Roscoe, Cr. Ev., 12th Ed., 22.; Statement* 
affecting Concur/.— Steph. Dig., Art. 8 ; Taylor, Ev.. IS 809—816 : Best, Ev., K 574, 575 ; 
Phipson, Ev.. 3rd Ed., 220 ; Norton. Ev.. 106 ; Roscoe. N. P. Ev., 64—66 ; Powell, Ev., 
277 : Wharton. Ev.. §§ 1136. 11.55. 



plaint is made agsinat him, in CSM8 coming vith (|) 6>e p. 17, note (9), 

inthis/Mii««n)«ion, doe* not affect the relevancy of (2) Wills* Circ. Ev., 82: Norton, Kt., I0»; 

such complaint and therefore does not exclude it, Cunningham, Ev., 03,94: Best, Ev., H 4*4 — 

lb. In England evidence of complaint is now 457 ; the rase of PiUeh cited, ib., and in Stephw 

admissible only in rases of rape and kindred offen- Introd., 99—106 ; Burrill, Circ. Ev., 343, abo •>. , 

crs against females ; Phipson, Ev., 3rd Ed., 93. S46, where informative considerations arediscoaa- 

This Illustration shows that the rule is otherwise ed. 

>n this countr;-. See *. v. H'tBt, 6 C. A P., 397 ; (3) See Wigmore. Ev., $237. Design or pUtt 

S. V. Riisdalt, Starkie, Ev., 4«9, note : Roscoe, should be distinguished from intent. The lat- 

Cr. Ev., I2th Ed., 22, 23, Steph. Dig., Art. 8 ; ter in the sabstsntivr law is a proposition in 

Phinson, Ev., 3rd Ed.. 93 : wife's complaint in issue. Design or plan is evidence of intent, ib. 

Ecclesiastical Conrts, see Loelneood r. Locktcood, Design should also be distinguished from emo- 

2 Curt., 281; and complaints as evidence of (ion or motive, though the same facts may b» 

mental and bodily feeling, see B. v. Vincent, 9 evidence of either, ib. 

C. * P. , 91 : B. V. ConJe, 10 Cox, 547 ; f/. (4) v. pofi, pp. 18— 2<> . 

». 14, port. 



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[g. 8.] MOTIVE : PREPARATION : CONDUCT. 43 

OOMMBITTART. 

Motive iu the correct sense is the emotion supposed to have led to the act. Motiv* : 
The external fact which is sometimes styled the motive, is merely the possible ecmSa^*'**" 
existing cause of this " motive " and not identical with the motive itself ; and 
the evidentiary question is not whether that external fact is admissible as a 
motive, but whether it is admissible to show the probable existence of the 
emotion or motive.(l) Generally the voluntary acts of sane persons have an 
impelling emotion or motive.(2) It has, therefore, already been observed that 
the absence of ail evidence of an inducing cause is reasonably reearded, where 
the fact is doubtful, as affording a strong presumption of innocence. (3) If there 
be any motive which can be assigned, the adequacy of that motive is not in 
all cases necessary- Atrocious crimes have been committed from very slight 
motive8.(4) The' mere fact, however, of a party being so situated that an 
advantage would accrue to him from the commission of a crime, nmounts to 
nothing, or next to nothing, as a proof of his having committed it.(5) A letter 
written by the solicitors of a Company to the plaintiff stating that the 
Company declined to continue the negotiations for a contract because of the 
defendant's threats, was hdd admissible (though not necessarily conclusive) 
evidence that the negotiations were in fact discontinued because of the 
defendant's threats. (6) Further the existence of motives invisible to all except 
the person who is influenced by them must not be overlooked."(7) " It is some- 
times (Professor Wigmore points out) popularly supposed that in order to 
establish a charge of crime, the prosecution must show a possible motive- 
Bat this notion is without foundation. Assuming for purposes of argument 
that ' every act must have u motive, i.e., an impelling emotion (which is not 
strictly correct) yet it is always possible that this necessary emotion may be 
uodiscoverable and thus the foilure to discover it, does not signify its non- 
existence. The kinds of evidence to prove an act vary in probative strength 
and the absence of one kind may be more significant than the absence of 
another : but the mere absence of any one kind cannot be fatal. There 
mnst have been a plan to do the act (we may assume) : the accused must have 
been present (assuming it was done by manual action) but there may be 
no evidence of preparation ; or there may be no evidence of presence ; yet the 
remaining facts may furnish ample proof. The failure to produce evidence 
uf some appropriate motive may be a great weakness in the whole body of 
proof, but it is not a fatal one as a matter of law. In other words there is no 



<1) Wigmore, Rr., { 117. out of the account. Where the motive is a pe- 
lt) 8tt Wigmore, Er., { 1 18. Norton, Er., 107. cuniarr one, the wealth of the offender is no anim- 
In Ptlmtn' out ( «ec Steph. Introd., 107 — 1S8), portant consideration." i'srSir Lawrence Peel, 
8«ife, B., in addressing the jniy, said:—" Had C. J., in R. v. Hedger, 131 (1832). Evidence as 
the prisoner the opportunity of administering to the motives with which a prisoner commits 
poiwa i that was one thing. Had he any motive an oSence should be direct evidence of the strict- 
to do so; that is anotlier." Wills' Giro. Er., 220. est character : R.v. Zuhir, 10 W. R.,CV., II (1868). 
(i) WiOi' Circnmstaatial Eridence, 156, 4th The motives of parties can only be ascertained 
Ed. ; Borrill's Circ. Ev., 281,«* »eq. ; Best, Et., f by inference drawn from facts. T'ojrfor v. Willaiit, 
*S3; see illosts. (a), (6). The absence of all mo- i B. and Ad., 815, 857. 

live (or a crime, when oorrobotsted by indepen- (4) Per Lord Campbell, C. J., in K. v. Palmer, 

drotevideaoe of the prisoner's previous insanity, cited in Wills' Circ. Rv., 44; R. v. Hedger, 

it BO* without weif^t : B. v. Bkeitk MuMaffa, nipra, 131. 

I W.R.,Or., 1»(18«4); Jt.T.A>n>iJ;oy, 6 W. R., (6) Best, Ev., { 453. 

rr.,»,»l(l8««) ( B. T. BakarAU, 16 W. R., Cr., (B) Skinner ii Co. v. Shew d- Co., L. R., 2 Ch. 

4«(isn); [abMnoe of motive] X. v. Jaiehand O. (1894), 581. 

Jf aadle, 7 W. R., Or., » (1887), proof of motive (7) As to acts appartnllg motiveless, tee R. v. 

not neeeMVy. "In estimating probabilities, Hagnts, 1 F. ft F.. 686, 667; R. v. Sinkael 

motives cannot, in a general sense, be safely left Sloiet. 3 C. ft K., 185, 188, and next note. 



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44 MOTIVK : PRBPARiTION : CONDVCT, [s. 8.] 

more necessity in the law of evidence to discern and establish the particular 
existing emotion or some possible one, than to use any other particular kind 
of evidential fact "(1) An emotion may impel against as well as touxirda an act- 
Thus a defendant's strong feelings of affection for a deceased person would 
work against the doing of violence upon him and would thus be relevant 
to show the not-doing.(2) 

The reasons which exist for the relevancy of evidence of preparation or 
design have been already given. Design may be proved by an utterance in 
which it is asserted ; by conduct indicating the inward existence of design ; 
by evidence of prior or subsequent existence of the design as indicating its 
existence at the time in queBtion.(3) Previous attempts to commit an offence 
are closely allied to preparations for the commission of it, and only differ 
in being carried one step further and nearer to the criminal act, of which, 
however, like the former they fall short.(4) Preparation and previons 
attempta(5) are instances of previous conduct of the party influencing the 
fact in issue or relevant fact ; but other conduct also whetiier of a party 
or of an agent to a party, whether previous(6) or subseqaent,(7) and 
whether influencing or influenced by a fact in issue or relevant fact is also 
made admissible under this section. 

The second clause applies to the party's agents as well as the party 
himself. "Party" includes not only the plaintiff and defendant in a civil 
suit, but parties in a criminal prosecution, as for instance, a prisoner charged 
with murder.(8) The conduct need not, to be relevant, be contemporaneous. 
Though concurrence of time must always be considered as material to show 
the connection, it is by no means essential. (9) "If such conduct influences or is 
influenced " means " if such conduct directly and immediately influences or is 
influenced."(10) The conduct of a party is extremely relevant.(ll) The illus- 
trations given are so many instances of natural presumptions which the Court 
or jury may draw. From preparations prior, or flight subsequent to a crime, 
may be inferred or presumed the guilt of the party against whom such conduct 
is proved.( 1 2) Other presumptions from conduct arise in the case of flight,( 13) 



(1) Wigmore, St., } 118, citing PoMer r. V. Cr., 489. 

3., IS! V. 8., 396 (Amer.) [the abMuce of evi- (9) Field, Ev., 94 ; Whitley SUAtt, 8M ; TBy> 

denoe soggetting • motire is a oiroumitanoe in lor, £v., §§ 588, 989 ; SotKh t. Q. W. B., 1 Q. K. 

farour of the accuaed : but proof of motive is never 60 ; but w< also B. r. BeHngfiM, 11 Cox, tO ; 

indispensable to oonviotion] : Slatt v. BoMun, Agaata v. London Tram Co., 81 W. B. (Eta(.X 

740onn., S24(Amer.) [the otherevidencemaybe 199; X. x. Ooidard, U Cox, 1;Lettv. Maitom, 

soch as to justify a conviction without any I H. & B., 210; Tkompton v. rrewmoa, Skio., 

motive being shown]. 402 ; v. poM. 

(2) Wigmore, Ev.,{ 118. (10) S. v. Abdullah, supra, 395, 396; contim* 

(3) fit., i 237, «t nq., t.t., possession of tools, per Mahmood, J., i6., 400. 

materials ; preparations, journeys, experiments, (] 1 ) Ih., 394; Boimaiand v. Ohantum, 22 C, 391, 

enquiries, and tiie like. 404, 406(1894) [intention inferred from soba»- 

(4) Best, Sv., f 455 ; s. 14, pott, illusts. (i), quent conduct of accused] ; B. v. Heraaaais, S 
(/), (o) : as to the probative force of, and infirma- W. B., Cr., 5 (1866). See ss to conduct B. v. Jm» 
tive oircumatanoes connected with, preparation fiosjt, 11 Bom. H, C. B., 245(1874),andW>gmaKr, 
and prerioos attempt, «e« Best, Ev., f { 456, 467. Ev., nib. t-oc. 

(5) Bt» iUnito. (e), (d), & s. 14, iUusts. (•), (;'), (12) Norton, Ev., 107. 

(o). (1 3) lUust. (•), anU : absconding to^osnaliy bat 

(A) Ste illusts. (d), (e): as to previous and sub- Blight evidence of guilt; B. v. Sdrat Bop, 5 

sequent conduct, MsBest, Ev., { 452. W. B., Cr.. 28 (1866); B. v. Gobariltan, 9 A., 



(7) See iUusts. (e), (i). 528,668 (1887): as to the obsoletemazim' 

(8) it. v. AiduUalt. 7 A., 386, 399 (1886) (F. lacimu qui judicium fuiit " (he who flies, jo^ 
B.), in which the terms of this seetion are dis- ment confesses his guilt), mc Best, Ev., ^ 4t4K>— 
cussed ; see B. v. ArnaU, 8 0>x, C. C, 439 ; 3 Bnae, 466 ; Norton, Ev. , 1 10 ; see s. 9, illust. {e), pmm. 



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[8. 8.] 



MOTIVE : PREPARATION : CONDUCT. 



45 



gilenc«,(l) evasive or false responsion(2) (v. post), possession of documents, or 
property connected with the offence,(3) change of demeanour in, or in the 
circumstances of, the accu8ed(4) as his becoming suddenly rich, his squandering 
unusual sums of money and the like, attempts to stifle or evade justice or 
mislead enqairy(5) (as flight, keeping concealed, concealing things, obliteration 
of marks, subornation of evidence, bribery, collusion with officers and the like) 
and fear indicated by passive deportment, (6) as by trembling, stammering, 
starting, etc., or by a desire for secrecy,(7) e.g., as by disguising the person or 
choosing a spot supposed to be out of the view of others. The conduct or 
demeanour of a prisoner on being charged with the crime, or upon allusions 
being made to it, is frequently given in evidence against him.(8) But evidence 
of this description ought to be regarded with caution.(9) Again in order 
to ascertain the real intention of parties to an instrument evidence of what 
they have done under it since its execurion is relevant. The principle upon 
which such evidence is admitted is contained in the maxim optitnus interpres re- 
fttint«tM.(10) And so in the case of the Attorney-General v. Drummond, (ll)Lord 
Chancellor Sugden said : — " Tell me what you have done under such a deed, and 
I will tell you what that deed means." As to the admissibility of judgments 



(1) T. port. 

(2) Xorton, Et., 106, 107, and poet. Best, Ev., 
I 574 ; aee Horiarty v. L. C. <» D. Ry., aate; 
(w an nample of inferences from conduct of the 
chuacter aboTcmentioned, see R, t. Sami, 13 
U., 428,432 (1890). 

(J) Uloit. (i ), <m/« ; see *. V. Coiirfoifl'er, Xorton, 
Ev., Ill ; Taylor, Ev., { 595 ; R. v. Cooper, I Q. 
B. D., I}. Letters, etc., found in a man's house 
«/ter his anest, are admissible in evidence if their 
|>revious existence has been proved : R. v. Amir 
lias, 9 B. L. R., ^^ 70, 71 (1871). 

(4) Best, Et., S 469. 

(») Arthur P. Wfll,Circ. Et„ 188; Best, Ev„ 
i4«0;Kortoii.Ev.,U0,lll; lUnst. («),(.), anfc. 
«. V. DotuOan, in Steph. Introd., 76—81. and 
Wins' Circ. Er., 237, 241 ; destruction of 
marks, see R. v. Coot and R. v. Gresnocre, cited 
iu Wills' Circ. Ev., 88, 89, and Norton, Ev., HI. 

(«) Best, Et., % 466. Trial of Eugene Aram 
cited in Wflls' Circ. Ev., 78, and Norton, Ev., 
in, 112 ; R. T. Peter Ram, 3 W. R., Cr., 11 (18«6) 
[cmduct of acensed before and after crime ; 
«. T. Betarte, 3 W. R., Or., 23, 24 (1866) 
Icondnct of prisoner since arrest ; feigning 
iiuanfty; general demeanour]. 

(7) Best, Ev., i 467 ; Norton, Ev.. 113. 

(8) *. V. Bmitier; 6 C. * P., 332 ; R. v. Bart- 
tol, 7 C. * P., 882 ; if. v. J/o«or», 13 Q. B. D. 
33; £. V. rolcrsMt, 2 Leach., 984 ; «. r. PhiUipt, 
I Lew. C. C, 106. 

(9) 1 PhiUiiia and Arnold, 10th Ed., 405, ; Ros- 
cor, Cr. Ev., S3, 12th Ed., 48. 

(10) Robert WuUmt * Co. v. Moheek Narain, 
24 W. R., !7 1876), in which the question was 
whether a polltk conveyed an estate for life only 
or sn estate of inheritance, their Lordships of the 
Privy Council said : — "In order to determine 
this qnestioo, their Lordships must arrive as well 
an they can at the real intention of the parties, 



to be collected chiefly, no doubt from the termt 
of the instrument itself, but to a certain extent 
also from the circnmelaneet existing at the time 
of its execution, and further by thecon(ii(c< of the 
parties since its execution." In this case the 
pollah was less than 20 years old at the time of 
the institution of the suit, from which it appears 
that in India the maxim is not restricted to an- 
cient documents, i.e., documents at least 30 years 
old. (See Field, Ev., 94 ; Taylor, Ev., f§ 1204, 
1205 ; Roscoe, X. P. Ev., 28). iSee also Oirdhar 
Xagjithet r. Ganpat Moroba, 11 Bom. H. C. R., 
129 (1874) ; Xidhikriena v. Xitlarini, 13 Bom. L. 
R., 416, 420 (1874) s. c, 21 W. R., 386 ; Cketlun 
LaU V. Chutlerdharee LaU, 19 W. B., 432 (1873) ; 
Ranet Radka LaU v. Gireedkare* Sakoo, 20 W. R., 
243 (1873) [boundary dispute]: Naraingk Dyal 
V. Ram Xarain, 30 C, 883, 896(1903) as to usage 
aSecting contracts, see s. 92, Pror. 6, poet and note ; 
with respect to the course of dealing between the 
parties, when the meaning of a document is doubt- 
ful (Bourne v. Oattiff, 11 C. JC F., 46; [evidence 
of former transactions] ; Harriton v. Barton, 30 
L. J., Ch., 213 ; Forbea v. Watt, L. R., 2 H. L. 
8c. t D., 214 ; Royal Exckange Aee. Corp. v. Toi, 
8 T. L. B., 669; Taylor, Ev., § 1198, but not 
when it is clear (MarekaU v. Berridge, 19 Ch. D., 
233, 241 ; Igguldm v. May, 9Ves., 233). the sense 
in which both, but not one only of the parties have 
acted on it, isadmissible in explanation, Phipson. 
Ev., 3rd Ed., 653. Evidence of previous deal- 
ings is admissible only for the purpose of explain- 
ing the terms used in a contract and not to im- 
pose on a party an obligation as to which the con- 
tract is silent. Haji Makomtd v. M. Spinner A 
Co., 2 B. L. R., 691 (1900). Bu generaUy as to 
the admissibility of extrinsic evidence to aSeot 
documents, the introduction to Chapter VI. 
pott. 

(11) Drn. * War., 368. 



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46 MOTIVE : PREPARATION : CONDUCT. [s. 8.] 

under this section, see case noted below(l) : and as to the admissibiltj of 
opinion on relationship, expressed by conduct, see section 50, post. Instances 
of admission by the conduct or acts of a party to civil suits are of frequent 
occurrence. A party's admission by conduct as to the existence or non- 
existence of any materia] fact may always be proved against him,(2) and evidence 
on his part to explain or rebut such admissions is also receivable.(3) The 
plaintiff's title to sue, or the character in which the plaintiff sues, or in which 
the defendant is sued, is frequently admitted by the acts and conduct of the 
opposite party ; and in some cases, the admission, thou^^h not strictly an 
estoppel, is practically conclusive. Thus, if B has dealt with A as fanner of 
the post-horse duties, it is evidence in an action by A against B to prove that 
he is such farmer : and payment of money is an admission against the payer, 
that the receiver is the proper person to receive it.(4) So also suppression of 
documents is an admission that their contents are unfavourable to the party 
suppressing them (v. ante). When A brings an action against B to recover 
possession of land, he thereby admits B's possession of the land.(5) Mere sub- 
scription of a paper, as witness, is not in itself proof of his knowledge of its 
content8.(6) When a landlord quietly suffers a tenant to expend money in 
making alterations and improvements in the premises, it is evidence of his 
consent to the alterations.(7) And when a party is himself a defradant (whether 
in a civil or criminal proceeding), and is charged as bearing some particular 
character, the fact of his having acted in that character will, in all cases, be 
sufficient evidence, as an admission that he bears that character, without 
reference to his appointment being in writing. Thus upon an indictment 
against a letter-carrier for embezuement, proof that he acted as each was 
held to be sufficient, without showing his appointment.(8) Delay in suing 
to enforce alleged rights may be construed as an admission of their non- 
exi8tence.(9) Conversations that explain a man's conduct are admissible m 
evidence.(lO) As to written and oral admissions, see a. 17, post ; and for further 
instances of admissions by conduct, see the next paragraph but one. 
statements In English law such statements are said sometimes to be admissible as 

tngu^r*" forming part of the vague and unsatisfactory term res gettee. The fixst Bzpla- 
aS?**"*"* nation declares that mere Oatetnents as distinguished from acts do not oonstitnte 
conduct. "It points to a case in which a person whose conduct ia in dispute 
mixes up together actions and statements ; and in such case those actions and 
statements may be proved as a whole. For instance, a person is seen running 

W Tht Collator of OoraVkpur v. Palakdhari », pott; Powell, Ev.. 277. 
Sintk, 12 A., 1, 12, 46 (1889), and notee to ■• (4) Roaooe, N. P. Kv., 67; Sadfordv. M'I»- 

13, pott. loth, 3 T. K., <32 ; Peaeock v. Harrit, 10 EmI, 

(2) Taylor, Bv., Jf 104, 804, and casea there 104 ; Jamu v. Bion, 2 Sin. t St., a06 ; Taylor, 

cited. The original draft of the Evidence Act Ev., p. 697 note; Norton, E^., p. 114; aa to 

contained the following section : ° ' A conduct of estoppel arising from the acta of a party, «•( *. 

any party to any proceeding upon the occasion 115, pott. 

of anything being done or said in his presence (5) Slanford \, Hurltlont, L. R., 9 Ch.. 1I& 

in relation to matters in question, and the things («i) Hording v. Crethom, 1 Esp., 68. 

so said or done, are relevant facts when they ren- (7) Doe v. Allen, 3 Taunt., 78, 80 ; Doe v. Pyc. 

der probable or improbable any relerant fact I Esp., 366 ; Seale v. Parkin, I Esp., 229 ; 5laa. 

alleged or denied in reapect of the person so con- Icy v. White, 14 East., 332. 
ducting himself." The provisions of this propos- (8) Roscoe, Cr. Ev., 7; R. \. Borrttl, 6 C. A 

ed section are, however, incorporated in other P., 124; «ee s. 91, exception (1), post, and note* 

parts <rf the present Act ; see present section, s. thereto. Set Taylor, Ev., { 173. 
11, post, a. 114, iUusU. (g), (A); i'leld, Ev., 16^ (9) JnggtantOk v. Syud Shah Jlnhomud, 14 

166 ; aa to conduct of family showing recognition B. L. R., 386 (1874); Rujendro Xath v. Jofen4ro 

of family arrangement, see Bhubaneswari Devi v. .Vo<*, 14 M. I. A., 67 (1871) s. c, 15 W. R. (P. C) 

Baritoran Surnia, 6 C, 724 (1881). 41. 

(8) Melkuieh v. Cottie!-, 15 Q. B., 878 ; and s. (lO) B. v. Oandfietd, 2 Co. C. C, 43. 



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[g. 8.] MOTIVE : PREPARATION : CONDUCT. 47 

down a street in a wounded condition, and calling out the name of his assailant, 
and the circnmstsnces under which the injuries were inflicted. Here what the 
person says and what he does may be taken togetber and proved as a whole."(l) 
A statement may be admissible, not as standing alone, but as explaining conduct 
in reference to relevant facts. So it was held that the answers to his superior 
officer given by an accused person in explanation of an official irregularity 
could be proved against him if subsequently ascertained to be false.(2) Conduct 
may be equivocal without statements explanatory and elucidatory of it. 
Statements accompanying acts are in fact part of the res gesUr. just as much 
as the acts themselves. They are often absolutely necessary to show the animus 
of the actor. They have been styled verbal act8.(3) Thus a payment by a debtor 
may be explained by his request to apply it to a certin debt. If a debtor 
leaves home, his intent to avoid his creditors may be shown by what he said 
when leaving.(4) The declarations are not admissible simply because they ac- 
company an act : the latter itself must be in issue or relevant : the admissibility 
of such a statement depends upon the light it throws upon an act which is itself 
relevant.(5) The Evidence Act makes 'those statements admissible, and those 
only, which are the essential complements of acts done or refused to be done, 
80 that the act itself or the omission to act requires a special significance as a 
ground for inference with respect to the issues in the case under trial."(6) It is 
every declaration that accompanies and purports to explain a fact that will be 
received, e. g., a declaration that is equivocal,(7) or is a mere expression of 
opmion,(8) or is obviously concocted to serve a purpose; (9) in other words, the 
statements must really explain the acts,( 10) and the declaration must relate to, 
and can only be used to explain, the fact it accompanies and not previous or 
subsequent fact8(l 1) unless the transaction be of a continuous nature.(12) " It is 
sometimes said that the declaration and act must be by the same person. (13) 
But though such declarations are often the only ones material, the rule is by 
no means so strictly confined. It is an every-day practice in criminal cases 
to receive the declarations of the victim, as well as those of the assailant. So, 
in cases of conspiracy, riot, and the like, the declarations of all concerned in 
the common object, although not defendants, are admissible.(l4) It has, in- 
deed, been held that unless some such common object be proved, the 



(1) i. T. Ab imlt ak, lapra, 395, 396, per Petbe- declarations which can txptain such facts, may 

nm,C.J.: " Bat the case wonld be Tery differ- be received in evidence;" If ri;M v. TatAam, supra, 

entif some paanr-by stopped him and suggested per Baron Park. See Steph. Dig., p. 161. 

) name, or aaked some qnestion regarding the (6) K. v. Rama Birapa, 3 B., 12, 17 (1878). 



tnnmnkm. If a person were foond making per West, J. 

•sek statements wHhont any qaestion first being (7) R. v. BUm, supra; R. v. WaintcrijU, 13 

saksd, thso his statements might be regarded as Cox, 171 ; Roscoe, X. P. Ev., 53. 

a pact ol hia oondaot. But when the statement (8) Wright v. TaHam, supra. 

■ aade merely in reponse to some qnestion or (9) Tkompsonv. Tretmaton, supra ; R. v. Abra- 

okjteUou it shows a state of things introduced, hanu, 2 C. ft K., 550; Brodie v. Brodie, 44 L. T. N. 

not by tite laet in issae, but by the interposition S., 307 ; Starkie, £v., 89 ; and tee American cases, 

of something else. " lb., but see i6., 400, per and authorities in Phipson, Ev., 3rd Ed., 48. 

Mahaood, J., and atUe. (10) See remarks in R. v, Rama Birapa, supra. 

(S) R. T. Oanfk, 4 Bom., L. R., 284 (1902). (11) ifyde v. Palmer, surpa. 

(3) Noctoa, St., 106, Balemait v. Bailtg, 5 T. (12) Benniaon v. CartwrijU, supar ; Rawton v. 
R., SIS ; Hyiie v. Patmer, 3 B. & 8., 667 ; 32 L. Haig, 2 Bing., 99. 

J., Q. B., 126: Beawwon v. Cartwright, 5 B. (13) Howe v. MalUn, 27 W. R. (Eng.), 340; 

* S., 1. 40 L. T., 196. 

(4) Baltmau t. BaOt^, supra; Roscoe, N. P. (14) R. v. QoraoH, 21 How. St. Tr., 520 ;£. v. 
P.y., U. Hunt, 3 B. 4b AM., 574; R. v. O'ConneU, Arm. 

(5) AiyU ▼. Doe i. TaOiam, 7 A. ft E., 313, ft Tr., R., 275 ; the present section deals only with 
3S1 ; A. T. BU**, ib., 050 ; Bgit v. Palmtr, supra ; tatementa, by farlitt : the declarations mentioned 
Rosooev N. P. Et., 53 : '* when any facts are in the text would be admissible under s. 10, po»l, 
proper cTideace upon an issue all oral or written 



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StatwnMita 



48 MOTIVE : PBEPAEATION : CONDUCT. [S. 8.] 

declaistions of participants, if neithei parties nor agents, are inadmissible ;(1) 
but this limitation cannot be taken as invariable for the exclamations of 
mere by-standers may sometimes be both material and edmissible evidence.(2) 
The declarations are no proof of the fact they accompany ; the existence of 
the latter most be established independently."(3) As to the admissibility of 
declarations as evidence of mental and physical conditions, see the fourteenth 
section, poit. Illustrations {j) and (k) are illustrations of statements accom- 
panying and explaining the conduct of a person an offence against whom is 
being enquired into. Under these illustrations, the terms in which the com- 
plaint was made is relevant.(4) "A distinction is to be marked here between 
a bare statement of the fact of rape or robbery, and a comj)laint. The latter 
evidences conduct : the former has no such tendency. There may be some- 
times a difficulty in discriminating between a statement and a complaint. 
It is conceived that the essential difference between the two is that the 
latter is made with a view to redress or punishment, and must be made to 
some one in authority — the police, for instance, or a parent, or some other 
person to whom the complainant was justly entitled to look for assistance 
and protection. The distinction is of importance ; because while a com- 
plaint is always relevant, a statement not amounting to a complaint will 
only be relevant under particular circumstances, e^., if it amounts to a 
dying declaration, or can be used as corroborative evidence."(5) The 
present section, so far as it admits a statement as included in the word 
" conduct," must be read in connection with the 25th and 26th sections, piM, 
and cannot admit a statement as evidence which would be shut out by 
those sections.(6) 

^ In the second Explanation " statement " includes documents addressed to 

gijSS jffy ** a peiBon and shown to have come to his actual knowledge.(7) The statements 
oondnot. whether oral or written must affect the conduct ; if they cannot be shown t» 
have done so they are inadmissible imder this section. "Statements made in 
the presence of a party are admissible as the groundwork of ids conduct. 
Thus, if a man, accused of a crime is silent, or flies, or is guilty 
of false or evasive responsion, his conduct is, coupled with the statements, 
in the nature of an admission, and therefore evidence against himsell His 
flight or false responsion would be equivocal per se, and might be unintel- 
Hgible without our knowledge of what led to it. His act upon the statement, 
and the statement are so blended together, that both form part of the res 
gesUf, and on this ground again the statement, is as receivable as the act. In 
point of fact, it is the conduct of the party upon the statement being made, 
that is the material point ; the statements themselves are only material as 
leading up to and explaining that."(8) The mere fact that statements have 
been made in a party's presence, or documents found in his possession, tjiougfa 
it may render them admissible against him as original evidence — e.g., as show- 
ing knowledge or complicity — will afford no proof per se of the truth of their 
contents ; the ground of reception for the latter purpose is that the party has. 



(1) n. V. PttckeriM, 7 Coi, 79 ; Bruct v. Act. R. v. LiUyman, 31 L. J., 383 (Jane SOtb. 
Nieolupolo, 11 Ex., 189. 1898) ; 2 Q. B. (1896), 167 I. L. R. ; S. v. Oiionu, 

(2) See note (14), p. 47an(< .(uch erideDcemay 1905, I K. &, 961. 

be admiiaible under i. 6, ante, ace a. 6, Ultut. (a), (o) Norton, Et., 114. Bte Wills' Et., 11. 

ftnd note, ante. («) «• v- *^»>k». 14 B., 260 (1889). 

(3) Phipson, Ev., 3rd Ed., 48 et seq. (7) DluBt. (A), ante; Bifht t. Tatliam, npra. 

(4) A* to the Engluh rule on tbia point, tie (8) Norton, St., 106, 107. "It ia ■ goieral 
Stepb., Dig., p. 162; Taylor, Et., f 581 ; Roacoe, rule that a atatement made in tbe presence ttthr 
Cr., Et., 26; aee X. ▼. UaeionaU, supra ; Norton, prisoner, and wbioh be might have caotradicte<r 
Et., 114; Whitley Stokes, 827. It has recently it untrue, is eridenoe against him," per FkU^ 
l>een declared in the aame terms as those of the J., in B. v. MaUory, 16 Cox, 466, 468. 



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[». 8.] 



HOTITB: PBEPABATIOy: OONDCOT. 



49 



bvhia conduct or silence, admitted the accuracy of the assertions made."(l) 
In the case of statements made to, or in a party's presence, he m&y either 
reply to them or keep 8ilent,(2) or his conduct may be otherwise affected 
by them.(3) When the statement in reply accompames and explains an act 
other th»n the statement, it may be relevant under this section or the sec- 
tion relating to oral or documentary admissions ; when it is unaccompanied 
by any act, it may be relevant under the latter sections. Such ststements 
made in a party's presence and replied to, will be evidence asainst him of 
the facts stated to the extent that his answer directly or indirectly admits 
their truth.(4) But a party's silence will render statements made in his pre- 
sence evidence against him of their truth(5) only when he is reasonably called 
on to reply to such statements. Care must be taken in the application of the 
maxim qui iacet consentire videtur -(silence gives consent) : for in many cases, 
but little reliance can be placed on this circum8tance.(6) Admissions from 
nlence or acquiescence frequently occur with reference to unanswered letters 
or failure to object to an account. Here the question will also be whether 
there was any duty or necessity to answer or object. The rule has been stat- 
ed by Bowen, L. J., to be that, silence is not evidence of an admission, unless 
there are circumstances which render it more reasonably probable that a man 
would answer the charge made against him than that he would not."(7) A 
man is not bound to answer every officious letter written to him. Though 



(1) Phiptoa, Er., 3cd Ed., 220, aod »athori- 
tin cited at head of oommentsiy. A party may, 
OD nmilar gronndi, be aSeoted by the acqoiescenoe 
d his agent* or others for whose admissioiia he 
is re«pooiibk>, ib.; Batter v. Woman, 3 L. T. N. 
8., 741 ; Price t. Wooikotue, 3 Ex., <16 ; and 
•cc seetioii, mpra. 

(2) nhtt. (9), nut ; IftiU t. Jatie, 2 C. * K., 
70t, npra. 

(3) lUnit*. (/). (»), ante. 

(4) T. pott, ti.net teq.. PhipMO, Et., 3rd Bd., 
MO ! Taylor, Et., | 816 ; Jone* v. Morrett, 1 0. * 
K., 2M; K. r. John, 7 C. * P., 324; ChiU r. 
Grace, 2 C. ft P., 193 ; S. v. Vtlth, 3 F. ft F., 276, 
sod note to this case in 3 Buss. Cr., 488. 

(6) Utile V. JaVU, supra ; Baytlep t. Oymer, 
1 A. ft E., 166 ; Price v. Burta, 6 W. B. (Eng.), 
10; B. T. Vox, 1 F. ft F., 90; «. V. MaUory, 18 
Cox, 468. 

|«) SeeCktM t. Oroee, 2 C. ft P., 193 ; per Tad- 
dy Serjt. : " The not making an answer may on- 
der some eiicamstsncee be qnite as strong aa 
the making one : " }MrBest,C. J., " Beally it is 
most dangatons evidence. A man may say this 
is impertinent in yon, and I will not answer your 
qaestion. " Bte also Moore r. Bmilh, 14 Serg. 
4 R., 393; Lmey t. MoufUl, 6 H. ft N., 229 ; Witie- 
man% v. WalpoU (1891), 2 Q. B., 634; Norton, 
Et., 113. " So statements made in a party's 
piesence daring a trial are not generally receiv- 
able against him merely on the ground that he did 
Dot deny them, for the regularity of Judicial pro- 
ceedings pieTentithe free interposition allowed 
m ordinary oonTers«t>oo : Meien v. Andretm, 
1 H. ft M., 836; B. T. Appleb,/, 2 Stwkie, H. 
P. C, 38 ; JJ. T. Tnmer, 1 Moo. C. C, 347 ; 
Chad T. Orace, supra. Etou here, however, cases 

W, I.E 



may ooour in whioh the refusal of a party to 
repel a charge made in a Court of Justice : 
Simpson v. Robinton, 12 Q. B., 612; or to 
cross-examine or contradict a witness; B. v. 
Coyle, 7 Cox, 74 ; or to reply to an affidavit : 
Morgan t. Kvant, 3 C. ft F., 169, 203, 
Frttman r. Cox, 8 Ch. D., 148; Bampitn 
V. WaUie, 27 Ch. D., 261, may aSoid a strong pre- 
sumption that the imputations made against 
him are correct. " In Sookram Miattr v. IF, 
Crowiv. 1» W. B., 283-286 (1873), Phear, J.: 
said: " It is true that sQence on the part of a de- 
fendant during the trial of a case in regard to any 
matter brought against him in the course of the 
case might possibly be of some value afterwards 
irrespective of the decree, as amounting to an 
admiasion on his part that that which was alleg- 
ed and with regard to which he had kept silence 
was true." See Phipson, Ev., 3rd Ed., 220, 
and tee American OAses there cited : and Cunning- 
ham ' s Ev. , 96 and 96. So when a judge at a trial 
made a proposal as to the course of proceedinga 
in the presence of counsel who raised no objec- 
tion, it was held not open to counsel subsequently 
to question the propriety of the course to which 
he bad impliedly given his assent ; Morriek v. 
Murrey, 13 H. ft W., 62, and " if a client be pre. 
sent in Court and stand by and see his solicitor 
enter into terms of an agreement he is not at 
liberty afterwards to repudiate it." Stein/en 
V. Svinfen, 24 Beav., 649, 669. 

(7) Wiedemann v. Walpole, supra at p. 639 ; 
and see per Willes, J., in Rieharde v. OeUaily, L. 
R., 7 C. P. at p. 131 ; the relation between the 
parties must be such that a reply might be rea- 
sonably expected. Norton, Ev., 113 ; Bd%nrd» 
V. ro««», 6 M. ft O., 824. " The only fair way of 



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50 EXPLANATORY FACTS, [S. 9.] 

ananswered, a letter may be evidenoe of a demand.{,l) The mere failure to 
answer or object will not generally imply an admi88ion.(2) But it u otherwise if 
the writer is entitled to an answer ; so, in the case of a letter written hj Ato B,to 
which the position of the parties justifies A in expecting an answer, — as when 
the subject of it is a contract or negotiation before pending between them,— 
the silence oiB maybe important evidence against him.(3) Among merchants 
an account rendered will be regarded as allowed if it be kept for any luigth 
of time without making an objection : and objection to one item only may 
imply assent to the other8.(4) Letters and other papers found in a party's 
possession will occasionally in a civil suit be evidence against him, as raising 
an inference that he knows tiieir contents and has acted upon them ; ana 
they are frequently received in criminal prosecutions. So, also, the oppor- 
tunity of constant access to documents may- sometimes, by raising a presump- 
tion that their contents are known, and of non-objection, afioid ground for 
affecting parties with an implied admission of the truth or correctness of such 
contentB.(6) Thus the rules of a club or the proceedings of a society recorded by 
the piopei officer and accessible to the members(6) or an account-book kept 
openly m a club-room (7) are evidence against the members. On similar 
grounds, books of account which have been kept between master and servant, 
tradesman and shopman, banker and customer or co-partner8,(8) will ooca- 
sionally be admitted as evidence even in favour of the party by whom they 
have been written, provided that the opposite party has had ample oppor- 
tunities for testing nom time to time the accuracy of the entrieB.(9) 

SunM»S?*' 9' Facts necessary to explain or introduce a fact in 

JJ^dSoe issue or relevant fact, or which support or rebut an inference 
JJJJJ*"' suggested by a fact in issue or relevant fact, or which estab- 
lish the identity (10) of any thing or person whose identity is 



•toting the rule of law ia, that in every OMe <4) Taylor, Bv., | 810, and oaaa* then 

yoo molt look at all the oircnnutanoeg under which cited. 

the letter wat written, and you must determine (;>) Taylor, Br.,} SIS. Sm note* to i. 14, fatl. 

for yonreelt whether the oircamatanoee are such (S) SafftU r. Uutgruve, 2 C. A P., 686 ; AUr- 

that the retoialto reply alone amoont* to an ad- son v. Clay, 1 Sterkie, 408 ; A»pittl r. Btntmbt, 

mission:" p<r Kay, L. J., in Iftedemaan t. 6 Ex., 147. 

WalvoU, 2 Q. B. (1891), MI ; and see }i«r Jenkins, (7) If OsM t. Adamim, 1 PhiUippe, Et., S3«. 

C. J., ia B. V. Bal Qtnaaikar 28 B., at p. 491 (8) 8tt Lindley, Partnership, 536, 6tii Ed., and 

(I004j cases there cited : and note to s. 18, }»<(. 

(1) Norton, Et., »6. a** also Roscoe, N. P. (9) Taylor, Et., { 812, and cases there cited; 
Et., 83. as to books of a Company see lindley, Compsay 

(2) See Fairlie v. DtrUon, 3 C. ft P., 103 ; Law, 312 ; Phipson, Et., 3rd Ed., 222, 223, 328 ; 
' ' what is said U> a man's (ace he is in some d^ree and books of Corporations, Taylor, Et., ]{ 1781 
called on to contradict, if hedoee not acquiesce —1783 ; Phipson, Et., 3rd Ed., 222, 223, 328 ; 
in it, but it is too much to say that a man 1^ Boscoe, N. P. St., 123, 214 — ^218 ; Oiaat «o 
omitting to answer a letter admit the truth of Corporations, 317 — 319 ; and note to s. 38, yMl 
the stotements it contains,' ' per Lord Tenderden; (10) See as to identity. Introduction to ss. 48 — 
or ' ' that eTery paper a man holds purporting 81, fott (opinion CTidenoe). Wigmore, Et., | 410 
to charge him with a debt or liability is eWdenoe << ft' Witnesses may stete their belief as to the 
•gainst him ;" Dot f. Fmnkit, 11 A. ft E., 792, identity of persons present in Court or not and 
jKT Lord Denman, and see RUkardt ▼. OtOaUfl, may also identify absent peiwms by photographs 
L. R., 7 C. P., 127 i VUiemafm t. WalfdU. produced and proved to be theirs [Phipson, Br., 
supra. 3rd Ed., 383 : Fnik v. FriA, L. R. P. D. (1896), 

(3) Lucy T. MoufUt, 8 H. ft N., 229 ; Bdmards p. 74 ; notes to s. 36, pott : Introdnctico to a. 
T. TonUs, supra ; Riehardtonv. Ihinn,i Q. B., 46— 60, ]x>«f; Rogers Expert Testimony, { 1 40]. 
218 ; OtttUtt T. Skene, 14 Q. B., 604 ; Fairlie v. The same rule applies to idsntification of things 
i>eii<oii, supra ; Frtetnan t. Cox, supra i Hawtpden (A.) It is well settled that (or certain pstpasas 
V. If aS<«, supra. photographs may be received in evidence Thus 



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[«. 9.] EXPLANATORY FA0T8. 51 

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. 

Ittustrationa. 

(a) Tbe question is, whether a given dooament ia the will of A. 
The atete of A't proporty and of his family at the date of tiie alleged will may 
be relevant faots.(l) 

(i) A 8U«e B for a libel imputing diagraoeful conduot to A ; B afiBrms that the mat- 
ter alleged to be libelloas is true. 

Hie position and relation of the parties at the time when the libel was published 

may be relevant facta as introductory to the facta in issue. 
The particulars of a dispute between A and B about a matter unconnected with 
the alleged libel are iixdevant though the fact tliat there was a dispute may 
be relevant if it affected the relations between A and B.{2) 

(e) A is aoODsed of a crime. 
The faiet that, soon after the commission of the crime, A absconded fiDom his 

house, is relevant, under section 8, as conduct sobseqnent to, and affected by, 

facts in issne. 
The fact that at the time when be loft horn-, he hud sadden and urgent bosineas 

at the place to which he went, is relevaat, as tending to eacplain the fact tliat 

be left home suddenly. 
Ilia details of ihe bunnees on which he left are not rdevant, except in ao far 

as they are necessary to show that the bniineas was snddsn and urgent.(8) 

((f) A sues B for inducing C to break a oontntct of servioe 'made by him with 
A. C, on leaving A'» service, says to A, ' I am leaving you beoaoM B has made me 



vkaaaver it is important that the tcetu (n quo be too remote and would waste too mooh time, 
riuiald be desocibed to the jxiry, it i* competent It is niffioient to show that there wm a qnaml, 
to tattrodooe in erideooe a photographie view of Norton, Er., 117. Bimjuou t. Bobimtm, 12 Q. 
it. 8o also in an Mtioo to reoorer damagea B.. 811 ; «e« *. 14, ilfaut. (e), foM. 
far iwanlt eommitted with a rawfaida, a plaintiff (3) The prenunptian or ' inference ' uiaing 
«■« aDowad to faitrodnce a ferrotype of liia l)aok from the act of afaaoooding ia thna ' rebnttad.' 
takaa three days after tbe injury, the p«son talt- The fact of abaooiding ia in itself eqaivooal. It 
tig tfaa aame having testifled that it was a oor- may be the leanlt of gmlty knowledge or ooo- 
reetrepreaentatiao. Bogers' op, eit. Harris' Law scienoe, or it may be perfeotly inmooent. Any 
«f Idantifieatian, H 12, 167—178, 362, S90, 642. thing therefore, tliat the party says at the time 
Aa to photograpliic oopiea <rf writings for pnr- of the act ia receivable as exflanatory of a rels- 
paae of eompariaon, ace s. 73, fOtt. vant act. It woold alao be leoeirable as part 
(1) As explanatory or introdaotory. Alao of therM^uMiand aaadeplaration acoompanying 
whan the qnaetion ia will or no will, anoh facta an act. The question frequently ariaea in ban- 
nay oontiadiot or support the terms of the alleged kraptcy, when it is necessary to decide whether 
viB wliemoe forgery might be preaomed or nega- leaving ttie honae ia an act of bankruptcy or not. 
tived. Saeh facta wonld than ' ' rebnt or sup- In order to prove the intent with which the ban- 
port an interaaae anggeated by a fact in iasoe." kmpt departed from his dwelUng-hooae evidence 
(NertCB, Kv., 116). It ia to be observed that the of what he said is admisaihie as forming part of 
Imtlam and nottheeonatmetionolthe will ia here the rs* gulm. Norton, Bv., 118; Boaooe^ N. 



in iasna. Aa to evidence of snrronnd- P. Sv., 62 ; Battamn v. BoiUf, 6 T. R., SIS ; 

lag dceanstaaoes in aid of ooostmotioo. Me In- Anibrom v. Oieadon, Oa. t., Hardw., 267 i Jionei 

tradnotioB to Ckap. VI, jntt. v. 0. W. Jty. Co., 1 Q. B., 61 ; Smilk v. OraaMr. 

(2) Tbe objwst with which what wooU other- 1 N. C, S86. The detaila jnst aa in illnat. (6) are 

wise be ee B a ten l matter ia reoeivable here, ia to not admiaaible genaia% except as corroborating 

show the wmlict or mniw of the libe!ler> thoogh the allegation of the suddenness and urgency of 

to ao into the foil detaila al a quairel would the emergency which caaaed the depaxtore. 

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52 KXPLANATORY FACTS. [b. 9.] 

a better ofiFer.' This statement is a relevant fact as explanatory of C'l conduct, 
whioh is relevant as a fact in iasue.CM 
(c) A, aoonaed of theft, is seen to give the stolen property to B, who is seen to 
gire it to A'» wife. B says, as he deliyers it, ' A says yon are to hide this.' B'a statement 
ia xtkrant M explanatory of a fact which is part of the traaBaction.(2) 

{J) Aia teied for a riot, and is proved to bare marched at the head of a mob. 
Theories of the mob are relevant, as explanatory of tbe nature of the transaction-tS)- 

Principle. — As the 7th and 8th sections provide generally for the admis- 
sion of facts catuative of a fact relevant or in issue, the present section may 
be said generally to provide for facts exflanatxury of any suchfact.(4) There 
are many incidents which, though they may not strictly constitute a fact in 
issue, may yet be regarded as fonning a part of it, in the sense that they 
accompany and tend to explain the main fact, such a^ identity,(5) names, 
dated, places, the description, circumstances and relations of the parties 
and other explanatory and introductory facts of a like nature.(6) The 
particulars receivable will necessarily vary with each individual case ; it 
IS not all the incidents of a transaction that may be proved ; for the 
narrative might be run down into purely irrelevant and unnecessary detail.(7) 
By the answers to some of such questions, if sufficiently particular for the- 
pnrpose the fact is indimdwdiaed.{S) See also Cktmmentary, fott. 
s. 8 ("Fad. ") 8. 11 (RebutUd of inference, etc.) 

s. 8 (" Fact in ittve.") s. 3 (" BeUvant.") 

Steph. Dig., Art. 9 ; Steph. Introd. ; Phipson, Ev., 3rd Ed., 48 ; Cunningham. Er., 98 ; 
Norton, Ev., 116; Wills' Ev., 47; Wigmore, Et., S§ 410—416. 

OOMMBNTART. 
■xpuma- ^^ seventh section, ante, provides for evidence of the state of things 

toiT fiaots under which relevant facts or facts in issue happened, and the 14th and 
16th sections, post, for evidence of similar facts, closely connected with the 
main fact, and explanatory of it. Evidence in support, and particularly 
in rebuttal, of inferences is of a similar explanatory character.(9) The 
eleventh section is very like the present one as to rebutting an inference 
and forms an instance of sections overtopping one another .(10) All the 
abovementioned facts qualify, explain, or complete the main fact in some 
material particular. A statement which can be shown to be explanatory 
under this section may be admissible irrespective of whether the person 
against whom it is given, heard it, or was present when it was made(ll) 

Deolaraticnu made or letten written during absence the rioters, joint and common, for the pcrpetra- 

from home, are tdmianble as original evidence, tion of a wrongful act. " Norton, Kr., 118. In- 

(inoe the deaprtore and abaence are regarded aa H. r. Hunt, 3 B. ft Aid., S66, 578, evidnce 

one continuing act. Taylor, Ev., J{ S88, S89. given of banners and inscriptions was held to 

(1) V. fott ; Uaiky v. Carter, 8 New Hamp. be properly admissible to show the general 

R., 40 ; AvJmmiy v. Thaekr, Spink and otkera character and intention of au assembly. 

B. L. R., 107. (4) Cunningham, Er., 98. 

(i) V. po$t. (5) 5ee Norton, £r., 119; B. r. Bieimtn, S 

(8) ItiB illustration is foonded on the cose of East., P. C, 1036; A. v. Sooney, 7 C. ft P., S17 ; 

«. V. Lord Otorjt Gordon, 21 How. St.Tr., 6U, *. v. Fwtty, 6 C. ft P., 81 ; Wills' Ev., 47. 

529. " In the case put, the cries would be made (6) See R. v. Amir Khan, 9 B. L. R., SO, SO, 

in the presence of the leader, though they were 61 (1871). 

the cries of third parties, not of himself; bis (7) Phipson, Ev., 3rd Ed., 48; the facts are 

silence would be equivalent to an admission that relevant, " in so far as they are ntctttary for 

he accepted and acquiesced in those cries as that purpose,' s. 9, mpra. 

ezplanatccy of the common objects of himself as (8) Bentham cited in Norton, Ev., 44. 

well as cl those he led. Under the eflect of (9) lUust. (e). 

the next seotico such cries would be evidence (lO) Norton, Er., 116, and Introdaotioo, •«<<;.. 



against the acouaed, eren it he was not present, (U) Bet illusts. (d), («). 

npoD proof tt a conspiracy between himself and 



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[«. 9.] EXPLANATORY FACTS. 53 

fiat it is necessary to distinguish the purpose for which it is admissible. " It 
is presumed that the statements made by C in the one case, and B in the other 
[illusts. (d), (e), ante] are only to be receivable as evidence that such state- 
mente were made, as declarations accompanying and explaining an act, 
not of the truth of them as affecting B oi A respectively. Without some proof 
of authority given by the parties to be affected, to those making the state- 
ments, it is clear that a very dangerous innovation is introduced, whereby 
persons may suffer in life, person, or property by statements put into their 
mouths behind their backs ; a principle which the law of evidence has hitherto 
entirely eschewed. "(1) Identity may be thought of as a quality of a person 
or thing. The essential assumption is that two persons or things are thought 
of as existing and that the one is alleged because of common features to be 
the same as the other. The process of inference operates by comparing common 
marks found to exist in the two supposed separate objects of thought with 
reference to the possibility of their being the same. It follows that its force 
depends on the necessariness of the association between the mark, and a single 
object. Where a circumstance, feature or mark may commonly be found 
associated with a large number of objects, the presence of the feature or mark 
in two supposed objects is little indication of their identity because on the 
general principle of relevancy the other conceivable hypotheses are so nu- 
merous, i.e., the objects that possess that mark are numerous, and therefore two 
of them possessing it may well be different. But where the objects possessing 
the mark are only one or a few, and the mark is found in two supposed 
instances the chances of the two being different are nil or are compara- 
tively small. For, simplicity sake the evidential circumstances may thus be 
spoken of as a mark. But in practice it rarely occurs that the evidential 
mark is a single circumstance. It is by adding circumstance to circumBtance 
that we obtain a composite feature or mark which, as a whole, cannot be 
sapposed to be associated with more than a single object.(2) In the under- 
mentioned case(3) one of the questions in issue as to the pedigree of a 
certain family being whether one S was son of B 8, or of one M 8 belonging 
to a totally different family from that of B 8, an attested copy of a rubkar (or 
Magistrate's judgment) in some proceedings long anterior to the suit was ten- 
dered in evidence in which rubkar 6 8 was described as the eon of B 8. It was 
A«W that the rubkar was admissible in evidence imder the provisions of this 
section. Where one of the main questions for determination in a case was 
whether a document impugned was or was not presented before the Begistrar 
by one N 8, & comparison of the thumb-impression of the person who present- 
ed the document with that of N8, was held to be admissible under this 
section if the similarity of those impressions could establish the identity of 
that person with N 8.(i) It often happens that a place or a time is marked 
significantly by an utterance there or then occurring, so that the identifica- 
tion of it may alone be made, or not be made by permitting the various 
witnesses to mention the utterance as an identifying mark. The utterance not 
being used as an assertion to prove any fact asserted therein is not obnoxious 
to the hearsay rule and may therefore be proved like any other identifying 
mark. The utterance cannot, however, be used as having any assertive value. 
Prom this use of identifying utterances the following superficially similar uses 

' (DNorton, Et., 118, 119; j>ereo)i<ro, Conning- residence and other circunuUnces of personal 

ham, Et., 98 96 ; it will ke seen from the illustra* history, ib., §413. 

tiona thenuelves that the statement in illnst. (d) (3) Sadkan Singh v. Kanayi Dichit, 18 A., 98 

isrelevamtaa explanatory otC> conduct: and in (1895). 

(e> of " 4 tae< whidt ts part of Iht tratuaction." (4) R. v. Fakir 3IahomtJ. 1 C. W. N., 33, 34 

(2) Wigmoie's Eridenoe, { 411. Cironmstan- (1896); m* as to identity, ante, p. SO n. (10) 

•es identiiying penons are corporeal maiks, voice, and port, s. 11, and Introductions to ss. 46—61. 

awotal peculiarities, clothing, weapons^ name. 



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54 CONSPIRACY. [S. 10.] 

should be distingauihed (a) mentioning a third person's utterance as a reason 
for observing a particular fact, (b) mentioning it as a reason for recollecting a 
particular fact; (c) using one's own prior utterances of a fact to corroborate 
one's present testimony and repel the suggestion of recent contrivance^ ■ ; 

Things said 10. Where there is reasonable groimd to believe that 
oonwinitor two or moie persons have conspired together to commit an 
toomn!mon*ofience or an actionable wrong, anything said, done, or writ- 
"" *'"' ten by any one of such persons in reference to their common 
intention, after the time when such intention was first enter- 
tained 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. 

lUuttration. 

Raosonsble ground exiata for believing that A has joined in a conspiracy to wage wai 
against the Qaeen. 

The {acts that B procured arms, in Europe for the purpose of the conspiracy, C collect- 
ed money in Calcutta for a like object, D persuaded persons to join the conspiracy in 
Bombay, E published writings advocating the object in view at Agra, and F traoamitted 
from Delhi to 0, at Kabul, the money which Chad collected at Calcutta, and the cMitents 
of a letter written by E, giving an account of the conspiracy, are each relevant, both to ^ove 
the existence of ihe conspiracy, and to prove A^t complicity in it, although he may hare 
been ignorant of all of them, and although the persons by whom they were done were strang- 
ers to him, and although they may have taken place before he joined the conspiracy or after 
he left it. 

Principle.— The rule which says that a man shall be chargeable with the 
acts and declarations of his agent or fellow-conspirator is not a rule of 
evidence. (2) A conspiracy makes each conspirator liable under the criminal 
law for the acts of every other conspirator done in pursuance(3) of the 
conspiracy. Consequently the admissions of a co-conspirator may be 
used to afEect the proof against the others on the same c^^ditions as his 
acts when used to create their legal liability. The inctusioa of tort-ftason 
enacts the same rule in its apphcation to civil liability for torts.(4) The 
tests therefore are the same whether that which is offered is the act or the 
admission of the co-conspirator or joint tort-feasor ; in other words the 
question is one of substantive law and its solution is not to be sought in any 
principle of evidence.(5) The principle is substantially the same as tiiat which 
regulates the relation of agent and principal. When various persons conspire to 
commit an o£Eenoe or actionable wrong {e.g., co-trespassers or other to>t-/awort) 
each makes the rest his agents to carry the plan into execution. The acts 
done by any one in reference to the common intention (v. post) is considered to 
be the act of all. These acts are themselves evidence of tiie corjms ddkti, die 
conspiracy to be established ; they are relevant " for the purpose of proving 
the conspiracy," as well as the part which each conspirator took in it.(6) 



(1) Wigmore, Et., } 416. £v., 121 ; Taylor, Ev., f 590 ; 3 Ron. Cr., 143, 

(2) Prof. Thayer in Amerioan Law ReTiew, 144; Best, £▼.,{ 808 ; R. v. AmirKka%,ii. l^ 
ZV, 80. R., 36 (1871); 8.o., 17 W. R. Cr., 16; Ji. v. 

(3) 5m, however, a* to this, note* pott. Amiruidi*, 9 B. L. R., 36 (1871) ; (.o., 16 W. 

(4) fin R. T. BarimeU, 11 Eaet., 678, 686. R. Cr., 26, and caws there and in the tezt-booka 
(S>) Wigmore, Ey., | 1079. (««tini) eited. 



(6) Steph. Dig., Note HI, p. 160; Norton, 



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[8. 10.] OONSPIBAOT. 55 

8. 8 ( " SeUvanL " ) s. 186. {Faei proposed to be proved only ad- 

8. 8 ( " Fact. " ) misiible on proof of tome other fact.) 

Steph. Dig.. Art. 4, and Note III ; Taylor. Ev., {$ 690—697 : Best, Er.. § 608 ; 3 BasseU's 
Crimea, 109—176; Norton, Ev., 120 ; BoMoe. Cr. Ev., 12th Ed., 367—379 ; Mayne's Penal 
Code^ M. 107, I21A; Will*, Ev., 116—118 ; Wigmore, Ev., § 1079. 

OOHHXNTART. 

The provisions of the section are wider than those of the English Law nnamiaswsT 
according to which the act or declaration must have been done or said in the 
execution or furtherance of the common purpose. (1) Thus mere narratives and 
admissions of past events have been held to be inadmissible as such as against 
any conspirators, except those by whom, or in whose presence, such state- 
ments were made.(2) Under the present section anTthing said ur done in refer- 
ence to the common intention is admissible, and thus the contents of a letter 
written by a co-conspirator giving an cteeount of the conspiracy is relevant 
anmst the others, even though not written in support of it or in furtherance 
Of t(.(3) It is not necessary that the co-conspirator, whose act or declaration it 
is sought to prove, should be tried or indicted. (4) The act or declaration of the 
co-conspirator may have been done or made by a stranger to, and in the absence 
of. the party against whom it is offered ; or without his knowledge, or before 
he joined the combination ;(5) or even after he leftit.(6) This last-mentioned 
provision is contrary to the English rale, according to which acts and 
declarations of others are not admissible against a conspirator if done or 
made after his connection with the conspiracy has ceased.(7) 

There must be an issue as to the existence of the conspiracy, and "reason- 
able ground^'(8) for belief in the existence of the conspiracy must be shown, 
before evidence is given of the acts of persons who, but for such conspiracy, 
would be strangers to one another. (a) The existence or fact of conspiracy must 
be proved before evidence can be given of the acts of any person not in the 
presence of the prisoner. This must, generally speaking, be done by evi- 
dence of the party's own acts.( 9) But owing to the difficulties in the way of such 
proof a deviation has, in many cases, been made from the general rule, and 
evidence of the acts and conduct of others has been admitted to prove the exis- 
tence of a conspiracy previous to the proof of the defendants' privity .(10) But 
in respect of sr ^.h conduct a distinction has been, made between declarations 
accompanying 4»cts(ll) (which are admissible), and mere detached declarations 
and confessions of persons not defendants, not made in the prosecution of 
the object of the conspiracy, and which being mere "hearsay," are not 
evidence even, to prove the existence of a conspiracy .(12) The persons must 



(1) Steph Dig., Art. 4, and text-book* cited, (6) iS«e Iliuat., an«. 

■Ke. (7) R. T. Hardy, 24 How. St. Tr., 718, 731 : 

it) n. r. Barif, 24 How. St. Tr., 718, where an Taylor, Ev., f 69S. 

Mceent given by one of the conipiratora in a let- (8) KaitvMni Daut v. KunmMni Datti, 30 

tcr to a iriend of hia own proeeedinga in the matter C. , 083 ( 1 903) a.o., 7 C. W. N., 808. 

■ot intended to fnrther the common object, and (9) 1 Eaat. P. C, 96, cited in argument in S. 

not brooiht to A'* notice, waa held not to be y. Amir Khan, aupra, 66 ; Bosooe, Or. Ev., 12tb 

relarantaaagainat/l.-aeeaboi?. V. filaie,eQ.B. Ed., 371. 

826; Steph. Dig., Art. 4, lUiKts. (a), (t); Taylor. (10) Boaooe, Cr. Ev.. 404, 12th Ed., 371 ; 2 

Et., { 693, 694. Starkie, 2nd Ed., 234. 

(3) See Illaatautiao to section ; and FleU'a (|l) r. a. 8, anit. 

8t., te ; Cnnningham, Ev., 100 ; Whitley Stokes, (12)2 Storkie, Ev., 236, cited in Roecoe. Cr. 

W- Ev.. 12th Ed., 374 ; " the mere assertion of a 

(4) Roecoe, (>. St., 407. 408, I2th Ed., 876. ' stranger that a conspiracy existed amongst 
(6) See Illnst., aale ; R. v. Bra»drttk, 32 How. others to which he was not a party would, clear- 

8t. Tr., 867. 868 ; £. V. Jfwpky, 8 C. & P., ly, be inadmissible ; and although the person 

311 ; Taylor, Ev., { 692. making the assertion confessed that he was patty 

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56 PBOBABIUTT. [■•H*] 

have conspired together to commit an offence or actionable wrong. There 
must have been some pre-concert. A conspiracy within the terms of thia sec- 
tion contemplates something more than the joint action of two or more 
persons to commit an offence. If that were not so, the section would be 
applicable to any offence committed by two or more persons jointly with 
deliberation, and this wonld import into a trial a mass of hearsay evi- 
dence, which the accused persons wonld find it impossible to meet.(l) (b) After 
the existence of a conspiracy has been established, the particular defen- 
dant must be proved to have been parties to it.(2) (c) After these two facts have 
been proved the acts and declarations of other conspirators in reference 
to their common intention may in all cases be given in evidence against 
the defendants ; and under the present section, letters written and declara- 
tions made by any of the conspirators which are not part of the ret gestte of 
the conspiracy and are in the natare of mere admiseionsare admissible as against 
the rest. (3) "It is necessary to prove the existence of a conspiracy, and to 
connect the prisoner with it in the first instance, when you seek to give in evi- 
dence against him the declaration of a co-conspirator ; and having done so, 
you are then at liberty to give in evidence against the prisoner acts done by 
any of the parties, whom you have connected with the conspiracy ; but when 
a party's own declarations are to be given in evidence, such preliminary 
proof is not requisite, and you may, as m any other offence, prove the whole 
case against him by his own admission."(4) A conspiracy need not be es- 
tablished by proof which actually brings the parties together ; but may be 
shown, like any other fact, by circumstantial evidence.(5) 

wben facts 11. Facts not otherwise relevant are relevant — 

pot otn#r* 

▼antbt*' (1) If they are inconsistent with any fact in issue or 

5SS?'*'*" relevant fact; 

(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. 

Ittutlrationt. 
(a) The qaeation ia, whether A committed a crime at Calcutta on a certain day. 
The fact that, on that day, A was at Lahore, is releTant.(C) 



to it^ this on principle folly established would not Ir. Ciro. Bep., 461, cited in Taylor, Et., p. fiSS. 

make the aeeertion eridence o{ the fact against (T') Taylor, Er., { 691 i 3 Ross., Cr., I4S ; the 

strangers " ib. ; m also 3 Rosa., Or., 144. eridence may be entirely cironmstantial awi 

(1) NoftiuhrobaUiDabtev. S.,4C.W.S.,626, the existence of the conspiracy collected mm 
630 (1900). As to eridenoe of conspiracy, see ooUateral oircnmstaneee ; B. v. Portoiu, I W. R.> 
SMbrakmania Aiyfar ▼. K., 28 C, 797 (1901) ; Jt. 392 ; Rosooe, Cr. Et., 12th Ed., 373—374. ' ' It 
T. Tirumal Sedii, 24 H., 647 (1901) ; 7'empie<on is perieotly trne that the dark covertness of rrin* 
T. Lavrie, 26 B., 230 (1900). [ conspiracy to cannot often be laid open, that conspiiarira like 
obtain oooTiotion of aconsed person ; and as to other crimes most be generally supported by or- 
what amounts to evidenoe of abetment of con. comstantial proof," per Sir Lawrence Peel, C J.- 
ipin»y,s<,eKalUMunda v. J?., 28 0., 797 (1901). in «. v. Htdter, p. 129 (1852). 

(2) Roecoe, Or. Et., 12th Ed., 374. («) An alibi the relcTancyof which is its enlne 

(3) T. mipro, and Rosooe, Cr. Et., 12th Ed., inconsistency with the hypothesis that thesocuaed 
369 : and as to proo^ generally, t6., 404 — 408 ; committed the crime. Norton, Br., 134; see & t 
12thEd., 371— 376; TheQueen't Ca»e,2B. AB., 'iSaUaramifiiJhuMi;!, lIBom. B.C. R, ia«(I874): 
810; Morton, Et., 120; 3 Rnss., Cr., 144, and and s. 163, iUust. (c), fOM ; see obserTStions on 
cases there cited ; but see also s. 136^ poj<. an alibi as a defence in X. t. Pofihuimt, II Boa. 

(4) Per Pennefather, a J., in R. t. MeKenmi, H. C. R., 97 (1874) ; WilK Ore Et, 1(17. 



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[S. 11,] PROBABIUTY. 57 

The fact that, near the time when the orime wag oommitted, A was at a dis- 
tance from the place where it was committed, which would render it highly 
imfoobable, thoagh not impossible, that he committed it, is relevant.(l) 
(b) The question is, whether A committed a crime. 

The ciiciirastances are such that the crime must have been committed either 
by A, B,C OT 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, G or D, 
is relevant.(2) 

Principle. — The object of a trial being the establishment or disproof by 
evidence of a particular claim or charge, it is obvious that any fact which either 
disproves or tends to disprove or tends to prove that claim or charge is rele- 
vant. 

«. 8 ("Faef.") s. 18 {Transaction inconsi«tent ujith exittenre 

«. 3 ( '* SeUvant. " ) o/ right or enstom.) 

* 8 ( " Fact in tMue. " ) 

Steph. Dig., Art. 3 ; Steph. Introd.. 160, 161 ; Norton, Ev., 124; Whitley Stokes, II, 81fl; 
Oamiingham, Ev., 102 ; Taylor, Ev., J| 322—325 ; Wills' Circ. Ev., patsim ; Roscoe, N. P. 
Et.. 85. 86, 931, 934 ; Wigmore, Ev.. $$ 135—144. 

OOHMBNTART. 

While the seventh section defines the meaning of the term 'relevancy' in inoonsls- 
quasi-scientific language, the present section contains a statement in popular ^"Kj^mt- 
language of what in the former section is attempted to be stated in scientific 
language. The practical effect of these two sections is to make every relevant 
fact admissible as evidence.(2) It has been said that the terms of this section, 
which are very exten8ive,(3) must be read subject to the restrictive operation 
of other sections in the Act :(4) that it may possibly be argued that the effect 
of the second paragraph of this section would be to admit proof of facts of 
the irrelevant character mentioned in the Introduction {ante) : but that this 
was not the intention of the section, is shown by the special provisions in the 
following part of this Chapter as to the particular exceptions which exist to the 
general rules which exclude as irrelevant the four classes of evidence already 
mentioned in the Introduction, and is also shown by indications in other por- 
tions of the Act. (5) The sort of facts which the section was intended to 



(1) This example is of a fact rendering the ing effect had been added to it : — 'No statement 
h^pothetieal fact on the other side not positively shall be regarded as rendering the matter stated 
impiasible, bat highly improbable as often A>?A/y prt)6aMe within the meaning of this section 
iMppens, when the question is, whether there unless it is declared to be a relevant fact under 
«« time for the accused to have'gone from the some other section of this Act. ' lb., 1 61 ; see 
place where he says he was to the scene of the observations on this section in Whitley Stokes, 
nime and retamed again. 819. Itifito be observed, however, that the 

(2) This is a disjanctive hypothetical syllo- section says " Facts " not oAeriMM relevant (t,e., 
fism — X is either ./I or B or C ; but it is not B under Bi. C-IO, 12, and subsequent sections) are 
or C ; therefore it U A ; see Whitley Stolces, 801, relevant, etc. 

note (3); Cunningham, £v. , 103 ; Norton, Ev., (6) Steph. Introd., 1 00. ; "It may, for in- 

12^ stance, be said : A (not called as a witness) was 

(3) Markby, Ev., 17, 18. heard to declare that he had seen B commit a 

(4) "Some degree of latitude was designedly crime. Tliis makes it highly probable that Bdid 
left in the wording of the section (in compliance commit that crime. Therefore A't declaration is 
with a suggestion from the Madras Government) a relevant fact under s. 1 1 , cl. (2). This was not 
«n account of the variety of matters to which it the intention of the section, as is shown by the 
mi^t apply:" Steph. Introd., 160,181. elaborate provisions contained in the following 

(9) " The meaning of the rection would have part of the Chapter II (ss. 12—39) as to parti- 
been mof« folly ezpresKed, if words to the follow- cular classes of statements, which are regarded 



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58 PBOBABIUTT. [S. 11.} 

include, aie faots which either exclude or imply, more or less distinctly, the 
existence of the faots sought to be proved.(l) In the words of West, J., 
this section " is, no doubt, expressed in terms so extensive that any fact which 
can, by a chain of ratiocination, be brought into connexion with another, so 
as to have a bearing upon a point in issue may possibly be held to be relevant 
within its meaning. But the connexions of human afEairs are so infinitely 
various, and so far-reaching, that thus to take the section in its widest ad- 
missible sense, would be to complicate every trial with m mass of collateral 
inquiries limited only by the patience and the means of the parties. One 
of the objects of a law of evidence, is to restrict the investigations made by 
Courts within the bounds prescribed by general convenience, and this object 
would be completely frustrated by the admission on all occasions, of every 
circumstance on either side, having some remote and conjectural probative 
force, the precise amount of which might itself be ascertainable only by a long 
trial and a determination of fresh collateral issues, groMring up in endless 
succession, as the enquiry proceeded. That such an extensive meaning was 
not in the mind of the Legislature, seems to be shown by several indications 
in the Act itself. The illustrations to the eleventh section do not go beyond 
familiar oases in the English law of evidence."(2) All evidence which would 
be held to be admissible by English law would be properly admitted under 
this section. (3) There must always be room for the exercise of discretion 
when the relevancy of testimony rests upon its effect towards making the 
affirmative or negative of a proposition " highly probable," and with any 
reasonable use of the discretion, the Court ought not to interfere.(4) In 
order that a collateral fact may be admissible as relevant under the eleventh 
section, the requirements of the law are (a) that the collateral fact must 
itself be established by nonnally conclusive evidence and (b) that it must, 
when established, afiord a reasonable presumption or inference as to the 
matter in dispute.(6) 

Any fact material to the issue which has been proved by the one side 
may be disproved by the other, whether the contradiction is complete, i.e., in 
consistent with a relevant fact under the first clause of this section, or such 
as only to render the existence of the alleged fact highly improbable under the 
second clause.(6) There are five common cases of the argument of incon- 
sistency (a) the absence of the person charged in another place (a/t6t) ; (6) 
the absence of a husband {non-access), a variety of the preceeding ; (c) the 
survival of any alleged deceased person after the supposed time of death, 
and (d) the self-infliction of the harm alleged. Thus the theory of an alibi i» 
that the fact of presence elsewhere is essentially inconsistent with presoice at 
the place and time alleged and therefore with personal participation in the 
act.(7) So to disprove a rape, evidence is admissible that the prisoner had 
for many years been afflicted with a rupture which rendered sexual inter- 



M relevant facta, either 1>ecau«e the drcum- prorision* ofthe AotMtoreloTMioy." Cgnning- 

•tsnoeB under wUoh they are made iaveet them ham, Et., IW. 

with importance, or because no better evidence (S) B. v. Partkudat, II Bom. H. 0. &, 90, •! 

can be got." it. (1874) ; R. t. Vajinm, l« B., 414, 4tfi (188t) : 

{I) lb. " the worda 'At^My probable' point out «« note to s. 14, jkm*. 

that the connection betveen the facta in iwue (3) S. v. Tajiram, supra, 4!)0, per Telang, J. 

and the collateral facts sought to be proved (4) S. r. Parbhidat, supra, 9>, per We*t. J. 

most b« so mediate as to render the co-existence (5) Bibi Khavtr v, BAi S»y>a, 6 Bom. L> R. 

of the two highly probable," per Mitter, J., 983(1904). 

B- v. It, J, Vyapcoty Mooieliar, f. C, oefl, (6) S. 9 is very similar to the present aeatiOB 

662(1881). "If an improperly wide scope be as to rebutting an infei«aoe ; Norton, Ev., 116. 

given to the section, the latter might seem to v. airte, 

contain in itsell and to rapersede all the other (7) Wigmore, Ev-. H 1M( tl mq. 



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[a. 11.] PROBABIUTY. 59 

oonne i]iipoa8ible.(l) When the qaeation was whether a deed was forged or 
not^ it was held admissible to prove that the titles recited in the deed as 
those of the then reigning sovereign were not in fact then used by that 
80Tereign.(2) The question being whether A lent money to B, evidence 
of the poverty of A aoont the time of the alleged loan is admissible as tend- 
ing to disprove it.( 3) Again, under this latter clause of the section, facts 
may be put in evidence in corroboration of other relevant facts, if they render 
them highly probable.(4) So where two or more persons have perished by a 
common calamity such as shipwreck, and the question is whether A survived 
B, the law of England raises no presumption either of survivorship or con- 
temporaneous death : but if any circumstances connected with the death of 
either party can be proved, the whole question of survivorship may be dealt 
with as one of fact, and the comparative strength, or skill, or energy of the 
two sufferers may be taken into account in estimating the probabilities of the 
ca8e.(5) The question being, whether A is the child of B, evidence of the 
resemblance, or want of resemblance, of ^ to JS is admissible. (6) So also 
circumstances may be proved which render the fact of payment of a debt 
probable, as^ for instance, the settlement of accounts subsequent to the accru- 
ing of the debt, in which no mention is made of it.(7) Where defendants 
Nob. 2 and 4 sold a jote to defendant No. 1, which they obtained under a 
partition, and subsequently colluded with the plaintiff and denied the said 
partition as well as the sale, the statements previously made by them, which 
went to show that there had been a partition and they had changed their 
attitude were held to be admissible as against them under the third clause of 
twenty-first section and the second clause of the eleventh section of the Evi- 
dence Act.(8) In a case in which the question was as to the permanency of 
certain leases in suit, instances of alleged recognition of the successors of the 
grantees were adduced relating to other leases. It was argued that, as all 
the leases were granted at or about the same time under similar circum- 
stances and on similar terms, acts and conduct of the parties indicative of 
an intention that any one of these leases was perpetual should be evidence of 
a similar intention with regard to all the other leases. The Court, however, 
held that it was unable to accept this argument as correct in its broad gene- 
nJity. If it had been shown that in the case of a fairly large number of these 
leasM, there was recognition of the successors of the original grantees, and 
such recognition was not explained by the other side as being the result of 
anything peculiar to the leases to which the recognition related, the fact that 
the intention indicated by the acts and conduct of the parties was to make 
these leases perpetual would make it highly probable that the same was the 
intention with regard to the leases in dispute, and the facts relating to these 
leases would, therefore, have been relevant facts under the second clause of 
this section. But then such a fairly large number of instances were not 
proved and the instances so far as they were proved had been explained as 
being either insufficient or as being the result of peculiarities in the circum- 
stances of the leases to which they belonged.(9) When the question was 

(1) I Usle, P. C, «3S ; Best, Ev., { 4K>. (7) CoImU v. Budd, ICftmp., 27 ; as also that 

<2) Laig /«y'« «MS, 10 St. Tr., 615 ; Steph. the party claiming to hare paid the debt waa 

Dig., Alt. 9, illost. (4) ; see also Field, Er., p. afterwards in possession of the docament creating, 

W, note- it : Brembriigi v. Otborne, 1 Starkic, 374 ; see for 

(S) Oowiiar r. Dotdint, 13 Ir. C. L., 241, cited simUar cases, Taylor, Er., §§ 178, 138 ; Best, Ev., 

inPhipeon, Er.. 3rd Ed., 95. f 40S; and other cases dealt with by these au- 

(4) Norton, Et., 124, thors under the head of presumptive evidence. 

(1) Tiytar, Ev., {203; Best, Ev., $410; (/»- (8) £t6t Oyannessa v. Miummat Mohankun- 



' V. Wimt, 4 D. H. * O., 638 : Wing v. «tua, 2 C. W. N., 91 (1897). 
^sfrase, 8 H. L. C, 163. (9) A'arMoyA 7)ya( v. Aim .Varatn, 30 C.,883, 

(l>) Bamoiy v. BaiUie, 42 Ch. D., 282, 290. 896, 897 (1903). 

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60 PROBABILITY. [l. 11.] 

whether a deceased person had married a lady and a draft of a will not written 
by the testator himself and containing no mention of the lady was tendered 
in evidence under this section it was held to be inadmissible inasmuch as it 
was not a written statement made by the deceased te8tator.(l) As to the 
question of admissibility of judgments under this section, see notes to the 
thirteenth section j)oat.{2) 

On questions of title, repeated acts of ownership with respect to the 
same property are, under the thirteenth section, post, receivable, and even acts 
done with respect to other places connected with the locus in quo by " such a 
common character of locality as to give rise to the inference that the owner 
of one is likely to be the owner of the other "(3) are sometimes under the 
present section receivable. In Jones v. WMiatns,{i) Parke, B., said that 
" evidence of acts in another part of one continuous hedge adjoining the plain- 
tiffs land was admissible in evidence on the ground that they are such acts as 
might reasonably lead to the inference that the entire hedge belonged to the 
plaintiff." " In other words, they are facts which, by the eleventh section of the 
Evidence Act, are relevant, because they make the existence of a fact in issue 
highly probable."(5) When a question as to the ownership of land depends 
on the application to it of a particular presumption, capable of being rebutted, 
the fact that it does not apply to other neighbouring pieces of land similarly 
mtutated is deemed to be relevant.(6) So when the question is, whether A, 
the owner of one side of a river, owns the entire bed of it, or only half the bed 
at a particular spot, the fact that he owns the entire bed a little lower down 
than the spot in question is deemed to be relevant.(7) In like manner it 
has been held that when the question is, whether a piece of land by the road- 
side belongs to the lord of the manor, or to the owner of the adjacent land, 
the fact that the lord of the manor owned other parts of the slip of land by 
the side of the same road is relevant.(8) And in a suit brought by the plain- 
tiff against several defendants to prevent encroachments by ^e defendants, 
it was held that the admission of one of the defendants, in a previous suit to 
which the other defendants were not parties, as to the common character of the 
portion of the land between his house and the plaintiff's, and also a similar 
statement in a deed put in by another of the defendants to prove his title to 
his own house, were admissible in evidence to establish the common character 
of the entire lane as alleged by the plaintiff. The fact of common ownership 
of other parts of the lane should be treated as relevant to the issue as t« the 
common character of the entire lane on the principle laid down in this 
section.(9) Where one of the main questions for determination in a c^se was 
whether a document then impugned was or was not presented before the 
Registrar by one N S Sk comparison of the thumb-impression of the person 
who presented the document with that of N 8 was held to be admissible 



(1) Baji aaboov.Aynhabai, 7 C. W. N., SSft NtUh, 24 C, 2S9 (1896). 
<1«03), (. c. 27 B. 485. (4) Supra at p. 331. 

(2) And Tepu Khan v. Safani JUoImn, 2 C. (6) Naro Vinayak v. AarMari 16 B.. \ii, 128 
W. W., 501 (1898) ; Lakskman v. Amrit, 2i K, (1891), per Sargent, C. J., referred to io BM 
698, 599 (1900). Oyannuta v. Muimmat Mobarakunnttm 3 C, 

(S) J<m«» T. Winiam; 2 M. ft W., 326; BrU- W. K., 91, 94 (1897). 

tow T. Cormitan, 3 App . Cas., 641, 670 ; A'et'K (6) Steph. Dig., Art . 3. 

T. Devomhirt, 8 App. Oa«., 135; Lord Advoatle (7) 76. ; Jonu v. ft'iUiam*, 2 M. ft W., 328 

V. Lord Blatttyrt, 4 App. Ca«., 791 ; Taylor, Ev., tte note to a. 13, poit) ; folloired in Kan Vinaj/mk 

H 322—326 ; Ro«coe, N. P. Ev., 86, 86, 931, 934 ; v. A'arAart, ante. 

Steph. Dig., Art. 3 ; »<« note to s. 18, port. The (8) 76. ; Dot T. Ktmp, 7 Bing. , 332 ; 2 Uing. 

rale in Jona t. WiUiamt, 2 H. ft W., 326, and N. C, 102 ; Taylor, Er., {{ 320-S26. 

Lord Advocate v. Lord Blantyre, 4 App. Cas., 791, (9) A'ore Vinyak v. Xarkari, sopra. 
vaa oheerved upon in Mohini Mohan v. Promoda 



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[S. 12.] DAMAGES. 61 

ondei the second clause of this section if dissimilarity of the impressions made 
the identity of that person with N S improbable.(l) 

12. In suits in which damages are claimed, any fact 1° «iit» 
which will enable the Court to determine the amount of'aot»««>d- 
damages which oueht to be awarded, is relevant. abf« court 

00 t^ deter- 

mine 
Princi];»l» — In suits in which damages are claimed, the amount of the^«"™* **■• 
damages is a fact in is8ue.(2) See Note, post. ™ ov&n 

M. a (" Fact. ") 8. 8 ( " BeUvant. ") 

s. 66 (" Character at affecting damages. ") 

Boaooe, N. P. Ev., paseim, tub voe. " damages " j Norton, Ev., 124; Civ. Pr. Code, 
as. 121, 382; Mayii« on Damagee, 4th Ed. (1884) ; Alexander's " Indian Case Law on Torto," 
Srd Ed., 1891 ; PoUook on Torts, 2nd Ed., 1890 ; Aot IX of 1872 (Contract Act), ss. 73—75, 
117. 118, 126, 160—162, 164, 180, 181, 206, 206, 211, 212, 225. 236, 269 ; Cunningham and 
Sheidiard's Indian Cratract Aot, 6th Ed., 1892. 

00MUBNTAR7. 

Damages which are the pecimiary satisfaction which a plaintiff may Damages, 
obtain by success in an action, are, unless expressly admitted, deemed to be 
put in issue ; (3) damages may be claimed either in actions or contract (4) or 
tort. (5) The question as to when damages may be recovered, and the amount 
of damages recoverable in particular suits, as well the defences pleadable in 
such suits, is a portion of the particular branch of the substantive law under 
the provisions of which these suits are brought ; (6) and therefore the present 
section does not specify how the facts made relevant by it are to be related 
with the injured property, person or reputation, but lays down generally, that 
evidence tending to " determine," i.e., to increase or diminish the damages is 
admissible. (7) Thus in an action for Ubel, other libellous expressions by the 
defendant, whether used before or after the commencement of the suit, are 
sometimes admissible for the plaintiff, to show the malevolence of the defen- 
dant, and so to enhance damages. On the other hand, evidence of circum- 
stances, which, according to the law of libel, have the effect of mitigating 
damages, are admissible in evidence for the defend ant.(8) In an action for 
breach of promise of marriage, the plaintiff may give evidence of the defen- 
dant's fortune, for it obviously tends to prove the loss sustained by the 

(1) S. r. fakir Mahomtd, 1 C. W. N., pp. 33, mitigation and aggravation ot damages may be 
M (ISM)S V. ante, t. 119, n. 1. further illuatrated by the decided cases on action 

(2) Set Whitley Stokes, go] , n, (6). ior seduction, assault, false imprisonment, trea- 
ts) See Bescoe, M. P. Ev., 86 and Rules, 1883, pass, trover, etc. Thus where the defendant had 

O. zzi, B. 4 : evidence in mitigation, i6., 878. given the pUintiff in charge of a constable for 

(4) See Contraot Act (IX of 1872), ss. 73 — 75, felony, he was allowed to show reasonable ground 

117, 118. 128, IbO— 1S2, 164, 180, 181, 209, 20«, of suspicion in mitigation of damages. CAtnit v. 

ill, 212. 22fi, 23fi, 2S9. Morrit, Ry. i, M., 424 ; v. Roucoe, N. P. Ev., 

{t) See Alexander'a '* Indian Case Law on pauim, tub tioc. " damagee ": Norton, Ev., 126. 

Tarta," Srd Ed., 1891, pp. 3-II, 196, 2«1, 216, 217, So also in actions for assault, the provocation ofler- 

217, 244, XSI, 271, 277 and ;.awi<i< ; Pollock on ed by the plaintiff would be relevant under this 

Tocta, Sod Ed. (1890) ; Draft Indian Civil Wrongs section : in the cose actions against Railway Com- 

Bin, A., p. 617. panies for injuries received, the position, and 

(6) See Hayne on Damages, 4th Ed. (1884); circumstances and earnings of the plaintiff, the 
Boeeoe, M. P., St.. tub. toe. " Damages. " precautions taken by the Company, and the con- 

(7) Noctoo, Et., 124 ; Boscoe, N. P. Ev., 86. tributory negUgence, if any, of the plaintiff. Set 
(•) Bea«eo N. P. Ev., 864. 878 ; evidence in Cunningham, Ev., 106. 

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62 RIGHT OB CDSTOH. [S. 13.] 

piamtiff ; but not in an action for adultery ;(1) noi for seduction ;(2) not for 
malicious prosecution, for it is nothing to the purpose in an action on tort 
"whether the damages come out of a deep pocket or not."(3) Injury to the 
feelings is irrelevant in an action on contract as an element of damage ; but 
in actions on tort heavy damages may be given on this score. In HamliiiY. 
Great Northern Railtoay Compant/,H) it was said : " The case of a contract to 
marry has always been considered as a sort of exception, in which not merely 
the loss of an establishment in life, but, to a certam extent, the injury to a 
person's feelings in respect to that particular species of contract, may be 
taken into account ; but, generally speaking, the rule is this : in the case of 
a wrong, the damages are entirely with the jury, and they are at liberty to 
take into consideration the injury to the party's feelings and the pain he 
has experienced, as, for instance, the extent of violence in an action of 
assault ; and many topics, and many elements of damage, find place in an 
action for tort, or wrong of any kind, which certainly have no place what- 
ever in an ordinary action of contraot.*'(5) The leading case on the anbject 
of damages in the case of breach of contt&oir--Hadley v. Baxendale(6) — ^is the 
foundation of the rule contained in section 73 of the Indian C!ontract Act: 
accotding to which rule the damages which the plaintiff ought to receive 
should be such as naturally arose in the usual course of things from the 
breach, or such as the parties knew, when they made the contract, to be likdy 
to result from the breach of it. All facts showing the amount of such 
damage are relevant under this section ; but no damages can be ordinarily re- 
covereid by an action of contract that are not capable of bemg specifically 
stated and appreciated.(7) Neither in actions on contract nor on tort must the 
damage be too remote ;(8) and evidence of damage of such a character will not 
be admissible, nor, in general, will evidence of fact tending to show damage, or 
of facts in aggravation or mitigation of damages, be relevant under this 
section, unless the damage or aggravating or mitigating facts are of the 
kind and character which the substantive law recognises. The question 
when, and under what circumstances, evidence of character may be given in 
civil actions with a view to damages, is dealt with by section 65, poH, and 
in the notes thereto. 

Facta reie 13. Where the question is to the existence of any right 

tomta^uT^ or custom, the following facts are relevant:— 

qaeotlon. 

(a) any transaction by which the right or custom in 
question was created, claimed, modified, recognised. 



(1) Janut y. Bidditiglon, 6 C. * P., 689; Bncoe, quire different damagea ; thiu it i» a gnetec in- 
N. P. Ev., 86 J HodxM v. Taylor, poet, 81. suit to be beaten upon the Royal Ezohaaffa than 

(2) HoitM T. Taylor, L. B., 9 Q. B., 79 ; Roe- in a private room, per Bathnirt, J., Tt UKif 
coe. N. P. Ev., »., and p. 911 a« to evidence in v. Wait, S WilU., 19; Bowioe, N. P. Bv. 
aggravation. 913 ; and in trcapaes the jury may conuder not 

(3) Per Blackburn, J., in UodwU v. Taylor, only the pecuniary damage .uetained but ajw the 



eapra, quoting Lord UanefioM. intention with which the act ha* beea 

(4) 26 L. J., Ex. 20 ; 1 H. ft N., 408 ; per Pol- whether for insult or injury ; per Abbott, J., 8mn 

look, C. B. (this was an action for dnmages foi v. lyoni, 2 Starkie, 318 ; BoMioe, K. P. Ev.. «7. 

breach of contract). (6) 23 L. J., Ei., 171^ 182; 9 Ex. 341 ; sss A«* 

(6) See WiUiam» V. Curtit, I C. B., 841 ; 5eo»« IX of 1872 (Contract), s. 73 ; Connin^iam and 

V. LyoM, 2 Starkie, 317; this principle is well Shophard's Indian Contract Aot» «th Ed. (1888) 

illustrated in actions for libel where the injury to p. 216. 

the feelings is always an element of consideration. (7) Per Pollock, a B., in BawliM v. ff. S. By. 

Norton, Ev., 126; the circumstances of time and Co., supra at p. 23. 

place, when and where the insult was given, re- (8) Act IX of 1872, s. 73; Alexander, oy. eib 9. 



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[g. 13.] BIOBT OB CUSTOM. 63 

asserted or denied, or whicli was inconsistent with 
its existence: 

(6) particular instances in which the right or custom 
was claimed, recognised or exercised, or in which 
exercise was disputed, asserted or departed from. 

Ittuttration. 

The qeostion whether A has a i-ight to a fishery. A deed conferring the fishery on 
A'l ancestora, a mortgaKe of the fishery by A't father, a subaeqnent grant of the fishery by 
A'l tkther irrconcUable with the mortgage, particular instances in which A't father 
aensiied the right, or in which the exercise of the right was stopped by A't neighbours, 
are relevant facts. 

Prinoi]>le. — In such cases every act of enjoyment or possession is a 
relevant fact, since the right claimed is constituted by an indefinite number 
of acts of user exercised animo domini.(l) Ownership maybe proved by 
proof of possession ; and that can be shown by particular acts of enjoy- 
ment,(2) these acts being fractions of that sum total of enjoyment which 
chsntcteriaes dominium.{o) This also is the best evidence, with the exception 
of that afiorded by judicial reco^tion, which is only admissible in proof of 
matters of a public nature, that is public or general rights and cu8toms.(4) 
Opinion also is admissible in proof of such rights and custom8.(6) But the 
most cogent evidence of right and custom is not that which is afiorded by 
the expression of opinion as to their existence, but by the examination of 
actual instances and transactions in which the alleged custom or right has 
been acted upon, or not acted upon, or of acts done, or not done, involving a 
recognition or denial of their ezistence.(6) " In the absence of direct title- 
deeds, acts of ownership are the best proofs of title."(7) Acta of ownership, 
when submitted to, are analogous to admissions or declarations by the party 
Dobmitting to them that the party exercising them has a right to do so, and 
that he is therefore the owner of the property upon which they are exercised. 
But such acts are also admissible of themselves propria vigore, for they 
tend to prove that he who does them is the owner of the soil .(8) „ 

>. 3 {"lUlevaiU") opinion of mtMit OH.) 

t. 38, Cl. (i).{Piiblie right or cutUm : n. 4S, fixPLANATlON. (Meaning of'gtneral cut- 

opinion of petton not eaiXtd at minaa.) torn or right") 

••SSjIttOST (t.)iHirt«ra<«o» qf "fmUie right.") 8. 48, IlJ-C8T.(/<<iu<ra<i(>» o/*'^ai«m2cu<<om or 
*• 88, Cu (7). {Statemenft in Domment rioting right." 1) 

b> "(ntiuactioit.") s. 49 (Opiniont at to vtage, etc.) 

<• 48 sod IlXOST. {Jndgnentt relating to matteit s. 61 [Onmndt of opinion.) 

of a puhUe nature.) ». 98, Prot. 6. {Utage and cuttom imporlai into 
*■ 48 and IiXTTST. lOeneral Cuttom or rightt : contrael.) 



(DWfSUET 41 ( 1873) ;8teph. Dig. Arte Sand 0, and oaaea there 

(2) Joatt T. Wminiu, 2 II & W., 326. cited ; Taylor, Er., { 1683 ; v. Banehhodat Kriihna- 

(3) Wflb' Er., 41. dot ▼. Bapu Sarhar, 10 B., 439, f)oet: v. Com- 
{*) V. a. ti; poit : let remaika tt Edge, C. J., mentary, fotf, and not toia. 32, d. (4), (7), and 

aad ^neO, J., in Otrifal Mai t. Jkand* Mat, 42, 48 aa to long naage being the beat ezpooent 

10 A., 086 (1888). of right, see NUaJtandken NambaiUnirad v. 

(5) •. B. 32, et {*\ 48. Paimanabha Km* Yarma, 18 H., 1 (1895). 

(6) AaiMnarks of Tnmer, J., in LacKman Sat (7) Per .Taokaon, J., in CotteOor of Bajtkdky 
T. AOt nbM. 1 A., 440 (1877), and Oopalayyan v. Doorga Soondmti, 2 W. R,, 212 (1866). 

T. Sa^mfoHaffum, 7 Had. H. C. Bep., 2<!0, 364, (8) Starkie, Ev., 470, note F : Jonet r. wmiami^ 

pott : and rentarits of Wertnpiv C. J., in Bhaf 2 H. ft W., 326 ; t. pott. 
tmtimt Tiimai ▼. Bajmal, 10 Bern. H. C. R.. 261 



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64 RIGHT OR CUSTOM. [S. 13.] 

The following Aoto refer to custom :— Acta XXI of 1850, a. 1 (Non-forfiUurt of righJU by Ion of 
aute) ; XV of 1866 {Re-marriage of Hindu icidctct); IV of 1872, a. 5 (a), 7 {PHnjab Lam); IX 
of 1872, 88. 1, 110(Co«<inrt):IIIof 1878, 9.16(b) (CYW/foKit/, Madiot) : HI of 1891 (A'.- W. /•. 
Land Jtecenue) ; XX of 1876, ». 5 {Central Prorineet Laat); XV 11 of 1876, a. 31 {Land Sewuit, 
Oudh) XVIII of 1876. ta. S (b) (I), 4, 8 {Oudli LaK$) ; XV of 1877, Art. 10 {LimUation) ; II of 1901 
{X.- \r, P. Rent) ; XVIII of 1881, s. 67 {Land Reeenue, Central Provincet) ; II of 1882, e. 1 {l»dun 
TrutU) : V of 1882, as. lii, 20 {EaeemeitU) ; XVIII of 1884, a. 40 (Punjab Courh) ; VIII of 1886, a. 
183 {Bengal Tenanci/) ; XVII of 1887, s. 125 {Puiiiab Land Revenue) ; Steph. Dig., Art. 5 ; Taylor. 
Er., 11 1688,609. 1668, 82), pp. 309, 310 : Starkie, Ev., {f 123— 1S9; Roscoe, N. P. Et., 2t, 35. 
63, 54, 934 ; Pbipsoii, Ev., 3rd Ed., 90, 91 ; Beat, Et., ff 366-399, 499 Wills, Er., 40. 

OOHMBNTART. 

Right. Xhe right mentioned in this section is not a public right only : the 

Illustration shows this is not so, the right there mentioned being a private 
one.(I) Three kinds of rights are thus included in the Act : — (a) private, 
e.g; a private right of way ; (6) general, which is defined to include rights 
common to any considerable class of persons : e.g., the right of villagers of a 
particular village to use the water of a particular well,(2) and (c) public.(3) 
The latter class of right is nowhere de&ied in the Act. Every public right 
in the sense of the previous definition is a general one, though (if the 
distinction made in English law between the terms "general" and "public" 
be accepted) every general right is not a public one. 

There was at one time a conflict of decision as to whether the term is to 
be understood as comprehending all legal rights (including a right of owner 
ship) or only incorporeal rights. In (rujiu Loll v. Fattek Lall, Jackson, J., 
and Garth, C. J., were of opinion that the rights referred to, in the section, 
were incorporeal rights. "What is referred to, in the section cited is evidently 
a right which attaches either to some property or to status ; in short, incor- 

Soreal rights, which though transmissible, are not tangible or objects of the 
odily Ben8e8."(4) "It may be difficult perhaps to define precisely the scope 
of the word 'right,' but I think it was here intended to include those pro- 
perties only of an incorporeal nature, which in legal phraseology are generally 
called ' rights,' more especially as it is used in conjunction with the word 
' custom.' It is certainly used in that sense in subsequent parts of the Act 
(v. the forty-eighth section, and the fourth sub-section of the thirty-third 
section) which deal with matters of public or general 'right or custom'."(5) 
On the contrary it has been held by Mitter, J., that the contention that 
the section in question refers only to incorporeal rights, whether of a 
public or private nature, is not warranted by any general principle, it 
being difficult to suggest a reason which would justify the existence of 
a distinction between the rules applicable to the proof of a corporeal 
and incorporeal rights, respectively, whether of public or private nature.(6) 

(1) Smja Narain t. Biuambiar, 23 W. R., 311 to office) : yeamvl AH t. Oooroo Dot, tt W. K 
(1876) : see Oujjv, Lall T. Fatteh IjiU (F. B.), 6 C, 366 (1874), {itmarue right to lands) : Outlet li«>- 
187 (1880), jw Garth. C. .f. burto v. Bh»hU Koiburto, 22 W. R., «7 ; Deilni 

(2) S. 48, and iUost. Uokanti v. Jugo SkikMoo, 23 W. R.. 2»3 (ISTil; 

(3) 8. 32, d. (4), illust. (t), and illuat. to a. 42 Hunta Kooer v. Shoe Oobind, 24 W. R., 431 (mau 
which last section also deals with the subject of for lands) ; Moheth Ckander t. Dino BmJIf, i* 
public rights. W. R., 266 ; Laekmeeilmr ▼. Sugkoobw, 24 W. 

(4) Per Jackson, J., in Oujjv LaU r. Fattek R., 284 ; Omtr Dttt v. Awn, 24 W. B., 470 (niti 
LaU, 6 C, supra. 184 ; Hitter. J., dissenting. for rent) ; A'aroa^ Bhiiabhai v. Dipa Cmei, i 

(5) Per Garth, C. J., 186, ib.. Hitter, J., dis- B., 3 (1878) (suit foreAmia aUowance). 
sentiog : and see Kalidkun v. Skiba Salk, 8 C. (0) flufJM Latt t. Fattek UU, « C, 180. t. myn 
506 (1882). The undermentioned cases decided Pontifex, J., expressed nu opinion upon this paiti- 
prior to Oujju LaU v. FaOek LaU (1880), tnny be cular point, and Iforris, J., merely agreed irilk 
consulted on tliis point. Kaondo AVilA t. Dheer Garth. C. J., in holdiiig that the former jaiigBii< 



Ctemfer, 20 W. R.. 346 (1873) (right of succession was in»dmi«ible. 

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r«. 13.J 



BIGHT OB OU3TOU. 



65 



Quite recently also Banerjee, J., observed as follows :(1) — "It has been 
said that the right spoken of in this section is an incorporeal right. I 
do not think that there is any sufficient reason for putting this limitation 
on the meaning of the term as used by the section. So also in Bombay, 
it has been held that the words " rights and customs" should be under- 
stood as comprehending all rights and customs recognised by law, and 
therefore as including a right of ownership :(2) and in Allahabad that the 
irord "right" in both clauses (a) and (b) includes a right of ownership, 
and is not confined, as held by the majority {sed qu. majority) in Oujju 
I/Jl V. Fatteh Loll, to incorporeal right8.(3) It would seem now to 
be generally held that the term " right includes all rights and is not 
limited to incorporeal rights As to antiquity in the case of a right no 
less than of a custom, usage for a number of years, certainly raises a 
presumption that such right or custom has existed beyond the time of 
legal memory .(i) 

' Custom " as used in the sense of a rule which in a particular district, ^^^^^ ' 
class, or family has from long usage obtained the force of law,(5) must 
be (a) ancient ;(6) (6) continued, unaltered, uninterrupted, uniform, 
constant ;(7) (c) peaceable and acquiesced in ;(8) (d) reasonable ;(9) 
(e) certain and definite ;(10) (/) compulsory and not optional to every person 
to follow or not. The acts required for the establishment of customary law 



(1) la TepK Klan r. Rajmi Moka; 2 C. W. X., 
Ml, 604 (1898). 

(2) BancUtoiAu KrMnadas y. Bapu Narhar, 
10 B., 439 (1886), per Sargent, C. J. 

(3) CoUtefor 3/ Ooratkpur v. Palatdhari Sing, 
12 A., 13, 24 (P. B. ), aod see Satmuami v. Apravu, 
12 M., 9 (1887) (mit for money claimed under 
■lleged right); Fetdfartuamt v. VmbOredtU, IS 
v., 12 (1891). rait tor declaration of title to 
had; rfHiUnta v. FeiOniadbafa, 16 H., 104 
(1N>) (mit tor poMtMion of land). 

(4) Samammi v. Appavu, 12 M., 14 (1887). 
«) HurpurJud r. Otto Dyat, 3 1. A., 268 (1876) ; 

•4. 16 W. R. S5 ; Sivamifumja Ptnmal v. 
UttmbU Ammal, 3 Mad. H. C. R., 77 (1866). 

(6) Bvfiir^d T. Skto Dyal. 3 I. A., 2r,9 
(18T6) ; Ula r. Him Singh, 2 A., 61 (1878) ; Doe d. 
Jtromehwt r. Nimu Da»i, Montrioa's Caaee 
<A Hindn I.av, 696 (length of time neoeMary) ; 
J Of Kiikait r. Doorga Nanin, 11 W. R., 348 
(1860) lU) ; JtiggomolKin OKate t. ManieidaMi, 7 
M. 1, A., 282 (1869); ».c., 4 W. B. (P. C), 
8: Amit Kalk ▼. Oawri A'aO, 6 B. L. R., 238 
(1870): Sajah i)ra««ii4«r t. XtvAoonoA Narain, 
V. K, (1864) 20 ; BamabUtmi Ammal y. Sitana- 
wad* Penimat, 17 W. R., 663 (1872) ; Pentmol 
StAmafttT y. JT. RawtaUnga SeOuimye^, 3 Mad. H. 
C. R., 77 (1860) : Oofoianan y. BoghtnuUiainan, 
7 Mad. H. C. R.. 284 (1873) (onge moat alao be 
pnblie). See Mamaeami y. Apfavu, 12 M., 14 
•afc, and Bka* A'aiw/t v. SundrtAvi, 11 Bom. H. 
C. R., 271, yoA 

(7) Imla y. Bin SifK 2 A., 49, twfm ; 
JumttU KImUM y. PrngfU Ram, 1 W. B., 200 (1864) : 
Am Mudkkb r. J,i Krithm, 7 B. L. R., 164, 
166 (1869) ; Juggomaktai QkoH y. MonikehiMd, 
1 M. 1. A., 282 ; ■.«., 4 W. R. (P. 0.), 8 tufn ; 

W, LE 



^inrtl Nalh v. Oavri Natli, 6 B. L. R., 238, mpm .- 
Sajak NvgmdHT y. RMgkoomitk Narain, W. R., 
(1864), 20, mfra ; Samalakkmi Ammal ▼. Sivami- 
Mdkana Perumal, 17 W. R., 663, nipra ; Patel 
Vandraoan V. Palel Manilal, 16 B., 470 (1891); 
Perumal Selhurayar v. M. RatnaUnga Sethurayar, 
3 Had. H. C. R., 77, mpra ; SooreHdroHaA Roy y. 
UtummMt Beemmonee, 12 H. I. A., 81 (1868): 
•.0. 10 W. R. (P. C), 36 ; Tarn Clund v. flW6 
Sam, 3 Mad. H. 0. R., 67 (1866) ; (acta moat alio 
be plnral) ; Rajti^ien Sing^ y. Ramjoy Swma, 
I 0., 196 (1872) (diaooatinoance) ; Jugmohania* 
UangatdM y. Sir Mangalda; 10 B., 643 (1886) : 
(the anueiuut tilentium, which is the basis 
of all legal customs must be uniform and 
constant). 

(8) lata y. Hira /Hngh, 2 A., 49, Mpra. 

(9) BurpurAai y. Bheo Dyal, 3 T. A., 285, tnpm; 
Lola V. Bira Singh, 2 A., 49, tupra; Luehmteput 
Sing^ y. SadauOa \iuhyo, 9 C, 698 (1882) ; 
Raniordat Bkogitall >. Ketrieing Jfoknn 1 
Bum. M. 0. R., 229 (1863) ; Arhpa Xayah v. 
Narei Kethavji, 8 Bom. H. C. R. (A. C). 19 
(1871); C. «. DtSoMMy. PetHnji Dhaniibiai,»K, 
408 (1884) ; Rajah Vurma t. Ravi Vurmah, 1 M., 
238 (1877) ; NyamuHiUak Otiagur v Chbind C*«m, 
6 W. R., Act X, 40 (1866). 

(10) BvrpHrdiad v. Sheo Dyal, 3 I. A., 285, 
aupra ; Rajkiehen Singh y. Ramjoy Sterna, 1 C, 
196, 196, tupm ; Lola v. Hira Singh, 2 A., 49, 
ttpra; Laehman Rai v. AUbar Khan, I A., 440 
(1877); Bhagamn Da* v. Batgobind Singh, 1 
B. L. R., 8. N., 1. (1868) ; Tehael Doorga y. Tekatt 
Doorga, 20 W. R., 167 (1873) ; Ramalakhmi 
Ammal y. SivtnananHa Perumal, 17 W. B., 663, 
ante. 



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66 RIGHT OR CUSTOM. [S. 13.] 

must have been performed with the consciousness that they spring from a 
legal necessity ;(1) and (g) must not be immoral.(2) 

The right mentioned in the section being a public or private right 
(v. ante), the ' custom ' must also, on proper priciples of construction, 
include a private custom .(3) The word custom as used in this section is 
not, however, limited to ancient custom, but includes all customs and 
usages. So it has been held under section 48, which deals with general 
customs and rights, that evidence of usage was admis8ible.(4) The word 
' usage' would include what the people are, now or recently, in the habit 
of doing in a particular place. It maybe that this particular habit is 
only of a very recent origin, or it may be one which has existed for a very 
long time. If it be one which is regularly and ordinarily practised there 
is n8age.(5) So a business- usage as distinguished from a common law 
custom need not be long estabushed or strictly uniform,(6) nor need an 
agricultural custom have existed from time immemorial.(7) The word used 
in this and other sections of the Act in its widest sense, including aU 
customs ancient or otherwise and all usages. Three classes of custom 
or usage are thus dealt with in the Act, (a) private ; (6) general ;(8) 
(c) public.O) 

Instances of the first class are faniily customs and usages termed 
kulachar, or in Upper India, Rcum wa riwaj-i-kfidnddn (v. j>o8t).{lO) 

The expression " general custom " is defined to include customs 
common to any considerable class of persons.(ll) These are (a) local, 
termed ietaohar ; e.g., in the Broach and other Gujarat districts waif 
property, which is inalienable by Mahommedan law, may be by custom 
of the district alienated.(12) In the same district, and more especially 
in parts of Eastern Bengal, the right of pre-emption which is based on 
HaAommedan law, is allowed and enforced by custom as between Hindus 
also ;( 13) (b) caste or class ; of which the Khojdh and Memon caseB,( 14) and 
the right of divorce marital by usage of particular castes, the customs of 
religious brotherhoods attached to mndu temples and the like,(16) afford 
examples. English Municipal law owing to historical development limits 
custom to a particular locality only. Sir Erskine Periy in the KhajaJC* 
case has remarked that this peculiar municipal rule of English law can have 
no application to India, where customs are seldom local and are mostly personal 
or caste customs ; (c) Trade customs or usages (v. "pott). 

Public custom is nowhere defined in the Act. It is not clear, if any, 
and is so what, meaning is to be attached to the word " public" as distin- 
guished from the word " general " in the Act. In speakmg of matt«i8 of 

(1) Tan Onnd v. Sub Bam, 9 Had. H. C. K., I«at 30 or 40 yean. 
61, lupra ; Oofotayyan x. Ratkufotiayyan, 7 Had. (8) v. a. 48, jmt. 

H. C. R.. 204 (1873). (9) v. a. 32, cL (4), votl. 

(2) CktitiM Vmmayi v. Ttvarai Cketti, I H., 168 (10) ». Norton, Et., 190. 
(1876). dte alio SanhmUngam Chetii v. Svbian (U) v. a. 48, and illnat. pod. 

Ckttii, 17 M., 479 (1894) ; Otatity y. f nnu) Jan, (12) Abat AU y. Ohidam Muiammad, 1 Bom. H. 

to I. A., 198 (1893) ; 21 C, 149. C. R.. 36 (1863). 

(3) CoUedor o/ Oorakkptir y. PalaUhari, 12 A., (l3) iSksttt Kooiru v. lloUtut irot«l^ 13 
16(1889). W. R. (F. B.), 21 (1870): Jnitr Kanin. ▼. 

(4) Dal^M v. Yvtuffer Hotmin, 28 C. 427 Mahomed JVueenuMeM, 1 W. R., S36 (1864); 
(1896) ; Sariahiaa Barbir t. Pran NoA, 26 C. and th»oaaea oited in Fteld'a Ev., 116. 

184 (1898). ' (14) Pen7*a Or. Ca.. 110; Karim Khatav t. 

O) Il>- Par«an Manji, 2 Bom. H. C. R., 276 (1886). 

(6) Junamokm Okou y. Manikehtind, 7 H. (16) %e Field, Rt.. 108, 110^ vhen a large bob- 
I. A., 263, 282. bar of eaaea of family, looal, oaate, asd timm 

(7) Tucttr y. Ungtr, 8 App. Caa., 608 in vliioh onatoma are ooUeoted. 
«—t tlie looal omtom had RTown op witlun tbe 



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{». 13.] RIOHT OB CUSTOM. 67 

pablic and general interest the terms " public" and " general" are sometimes 
used as synonyms, meaning merely what concerns a multitude of per8ons.(l) 
But regard being had to the admissibility of hearsay testimony, a distinction 
has (in English law) been made between them : the term "public" being 
strictly applied to that which concerns every member of the State : and 
the term " general" being confined to a lesser, though still a considerable, 
portion of the community. In matters strictly public, reputation from 
anyone appears to be receivable. If, however, the right in dispute be 
simply general ; that is, if those only who live in a particular district, or 
adventure in a particular enterprise, are interested in its hearsay from 
persons wholly unconnected with the place or business would be not only 
valueless, but probably altogether madmissible.(2) But as the Indian 
Evidence Act(3) makes no such distinction as to admissibilii^, merely requir- 
ing in all cases a probability of knowledge on the part of the declarant, 
the distinction ceases to be of importance in India.(4) Again the expres- 
sion " general custom or right" is explained to include (not " mean and 
indade") (5) customs or rights common to any considerable class or persons : 
in fact sooh matters as would, according to the English rule, fall within the 
expression " matter of general interest."(6) The e^^ression therefore would 
appear to have a more extended meaning and to be applicable also to those 
wiuch are cases spoken of in English law as " matters of public interest." 

Custom or usage occupies a prominent place in Hindu law (of which it 
forms a branch), and wherever it obtains, supersedes its general maxims. 
" Immemorial custom," says Manu, " is transcendent law. (7) Clear proof 
of usage will outweigh the written text of the law.(8) The Digest 
subordinates in more than one place the language of text to custom and 
approved usage.(9) Where a custom is proved to exist, it supersedes the 
^neral law ; which, however, still regulates all beyond the custom.(10) 
A custom is some established practice at variance with the general law. 
There cannot therefore be a custom to do that which the general law permits 
any one to do or abstain from at his own wilL(ll) 

The third section contains the general definition of the term " fact " as ' Faota.", 
nsed in this Act. The particular facts which are relevant under this 
section are " transactions " and " instances " as to the meaning of which 
^v. po«(). See also note on the admissibility of judgments (po8t).(l2) 

The facts made relevant are (a) transactions, (b) instances. Neither of yj^?"*"^ 
these terms is defined by the Act. (a) A " transaction " is the doing or perform- " instanoeo." 
ing of any business ; management of any afiair ; performance ; that which is 
■done ; an afEair as the transactions on the exchange. A transaction is some- 
thing already done and completed ; a "proceeding" is either something 
whidi is now going on, or, if ended, is still contemplated with reference to 

(I) Taylor, Et., f «09: Gredey, Ev., 305; «m H. C. R., 262 (1874) ; and Tan Olund y. Reeb 

notes to a. 32,, cl.. (4), pott. Ram. 3 Had. U. C. B., 60 (1866). 

(S) Tajlcr, Et., f 606. (8) Ootkdor of Madura r. Hutu Bamaliniia, I 

(J) ». a. 32, cl. (4). B. L. R., 12 (1898) ; ohed and tpflitd in Bhaf- 

(4) Ste Norton, Er., p. 186. imn Singh y. Bhagwa* Sin^ 17 A., 339 (189S): 

(5) It does not tiierefore (aoocptjng the dto- bat hdd to hare been miiappUad by the Privy 
<iae«ion between '■pnbUe" and -general") CoonoU, s. o., 21 A., 412 (1890). 

endade pnbUo onatom: " when a definition i« (9) Bkgak Sam r. Bkyah Ogmr, 13 M. I. A., 

intenled to be ezcliarire it voold aeem the form 390 (1870), ■. c, 14 W. R. (P. O.), I. 

<j( woda ia ' ' meao« and inolndea, " per Jaokaon, (lO) NetUtulo Dtb y. Bur Cktmitr, 12 H. L A., 

J^ R. r. .■Ukoolotii CInckabMy, 4 C, 493 (1878). 542 (1869) ; 8. c, 12 W. R. (P. G.), 21. 

(«) ». Field, Et., 349. (11) 8r% Braja Kitora r. Kwtdana Devi, 3 O. 

(1) Seethe Mthoritiei aet out in jndgmeot of W. N., 378, 380 (1899), P. 0. 

WeM, J., in Bitau JVa«a/> ▼. Sundrabai, 11 Bom. (12) «. alao n._S, 11, ank. 



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68 RIGHT OR CUSTOM. [g. 13.] 

its progrett 01 succesaive Btage8.(l) "We use the word ' proceeding' in 
application to an afiray in the street, and the word 'transaction' to some 
commercial negotiations that has been carried on between certain persons. 
The ' proceeding' marks the manner of proceedin|;, as when we speak of 
proceedings in a Court of law. The " transaction marks the business 
transacted ; as the transactions on the exchange. "(2) " A ' transaction' as 
the derivation denotes is something which has been concluded between 
persons bjr a cross or reciprocal action as it were."(3) A " transaction" 
u the ordinary sense of the word, is some business or dealing which is 
carried on or transacted between two or more persons. "(4) The qualifying 
characters of the transaction spoken of in the section are (a) creation, (6) 
claim, (c) modification, {d) recognition, (e) assertion, (/) denial, {g) 
inconsistency. Of these (6) and (d) are also qualifying characters of 
" instances." (b) An " instance " is that which ofiers itself or is offered 
as an illustrative case ; something cited in proof or exemplification ; a case 
occurring ; an example.(5) The qualifying characters of the " instanc«s " 
spoken of by the section are (a) claim, (b) recognition (common both to^ 
"instances" and "transactions"), and (o) exercise (which is peculiar to 
"instances " only), and instances in which the exercise of the right or cus- 
tom was disputed, asserted or departed from. It will have been observed 
that the section distinguishes between a claim and an assertion. Under 
the second clause, however, instances are admissible in which the exercise 
of a right or custom was asserted. The word " assertion " includes both a 
statement and enforcement by act. Ordinarily the evidence tendered under 
this section will be evidence of acts done, but a verbal statement not 
amounting to, and not accompanied by, any act would also be admissible if 
it amounted to a " claim." 

Road-cess papers and deeds of sale were held to be evidence qttantum 
vcUeant as transactions and instances in which rights were asserted and 
recogni8ed.(6) Documents showing recognition of alleged right by Govern- 
ment were admitted.(7) A map prepared by an officer of Government 
while in charge of a Iduu mehal. Government being at the time in possession 
of the mehal merely as a private proprietor, is not a map purporting to have 
been made under the authority of Government within the meaning of 
section 83, the accuracy of which is to be presumed ; but such a map may 
be evidence of possession or of assertion of right under the thirteenth 
section.(8) In a suit for possession of land, the plainti£k claimed title under 
a lease from the shrotiemdara of the vijlage where the land was situated. The 
defendants, who had obstructed the plaintifis from taking possession of part of 
the land, claimed to have permanent occupancy-rights, and asserted that the 
shrotiemdara were entitled not to the land itself but to tndvaram only. To meet 
this allegation the plaintiffs tendered in evidence documents executed by other 
tenants in the same village showing that they were pura kudi$ merely : — Hetd 
that these documents were admissible : that the defendants were not of 



(1) Webfter's Dictionary, lub nom, " Tnosac- of a Court of Justice i« a tran-uwtioa ap|M*n to- 
tioo." me a misapplication of the term. " See •!■» 

(2) Cnbb's Uynonjms. SaneUioidat v. Baptt Narlur, 10 B., 442 (ISW). 

(3) Om}}* Loll T. FalUk LaU, 9 C, 186 (1880), but «ee as to judgments, poit. 



ixr Jackson, J., transaction in Us largest sense (6) Webster's Dictionary, ««6 wnm, < 

means that which is done, ib., 178, fer Hitter, J. (6) Dailari Moianti v. Jugo Bundko, 23 W. R,, 

(4) lb. at p. 186. prr Garth, C. J., who added: 293 (187S). 

" If the parties to a suit were to adjust their (7) Burjo A'orain v. Bismmbkiir Siaf*, S3 W. 

differences inler M the adjustment would be a R., 3U (1876;. 

transaction ; and by a somewhat strained use of (8) Junmajwy lluOick v. DwarkamiA >ffWn_ 

the word the proceedings, in a suit, might alao be .1 C., 287 (1879;. 
called transactions, but to say that the decision 



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[8. 13.] RIGHT OK CUSTOM, 69 

course concluded by them, but that the documents were relevant evidence 
under the thirteenth section as showing the tenure on which the village was 
held.(l) Decisions are conflicting as to whether previous judgments and 
decrees, not inter partes, are,(2) or are not,(3) included in the term "transac- 
tion," or are,(4) or are not,(5) included in the words "particular instances " 
(v. post). In some cases it has been held that judgments and decrees are not 
themselves "transactions" or "instances," but the suit in which they were 
passed and made is a "transaction" or "instance." So in the undermen- 
tioned case Banerji, J., observed as follows : — " If the existence of the 
judgment is not a transaction within the meaning of clause (a) of the 
thirteenth section it proves that a litigation terminating in the judgment 
took place ; and the litigation comes well within the meaning of the clause 
as being a transaction by which the right now claimed by the defendants 
was asserted. So again the litigation which is evidenced by the existence of 
the judgment was a particular instance within the meaning of clause (6) of 
the thirteenth section in which the right of possession now claimed by the 
defendants was claimed. "(6) In a case where a dispute existed between the 
proprietors of two estates, A and B, as to the right to water flowing through 
an artificial -watercourse on estate B, belonging to the defendants, proceed- 
ings were taken in the Criminal Courts by the owners of estate A against some 
rjots of estate B in consequence of their having closed the watercourse- 
These proceedings led to a razinamah, or deed of compromise, which was 
relied on as evidence before the Privy Council. Their Lordships said : 
"This agreement is a clear acknowledgment of right to this overflow. It was 
objected that this razinamah does not bind the proprietors of B ; but although 
it was apparently made between tenants, it seems to have been subsequently 
acted upon, and may be properly used to explain the character of the 
enjoyment of the water. "(7) Their Lordships also referred to certain 
proceedings under section 320 of the Code of Criminal Procedure of 1861 
(corresponding to section 147 of the Codes of 1882 and 1898), in which a 
claim was made as to the right to use the water collected in the tal, observing 
that the proprietors of B do not seem to have challenged the decision of the 
Magistrate, in these proceedings, in the Civil Court.(8) In a suit to establish 



(1) Fglkilinga v. VeitlciUaeHala, 16 M., 194 ooncenied, " Laktkman v. Amrit, 24 B., 699 

(1892). (1900). 

(2; Xeamut Aii v. Ocoro Dau, 22 W. R., 36fi (4) Koondo Naih v. DUer Ckuiider, 20 W. K., 

(1874);0«/;ii/>aAT. Pa«alaU.6 C, l7fi (1880), 34S (1873) ; ./wmtuUa Sirdar v. Ramani Kant, 

fir ViUifT, 3., r.nrdisMHl., Cotteaor of Oomkhpur 15 C, 233 (1887); RamoMmi v. Appavti, 12 H., 

V. PalaUkari Singk, 12 A., 43 (1889), per Mah- 9 (1887); luid see Byathamma v. Avulla, 15 H., 

mood, J., ear dutnt. 19 (1891). 

(3) Oujja Loll V. FalUk Loll ( F. B.), « C, 183, (5) " Record and not the jadgment alone ad- 

185, 187, per curiam, Mitter, J., diuent ; CoUeetor mi«»ble as an instanoe, " CoUecivr of Oorakkpur 

of OaraUpv v. Palakdhari Singk, 12 A., 14, 27, v. Palakdkari Bin/k, 12 A., 14, 28, tupra, per 

a, per curiam ; Me remarks of Sargent, C. J., io Edge, C. J., and Tyrell, J., " former judgment 

Ba»ekkodda» Krieknadas t. Bapn Sarkar, 10 B., not itaelf an instance, hut the suit in which it 

442 (188«) '* former judgments m« not themselves was made is an instanoe : " t6., 25, fier Straight, 

tiaiiaaetiooa, " bnt tlw suit in which the; were J., and see Oujj* LaU v. taltek LaU, 6 C, 171, 

made is a " transactiao; " per Straight, J., 12 nipra. 

A., 25, mtprv. It was said by Banade, J., that the (6) Tepn Kkan v. Rojoni Mokun, 2 0. W. K., 

interfvetatioo placed npoo the words ' right ' 501, 504 (1896) ; Srimati Alijan r. Ham Ckandra, 

and ' tnoMction ' in Onjjii ImU v. FaUik Lai S. A.. 106 of 1902 ; Oal. H. 0., lit July, 1904 ; and 

seems mot to have been accepted by the Privy see ante. 

Cooaca and its ccrrectnes* is questioned in the (7) Samunw Pertad v. Koonf Bekari, 4 C, 

FoD Bench judgment of the Allahabad High Court 040 ( 1878). 

in the CoOetior of Oonkkpur v. Palakdkari in so (8) As to this case Edge, C. J., observed " ap. 

far as the ezdosion of such judgments ftt>m parently tiiis nuinamak was admissible under s, 9 ; 

'«Jog received as evidence under any section is the record of the proceedings in the Criminal 



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70 BIGHT OR CUSTOM. [8. 13.} 

the existence of a family- cuBtom, the plaintifEs offered in evidence a deed 
containing a recital that the custom of the family was as alleged in the plaint, 
and a covenant to do nothing contrary to it. The deed was executed before 
action brought by the present plaintiffs, and also by a plaintiff who had died 
since the institution of the suit, and, as the plaint alleged, by a "considerable 
majority" of the family ; but the defendant was not a party to it. The deed 
was held to be admissible as evidence on behalf of the plaintiff8.(l) In an 
English case the Crown claimed the salmon fishing above the falls of a certain 
river against A, who in proof of his right to the fishery gave evidence, inter alia, 
of (a) occasionally fishing there, (6) having watchers during the spawning 
season, and (c) of binding his tenants in their leases to protect the fishing, 
and prevent all others from fishing.(2) In a case decided prior to the Act, 
measurement chiUas were admitted as prima facie evidence that long before 
the case originated and the suit was thought of, the plaintiff put forward his 
rights to certain lands as tnal Iands.(3) The question is whether A has a 
right of fishery in a river : licenses to fish granted by his ancestors and the 
fact that the licensees fished under them are relevant.(4) The question is 
whether A owns land : the fact that A's ancestors granted leases of it is 
relevant.(5) The question is whether there is a public right of way over A'$ 
land. The facts that persons were in the habit of using the way, that they 
were turned back, that the road was stopped up, that the road was repaired 
at the public expense, and A's title-deeds showing that for a length of time, 
reaching beyond the time when the road was said to have been used, no one 
had power to dedicate it to the public, are all relevant.(6) A petition to the 
Collector in which the right of primogeniture is stated has been held to be an 
instance of the recognition of such a custom.(7) Where it was alleged that 
land was debutter and it was contended that there was no legal evidence from 
which the Court was justified in inferring that it was ; held that a Ruhakar 
by which the Collector released the land in dispute as being debuitur property 
was a "transaction" and a relevant fact from which the Lower Court was 
entitled to infer that there had been a previous grant though the release of 
itself did not constitute such a grant.(8) And generally speaking, title 
to property, corporeal or incorporeal, may be proved under this section, 
or (if the section be held to be applicable to incorporeal rights only 
which it is submitted is not the case) under this and the preceding 
sections, by evidence of acts of ownership and enjoyment, such as the 
receipt of rents and profits, the discharge of the burdens or repairs of the 

Ooort, wUoh the JndiciaJ Committee admitted m a l««ae or liceiue may be gireo in eTideooe 

in evidenoe m%ht be admiasible under s. 9 or aa being in tfaemaelre* acta of ownenbip and evi- 

ander a. 13 (&)," 12 A., 18, " lu Raja Aim t. deooe ot pooeaalon : aae octet to (. 90, poA He* 

Miutamat LnAo (II C. SIO), the JodleialCom- alao Makolnum v. O'Dta, 10 H. L. CM.. S99, 

mittee would poadbly have hold tliat the re. and note to a. 90, poM. 

ooid In the rrnt^aait, of which the judgment re- (3) JMite Perthai r. Bam Coomar, 10 W. It. 

(erred to former part, waa admiaaiUe ondar 443 (1868); «ec note to a. 32, cl. (7), }»<<. 

a. 13 (t), '• and aee Bin Lai t. A. BiOt, U C. L. (4) Rogtrt r. ilOe*, 1 Camp., 309. See abw 

R., StO (1883). 8ee atoo rtHiaUuami r. Vm- tfeitt r. Dubt of Devomhire, L. R., 8 App. Caa., 

fafreiMs ISM., 12(1801), !»•(; and *()(« on -'Ad. |35. 

mlaffbHty of jodgmenta, " poM. (5) Doe r. Ptdman, 3 Q. B., 622, 023, 626. 

(1) Bwmmalk Muttiek t. tliaatnttd, 10 B. L. (6) Steph. Dig., Art. S, iUaat. (e), aa to proof 

R., 263 (1873) ; «M a. SIk d. (7). of onatom by instancea, aee Vithnn v. Kritiman, 

(») Ur4 AdvooaU ▼. Lari Lomt, L. R., S App. 7 H., 3 (1883). 

Caa., 273; in tbia oaae ancient docnment waa (7) Shjiamanand Dai t. Bama Kauta. 32 C. 

tendered to prove aneieat poaaeaaion and held to 6, 17 (1904). 

be adrnWlile, the mie being that auch dooumento (8) lakki Chandra y. Kali Kumar. IOC. W. N^ 

caning out ot the proper oaatody and purporting xxiv (1906). 

on the face of them to exeraiae ownerahip, auch 



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[S. 13.j BIOHT OE CUSTOM. 71 

property, the granting of licenses and leases and the like : while in rebuttal, 
proof is admissible that these acts were disputed, or done in the absence 
of persons interested in disputing them.(l) As to wajib-td-araiz, see note 
to section 35. 

Judgments qua judgments or etdjudications upon questions in issue and AdmlwlbUl- 
proofs of the particular points they decide are only admissible either as (a) m^iMiS 
res jwlicata,(2) or (6) as being "in rem,"(3) or (c) as relating to matters dwgj** 
of a public nature.(4) In (a) they are between the same parties : in (b) ttona or 
they are declared by law to be conclusive proof against all persons of inBtanoes. 
certain (6) matters only : in (c) though not conclusive, they are rele- 
vant as adjudications against persons not parties to them, the reason 
being that in matters of public right the new party to the second pro- 
ceeding as one of the public has been virtually a party to the former 
proceeding.(6) But judgments, orders and decrees, other than those admis- 
sible by sections 40, 41, 42 may be relevant under section 43, if their exis- 
tence is a fact in issue or is relevant under B(»me other provision of the 
Act.(7) In the sections relating to judgments tiin judgment is admissible 
as the opinion of the Court on the questions which came before it for adju- 
dication. Ordinarily judgments are not admissible as between persons who 
were not parties and do not claim under the parties to the previous litigation. 
But there are exceptions to this general rule. (8) The cases contemplated by 
section 43 are those where a judgment is used not as res fudiccUa or as evidence 
more or lest binding upon an opponent by reason of the adjudication it contains 
(because judgments of that kind are already dealt with under one or other of 
the immediate preceding sections), but the cases referred to in section 43 are 
such as the section itself illustrates, viz., when the fact of any particular 
judgment having been given as a matter to be proved in the case.(9) Section 
43 is one of the group of sections relating to judgments and contains the 
provision applicable to cases relating to the relevancy of judgments as evidence 
against strangers.dO) Under that section a judgment may be admissible as rele- 
vant under some other provision of the Act. So a previous judgment has been 
admitted not in order to prove an adjudication but in order to prove an admis- 
sion made by a predecessor in title of the party against whom the document 
was sought to be used.(l 1) This being so, the question arises whether, and if so 
how, previous judgments and decrees, and the litigation in which they were 
pronounced not being between the same parties, are admissible in evidence in 
proof of "right" and "cu8tom"(12) (not being of a public nature) under this 
section, either as ' ' transaction ' ' under clause (a) or under clause (6), as ' ' par 
ticular instances." This question has been the subject of many conflicting 
decisions. 



(1) Wills, Kv., 40; PhipwD, Er., Sid Ed., Loll, 6 C, 192. 

90, 91 : Jane* w. WiXanu, 2 H. ft W., S26. A< to (10) Ttfm Klan r. Bojoni Mokun 2 C. W. N., 

lepain oooatitatiiig an act o{ ownership, mi> 4 aOI, 605 (1898). 

C. W. N., ocH. (11) Kritkmuami Aniiaanfar v. Rajatofola, 18 

(2) Coder «. 40, pol. H., 73, 78 (189S). 

(3) Under «. 41, porf. (12) Other than publio or general righti aad ous- 

(4) Under a. 42, foil. toros in regard to which (being matter of a pnb- 

(5) See Xaaiaya LaU v. Raika Cknrn, 7 W. B.. lie nature, adjadicationa inter alio* have alwaya 
344 (1887). een admiamble and are now ao under *. 42 o( the 

(«) Per Pootifez, J., in 0«j^ latt v. faUeh Act : ». Taylor, Ev., f 1683 ; MadM) Ckimdtr v. 

LaU, « C, 183 '1880). Tonue BtwaM, 7 W. R., 210 (1867); NaOttOtambi 

(7) a. tS, pan. BaUar r. NeOahtman Pillai, 7 Had. H. C. B., 306 

(8) ffwa Jjta V. A. HOU, 11 0. L. R., 630; per (1873); Bamammi w. Appavu, 12 H., 9: and a. 
Field, J. (1882). 42, poM. 



(9) Per Garth, C. J., in Oujtu UH v. FaUeh 



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72 BIGHT OB CUSTOM. [S. 13] 

c«^»to In the Calcutta High Court such judgments were up to 1880 frequently 

admitted,(l) the word " transaction" being, it was Baid,(2) large enough to 
allow the proceedings in former suits to be admitted, not as conclusive, but of 
such weight as the Court may think they ought to have. Upon this principle 
previous judgments and proceedings in suits were admitted as relevant in the 
undermentioned case8.(3) In 1880, the Full Bench of the Calcutta High Court 
inihecMeoiChijju Loll v.Fatteh Loll (4) considered the question. This was 
a suit to recover possession of certain property. The lower courts allowed the 
plaintiff to put in evidence against the defendant a judgment in a former suit 
between the defendant and others and to which the plaintiff was no party. It 
was contended by the defendant that the judgment in this former suit could not 
be used as evidence in this suit, because the plaintiff was no party to the former 
proceedings ; while the plaintiff, on the other hand, contended that the former 
judgment was admissible in evidence under this section as being a transaction 
by which a right claimed in this suit by the plaintiff was asserted and denied. 
Both the Lower Courts considered the judgment admissible in evidence, and 
apparently upon the strength of it decided in the plaintiff's favour. The ques- 
tion referred to the Full Bench was whether under the thirteenth section or any 
other section of the Evidence Act, the judgment in the former suit, which was 
admitted and acted upon as evidence in this suit, was admissible. It was 
held (Mitter, J,, dissenting) that the former judgment was not admissible as 
evidence in the subsequent suit, either as a " transaction ' ' under the thirteenth 
section or as a " fact ' ' under the eleventh section or under any other section 
of the Evidence Act. The case was accordingly sent back to the Lower Court 
to be decided upon the other evidence. It was further held by the Full Bench 
(Mitter, J., dissenting) that a former judgment which is not a judgment ' 'm rem" 
under section 41, nor one relating to matters of a public nature under section 
42, is not admissible in evidence in a subsequent suit either as a re« judicata, 
or as proof of Ike particular point which it decides, unless between the same 
parties or those claiming under them. (5) It has been said that this judg- 
ment practically decided that except in the case of judgments in rem, and 
judgments relating to matters of a public nature, a judgment in order to be 
evidence must be such as would operate by way of estoppel or res judicata.{6) 
This interpretation however of the judgment is, it is submitted, incorrect 
What the Full Bench held was that a judgment or decree was not admissible 
under this section, but it might be evidence under others by virtue of the 

(1) See Lola Kaittlal v. Dtonaraj/an Tttoarj), 6 (^) 8te the following OMe* in which the prin- 
B. h. R., 69 (1870) ; Doorga Dot v. Huredndro Coo- oiple laid down in Qitjtu LaU ▼. FaUek LaU w«a 
mar, 6 W. B., 232 (1866) ; Koondoo Nafh t. Dkeer concnrred in and followed : Bin Latt r. A. Hilh, 
ChaitdtT, 20 W. B., 345 (1873), and remarki of 11 C. L. R., 630 (1882); Jtom A'arat* v. Sam- 
Cowsh,C. 3.,m SiamM AUy. Oooroo Dot», 22 eoomar Ckwukr U C, 662 (1886); Moheadra 
W. R., 366 (1874), and of Mitter, J., in Oujiu Latt t. Rotomogi />a<«t, 12 C, 207 (1885) : 
Latt V. Fatteh LaU,(iC., 170 (1880) ; (and see A. and affirmed in Svrtmdm Xalh r. Bnjo NaO, 
V. Keshtib ilokan)an,t C, »»3 (1882); mnark* 13C.,(F.B.), 362 (1886); [aee Oobind Chmitr 
of Oarth, C. J. , t. Sri OolrinJ, 24 C, 330 ( 1896)]. ■ ■ In the oooda- 

(2) Per CoDoh, C. J., in A'e<Mi«( AK v. Oooroo sion of that jodgmont we folly oooeoj, " far 
Dots, 22 W. R., 366. Terrell, J., Dathoit, J., Skaial Klmtt t. Amim- 

(3) OvtUtKoOxiriot. Bhuial Koil»urU>,ii'Vi. R.. uf-to* Khan, 4 A., 96 (1881) rod; R. r. Kakmb 
■467 (1874) ; [the jodgmenu appear to be inltr Mektjan ; R. v. Viit Permd, 8 O., 093(1882): 
rarlet.] Roopelianii v. Hw KMai, 23 W. R., me remarka of Edge, C. J., Cotttttor of Oormtk- 
16? (1876); Alitor* MohanU r. Jugo BmuOuo, pur Y. PalatMari, \2 A., n IpoM), (l886); nod 
23 W. R., 293 (1776) ; Mokak Ckmder r. Dino Me as to the eflect of thi« deciaion the remarka of 
Bwnikoo, 24 W. R., 263(1876); L%tknutdhw Patter, J., and Handle;, J., in BfoAamita t. 
Pattatk V. Rughoobia Singh, ib., 284; Buiua Av^h, 16 M., 23 (1891), }io«. 

Kooer v. Sheo Gobini, ib., 431 ; Onwr 2>«A v. (») Bwtndtr Hath t. Brcjo Nath, 13 C, 362, 3.'S3 

Bvm, ib., 470 (1875); [ex-parte decree]. (1886). 



(4) 6 C, 171 



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[g. 13.] RIGHT OR CUSTOM. 73 

operation of section 43 ; and that in any case a judgment not inter partes was 
not admissible in proof of the particular point it decided ; that is it was not 
admissible in its character of a Judicial opinion and as having the effect 
more or less of res judicata. 

In 8 subsequent suit, however, which was one for rent, the amount of the 
land held by the defendant was questioned, and it was contended that the land 
must be measured with a hath of 21f inches and not one of 18 inches, as claimed 
by the plaintiff (zemindar), and certain decrees obtained by the zemindar against 
other tenants in the same pergunnah, in suits in which 18 inches had been taken 
as the Aa<A, were tendered in evidence in support of the plaintiff's contention 
that the customary hath in the pergunnah was one of 18 inches, the Subordinate 
Judge at first ruled the decrees to be inadmissible on the authority of Gujju 
Loll v. Fatteh Lall, but it was held that they afforded some evidence in corro- 
boration of the plaintiff's case, and that they furnished evidence of particular 
tiutoflcesin which a custom was c^t'm«({.(l) It may, however, be said that the 
judgments in this case were admissible as rrferring to a matter of a public nature, 
viz., the customary hath in the pergunnah. So also where the issue was whether 
certain land was lakhiraj or rent-paying, previous decrees were admitted to 
thow the character of the land, and to show that in respect of the land which 
waa alleged to be lakhiraj, a claim for rent was successfully made on a former 
occasion.(2) It was said : ' ' We do not use them as evidence in the way in 
which judgments and decrees are often used between the same parties, that 
is to show that there has been a previous adjudication on a question of title. 
We take it that these decrees are not evidence of any decision of a Court of 
Justice, that the land is mal or lakhiraj. We do not consider that in so decid- 
ing we are in any way violating the principle laid down in the Full Bench 
decision in Gujju Lall v. Fatteh Lall. On the contrary, and in order to prevent 
there being any misapprehension, we desire to say that we entirely concur in 
the principle of that decision so far as it was concerned icith the facts which were 
then before the Court. "(3) Though this case recognised the principle laid 
down in Oujju Lall v. Fatteh Lall it would seem to be excluded by it, in that the 
previous litigations were used not merely to show that claims for rent had been 
made but that such claims were successful. The claims could only take on this 
character b^ reference to the judgments as adjudications so asserting it. In 
a suit for possession of land the defendant offered in evidence a judgment ob- 
tained by him in a suit to which the plaintiff or his predecessors in title were 
not parties. Objection was raised to this judgment that it was not inter partes 
and was therefore inadmissible. It was held, on the authority of Davies v. 
Lo*imdes(i) and Ramessur Persad Narain Sing v. Koonj Behari PaUuk,m that 
thisjudgment was admissible in evidence to show the character of the defendant's 
possession and the nature of the enjoyment had in the lands.(6) The case of 
Davies v. Lottmdes referred to in this judgment was an action to recover lands. 
A decree in a suit between the defendant's father, and other persons unconnect- 
ed with the plaintiff, which directed that the father should be let into possession 
cfthe estate as his own property, was held admissible on behalf of the defendant 
not as proof of any of the facts therein stated, but for the purpose of explaining in 
what character the father, through whom the defendant claimed had afterwards 
taken actual possession of the estate.(7) Evidence of this kind is clearly ad- 
missible. The matter again became the subject of a Full Bench decision in the 
case of Surendra Nath Pal Chowdhry v. Brojo Nath Pal Chou>dhry.{8) The 

(l)/a«)i«f<iataT.J!oMamXaii(, ISC, 233(1887). («) Peari Mokun v. D,obomogi, n C 74r> 

<2) Bin LaU v. HiOs, II C. L. R., 528 (1882). (1886); in this o»ae the judgment wu properly 

it) Per Field, J., i6., S90; JIamusur Persad admiasible under s. 43. 

«. Komj BeAon, 4 C, 633 (1878), referred to. (7) 1 BIng. N. C, 607 ; s. o. ; 6 M. ft Or.. 471, 

(4) I Bing. X. C, 607. 520; Tftylor, Ev., f 1668 ; Me note to s. 43 fod. 

«) 4 C, 633, ▼. ante. (8) 13 C, 3fi2 (1886). 



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74 BIGHT OR CUSTOM. [». 13.) 

referring Judges in that case observed that the authority of Oujju Loll v. Fatteh 
£aU(l) appeared to have been shaken by the subsequent Privy Council decision 
in the case of Ram Bahadur Singh v. Lttcho Koer{2) (in which the Privy Council 
held that a previous judgment, though not res judiccUa, was evidence in the 
case) and by the decisions of the Calcutta Court in the case of Peari Mohun 
Mukerji v. Drabo Moyi Ddbia(^), and in the case of Hira Lai Pal v. HUU (4) 
already mentioned. The Court further observed that it did not understand 
why, if the judgments which were dealt with in the two last-mentioned cases 
could be properly used as evidence for one purpose or another, the judgment 
adduced m this case could not be used as e\-idence. The Full Bench, how- 
ever, upon the authority of Gujju Loll v. Fatteh Lall,(5) considered the judg- 
ment to be inadmissible. In a subsequent case,(6) these two Full Bench 
decisions were distinguished, it being held that a decree for possession made by 
a Court under the ninth section of the Specific Relief Act in a suit beyond the 
pecuniary limits of that Court's jurisdiction, although not res judicata, was some 
evidence of dis'possession by the defendants in a subsequent suit against the 
same defendants to recover mesne profits. In this case the fact of the judgment 
having been given was admissible. A Full Bench of the Calcutta High 
Court(7) more recently expressed the opinion that the decisions in the case of 
Oujju Loll V. Fatteh Lall,(8) and Surendra Nath Pal Ohowdhry v. Brojo Nath 
Pal Chou>dhrt/,{9) must be regarded as materially qualified owing to the deci- 
sions of the Privy Council they referred to,(10) because these decisions establish 
that under certain circumstances and in certain cases the judgment in a previous 
suit to which one of the parties in the subsequent suit was not a party may be 
admissible in evidence for certain purposes and with certain objects in the subse- 
quent suit. This expression of opinion which was obiter has been dissented 
from by Geidt, J., in a subsequent ca8e(l 1) to which reference will be made. (12) 
In the last-mentioned case the question was whether one A was a partner with 
J. An award made by an arbitrator in a previous suit brought by A against 
J was tendered to show the alleged partnership, Geidt, J., held that the award 
was not admissible ; Ghose, J., that it was agreeing in the view that the Privy 
Council deoisionsreferred to had qualified the rule laid down by the Full Bench 
and stating that he was disposed to think that the Privy Council had in these 
cases adopted the dissentient opinion of Hitter, J., in the Full Bench. 
MU^. '^^^ Bombay High Court has concurred(13) in the judgment given in Oujju 

Lall V. Fatteh LaJl. In the case cited the plaintiff sued to recover arrears of 
rent for a certain shop alleging the annual rent to be Rs. 250. The defendant 
contended it was only Rs. 60. In support of his allegation, the plaintiff relied 
upon the evidence of his brother and two entries in his handwriting in the books 
of the firm of which the plaintiff's brother and the defendant were partners. 
To prove the honA fides of these entries the plaintiff offered in evidence a judg- 
ment given in favour of the plaintiff's brother in a suit brought by the defen- 
dant, charging him (the plaintiff's brother) with improperly debiting their firm 
with Rs. 250 as the rent of the shop. It was hdd that the judgment was not 
admissible, Sargent, C. J., remarking : " As to the term 'transaction.' it i» 



(1) « C, 171 (1880). (9) 13 C, 382 (1886). 

(«) 11 C, 801 (1884). (10) Ran Am/oi* r. Sam Narain, 22 C, 53» 

($) II C, 74fl (1886). (1896). Bhitto Kvntmr r. Kaho PtnhaA, H 

(4) II C. L. R., 528 (1882). I A., 10 (1897). 

(5) 6 C, 171 (1880). (11) Ahituuh Ckanira v. Port»k NtiK » C. W. 

(6) JianvOak Sheitk t. /n« Khan, 23 C, 69 N., 402 (1904). 
(1896). (12) r. pott, p. 7». 

(7) Tepu Khan v. Roioni Mohun, 25 C, 522 ; (IS) lo Ranchhojibu v. Bapu Narhar. 10 B.. 
». 0., 2 C. W. a., 001 (1898). (1886). 



(8) 6 C, 171 (1880). 



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r». 13.] BIGHT OB CUSTOM, 75 

doabtless one of large import, and might, although by a strained use of it, be 
held to be applicable to proceedings in a suit : but as the result of holding it to be 
so applicable in the thirteenth section would be to effect a most important depar- 
ture &om the English rule of evidence which would make judgments, decrees and 
verdicts of juries onlr admissible in matters of public interest it may well be 
doubted if such was the intention of the framer of the Code. "(1 ) More recently 
it has been said : — " It is not easy to reconcile this conflict of views in particular 
instances, but apparently the cases, which decide that judgments, not inter 
partes, are not admissible in evidence, proceed chiefly on the ground that those 
judgments are sought to be used as having the effect, more or less, of res 
judicata. For that purpose a judgment inter partes alone can be admitted in 
evidence, but for other purposes where judgments are sought to be used to 
show the eoriduct of the parties, or show particular instances of the exercise of 
a right or admissions made by ancestors, or how the property was dealt ufith 
previously they may be used underthe eleventh or thirteenth section as excep- 
tions recognised under section 43 as relevant evidence. "(2) This decision 
was followed in the undermentioned case. The judgments rejected by the 
lower Appellate Court were not inter partes but were in suits brought by 
other creditors against the same defendants, in which the existence of the 
partnership denied in the suit was asserted with success. It was held that the 
judgments >(-ere admissible in evidence and must be treated as relevant but 
not asconclufflve as to the existence of the partnership. (3) Sedqwre. 

The Madras High Court has also concurred (4) in the judgment given in „^^ 
Gujju TjoII v. Fatleh LaU. In a suit brought by the trustees of a temple to <itHtiom. 
recover from the owners of certain lands in certain villages money claimed 
under an alleged right as due to the temple, judgments in other suits against 
other persons in which claims under the same right had been decreed in favour 
of the trustees of the temple were admitted. (5) It was said : "We concur 
with the majority of the learned Judges who decided, in Oujju LaU v. Fatteh 
LaU. that a judgment of the character there under consideration, viz., as to 
whether a certain person was or was not the heir to another, is neither a 
transaction nor a fact in the sense in which the words are used in the thirteenth 
section of the Evidence Act, and that the judgment referred to in that case could 
not be given in evidence ; but the judgments filed in this case are not of the 
character under consideration in that case ; the question for determination in 
the previous suits was whether the payments then claimed, and which are in 
contest in the present suits, were claimable as of right, and in one case whether 
they were so claimable from a particular class of persons, viz.. Christians ; and 
it appears to us that, when a right of the character now in question is at issue, 
such judgments are admissible in evidence as evidence of ' particular in- 
stances in which the right or custom was claimed,' and 'in which its exercise 
was disputed, asserted or departed bom,' and was further adjudicated upon ; 
and that the right was a right of the character dealt with under the thirteenth 
section of the Evidence Act. The case for the appellants is — and there is evi- 
dence in support of it in the case before us as to at least six of such villages — 
that, from those who hold lands in a large number of villages in the vicinity of 
the temple, the payment claimed is demanded as of right, and that such pay- 
ments have been made after suits from time to time brought and determined 
ia reference to the liability of persons occupying lands in these villages ; and 
this being so, we are further of opinion that the decisions in the former suits 



(1) A.,442:A'arai(^£kiMa»ibat T. Difa Vmtd, L. R.,esl <1900). 

3 B., 3, nfemd to and dhtingniahed. (4) la Stiltnmanya v. Parama»waran, 11 M., 

(2) Per BuiMle, J., in Lakshman y. Amril, 24 133 (1887) ; Aima«ai>n ▼. Appam, 12 H., 13 (1887). 
B., SOS, 9M (1900). (6) Kamammi v. Appaiii, 12 M., 9 (1887). 



(3) OotniH Jkanr v. Ckhotalal VtM, 2 Bom. 



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76 SIGHT OR CUSTOM. [S. 13.] 

are decisions which relate to 'matters of a public nature' within the mean- 
ing of section 42 of the same Act. The question for determination before ns 
is not dissimilar in principle from that reported in Naranji Bkikhabhai v. 
Dipa Vmed.{l) The right now claimed appears to us to be as much a right 
of the character indicated in the thirteenth section of the Evidence Act 
as the right to a fishery, and the judgments go far to support the finding of the 
District Judge as to the payments claimed having been customarily made." (2) 
In this case the remarks as to this section were obiter as it was held that the 
case came within s. 42. But apart from this the judgment may have been ad- 
missible to explain the nature of the payments made, viz., that they had been 
made after suits brought and that the payments were thus claimable as of 
right and were not voluntary. In a suit to establish the plaintififs title to 
certain lands he put in evidence (a) a conveyance in favour of his father ; (b) a 
sale-certificate issued to his father's vendor ; (c) an order made in certain 
execution-proceedings in which was recited a petition by his father asserting 
his title ; {d) a judgment obtained by his father in which his title was recog- 
nized. Neither the defendants nor their predecessors were parties to any of 
these instruments or proceedings : held that none of the