·SRINIVASA, VARADACHARI & CO. PELSTERS, PUBLISHERS AND BOOKSELLERO BIOCXT ROAD AND TRIPLICAXE, + MADRAS. CATALOGUE OP LAW PUBLICATIONS. rustage tra RS 50 - 12 10 20 12 180 40 ! 0 120 11 0 13 .. complete Summary of Anstua's Junrudence Addigon on the Law of Torty Do on the Law of Contracts Agnew and lenderson's Cral Procedaro, 2nd Edition Alexander's Caso Lax on Torts. Do Limitation Aszerr Jus Lectures on Mahamadan Las Amor Science of Junarodeace An La of Dictionary UJ A Bronn Aasga's Contract Austin's Jurisprudence, Tols 00 Do (Studiots' Edith Jill's Leslins C&&08 ou Torta RW Eritance Buartum Principles of Murals ead'legi Do Thesy of Legula! 100 Danapin on Sales Obelisciarpas last lindo fomuls 130 128 ''19 1 12 126 0 10 0 ·LA PUBLICATIONS. Postage etira ES. A. is Bigelow On Torts 7 8 Bills of Escbange 2 4 Blyth's Analysis of Snell's Equity Branson's Digest of the Unreported Judgments of the High Cour Bombay Broom'a Legal Marims eta hogy Do Commentaries on the Common Lars arging Broughton'a notes of cascs Civil Procedure Dşleg on Bulls Cambell's Analysis of Jurisprudence. 39 Chalmer's Negotiable Instruments 70 Civil Court Mannal by C. Annadurai Aigar 80 Code of Local and Special Lairs Collet on the Law of Torts and Damages, Cth Edition 68 Do. Specific relief Act 90 Coote's Law of Mortgage 37 0 Canningham and Shephard's Contract, new Edition, In the Press Cunningham's Endence, 7th Edition 80 Currie's Indian Law Examination Manual 50 Dictionary of Law Terms 4,0 Donough's Stamp Law in India Field's Evidence 18 0 Gale on Easements 17 8 Goddard on Eacements 13 0 Gribble's Medical Jarisprudence 4 0 (nths' Easement Ball's International Law 127 Laud-book of Bankruptcy Administration Orders 0 10 Ilarri's lite on Advocacy Kuat Charts 100 Iliatory of the Indian Law of Evidence 1 0 Ilolland's Jarisprudenco Hume's Criminal Digest Indermaar's Self-Preparation for the Intermediate Esatination Do Leading Common Law Cases 3 Tide fty-leaf at the end for continuation 1 8 0 + 8

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·THE INDIAN EVIDENCE ACT.

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·THE
INDIAN EVIDENCE ACT,
NO. I OF 1872
As amended by Acts XVIII of 1872 & XVII of 1886.
TOGETIC WITU
2N INTRODUCTION, EXPLANATORI NOTES AND AN APPENDII.
Price -Rs. 2-8-0
MADRAS
SRINIVASA, VARADACUANI & Co,
Frinlers, publishers, and Hoofscilers.
1887.
(All Rights Reserved. į

·PAINTED BY SRIsIFA&A, VABADACHARI Co., Mount ROAD, MADRAS.

·PREFACE. Ås there are already a large numbele works on the subject, the bringing out of this little LO may require a few words of apology. The text-books in use are from their cost beyond the reach of many candidates for the Special and Pleader Tests. Their size also precludes the possibility of their being thoroughly studied by such candidates, who have very often little timo to spare for law-studies. It has thereforo bocn thought desirable to publish this book whoso cost, size and matter will, it is hoped, be found suitablo to the means, opportunities and requirements of those for whom it is intended. The author has consulted in the preparation of this work the leading text-books on tho subject, specially the works of Taylor, STEPTIEN, Field and CUNNINGHAM. THE AUTHOR. Madras, 1st Norcmber, 1887. }

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·CONTENTS. ISTILODUCTION PREAMBLE PART I. EVIDENCE OF FACTS. CHAPTER 1.- Preliminary. 1 1 1 OPO ... Sections. 1. Short title Extent Commencement of Act 2 Repeal of cnactments 3. Interpretation-clause 4 "May presumo" " Shall presume" "Conclusive proof" CHAPTER 11.-Of the Relevancy of Facts. 2 2 5 ... ... . Jag 5 . 5 .. Evidence may be given of facts in issno and relevant facts Relevancy of facts forming part of same transaction. Facts which are occasion, cause, or effect of facts in 5 6 6 7. issu 7 . 7 10 UD + 8 Motire, preparation and previous or subsequent conduct 9 Facts necessary to cxplain or introduce relevant facts. 10. Things said or done by conspirator in reference to com. mon design 11. When facts not otherwise relcrant become relevant 12. In suits for damages, facta tending to enable Cout to dctermino amount, are relorant 13. Facts relcrant when right or custom is in question. 14. Facts showing existence of state of mind, or of body, or bodily feeling ... 11 11 12 12 ·2 CONTENTS, Page. *** 16 17 18 18 18 18 18 13 . 20 L. 20 21 .. ... 92 UM Sections 15. Facts bearing on question whether act was accidental or intentional 16. Existence of course of business when relevant Admissions. sions defined pon- Purty to proceeding or his agent nitor in representative character wy party interested in kobject matter by person from whom interest derived 19. Admissions by persons whose position must be pmred as against party to snit 20. Admissions by persons expressly referred to be party to suit 21. Relevancy of admissions against or in behalf of persons concerned 202 When oral admissions as to contents of documents aro relevant 23. Admissions in Civil cases when relevant 24. Confession caused by indacement, threat, or promiso irrelevant 25. Confession made to a Police officer not to be used AS cvidence 26. Confession made by accused while in custoily of Police, not to be used as cridence ... 27. So much of statement or confession made by accnsed as relates to fact thereby discorcied, may be proved 13. Confession made after semoval of impression caused by inducement, threat, or promise, rclernnt 29. Admission otherwise relevant not to becomio irrelevant because of promise of secrtcy, &c ... 30. Consideration of prored admission affecting person making it anul others jointly uncler trial for same, ottenco 31. Admissions not conclusive proof, but may estop Statements by Persons who cannot be called as 117inesses 32. Casce in which statement of reterant fact luy peron who is dead or cannot be found, &c, is relevant, 02 .. ... 23 . . 21 27 .. 21 ... 1. 14. 23 20 19 26 ·CONTEXT3 3 Page. . 26 27 27 Suatia ... 28 .. ... .. 32 .. 3+ . . 35 35 Sections, Ylen it relates to cause of death or 13 made in course of business or against interest of maker or gives opinion as to public right or custom or matters of general interest ... or relates to existence of relationship or is made in will or deed of deceascd person or relates to transaction mentioned in section clauso @) or is made by several persons and expresses fcelings relevant to matter in question 33. Evidence in a former judicial proceeding when relevant. Statements made under special circumstances. 34 Entries in books of account which relevant 35. Entry in public record, made in performance of duty cnjoined by law, then relevant 36. Maps and plans when relevant 37. Statements as to fact of public nature containcd in any Act or Notification of Government, when relevant. 38. Statements in law-books How much of a Statement is to be proved. 39 What evidence to be given when statement forms part of a conversation, document, book, or scries of letters or papers Judgments of Courts of Justice when relevant. 40. Previous judgments relevant to bar a second suit or trial 41. Judgments in probato, &c, jurisdiction 42. Judgment, order, or decree between third parties when irrelevant and when not 43. Wlat judgments, &c., not relevant 41. Fraud, collusion, and incompetency of Court may bo proved Opinions of third persons when rclcvant. 45. Opinions of experts 46. Facts bearing upou opinions of experts 36 36 ... 30 ... ... ... *** . 37 40 PO 41 42 ... 43 1. 64 re -.. 15 ·CONTENTS. Page. 46 . •10 46 47 47 48 . ... Sections 47. Opinions as to hand-writing 19. Opinion as to existence of right or custom when relevant 19 Opinions as to usages, tenets, &c, wlien relevant Annion on relationship, when relevant ds of opinion, when relevant Character when relevant. civil cascs, character to prove conduct imputed, irrelevant 53. In criminal cases, previous good character relevant. 51 Previous conviction in criminal trials relevant, but not prerious bad character, except in reply 55. Character as affecting damages .. 4S 45 19 49 50 50 52 . ... d.. .. 53 53 ... . PART II. ON PROOF. CHAPTER III.-Facts which need not be proved. 56. No cridence required of fact judicially noticed 57. Facts of which Court must take judicial notico 58. Facts admitted CHAPTER IV.-Of Oral Evidencc. 59. Proof of facts by oml evidenco GO. Oral evidenco must be direct CHAPTER 7.- Documentary Evidence. 61. Proof of contents of documents 62. Primary cridenco 03. Secondary cridenco Gl. Proof of documents by primary evidenco 05. Cases in which sccondary cvidenco rclating to documents may bo giren .. CC. Rules as to notico to prodaco Proof of signature and land-Fritids of person alleged to have signed or written document producel. C3. Proof of crecution of document required by law to lo attested C!. l'roof where po attesting witness found 70 Admission of execution Ls parts to attested document ... 53 51 56 55 I. 55 P. ... 1 53 66. .. 59 39 53 ·CONTENTS 5 . . . AO ... PO .. Sections, Pagc. 71. Proof when attesting vitness dcuies thc csecution. 60 72. Proof of document not required by law to be attested. 60 73. Comparisoo of hand-writings GO Public Documents. 7. Pablic documents 75 Private documents 76. Certified copics of public documents 77 Production of such copics 78. Proof of other official documents Presumptions as to Documents, 79. Presumption as to genuineness of certified copies 63 80. Prosumption on prodnction of record of evidenco .. 63 81. Presumption as to Gazettes 61 89. Presumption as to document admissible in England without proof of scal or signaturo 61 83. Proof of maps mado for purposes of any causo 66 84. Presumption as to collections of laws and reports of decisions 05 85. Presumption as to powers of attorney 65 86 Presumption as to ccrtificd copies of foreign judicial records 65 87. Presumption as to books and maps 65 88. Presumption as to photographs, machino copios, and telegraphic mossages 65 89. Prosumption as to duo cxecution, &c., of documents not prodaced GG 90. Documents thirty years old 06 CHAPTER VI.-Of the Exclusion of Oral by Documentary Evidence. 91. Evidence of terms of written contract 67 92. Exclasion of cvidence of oral agreemcat 93. Exclusion of cridence to cxplain or amend ambigaons document 73 9t. Esclusion of evidence against application of document to cxisting facts 73 93 Lydenco as to document unmeaning in reference to cuistiog facts . . ... . 0. .. . ... ..! ... *** . DO 40 . . ... .11 OD .

·6 CONTENTS. Page. 74 .. Seclions 96. Evidence as to application of language which can apply to ono only of several persong 97. Evidence as to application of language to one of two sets of facts to neither of which the wholo cor- Ecctly applies nce as to mcaning of illegible characters, &c may give ovidence of agreement varying terms document saving of provisions of Indian Succession Act relating to wills 409 RE 74 74 76 .. 76 77 S. ... 77 79 ... 79 79 80 81 I. 1. LI PART III. PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER VII.-Of the Burden of Proof. Durden of proof 2. On whom burden of proof lies 3 Burden of proof as to particular fact evt. Burden of proving fact to be proved to makc oviderco admissible 105. Burden of proving that case of accascd comes within cxceptions 106. Burden of proving fact cspecially within knowledge. 107. Burden of proving dcath of person knotyn to lavo becn alive within thirty years 108. Burden of proving that person is alive who Las not been heard of for seven years 109. Burden of proof as to partnership, tenancy, and agency 110. Burden of proof as to ownership 111. Proof of good frith in transactions whero one party is in relation of activo confidence 112. Birth during marriage, conclusise proof of legitimacy 113 Proof of cession of territory 114. Court may persume existence of certain facts CHAPTER VIII.-Estoppel. 115. Estoppel 116 Estoprel of tenant 81 ... . 81 82 82 . 83 83 1 .. 88 91 IP 117 ·CONTENTS. 7 Page. Sections 117 Estoppel of acceptor of bill of cxchange, bailce, or liccnsco 92 ... .. 11 . ie A. ad ... .. ... .. 30 .. . ... . .. . .. . I CHAPTER IX.-of Witnesses. 118. Who may testify 92 119. Damb witnesses 93 120. Married persons in Civil and Criminal procedim 121. Judges and Magistrates see sin 122. Communications during marriage prost bryrito 123. Evidence as to affairs of Stato 124. Oficial communications 95 125. Information as to commission of offences 96 126. Professional communications 96 127. Section 126 to apply to interproters, &c. 98 128. Privilege not waived by volanteering cvidenco 98 129. Confidential communication with legal advisers .99 130. Production of witncss' title-decds 100 131. Production of documents which another person, having possession, wonld bo entitled to refuse to produco 100 132. Witness not cxcused from answering on ground that Answer will criminate 100 Proviso... 100 133. Accomplico 101 134. Number of witnesses 102 ... . + .. ..! . . ... d. 04 . . 10 .. 100 PO# U. .. +.. ud . ... 103 103 10+ 101 101 104 ... .. PO ... CHAPTER X.-of the Examination of Witnesses. 135. Order of production and examination of witncsses. 136. Judgo to decide as to admissibility of cvidenco 137. Examination-in-chief Cross-examination Rc-cxamination 138. Order of examination, Direction of ro-cxamination. 139. Cross-examination of person called to produce a do. cument 140. Witnesses to character 141. Lcading question 142. When they must not be asked 143. When thoy may be asked 144. Evidence as to matters in writing 145. Cross-cxamination as to prcrious statements in writing .. . ..? . . ... IO . .. 105 106 106 106 IOG 106 •10 .. . 1. .10 ET I. 107 ... .. 1+1 ·8 CONTC NTS. .. .. 4. 30 4.. Sections. Page. 146. Questions lawfull in cross-examination 107 147. When witness to be compelled to answer 10S 148 Court to decide when question shall be asked and when witness compelled to answer 108 149. Question not to be asked without reasonable grounds 100 :edure of Comt in case of question being asked thont rcasonable grounds 109 sont and scandalons questions 110 Stions intended to insult or annoy 110 lusion of evidence to contradict answers to ques. ions testing veracity 110 104. Vuestions by party to his own witness 111 155. Impcaching credit of witness 112 156. Questions tending to corroborate evidence of relevant fact admissible 112 157. Former statements of witness may be proved to corroborate latter testimony as to samo fact 113 158. What matters may be proved in connection with proved statement relevant under sections 32 or 33. 113 159. Refreshing memory 213 VYhen witness may use copy of document to refresh memory 114 160. Testimony to facts stated in document mentioned in section 158 114 161. Right of adverse party as to writing used to refreshi memory 115 162. Production of documents 115 Translation of documents 115 163. Giving, as cvidence, of document called for and produced on notico 115 164. Giving, as evidence, of document, production of which was refused on notice 116 165. Jadgo's power to put questions or order production. 166. Power of jury or assessors to put questions 117 CHAPTER XI.-of improper Admission and Rejection of Evidence. 167. No new trial for rejection or improper reception of evidenco 116 SCHEDULE 120 2 .. 10 ... .. .. ... ... ... 116 . dr. II ·APPENDIX. Page. O + FC . To progetto . aying around . .. . XIV .. .:. . XV D. ... Dir. Steplien's Specchi Act XIX of 1853, Sec 20 19 and 20, Vic, ch. 113 22, Vic., ch. 20 48 and 49, Vic., ch. 71 22 and 23, Vic., ch. 63 21, Vic., ch. 11 ... 31 and 32, Vic., ch. 37 Act XVIII of 1872 Act X of 1873 xvi .. xyiii . xix .I. ... ... 1. .. u. 4. .. .

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·1 proper inference from a number of facture INTRODUCTION. The position of the Law of evidence. The object of all lays is to create rights and duties and to enforce their observance. Th..atlat create rights and duties only are called substantive larcs, aro provide measures against the violation of such rights antics gerad called adjecture or procedure laics. When a right has been inry kung a daty has been violated, or sometimes even when there is fear of such infringement or violation, the individual aggricred or the State puts tho adjective or procedure law in forcc. The adjective law may be roughly divided as follows* :- {a) Rules as to preliminary proceedings such as the presenting of the plaint, the summoning of the opposite party, the stating of the case by tho parties, the ascertaining of the points in dispute, tho summoning of witnesses and to requiring of the production of documents. (6) Rules as to thc proof of the points in dispute by the statements of witnesses and the prodaction of documents. (r) Rules as to the modes of expressing the decision which the Judge arrives at by the application of the rules of substanlire law to the facts which le considers as proved (d) Rules as to the modes of carrying out the decision. Headugs (a), (c) and (d) have been put together in the Indian Law and havo been technically called procedure; while heading (1), although nong the loss part of procedure laie, bas been mode distinct 11nder the nanie of eurdexce 2 What should not be expected from a troati e Law of Evidence - We should not cxpect it to teach us opposed to are whether the statement of a witness is trro or untrae, ante in draw the have been quared to be true These questions, as to evidence and inlcrences to be drawn therefrom, can be suissa only by the Jadge's own knowlcdge of the world + 18SUA a legislate as if it 347 33#pos 2 (214 roo of • This division, without being eact and exhaustire, aims at only pointing out the province of the two of ***ce, + There are boelier camelons, so actions 41, 93-99 and 113-11L ·1 IVTRODUCTION 3 that a treatise on the Law of Eudence aims al.- Fudly-It lays down the proper limits of a judicial enquiry As thie time of the Court shonld not be unnecessarily taken up with enquiries having no bearing upon the case, it becomes necessary to determine what the legitimate limits of an cnquiry should be Every jadicial enquiry aims at determining the right or liability of a person The right in question is a necessary inference from the truth or ontruth "incipal facts in dispute between the parties; and these is in dispute from the truth or untruth of which the right hty of a person directly arises are called facts in issue. The truth or untruth of the facts in issue may be established by direct crudence regarding them, or by evidence of other facts whiclı by their intimate connection with the facts in issue render the facts in issite probable or improbable These other facts are called relezant facts Therefore tle first cnquiry in a treatise on evidence must be "What are those various connections or relations with facts in assue which make a fact relevant ?" (For this see sections 5—55.) This sets the Jumat to a judicial enquiry, anul t cannot therefore pass beyond facts 181 18924 and relevant fact: * Secondly --Haring determined the facts orer which the enquiry slould estend the nest point is to determine which of these requuc proof and wluch not, for the latter sec sections 56-58. Next as to tlo nicthod of proring those facts which requue proof, the cardinal principle is that the best possible proof that the nature of the fact admits of must be adduced, in order that the chances of crror may be less. “When This does not hnweser prevent the Judge from putting what qnestions be thinks proper whether relevant or irrelevant See section 163. The reason for tbus exception is thus giron by Mr Stephen the framer of the Act "That part of the Law of Evidence which relates to the manner in which witnesses are to lo examined Dames the esistence of a well educated Bar cooperating with the Judge au relieving hara practur" of every other dats than that of decading questions which may arise between them. In this state of thingn does not exist in India and that it would te a great mistake d. Ya a great ramler of cases-probably the rest numerical majonty-- Judge cipietrul buelf. In all cuscs lc 13 to represent the inter- 17 ·INTPODECTIOX ili the terms of a contmct, or of a grant, or of any other disposition of property hare been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no eridence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself.” Oral evidence or evidence by means of a copy may however be given under certain exceptional circumstances. When tho matters above referred to have been proved as aforesaid, no ang oral agreement or statement shall be admitted, as better ties or their representatives, for the parpose of in any way varying to cffect of the document This rule also is subject to certain exceptions. Of other matters oral eridenco may bo given provided it bo direct. * . Thirdly --The next subject that should be taken ap is the production and effect of evidence. Under this head rules regarding the burden of proof, the facts which a party may under certain circumstances bo disqualified from proring (estoppel,) the competency of persons to give cridence, the facts of which certain witnesses cannot give or cannot bo compelled to give evidence, the manner of examining witnesses, and the effect of the improper admission and rejection of evidence are laid down The difference between the English Law of Evidence and the Indian Law --In England the Judge only expounds the law, whilo the jary decides upon questions of fact. As the jury consisted of persons who had no professional training it was considered that the evidence of interested parties, of persons of notorious bad characters and such like should not be placed before tho jury owing to their gencral unreliability. Sometimes very important evidence was thus shut out. But thanks to the labours of Bentham the disability of such persons to bear eridence has The phrase direct crudence is tied in to EeDeCS. As opposed to crewwstantial sidence it means those statements and documents which prove the facta in legde themselves, ratle crema. lunfal contenu prove collateral facts relevant to facts is wat and thereby indirectly prove the facts ut issue, as opposed to hear y efidentes, disset crident means the evidenco given by a person who has bimacif perceived by his seascs the fact to which he testides, i... if it refers to a fuct which can be seen it is the evidence of a person who says he has seen it, of it refers to a fact which can be heard it is the syidence of a person who boya he has heard it; in short of it refers Lo fact which can be perceived by any tense of fa any other manner it is the endence of person who 5478 bo bu perceived it by that sense or in that manner, Beartay Ardenet is that of a person who has derived his information second hand. A sags ho Fa# B murder C. D who hns heard this denses that he heard Any that he sun B morder C. D's evidence is trarray and should not be admitted, except tortor certain exceptional Ciutances (6546.29.) Direct tred 1160 24 usci #baye in this littcr Ecole.

·PRELIMINARY [sc 3 3 For afidavits, see ss 191-197, Cay Pro Code of 1892 ; and foi proceedings before arbitraluis, 8Cc 83 506-520 of the game Code Repcal of enact- 2. On and from that day the following laws ments. shall be repealed :- (1) All rules of evidenee not contained in any Statute, Act or Regulation in force in any part of British India ; Full such rules, laws and regulations as have acquired the ny under the twenty-fifth section of The Indian Councils ,' in so far as they relate to any matter herein provided clause The enactments mentioned in the schedule licrcto, to the extent specified in the third column of the said 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. Note The rules of the English common Law which were in use in this country previous to tho passing of this Act are repealed by clanse (1), inasmuch as they were only a set of uuwritten lawa brought into existence by the practice of the English Courts. 3 In this Act the following words and Interpretation. expressions are used in the following senses, unless a contrary intention appears from the context: "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally autho- "Court rized to take evidence. "Fact" “ Fact" means and includes (1) any thing, state of things or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustralions (a) That there are certain objects arranged in a certain order in a certain place, is a fact (6) That a mat heard or saw soinething is a fact. (c) That a man said certain words is a fact (1) That a man holds a certain opinion, has a certain intention, acts in good faith o fraudulently, or uses a particular word in a parti- ·TTELISIIYARI 3 REC 3] cular sense, or 18 or as at a specified truc conscions of a particular sensation, is a fact (e) That a man has a certain rcputation is a fact. One fact is said to be relevant to another when the one is connected with the other in any of the ways "Relerant." referred to in the provisions of this Act relating to the relevancy of facts. The expression " facts in issue" mc s-sport includesany fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, nccessarily follows. Explanation. Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in tho answer to such issue, is a fact in issue. Facts in issue Illustratrons. A is accuscd of the murder of B At his trial the following facts may be in issnc.- That A caused B's death; That A intended to cause B's death; That A had received grave and sadden provocation from B, That A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature. “Document" means any matter expressed or described upon any substance by means of letters, figures, or "Document" marks, or by more than one of those means, intended to be used, or which may be used, for the parpose of recording that matter. Illustrations A writing 13 a document; Words printed, lithographed or photographed are documents; map or plan is a document; An inscription on a metal plate or stone is a document, A caricalare is a document ·PRELIMINARY. 180 4 [SEC 3. "Evidence" "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 inquiry ; such statements are called oral evidence : all documents produced for the inspection of the Court; documents are called documentary endence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or "Prosed considers its existence so probable that a prudent man onght, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matters before it, the Court eithor believes that "Diaproved" it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist A fact is said not to be proved when it is "Xot proved" neither proved nor disproved. Note. 1. Court.-A Police officer examining witnesses is not a Court A Sub-Regis trar is a Court, Petition of Sardar: Lal, 22 W.E. Cr. Rul., 10. 2. Facts en issue and 1elevant fucts -The difference between them is pointed out in the introduction, para 3 3. Documents - Compare the definition of the game in the I. P. C., 29. It has been buid that a third sort of evidence called material cvidence has been omitted. By material evidence is meant those things that are transmitted to tho *---- Tlcrcfore the capon cannot be called endence ·SEC 5 ] FELLYAXCT O: FACTS 5 4. Whenerer it is provided by this Act that the Court may presume a fact, it may either regard such fact ** May presume" as proved, unless and until it is disproved, or may call for proof of it. Whenever it is directed by this Act that the Court shall "Shall prestmc." presume a fact, it shall regard such fact as proved, unless and antil it is disproved When one fact is declared by this Act to be conclusiteproof of another, the Court shall on proof of the one "Conclusire proof." fact regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Note. 1. In English treatise progumptions are divided into rebuttable presumptions and irrebuttable presumptions Rebuttable presumptions correspond to the cases in which the Court may or shall presume a fact; while srrebuttable presumptions corres. pond to cases of conclusire proof. 2. For instances in which the Court may presume a fact seo sections 86—88, 90, 114, For instances in which the Court shall presume a fact sed section 79-83, 89, 105 and for cases of conclusive proof see sections 41, 112, 113. CHAPTER 11.-Of the Relevancy of Facts. 5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue Evidenco may be giver of facts in iagta and of such other facts as are hereinafter and relevant facts declared to be relevant, and of no others, Explanation. This section shall not enablo any person to give cvidence of a fact which he is discntitled to prove by any provision of the law for the time being in forco relating to Civil Procedure. Illustrations. (a) A is tricd for the murder of B by beating lim with a club with the intention of catsing his death. At A's trial the following facts are in issuc- A's beating B with the club; A's causing B's death by such beating; A's intention to cause B's death. (b). A suitor does not bring with him, and have in readiness for production at the first henring of the case, a bond on which he relies. Ilus scctiou does not enable him to produce the bond or proro its ·6 RELEFANCY 9E FACTS [sec 5. contents at a subsequent stage of the proceedings, otherwise than in Accordance with the conditions prescribed by the Code of Civil Procedare. Note mu'..----- .- t. .'-.--.--. . I0U, UJ U wuu, 2 Creinafter The world hereinafter includes pot only this chapter but also Ba 143, 116, 149, 153, 155, 156, 157, 139. 6. Facts which, though not in issuo, are so connected with a fact in issue as to form part of the same Relovancy of facts transaction, are relevant, whether they occurred forming part of gamo transaction, at the same time and place or at different times and places. Illustrations. (a) A is accused of the murder of B by beating him What. cver was snid or done by A or B or the by-standers at the beating, or 60 shortly before or after it as to form part of the transaction, is a elevant fact. (0) A 18 accused of waging war against the Queen by taking part in an armed insurrection in thich property is destroyed, troops aro attacked, and goals are broken open. Tho occurrence of these facts is relevant, as forming part of the general transaction, though A may not havo been present at all of them. (c) A sucs B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject ont the libel arose, and forming part of correspondenco in which it is contained, are relevant facts, though they do not contain the libol itself. (d) The question is whether certain goods ordercd from B verc delivered to A. Tho goods were delivered to coveral intermcdiato persons successively. Each delivery is a relevant fact. Note 1. The facts alleded to in this section are generally known as part of tho TC) gerte Transaction." A transaction is a group of facts to connected together as to bo referred to by a single tegal namo 24 & crime, & contract, &c." 2 -11-11 ·S70 81 RELEFANCY OF FACTS 7 7. Facts which are the occasion, cause, or cffoct, immediate or otherwise, of relevant facts, or facts in issue, Facts vluch are oc. casion, causc, or ef. or which constituto the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relcrunt. fcct of facta in 199uc Illustralions, (a) The question is whether A robbed B. The facts that, shortly before the robbery, B vent to a fnir with money in his possession, and that he showed it, orzuentioncd the fact that he had it, to third persong, are relevant. (6) The qiestion is, whether A muttered B. Marks on the ground, produced by a struggle at or near the place where the mardcr was committed, are relevant facts. (c) The question is, whether A poisoted B. The state of B's licalth before the syniptoms ascribed to poison and habits of B, known to A which afforded an opportunity for the administration of poison, are relevant facts. Note 2 of the illustrations, (a) is an instance of lacte relevant as giving occasion or opportunity. (6) of facts obtiatituting effect; (c) of facts constichting the state of things undor which an alleged fact happened. 2. Illustration (c) seems to havo been talon from the trial of Captain Don. nellan for poisoning Sir Theodosias Boughton, Botire, prepa2. tion and previous or Bubsequent conduct. 8. Any fact is relevant which shots or constitutes a motivo or preparation for any fact in issue or relevant fact. Tho conduct of any party, or of any agent to any party, to any snit or procecling, in reference to such suit or proceeding, or in referenco to aty fact in išgne therein or relovant thereto, and the conduct of any person an offence against whord is the subject of any procceling, is relavant, if such tonduct influences or is in. fluenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.-The word "conduct" in this section does not include stateneats, unless those statements, accompat and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

·8 RELEYANCY OF PACTS [sec 8. Explanation 2.-When the conduct of any person 13 relorant, any statement made to him or in his presenco and hearing, which affects such conduct, is relevant. Illustrations. (a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make huis kuowledge public, are relevant. (6) A sues B upon a bond for the payment of money. B denics 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 parpose is relevant. (c) A is tried for the murder of B by poison The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant (d) The question is, whether a certain document is the will of A. "11 are relevant (e) A is accused of a crime. The facts that, either before, or at the time of, or after the alleged crime, A provided 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 presented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. The question is, whether A robbed B. The facts that, after B as robbed, C said in A's presence—tho Police are coming to look for the man who robbed B,' and that immediately afterwards A ran away, are relevant. (9) The question is, whether A owes B Rupees 10,000 The facts tbat, A asked C to lend him moncy, and that D said to Cin A's presence and hearing—'I adrise you not to trust A, for he Owc9 B 10,000 rupees,' and that A went away without making any answer, are relevant facts. (h) 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, aro relevant.

·PELETANCY OF FACTS 9 $EC 8 ) (1) A is accascd of a crime. The facts that, after a commission of the alleged crime, he absconded, or vas in possession of proporty or the proceeds of property acquired by the crime, or attenipted to conceal things which were or might have been used in committing it, are relevant. 6) The question is, whether A vas ravished The facts that, shortly after the alleged rape, sbe made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under thus section, though it may be relevant as a dying declaration under section 39, Clausc (1), or as corroboratiys evidence under section 157 (2) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms 2 which, the complaint was made, are relevant. The fact that he said he had been robbed, without making any complaint, is not relevant as conduct under this section, though it may bo relevant as a dying declaration under section 32, Clause (1), or as corroborative evidence under section 157, Note ... 2.-IL -...PA WY. R , 177 2. Statements ---Mere statements are not relevant under this section though they may be an under other sections, e. 9., sect1ons 16, 17---38 To bo relupant under this section they mast cither accompany and explain conduct which itself is rcle. impertinence, or if thero was no opportunity to contradict it and especially when tho statement was made in a letter, having failed to contradict the statement shoold not be taken as equivalent to concent • The brat latch relaties is aC.

·10 RFLETÁNCY OF FACTS. [SEC. 9. relevant facts 9. Facts necessary to explain or introduce a fact in issue Facts necessary to or relevant fact, or which support or rebut an explain or introduce inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that parpose. Illustrations. (n) Tbe 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 (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was pablished may be relevant facts as introductory to the facts an issue The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant of it affected the relations between A and B (c) A is accused of a crime The fact that, soon after the commission of the crime, A absconded from his house, is relevant, ander section 8, as condact subsequent to and affected by facts in issue The fact that, at the time when he left home, he had sudden and urgent business at the place to which he went, is relevant, as tonding to explain the fact that he left home suddenly. The details of tho business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and argent. (a) Asus B for inducing C to break a contract of scrvice mado by him with A. C, on leaving A's service, says to A-I am Icaring you because B has made me a better ofier. This statement is a relevant fact as explanatory of C's conduct, thich is relevant as a fact in issuc. (e) A scensed of theft, is scen to give the stolen property to B, who is scen to give it to A's wife. B says, as he delicts it-says son are to bude this.'. B's statement is relevant as cxplanatory of a fact which is part of the transaction ·SEC 11 ) TANCE OF FACTS. 11 () Ais tried for a riot, and is proved to hare marched at the head of a mob The cries of the mob aro relevant as explanatory of the nature of the transaction Note Illustration () is taken from Lord George Gordon's case 10. Where there is reasonablo ground to believe that two or more persons have conspired together to Thing said or done commit an offence or an actionable wrong, any by coaspurator in re. ference to common thing said, done or written by any one of such desiga persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against cach of the persons believed to be so conspiring, as well for the purpose of proving tho existence of the conspiracy as for tlic purposo of showing that any such person was a party to it. Nlustration Reasonable ground exists for believing that I has joined in a conspiracy to wage war against the Queen. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected 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 transmitted from Delli to G at Cabul the money which had collected at Calcutta, and tho spiracy, and to t of all 10 Telo fore he Note. 1 Analysis (a) This section apples to the case either of an offence or an actionable wrong (1) There must be reasonable grounds for believing in the ex18- lence of the conspiracy. (c) The things sard, done of wntcen by one of the 2. The English Law requires that the thing suid, dono or written must not merely refer to the conspiracy but must also be in furtherance of 10 3 Proof of the conspiracy may be allowed to be gren after the proof of the statements Sco section 136 When facts not 11. Facts not otherwise relevant are relc. otherwis relevant become relevant. Tant- (1) if they are inconsistent with any fact in issue or relevant fact;

·12 DELEYICT OF FACTS. [SFC 11. (2) if by themselves or in connection with other facts they. make the existence or non-existence of any fact in issue or rele- Fant fact highly probable or improbable. Illustrations. (a) The question is, whether A committed a crimo at Calcutta on a certain day The fact that, on that day, A was at Lalioie is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that le committed it, is relevant (6) The question is, wlicther A committed a crime The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by esther B, C or D, is relevant. Note. 1. Albt - This is the defence of having been so far away at the time of the commission of a crime from the scene of action that it makes it impossible that the prisoner could have committed it This sort of defence is relevant under this section 2. Ilaghly probable - This plirase must be construed very strictly as meaning the highest degree of probability In Ry Purbhudos Amloram, 11 Bom II CR, 90, it was held that the existence of a number of inchoate forgeries in the house of the accurcd did not make the prisoner's commission of the particular forgery in question so probable that they could be tendered in evidence under this section 12. In suits in wluch damages aro claimed, In Buits for dama. ges, facta tending to any fact which will enable the Court to deterenablo Court to determino amount aro mine tho amount of damages which ought to be relevant awarded is relevant. Note 1, Torts -In many actions for torta Buch as defamation and reduction the character of a person affect the amount of dımages Sec note to section 53. Other facts affecting tlamages in cases of forts are malice, insulting conduct and position in life of the defendant, tho time and place of the injury, the provocation given by the plaintif and the extent of injury suffered by the plaintiff 2 Preorh of Contract - In a c19e of breach of contract the trao measure of damages is the extent of the loss to the plaint and nothing else. 13. Where the question is as to the existenco Facta relevant when right or custom i 10 of any right or custom, the following facts are fuestion relevant- (a) Ang transaction by which the right or custom in question was crcated, claimed, modificd, recognized, assorted or denied, or which was inconsistent with its cristence:

·13 SEC 1.3] EFLEYANCY OF FICTS (6) Particular instances in which the right or custom was claimed, recognized, or esercised, or in which its exercise was disputed, asserted or departed from. Illustralion. The question 19, whether A has a right to a fighery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortagage, particular instances in which A's father exercised the right, or in which the exercise of the mght was stopped by A's neigbbours, are relevant facts. Note. Right - This has been interpreted by the Calcutta High Court in Gujguu Lal v Futteh Lal, L R 6 Cal, 171, as meaning an incorporeal right, e, not a right to the exclusive possession of any piece of land or other property, but a right to the mer use of it, while the nght of possession remains with somebody else ; e 9., an casement See ullustration Custom Custom 19 an unwritten law established by long usage. The cus- 1 1-1---L...L.. A parhcular castom in order that it may be recognized as binding must satisfy the following requisites - (1) It must hare been in vse so long that the memory of man tunneth not to the contrary (2) It must hale been tuniform and continuous (3) It must not be eague but definite. (+) It must not be unreasonable, 1m moral or opposed to public policy. (5) People must have acted under of asth the conziction that it was legally bund. ing #pon them 3 Mercantile usage --This is also a kind of custom prevailing among all 4 decisions, legal principles, analogies and the general opinion of merchants, while a usage of trade must be proved by evidence of instances and not by mere opinion Transaction --The meaning of this wond in clanse (a) has been a subject of much discussion. It certainly inclades such events as a sale, a lease, &c. As to wliether it includea prorious judicial decisous on the same subject between third parties there has been a difference of opinion It seems to be settled that prerions judgments not inter rarter are relevant to prove a nght or custom only when it 33 of A public nature; the woriling of: 42 sems to farour this fiex. Gugu Lal v. Fattel Lal, L R. G Cal, 171. 5. Provisions in thu set for the proof of custom-Sections 13, 32 (clauses 4 And 7.) 42, 49, 49, 51. Compare these sections carefully. 6 Common character of place ---When a custom or nght has been prored with regard to one place it may be presumed to erist with regard to another place also, if there is a common character between the two. Jones T, i!l1975, 11, 326 ·1+ RELEFÄYCT OF FACTS. (src. 14. 14. Facts showing the existence of any state of mind-suck as intention, knowledge, good faith, negligence, Facts showing ex. istence of state of rashness, ill-will or good-wll towards any parti, mind, or of hody or bodily feeling cular person, or showing the existence of any state of body or bodily feeling-are relevantwhen the existence of any such state of mind or body or bodily feeling, is in issue or relevant. Explanation.-A fact relevant as showing the existenco of a relevant state of mind must show that it exists, not generally, but in reference to the particular matter in question. Illustrations. (a) A is accused of receiving stolen goods knowing them to be stolen. It is prored that he is in possession of a particular stolen article. (1) A is accused of fraudulently delivering to another person a piece of counterfeit coin which, at the time when he delivered it, he knew to be counterfeit The fact that, at the time of its delivery, A was possessed of a number of other picees of counterfeit coin, is relevant. (c) A sues B for damage done by a dog of B's, which B knew to be ferocious. The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant. (a) The question is, whether A, the acceptor of a Bill of Exchange, knew that the name of the payee was fictitious, The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payce had been a real person, is relevant, as showing that A kaew that ího page was a fictitions person. (e) A is accused of defaming B by pablishing an impatation intended to harm the reputation of B The fact of prerions publications by A respeeting B, showing illwill on the part of A towards B, is relevant, as propias A's intention to harm B's repatation by the particular publication in question. The facts that there was no previous quarrel between A and B, and tbat A repeated the matter complained of as ho beard it, are relevant, as showing that A did not intend to barn the reputation of B.

·SEC 14] RELZTANCY OF FACTS., 15 A is sued by B for fraudulently representing to B that was solvent, whereby B, being induced to trust C, was insolvent, suffered loss. The fact that, at the time wheb A represented to be solvent, O was supposed to be solrent by his neighboars and by persons dealing with him, is relevant, as showing that A made the representation in good faith. (9) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A's defence is that B's contract was with C. The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A. (h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropri. ated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been giren in the place whero Awas, is relevant, as showing that I did not in good farth believe that the real owner of the property could not be found. The fact that A know, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A's good faith. (3) A is charged with shooting at B with intent to kill him In order to show A's intent, the fact of A's having previously shot at B may be proved. 0) A is charged with sending threatening letters to B. Thrcatening letters previously sent by A to B may be proved, as showing the intention of the letters. (k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, aro relevant facts (1) The question is, whether A's death was caused by poison Statements made by A during his illness as to his stoptoms are rclerant facts. (112) Tho question is, what was the state of A's health at tho time when assurance on his lifo was elected. Statements mado by A as to tho stato of his healtu at or neartho time in question, are relevant facts.

·18 ADS$10x's. [sec. 17. Admissions. 17. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issuo Admission defined or relevant fact, and which is made by any of the persons, and under the circumstances, bereinafter mentioned. Note 1. Adraissions need not necessarily be against the interest of the person maling them. They must only fulfil the requisites mentioned in the following sections. 3. Admissions may be in court judicial) or out of court (extra-judicial.) Adina- $ions en court cannot be contradicted during the progress of that awt by the party who made it. Extra.Judicial admissions may be contradicted unless the party is estopped; sce section 31. The admissions contemplated 10 tbo following sections are erlru. judicial admissions. 18. Statements made by a party to the proceeding, or by an agent to any such party, whom the Court Admissionby party to proceed. regards, under the circumstances of the case, ing, or bis agent; as expressly or impliedly authorized by him to bake them, are admissions. Statements made by parties to suits, suing or sned in a representative character, are not admissions, by Burtor in representative characunless they were made whilo the party making ter; them held that character. Statements made by (1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and by party interested in subject matter; who make the statement in their character of persons so interested, or (2) persons from whom the parties to the by person from thom interest deris. suit baye derived their interest in the subject. ed. matter of the sait, are admissions, if they are made during the continuance of the interest of the persons making the statements. Note. Admissions by agents, by persons holding a representativo character, per. 1- nents from whom interest is densed, and -Anceps $or 2. Admiss#0118 implted anthority to malo them The sets of third parties do not binit, ·SIC 14 ) PILETANCY OF FACTS 15 is sued by B for fraudulently representing to B that wag solvent, whereby B, bcing induced to trust C, was insolvent, suffered loss The fact that, at the time when A represented C to be solvent, O was supposed to be solvent by his nciglıbours and by persons dealing with him, is relerant, as showing that I made tho representation in good faith (g) A is saed by B for the price of work done by B, upon a loose of which is owner, by the order of C, a contractor. A's defence is that B's contract was with C. The fact that A paid for the work in question is relevant, as proving that A did, in good faith, make over to the management of the work in question, so that C was in & position to contract with B ou C's own account, and not as agent for A. (1) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropri. ated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been giren in the place where A was, is relevant, as showing that I did not in good faith believe that the real owner of the property could not be found The fact that A knew, or had reason to believe, that the notico was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A's good faith. (1) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A’s having previously shot at B may be proved. 0) A is charged with sending threatening letters to B. Threat. ening letters previously sent by A to B may be proved, as showing the intention of the letters. .(k) The question is, whether A has been guilty of cruelty towards B, his wife Expressions of their feeling towards cach other shortly before or after the alleged cruelty, are relevant facts. (1) The question is, whether A's dcath was caused by poison. Statements made by a during his illness as to his symptoms are relevant facts. (TIL) The question is, what was the state of A's bealth at the time when assuranco on his life was effected., Staternents made by A as to the state of his health at timc in question, aro relcrant facts ·TELETA CT OF FACTS. [SEC. 14. (n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. The fact that B's attention was drawn on other occasions to the defect of that particular carriage, is relevant. The fact that B was habitually negligent about the carriages which he let to lire, is irrelevant. (0) A is tried for the murder of B by intentionally shooting him dead The fact that A, on other occasions, shot at B is relevant, as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them, is relevant (v) A is tried for a crime The fact that he said something indicating an intention to commit that particular crime, is relevant. The fact that he said something indicating a general disposition to commit crimes of that class, is irrelevant. Note 1 This section is a very important ono in criminal cages. The state of mind of the prisoner at the time of the commission of the crimo is very often an essential ingredient of the crime. Anna... T'-L 3 guilty knowledge Seo noto to s 54. The erplanation to the section is very important. 15. When there is a question whether an act was accidental or intentional, the fact that such act formed part Facts bearing on of a series of similar occurrences, in cach of question whether act was accidental or 30. which the person doing the act was concerned, tentional. is relevant. Illustrations (a) A is accused of burning down liis house in order to obtain money for which it is ingored. which die in which fires Icrant, aste nt ·stc 16 ) NFLETANCY OF FACTS 17 (0) A is employed to receive money from the debtors ofB It is A's duty to make cntries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion lio recerred less than he really did rcccire The question is, whether this false entry was accidental or in... tentional The facts that other entrics mado by A in the same book are false, and that the false entry is in each case in favour of A, are rcle- Taut. (c) A is accused of fraudulently deliverios to B a counterfcit rupee The question is, whether the delivery of the rupeo was accidental. The facts that, soon before or soon after the delivery to B, A delirered counterfeit rupees to C, D and E arc relevant, as showing that the delivery to B was not accidental. Note. exp LULU UUL WUILU 19 Ilben Telesaat. 16. When thero is al question whether a particular act was done, the existence of any course of business, Existence of course of business when according to which it naturally would havo been relevant done, is a relevant fact. Illustrations. (a) The question is, whether a particular letter was despatched. The facts that it was the ordinary course of business for all lettera put in a certain place to be carried to the post, and that that particolar letter was put in that place, are relevant. (1) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was pot returned through the Dead Letter Office, aro relevant Note. The existence of an inrar alle course of Dogsiness must en proved; other 150 cviderco of the way in which sowo other transactions of the fato lind Fero dono will be n relevant.

·see section 31 18 ADMISSIONS. [sec. 17. Admissions 17. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue Admission defined. or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. Note. 1. Admissions need not necessarily be against the interest of the person making them They must only fulfil the requisites mentioned in the following sections. Admissions may bo in court (judicral) or ont of court (extrajudicial) Admissions in court cannot be contradicted during the progress of that suit by the party who made it Extra-judicial admissions may be contradicted unless tho party is estopped ; The admissions contemplated in the following sections are extrajudicial admissions 18. Statements made by a party to tho proceeding, or by an agent to any such party, whom the Court Admissionby party to proceed. regards, under the circumstances of the case, ing, or has agent; as expressly or impliedly authorized by him to mako them, are admissions. Statements made by parties to suits, suing or sued in a representative character, are not admissions, by suitor in reanless they were made while the party making presentativo characthem held that character. Statements made by- (1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and by party interested in subject matter; who make the statement in their character of persons so interested, or ly person from (2) persons from whom the parties to the whom interest derir. suit laro derived their interest in the subjectcd, matter of the suit, aro admissions, if they are made during the continnance of the interest of the persons making the statements. Note. ter; . 2. Adminon ly agent.-They will lind only if the agent had crgess or implied authority to make them • Tba aste of third partcs do act bial ·SEC. 19.) ADIISSIOXs. 19 An agent who makes an admission during the continuance of tho agency with respect to the matter of the agency and within the probable scope of his eroployment has implied authority to make them. So the servant of a livery stable.keeper while engaged in the sale of a horse belonging to his master has implied authonty to give a warranty of sogadress; but not so the servant of a private gentleman. Brady Tod, L J. (N. S.) C. P., 223. A station-master in a railway has implied Ons honden At ha lood - Laika -L-11. La-1-l-admissions anless they band to the care of the her authority. Nere It has been decided that an infant cannot be bound by his own statement; Kover Narain Rai Srinath fttter, 9 W. R., 485. Mach less can he be bound by an agent's admissions, for the infant cannot appoint agent. for anal athn and ann Bind nach at her by admissions; one of debts which would ers. Seo e 21, Indian T. 3. Persons suing or sued in a representaire character.-Instances of soch are the assignee of a bankrupt, executor or administrator, and the manager of a minor's estate holding a certificate undor Act XL of 1838 Noto that their statements must have been made while they held that reprcsentative character. 4. Admissions of a party interested in subject matter. For instance the admiosion of a beneficiary will bad the trustee. So also the admission of one partner, even after the dissolution of the partnership, concerning the transactions of the firm will bind the others, if at the time of making ench admissions he had a pecuniary interest in them It has been remarked by Mr. Taylor that the admission of a III- 5 Admissions by rersons from tchom interest is derited -The admission of an -- tas--La ---Lee.. AL.I.C.L.- -...L-------- derivo bis intereat from tho proviong otocr; buto purchaser at an erccutron sale docs. 19. Statements made by persons whose position or liability it is necessary to prove as against any party to Admissions by ner. sons whoso position the suit, arc Admissions, if such statements must bo proved at would be relcrant as against such persons in against party to suit. relation to such position or liability in a spit brought by or against them, and if they aro made whilst the person making them occupics such position or is sabject to such liability, ·20 AD113310XS. [sec. 19. Nlustration. A undertakes to collect rents for B. B Rnes A for not collecting rent due from C to B A denies that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denics that C did ove rent to B. 20. Statements made by persons to whom Admissions by per. Bons expressly referr. i party to the suit has expressly referred for ed to by raity to information in reference to a matter in dispute are admissions. buit Nlustration The question is whether a horse sold by A to B is sound A says to B-Go and ask C, C knows all about it.' C's tatcment is an admission. Note, 1. There must bo an espress reference The mcro cting as a witness is not Bufficient. 2 Mr. Taylor says on this point -" It matters not whether tho qucation referred to be one of law or of fact, whether the persons to whom reference is made, hava or bavo not any pccalar knowledge on tho subject; or whether the statements of tho rcfcroo be adduced in evidence in an action of tort or in an action of contract." 21. Admissions are relevant and may bo proved as against the person who makes them, or his representa- Tclerancy of admissions against or tive in interest; but they cannot bo prored by in behalf of persons or on behalf of the person who makes them or CONCETTICI by his representative in interest, cxcept in the following cases- (1) An admission may be proved by or on belialf of the person making it, when it is of such a natoro that, if the person making it were dcad, it would be relevantas between third persons under Section 32. (9) An admission may be proved by or on bolalf of tho person making it, when it consists of a statement of tho existenco of any stato of mind or body, relosant or in issuo, mado at or abont the timo then such state of mind or body cxisted, and is accompanied by condact rendering its falschood improbablc. (3) An admission may be proved by or on behalf of the persou making it, if it is relevant otherwise than as an admission.

·SFC 22 ) ADMISSIOys. 91 Naustrations, (a) The question betwcen A and B is, whether a certain deed is or is not forged A affirms that it is gennine, B that it is forged. A may provo a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot provc a statement by himself that the deed is genuine, nor can B prove å statement by himself that the deed is forged. (6) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under Section 32, Clause (2) (c) A is accused of a crime committed by him at Calcutta. Ho prodaces a letter written by himself and dated at Lahoro on that day, and bearing the Labore post-mark of that day, The statement in the date of the letter is admissible, because, if A. Tere dead, it would be admissible under Section 32, Claaso (2). (1) A is accused of receiving stolen goods knowing them to be stolen, He offers to prore that he refused to sell them below their valuc. A may prove these statements though they are admissions, because they are explanatory of condact influenced by facts in issue (c) A is accused of frapdulently having in his possession counterfcit coin, which he knew to be counterfeit. Ito offers to prove that he asked a skilfal person to examine tho coin, as he doubted whether it was counterfeit or pot, and that that person did examinc it and told him it was genpine. A may prove these facts for the reasons stated in the last preceding illustration, Note. 1. This section applies alıko in criminal and civil cases. 2. Ilustrations (a) and (e) are cramples of clause (3). 22. Oral admissions as to the contents of a document aro not relorant, unless and until the party proposing When oral admis. Bions as to contents to provo them shows that he is entitled to gire of documents are resecondary evidence of the contents of such docalefant went under the roles hereinafter contained, or unless the genuineness of a document produced is in question, ·00 4 ADMISSIONS [SEC 22. Note. 1. The reason for the rule in this section is that the best evidence that can be peen must be adduced, or its absence must be efficiently accounted for, before other evidence can be allowed. 2 Secondary ciidence-See 63. 3 English Lalo.-In Slatterie . Pooley, 6 B&Y, 664, Parke B. held that oral admission of the contents of a document was always admissible. The reason he ruling in Slatterte y Pooley was severely criticised by l'enefather O. Bin Lawless v. Qreale, 8 Ir. L Rep., 382, and again by the Privy Council in Sheopershad r. Juggernath, L. R., 10 I A, 79. The present scction adopts the ruling in the two latter cases. 23. In civil cases no admission is rclefant, if it is made either upon an express condition that evidence of it is Admissions in civil cases, when relevant not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given, Explanation. Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence ander Section 126. Note. The reason for tho rulo in this section is tho well known maxim "intercal rei. publicc ut eit fine litrum " Therefore parties must be allowed to compromiro a mut without fear of their statements being produced against themselves. It is therefore ngual to add the phraso," without prejudice," in all communications for compromiso between the partics or their agenta ; and even when theso words are not introduced the court will presume under the circumstances that there communications were without prejadice.' The admissions made before arbitrators are not however protected 24. A confession modo by an accused person is irrelevant in Confession cautru a criminal proceeding, if tho making of tho conby indocement, fession appears to the Court to havo been causcd threat or promise is irrolerant. by any indacement, threat or promiso, having reference to the chargo against tho accused person, proceeding from a person in authority and sufficient, in the opinion of tho Court, to give tho accused person grounds, which would appear to him reasonable, for supposing that by making it lie would gain any • It is for the losest et the State sha! there should by a limit to bulgulars ·SEC 25 ] ADYISSIONS 23 advantage or avoid any oyil of a temporal nature in reference to the proceedings against him. Note 1. Confession and Admission.-In English law confession was the term used with reference to criminal cases, and admission with reference to civil cascs. That distwction is not proserved in this Act. The only distioction in the Act appears to be that an admission may be favourable or unfavourable to the party making it, while a confession is always unfavourable to the party making it 2 The analysis of the section.-(1) This section applies to criminal proceedings (2) The confession must appear to the Court to have been caused by some induce. ment, threat or promise. (3) The iodacement, threat or promise mast have reference .. rin T. Then the confession cannot be proved. 3. A person in aut -An person who is entitled to interfere in tho matter is a person in anthority. The prosecutor, the master or mistress of the accused (only when the offence concerns sach master or mistress) the constable or other officer in charge of the accused, and a Magistrate are persons in authonity. TA' --wit-it. exclusion 1 held out authority should be 6 Sufficient in the opinion of the Court to give the accused person grounds, fe- It is not necessary that the inducement, threat or promise should be sufficient for . ----' Awan nu tad- TA -haaaut not the Jary. 6. The admissibility of a confession will not be affected by the fact of its having been retracted before the final trial. 7. One important exception to the inadmissibility of a confession mode under indacement is that mentioned in Cr. Pr. O. of 1882, section 339; 16, the confession of an approver. 8. See Cr. Pr. Code of 1892, acctions 163, 161, 36-4, 533. 3. The burden of proof.-The prosecution is not botad to prove absence of inducement, threat or promise for proping a confession, unless the circumstances of the case raise a presumption of inducement, threat or promise. 10 A confession may be worthless owing to its being meagre, misinterpreted or mendacious. To guard against these dangers the confession must be made as particular and minute as it can be made by questions, Confession mado to 25. No confession made to a Police officer, Police officer not shall be proved as against a person accused of to be used as eri. dence. Note. 1. Polica o nicer must be beld to include those officers #bo combine the offices of a Magistrato and a Police officer in the same person, A. Harticole Chander Ghose, I. L. R. 1 Cal, 207. any offence.

·2+ ADISSIONS. [SEC. 23. 2. A prisoner may prove in his own favour admissions made by himself toforo a Police officers they being not considered confessions P. v. Macdonald, 10 L.L.R. App 2. A prisoner may also prove the contession of a co-accused to s Polico officer which tends to exculpato the former; but owing to this section it cannot be used against the latter. Empress y. Pitamber Jira, 1. L R 2 Bom , 61. 26. No confession made by any person whilst he is in the Confession nacie custody of a Police officer, unless it be made in liy nccused whilo in custody of Police not the immediate presence of a Magistrate, shall bo to be used as cp1. dence, proved as against such person. 27. Provided that, when any fact is deposed to as dis- So much of Statecovered in consequence of information received ment or confension from a person accuscil of any offenco, in the made by accused as relates to fact there. custody of a Police officer, so much of such inluy discovered may bo prureu. formation, vhcther it amounts to a confession or not, its relates distinctly to the fact thereby discovered, may be proved. Note. So much of the confension as relates distinctly to the fact thereby 18 cotorol. This innat Le construod very strictly and must be taken to mean only thoro worils which inmediately led to tho discovery and not also other grarts of tho confension whiclı tend to explain those words. 2. It hins boen n qacation whother the proviso in this section applica to section 3 nro Tho wording in the custody of a Police officer contemplatou only its applica. bility to section 26 llut it has Loon decided that it does. 3 Tould the principle of this sethion apply to section 21? The question Jing not bron nctually raised in any caro. There is no authonty in the Act to apply tho principle of this section to scctlon 25. Dat common senso requires that it should arris to scctlon 21. 28. If such a confession as is referred to in Conforalon modo Attre removal of im. Section 2t is matio aftor tho improssion caused Inducement, threat by any such iaducement, threat or promiso has, or promise, relevant. in the opinion of tlio Court, been fully removed, it is relevant. Contention other Bruno Irrelorant 29. If such a confession is otherriss relevant, it does not liecome irrelevant increly because it was mado wien lesane nieve so under a promiso of secrecy, or in consequence of 1 of juromiso a deception pmctised on the accused person for ney, de the purpose of obtaining it, or when he was drunk, or liccnuo it was inado in answer to questions which he uced noi linveronuerce, wbatcrcr way bare becu the forin of thoso questions, ·I *FC 303 ADVERSU 23 or because lie was not warned that he was not bound to make such confession, and that evidence of it miglit be giren aganst him Note This section which provides for confessions in criminal cages is different in its tenor from section 23 bih prorides for admissions in civil cascs; the reason being that extending the protective to criminal cases would prejudice the interests of the public ? Not only are confession made on indacement, threat or promise (section 21) and confessions made to a l'olice oficer or while in the custody of a Police officer (sections 25 and 26) are protected, but also confessions made by a witness while in the witness box cannot be used against him in criminal proceedings except in a prosecution for giring false evidence (section 139 ) Therefore this section must bo taken &nbject to section 132 Whare-a-nyian 3 WI 4 In arriving at a conclasion regarding the truth of the confession, the wholo confession must be taken into consideration and not merely that part which is against the prisoner 5 A confession when proved may by itself be sufficient crudenco for a consic. tion Corroboration is not absolutely necessary 30 When more persons than one nre being tricd jointly for the same offence, and a confession made by ono Consideration of of such persons affecting himself and some other proved confession af. tecting person mak of such persons is proved, the Court may tako in it and others jointly under tral into consideration such confession as against such for Bane offence other person as well as against tho person who makes such confession. Illustrations (a) A and B are jointly tried for the murder of C It is prored that A mad,—"B and I murdered C" The Court may consider the effect of this confession as against B () As on lus trial for the murder of C There is cridence to show that C was murdered by A and B, and that B said, --"A and I murdered " This statement may not be taken into consideration by the Conrt Against A, as B is not being jointly tried Note. The general rule 19 that an accomplice's confession is toworths of credit, for It is not given under oath, and there is a distinct motire to throw the Llame on the co-accused This section introduces an exception to that role, and must be rers etrict. ly construed 2. The Court may take into consideration -To mark the small degree of credit that should be attached to such confession, the words 'may take unto consideration hare been prej, 4 1 ·20 STATEMENTS B1 PERSOX WIO CANNOT BE PRODCcEn. (sec 30. The Court in this section includes the Jury as well as the Judgc. 3. Dlay take into consideration such confession as against such other persons as well as against the person who makes such confession - These words have been tabeu to imply that tho confession must implicate the person confessing as much as the person against a hom it is sought to be used Eldo it is inadmissible, for in that casa there is no guarantce to its truth. R Amrita Govinda, 10 Bom 11.R , 497, and Queen v. Belal Ah and others, 10 B LR, 458. + The two persons must be tred jointly. When one of scveral persons com. mitted for the stue offenco pleads guilty and is convicted, ho cannot be said to be tned jointly with others who plead not guilty. R. v. Kalu Patil, 11 Bom II. C Rep, 146. This section would not allow the confessions of a respondent or co-respondent in a divorco suit to be used agalast the other, as they are not pointly tried for the same offence,' but such coalessions will be relefant under section 10 5 They must be tried for the same offence; so that when two persons were Jointly tried for murder and one confessed to having abetted the murder and tho Charge against hin was thereupon changed to abetment of murder, this section "18 held not to apply R Gorrad Babhi Raul, 11 Bom II C. Rep, 278. 6. As to the weight of such confessions aes Bection 133 and notes thercon 31 Admissions are not conclusive proof of tho matters Admissions pot con- admitted, but they may operate as estoppels lustro proof, but under the provisions hereinafter contained. may estop. Note As to estoppels sce section 115 and notes thercon 2 An admission contained in a larger statement must be taken with tho whole statement of qualified by the other parts of it. 1 Slalements by persons who cannot be called as Witnesses. 32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot bo found, Cases in which or who has becomo incapablo of giving ovidence, alaternent of rele. vant fact by person or whose attendanco cannot be procured without who is dead or can. not Lo found, Itc, is an amount of delay or cxpenso which, under to Teleraut, circumstances of the case, appears to tho Court unreasonalle, are themselves relevant facts in tho following CASCS : (1) When the stateinent is made by a person as to the Call of his death, or as to any of the circainmenit runtuota stances of the transaction which resulted in his Cqusu ut Heatli death, in cascs in which the cause of that person's death comes into question. Sach statements are relevant whether the person who mado thom nas or was not, at the time when they were made, under ·of business, any SEC 32 ] STATEBCNTS BI PERSONS 0 CANNOT BE PRODUCED. 27 expectation of death, and whatever may be the nature of the proceeding in which the causo of his death comes into question. (2) When the statement was mado by such person in the ordinary course of business, and in particular or is made in course when it consists of any entry or memorandum mado by him in books kept in tho ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securitics or property of kind; or of a document used in commerce written or signed by him, or of the date of a letter or otier document usually dated, written or signed by him. (3) When the statement is against the pecuniary or proprietary interest of the person making it, or or aguinst interest of maker; when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) When the statement gives the opinion of any such person, as to the existence of any public right or or gives opinion as to public right or custom or matter of public or general interest, of tho existence of which, if it existed, he would of general interest, have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) When the statement relates to the existence of any relationship (by blood, marriage or adoption,)* or relates to existence of relationship; between persons as to whose relationship thio person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) When the statement relates to tho existence of any relationship (by blood, marriage or adoption)* or deed of deceased between persons deceased, and is made in any person; will or deed relating to the affairs of the family custom, or matters or is mude in will Added by \ct XVIII of 1872, Section 2.

·28 STATENENTS ET PERSONS WHO CAXAOT BE TRODOCED. (SŁC 32. to wluch any such deceased person belonged, or in any family pedigrec, or upon any tombstonc, famıly portrait or other thing on which such statements are usually made, and when such state- 'ment was made before the question in dispute was raised. (7) When the statement 18 contained in or relates to inns action nicntioncit in any deed, will or other document which rclates Section 13, clauso (a), to any such transaction as is mentioned in Section 13, clause (a). (8) When the statement was made by a 19 made by feveral persons, and number of persons, and expressed feelings or expresses feelings relevant to trattorin impressions on their part relevant to tho matter qucation in question. Illustrations. (a) The question is, whether I was mnrlered by B; or A dics of injuries received in a transaction in the course of which she was rarished. The question is, whether plac was ravished by B; Or or The question is, whether A mas killed by B under such circumstances that a suit would lie against B by A's "widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts (b) The question is as to the date of A's birth An entry in the diary of a deceased surgeon, regularly kept in tho course of business, stating that, on a giren das, le attended A's mother and delivered her of a son, is a relevant fact. (c) The qacstion is, whether A mas in Calcutta on a giren dar. A statement in the diary of a deceased solicitor, regnlarly kept in the course of business, that, on a given day, the solicitor attended A at * place mentioned in Calcutta, for the parpose of conferring with him upon specificd business, is a relcrant fact. (!!) The question is, diether a ship sailed from Bombay harbour on a given day: A letter written by a deceased member of 3 merchant's firm by which she was charterel, to their correspondents in London to whom the car Fas consignedl, stating that the ship sailed on a given day from Homhas harbour, is a relerant fact. ) The question is, whether rent was paid to A for ccrtain ladil. A letter from al's decmased agent to .1, saying that he had receivel the rent one's account anı hekil ic at I's orders, 15 a relcrant fact.

·SEC 32] STATEMENTS BY PERSONS WHO CANNOT BE PRODTCED. 29 0) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. (9) The question is, whether A, a person who cannot be found, wrote a letter on a certain day The fact that a letter written by him is dated on that day, is relevant. (A) The question is, what was the cause of the wreck of a ship A protest made by the captain, whose attendance cannot bo procured, is a relevant fact. (1) The question is, whether a given road is a public way. A statement by A, a deceased headman of the Village, that the road was public, is a relevant fact ) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business, is a relevant fact (k) The question is, whether A, who is dead, was the father of B. A statement by A that B as liis son, is a relevant fact. (1) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact (nu) The question 19, whetlier, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact. (*) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its labollous character. The remarks of a crowd of spectators on these points may be proved. Note. I Statements persons who cannot be produced. 1 This and the following section are important exceptions to the rule that cvidence must in all cases be direct The exceptional circamstances which make the statements in these sections admissible afford some guarantee to their truth. 2. The statemente mectioned in these sections can be prored only at the pro- II. Clause 1.-Dying declarations. 1. This is an extension of the English Rule. The English Law requires for the admissibility of dyio, declarations the following conditions (1) The person shoulit hale been actually tr danger of death and died.

·to any 28 STATEMENTS DE PERSOXS » HO CAXIOT BE PRODCED. (sec. 32. to wluch any such deceascıl person belonged, or in any family pedigrec, or upon any tombstonc, family portrait or other thing on which such statements are usually made, and when such statcment was made before the question in dispute was raised. (7) When the statement is contained in or relates to trans- Action mentioned in any deed, will or other document wuch relates Section 13, clausc such transaction as is mentioned in Section 13, clause () (8) When the statement was made by 18 rado by Reveral persona, and number of persons, and expressed feelings or expresses feelings impressions on their part relevant to the matter question in question Ilustrations (a) The question is, whether A mas murdered by B; or A dics of injuries received in a transaction in the course of which she was a rished The question is, wbietber she was ravished by B; a or relevant to matter in or The question 1, whether A was killed by It under such circuntstances that a sut would lie against B by A's widow Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts. (6) The question is as to the date of A's birth An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day, boattended A's mother' and dclirered her of a sun, is a relevant fact. (c) The question is, whether A as in Calcutta on a giren day A staternent in the diary of a deceaseil solicitor, regularly kept in the course of husiness, titat, on a given day, the solicitor attended A at A place mentioned in Culentta, for the purpose of conferring with him npon specificd business, is a rclerant fact. (d) The question is, whether a ship sailed from Borobay harbour on a given day. letter written by a deceased member of a merclient's firm by which she was charterul, to their correspondents in London to whom the curgo mas consigned, stating that the slup sailed on a giren duy from Bombay harbonr, is a relcrant fact. (e) Thic question is, whether rent wae paid to 1 for certain land. A letter from la deceaeil agent to al, saying that he hail recha the rent on l's account and hciel it at al's orders, 15 å relerant fact

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·30 STATEMENTS DE PERSONS WIO CANNOT BE PRODUCED. [sec. 32. (2) He should have been ardate of the fact that he was about to die, although he need not have expressed it in tcords. (This restriction is introduced, as it is presumed that there would be a garantee to the truth of the statement if he was aware that he was soon to appear before Gol. On this ground the dying declaration of a child so young that it could hayo po idea of - fatore world was rejected. R. v. Pyke, 3 Cand P., 699 ) (3) The inquiry must not be of a civil nature; and the subject of the charge should be the death of the deceused; re, the case must be one of homicide. (4) The subject of the dying declaration must be circumstances of the death The requirements of this Act arc. (1) The person must have dier (2) It 18 not necessary that he shouli hate been conscious of approaching death. (3) The proceeding need not necessarily be criminal, at must be one in tchuck the cause of that person's death comes into question. [See Illastration () 2nd part ) (4) The subject of the dying declaration must be the cause of that person's death or any of the circumstances of the transaction that tesulted in his death revenge. III. Clause 2.- Entries in books of account. The reasons for admitting them — There is a presumption in favour of their proving them. 2. The English Low requires thrco conditions to bo fulfilled before such an evidence can be admitted. (1) The person echo made the entry musl hare had a personal Inorrledge of the fuct recorded. (2) The entry must hare been made contemporaneously rith the fact () The fuet entered must not be one thich it was not the strict duty of the person to recorit. Thero reatictions are not retaind in the Act. These facts may however stret the wought to be given to the evidence. 3. Tho entry must be prove to be in tho writing of the person who is alleged to baro made the entry by profacing a sitnesa who has boca bim writo it or who is acquainted with his band writing. IV. Clausc 3.-Statements against interest. 1. Their Are mulo mimissible, because it is presund that no man mit mako A statement detrimentat to him rell unters it is true. 2. Even in Faglish Law in the cas of statements painst interest it is not neces. my is the care of entring in books of arconnt that the person who made thr entry must havo had a personal knoclego of the fact recorded and that the entry boall have been madin contemporaneously with the erent. Int only muy thn statemente against intrmat bo protrl but sim collatem facts recordel aln with ruch atateacata in explanation of them mar le frotei!

·3 SEC 32 ] STATEMENTS BY PERSONS WIO caxxOT BE PRODUCED 31 It must be noted that statements against the interest of the person making them regardivg relevant facts are admissions and can be proved agaiost the person making them even while he 19 alive. But if he is dead or cannot be produced as witness for any other cause they can be proved against any one. ----------- wenn whinnie tha nolarinencs of the * L.) recover a large amount of money. 6 The interest mentioned in this clause is of four kinds :- (1) Pecuniary Interest, (2) Proprietary Interest, . e, interest in lands, &c (3) Interest in escaping a criminal prosecutwn, () Interest in escaping a suit for damages In English Law statements against the last two kinds of interest aro inadmissible against third partics. Busser Peerage Case 7. Against the party making it-lere "male" does not necessanly mean A kimondhanta given in order that it may be taken as the person's statement. 8 TVould have exposed him This means that at the time the person made those statements there must have been the danger of being liable to be exposed to a criminal prosecution or to a suit for damages V. Clause 4.--Opinions as to public right or custon, de. 1. The reasons for the admission of such are : (1) The rights being of ancient and obscure origin and being acted upon only at distant intervals of time, direct proof of their existence ought not to be required (2). Being matters in which all persons in the neighbourhood are interested all are likely to be conversant; therefore what each drops in conversation regarding it is likely to be true, otherwise it will be then and there contradicted. Thus a trust. worthy reputation regarding them is I kely to arise This endence cannot be admitted in the cage of private nights and interesa : for respecting these, no trustworthy reputation is lkely to arise, and it is possible to gre direct evidence regarding them. 3 As safeguards for the truth of the declarations, the Act provides that they must be the declarations of persona bkely to have competent knowledge, and that they must have been made before any controversy regarding the matter had risen. 11'.-.-- T- 1 1 in tho Act, and it requires in all cases sorge evidence that the declarant is likely to have had knowledgo on the subject 5 Interest hero means that which affects a person's legal rights or liabilities The statement must haro been made before any controversy arose on the subject. Tho statements will be inadmissible if they were made after a COD troversy on tho 10 ·STATEMFYTS JADE L'DER SPECIÁL CIRCONSTANCES [sec. 33. 5 Saue parties or their reprerextalues sa interest — It must be shown that the ---- bentative in interest of a second adopted son whose adoption took place after the death of the first It 13 not necessary that the parties in the two proceedings muet have occupied the same situation It 19 sufiurut that every party in the second was represented in the first, and all those n ho aro opposed to each other in the present sunt wcro orpos. ed to each other in the previous suit 6 The udrerse party must have had the right and opportunity to crossetamine - It mnet be shown that he had both the nght and the opportunity to crossexamine If the adverse party had been allowed to Cluss-examino although he had not tho right, it is questionablo if the evidence would be admissible. There are a few exceptional instances in Indian Law in which such evidence is admitted, even though the adverse party had not the right or wpportunity to crossexamine Sce sections 510 and 513 of the Crim Pro Code of 1852 These escep tions are founded on nrcessity The questions in issue must be substant.ally the same. It is not necessary 7 Jy more 1. 1 Statements made under speial circumstances. 34 Entries in books of account, regularly kept in course of business, are relevant whenerer they refer to Entries in books of account when rele. a matter into which the Court has to enquire, vant but such statements shall not alone be sufficient evidence to charge any person with liability. Illustration, A sues B for Rs 1,000 and shows entries in his account books showing 1 to be indebted to him to this amount. The entries are relevant, but are not suficient, without other evidence, to prove the debt Note. 1.-281 lie C LS od books. 2 regularly kept in the contre of busines—The book must not have been prepared for tbe parpose of the eut or Lept at uregular interfuls. 3 15 Tether the entrazt should have been contemporaneous toth the transaction is a question which affects only the weight to be attached to the cyıdeuce.

·SEC 36 ) STATEMESTS MADE TYDER SFECLİL CIECHISTA YCFS. 4 In the case of the books of acconnt of a company, tłe entries are suficient cridence as between the shareholders (Act VI of 1882, $ 198 ) 5 These entries are insuficient to charge any person, with liability anless corroborated by other endence Bode of prodncing the entry in pron --See sections 62, 111, 391 and 395 of Cis Pro Code of 1882, and a 63 clause (9) of this Act 35 An entry in any pnblic or other official book, register or record, stating a fact in issue or relevant fact and Entry in public recurd, nuade in perfor: made by a public servant in the dischargo of his mance of duty en official duty, or by any other person in perforjoined by law, wlien relevant mance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. Note an which it 19 kept 3 The term public of official book is not defined in the Act, but it must bo cxplained with reference to s 74 on public documents Tho term public seriant is perliaps to be understood in the senso attached to it in the Indian Penal Code, s 21, + Sach entries will be producible in cridensc, although the person who made the entry is alive and producible 5 The reight to be given to such entrice –Very often they are conclusive ors. dence of the facts stated therein; 69, a certificate of marriage granted under l'art VI of the Indian Christian Marnage Act of 1872 Oficul reports expressing opinions on private rights are not to be regarded as Hnring judicial authority or force But as reports of public oflicers mado in cho couren of duts and under statutable authority they are entitled to cat consideration Puja duthu Ramalinga Setupati, Periyonayagam Pillai, L RILA,209, 219 G Mode of proof -As to the made of prosing these entries 8c0 sections 76-78 of this Act. 36 Statements of facts in issuo or relevant facts, made in published maps or charts generalls offered for Maps and plans public sale, or in maps or plans made under the when relevant. authority of Government, as to matters usually represented or stated in such maps, cliarts or plans, are themselves relevant facts Note 1. Nape or plans made by Goserument for private purposes and not admisalle uuder this scttion ·36 110v UCU OP & STATESEXT TS TO BE 'HOVED. (sec. 36. Suricy Dlars are not evidence of title but they are esidence of possession. The Collector of Rajshahe Durga Sundari Debra, 2 I R Cıy Rul, 210 3 As to the effect of endence of Slaps see 89 83 and 87 37 When the Court has to form an opinion as to the existcnce of any fact of a public nature, any state- Statement as to fact of public nature ment of it, made in a recital contained in any coutained in any Act Act of Parliament, or in any Act of the Governoror Notification of Goverbnient, when Gencral of India in Council, or of the Governors relevant in Council of Madras or Bombay, or of the Lieutenant-Governor in Council of Bengal, or 1 a Notification of the Government appearing in the Gazette of India, or in tho Gazette of any Local Government, or in any printed paper purportug to be the London Gazette or the Government Gazette of any colony or possession of the Queen, is a relevant fact Note Bec scetion 78 as to the mode of proof, and scction $7 as to the effect. See section 113 as to the effect of a notification of a cession of territory. 38 When the Court has to form an opinion as to a law of Statements in lav any country, any statement of such law containbooks ed in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of thic Courts of such country contained in a book purporting to be a report of such rulings, is relevant. Note As to the other modes of proving the law of a foreign country, eco rection 43 and section 79 clauso 4 of thug Act and 22 & 23 Yic cap. 63 and 31 Vic cap 11 rcferred to in the notes to 8 43, and us to presumption in such cases sce ecction 8+ 1 How much of a statement is to be provod. 39 When any statement of wluch evidence is given forns part of a longer statement, or of a conversation What cyklence to be given when state or part of an isolated document, or is contained Inent forms part of a in a document which forms part of a book, or conversation, docu. ment, book or series of a connected series of letters or papers, et. of letters or papers dence shall be giren of so much and no more of tho statement, conversation, document, book or series of letters or prapers as the Court considera necessary in that particular casc to ·SIC 10] JUDGMENTS OF COCETS OF JESTICE WHEN RELEVANT. 37 the full understanding of the nature and effect of the statement, und of the circumstances under which it was made. Note The old rule of English Common Law was that, when one party had put in anot. Iract from a document, the other party could put in the whole But afterwards the rule of Cotton Lart was made the same as in thu19 section, only those parts which splained or modified in any way the effect of the part already put in being now producibic Judgments of Courts of Justice when relevant. 40 The existence of any judgment, order or decree which by law prevents any Court from taking cog- Previous judgments nizance of a suit or holding a trial, is a relevant relevant to second suit or trial fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial. Note. In connection with this section, the following sections of the Civil and Criminal Procedure Codes of 1892 inust be read -- 1. Section 12 of the Civil Procedure Code :- ---L ----...! Esplanation - The pendency of stuit in a foreign Court does not preclude the Courts in British India (romt trying a stat founded on the sume cause of action. Therefore an order admitting a plaint would be a bar to the admission of thio same plaint in another Court. 2. Sections 13 and 14 of the Civil I'rocedure Code - duL SULBUL. TH...-TIT IL Nofortiga judetent shan operate as bar to satin Brot <h India- {41 l It has not bech Yen on the merits of the 424 (5) if it appears on the face of the rmceeding to be found on ab incorrect Tact cl uter. katona! 24w or of xay luwih fonc in Bntish India ?

·38 JUDGMENTS OF COURTS OF JUSTICE WHEN CELEVANT [spc. 40. (c) if it is in the opinion of the Court before which it is produced contrary to natural justice (d) if it has been obtained by trand (e) if it sustains a claim founded on a breach of any law in force in British India. These sections relate to the subject of tes judicata, e, the exclusion of the trial of a sait or 1380e on the ground that it has been already heard and decided by a competent Court The reasons for precluding the parties from re-opening a ques. tion which has already been heard and decided by a competent Coort are the maxims-nemo debet breterar, a constat cutie quod sit pro terá eidem causd--and interest reipublic ut at finis litrum + In order that a former jadgment may have the effect of res judicata, the following requisites must be fulfilled I The matter directly and substantially in issue in the second guit or 19gue, must be the same matter which was directly and substantrally tr 18ste in the former But II. Such matter must have been heard and finally decided by the Court in the formor suit III The Court which decided such former suit must have been a Court of qurisdiction competent to try such subsequent suit in which such issue 19 subsc. quently raised IV The former suit must have been a sut bets een the same parties or between parties under whom they or any of then claim, litigating under the same title TEQUISITE I In connection with this subject, Esplanations I and II to section 13 must be read 11 . vv... c. c... L.-.-.- 4:......…..…..... ..... .…... 4- +. Tex judicata in a subsequent suit. The only meaning that can be attached to the en parte decreo 18 that the party who made default has admitted the justico of tho claim and not necessarily of the exact grounds upon which to claim is based (9) In connection with Explanation II referred to, the following section of the same Code must be read 42 Every suit shall, as far as practicable, ba co framed as to ntford ground for a final deci. 8100 upon the subjects in dispute, and so to prevent further litigation concerning therri. Therefore if the plaintif could claim the relief sopght on either of two grounds he must allege both the grounds in the plaint, if he elected to sue only on ono and he failed, he would not be allowed to be again regarding the same subject 1 -41 41 • Soone arht to be twice barasset, if it is clear to the Court that it is for one and the famo Cusc, +18 is for the benefit of the Etalo ih u there should be a limit to litigation ·SEC 401 JUDGJIFITS OF COCRTS OF JUSTICE EFX RFLETANT 39 11 cata The game will probably be the case in India In the American cnse of Cromicell 7. County of Sac Feild, J., observed :- Alpi har no manat In the case of Houlett v Tarte, 10 C B N S., 813, Willes, J, said "It is qute nght that a defendant should be estopped from setting up in the same action defence which he might have pleaded, but has chosen to let the proper time go by But nobody ever heard of a defendant being precluded from setting np a defence in a second action because be did not avail himself of the opportunity of setting it up in the first action." (+) The matter must have been directly and substantially in issue in the previous but llamart Tin Thai -L---L---1- FEQUISITE II. Such suit must hare been heard and finally decided.--With refer ence to this subject, read Explanations III and IV. (1) fresh suit produced ! 3. ficeli su puntix withdraws from the suit without the permission of the Court, ho caunot again bring the suit (Civ. Pro Code, s 373) (2) If the matter is decided in the lower court but left undecided on appeal, the matter must be considered as baying been left undecided Chandra Kumar Matter Sub Sundar Dast I. L R 8 Cal, 631. (3) An er parte decision is not final bg long as it is open to the parties to reopen it on application to the Court REQUISITE III. The Court which decided the previous sut must have been competent to decide the latter. (1) A Magistrate, acting under Chapter XII of the Code of Criminal Procedure, is competent to decide only the fact of possession and not of title or ownerslup (2) Judgment of Foreign Courts.- Foreign Courts will have jurisdiction, if (c) the subject matter was so situate as to be witbin the lawful control of the State under the authority of which tho Court sits, and (d) the Court is authorized by the Sovereign of that Stato to decide disputes in connection with it Castrique v imrey, L. R 4 &IA, 427. As to the various says in which a foreign judgment may Lo set aside see e 14 of the Cir, Pro. Cole, quoted above. REQUISITE IV. Tho partica must be the same as those in the precious sunt or the prities of those in tho previous suit. In connection with this read Explanation Y. Allinda widow fully represents the estate ; and the reversionary heirs are bound by a judgment recovered against lier if there Le no fraul or collusion The Shu aganja Case, O MIA, 539 3 Section 43 of the Ciel Procedure Code - Frert 1918 sill incluie the whole of the claim which to plavati is entitlel to take in te part of the cause of action; but o plaput my relasquish any portion of La Clum in order to bring the 11t mithin the orimliction of any Court. Ila plantit out to be in respect of, or intentionally re'in Tanh, an port on of Lucia behall not aftermarlo sue in respect of the Nr out or resaquabet ·10 JCDG 31ENTS or corers OP JESTICE FEEX RELEFANT. (-rc 10. A person entitled to more than one remedy of respect of the same cate of ac 100 Day be for all or any of his remedies, das if le omits (except with tho letre of the Lourt ohtained before the hearing to sue for any of such remedies, he shall not afternards sue for the remedy so Olaitted. For the purpose of thus section, in obligation and a collateral security for its performance shall be deemed to constitute but one cause of action An order admitting a plaint, in which the whole claim lias not been made or all the remedies have not been asked for, will under this section prevent the institution of a fresh sait for the part omitted in the previous suit. 4. Section 403 of the Criminal Procedure Code. 16 &c, A person acquitted or convicted of any offence may be afterwards thed for any distinct affence for which a separate charge might tuve been made #mainst him on the former trial tinder section 233, paragraph 1. A person convicted of any offence constanted by any act canging consequences which, together with such act, constitutet & different offence from that of which he was convicted, may be afterwards tred for such last-mentioned offence, if the conseqnences had not happenit, at the time when he was convictecl. A person acquitter or convictet of any offence constitnted hy any act may, notwithstanding Anch acqnittal or conviction, be sabsequently charged with, and tried for, any other offenes constitut by the same acts which he way bure committed, at the Conrt Thich he ras Erst trzed was not competent to try the offence with which he 18 Buhsequently charged Explanation --The divuissal of a complaint, the stopping of proceedings under section 24% the discharge of the accuscel, or entry marle upon A charge under section 273, not an acquittal for the purposes of this section Accordingly a plea of autrefois convict, or autrefois acquut* bars a second trial The principle of this section is expressed by the maxin, nemo dcbct bis puniri pro tino delicto " + B. As to the mode of proring prerions judgments sco sections 76 and 77 of this Act and s 511 of the Cr Pro Code. 41. A final judgment, order or decree of a competent. Court, in the exercise of probate, matrimonial, admi- Judgments in probate, juz28. ralty or insolvency jurisdiction, which confers diction upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specificd person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclasive proof that any legal character which it confers accrued at the time when such judgment, order or decrec came into operation; that any legal character, to which it declares any such person to bo entitled, accrued to that person at the time when such judgment, (order or decree 1) declares it to have accrued to that person; A previon lawtal conviction or lawful acquittal. So man shall be ponubed twice for the sara: offence. • Added by Act ITIII of 15 %, Section ·SEC 42] CDG)EXTS OF COCRTS OF JUSTICE WIEN RELLIANT 41 that any legal character which it takes away from any such person ceased at tho time from which suelt judgment (order or decree *) declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment (order or decree *) declares that it liad been or should be his property. Note This section is founded upon the elahorato judgment of Sir Barncg Percock, CJ in Kanhya Lals Ladacharan, 7 W P. Cor Rui, 333 (Sce Select Committeo's Report ) The judgments mestioned in this section are called gndzments in rem Another similar phrase 19 Tights 17 rem In tem means prevailing against all people. 1 2 -----L.-LT judgment which is conclusive against all persons, the effect of which cannot therefore be disputed even by those who were not parties to the suit in which such judgment was given. fact that persons who had no interest in the sot, although they had notice of the suit, could not have intervence in the suit which resulted in a judgment in rem. Jadgements that a property 13 joint-family property and that an adoption is valid are not judgments in rem 4 The judgment alone conclusile -It must be remembered that in the case of L. Lt. between third parties 5 Another class of orders which are conclusie.-Orders passed under CCtron 153 of the Indian Companies Act, 1882 42. Judgments, orders or decrecs other than thoso mentioned in section 41, are relevant if they relate Jadgment, order or decree between third to inatters of a public nature relevant to the parties when imelo enquiry; but such judgments, orders or decrecs are not conclusive proof of that which they state, Nlustration. sucs B for trespass on his land. B alleges the cristence of a public right of way orer the land, which A depies Adlety VIII c 19, Sestra 3, 6 ·JCDGMENTS OF COURTS OF JUSTICC WUCY FFLEFANT. [sec, 42. The existence of a decree in favor of tlic defendant, in a suit by A against C for a trespass on the same land, in which C alleged the eristence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists Note The nature of a class of tenares called 'Ghatwalt tenures' in Bengal and the clect of the permanent settlement upon it was held to be a public matter and a previoas judgment regarding it was admitted Pinza Malmond Sing F Dakranath Siny and the Secretary of State for India, PC, 10th March 1882. 43 Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, What zuilgments, unless the existenco of such judgment, order 40, are not relevant or decrec, 18 a fact in issue, or is relevant under some other provisiou of this Act Illustrations. (a). A and B separately sue.C for a libel which reflects upon each of them C in each case says, that the matter alleged to be habellous is true, and the circumstances are such that it is probably truc in each case, or in neither A obtains a decree against C for damages on tho ground that C fuled to make out lue justification The fact is irrelevant as between B and C (1) A prosccutes B for adultery with C, A's wife B denies that C is A's wife, but the Court convicts B of adaltory. Afterwards, C 15 prosecuted for bigamy in marrying B during A's lifetime, C says that she neper was A's wife The judgment against B is irrelevant as against C. (c) A prosecutes B for stealing a cow from him. B is convicted. A, afterwards, sues C for the cow, which B had sold to him before bis conviction As between A and C, the judgment against B is irrelevant. («) A las obtained a decreo for the possession of land against B. C, B's son, murders A in consequence The existence of the judgment is relevant, as showing motive for 2 crime 1 Note. 1 :: 2. Instances in rhich a previous judgment 13 othericire relcrant-Previous judgments may be relevant to show the notire of the parties, or as Admissions, &c ·3 + SCC 11 ] JCDGYCSTS OF COURT OF JO TICF NIET ACUTTAY When a previons judgment 13 in 13910 or 13 otherwise relerunt, proof of it is conclusire as to the existence of the judgment and not as to tlo grounds of such jodgment With reference to this section read section 137 of the Caril l'rocedure Code of 1892 44 Ang party to a snit or other proceeding Day show that any judgment, order or decreo which is Fraad, collusion and incompetency of relerant under section 40, 41 or 42, and which Court may le proved has been proved by tho adverso party, was delivered by a Court not competent to deliver at, or was obtained by fraud or collusion Note Fraud -The term 'franul 18 divided by writers on Cquity into two kinds, 11., actual and constructie Actual fraud is applied to those cases in which there is an intention to comniit a cheat or deceit upon another person to bus injury By constructue saud are meant "such acts or contracts as although not originating in any actual eval design or contrivance to perpetrate a positiro fraud or injury upon other persons, are yet 1 The Indian contract Act, section 17, defines fraud as follows.- Fraud many and includes any of the following act, coumitted by a party to a contrart, or with his connivanre, or buy his agent, with intent to deceive another party thereto or 118 agent, or to induce him to enter into the contract - (1) The suggestion, as a fact, of that which is not true, by one who does not believe at to bo true. (2) The active concealment of a fact by one having knowlotge or belief of the fact, (1) A promise made without any intention of performing it, (1) Any other act fitted to deceive, (-) Any such act or omission 69 the law specialis declares to be fraudulent Erplanation --Mere silence na to facts, likely to strect the willingness of person to enter into a contract is not fraud, unless the circunstince of the case are such that, rezuru being huul to tbew, it is the daty of the person Leeping silence to speak, or unless lua silence 19 171 itselt equivalent to speech A.1. A... 7.a. a subsequent suit, without hasing tbe prerivas judyment set asido ty thil Court which passed it As to guilty juarties the case 19 doubtful; most probably they will fall under the geneial rule, that a person will not be allowed to set up Luis OWTI fraud. • Erit Intention TA person alleging his own intimy is Dot to be leant. XORC Carl be religred or 11. an santago fryzura dcccata ·+ OPINIONS OF TEED PERSONS WHEN RELEVANT (SEC 4.1. Opinions of third persons, when relevant 45 When the Court las to form an opinion upon a point of foreign law, or of science, or art, or as to Opinions of experts identity of handwriting, the opinions upon that point of persons specially skilled in such foreign law, science or art (or in questions as to identity of handwriting *) are relevant facts. Such persons are called experts Illustrations (a) The question 18, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (6) The question 15, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knoting the nature of the act, or that he was doing what was either wrong or contrary to lasy The opinions of czperts upon the question whether tlıc symptoms exhibited by A coinmonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant (c) The question is, whether a certain document was written by A Another document is produced which is proved or admitted to have been written by A The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. Note 1. Foreign Lav There are various ways of proving a point of foreign Law.- (1) Sections 39, 45 and 78 0 4 of this Act. (2) 22 23 Vic. cap. 63 " When an action is pending in any Court in Her Majesty's Donunont, the Court may, if it deems it matenal to ascertain tho law in any other part of such Dominions, cause a case to be prepared and remit the caso for the opinion of one of the Bopenor Coarta of sich other part, praying for the opinion of the Court upon it e certified openton of euch Court is given to each of the parties and cither of them may ask the first Cort to apply it to the case." 111 Vinnan 17 -... prucu ih to Loorts of such foreign State. Foreign Laro saclades usages and customs of a foreign country basing the force of law. • Added by Ast XVIII Of 1972, Section 4 ·3 SEC 46] OTIXIONS OF THIRD PERSONS, WOEN RELFTANT ? English Late regarding the opinions of erperts on Foreign Law --Ouly thoso Tho carry on a legal profession 11 a foreign country can give opinions as to foreign lare Mere students of foreign law cindo do so. In the latter case the Court should itself consalt foreign laxy books with the belp of explanations given by sach students Under this section the opinion of a person haring sufficient skill in the subject will be admitted, wbether he is engaged in the profession or not. Science or Art - This includes all sabjects in which a course of special study or experience is requisite to the formation of an opinion; and docs not includo those sabjects in which every person can pasg an opinion, e. 9, A question of legal or moral obligation In McNaughten's case, 10 cl and Fin, 200, it was held that a medical man who was present at the trial cannot be asked whether, from the evidence given, ho concludes that the prisoner was insane at a particular time. For this involves decision as to the truth of the eridence, which is a question to be decided by tho Jary and bot hy the medical man The proper questiou to be pat to him is Supposing the facts given in evidence are true, do you behere that the prisoner was insane at the tine 5 4 A person especially skilled 18 a person who from his position and employ. mert has exceptional mean, of knowledge or has given the subiect particular con. sideration Before a person's opinion is admitted under this section evidence of special skill must be given 5 Handwriting.--The handwriting of a person may be prored in seren ways - (1) Calling the writer himself Section 70 (2) Calling a person toho has seen the person write the particular qorating under consideration Sections 67, 68, 69. (3) Calling o person who has obtained an acquaintance with the handwriting of the person n ho 19 alleged to have antten it, by haping scon that person write on other occasions Section 47 (+) Calling a person who has obtaiped an acquaintance with the handwriting of the person by having receiled documents purporting to be written by that person in angirer to documento tritten by himself Section 47. (5) Calling a person who has acquired a knowledge thereof by having seen in the ordinary course of business documents proved, or which may be reasonably presumed to have been, written by that person Section 47. (6) Tho judge himself comparing a disputed signature truth admitted sina. tures Section 73 (7) An expert doing the samo. Section 43 A person, who 19 not an espert but who has acquired for the purposes of the caso tu knowledge of tho particular person's handwriting by lookiug nt vanous documents ndmitted to havo boen in his handwriting, must not bo allowed to give his evidence 6 As to scientific treatiscs and the nght of giving them in evidence see 8. 60. As to the mode of proving experts' opinions seo & 60 As to the proof of tho cradlication of Cul Surgeons and of the opinion of Chemical Examiner ace 35, 509 and 510 of Criminal Procedare Code of 1532. 46. Facts, not otherwiso relevant, are Facts bearing upon relevant, if they support or are inconsistent with opinions of experts. the opinions of experts, when such opinions are relevant. Illustrations. (a) The question is, wlicther A was poisoned by a certain poison The fact that other persons, who were poisoned by that poison, cxhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relerant, ·46 OPINIONS OF THIRD PERSONS, WIEX RELEFANT. [arc. 16. (b) The question is, whether an obstruction to a barbour is caused by a certain sea-wall. as to The fact that other barbours similarly situated in other respects, but where there were no such sea-ralis, began to be obstructed at about the same time, is relevant Note This section 15 agaloguous to section 11. 47. When the Court has to form an opinion as to the person by whom any document was written or signed, Opinion bandenitrag the opinion of any person acquainted with the * handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen thnt person write, or when he has received documents purporting to be written by that person an answer to documents frritten by himself or under his authority and addressed to that person, or when, in tho ordinary course of business, documents purporting to bo written by that person have been habitually submitted to him. Illustration The question is, whether a given letter is in the landsting of A, a merchant in London, B is a merchant in Calcutta, who has written letters addressou to A and received letters purporting to be written by him. Cs B's clerk, whose daty it was to examine and file B's correspondence. D is B's broker, to whom B kabitually submitted the letters par pouting to be written by A for the purpose of advising with him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor Derer saw A write Note: Seo botes on section 43 for proof of banding 48. When the Court has to form an opinion is to the existence of any general custom or right, tho Opinion as to cris tenen of nght or cos. opinions, as to the cristence of such custom tom, when relevanta or right, of persons who would bo likely to knoty of its existence if it cxisted, aro rclerant.

·hLC JO ] OPINIONS OF THIRD PERSONS, WHEN TELETANT 47 Explanation.-The expression "general custom or right" includes customs or rights common to any considerable class of persons. Illustration as to The night of the villagers of a particnlar village to use the water of a particular well is a general right within the meaning of this section Note The expression general custom or right includes what in English Law ig kuona as public custom or right. See note to section 32, clause 4 Opinione as to 49. When the Court has to form an opinion usagca tenet, &c, when relevant the usages and tenets of any body of men or family, the constitution and government of any religious or charitablo foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the apmons of persons having special means of knowledge thereon, to relevant facts. Note. ID nuection with this section read section 92 post. 50. When the Court has to form an opinion as to tho relationship of one porson to another, tho Opinion on rela. trondkip when rele. opinion, expressed by conduct, as to the exis. tence of such relationship, of any person who, as a member of the family or otherwise, has special mcans of knowledgo on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorco Act, or in prosecutions ander section 491, 493, 497 or 498 of the Indian Penal Code. Nltstrations. (a) The question is, whether A and B wero married. The fact that they wero usually received and treated by their friends as husband and wife, is relerant. () The qacstion is, whether A as the legitimato son of B. The fact that A was always treated as such by members of the family, is relevant. Tant. :

·18 CHARACTER WIEN RELEFANT [sec. 50. Note. In English Law the rule laid doven in this section applies only to cases of mar. riage. But in this Act it applies to all cases of relationship. Grounds of opinion, 51. Whenever the opinion of any living perwhen relevant son is relevant, the grounds on which such opinion is based are also relevant. Illustration An expert may give an account of experiments performed by him for the purpose of forming his opinion. Note Character when relevant. 52 In civil cases, the fact that the character of any person concerned is such as to render probable or im- In character to prove probable any conduct imputed to him, is irreleconduct imputed, arrelevant vant, except in so far as such character appears from facts otherwise relevant. cival cases Note. 1. This is a limitation of section 11. 2. Character may itself be an issue in a civil caso As in an action for libel; then evidence of character may bo giren. 3 Character is 'distinct from 'statc of mind' which may be relevant under Bcction 1+ 4. Persons concerned means those whose conduct is relevant to the anit and not mero witnesses Evidence of character of the witnesses may be given always for the parrore of affecting their credibility. See sections 143, 146, 153, 155. Io criminal cases, previous good chers octer relevant 53 la criminal proceedings, the fact that the person accused is of a good character, is relevant. Note. crime oht laro beca absent.

·EL 33 ] CERACTER: 1 LFLFtar 54 In criminal proceedings, the fact that the accused person las been previously convicted of any ofience is Prerious tion in criminal trials relevant; but the fact that he has a bad claris relevant but not acter 18 irrelevant, unless evidence las been previous bad choricte 1 usceptin reris gien that lo has a good character, in hich case it becomes relerant. con ric- 1 Explanation -T}us section does not apply to cases in which the bad character of any person is itself a fact in issue. Note Evidence that the accused is of bad character is primarily inadmissible; for bacl character 18 a thing common to the accused and a large number of persons in the world, it does not therefore tend to show that the accused himself committed the crime But when evidence good character has been given to raise a presamr. tion of innocence in favour of the accused, evidence of bad character may be given to rebut that presumption 2 Note that the evidence of the bad character of the accused alone is excladed, and not the evidence of bad character of the opposite party; in cases of mapo evidence of bad character of the prosecutrix may to given Sce & 155 cl 4 3 Eudence of prel 10x5 con l'action - It is doubtful if evidence of previous conviction would be relevant to establish the probability of the priconer bavmg con. mitted the offence for which he is tried It 18 Dot 50 20 English Liw, and it would probably be tho sanne under this Act It is certainly relevant for the purpose of enhancing punishment Reads 21 of the Cr. Pro Code of 1892 55 In cıvıl cases, the fact that the character of noy person is such as to affect the amount of damages Character as aficc. tiog damages thich he ought to receive, is relevant Explanation.-In sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition ; but evidenco may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown. Note 1. That the character of any person is such as in afect the amount of damages tohich ho orght to obtain is relevant -Therelore under this section the character of persong other than the one claiming damages 19 not relevant But if the character of other persous 19 likely to affect the amount of damages, evidence of it will be ·TACTS 11111C1t XFED SOT BF PROCO. [sec, 55 2 In a case of damages for defamation in England it is doubtful, of enidence of the bad character of the plaintif will be admissible in mitigation of damages In India, it would be admissible provided eridence 18 confiaed to general reputation and general disposition 3. Reputation is what is thought of 1 person by others Disposition is the frame of the mind of a person Reputation arises from, and disposition is inferreu from, the outward actions of a person. (Text writers usually mention four cardinal principles of the Law of Evidence - 1 The case pioved most correspond substantially with the allogations, else the plaintiff will obtain no relief This is a role more of procedure than of evidence 2. The evidence must be confined to the points in issue This is the subject which the last chapter has treated of. 3 The burden of proof lies on the party holding the substantial affirmative This is comprised in the provisions of Chapter VII of this Act. 4 The best evidence must be given This is the governing principle of Chapters IV &V) must take PART II. ON PROOF CHAPTER III.-- Facts which need not be proved No evidence requir- 56 No fact of which thc Court will tako ed of fact judicially judicial notice need be proved. noticed L'acts of which 57. The Court shall tako judicial notice of Court Jadicial notice. the following facts :- (1) All laws or rules laring the force of lai now or hereto. foro in force, or hereafter to be in force, in any part of British India : (2) All public Acts passed or liercafter to be passed by Parliament, and all local and personal Acts directed by Parliament to be judicially noticed: (3) Articles of War for lier Majesty's Ariny or Navy: (1) The course of proceeding of Parliament and of the Councils for tuo purposes of making Laws and Regulations cstablislied ·FACTS ILICI SEED NOT BŁ TROLU 1 SEC 57] 51 under the Indian Councils' Act, or any other law for the timo being relating thereto Explanation.—The word "Parliament," in Clauses (2) and (4), includes The Parliament of the United Kinglom of Great Britain and Ireland, 2. The Parliament of Great Britain; 3 The Parliament of England ,- 4 The Parliament of Scotland, and 5. The Parliament of Ireland (5) The accession and the sign manual of tio Sovereign for the two being of the United Kingdom of Great Britain and Ireland : (0) All seals of which English Courts take judicial notice : the seals of all the Courts of British India, and of all Courts out of British India, establislıcd by the authority of the Governor- General or any Local Government in Councıl: the scals of Courts of Admiralty and Maritime Jurisdiction and of Notaries , Public, and all seals wluch any person is authorized to use by any Act of Parliament or other Act or Regulation leaving the forco of law in British India : (7) Tho accession to office, names, titles, functions, and sig. natures of the persons filling for the time being any public offico in any part of British India, if the fact of their appointment to such office 18 notified in tlio Gazette of India,'or in the Official Gazette of any Local Government : (8) The existence, title, and national flag of every Stato or Sovercigu recognized by the British Crown: (9) Tho divisions of time, the geographical dirisions of tlo world, and public festivals, fasts, and holidays notified in tho Official Gazette: (10) Tho territories under tho dominion of the British Crown: (11) Tlio commencement, continuance, and termination of liostilities between tho British Crown and any other State or body of persons:

·52 FACTS WHICH NEED NOT BE PROVID [sec. 37. 4 2 (12) The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attornies, proctors, vakils, pleaders and other persons authorized by law to appear or act before it. (13) The rule of the road (on land or at seat.) In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its and to appropriate books or documents of reference If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so. Note Accs of Parliament -a pulire or qencral Act 19 a universal rulo applying to the whole community, and must be judicially noticed by the Courts A special or prerate Act operates only upon particular persons or privato concerns, and is not judicially noticed, unless at is directed by a clauso in the Act that it should bc 60 noticed. The Acts of Tarliament are usually divided into - (1) Public Gencral.1cts, (2) Local and Personal Acts declared public and to bo Judicially noticca, (3) Prerate Acts propted by the Qucen's Printer, which may bo proved by printed copies, (1) Private Acts not printed By 13 and 14 Vic. Cap 21, section 27, it is provided that erery.ict of Parliament passed after the 4th February 1831, shall be dcemed public and shall be judicially uoticed unless otherwise cxpressed therein. Recognition of Independent State - Read also 8 491 of the CP.C 3 The Count may resort for its aid to appropriate looks - This is an extension of the English rule which allows cyperts to refer to books to refresh their memory. The Court may refuse to talo judicial notice - In Tan Omeron Dorrich 2 Camp Iter, 41, the Court refased to tako jadicial notice of the King's Croclam. atton, ihe counsel not having beea ready with a cops. 58. No fact need be proved in any proceeding which the partics tliereto or their agents agree to admit Facts admitted at tho hearing, or which, before the hearing, they agreo to admit by any writing under their lauds, or which by any rule of pleading in force at the time they aro dleemed to havo admitted by their pleadings : l'rovided that the Court inay, in its discretion, require the facts admitted to be proved otherwise than by snch admissions. Note 1. Red Cir I'mo Code of 1692, 23. 117 and 1: When document is groluced and the addrers party ilocs ... must to inhen a yoteil 11:21 Talki Sheroh . Dizlar, 6 31. 1. ..., 621. jd lectus et ulo 15: CUT 4 ·ONIL LYIDEXCF. Oral evidence most be direct $11. 61] 53 CHAPTER IY.-of oral Evidence, Proof of facts by 59. All facts, except the contents of docuoral evidencc inents, may bo prored by oral evidence. 60. Oral evidence must, in all cases, whaterer, be direct; That is to say- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be tho evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidenco of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on thoso grounds : Provided that the opinions of exports expressed in any treatise commonly offered for sale, and the grounds on which such opinions aro held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral cvidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection Note. Opinion of coperts contained in treatises — These are admissible on proof of threo things -(1) That the author is an expert, (2) That the treatise is commonly offercu for sale, and (3) That the author cannot be produccd CHAPTER V.-of documentary Evidence. 61. The contents of documents may be Proof of contents prorof documents. ed either by primary or by secondary evidence. Note. 1 This section must be talen stujcct to the provisions of the Stamp and Regis. trition Acts and the provisions of ss. 61 73 of this set. Read Registration Act of 1977, 83 17 and 18.

·DOCUMENTARY LVIDENCE. (sec. 61. 2 If a documeut creates to distinct rights for one of which the document must lave been registered and for the other need not have beca 80, the document though unregistered may be used for proof of the latter Gorr Churn Summa y. Junnut Alt, 11 Cal, 176 Primary evidence. 62. Primary evidence means the document itself produced for the inspection of the Court. Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document: Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, cach counterpart is primary evidence as against the parties executing it. Explanation 2.- IThere a number of documents are all mado by one uniform process, as in the case of printing, 4thography or photography, each is primary cvidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration, A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any otber, but no one of them is primary evidence of the contents of the original Note. The counterparts aro sccondary evidence of the contents of the document as against those who did not execute them Seo 8 63, clauso () Secondary ovidence. 63. Secondary evidence means and in. cludes- (1) Certified copies given under tho provisions hereinafter contained; (2) Copies made from the original by mechanical processos which in themselres insure the accumcy of the copy, and copics compared with such copies; (3) Copies mado from or compared with the original; Counterparts of documents as against tho partics who did not cxccuto them; (5) Oral accounts of the contents of a document given by nome person who has himself seen it. Illustrations, () A photograplı of an original is secondary cridcncc of its contents, tiroogh the two have not been compared, if it is piored that thic thing photographicd as the original ·>FC. 65 LOCLIFATIG) CHIDEXCF 55 () A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, althongh the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, 19 secondary evidence of the original. Note 1. If a number of copies be made by a copying machine from an original, the copies are primary evidence of each other and secondary evidence of the original Sea 62 Explanation 2, and 63 clause (2) 2. A copy made from or compared with a copy 1$ not secondary evidence of tho original unless the latter-mentioned copy was made from che original by a mechanical means such as photography or lithography See clause (2) and allustrations (o) and (c) 3 A printed copy is not secondary evidence under clause (2); for printing 18 not e process wluch in itself insures the accuracy of the cary. But it will be deemed secondary evidence under clause (3) 3 See sections 76 and 77 as to certified copies. Other kinds of secondary evidence not mentioned in this section are vrilten adm18cions of the contents of a document [Bec e 63 clauso (6)], and oral admissions of the same (see 9 22 ) 64 Documents must be proved by primary Proof of documents by primary evidence. evidence except in the cases hercinafter mentioned. Note, In English Law, on the authority of Slatterie v. Pooley referred to in the notes to 22, it is held that an oral admission of the contents of a document is primary evidence of the document Not so in India See B 22. 2 The efect of alteration ti a document.-An unauthorized alteration of a document in a material point whilo in the possession or under the control of the per. son producing it renders it wholly invalid Cases in which te. 65. Secondary evidence may be given of the condary evidence re, existence, condition, or contents of a document, latrog to documents may be given in the following cases : (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court, or of any person legally bound to produce it, and when; after tho notice mentioned in section 66, such person does not produce it: 4 ·56 DOCUMENTÁGY CTIDENCE SEC. 65 ) (6) When the existence, condition or contents of the original havo been proved to bo admitted in writing by the person against whom it is prored or by his representative in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to bo easily moveable; (e) When the original is a public document within the meaning of section 74; When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in British India, to be given in evidence ; (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d) any secondary cridenco of the contents of the document is admissible. In caso (1), the written admission is admissible. In caso (e) or it), a certified copy of the document, but no other kind of secondary evidence, 18 admissible. In casc (9), evidenco may be given as to tho general result of the documents by any person who has examined thein, and wlio is skilled in tlio cxamination of such documents. Note. 1 Secondary cridenco cannot be given, when the original is inadmissihto for want of registration Dueths l'urarla Ayyangar T. Krushnasam Ayyanjar, I. L N. 117. l. 1. A- ----- 6 Mlad, 1 An exception las been introduced by the legislatore to this clauso in favour of merchant soaman to the effect that they may brog forward secondary evidence of their agrecment with the master of the ship without prodociog or giving Rotina tn prouaco the document 17 * 18 Vio o 101, s. 16h Clause (6) Ilritten admissions -A written admission may be tendered so endopco eren without accounting for tha non prodaction of the origieu); not so a orat admiston Sen 22.

·SLC OD DOLL HEVAL HUDELL 37 4. Clause (c) Original destroyed or lost --In cases of loss, strict proof of Exccp'ion to this clarse --Section 19 of the Limitation Act of 1877 provides as follows. hanAlfa lanta AA) HII When the writing containing the acknowledgment is undated, oral evidence may be gun of the time when it was egned, but oral cuidence of contents siall not be received The question 13 whether the portion italicred at the end excludes oral cridonce, eren when the written acknowledgment is prored to have been lost or destroyed. DIT. Cuningham thinks that the passage only means that oral evidence is not admisailalo 5 Clause (a) Illustration --An inscription upon a tombstone. 6 Clause (9) General result of the whole collection.-Scc Civ. Tro. Codo of 1892, g. 391. 8. In Euglish Law in criminal cases, in the case of public documents the original itself must be produced. But this section applics equally to cuzil and crimina! cases. 66. Secondary cvidenco of tho contents of the documents referred to in section 65, clause (a), shall not Rules as to notico to produco. bo given unless the party proposing to give sucli secondary evidence las previously given to the party in wliose possession or power the document is, (or to leis attorney or pleader*) such notice to produce it as is prescribed by * IJ lei bp letiltre 192, SC S ·BOCCHESTAR ZSIDENCE (SEC 06. law; and iſ no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case ; Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with (1) When the document to be prored is itself a notico; (2) When, from the nature of the case, the adverse party inust know that he will be required to produce it; (3) Wlien it appears or 14 proved that the adversc party lias obtained possession of the original by fraud or force, (4) When the adverse party or his agent has the original in Court; (5) When the adrerse party or his agent has adınitted the loss of the document, (6) When the person in possession of the document is out of reach of, or not subject to the process of the Court. Note In connection with this section read ss 59, CO, 63, 70, 79, 131-131, 103, 161 of the C Pro Code of 1892, and s. 91-97 of the Crim. Pro Code of 1882 and * 162-IGL of tlus Act Persona omitting to produce documents after service of notice may bo procccded against under : 175 of the Indian l'enal Code 1 VTV1 1--Laat lanne Marta ALproduction of secondary evidence if he had banded it oser subsequently to tho notice. For an instanco under clause (6) sco Ralls Gau Kin Sutce, 1. L. 1.9 Cal, 939. Court may dierence irith no'ice-In England the court has no such discre. 4 tion 67. If a document is alleged to be signed or to have been written wholly or in part by any person, the sig- Prowl of signatero and handwriting o! nature or the handwriting of so much of tho TROB alleged document as is alleged to be in that person's Egned document handwriting must be proved to be in his band. produced writing. OT Euro written ·EL 70 M* (NETARY SHF 59 Note 1. It is not necessary that the handwriting must be proved by a witness who Baw tlic document written by clic person in question All that this section requires 19 that the handwriting must be proved In Mecl Kanto Pandit v. Juggobhundoo Ghose, 12 B LR, AP, 18, the handinting nas prosed by the admissions of the person who was alleged to hare written it 10 court 3 Ecction 30 As to the presumption in case of documents wluich arc thirty scars old, see 68 If a document is required by law to be attested, it shall P'roof of execution not be used as cvidence until ono attesting of documeet requir witness at least has been called for tho purpose ca by law to be attested of proving its execution, if there bo an attesting witness alıre, and subject to the process of the Court and capablo of giving evidence Note 1 An ancient document may be admitted without the proof requircd by this section See 8 00 2. Documents required to be attested are tills, mortgage decdelcase deeds, gift docds, SC 3 An erception - The Bierchant Shipping Act, 17 and 18 Vic, c 101, 8. 526. provides that any document required by the Act to be executed in the presence of witnesses may be proved by any person capablo of giving evidenco to tho requisito facts without calling any attesting witness 69. If no such attesting witness can be found, or if tho document purports to havo been cxecuted in the United Troof whero no attcsting witness Kingdom, it must be proved that the attestation found. of one attesting witness at least 13 in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 70. The admission of a party to an attested document of its exccution by himself shall be sufficient proof of Admission of er. ccution by party to its csecution as against liim, though it hea docuattested document ment required by law to be attested. Note. In English Lar a person who executed a docament cannot admit the ciccation of a theel which requires attestation so as to them with proof of it by the attesting witness, when ou aticating witness can be called; the reason 4segoed being tha:

·60 TUBLIC DOCUMEXTS [ Fc 70. hich the party himsel 19 This section makes tho nencs of the document as Proof when attest. 71. If the attesting witness denies or docs not ing wildess denies recollect the csecution of the document, its the cxccution exccution may be proved by other evidence. Note. The section docs not sis whether, when one of scrcral attesting witnesses his Teen called and has denied or does not recollect the cxccution of the document, another attrating witness should bo called. 72. An attested document not required by I'roof of docimient not requirod by law law to be attested may be proved as if it was to bo attceted. unattested. 73 In order to ascertain whether a signaturc, writing, or scal is that of the person by whoin it purports to Comparison of brand have been written or made, any signature, writin writing, or scal admitted or proved to tho satisfaction of the Court to have been written or juado by that person, may be compared with the one which is to be proved, althougli that signature, writing, or scal has not been produced or prored for any other purpose. The Comt may dircct any person present in Court to write any words or figures for the purpose of enabling ilo Court to compare tlıc words or figures so written with any words or figures alleged? to havo bocn written by such person. Note Tlc Englislı law on the Robject was that the comparison of signatures mis ho ALUU LALU 143 BULUM. 1944 furcs at still remains diferent Public Documents. 74. The following documents are public docn. L'oblic Docamcots. ents : 1. Documents forming ilio Acts, or records of the Acts li) of the govercim authority, ·SEC 70 PT SLIC DOCCUESTS 01 (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, Thether of British India or of any other part of Her Majesty's dominions, or of a foreign country. 2. Public records kept in British India of private documents. Note, W.11a admitted to probatc are public records kept in British India of privato documents, and are therefore pablic documenta. Private documents. 75. All other documents are private. 76. Every public officer having the custody of a public document, which any person has a right to inspect, Certified copies of shall give that person on demand a copy of it public documents. on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a truo copy of such document or part thereof as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to mako use of a seal; and such copies 60 certified shall be called certified copies. Eeplanation.--Any oficer who, by the oridinary courso of official duty, is authorized to deliver such copies, shall be deemned to have tho custody of such documents within the meaning of this scction. Note. Tho various public documents which may bo inspected by tho public and of which copics may be had are:- (1) Registers kept in Registration offices. (Seo scctions 17, 18, 42, 51 and 57 of thie Registration Act III of 1877) (2) Marnare Registers kept under tho Christian Marnage Act, XV of 1872; (Sco sections 79 and 80 of the Act) (3) Declaration of the Keepers of Printing Presses, de. (See s. 6 of Act XXV of 1867.) (4) Register of the copy right of books. (See section 3 of Act II of 1817.) (5) Documcala kept by the Registrar of Joint Stock Companies. [Sce section "20 cl. (c) of Act VI of 1892.) (G) Books Lept by tho Administrator General. (Sce . 43 of Act II of 1874) (7) Tho Recorús of Ciril Courts. (See 88.217 & 380 of the Cir. Pro Code) (8) Thc Ricorus of Criminal Courts. (Scc es. 210, 219, 371, 51% of the Crimn. I'ro Code) ·62 ITBLIC DOCCJENT, [sec. 77. 77. Such certified copies may be produced in proof of tho contents of the public documents or parts of Production of such copics the public documents of which they purport to be copies. Troof 78. The following public documents may of other offical documents be proved as follows:- any Local (1.) Acts, orders, or notifications of the Executive Gorerninent of British India in any of its departments, or of Government or any department of any Local Government, by the records of the departments certified by the hcads of thoso departments respectively, or by any document parporting to be printed by order of any such Government: (2) The proceedings of the Legislatures, by tho journals of thoso bodies respectively, or by publislied Acts or abstracts, or by copies purporting to be printed by order of Government (3) Proclamations, orders or regulations issuců by Her Majesty or by tho Privy Council, or by any department of Her Majesty's Government, by copies or extracts contained in the London Gazette, or purporting to bo printed by the Queen's Printer (4) Tho Acts of thio crecutire or the proceedings of thic legislaturo of a foroign country, by journals published by their authority, or commonly recrired in that country as such, or by a copy certified under the senl of tho conntry or Sorereign, or by a recognition thercof in somo public Act of tho Gorcrnor General of India in Council: (5) The proceedings of a municipal body in British India, by a copy of such proccedings, certified by the legal keeper thereof, or by a printed book purporting to bo poblished by the Authority of such boily: (m), Pololic documents of any other class in a foreign country, ·TEEMPTIOXS AS TO DOCUMENTS EC St. 63 by the original, or by a copy certificd by the legal keeper thereof with a certificate under the seal of a notary public, or of a British Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. . Presumptions as to Documents. 79 The Court shall presume every document purporting to be a certificate, certified copy, or other Presumption as to document, which is by law declared to be admissigenuineness of certi. fied copies ble as evidence of any particular fact, and which purports to be duly certificd by any officer in British India, or by any officer in any Nativo State in alliance with Her Majesty, who is duly authorized thereto by the Governor-General in Council, to be genuino: Provided that such docu. ment is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any sucli document purports to be signed or certified, held, when he signed it, the official character which lic claims in such paper. Note. The presumptions regarding documents known to English Law do not find a place here They can only be raised under the provisions of s. 114 80 Whenever any document is produced before any Court, purporting to be record or memorandum of Presumption on production of record of the evidence, or of any part of the evidence, evidence. given by a witness in a judicial proceeding or beforo any officer authorized by law to tako such evidence, or to bo a statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judgo or Magistrate, or by any such officer as aforesaid, tho Court shall presume that the document is gengine; that any statements, as to the circumstances under which it was taken, purporting to be made by tho person signing it, are true, and that such cridence, statement or confession was duly taken.

·61 PRESCRIPTIONS AS TO DOCUMCXTS. {&C. 80. Note. 1. As to the mode in which evidence should be taken in a citil casc, see Civ. Fro Code chap XY. As to the same in Crminal cases, see Crim. Proc. Code chap XXV; and as to confessions See B. 101. Bame Code provides as follows: --- LE--- Gazettes, 81. The Court shall presume the genuineness of every document purporting to be the London Gazette, or the Presumption as to Gaztte of India, or the Government Gazette of any Local Government, or of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to bo a copy of a private Act of Parliament printed by the Queen's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by Law and is produced from proper custody. 82. When any document is produced before any Court, purporting to be a document which, by the law in force for Presamption as to document admissible the time being in England or Iroland, would up England without be admissible in proof of any particular in any proof of seal or sig. Court of Justice in England or Ireland, without proof of the seal or stamp or signaturo authenticating it, or of the judicial or official character claimed by the person by whoin it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when ho signed it, tho judical or official character which ho claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland. 83. The Court shall presume that maps or plans purporting to be made by the anthority of Government were Proof of maps made for purposes of any so made, and are accurate; but maps or plans made for tho purposes of any causo must be proved to be acenrate. nature. cause ·and certified SEC 88 ) PRESCHIPTIOYS AS TO DOCCJEXTS 6 84. The Court shall presume the genuineness of every book Presumption as to purporting to be printed or published under the collections of land of authority of the Government of any country, and reports decisions to contain any of the laws of that country, and of ercry book purporting to contain reports of decisions of the Courts of such country 85. The Court shall presume that every document purporting to be a power of attorney, and to have been Presumption as to powers of attorney executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, British Consul or Vice-Consul, or representative of Her Majesty or of the Government of India, was so executed and authenticated Note. Sce: 33 of the Registration Act III of 1877 86. The Court may presume that any document purporting to be a certified copy of any judicial record of Presumption as to copies of any country not forming part of Her Majesty's foreign jadicial ro. dominions is genuine and accurate, if the docucords. ment purports to be certified in any manner which is certified by any representative of Her Majesty or of the Government of India resident in such country to be the manner commonly in use in that country for the certification of copies of judicial records. Note Read Cıv Pro. Code, s 13, Esplanation TI 87. The Court may presume that any book to which it may refer for information on matters of public or Presumption as to books and maps. general intercst, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have beco written or published. 88 Tlic Court may presuro that a message, forwarded from a telegraph office to the person to whom such Freeumption photographs, message purports to be addressed, corresponds machine copies, and with a message delivered for trausmission at the telegte plic ages. ofice from which the message purports to be 9 A3 to mess- ·PRESTIPTIO:S AS TO DOCCUESTS. not 66 [SEC 88 sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission, 89. The Court shall presume that every Presumption as to due execution, &c, document, called for and not produced after of documents produced notice to produce, was attested, stamped, and executed in the manner required by law. Note With this section read scctions C6 and 164 of this Act. 90. Where any document, purporting or proved to be thirty years old, is produced from any custody which Documents thirty the Court in the particular case considers proper, years old the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly execated and attested by the persons by whom it purports to be executed and attested. Explanation - Documents are said to be in proper custody if thoy are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section ciglty-one. Illustrations (a) A has been in possession of landed property for a long time, He produces from his custody deeds relating to the land showing his titles to it. The custody is proper () A produces deeds relating to landed property of which he is the mortgagee The mortgagor 18 in possession. The custody is proper. (c) A, a connection of B, produces deede relating to lands in B's possession, which were deposited with him by B for sale custody. The custody is proper Note In English Law, an ancient document, i e, document more than thirty ser cl necu not be proved, provided it came from proper custody. Yhat is proper custoly depends oron the circumstances of the caso 1 . L---1-- ....

·SEC 91 ] EICLCSION OF ORAL BY DOCCUENTARY EVIDENCE 67 CHAPTER VI.-of the Exclusion of Oral by Documentary Evidence. 91. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced Esidence of terms of written contract. to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a docament, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissıble under the provisions hereinbefore contained. Exception 1.- IVhen a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which ho is appointed need not be proved. Ecception 2.-Wills (admitted to Probate in British India*) may be proved by the Probate. Explanation 1—This section apples equally to cases in which the contracts, grants, or disposition of property reforred to are contained in ono document, and to cases in which they are contained in more documents than one. . Explanation 2.-Were there are more originals than one, one original only need be proved. Explanation 3.—The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude tlio admission of oral evidence as to the same fact, Illustrations. (a) If a contract be contained in sereral letters, all the letters in which it is contained must be proved, (6) If a contract is contained in a bill of exchange, the bill of cxclango must be proved. (c) If a bill of exchange is drawn in a set of thrce, ono only need bo proved • Sadal.tutc by Act III of 1572, Section 7.

·6S EXCLUSION OF ORAL BY DOCUMENTACT EVIDEXCE (sec. 91. (el) A contracts, in writing, with B, for the delivery of indigo apon certain terms. The contract mentions the fact that B liad paid A the price of other indigo contracted for verbally on another occasion. Oral cvidence is offered that no payment was made for the other indigo The evidence is admissible (e) A gives B a receipt for money paid by B. Oral cridence is offered of the payment. The evidence is admissible 1 Note Matters required by law to be reduced to the form of a document: (1) Depositions of witnesses in civil cases, ss 182—190, CIY Pro Codo, (3) Depositions of witnesses in cnminal cases, 85 33 4362, Crim Pro Code. (3) Judgments and decrees in civil cascs, B3 571–579, Civ Pro. Code (4) Judgments and final orders of criminal courts, $ 367, Crim. Pro Code. (5) The examinations of accused persons", s 364, Cum Pro. Code (6) An acknowledgment to save the statute of limitation, s 19, Limitn Act. (7) An agreement without consideration, $ 23, Inda Contract Act. (8) Agreements to refer to arbitration, 3 29, Escep 2, Indn Contract Act. (9) Mortgages of inmovcable property, 59, Trans Prop. Act. (10) Leascs of immoveable property, , 107, Trans Prop. Act. (11) Gifts of immoveable property, 123, Tres Prop. Act (12) Wills 50, Indo Succn Act, and s 2, Hin. Walls Act. The Hindu Law does not in any caso require any matter to be reduced to the form of a document 2. The expression, all cases in schich any matter 18 reguired by laro lo de reduced to the form of a document," does not include all transactions of which the law directa a documentary record to be kept. Therefore births, deaths, marriages, &c. of which the law directs a documentary rocord to be kept, may bo proved by oral evidence. 3 Hare been reduced to the forn of a document -In the following cases tho contract has not been reduced to the form of a document - (1) Where at the time of letting & premises, the lessor reads out from pencil minutes the terms of the lease and the lessee, though asscnting, docs not siga tho minutes (2) Where the terms of a leage aro signed by the wife of the lessco who is neither present nor has authorized her to act as his agent (3) Where the terms upon which & servant 19 hired are recorded in the presence of a constable, but the record 13 Bigned neither by the inaster nor by the ser- Vant. The contract is said to have been reduced to the form of a document, only when tho wnting in question, is each as to raise the presumption that the partics intended it to operate as fit enidence of their agreement. 4 Bought and Sold Notes.-These are the notes which a broker eends to the ---1 trucone, tho contract can bo prored only by the bought and sold potes or by accondary •Eco Note to .. , roge &L ·SEC 92 ) EICLUSION OF ORAL BY DOCUMCNTARY EYIDENCE. 69 evidence of their contents; and no other evidence to vary their effect can be given. If the latter view be the true one, the bought and sold notes form ouly one of the means of proving the contract; and parol endence may be given even to vary the effect of the bought and sold notes. It may be now considered as settled that the bought and sold notes are not neces. sarily the contract itself ; It may be proved that they are only memoranda of a contract already concluded, unless there is any mercantue usage to the contrary. should be charged, it was put forward by the plaintiff that he had in fact received wabsequently a letter from the defendant allowing 5 per cent per mensen interest and that he thereupon endorsed the note cancelled, hold, by Holloway, J, that evidence dehors the promissory note was not admissible to show the rate of (Sec. 6 The consideration for a contract may be proved by evidence other than tho document. 7 Admitted to probate in British India - The exception in favour of walls proved in British India might very well have been extended to wılls prored in England But auch wills may be proved by probates under ss 74 and 77. Probate means the copy of a will certificd under the seal of the court of compotent jurisdiction with a grant of administration to the estate of the testator tion 3 of the Indian Saccession Act, X of 1863 ) As to the granting of probate, read sections 208, 209, 233-264 of the same Act 8 Although the terms of the contract cannot bo proved orally, the existence of the contract itself may be proved orally Therefore the fact that one of two persons is a tenant and the other 19 the landlord, or that two persons are partners, may be proved without the document. 0 Matters other than those contomplated in this section may be proved orally, although they may have been recorded in a document, therefore oral evidence of payment is not excluded by writtca receipt See illustration (c) 10 This section applies where there is an oral contract to abide by the terms of a previous written contract Exclusion of er. dence of oral agreement. 92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, hare been proved according to the last section, no cvidence of any oral agreement or statement shall be admitted, as between the partics to any such instrument or their representatives in interest, for the purpose of contradictios, Farying, adding to, or subtracting from, its terms:

·70 EXCLUSIOX OF ORAL Y DOCUMENTARY EVIDEXCE. [sec 92 Proviso (1 --Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2)-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3)-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4) ---The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to bo in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any contract, are usually annexed to contracts of that description, may be proved : Provided that the annexing of such incident would not be repugnant to, or inconsis. tent with, the express terms of the contract. Proviso ()–Any fact may be proved which shows in what manner the language of a document is related to existing facts. Illustrations, (a) A policy of insurance is effected on goods "in ships from Calcntta to London." The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved. inns da ray B Rs 1,000 on the 1st me, an oral agrecment was the 31st March, cannot bo proved 1.1- ·SEC. 92] EICLESION OF ORAL BY DOCUMENTARY ETIDENCE. 71 (c) An estate called the Rampore tea estate' is sold by a deed which contains a map of the property sold The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be prosed. (d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms A was indaced to do so by & misrepresentation of B's as to their value. This fact may be prored. (e) A institutes a suit against B for the specific performance of a contract, and also prays that the continct may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed. (f) A orders goods of B by a letter in which nothing is said as to the time of payment and accepts the goods on delivery B sues A for the price A may show that the goods were supplied on credit for a term still unexpired (9) A sells B a horse and verbally warrants him sound A gires B a paper in these words: 'Bought of A a horse for Rs 500 B may prove the verbal warranty (h) A hires lodgings of B, and gires B a card on which is written Rooms, Rs 200 a month' A may prove a verbal agreement that these terms were to includo partial board A hires lodgings of B for a year, and a regularly stamped agree. ment, drawn up by an attorney, is made between them It is silent on the subject of board. A may not prove that board was included in the terms verbally. (2) A applies to B for a debt due to A by sending a receipt for the money B keeps the receipt and does not send the money In & suit for the amount. A may prove this (j) A and B make a contract in writing to take effect upon the happening of a certain contingency The writing is left with 'B, who sues A upon it. A may show the circumstances under which it was delivered Note 1. It is doubtful it this section applies to depositions which are by law required to be reduced to tho form of a document, for in the case of a deposition, oral evidence may be given to show that tho statements of the stoess were not correctly talen. 2. Oral evidence for the purpose mentioned in this section cannot be girer only og between tho parttes It may be given 38 between third partic4. See section 97, post --- C Am > 2....! plo and policy: oſ principle, becaase such instruments are, is their tatare and ·72 EXCLCSION OF ORAL PY DOCUMENTARY ETIDENCE 'SEC. 92] origin, entitled to a much higher degree of credit than parol eridence: of policy, because it would be attended with great mischief, if those instruments upon which men's nghts depend were liable to be impeached by loose collateral elidence." Prov180 (1). Facts anialidating a document, fc.- “ Fraud" _See Ind Cont Act, s 17, and Ind Sacon Act, 8. 49. “Intimidation"-See Ind Cont. Act, 15, and Ind. Sucen, Act, 43. "Illegality."-See Ind. Cont. Act, ss. 23 and 24, Ind Sucen Act, 114, and Ind Pen. Code, # 43 “Tant of capacity"-See ss. 11 and 12 of the Ind. Cont Act () A party cannot however set up his own fraud; 1. e., he cannot try to get rid of the effects of a document which he fraudulently caused to be drawn up This 19 what is meant by saying that a party cannot both approbate and reprobate a document () Tho fraud contemplated in this section is a fraud contemporaneous with the execution of the document and not one which anses after the cuecution " 177 TT ኮ ( "» - it was a fraod Babsequent to the execution of tho document (c) Mustale ---Extrinsic evidence 19 admissible to prove that certain words in document must have been, from the very circumstances of the case, inserted by Inistake Hall v Cazenote, 4 East, 477. 5 Proliso (2). Separate oral agreement as to a matter on which the document 18 silent -- The requirements of the Act on this point are --(1) That the matter is one as to which the document 19 alent, (2) That the matter is not inconsistent with tho express terms of the contract, (3) That the document should pot be so formal as to make it improbable that the parties did not reduce the whole of their contract to writing and left some portion understood (*) The leading English case 19 Abrey . Cruz, L R 5 C. P. 37. In that caso the drawer of a bill of exchange set up, as defence to an action by the payeo, an oral agreement between the drawer and the payee that certain goods, belonging to the acceptor and deposited with the payee as secunty, should first be sold by tho payee before he could gue the drawer This defeace was held inadmissible (b) The rule in the English Equity Court is that a transaction which is on its Anakret ham-inranand hon-lppulanne on haga con mally intended !! r 10 دل والدنا و (c) Though oral evidence cannot be given to vary the terms of 8 wntlen contract, oral evidence may be given to slow what the state of the document was the time whon the document bocare a contract. Steroart v. Eddores, Iludron . Slexart, L LOC P, 311. (a) The omission of a provision for interest in a hatchitta would not prever: the admission of an oral agreemoot as to interest. Umesh Chandra Banca . Vohens Mohun Das, o Cal, 301. G Prorico (3), Oral agreement as to condition precedent-It may be shown by parol evidence that what is appareatly an absoluto deed was delivered really as an ercrov", tanggurubalachetti r. Krishnasam Nailen, 1 BI. U.C. R, 457. An'orror' is writing deponital with a third person to baby blm delivered to the person whom it purports to deocit upon the performance of wote condition upon xhela only the writ a to baroc est ·SEC. 91) IS LES10 OF ORAL BY DOCUMESTARY EVIDENCE 73 • X:lt! tam contenteas rst naturali equitate quam unum quod que dissolvr colazamine quo lugatum est." The first thing that should be looked to befor: thus crception can be apphed 15 1 5 M. HC.R, 13), a custom inconsistent with the contract was not allowed to be proved. If there was an intention to exclude e contract from the oficration of a cakton, which would otherw199 attach to it, the intention must be piovorl by the words of the contract itself and cannot be proved by otber evidenco, l'ashes v Lamb, 31 L J., Q B,99 In the case of these inercantile customs the antiquity, uniformits and notriety of custom need not be proved See notes to . 13 para 3 Benanti t transaction 19. recognised custom among Findus 9. Protiso (6) Parol evidence to ecplain the language of the document.-In Patmanabhan Yumbudni v Kunho Kolendan, 5 ad II Rep. 320, evideuce was admitted to show that a particular acknowledgment in writing, rather raguo in it ternis, referred to a particului property 93 When the language used in a docu- Esclusion of evi. dence to explain or ment 19, on its face, ambiguous or dofectivo, eviainend ambiguous denca may not bo given of facts which would document show its meaning or supply its defects. be given Illustrations a> A arces, in writing, to sell a lorge to B for Rs 1,000 or Rs 1,500 Evidence cannot be given to shoir hluch price was (0) A deed contains blanks Irence cannot be giren of facta which would show how they nero meant to be filled 94. When language used in a document is plain in itself and when it applies accurately to existing facts, eri- Exclusion of orirence gainet applı dence may not be given to show that it was not cation of document to meant to apply to such facts. Oristing facts Nlustration. A sells to B, hp deel, 'mrestate at Rampore containing 100 bigas A has an estate at Ramporc containing 100 bigas Evidence may not • Soths 80 agtteghtc to tonlequutus that a thing ba antind in the manner in w It is bound + Amin parchase is a purch192 in the Dasca perena eta tartamral pirctur, 11 ·EXCLUSIOY OF ORAL DT DOCCHETART BYIDI. src 91] be given of the fact that the estate meant to be sold was one sitnated at a different place and of a different size. 95. When language used in a document Evidence, as to is plain in itself, but is unmeaning in reference documentt tunmeanang in reference to to existing facts, evidence may be given to existing facts show that it was used in a peculiar sense Illustration A sells to B, by deed, 'my house in Calcutta.' A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah 96 When the facts are such that the language used might have been meant to apply to any one, and could Evidence as to ap. plıcation of language not have been meant to apply to more than one, which can apply to one only of several of several persons or things, evidence may be Persong given of facts which show which of those persons or things it was intended to apply to Illustrations (a) A agrecs to sell to B, for Rs 1,000, my white horse.' Alias two white houses Erıdence may be given of facts which slow which of them was meant. (6) A agrees to accompany B to Hyderabad Evidence may bo given of facts showing whether Hyderabad in the Deccan or Hyderabad in Scind was meant. 97. When the language used applies partly Evidence as to ap: to one set of existing facts and partly to another plication of language to one of two arts of set of existing facts, but the whole of it does not facts to neither of which the whole cor. apply correctly to either, evidence may bo giren rectly applies. to show to which of the two it was meant to apply. Illustration A agrees to sell to B, my lund at X in the occupation of Y.' A has lanılat X, hnt not in the occupation of Y, and he has Innd in the occnpation of Y, bnt it is not at X. Evidence may be given of facts showing which he meant to sell. 98. Eridence may be given to show the moaning of illegiblo ornot commonly intelligiblecharacters, of foreign, Tridence mroning of illegilio olisolete, technical, local, and provincial exprescharacters, &c. sions, of abbreviations and of words used in a peculiar scnse.

·SEC. 93 ] ETCLUSION OF ORAL BY DOCUYFYTART ETIDENCE Illustration A, a sculptor, agrees to sell to B'all my mods' Ahas both models and modelling tools Efidence may be given to shoty which he meant to sell Note. [Sections 93-98 ] 1. These sections relate to the construction of documents other than wille under the Indian Succession Act and the Hindu Wills Act (Seo section 100) The English rules on the subject applying even to wills are given by Mr. Taylor as follows RULE 1. Where in a written instrument the description of the person or thing intended 18 applicable taith legal certainty to each of several subjects, extrinsic evidence, including proof of declarations of intention, 19 admissiblo to establish which of such subjects was intended by the author ROLE II. If the description of the person or thing be partly applicable and partly inapplicable each of sereral subjects, though extrinsic evidence of the surrounding circumstances may be receired for the purpose of ascertarniog to which of such subjects the language applies, yet evidence of the author's declarations of intention will be inadmissible. T--YYY YOL... ROLE IV. If the description be wholly inapplicable to tho snbject intended, or said to be intended by at, evidence cannot be received to prove whom or what tho author really intended to describe RELE V. If the language of a written instrument, ben interpreted according to . Its primary meaning, be insensible with reference to extrinsic circumstances, collateral facts may be resorted to in order to show that in some secondary sense of the words, and in one in which the author meant to use them, the instrument may hayo a full effect RULE I, corresponds with section 36 Rule II, with section 97: Rules III and V, with section 95 and Rule IV, with section 94 while no distinction appears to be made in any case between declarations of intention and other evidence Theo sections may bo shortly stated thus - Extrinsic evidence cannot be given where the document 19 plain and applies exactly to existing facts (8.94), Dor can it be given to remove a patent ambiguity or defect in the docament (8 33) But extragic evidence may be given for tho 1 - Ino ovject is LU SHOW Ylich Bel ul liLulislables Hus euyeu (JA) huen words are used in a technical sense, &c., (3 93 ) . ou içnorant person or one who has no Inowledge of the circumstances under which it ·76 EXCLUSION OF ORAL BY DOCUMENTARY SLIDESCE. SEC. 98.] Was written cannot understand it It will be euch, only if a person haring competent krorledge finds it ambiguous Esamples of defect are, 'I defise my bouse toand 'I bequeath Rs—to my son John.' Butin a caso of upintentional orussion, as I bequeath 1,000 to my son Jobn," the word Rs. or £ may be eupplıcd before 1,000, if what was intended to be iaterted can be discovered from the document itself In connection with this read a 29 of the Ind Cont Act. 3 Section 21 - This section inust be taken subject to the exception contained in section 99 4. Section 95 - This section 18 the cm bodyment of the rule of English Lan, "Falsa demonstratto non nocet.*" This rale 18 applied in English law, only when part of the description applies only to one thing, and the other part does not apply to any tlung at all But in order to apply this rule, what is foand applicable must render the thing sufficiently definite 6 Whenever extrinsic evidence is admitted under sections 93-98, oral statemedte of the person making the document are admissible and it matters not whether these statements are prior to, contemporaneous with, or subsequent to the making of the docement, although these circumstances may affect the weight of the evidence. 99. Persons who are not parties to a document, or their representatives in interest, may gure erdonce Who may give evi dence of agreement of any facts tending to show a contemporaneous varying terms of do. cament. agreement, varying the terms of the document Nxstration A and B make a contract in writing that B shall sell a certain cotton, to be paid for on delivery At the same time they make an oral agreement that three months' credit shall be given to A. This could not be shown as between A and B, but it might be shown by C of it affected his interests Note Tarying.-The qucation has beea raised whether 'rarying in this section in clades contradicting, adding to or subtracting from its lernse' mentioned in 32 Vost probably it does 100. Nothing in this chapter contained #lond of Indian Suc: skall be taken to affcct any of the provisions of cension Act relating the Indian Succession Act (X of 1865) as to tho to will construction of ville, Note. Seo lad an SucccESION Act, as Gl--107 . A false description does not yttate the document, ·77 SEC. 102] TIIE BIODEX OF ROOF PART III. PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII -Of the Burden of Proof. 101. Whocrer desires any Court to give judgment as toany legal right or liabılıty dependent on the existence Burden of proof of facts which he asserts, nust prove that those facts exist When a person is bound to prove tho existenco of any fact, at is said that the burden of proof lics on that person Hlustrations (a) A drsues a Court to give judgment that B shall be puushcd for a crime which A says B has committed A must prove that B has committed the crime (b) A desires a Court to give judgment that lic is entitled to ccrtaia land in the possession of B by reason of facts which he asserts, and luch B depres to be true A must prove the existence of those facts Note Sections 101-104 lay down the general English rule on the subject of burden of proof Sections 105-110 lay down certain special rules casting the burden of proufon particular persons Sections 112 and 113 mention two inatances of conclusive proof Section 114 gives a general authority to the Judge to draw reasonablo inferences 102. The burden of proof in a suit or pro- On whon burden of proof lica ceeding lies on that person who would fail if no evidence at all were given on either side, Illustrations (a) A sues B for land of wluch B is in possession, and which, as A asserts, was left to A by the will of C, B's father If no cvidence were given on cither side, B roald be entitled to retain his possession. Therefore the burden of proof is on A. (6) A snes B for money dac on a bond. The cxccution of the bond is admitted, but B says that it tras obtained by fraud, bichdeaics 10!

·76 TICLCSION OF ORAL BY DOCUMENTARY VIDEXCE stc OS.] F&B written cannot understand it It will be such, orly if a person having competent oorledge finds at ambiguong Examples of defect are, I derise my house to and 'I bequeath Rs to my son Joha' But in a case of unintentional omission. as * bequeath 1,000 to my son John," the word Rs or £ may be supplied before 1,000, if what was intended to be inserted can be discovered from the document atself In connection with this road e 29 of the lad Cont Act 3 Section 91--This section must be taken subject to the exception contained 19 hection IS 4. Section 93 --This section is the embodspient of tho rule of English Lam, "Falsa demonstratio non nocet ** This rule is applied in English law, only when part of the description applica only to one thing, and the other part does not apply to any thing et all But in order to apply this rule, what 18 found applicable must render the thing sufficiently definite 6. Whenever extrinsic evidence is admitted under sections 93-98, oral statemante of the person making the document are admissible and it matters not thether the statements and pror to, contemporaneous vith, or subsequent to, the making of the documont, although these circumstances may affect the weight of the cridencc 99 Persons who are not parties to document, or their representatives in interest, may give eridenco Tho may giveeri dence of agreement of any facts tending to show a contemporaneous varying terms of do. curent agreement, varying the terms of the document. Illustration A and B make a contract in writing that B shall sell a certain cotton, to be paid for on delivery At the same time they make an oral agreement that three months' crcdit sball be given to A This could not be shown as between A and B, but it might be shown by C if it affected hig interests Note Tarying - The question has been raised whether.rarying' in this section includes contradicting, adding to or subtracting from its ternts' mentionod in 34 Most probably it does 100. Nothing in this chapter contained Savir of provi shall be taken to affect any of the provisions of eiods of Indian Suc. cestion Act relating the Indian Succession Act (X of 1865) as to tho to will, construction of wills Note. Sco Ind.in SucccESION Act, 33 61--103 • A false descript on dnes pot vitiat the document, ·sec. 102.) TIIE BIEDEV O TEOOF. 177 PART III. PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII-Of the Burden of Proof. 101. Whoerer desires any Court to give judgment as to any legal right or liability dependent on the existence Burden of proof of facts which he asserts, must prove that those facts exist When a person is bound to prove tho existenco of any fact, at is said that the burden of proof lies on that personi. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed A must prove that B has committed the crime (0) A desires a Court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts, and wluch B dcnies to be true A must prove the existence of those facts Note Sections 101-104 lay down the general English rule on tho subject of burden of proof. Sections 103-110 lay down certain special rules casting the burden of proof on particular persons Sections 112 and 113 mention two instances of conclusivo proof. Section 111 gives a general authority to the Judge to draw reasonablo irferences 102. The burden of proof in a suit or pro- On whom burden of proof lies ceeding lies on that person who would fail if no evidence at all were given on either side. Nlustrations. (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father, If no evidence lo given on cither side, B mould be entitled to retain lis possession Therefore the burden of proof is on A. (6) A sues B for money duo on a bond. The execution of the bond is admitted, but B says that it tas obtained by fraud, which denics 10 ·78 TFF CORDEX OF PROOF (SEC 102 If no cvidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. Note. 1 English Test-writers lay down two mles regarding the burther of proof:- (1) It is on the party who would fail if no evidence at all were given on either side. (2) It is on the person who would fail if the allegation to bo proved Tero struck out of the record 2. Decided Cases -(1) The burden of proving that the consideration for a salo has not been paid when it is expressed in the deed of salo as paid, or that the person in whose name the purchase was made was not the real purchaser, or that in any other way the real character of a transaction was different from its apparent character 19 upon the person who asserts that the real character was different. Kali Persad Tewar v. Raja Sahib Prahlad Set, 12 M. I. A., 232; Samanchandra Dey Gopal Chandra Chakravarti, 11 D. I. A., Ap. 31. (2) Whero a Hindu family is admitted or proved to havo been orginally living pointly, the burden of proving partition is upon the person who asscrta it. Lussumud Cascha v Babu Vakın Lal, 11 M. I A, Ap. 380 While , Alinda family continues joint the burden of proving that a particular property is the self-acquisition of one member and not part of the joint property is upon the person claiming it as selfncqared Sri Raja Tanamala Fenlayama Sr Raja Tanamala Bucharya Tankanlara, 13 M.I. A, Ap 333 That there has been reunion of the members of & Joint Hindu family after partition must be proved by tie person who nsserts it. iking by gift it to be such. - prove that those circumstances existed, or that, after due inquiry, ho in good faith came to the conclusion that those circumstances existed. The burden of proof hero is on the purchaser. Cataly Venkala Narasnappa . The Collector of Marulipatam, 8 M.1, A., Ap. 529; Hanuman Persad Panday y, Jussamut Dahn Blanraj Kuntari, GBI I. A, 331; Prasanna Kumari Debt v. Gulab Chand, 14 B. L.R. 438. But a father uoder Blitakahara Law may sell away ancestral property for his own debts unless the debts were contracted for an immoral purpose. Therefore in tho caso of purchase from a father to clear father's debts, it does not lie opon the purchaser to show that the delte were not for an immoral purpose, bat the burden is opon tho person who seeks to set aside the bilo to show that the debts wero for an immoral parposc. Oirdhari Lal r. Kanin Lai, L. R, 11. A, 329. (3) As frand cannot be presumed on the part of any pereon, rerron, seeking to act aside a mntmet on the ground of fraud, janst give distinct cridence of 12. Lojendar Naraın Rai and anothers. Buat Got ind, o M. I. A., 131, So also for duress and intundation, (4) In An ejection mit, if the snit is objected to on the ground that it is Larred by the statute of limitation, it is on the plaintig to prove that it has not Leen Larred It la not for tho defendant to show that the sait has been so barred. Annuar Matrasor Singh v. land Lal, 8 31. 1. A, 199. A manager of paperts telonglog to an idol ·SEC. 105 ) TIE BURDEN OF PROOF 79 (5) Where a plaintiff snes for a declaratory decree confirming his title he mest establish not only possession but his right to the property in question. He will not obtain a decree simply because the title of the defendanta is weaker than his. Jolore Singh Y. Gurier Singh, 2 W.R, Cır. Rul, 167. 3. The burthen of proof will very often eliſt from one sido to the other in tho course of A guit. 103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in Burden of proof as its existence, unless it 13 provided by any law to particular fact that the proof of that fact shall lie on any particular person. Illustration. (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C A must prove the admission B wishes the Court to believe that, at the time in question, ko was elsewhere He must prove it. Note 1. Cases in which the law lias thrown the burden of proof on particular per- (1) Sections 103—111 of this Act. (2) Section 3 of the Criminal Tribes' Act, 1871. (3) Section 46 of the Code of Criminal Procedure, 1882. (4) Section 19 of tho Indian Succession Act 2 The casos quoted under the above section illustrate this section algo. BONS Burden of proving fact to bo proved to muke evidence admissible 104. The burden of proving any fact necessary to be proved in order to enablo any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustrations. (a). A wishes to prove a dying declaration by B must prove B's death. (8) A wishes to prore, by secondary cvidence, the contents of a lost document A most prove that the document has been lost. Note. In connection with this section read a 136 of this Act 105. When a person is accused of any offence, the burden Burden of proring of proving the existence of circumstances brinsthat case of accused ing tho caso within any of the General Excepcomes within cicep. tions in the Indian Penal Code, or within any trous ·TIIS TUNDEV OF PROOF. 89 [src. 105. special exception or proviso contained in any other part of tho same Code, or in any law defining the offence, is upon luun, and the Court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. () Section 325 of the Indian Penal Code provides that whoever, except in the case provided for by section 333, voluntarily causcs gnevous hurt, shall be subject to certain punishments A is charged with voluntanly causing flievons hurt under Section 325. The burden of proving the circumstances bringing the caso under Section 335 lies on A. Note. 1. Tho old Code of Criminal Procedure required that the prosecution shoula cstablish the absence of special crceptions mentioned in any section of the Indian Penal Codo under which the accused is chargcu. As to general exceptions the rule was the same as in this Act Now that Code has been repcalol, and the prosecution need not prove the absence of special as well as general exceptions, R In an action for londing a ship with indammablo material without notico the plazatill must prove absence of notice 106. When any fact is especially within the Burden of proring, fact cepecially knowledgo of any person, tho burden of proving within tuon ledge. that fact 19 upon him. Illustrations (n) When a person does an act with somo intention other than that which the character and circumstances of the act suggest, tlio burden of proving that intention is upon him.' (1) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. . Note. 1. In an action for penalties nginst the proprietor of theatre for porrforming a drama withont the portaission of the cathor, tho burilan of proof of cuarent is on the smprietor of tho theatre. Jorton 5. Copeland, 21 L J, O. P, 169. .:. In en action in an Apothecary for practising without a certifcatr, tho Apothecary mout prorc that he lua curticate The Spothecarics' Company T. Lintley, R. &1.139.

·sec. 109.] TIE ECEDEX OF PROOF Si 3 If locument wel's person prolaces in snpport of 1129 con contains alterations, it is that person's duty to prore tliat the alterations were made previous to the execution of the door or to give other satisfactory explanation of the alteration. As to the effect of alteration in a document see note to s 01 107. When the question is whether a man Burden of proving enth of person is alıre or dead, and it is shown that he was known to have been alive within thirty years, the burden of proving alive within thirty. that he is dead is on the person wlio affirms ears Note The IIindu Law presumed the death of a person who had not been lcuril of for 22 years; and the Muhammedan Law presumed the death of a missing puerson 90 jcars after his birth 108. [Provided that*] when the question is whether a man is alive or dead, and it is proved that lio las not Burden of proving that person is alive been heard of for scven years by thoso who who has not been would naturally have heard of him if he had heard of for seven years been alive, the burden of proving that he is alive is shifted to the person who affirms it Note Although there is a presumption in favour of the death of a person who has been missing for seven years, yet there is no presumption as to the exact time of his death A party asserting that the missing person died at a particular point of time must prove what he asserts 109 When the question is whether persons are partners, landlord and tenant, or principal and agent, and Burden of proof as to partnership, teoit has been shown that they have been acting as ancy, and agency such, the burden of proving that they do not stand, or have ceased to stand, to cach other in those clationships respectively, is on tlic person who aflirms it. Note. 1. Reason for the rule - The presumption contained in this sretion is based upon the supposition of tlio continuance of humuu alfairs 2. Partnership and Agency. As to tho inodo in which a partnership mny bo terminated. tcm s. 261 of the Ind Cont ict; and ag to the nouo of the dissolution of the relation of principal and agent, sco B. 203 of the Ind Cont Act 3 Leare.—This prezumption in favour of the continuance of the relationship of laudlord and tenant is uot in de, when the lease is for a fised terin and the term has csptred Tilak Patah r. Yalabır Panday and another, 7 B LR, Ap 11. Jbs Act ITIIT o 1972, Sectiva 9 ·se TIL BORDCY OF PROOF. [src. 110 110. When the question is whether any person is owper of anything of which he is slown to be in possession, Burden ff proof as the burden of proving that he is not tho owner to ownership is on the person who affirms that lc is not the owner. 1 Note. Tossession - Mero riolent seizuro and occupation of a wrong doer is not a por cssion within the moaning of this section. When such 19 the caso thc persoa discossessed can sue for possession without showing his title. (Sec e. 9 of the Specific Nelet Act of 1877) Batpostesston' does not mean tho personal occupation of tlo person; it may be occupation by means of a semant or agent. 2 Ejectton Snils-In ejection suits the plaintiff cannot succeed merely by showing possession but he must prove his title. He can qucceed by showing nougession only in possessory &uuts under 9 of the Spocific Relief Act Erfaza Foscut, Bantitru, I L Cal, 130, Mahomed Ali Khan Khaja Abdul Ghunny, IL RI Cal,741. 111. Where there is a question as to the good faith of a transaction between parties, one of whom stand, Prool of good faith in transactions whero to the other in a position of active confidence, ono party in in rola. thic burden of proving the good faith of tho tion of active confi. transaction is on the party who is in a position of active confidence. donce Illustrations (a) The food faith of a sale by a client to an attorney is in ones. tion in a smt brought by the client. The burden of proving the good fuith of the transactions on the attorney (6) Tlic good faith of n sala by a son jast como of aço to n father is in question in 1 suit brought by the son Tlic burden of proving thio good faith of the transaction is on the father. Note. 1. T'errons in position of actie conhecase-A puanlian standing in the role tion of parent, a religious, medical or legal adriaet, agents, trustees, crocutore, necessiry that theso relationslupa 1 hat soil to hare been tho jrosition of trlion. This is urts of Equity.

·&IC 114] TIL BURDE. OD PROOF 83 Another similar practice of those courts bich does not expressly find a place in this Act, but which will probably be brought under the general provisions of $ 114, is that the person who benefits by a gift should show the good faith of the tran- Baction 112 The fact that any person was born during the continuance of a valid marriage between his mother Birth duria, marriage, conclusive and any man, or within two hundied and eighty proof of legitimacy. days after its dissolution, the mother remaining unmarried, shall be conclasive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to cach other at any timo When he could have been begotten. Note 1. The Legal Maxim is, 'Paler esl quem nuptice demonstrant 2 Tad no access' means had no means of actual intercouree! Thercloro impotency of the husband may be proved to show tho illegitimacy of the child 3 When access 19 proved, no evidence will bo allowed to be given of tho mother's profligacy to raise a probability of the allegatimacy of the child Banbury Pecraje Case, is and S, 153 child will be established G Questions to parents as to whether they had or had not connection will be probably disallowed on the ground of decency Sec e 151 113. A notification in the Gazette of India that any portion of British territory has been ceded to any Native I'roof of cession of State, Prince or Ruler, shall be conclusivo territory proof that a valid cession of sucli territory took Placo at the date mentioned in such notification. Note. Jo Damodhar Ghordans Ganesh Derram, 10 B II. C. Rep , 37, held that this section was bad in law inasmuch as the Crown Lad no power of coding territory without tho consent of 1 urliament. 114. Tho Court may presuine the existence of any fact which it thinks likely to laro happened, regard being Court may presume lad to the common course of natural cycats, existence of certain fact: human conduct and public and privato business, in their relation to the facts of the particular caSC • lc is the father #Leta thic cuptuals and calc.

·6+ INE CURDEY OF PROOF (SEC. 111, Illustrations The Court may pcrsumc (a) That a man who is in possession of stolen goods soon after tho theft is citler the thief or has itceived the goods knowing them to bo stolen, unless he can account for lus possession, (6) That an accomplice is unworthy of credit, unless he is corro. borated in material particulars, (c) That a bull of exchange, accepted or endorsed, was acccpted or cndorsed for good consideration, m! 1 (e) That judicial and official acts havc bccn regularly performed; (f) That the common course of business has been followed in par ticular casºs, (9) Thint cridence which could be and is not prodaced would, if produced, be unfavourable to the person who withholds it; (1) That if a man refusce to answer a question wluch lic is not compelled to answer lwy law, tlic answer, if given, would be unfavourable to hun (1) That when dochment crcating an obligation is in the liands of the obligor, tlic obligation has been discharged But the Court shall also liare regard to such facts as tho following, in considering wlicther such maxias do or do not apply to the particular case before it - As to illustration (a)-A slop-keeper has in his still a marked rupee soon nfter it was stolen, and cannot arcount for its possession srccifically, but is continually receiving rurces in the course of his busincss: As to illustration (6-A, person of the lighcst clamcter, is tric for causing a man's death hy an act of negligence in ammoging certain machinery. I), a person of equally good character, who also took part in the arrangement, describes precisely what was done, and adinits and cxplains the common carelessness of i and himself: As to illastmtion (1) --A crime is committed by screral persons. 1,13 and C, three of the criminale are captured on the spot and kept apart from each other. Each gire's an nccount of the crimo implicat. ing I), and the accante rorroborate ach other in such a manner ns to ruder prerions concert highly improbable: As to illastration ( CA, tlie ilm ser of a bill of crchange, mas a man of business I), the acceptor, mas a young and ignorant person, cota. pittis nader A't innence ·<FC 114] TIF CONDEY OF PROOF 85 As to illustration (d) It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might cliange its course: As to illustration (e)-A judicial act, the regularity of which is in question, was performed under exceptional circumstances : As to illustration (f The question is whether a letter was received It is shown to have been posted, but the usual course of the post was interrupted by disturbances. As to illustration (9)- A man refuses to produce a document which would bear on a contract of small importance on which he 19 sued, bat which might also injure the feelings and reputation of his family: As to illustration (h)A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked: As to illastration (1)- A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it. Note T.-L.-- An attempt luas been made by continental writers and also by the English to reduce presumptions to a set of artificial rules, and to leave nothing to the Judge. It 18 of course necessary to use artificial definite rules on certain points, e q., absenco ch cases tho 79-90. As rules of thio is inferences • drawn from ircumstances Drew .ܘܐ .. w: the legislature are:- (1) Thoso regarding the intentions of a testator contained in section 88 of the Indian Succession Act. (2) Tho presumption that a breach of contract for the transfer of immoveablo property cannot be adequately compeosated for by damages in money, and that a ·&G THE BLEDES OF PEOOF, [sec. 114. brench of contract to transfer moscable property can be so compensated. Section 12 of the Specific Relief Act I of 1877 Some presumptions wbicl etili esis: as judicial decisions are spoken of below. 3 Presumptions of Hindu Lau.. (1) All the property of an undivided Hindu family is joint and it lies on the person claiming any part as eelf-acquired to prove it to be such Dharma Dass Pandey r. Vuecamat Shana Sundart Debs, 3 X. 1 A., Ap 229. It is doubtful it mere living in Tasca such a presumption. Against this must bo placed a contrary decision in a largo number of other cases (Danuldan Lalt. Ganpat Lal, 11 B. L I., 201 ; Shiv Golan Singh Daran Singh; Fadhila Persad Dey y. fussamue Dharma Dansı Dedi, 3 B. L. R., A.C. 121, Khelat Chandar C'hose Khunj Lal Dhur, 10 W R, C. I, 333) It is probable that in tho absence of proof of the existence of joint fundo froni which the acquisition might have licen made the court will refuse to consider it as joint property. This prosumption that all the property held by the members of nn undivideil Ilinda family is joint may be rebutted by proof of several members harios schuireit sepimte property. The presumption in farour of joint family will not be rebutted by proof of one member having separated (2) There is a presumption that a debt contracted by the manager of a Ilindu family 39 før a family purpose. (3) A childlegg Hinda will be presumed hnyc authorized his widow to adopt.' Collector of Nadura Multti Ramalinga Setupatı, 12 M I A, 397. (4) Whero a linda family has migrated from one part of India to another thio presumption is that it continues to be governed by the law of its ongin. Preonmptions of Muhammedan lav - Mahammedan dower is presumed to to demandable at any time and not merely on divorce. 6. Trenemption of the Lorio of Guardianship.-Child's religion is supposcil to lo the samo as that of the father 6 Prerumption as to Berani purchaec -Tho purchase of land ly tho fatlier in the name of the son is presumed to he tenants and to bp for the benefit of tho fither. The presutaption in English law, that it was intended as a provision for tho benefit of the son, dons not find a place in India When, howeser, n creditor of the apparent owner claims the property in salis. fiction of his debta strict prool that tho apparent owner is only benamutar must bo siren by the person asserting it. A spit instituted by a bexamidar is presamed to lasc bcon ſostitated with the consent of the real owner. Jarriage and lozimney - Three may be inferred from the conduct of the 4 child. The fact that a marriage took placa Leiseen two parties on a certain to raiacs a presumption that the parties were bot married previously. hero a marriage rould be invalsd if a certain requisite had not been folalle, an't the crldence shows that the marrige tonk place, there is n Jiresumption_tline the repaisit mquired to make the routiago talid was falfilled Piero y, Piers, 1 1.LC, 331. 8. Trumpfwas as to talis and o'her doeu menit.-A will that has leca long nepierced in is greeamed to be genuinc Rajendro Yath Holdar r. Jojen kro Nath linneac, 14 3.1. A , 67.

·SEC 111) TEIE RETDEX OF PROOF 87 Alterations in a locument in pencil are presumed to be delibcratire, and alterations in ink to be real and conclusive. Sanity is presumed; but when 193anity is proved, proof of a lucid interval is on the person who asserts it. The strength of the presumptios, that the person in whose rossession stolen articles are found is either the thief or a person who received it knowing it to be stolen, depends upon the nature of the article, and the length of time after which it is found in the possession of the accused. If the article is not one likely to change hands easily, and tho article is traced to the possession of the accused shortly after tho theft, tho presuraption 13 strong; of the reversc, tho prosumption 19 weak. By possess101 19 meant conscious posscasion not merely tho tinding of the article in the accused's liouse wluch has probably been thrown thero without the knowledge of the accused. in law. 10. Presumptions as to negotiable instruments --A purchaser for valuable consideration will bo presumed to have bought without notice of the circumstances invaluating the bill. There is a presuniption that they were made for valuable conlucration 11 Presumptions as to land.—The hercilitary nature of a taluk may be presumcd from long and uninterrupterl enjoyment and the descent of thcteauro from father to son. Gopal Lal Talur Telug Chundar Rar, 10 d. I. A, 191. If a tenant holds over after the expiry of the loase, the presumption is that he holda subject to all the conditions of tho former lease applicable to the new bolding, Aular Dus Iulil . Jeora) Dalu, 12 B. L.R, 263. Whes payment of the rent R., 246 If land is incapable of being held in possession, tho person ho is the owner is rresumed to have been in possession, and if land, which was originally in the posneskion of a pian, becomes incapable of being possessed, og when it is foodou, thero is a presumption that his ro98casion continues 12 Presumption as to the descluarge of oficial dutice-man acting in a public capacity was properly appointed and authorised to do so; judges and jurors de lavo retent Thero ---- 1.L1.

·ESTOPPEL. SS [st.c. 115. CHAPTER VIII.-Estoppel 115. When one person has, by his declaration, act or omission, intentionally caused or permitted another Estoppel. person to believe a thing to be true and to act upon such belief, neither he nor his repreşontativo shall be allowed, 10 any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Ilustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to bay and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on tho ground that, at the time of the sale, he had no title. He mast not be allowed to prove his want of title. Note. Definition of Estoppel-Estoppel is the disability which a man labours under and by which ho 18 estopped or prevented from proving the untruth of his previous representations by deed or word as against the person who has changed his position in consequence of such representations 1 2. Divisions of estoppel-English Lawyers dinde estoppels into three classes – Estornel by matter of record, estoppel by deed and estoppel by matter an pais.* (1) Estoppel by matter of record-By matter of record is meant the judgment of a Court. We havo already seen how judgments of Courts of Jastice preclude persons from proving or disproving certain facts. (See s3 40 and 41.) (2) Estoppel by deed ---By deed is meant a contract ander seal. In English law if a person enters into a contract ander seal, he is not allowed to dispute the contents of a document Contructs tinder seal are not recognised in India ercept in the Presi. dency Towns; and even there only as between Europcans We may therefore leavo out of consideration this class of estoppels also. (3) Estorpel by matter in pais - This is the kind of estoppel especially referred to in this chapter The principle was thas stated by Lord Denman in Pichard y. Sears, 6 Adolphus and Ellis's Reports, 475:-" The role of law is clear, that where one, by his words or condact, wilfully causes another to behere in the existence of a certain state of things, and indaces him to act on that belief, so as to alter his own previous position, the former is concluded from avcrring against the latter a different stato of things as cxisting at the same time" . In paus means "the country" or before the publie" Iostadres of matter it pou are liverio (swing of possession), catry, acceptanca of rent, partitioa, acceptance of estate, $5,-LOID CORE. As to the effect at substituting, 18 the Ind. Ev, Act. "jetentionally" for "Wilfally." ceet? obsoreations in Lanjol Mall Tau Nambuddy, Cranjli Ilalt Kru Nazbudri, I.L.R, 7240, 8.

·SEC 115 ] ESTOPTEL 89 cael L. Latina non and dul art upon be tri it as conte cast from a duty often 2:4 "If a man," writes Jr Justice Story, "having a title, to an estate, which is at" In Carry London and North-Tester Pailicay Company, L.R , 0 C P., 307, four recognisel propositions of an estoppel en para were cnunciated by the Court 1. "If a min by his words or conduct sulfully and aroNTA to cause another to believe in a cer. 11 state of tbings which the trst knori Zo bo fulae and of the second beliere in such a Atate or chungs and acts upon his belief, he who knowingly made the P11A8 staleront 14 estoyned from Averring afterwards that such a state of things did not in fact exit IL. "If a man, either in express terms or by conduct, makes a representation to another of the esystence of certain state of facts mich he sxtend, to be asked wron de certain rar and it the Beted upon in that way, in the belief of therfstence of such a state of facts to the damage of bin who so believes and acts, the irst is estopped from denying the existence of such a state of facts, III. wahn TY. rkod : Quse the It tho ге 8 person by his negugeulu alios8 his vous to Do Eluru, De 19 not escolleu irom denying the title of an innoccot purchaser of the goods from the thief. The above propositions regarding e-torpel in paus lead to a three-fold derision of estoppel in pais, 11., by statement, by conduct and by nejlu JCACE. The definition of estorpet in this ecction, "When one person has, by his declarallon, cet or omission intentionally caused, &c." follows this classification of cotespel in part. 3 Potentials of cstoppel -(1) Theroinst Fave been derlaration, conducto omission which amounts to an intentional causing or permittiog telef of certain fact in asober (2) Thit other taust beliere. (3) That other most bare acted upon euch belief, ·88 ESTOPPEL. [scc, 110. CHAPTER VIII.- Estoppel. 115. When one person has, by his declaration, act or omission, intentionally caused or permitted another Estoprel. person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between humself and such person or lis representative, to deny the truth of that thing. Nlustration. A intentionally and falsely leads B to believe that certain lanel belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He most not be allowed to prove his want of title Note "lity which a man labours wder ng the untruth of his previous who has changed his position IT 9 Divisions of estoppel - English Lawyers divde estoppels into three classes -- Estoppel by matter of record, estoppel by deed and cstoppel by inatter an pats,* (1) Estorpel by matter of record-By matter of record is meant the judgment of a Court We have already seen how judgments of Courts of Jastice preclude persons from proving or disproving certain facts. (See &s 40 and 41 ) (2) Estoppel by deed --By deed is meant a contract under seal. In English law if a person enters into a contract under seal, he is not allowed to dispute the contents of a document Contracts under seal are not recognised in India ercept in the Presi. dency Towns, and cren there only us between Europeans We may therefore Icave out of consideration this class of estoppels also. (3) Estorrel by matter in pais - This is the kind of estoppcl cspecially referred to in this chapter. 41- 2- LT of things as existing at the same time" It pay means "s te cosntry" or "Before the public " Instances of malter 1 pais are liverio (siving ot possession), entry, sceptance of rent, Partition, acceptance of estate, &c.--LOID COME As to the edact of sthstitating, in the Ind. Ev. Act, "intentionally" for "ylfally," ose the OlxaTvations in Erarpol Illuft Posts Nanbudo T. Eraxjoli Illett antax Nantedri, I. L., 7 Vad, 8.

·SEC 115.] ESTOPPEL 89 1 11 "If a man," writes 1r Justice Story, having a title, to an estate, which is In Carr London and North-Western Railway Company, LR, 10 0 P., 307, Sour recogniseul propositions of an estoppel in pars were enunciatod by the Court I "If a man by his words or conduct rulfully end arours to cause another to believe in a cer. tain state of things which the fret krok, Yo be fals and if the second believes in such a state of thungs and acts opon his belief, he who knowingly made the false statement 19 estou pel from alerring afterwards that such a state of things did not in facterist. IL 7aman other in phraga terme an hy noutant , a . 1 II. It man, whatever his realmenning may be, o conducts that a rromnable man world tuke au conduct to me a certain representation of ficts, and that it was a true representa tion, adil that the latter was intended to act upon it in particular tay, and he with Kuch brief does Act in that way to his damage, the first is estopped from denying that the facts were sa represented. IV." la Svan N. B Australian Company, 2 1. &C, 175 Blackburn, J, remarked that the neglect must be (1) on the transaction leels, (2) the prorimate cause of leading the party into mistahe, and (3) the neglect of some duty thich the WILM denying the title of an innoccat purchaser of the goods from the thief. The abovo propositions regarding extorrel in paus lead to a three-fold from . K. Essentials of estorpel (1) hero not have been derlaraliondito ominion which amoitats to at intentional causing or permittiag belırds ATHIN fact in &other. (2) That other must beliere (3) That other milk bare sted uron such belief. .

·90 ESTONIFI. [sts 115. -P 1-4 It is not neccesary that the person causing or permitting belief must have known tlie untruth of the fact bclicvel by the other, it is bulliccnt that the belof was intentionally caused Jordon y Money, 5 LC, 163 Thic misrepresentation must be a misrcpresentation of fact, and not of more intention Jorclun v loncy, 6 I LC, 185 A person cannot use as an estoppel a statement by which he drag been in no way misled or in lacoil to alter his position to his detriment, A Hindu father adopted a son and then adoptoil another son during the life of the first. Tho father een his tho adopted song, the first the death of the father, it was held sed by liis acquicsconce from question. moperty, ha was not in any way to ancestral property. Rangana v 1 Estornel wy Declaration - A person wilfully marle e falso statement ro. garding the price of certain houses them at a lower rate of charges. negligence of the Company Tbc recover their price that they wer North-Il'estern Railway Co, 7 H & N, 417 5 Istorpcl by Conduct -Estoppels of this kind are by far the most purcrons Where the real owner of z movenblc property allows another person (a benamidar) to be in possession of title-clecds and hold himself out to the world as the reni owner and so induco ignorant persons to lend money on its sccurity or purchase it, the real on ner or persons claiming through him would be cstopped from Ceputing tho title of the innocent person. Ronnte Ganga Narain Chauira, 3 WR, CIF Rul, 10; Trojanath Ghose v Kailas Chandra Baner), 9 W. R., Civ. Rul, 593, Ram Kumar Kundu v John and Maria DcQueen, 11 B LR, 53. So also where owner of goods allows them to remain in another's posgossion and allons that other to obtain credit on their sccurity. Bani Persad and others v. Maun Siny, 8 W R, Cıv Rul, 67. rtgages of their property with the y will not afterwards be allowed to for the purpose of recovering tho mana Dast and others, 3 W.R, Civ kui, ož But if the person in Loso favour tho fictitious salo or mortgage was concluded brought a suit to assert his title, he will not succeed; for then the maxim, "In payı delicto potior est conditio possudentis*" applies the - LAL estopped from setting up want of jurisdiction against this order. Ciozend Taman Sakharan limarlandra, 1 LR3 Dom, 12 . Apoug bully rates, the starts who is in rossCS2200 is more powerful, s. r., Will Eucccett.

·SEC 116] ESTOPPEL. 91 C Where a party sets up a particular case, he will not generally Le allowed to shalt his case during the course of the siut This is usually called extuppel by pleadings Estoppel by OmniSIA - The essenti ily required to raise in cstoppel of thuy kind o addition to the ordinary ones are those mentioned under juara 2 of the notes to this section in connection with Sican NBdustralian Company, 2 I and C 173 Wiere a negotrable instrunicnt was so crrclessly drawn as to facilitate the cliuzo of " £50 into "£330," the maker wis estopped from prorms against purchaser for valuable cousideration without notice that it was not originally s.) drawn Young 5. Grote, 4 Bing 254 116. No tenant'of immoveable property, or person claiming through such tenant, shall, during the con- Estoppel of tenant tinuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the begining of tho tenancy, a title to such immorcable property; and no person who came upon any unmorcable property by the license of the person in possession thercof, shall be permitted to deny that such person had a title to such possession at tho time when such license was giren. Note. at np Ron this Act is similar A tenant may howerer show that the landlord mentioned in the lcasc deed 18 only a benamidar and that therefore ho necd not acknowledge his titlo. Dun:cl r. ** is truo that thug ca 40 was decided decision under the Act will not lc in the case of benimi boldinys. parol cuidance of tho fact that the at it is a variation of the watten contract. Trueman v. Loler, 11 Adolphus and Enız lep, 593. 2 The tonant cannot deny that tho landloril had no titlo at the beginning of the tenancy: but lio unay show that, at some timo prerious, the landlord had no licle, or that hu lost it at some subsequent time. 3 Tho esto pel continues in English Lan dering the time that the posmagion continues; in the Act it continues for a longer tinc, namely, during the continuance of the tenancy. The estos cl would not cease even after 12 years prostirsion with out Pying rent, if it is shown that the possession 29 outained in the capacity of tenant ·92 FITNESSES (sec. 117. 117. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw Estoppel of acceptor of bill of exchange, such bill or to endorse it, nor shall any bailee Laleo or licensee. or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licenso commenced, authority to mako such bailment or grant such license. Explanation (1) –The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to liave been drawn. Explanation (2).—If a bailee delivers the goods bailed to a person other than the bailor, lie may prove that such person hada right to them as against the bailor. Note 1 The acceptor of a bill of etchange 1$ not however estopped from denying the genuineness of the signature of the payee or of an indorsee although it might have been on the bill at the time of the acceptance. He 19 estopped from denying the stgnatare of the drawer, his authority to draw and, if the bill be payable to him. self, his authority to endorse although the bill might have been drawn after #cceptance. According to English Law the acceptor does not admit the drawee's authority to endorso it See Chap XIII of the Negotiable Instruments Act, 1881, ag to certain special rales of Evidence relating to negotiable instruments. 2 In English Lay the bailee may prove that another person had a better title than tho bailor only when (1) the goods were obtained by the bailor by frauch or tort and the bailee did not know it at the time of the balment, (2) the bailor is a common carrier, and (3) the boilincnt 18 a pledge ; under this section, the baileo may set up the better title of a third person in all cases As to bailments' see Chapter IX, Indian Contract Act CHAPTER 18.-0f mitnesses. 118. All persons shall be competent to testify unless the Court considers that they are prevented from Who may testify. understanding tho questions pnt to tlıcm, or from giving rational answers to those questions, by tender years, extremo old age, disease, whether of body or mind, or any other cause of the caino Lind. Explanation.- A lanatic is not incompetent to testify unless lid is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

·SEC 120 ] WITNESSES. 93 Note 1. This section renders erery person competent provided he is ablo lo under. stand the questions put to him and to gre rational angwers to the same Tbe English Las requires also that he most Inow that he ought to speak the truth; this is not reqaired by this Act la PJEH SstLut Iticarya, 14 B LR, 54, the simple afirmation of a child of sach tender years that it did not know the naturo of an oath or solenn affirmation was admitted in evidence, The amount of credence to be given to each witnegg is at the discretion of the judga or the jury, and this would depend upon the witness'a demeanour, deportment under cross-examination, molites to speak or hide the truth, means of knowledge, powers of memory and other tests by which the value of their statements can be ascertained with tolerable accuracy See the promisions of Act X of 1873 as to the mode of giving evidence 2 Sauing - This section must however be taken enbject to the special provisions to be found elsewhere in the Act disabling persons from giving evidence of certain facts An accused person cannot give evidence in his own trial. (See 6 311 of the Cr. Pro Code of 1892) Nor can an accused person give eridence against 2 co-nccused unless the former has obtained a pardon under the Code of Crim. Pro The Queen v. Ashraf Shesk and others, C W R, Cr. Ral, 01. When a charge was made against two persons, but procesa 1980ed against only one, the other was held to be a competent witness Mohesh Chandra Kopalı + Yohesh Chandradas, 10 C. LR, 553. 3 The attendance of witnessess, their speaking the trath, producing documents are compelled by Civ. Pro Code, Chap XIV, Cam Pro Code, Chap XVIII. Indian Penal Code, ss 172-177 and 170-180, and e 26 of Act XIX of 1953 (See Appendix ) 119. A witness who is unable to speak may gire his evidence in any other manner in which he can make it intelli- Dumb witnesses. gible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence. Note. Deaf and dumb persons were formerly excluded on the presomption of their idiocy. This belief has been discovered to be groundless 120. In all civil proceedings the parties to the suit, and tho husband or wife of any party to the suit, shall Married persons in Cinl and Criminal be competent witnesses. In criminal proceedproceedings. ings against any person, the husband or wife of such person, respectively, shall be a competent witness. Note 1. Persons may be divided into four classes with reference to their capacity to bear witness.-(i) Those that are incompetent in & ar totnens under all circumalances, such as, madmen, (2) Those that are 100 pelent to bear scimena to reridir facta ercept truth the consent of certain persons (see a 12, 123, 123 and 127.) (3) Those that are competent to dear unest to certain facts but cannot be compellet (seg *s 121, 122, 121, 123 and 129 )(1) Those that are competent and compelladie. 1 ·91 WINESSES. [sec. 120 tlie Act the rule is lifferent Iu chit cater the Indian Law falls short of the English Law In English Law, in all matrimonial saits, the husband or wife of a De Dretton and IIolme, I LR, 4 All, 49 3 As to witnesses who are compctent to prove walls ece . 55 of the Indian Succession Act 4, Tho provisions of this section are subject to those of section 122. 121. No Judgo or Magistrate shall, except upon the Special order of some Court to which he is subordinate, Judges and diagia. be compelled to answer any questions as to his trates. own conduct in court as such Judgo or Magistrato, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. Illustrations (a) A, on his trinl before the Court of Session, says that a dero. sition was improperly taken by B, the Magistrate. B cannot be compell. ed to answer questions as to this, except upon the special order of a Superior Court (6) A is accused before the Court of Session of having given falso evidence before B, a Magistrate B cannot be asked what A said, except upon the special order of the Superior Coart. (c) A is accused before the Court of Session of attempting to murder & Police officer whilst on his trial before B, a Sessions Jadge. B mny bc examined as to what occurred. Note. 1. Note that the privilege of the Judge or Magistrato extends only "to his oron conduct in court as such Judge or Jagistrate or 10 anything tohich come to kus knowledge in court as such Judge or Magistrate." This is a privilego which tho Jadge or Magistrate id question may waive. Empress v. Chidda Khan, I. L. R , 3 AI!, 573. 2 ta England arbitrators and barristers seem to hare a liko privilege. It duca not exist in India 3 Can a Judgo be a witness in case which he is himself trying 7-T) question has not yet been definitely settled Yo Jadge ooght to import into his Cint-'mnqanalinn-1. wwwybuut AULA 4 L uilu He is in WILA Lue aid of aSEC&sors 118 was adversely commented upon by Parlby, J. ia 1v. Donelly, 21 LR Cal, 405 There it wua beld that & sole Judge of law and fact ought not to be allowed to gre ·-A----1--L- 1 SEC 124 ) WITNESSES 93 vidence in a caso which he is trying. It was pointed out in that case that where there is only one Judge the case is entirely in his hands, that he has no one to reg train or check him, and that the party, against whom the evidenco is given cannot nd to contradict isual safeguards repudiated Is jusyunal WSL SOLS U nave a personal knowledge of the facts of the case, ace & 291 of the Cn. Pro Code, 1892. 122. No person who is or has been married, shall be compelled to disclose any communication made to Communications during marriage him during marriago by any person to whom he is or has been married ; nor shall he bo permitted to disclose any such communication, unless the person who made it, or his representative in interest, consonts, except in saits between married persons, or proceedings in which one inarried person is prosccuted for any crime committed against tlo other. Note. 1. The protection afforded by the section applicg to all communications mado during marriage and not only to confidential communications; and it subsists oven though the marriage has been since dissolved, -tho wording of tho section 18 "Las been married » But it doce not cxtend to communications made bcfore marriago. 123. No one shall bo permitted to give any evidenco derivedl from unpublished official records relating to any Evidenco 18 affairs of Stato. affairs of Stato, except with the pormission of the officer at the hcad of the department concerned, wlo shall give or withold such permission as he thinks fit. Note. Afairs of State would mean any matter of a public nature in which the Govern yucut is intcrotca. 124. No public oflicor shall bo compelled to disclose communications made to him in oficial confidenco, Olicial communi. cations. when lo considers that the public interests would suſier by the disclosure. Note. 1. Statements anado by an oflicer beforo a military coart of cngniry embodiel in a report to the Commander-in-Chief aro winmunications in official conftener Dlaclosure cannot bo compelled in such a case. 2. Where according to ths and tho foregoing section, there is no liberis to to ·90 WITXESSES. [sec. 195. 125 No Magistrate or Police officer shall Information as to commission of offen. be compelled to say whence he got any informaces tion as to the commission of any offence; (*and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the Public Revenue. Explanation.-- Revenue officer in this section means any officer employed in or about the business of any branch of the public revende.) Note. 1 - The pritilege may be waired 2-Tho portion within rectanguler brackets has been added by Amending Act XVII of 1896 The Statement of objects and Reasons runs as folloros - The object of this Dill 19 to prevent officers of any department concerned with any branch of the public revenue from being compelled to Whence they got any ormat the casion of any offence. In England not only is it the case that witnesscs may not be compelled to discloge, but they ATO bot even permitted to be asked, the names of those from whom they receive information a to Irauda on the revenue (Puhell on Crimes and Visdemeanoure, Fifth Edition, IL 6-9). The law on the subject to turther stated in Bell's Lures of Lucia as follows "It is a rule of evidence applicable to criminal cases, and the same rate has always been beld W. 169) The Ampuan munications 126. No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's ex- Professional com. press consent, to disclose any communication made to him in the course and for the purposo of his employment as such barrister, pleader, attorney or vakil by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any adrice giren by him to his cliont in the course and for the purpose of such employment. Provided that nothing in this section shall protect from disclosure • Added by Act XTII of 1886 ·WITSENSES EEC 120] 97 (1) Any such communication made in furtherance of any [* illegal] purpose; (2) Any fact observed by any barrister, plcader, attorney or rakıl in the course of lus employment as such ; showing that any crime or fraud has been committed since tlic commencement of his employment. It is immaterial whether the attention of such barrister, [t pleader), attorney or vakil vas or was not directed to such fact by or on behalf of his client. Erplanation.---The obligation stated in this section continues after the employment has ceased. Illustrations (a) A, a client, says to B, an attorney, I have committed forgery, and I wish you to defend me' As the defence of a man known to be guilty is not, a criminal purpose, this communication is protected from disclosure. (6) A, a client, says to B, an attorney, I wish to obtain possession of property by the use of a forged dced on which I request you to sue.' This communication, being made in furthcrance of a criminal purpose, is not protected from disclosure. .(0) A, being charged with embezzlement, retains B, an attoracy, B observcs that an with the sum said e book at tho commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed sinco the commencement of the proceedings, it is not protected from disclosurç. Note. 1. Reason of the rule.-Lord Chancellor Brougham remarled in Greenough 7. Caulell, Bylno and Kecno's Chancery Lep, 103 :-" The foundation of this rulo is not on account of any particular importance wluch the lw attributes to tlo business of legal professors or any particular diaposition to afford them protection. Dut it se out of regud to tho interest of justice, which cannot to uplolden, and to the linretention of stim u hisl nunnat aid of men & inatter alect jiroceedings Hep, 01, the • Sobattuted by Sectiou 10, Act XVIII of 1572. + Added by Section 10, Act XVIII of 1872 13 ·98 WITNESSES [SEC. 120. tected no man would dare to consult a professional advisor with a view to Luis defence, or to the enforcement of his nghts, and no man could safely come into a court either to obtain redress or to defend lumself. 2 1Tho are within the rule.—This section applies to barristers, attorneys, pleaders and rakıls. Sec. 127 ettends the operation of this rule to interpreter's, clerks or scrvants of barristers, pleaders, attorneys or yalals. Under 2.21 of Act II of 1800 whose wording is similar to that of this section, it has been held that this rule docs not apply to muktars The Queen V. Chandra Kant Chakravartı, 1 B.L R, A Crim, 8 In England the role applies in the case of all persons who aro necessary for communication betwcon the chent and the legal adviser. Eren in England an attorney consulted in the character of a fnend and not in his profossional capacity, a medical man, 1 clergyman, a banker, steward, a confidential friend, Lc, arc outbido this rulo. It appears doubtfal if a Roman Catholic priest would be at lberts to disclose the secrets of the confession-most probably not It scotag that when a person is consulted under the erroneous belief that he was an attorney, the person will be prevented from disclosing the communication. When two parties employ a common solicitor, communications mado by one to him in the character of his solicitor are prvileged and cannot be disclosed. 3. What communications within the rule-They must have been professional, 1 ¢, they must have been made in the course of and for the purpose of the barrister's or other person's professional employment. If communications are made to lawyor and he is not afterwards employed, the rule does not apply. It is not neces Mary that the communications must have reference to a matter on hand Matters which can be observed by any body, such as knowledge of handwriting, aro not within the rule. Communications between tho client and the lognl adviser only are within the rule. Tho legal adviser may gire, and may be compelled to give, evidenco of hig communications to the opposite party, altbough an obedience to the instructions of Hrs client The duration of the privilege. The obligatron not to give evidence con- *** - the plant hom I 5 Is the legal adviser prevented from producing documents which he has obtained from the client in the course of and for tho purpose of his employment ? Although there is no distinct provi91071 to that effect, yet it seems he is prevented. 6 No adverso inference can bo drawn from a party not permitting his Jegal adviser to give evidence of professional commanications. 7. Read 8. 23 of this Act in connection with this section. 127. The provisions of section one hundred and twenty-six sball apply to interpreters, and the clerks or Section 126 to apply servants of barristers, pleaders, attorneys and to interpreters, &c. vakils. Note. The extension of the rule to interpreters is specially necessary in a country like India. 128. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed Pririlege not hired by volunteer to liare consented thereby to such disclosure as ingeridence, is mentioned in scction one hundred and twenty- ·WITXISSES SEC 129] 99 sis; and if any party to a sut or proceeding calls any such barrister, (* pleader,) attornog or vakil as a witness, lic shall be deemed to have consented to such disclosure only if lic questions such barrister, pleader, attornog or vakil on matters which, but for such question, he would not be at liberty to disclosc. Note By the old law, Act II of 1835, 21, if a party garo evidence in a bait at his own instance, he was deemol to have consented to his legal adfiser giving cridenco of professional communications made to him But under the Act ho does not do so. Xor does he do so by calling his own legal adviser as witness, unless ho cramines him on the nature of the privileged communications Reads 129 with this section 129. No one shall be compelled to disclose to the Court any confidential communication which las taken Confidential com. munication with le place between him and his legal professional gal advisers. adviser, unless he offers Jumsclf as a witness, in which casc le may bo compelled to disclose any such communicatrons as may appear to the Court necessary to be known in order to explain any evidence which lie has given, but no others. Note. 1 Nature of the section. This section relates to the subject of discorery and is a limitation upon the general provisions of tho Cıv, Pmc. Code, 89 121-130 on Interrogatorics and Discotery. Section 23 of this Act is also a liko limutation.- 2. Discovery.--- Discorcry of documente in tho possession of the opposito party ty. It can now tho Judges aro from the oppomaterial to tho plaintiff's caso and which the defendant has not admitted (2) Tho party's right to put tho opposite party to his oath is limited to a discovcry of such material facte as relate to his case, and does not cxtend to a discovery of tho manner in which the oprosite party's case is to be exclusively established or to the cridence which rclates exclusively to such case N. 1.. 1.3-21 ilulell LUMILUN hy. LU, H, I, 401 WA. 4 The nile under the old law, Act II of 1853, -2, was that the party lost tlo privlomoliy offering himself as witness The rule under this Act is diferent. Addcdl hy Section 10, Act ITIII of 1972 ·to 5 100 WITNESSES, (sec. 130. 130. No witness who is not a party to a suit shall be compoled to produco his titlo-deeds to any property, Production of wit. acss' title-deeds. or any document in virtuc of which he holds any property as plodgeo or mortgagee, or any document, the production of which might tend to criminato him, unless he has agreed in writing to produce them with the person secking the production of such dceds or some person through whom ho claims. Note A witness ould cxpose 3ngland and round that 2 Tho words, "Who is not a party to the suit," are important. 3 Where tho non-production 13 prisileged, tho witness cannot be compelle Answer questions regarding its contents. This is the rule at least in English Law. 4 The witness who objects to produce on any of the grounds mentioned must nevertheless bring the document to Court, and tho Court is to decide on the validity of tho objection Seo g. 162 Cw. Proc Code. Attorney's Lidn-See $s 171 and 221 of the Indian Cont. Act as to the attorney's lien, An nttorney who has snch a lion may refeso production when required to produce by the person against whom bo bag the len Production of doco. 131. No one shall be compelled to produco ments which another documents in luis possession, which any other person, having possossion, would be person would be entitled to refuse to produco entitled to refuse to produce if they wero in lus possession, unleas such lastmentioned person consents to their production. Note. When 1 person justly refusos under this or the preceding section to producer document, le 19 not legally bound to prodoce it, and eccondary ovidenco of its c012- tents cannot bo giren Sce s 65, clausc (a). 132. A witness shall not be excuscd from answoring any question as to any mattor relovant to the matter in Witacsz noterens. issuo in any suit or in any civil or criminal eu front answering ground that proceeding, upon thio ground that thio answer to answer win crimi. such question will criminate, or may tend, directly or indirectly, to criminato such witness, or that it will cxpose, or tend, directly or indircctly, to expose such witness to a penalty or forfciturc of any kind; Provided that no such answer, which a witness shall bo compel. led to girc, shall subject liim to any arrest or Piso. prosccution, or be provcd against him in any on nute.

·SEC 133] WITXESSES. 101 criminal procedug, cxccpt a prosecution for giving falso evidence by such answer. Note. 1. English Lale The role of English Lary on tho point is different; a witness is excuseul from replying to any question, the answer to which would havo a tendency to expose such witness or the husband or wife of such witness to any kind of criminal charge or to any kind of penalty whatsoever. In America the protection is restricted to those questions the answers to which would have a tendency to subject the witness to the punishment of felony. In India the witness can claim no such protection, “ ds to any matter relerant to the matter in istue"--These words are impor. tant When tho question 13 relerant to the matter an issue the Jndge has no option to Ict the witness answer or not. Bat where the question is put in cross cramination and is relevant only in so far as it affects the credibility of the witness, the Jadgo has an option cither to compel an answer or allow the witness to leave the question unanswered &ce B 119, post. 2 4. There is an exception to this section. Witnesses examined by Polico officers are not bound to answer criminating questions put by ench officers Sce sections 161 and 173, Crim Pro. Code of 1832. 5 Penaltics for refusing to gue evidence and for perjury -Seo Indian Penal Code es 179 and 103, Crim. Proc. Code, Schedule V, XXVIII(11)4, Act XIX of 1853 B. 26, C Pro. Code, 83. 169 and 175. 133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal Accomplice. merely because it proceeds upon the uncorroborated testimony of an accomplice. Note. 1. The prardicc of criminal courtr.-Although it is legal to convict on the uncorroborated teatimony of au accused person, it is almost the uniform practico not to do 80; for the accomplice comes into Court with a confessedly bid character and has a distinct motive not to spenk the truth But at the samno time it is not ndvisablo to lay down the rule that the testimony of an accomplice is legally insufi- Cicat for conviction. 2. Rules as to the mode of dealing rich such evidence tchen there is a jury. The Law on this point was fully discussed by a Fo!1 Bench of the Calcutta Tinh Court in Queen v. Elahs Dalsh, s. C., 5 W. R., Crim. Bal, 80; and the following rules wero laid down (1) A conviction upon the uncorroborated evidence of one accomplice or moro than ono a valid in law. -3---IL.:-.1, IL---- Sco nlso The Queen T. Sadhu Bandial, 21 Y. I, Crim. Kal, m. 3. On that points should there be corroboration - The accomplico's cricenco should be corrobornted as to the identity of the accused, kel T. Duchu Nawlm • Ece Arrender.

·102 WITXESSCS. (sec. 133. I LRI Bom, 473. The cvidence must also be corroborated as to the corpus delict (the fact of the commission of the offence) R. Chatur Purosholan, I.LR. 1 Bom., 476. + That testimony constitutes corroboration - Neither the previong statements of the accomplice himself for the confessions of a co-accused can be taken as Bufficient corroboration of the accomplice's evidence. As to tender of pardoa to an accomplice, sec Crim Proc. Code, 69 337–339. Number of witnes. 134. No particular number of witnesses shall, in any case, be required for the proof of any fact. Note. 5 BOS ܘܐ ܕܘܝܙܘܝ 2. Treason.-In English Law and under the old law in India, Act II of 1855, Abing at the person of the sovereiga. 3. Perzury-The old English Law required the path of not less than two AR - L...) 1. Pulau 11 1 1 that of England in this point in another respect also In England, the accused cannot bo convicted on an alternative finding that one of two contradictory statemonta made under oath by the accused must have been known by him to be false. Seo Taylor anil R Jackson, 1 Low CC, 270. In India a person may be convicted of : Crimp, 9. 4. Bastardy and Breach of Promise cases -In English Law, in the former cago the mother's statement requires corroboration, and in the latter tho plaintiff's ovidenco most be corroborated. 6. A court is bound to examine all the witnesses addaced by the parties Jervant Sing.1 Dibi Bng., c. v. Jet Sing-ji Uld Sing-21, 2 M. 1. 1., 42i. But in Ram Dhan Vandal and another 7. Turzballab l'aramani, GB L R., Ap. 10, it was gand, "It has beco repeatedly ruled that unless the object of a party in sum. - ·CHAPTER X.-of the Examination of Witnesses. 135. The order in whichi Fitnesses are produced and cxamined shall be regulated by the law and practice Order of producfor the time being relating to Civil and Criminal Procedure respectively, and, in the absenco of any such law, by the discretion of the Court. Note. tion and examination of witnesses. Penal Code lay down certain penalties for failing to attend or to produce a document after a sumbong to do 80 sco also the provisions of s. 26 of Act XIX of 1853 for damages arising from a witness not attending and giving evidence. Sections 640 and 611 of the Civ. Pro Couc, provide for the exemption of certnia persong from attendance tu & court, and 8 612 of tho Cıv. Proc. Code, as to the protection of witnesses from arrest. 2. Eramination of couinesses ** Osril cases.The evidence of a witness mast be taken orally in open Conrt in the presence and under the personal direction and TL.-- 1 -- --neptions Court Code) ! beforo the trial. (Section 192 of the same Code.) The order of production and eramination of witnesses are governed by ss. 179, 180 and 555 of the Civ. Proc. Code, see B. 191 of the same Codo, See also 69 287–292, 310, 312, 319, 350, 431, 439, 440 of the same Code. 136. When either party proposes to give evidenco of any fact, tho Judge may ask the party proposing to Jodge to decide as to admissibility of give the evidence in what manner the alleged evidence fact, if proved, would bo rclerant; and the Judge sliall admit the evidenco if hio thinks that the fact, if proved, tonla be relevant, and not otherwise. If the fact proposed to be prored is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is giren of the fact first mentioned, unless the party undertakes to giro proof of such fact and the Court is satisfied with suche undertaking, ·101 THE EXAVIXATION OF WITNESSES. [sec. 136. If the relcrancy of one alleged fact depends upon another alleged fact being first proved, the Judgo may in his discretion either permit evidence of the first fact to be given before the second fact is proved, or require evidenco to be given of the second fact before evidence is given of the first fact. Illustrations. (a) It is proposed to prove a statement abont a relevant fact by a person alleged to be dead, which statement is relevant under section thirty-two The fact that the person is dead must be proved by the person proposing to prove the statement before evidencc 19 given of the state. ment. (6). It is proposed to prove by a copy the contents of a document said to be lost. The fact that thic original is lost must be prored by the person proposing to produce the copy before the copy is prodaced. (c) A is accused of receiving stolen property knowing it to laro been stolen, It is proposed to provo that he denied the posscssion of the property. The relevancy of the denial depends on the identity of the property. The Cout may in its discretion either require the property to be indentified before the denial of the possession is proved, or permit the denial of the possession to be proved beforc the property is indentified. (d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C, and D) bich must be shown to cxist before the fact A can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C, or D is proved, or may require proof of B, C, and D before permitting proof of A. 137. Tho examination of a witness by the Examination in cluef. party who calls him shall be called his examination-in-clicf. The cxamination of a witness, subscquent to - Cross-examination. the cross-examination by the party who callcu him, shall be called lis re-examination. 138. Witnesses shall be first cxamined-in- Order of examina- chicf, then (if the adverse party so desires) tions Direction of re. examination. cross-examined, then (if the party calling bim so desires) re-cramined.

·SEC139 ] TIE EXAMINATION OF WITNESSES 105 Tlic cxamination and cross-cxamination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Note 1 The provision that the cioss-examination must be confined to relevant facts must be taken along with the provisions of as 146 and 154-156. A-than-nantinho 1.11nnt chan11 Ian opportunity of observing his demeanour and of determining the just value of his testimony. It is not easy for a witness subjected to this tost to impose on a Court or jury, for, however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which a cross examination may be extended." Alison's Practice of the Criminal Law of Scotland, 546, 547 —"Whero a witness is carefully pat forth; and it frequentis happens that in this way tho most important tostimony in a case 19 extracted from an unwallidwitaers, which only comes with tho more effect to an intelligent jory, because it has tracrged by tho forco of examination in opposition to an obvious desire to conceal." 3. The use of rc-eramination. Explanation of terms used by the witness under cross-examination, his motives in asing those terms, to reconcile apparent inconstencies in his answers under cross-cxamination, &c. 139. A person summoned to produce a docu- Cross-cxamination of person called to ment does not become witness by tho mero produce a documcu. fact that ho produces it, and cannot be crosscxamined unless and until lic is called as a witness. 14 ·106 TIE ERIYATION OF 11TXESSES. (8EC 139. Note By scctton 161 of the Cir Proc Code, a nitness summoacd merely to produce a document may cause the document to be produced without limself attending. Witnesses 140. Witnesses to character may be cross- Character examined and re-cxamined. to tuat be askeit 141. Any question suggesting the answer Leading question which the person putting it wishes or cxpects to receive, is called a lcading question. 142 Leading questions must not, if object- When they must ed to by the adverse party, be asked in an examination-in-chief, or in a ro-examination, cxcept with the permission of the Court. The Court shall permit leading questions as to matters wluch aro introductory or undisputed, or which hare, in its opinion, beco already sufficiently proved. Note The Court may under s 151 allow Icading qucstions to be put in the cxamina. tron 10-chief to 143 Leading questions may be asked in When they may be ashed cross-examination, Note. Thc liberts given by this section must not bo abuscd It dorg not mean tunt the party can put into a witness' moath the very words which ho wishes to get back 144. Any witness may be asked, whilst ander csamination, Evidenco ag whether any contract, grant or other disposimatters in writing tion of property, as to which he is giving cvi. dence, tras not contained in a document, and if ho says that it was, or if he is about to make any statement as to the contonts of any docament, which, in the opinion of the Court, ought to bo produced, tho adverso party may object to such cvidonco being giron until such document is produced, or until facts linvo been prorce which entitle tho party who called tho witness to giro secondary cridence of it. Eeplanation.— witness may çivo oral cridcnco of statements mado by other persons abont the contents of documents if such state. tucnts are in themsclvcs rclejant facts.

·SEC 110] TUE ETAMISATIOY or 1ITCSSES 107 Mustration The question is, whether A assaulted B C dcposes that lie heard A say to D–B wrote a letter accusing mc of theft, and I will be revenged on him.' This statement is relevant, as slowing A's motive for the assault, and cridence may be giren of it, though no other evidence is giren about the letter Note Is it the daty of the Court ta objcct to secondary cridence until facts have been proped entithing the party to give secondary evidence? Or 19 at the duty of tho opposite party alone Under the Crim Proc. Code, the Court is bound to object sco & 230 of the Code In tho Cor Proc Code there is no such provision But ever Jiere the Court appears to have a hko duty Couzidor the language of as 50, 61, 63, GG and 163 of this Act. 145. A witness may be cross-cxamined as to provious statements made by him in writing or reduced into Cross-examination as to previous state. writing and relevant to matters in question ments 10 Writing without such writing being shown to him, or being proved, but if it is intended to contradıct him by tho writing, his attention must, before tho writing can bo pioved, bo called to those parts of it which are to be uscd for the purpose of contradicting him. Note 1 This 13 a limitation on the previous sertion; because although the matter may have been reduced to the form of a document, questions in cross-examination regarding it are allowed it the matter were relevant to the matters in question. 2 The rule in this section 18 exactly the same as e 24 of tho Common Law Procedure Act, 163+ (17 and 18 Vic, cap, 128 ) But the English rule applica in theory at least only to civil cases; whule the rule in this section applies both to civil and criminal c1609 The old English rulo excladod Buch questions unless the document was already in evidence. This rulo excluded one of the best ecsta by which the memory and integrity of a witness could be tested. The Act 19 slept as to the question whether, when the document has beca lost or destroyed, a copy can be used instead of the original. The rule would in its catirety probably apply to previous rerbal statements also 146. When a witness is cross-examined, lio Questions lanfol in cross-examination may, in addition to the questions herein-beforo referred to be asked any questions which teni (1) to test his veracity; (?) to discorer ho he is, and what is his position in lifc; or (3) to shako his crcdit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to esposa liit to a penalty or forfeiture, 3 4 ·108 THE EXAMINATION OF WITNESSES Isto 146. Note. 1. "In addition to the questions herein before referred to must be read along with g. 139 in India a party may with the permission of the Court discredit his own watness on general grounds Court to decide answer and may, 147. If any such question relates to a matter Then witness to be compelled to answer relevant to the suit or proceeding, the provisions of section one hundred and thirty-ttro shall apply thereto 148 If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it when question shall affects the credit of the sitness by injuring his be asked and when character, the Court shall decide whether or witness compelled to not the witness shall be compelled to answer it, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations : (1) Such questions are proper if they aro of such a naturo that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which lie testifics. (3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness' character and the importance of his evidence. (4) The Court may, if it sees fit, draw, from the witness' refasal to answer, the inference that the answer if given would do unfarourable. Note 1. In England in cases of indecent suault or attempt ot rare, the prosecutris should not be asked whether she had previously connection with any other man. Ilot questons as to her having previously had connection with the prisoner or as to Ler being a common prostitute tass le asked. The same is tbe role here.

·SEC 150 ] TIE EXAMINATION OF WITYESS C3 109 2. As to the rule in clause (*), sce $ 114 (1) 3 Is a witness answering an irrelevant question under the compulsion of the Court protected under 3 132 ? Strictly speaking not. But in reason he should be 80 protected 149 No such question as is referred to in Question cot to be agked without reason. section one hundred and forty-eight ought to lic able grounds. asked, unless tho person asking it has reasonable grounds for thinking that the imputation which it conveys is wellfounded. Illustrations. (a) A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This is a reasonable ground for asking the witness whether he is a dacoit. (b) A pleader is informed by a person in Court that an important witness is a dacoit. The informant on being questioned by the pleader gires satisfactory reasons for his statement. This is a reasonable ground for asking the witness whetherhe is a dacoit. (c) A witness, of whom nothing whatever is known, is asked at random whether he is a dacoit. There are here no reasonable grounds for the question. (d) A witness, of whom nothing whatever is known, being ques. tioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dacoit. 4 Note. The reasonable grounds referred to may be very slight. 150. If the Court is of opinion that any such question was asked witout reasonable grounds, it may, if it Procedure of Coprt in case of question was asked by any barrister, pleader, vakil or being asked without attorney, report the circumstances of the case reasonable grounds to the High Court or other authority to which such barrister, pleader, rakil or attorney is subject in the exercise of his profession. Note. "The object of thego sections is to lay dono, in the most distinct manner, tbe duty of council of s!! grades in examining witnesses with a view to shaking "mplicit atatement of the not to be asked, w that which in England he sections, as far ag they will be admitted Mr. Syari's Speecb. See the second proviso to section 103, post ·110 TIC EXAMINATION OF WITNESSES. [src 151. 151. The Court way forbid any questions or inqunies wluch it regards as indcccnt or scandalous, althouglı Todccent and scante daloas questions such questions or inquiries may have some bcaring on tho questions before the Court, unless they relate to facts in issue, or to matters necessary to be kuown in order to determine whether or not the facts in issuo existed. 152. The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, Questions intended to gult or annoy though proper in itself, appears to the Court needlessly offensive in forin. 153. When a witness has been asked and has answered any Esclasion of cyl question which is relevant to the inquiry only in derco to contradict so far as it tends to shake his credit by injuring answers to questions teattag veracity his character, no evidence shall be given to contradict him; but if he answers falsely, le may afterwards be charged with giving false evidence. Exception 1.-If a witness is asked whether ho has been previously convicted of any crime, and denics it, eridence may be given of his previous conviction. Exception 2.--If a witness 19 asked any question tonding to impcach his impartiality, and answers it by denying the facts suge gested, he may be contradicted. Illustrations. (a) A claim against an underwriter is resisted on the ground or fraad Tho claimant is asked whether, in a former transaction, he had not made it frandalent claim. Ho denics it. Evidence is offered to show that he did make such a claim. Tho evidence is inadmissible. (6) Awitnces is asked whether lie was not dismissed from a situation for dishonests, He denies it. Eridenco is offcred to show that loc was dimissed for dishoncsts. The evidence is not admissible. (c) A allirms that on a certain day lo sau B at Lahore. A is asked whether he himsell was not ou that day at Calcutta. Ile dcnics it.

·Ser 1331 TIIE SAXIYATION OF WITXERTES. 2 Esidence ss olicred to slow that I was on that day at Calcutta. The eradence is admissible, pot as contradicting A on a fact which atteste fue credit, bat as contradicting the alleged fact that B was scen on the day in question in Lahore. In each of these eases the witness might, if his denial was falsc, lve charged with grring false eridence (d) A 25 asked whether his family has not had a blood feud with the family of I, against whom he gives ovidence. He denies at He may be contradicted on the ground that the ques' tian tends to impeach his impartiality Note. Tun general rule is that a pincss' answers to relevant questions may lo rontradicted while his ensuers to relevant questions ought not to be contrado tod. The reasun is that the trial would otherwise be unnecesario prolouged. Esception 1 is takch from the 23th section of the Common Law Procedaro Act, 1854 Exception : 19 takes from the julgarcot vé the Exchequer Court in Adorney-ficneral Halchcoch, 1 Es , 91 Read illastrations (n) and (c) to . 141, and section 15. 154. The Court may in its discretion permit the person who calls a witness to put any questions to him which Questions by party to lng own witness might be put in cross-cxamination by the adverso party. Note. Tho Cuurt all have to excrciar this discretion when a witness unexpectedly turns out to be hostric to the party who calls hia or ix manifestly interested for the other party or is unwilling to give en lence or stands in a situation which patrrally znake bom adreso do the party who desires bis testimony. 155. The credit of a witness way lo impeached in the following ways by tho atverse party, or, with the Impeaching credit consent of the Court, by the party who calls 3 4 uf witness liimi (1) By the evidence of persons who testify that they, from their knowledge of the Fitness, bclicve him to bo unworthy of crcdit; ) By proof that tho witness has been bribed or has (accortecl*) the offer of a bribe, or has received any other corrupt iaducetocnt to give his ovidenco; (0) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicteel; + Aduce hy Seeson 11 of..XII of ISTA ·112 THE EXAMINATION OF WITXESSES. [sec 155. (4) When a man is prosecuted for rapo or an attempt to ravish, it may be shown that the prosccutrix was of generally immoral character. Explanation.-A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give rezsons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false endence. Nlustrations. (a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible. (b) A is indicted for the murder of B. O says that B, when dying, declared that A liad given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that tho wound was not given by A or in his preschicc. The ovidence is admissible, Note. 1. Ia England the right of a party to contradict a witnesa called by himself was long a disputed point, the right has been established by the Common Law Procedure Act, 1834. 2. The credit of a witness may be impeached in another way also, ris, by disproof of facts deposed to by the witness; sco8. 3. 3. It is not necessary as in English Law to lay a fonndation for impeaching tho credit of the witness by firat putting the very same questions to the witness. 4 The offer of a bribe to the witness is to proof of tho untrustworthiness of the witness Acceptance of the bribe must be proved. Attorney-General . Ilitch. cock., I Ex., 91. 5. Prerious statements liable to contradiction. These are statements as to relevant facts or of the nature mentioned in the exceptions to s. 163 6 11 is very often inarisable to cross-examine an advcrso witness as to tho rowns of his pronouncing a faroorallo witness worthless. 156. When a witness whom it is intended to corrobornto gives evidence of any relevant fact, lo may bo Qacations tending questioned as to any other circurustances which doneo of relevant he observed at or near to the timo or placo at fact admissible. which such relevant fact occurred, if the Court ·BIC. 1393 7JL EX3N.STIOX OF ITXESSES 113 19 of opinion that such circumstances, if proved, would corroborato the testimony of tho witness as to the relerant fact wluch ho tostifies. Illustration i, an accomplice, gives an account of a robbery in which he took part De describes various incidents unconnected with the robbery, which occurred on his way to and from the place where it was committed Independent evidence of these facts may be given in order to corroborate us evidence as to the robbery itself Note Twa section makes admissible essence which, wsthout being cxactly relevant 10 the reuso that it tends to prove relevant facts, 23 stif bughly useful in corroborating a trvo pa and a esposing a false oue 157. In order to corroborate the testimony of a witness, any former stateicut mado by such witness relating Former statements ot watea muy bo to tho samo fact, at or abont the time when tho prored to corroborato fact took place, or before any authority legally latter excircoay 13 to sathe fact. compctant to investigate the fact, may be prov. ed. Note 1. To English rule upon the subject 28 that although contrary statements made by the witness On sose former occasion without being under osti are nimia Bible for the purpose of showing tbo ustruthfulures of the witnesy, still, auch statements when con ustent with the witness' evalorca caasot la gured, bluri on Evidence, pago 258 The statement to be ritmisyblo must have been unde before any authority legally competent to Livestigate the fact or at or about the times won the fact took place. 158. Whenever any statement, relevant under section thirtytwo or thirty-threo, iz prored, all matters may What matters may be prored in connec bo proved, either in order to contradict or to Lion >h prore corroliorato it, or in order to impeack or constatemeut Triceant under Sectiou 32 or frau tho credit of the person by tlom it was made, which might baro been prored if that person lad been called as a vitucss and had denicd upon crosscanination the truth of the matter suggested. 159. A witness day, whilo ander cxamination, refresh his memory by referring to any writing mado by Refreshing rimsclf at the time of the transaction concernmory iug thick ho is questioned), or 80 soon after- 15 IC- ·114 TIC TYAJIIYATION OF WITNESSES (sec. 159. wards that the Court considers it likely that the transaction was at that time fresh in his memory. Tho witness may also refer to any such writing made by any other person, and read by the witness within the timo aforesaid, af when ho read it he know it to be correct. Whenover a witness may refresh his memory by referenco to any document, lie may, with the permission of Tyhen witness may nasc copy of document the Court, refer to a copy of such document: to refresh memory. Provided the Court be satisfied that thero is sufficient reason for the non-production of tho criginal. An expert may refresh his memory by referenco to pro• fessional trcatiscs. Note 1. Refreshing memory by reference to documents - In English Law it in objectionable to refer to a document prepared after a controversy had arisen. It is not TOWOSCr noccssary that the document itaclf Blould admissible. 2. The document must haro been prepared at the time thint tho fact took place or eo shortly after that tho facts acro frosh in his memory at the timo ho mado the docgment 3. When reference is madlo to a document made by another, the witness who is allowed to rcier must have inspected the document nt tuma when tho facts wero freel in he memory and lic must bare found it correct. nito rule on the point. It not proved to bo a correct of the facts narrated 139. 160. A witness may also testify to facts mentioned in any such document as is mentioned in scction ouo Testimony to facts kundred and fifty-ninc, nlthough lio las no mentioned in Section specific recollection of tho facts themscires, if ho is sure that the facts were correctly recorded in the document. Illustration, A book-keeper may testify to facts recorded by him in books rc. gularly kept in the coursc of business, if he knows that thic books scro correctly Lopt, although he has forgotten the particular transactions cntcrcd. Note. It is doultful if tlic phrazo "ang such doc LeCAT as is rcfcrred to in c. 159" include fisica il documçuts alo.

·FV 103) TSC ET1373111ON OF ISTXESSES 161 Avy writing referred to under the provisions of the two last preceding sections must bo producci and Right of murers shown to tlic adverse party, If he requircs it; party as to trittag used to retresh no. such party may, if be pleascs, cross-examino mory. the witness thercupon. Note: The English law allows the opposito party to cross-cramine only on the pints referred to otherwise be mast maka the document bis own cynlcacc. No such restriction appears in the Act 162 A wtross summoned to produce a document shall,' if it is in luis possession or power, bring it to Prodection of do cuments Court, potwithstanding any objection which there may be to its production or to its numissibility. The validity of any such objection shall be decidců on by the Court. The Court, if it sccs fit, may inspect the document, unless it rofers to matters of State, or tako other evidence to cashlo it to deterraine on its admissibility. If for such a purpose it is acccssary to cause any document to lo translated, the Court may, if it thinks fit, Translation of do. Cu tnents, direct the translator to keep tho contents secreto unless the documont is to be given in cvidenco: and if the interpreter disobeys such direction, ko skall vo held to lave committed an ollence under section one hundred and sixtysix of tho Iodian Penal Colo. Noce, 2. A sement is kid to be in tho power of a person who copll effect its protection either personlly or by incans of another. Dut a qulic documcat « »ot s in the power of a clerk chat ho can orca bring af to Court utthont lo permission of the load of the office. 3 The Tuber mat -- 163. When a party calls for a locument which he has giren tho other party notice to produce, and such Giving as evidence of Bucument calal document is produced and inspected toys the for anil goduce on party calling for its production, lic is lunud to giro it as cridence, if the party piruducing it renuires liia to do so. notice ·116 THE CRAVITITION OF WITNESSFS. (s£c. 163. Note 164. When a party refuses to produce a document thích ho has had notice to produce, le cannot afterwards Giving as cvidence of document, prouse the document as evidenco without the condaction of which was sent of tho other party or the order of tho refused on notice Court. Illustration, A sues B on an agreement, and gives B notice to produce it At the trial, A calls for the document and B refuses to produce it. A gires secondary cvidence of its contents, B sceks to produce tho document itself to contradict tho secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so. Note. UY examinatiou, or to produce and provo it as part of Jus in case."-TAYLOL, $ 1615. 165. The Judge may, in order to discover or to obtain proper proof of relovant facts, ask any question Judgo's power to lic plcascs, in any form, at any time, of any put questions order production witness, or of the parties, about any fact rolo vant or irrelevant, and may order the production of any document or thing: and neither the parties nor their agents sliall bo entitled to inako any objection to any such question or order, nor, withont the lease of the Court, to crosscxamino any witness upon any answer gircu in reply to any such question. Provided that tho jadgment must be based upon facts declarcu by this Act to bo relevant, and daly provce. Provided also that this scction sliall riot authorize nny Juugo to compel any fitness to answer any question, or to proluce any document, which sach witness would bo cntitled to rcfase to answer or produco under sections onc hondred and twenty-one to one hundred and thirty-one, both inclusire, if the qucetion wcro asked or the document icre called for by the adverse party; nor shall ·SFC ICG] THE EXAMINATION OF FITNESSES 117 the Judge ask any question which at would be improper fur any other person to ask under sections one hundred and forty-cight or one hundred and forty-nine; nor shall ho dispenso with primary cvidence of any document, except in the cases herein-before cxcepted. Note. The reason of the role in the Section --Sce Introduction in Stephen's Intro daction to the Evidence Act, he remarks "Whenn man has to inquire into facto of which I ---- 1 Willing wuch was not relevant within the meaning of the Evidenco Act. A Judge or Blagistrate in Indian fun ---- perform duties which in England woul ile has to sift out the truth" for himsel 2. Read 8g 203, 299 and 510 of the Crim Proc. Codo and ss 120 and 171 of the Cir. I'roc. Code 3. In India the Judge is hund ta miant . --... parties do not object. The Q But relevant fact is allow not objected, it will not moat The reason for the protection from liability in cross-cxamination is given in F. v. Shakaram Mukund), 11 B. 1. C Rep., p. 100. 166. In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, troner of jury or tlırough or by lcavo of the Judgo, which the put questions. Judgo limself miglit put and which he considers proper. 28essors ·appear to CHAPTER XI-Of Improper Admission and Rejection of Evidence. 167. The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal No new trial for rejection or impro- of any decision in any case, if it shall por reception of evie the Court, beforo which such objection is miscd, that, independently of the evidence objected to and admitted, there was sollicient evidence to justify the decision, or that, if the rejected evidence had been receirod, it ought not to lave varied tho decision. dence. Note. This ralo is sabstantially But there is a differenco bet weer Indian Law. In England where mission and rejection of cridenec the verdict of the jury. In India whore the Judge in tho solo jaugo of Jay and fact, it will to always open for the Appellate Court to say that the improper rojection נו st w the duty of their Loriskıp, who are judges of fucl, in such a case as thiu, to consider cohether, throwing aside the endence wokich ought not to have been admitted, there shll remains suficient eridence to support the decycc." jected, it must set aside the conviction Tho rulo in this section is applicablo to criminal as well as ciril cases. R. v. Ilarilole Chandar Ghost, I. L. R., I Cal., 207. 2. Whero cvidenco had been improperly admittel in the court of first instance, and tho remaining cridenco is insuficient to support tho judgment, the party in whoso faroar the court of first instance, pronounced judgment is not entitled to langat 11.1.1 3. Whero relevant fact is improperly allowed to be prored and the promito party doce pot then and thirro object, bo will not be allowed to do ro in appeal: tlırreforo although the proovlaro of the court of first fastance is crroneous, the party will not get a new that on that account. lalj Singh P. Bayel Akram 8c and others, 3) L. 1., 233, Mark Addi Cryst 5. 8. 1. Hlu Pamia Chelly, 3 B L., 170. 4. Friilenen cannot lo fail to be impmporis aulmittel merly locoer it lius Leen admitted Al An impugnt sta of tho prorelings, whickt imileral thin party das Leen prejud then by. Goghain Tulu lan . Puja Brckmanı Dollab, 13 ·SEC 167] 131FRONCE ADIISSION AND RLJECTION OF EVIDENCE. 119 MI A., 83 But the admission of additional cviilence in appcal without recording reasons for admission in woordance with 8. 603 of the Code of Civil Proceduro is improper admission of cridencc. Maharaja Jazadındra Danwart Colind Bahadur . Bhabatarını Dasi, 5 B.L R, Ap.51 5. Where there is improper rejection of cridenco affecting the decision, the proper course is not to order a new trial but to proceed in accordanco with the provisions of 8 569 of the Code of Cinl Proceduro, quoted below. "Tho parties to an appeal shall not be entetted to prdaco additional evidence, whether oral or documentary, in the Appollate Court. Bat if (a) the Court against whose doerce the appeal is madefrefusca to admit epidence which ought to have been admitted, or (the Appellate Court requires any document to be produccil for any wilaces to be examin. od to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow each evidence la bo produced, or document to be recircd, or witness to bo examined, Whenever additional endence is admitted by an Appellate Court, the Court shall record on its proceedings the reason for stach admission," 6 The fact that witnesses have been discrcdited by the lower court is no ground for apreal unless it is manifestly clear from the probabiuties attached to cortain circumstances in the case that the lower court was wrong. Musadce Mohamed Casum Sherazec v. Mirsa Ally Mohamed Shostry, 6. 11. I. A, 27. 7. Read also Scctions 423 and 537 of the Codo of Criminal Procedure. 1 FINIS ·SCHEDULE Namber and year Titlo. Extent of repcal. Stat 26 Geo III. For the further regulation of the Section thirty-eight so far ag c 67 trial of persons accused of certaja it rclates to Courts of Jugoffences committed in the East ticc in tho East Indics. Indics; for repcaling so much of an Act, made in the twenty-fourth year of the reign of his present Dlajesty (intituled, An Act for the better regalation and manage. ment of tho affairs of the East India Company, and of the Bri tiel possessione in Indo, and for catablislung a Court of Jadıcature for the moro speedy and effectua) trial of persons accused of offen. cos committed in tho East Indics), as roquires the servants of the East India Company to deliver inventorics to their estatcs and cffccta, for rendering the laws moro cffoctual against persons nnlawfully resorting to thio East Indies; and for tho moro 0237 proof in certain coace, of deeds and writings oxecuted in Grcat Britain or India. Stat 14 & 15 To amend the Law of Evidence Vic c 09. Section cloron and so much of section ninctecn ag rcls. tcs to Britigh Indin. Act. XT of 1932 To atacnd the Law of Lfidence So much as hos pot been heretoforo repealod, saring sec. tívn 12. Act. XIX. of 1833. Act II.of 1835. To atend the Law of Evidence in Section ninctcon. the Civil Courts of the East India Company in the Bengal I'rcaidency. For the farther improvement of so much as ling not been herethe Law ol Evidence. tofore repealcu. For simplifying the Proccitaro of Section two hundred and tho Courts of Criminal Judicatur thirty-setch. not catablished by Koral Charter. Act. XXV. of 1901, Art I of ISGS The General Clatiges Act, 1669 Sections acrcn and sight.

·THE INDIAN EVIDENCE BILL. Speech of the Hon'ble On Streiles on presenting the report of the Select Committee on the Bill to define and amend the Law of Evidence. (31st March 1871.) "I FEEL that I owe an apology to your Lordsliip and the Council for requesting their attention to a second speech upon a perely legal subject after the one which I delivered a week ago upon the Limitation Act. On this occasion, however, I haro to explain the position of a measure perhaps as important as any that has been passed of lato years by the Indian legislataro, inagnuch as if it becomes law, it will affect the daily administration of both civil and criminal procedure throughout the whole country. Morcover, the subject matter to which the Bill refers is one of dccp and wile general interest, for a Law of Erxlence properly constructed would be nothiog less than an application of tho practical experience acquired in Courts of 12w to the problem of inquiring into the truth as to controverted questions of fact, however imperfectly it may have been attained. " This is the object which has been kept in view in framing the Bul which tho Committco arrond to their report, and which I am now to describe in a general way to your Lordslip and tho Council "I will state, in the first place, the history of the picasure down to the present time. So far brck as tho year 1868, tho India Law Commissioners drew a Draft Eridenco Act, which was sent ont to tlus country, and introduced and referred to a Select Committco by my friend and predecessor Mr. Maino. The Bill was circulated for opinion to tho Local Goverements, and was pronounced by erery legal authority to which it was submitted to be unsuitable to tho wants of this country. In this view the Committee coacur for reasons which I need not state in detail on tho present occasion, as they are fully stated in the report which I present today. I may observo in general, hororer, that the principal reasons were that tho Bult was BOL Bulicientis clementary; that it was in Eercral respects incomplete, and that, if it becamo Law, it would not supersedo the necessity under bich judicial ofrers in this country aro at present placed of acquainting them seires by tieang of English hand looks with the English law upon thus subject. Tho Commissioners' draft, indeed, would hantly lo intelligible to a person who did not enter upon the stady u! it with a consideriblo knowledge of the English Law, Under theus cirtnstances A new draft was frmal, which we how proposo to print and circolate, and on which I hope to receite the op.1073 u! the Local Gorerupeals and ligh Cuilfts in 1kw L.

·I! IT, STOPICS' STCico, course of the summer, sny, by next September, 80 that their criticisms may be dehberately weighed, and the measure may be finally disposed of by this time next year. " The report of the Committee explains very fully the scheme of the Bill, which, of CONTEC, 19 of considerable, though not, I hope, unwieldy, length, and criters fully into the reasons which have led ng to adopt its leading provisions I will not weary the Council by going into all these questions on the present occasion. I will confino myself to swing that I trust that those who will have to criticise the Bild »al begin by studying tho report, which has been drawn up with great care, and which, as well as the Bill atselt, forms a connected and systematic whole The general object kept in view in framtag the Bill has been to prodace something from which a student might derive a clear, comprehensive and distinct knowledge of the subject, without unnecessary labour, but not, of course, without that degree of careful and sustaincal attention which is nocessary in order to master nay important and intricate matter. It is by thug standard that the Committee in general, and I in particular as the menuber in charge of the Bin, desire that it may be tried. "With this reference to the Bill and tho Report of the Committee, I proceed to discuss the general quastions connected with the subject, and to mention a few of the leading features of the measure. 1 suppose that I may assume as generally admitted the necessity which exists for legislation on the subject of evidence in Bntish India. It would be exccodingly vifficult to suy precisely what, at tlo prescut inoment, tho lww upon the subject certainly 19 To some extent--t us far from being clear to what extent and in somo parts of the country--though questions might bo mised as to the particular parts of the country-tle English Law of Evidence arpcars to be in force in Bratisla Indul, Whatever m.ng bo the theory, it both is and will continue to be so in practico, for if the English Lisy of Evidenco has not been introduced into this conutry, English lawyers and quasi lawyers hare, and they have been directed to decido nccording to the law of 1990ice, cquity, and gooil conscicace Practically speaking, theso attractivo words mean httle more than an ireperfect understaniling of imper. fect collections of not very rccent editions of English test-books. It is difficult to amigino anything much less satisfactory than auch a state of the law as thi: A good deal may bo Bud for an elaborato legal system, well understood and strictly administerra A good deal miay lo said for uraided mother wit and natural pirowd. ne**but a hall and hall syatem, in which a vast Wwly of hall-unioratool 114, totally destitute of arrangement and of uncertain outhonty, maintains a dead Vivo existence, is a state of things which it is by no means easy to praiso A egisto one. It woull coast of no rulo, to this effect-.lll rules of crilence are liereby abolish. eel." I believe that the opinion thos rigorously expressed is really held by a Jarin number of persons who would not arow it mo pilanly. There is, in aliort, in the day World, including in the expression the majority of Indian citilany, an impnusion that raler of crideace any technicalizing invested by lawyen prioripally for what Feotham called fee-gathering purposes, end of no real vslac sa the Investigation of truth. I cannot wmit that this impression is is any drgtro corret. I Lelicto that rules of cridence art of very great ralzo la all laquinis info matter of fact, ·ur STEPHEN'S SPEFCII 111 and in particolar in 1nquiries for judicial purposes, and that it is practically impossible to investigato difficult subjects without regud to them " It is worth while to illustrate this point a little, because the necessity for rules of endence rests upon it; bnt strong proof of it is to be found in the fact that in all ages and conntries there have been rules of evideace In rude times and amongst primitive people, the task of arriving at the truth as to matters of fact wag regarded as eo hopelesa and difficult, that rude arbitrary substitutes for any sort of rational procedure vero provided in the shape of ordeals and judicial combats. Whero people began to obtain glimpses of the true methods of investigation, they scom to hare considered as almost supernatural skill wlint in our days wonld fall within the scope of average police officers or attorney's clerks. The delighted wonder which was displayed by the jews, according to the apocryphal story of Susannah and tho Elders, nt what a legal friend of mine used to call that very feeble cross-examination of Daniel's about the trees,' 13 a good instance of this. At a later period, arbitrary rules of evidence began to be formed Such a fact must be proved by two eyewitnes&cs, such another by four, sach another by seven To say nothing of European systema, in Wuch such rules wero in force, the Iledáya is full of them. These rules vcro nerer introdaced in their full force into England, but the system which was adopted, or rather which grew up by degrees, was of a very mixed and exceedingly singular character Part of it consisted of rules declaring largo classes of witnesses to be incompetent Part was intinately connected with the English system of special pleading, which was so contrived as to define with extremo procision the facts upon which the partics differed, or were, as the phrase gocs, at issno. Part were the result of tho practical erperienco of tho Courts, and these were by far the most valuable portion, in my opinion, of the English Law of Evidence Jost of tlic other ralcs have indeed been cut away by legislation, and the rules which still remain may fairly bo taken to bo the nett result of English judicial etpericnco ia modorn times. Ia tlo most general terms, these ruleg pre- 1, that cridence must be confined to the issue; 2. that herrsay is no evidenco, 3. that the best cvidence must be given; 4. rales as to confessions and admissions; 5 rules as to documentary eridenre. "Ilgre two general remarks to make apon them The first is that they aro sound in substanco and cminently useful in practice, and that when properly understood, they are calculated to attori invaluable assistanco to all who have to take part in the administration of justice. "Thosocond is that I beliers that no body of rules upon any important suljret wero crer expressed so loosels, in such an intricate manner, or at auch intolerablo length. " It is necessary to prove tho first of these propositions, in orier to justify tho recommendation of the Committed that the sabstanco of the rules in question shoul] 1o introduced in the form of express 174 into this coantry. It is paccsary to proto tho second proposition, in order to justify the attempt made in the Bill to redaco tho rule to order and system "First, then, as to the proposition that tho roles in question are ambstantially Found, and do far moro gomul than harm, even in their present confused condition. The proof of this is, I think, to be found in a comparison between the credins of English Court of Justico anl those of evuntries which bare do tlh mics, Bart ·15 95 STEILY SrCU. between tlic proceedings of English Courts 17 which thcsc rules arc, and thosn in which they aro not, unclerstood and acted upon. As a preliminary remark, I think I ought to observe that the knowledge of these zules possessed by English lawyers is derived far more from the daily practice in the Courts than from theoretical studs Dany English lawyers know by hibit, alınost instinctively, whether this or that (to use the common phraso) is or is pot evidence, although they live hilly given the theory of the matter a thought Practice, therefore, nyd not thicory, affords tho truo test of tho value of these rules. In fact, the clamsy, intricate, ambiguous, and in many instances absurd, theory by which the rules of coidenco arc connected together cime after the eminently sagacious practice which they wero intended to justify and esplain. What is the practical effoct of theso rulcaº I may perhaps bo permitted to answer this by referring to a book which I poblished in 1503 on tho criminal laws of England, and which contains, nmongst other things, an analysis of several celebrated trials, English and French. One object of that analysis was to contrast the effect of the presence and absenco of rules of evidenco, and I think that any ono who would take the trouble to compare thoso trials together carefully would agree with mo in the conclusion that the practical effect of the English rules of cridonce in those cascs was to shorten the firoccojings enormously, and at the same time to consolidate and strengthen them, keeping out nothing that a reasonable person would have wished to have before him as materials for his judgment Tho French system, on tho other hand, which dispensos trith all rules of crudence, got, at lost in tlioso cases, no other result from tho want of them thaa flooils of irrelevant gossip and collateral questions enough to confuso oud bewilder tho mtrongcat hend Again, compare tho proceedings of an ordinary Court of criminal juatico with the proceedings of a court-martial, in which the rule of ori. denco oro far 1c3g #trictly enforced and less clearly understood An orilinary criminal Court never gets rery far from tho point, but a court-martint continually sanders into gaesclans fur remota from those which it was nssembled to try. Notlung, for instance, is more common than to see the prosecutor chanjo placca, 119 it were, with the prisoner, or to finil collateral isgyes pursued till tho Court finde atsoll engaged in determining, not whether & was guilty of a military offence, but whether Z told a falsehood on some perfectly irrelevant subyret. In a caso which Incll recollect, I testified nung A B being cross-cxamined to his credit state! a fact not otherwise relevant to tho enquiry. Z denied the fact which Badirmoil, on minulo further statements which wero contradicted luy intromediato letters of the niphrt. Nojudian can possibly un especteil, by tho nero light of nature, to know How to at lamt to the coquiries in wbich lie is engaged; yet if he does not, an 'incalcatublo waste of time and energy, and a great weakening of the authority of his Court, i, garo to follur. Actire and zalous arrortes, who, hare no rules of erit ner torretrain theit zcil, woull hiso it in thrir mirer to prevert the adminis. tralun of justing to the basest purposes, and to indict immense injary on crery 012499 connected with it, directly or remantels that might, and often woglu, in vuri lande, made the crense for terrioz open old quirrels and reviring questions Laid at rest, and giving fresh animea to scanlale long sinco crplule); and the main question would fregendly buy lost night of in a clood of imating and uscles collateral {sary. I may be escused for referring to my On csenenco at iho Bar in illar. tration of this. Appeals against order of attilation und Incariably to proter an amount of prerjory and connter perjury which I should think it wonist in diluculo tn cinIn any country, fa certain punten be enantry, it was a point of boinar fu ttc fricais of the patatire failer and of this mother, repretirely, to Foto ·ME STEPHEN'S SPECCO $=310n to swear for him, or her,' as they used to say. No one who did not take part 18 euch cases could imagine the strange ramifications of falsehood and contradictron into which a hotly.contested case of this kind would sprcad, or the number of imputations thrown on the honesty and chastity of the different witnesses, male and female If it had not been for the rules of evidence of the reputations of half the population of the village would have been tom in picces. Tho rules of evidenco kept matters to a point, and so minimized the evil, but the partics, to the witnesses, and the attorneys, all appeared to me to be, one more anxions than another, to fight the matter out til the very last rage of character had been stapped off the back of every man, woman, and child, whose namo wag 12 any way brought into the discussion The French Courts display this evil in an aggravated form. In the Work to which I have already referred will be found an account of the trial of a monk named Leotade for murder IE disposed of under the English rules of ovidence, it could hardly have taken more than a day or two at the most. In the French Court, it lasted for, I think, about three wecks, and branched out into all sorts of subjects Ono witness, in particular, was discovered to have seduced a girl seven years before, and letters from her to him wero read to throw light on his character. He naturally wished to give his own account of the transactions, but was stopped on the ground that a line mast be drawn somewhere, and that the Court chose to draw it between the point at which an irrelevant slur had been thrown on his character and the point at which had been permitted to do so, he might have given an equally irrelevant explanation. " It is not, however, merely for the purpose of confining judicial proceedings within reasonable limits that rules of evidence are useful They are also of preeminent importance for the purpose of protocting and garding tho judge in the discharge of his daty. There is a sense in which it may be said with perfect truth that, cven legislative power is unequal to the task of abolishing rales of evidence No doubt, it 19 competent to the legislature to provide that no rules of evidence shall have the force of Law; but unless they cxpressly forbid all Courts and Judges to act upon any rules at all, or to listen to any argaments as to the manner 10 which they shall exerciso the discretion with which they are invested (propositions too absurd to state or to discuss), the Judges infallibly will hear, and will be guided by, argu. ments upon the sabject, and these arguments will be drawn from the practice of English Courts. Moreover, the Courts of Appeal all cxercise their own discretion in the matter, and thus, by degrees, the system would grow up again in the most cumbrons, chaotic and inconvenient of all conceivable skapes The plain truth is, that there is only ono possible way of getting rid of the law of evidence, and that is by getting rid of tho Admidistration of Jastice by lan sers and retarning to the system of were personal discretion. " It may be that some persons would like this policy, but I supposo it is one which I need not discuss " So far, I have considered the rules of evidenco mereis as they conduce to the important practical objects of Leeping proceedings to the point, and of protection and supporting the Judges I must now say a few monis on their value as furnishing the Juilzo with solid tests of truth. I fully admit that their value in the reapert is often exagerated and misconceired; but I think that, when the matter is fairly stated, it will bo fonnd that they like a mal, though it may be described as a negative, valao for this parpose. There are two great problems on which tho rales of cridenco throw no light at all, and on which they are not intended to throw any light, and it must be admittel that those problems are by far the most importut ·vi Min. $1erifx's speech. of any which a Jodge has to solre. No rulo of evidence that oper was framed w11 assist a Judge in the very smallest degree in determining the master question of the whole subject-whether, and how far, ho ought to believe what the witnesses Bny? Again, roleg of evidence are not, and do not, profess to be rules of logic. They throw po light at all on a further question of equal importance to the one just stated What inference ought the Judge to dry from the facts in which, after considering the statements made to him, he believes ) In cvery judicial proceedink whatever, these two questions-Is this true, and, if it is true, what then ought to bo constantly present to the mind of the Judge, and it must be admitted, both that the rules of evidence do not throw the smallest portion of light apon them and that persons wlio are absolutely ignorant of those rules may give a much better answer to each of these questions than men to whom escry rule of evidence is perfectly familiar. I think that a more or less distinct perception of this, coupled with impatience of the exaggerated pretensions which bare sometimes been made on behalf of the rules of evidence, are the principal reasons for the distrust and dislıhe with which they are at times regarded. This dislike, I think merely a particular application of the valgar error which in so many instances leads people to deprecate art in comparison with nature, as if there were an opposition between the two, and ag af art in all cages did not presuppose and depend apon nature. The best shoes in the world will not mako a man walk, nor will the best glasses make him sce; and in just the same way, the best rules of cvidence will not supply the place of natural sagacity or of taste for and training in logio, but it no moro follows that rulea of cadence are useless as guidcs to truth, than that shocs or glases are useless as A9319tances to the feet and to the eyes. The real use of ruleg of evidence in ascertaining the truth consist in the fact that they supply negativo tests, war. Inated by very long and varied experience, as to two great points, the relevancy of facts to the qucation to be decided by the Court and the sort of evidenco by which particular facts ought to be proved. They may in the broadcst and most popular form be stated tag:- "If you want to Artito at the trath as to ang matter of fact of scrous importance, observe the following masins: "First, if your belief in the principal fact which you wh to ascertain is to Ur, after all, an inference from other facts, let those facts, at all events, bo closely cun. nected with the principal fact in Homo one of certain specific moles Secondly, never bcliero in any fact whatever, whether it is tho fact which you principally wish to determine, or whether it is a fact from which you propose to infer the existenco of the principal fact, until yon have before yon tbo lest cridence that is to be had that is to say, if tho fact is a thing donc, have before you some one who knw it donn with his own eyes: if it was a thing said, have before you some ono who heard it said with his own cars. if it was written paper, hate the paper Loforo you and read it for yourself. This exception-qualifications and esplanations apart-is tho truo Capo of the rules of evidence, and I think that no one will deny, cither that thonc rules are in themselreseminently wise, or that they are by no means so obvious and cif.errient that the mero unnsisted natont magacity of judicial officers of crery grade can be trusted to grasp their fall meaning and to apply them to the practical questions which arise in the administration of justicr, with no assistance froin any erreus law. I do not wish to exaggerate, but I must tuld, that I allach cooxderablo moral od speculatire ralue to these rules. If they no finnly ft by Courts of Jastics, and ngidly insisted upon in all practical matters which como ·MIL STEPIEX'S SPECCIT, before the Courts, they will gradually work their way amongst the people at large, and furnish them with tests by wluch to distinguish between credulity and rationnl belief upon a great pariety of matters wluch will be of vast importance I ought to add that the good which they are calculated to effect can be obtained only by erecting them into laws and nigorously enforcing them. When this is done, I feel confident that experience will be contingally adding to the proof of their value "So far, I have tried to prove the proposition that the English rules of cri. dence are of real solid value, and that they are not a mere collection of arbitrary Eubtleties which shackle, instead of guiding, natural Bagacity. I pass Dow to tho next proposition, which 19, that these rules are expressed in a form so confused, intricate and lengthy, that it 19 hardly possible for any one to learn their truo mcan. ing otherwiso than by practice, an inconvenience which may be altogether avoided by a careful and systematic distribution For the proof of this proposition, if indecd it 13 disputed, I can only refer in general to thd English text-books on the sub. ject They form a mass of confusion which no one can understand untıl, by tho aid of long practice, he learns the intention of the different rulos, of which they hear together innumerable and often incoherent illustrations. I am far from Wishing to impate this as a fault to the industrious, and in many cases distioguished, authors of thoso compilations. They, like all other hand-books, aro intended for imtaediate practical purposes, and are mere collections of enormous masscs of isolated rulings, generally relating to some very minute point. It was necessary, therefore, that they should be arranged, rather with reference to Faguo catch-words with wluch the ears of lawyers are familiar, than with reference to theoretical principles which it has never been worth any lawyer's whilo to investigato. “The condition of the law of evidence, as well as the condition of many other Lranches of the law of England, afforda continual illustrations of the extraordinary intricacy and difficulty which arises from the combination of the very greatest practical sagacity with an absence of sound theory, or, what is still worse, with the presence of unsound theory. No one who has not seen it could possibly imagino how obscure the meaning of a clever man may becomo when he is forced to squeeze it into the terms of a theory which does not fit it and is not true. I will giro one or two illustrations of my meaning The expression 'hearsay is no evidence' early outained cona derble cnrrency in tho English Courts. In a general way, its meaning is clear enough, and, what is more, is true, but, when considered as thic scientilo es. pression of a general truth, from which rules can bo dedaced in prticular cases, it is inaccurate, faulty and obscure to the last degreo. The objections to it are, that both Hearsay' and 'Evidenco are words of the most uncertain Lind, cach of bich may bean soveral different things. For instance, bearsay may mean what you haro lcard a man say, and this 15 116 most obrious meaning; but it is dife ficult to imagine & grosscr absurdity than the assortion that no one is ever to prore, in a fudicial proceeding, anything suud by any other person. 'Ilearsay,' again, may bo taken to mean that which a person did not perceive with hu own organs of geroep tion, but this is not the natural sense of the word, and it is almost impossible in practica to divcet a word of its natural meaning * Tho wonl'eridence' is also exceedingly amuiga01s It may mean that which wil. ne98 8 139 in Court. It may mean the facts to which ho testifies, regled us a ground. work for furtlier inference. Yorfithstandu; this, the phrase "bearsay is poendence, Lerng emphatic and cast to reovlleet, stuck in the cars and in the minds of lawyers, as ·Till 3. STCPIES'S SPEECE. has been taken by many text-writers as the principle on which their statement of the most important branch of the law should be arranged They accordingly tools to describing as hearsay every fact of which endence was by law escladed; in short, they turned beareay 13 no evidence into that which is not evidence i3 hearsay. They and not, however, do this expressly; they did it by describioz as exceptions to the ralc excluding hearsay all cases in which endence was admitted of anything which would have been excluded but for such exceptions. This is so intricate a statement that I can hardly espect the Council to follow me, but I will give an illastmtion of what I mean The question 13, whether a piece of land belongs to A or B, A says that it belongs to him, because his father C bought it from D, who bought it from E, and he prodaces the deeds by which he conveyed the land to >> and D conveyed it to C Now, as D and E are not parties to the suit between and B, and as A cannot of his own knowledge know anything of the transaction between them, English text-writers call the deed between D and E' bearsay i' and, according to Mr. Pitt Taylor, the rule which permits such deeds to be given in evidence 19 the third erception to the rule which excludes hearsay. One of the Judges, if I am not mistaken, called suchendence' written hearsay,' and so indiacrent are English lawyers in general to the abuso of language for the sale of momentary convenience that it probably never struck him that this was a contra diction in terms I think, however, that it is hard to expect people to understand, bearın mind, and follow aut in all its ramification, a system which employs language in such a peculiar manner as to call ancient deeds' written hearsay.' To talk of hearing a document is like talking of seeing a sound. "I now turn to the ambignity of the word 'evidence,' to which I have already referred As I have just said, 'evidence' sometimes means a fact which suggests an inference For instance, at 13 common to say,– Recent possession of stolen goods 13 evidence of theft,' that 13, the fact of such possession suggests the inference of theft At other times, and I think more frequently,' evidence' means what a witnese actually says in Court, or that which he produces. For instance, we say tho evidence which he 5ave was trzo I might occupy, I will not say the attention, but the time, of your Lordship and the Council for hours if I were to attempt to de ucribe the amonnt of confusion and obscunty which the neglect of this simple and obyiong distinction has thrown orer the whole sabject. I will content myself with observing that it produces the effect of giving a double meaning to every expression into which the word 'evidence, 18 introdeceu Circumstantial evidence,'' hcarszy crudence,' direct evidence,'primary evidence,''best evidence,' have each two sets of meanings, and the result is, that it is almost impossible to arrivo at a clear and comprehensivo knowicure of the whole subject, or sco how its various parts aro related to each other, without an amount of study, thought, and practical acquaintanco with tho actual working of the rules of evidence which few people are in a position to bestow upon the subject. "I may appunr to be detaining the Council unduly upon therels verbal questions, but I think that it is common fault to under-rate the importance of accurate Inngange, particularly in regard to the fundamentu terms of any particular branch of hoorledge. In regard to law, I have not the least doubt that a very large propor tion of the intrieres and difficulty which attach to it is due to the fact that proper pains hare never beea bestowed on the definition of st9 fundamental terms. Wbps could be made of Eacl:d if we were not quite sure oł our meaning when wo spoko of a piat, a 1:0, a circle, parallels, and perpendiculars? such a defect would render ·UR STEPHEN'S SPEECH ix Geometry impossible, and the defect which makes large parts of the law almost anintelligible, and beyond all measure cumbrous and unwieldy, is precisely analo. gous to it in principle I belicvc that, of its fundamental terms were defined as clearly as the term 'lar' was defined by the lato Mr. Austin, the study of law would becomo comparatively easy, and in many cases nttractive for its own sake; that its balk might be diminished to a dogrce of which peoplo in general have hardly any conception, that the crpense of its administration might be greatly diminished, and that comparative certainty might do away with a very large amount of necdless and harassing litigation " I shall now proceed to describe, shortly, the pripciples on which to Draft Bill of the Committee has been framed In the first place, we thought it necessary to fix the senso in which the fundamental terms of the subject should be naderstood, and for that purpose we define 'fact,' 'evidence,''proof,''proped,' and como others as to which I will content myself with a reference to the report It seemed to us that the remainder of the subject would fall under the following general beads - 1-The relevancy of fact to the issues to bo proved. 2-The proof of facts, according to their virtue, by oral, documentary, or material evidence 3.--The production of endence in Court 4-The duties of the Court, and the effect of mistaken admission or rejec. tion of evidence. “These heads would, we think, be found to embrace, and to arrange in their natural order, all the subjects treated of by English text-writers and Judges under the general head of the Law of Evidence. I will say a few words on their relation to each other, and of each of them in tarn. "The main feature of the Bill consists in the distinction drawn by it betwcen the relevancy of facts and the mode of proving relevant facts. The neglect of this diatinction by English text-writers, no doubt, arises from the ambiguity of the word 'evidenco', to which I have already referred, and is tho main cau90 of the oxtremo difficulty of understanding the English law of evidence systematically. I will shortly illustrate my meaning. A says, Z committed murder. First of all, this is a fact--something which could bo directly perceived by the sense of herning and dis. tinctly remembered afterwards Now, whether this fact is or is not relevant in a particular case depends upon & Fariety of circumstances If the question is, whether A was gulty of defaming Z by accusing him of murder; or yrkether Z had a motive for assaulting A, because A said that he had committed murder; or if Z is accueca of murder, and the object is to sbow that, when A charged him with it, he behaved As it be wore guilty, and in many other instances which might be pot, the fact that A spoke those words is clearly relorant. But if the question 19, whether % actually did commit murder, tho fact that A thought so or said so, generally speak. ing, is not relorant. Sapposing, howerer, that the fact is relerant on some one of the grounds just mentioned, or on any other grond, whaterer be the ground on which tho words are relevant to the matter under inqairy, it is obrions that the words themselves ought to be satisfactorily prored, and the role of Eaglish Law-end we think it is a vise rulo-is that they must be prored by the assertion of some witness that he heril them siid with his own ears English text.rnters throw together the so two classes of rales under the head of Ilearsas. They lay down the general rule that hearsay is no erilence, meaning by it that certain classes of facts alled heanay are to be treated as irreleriat to the determination of particular ·21R. STEMEX'S SPEECH questions, and it is necessary 19 look tlıroagh 4 long list of crceptions to that rule in order to see whether, in a particular casc, A's statcinent may or may not Lu proicu. If you find that it can be proved, the question is, how can it be prored ? and you propose to proro it by a witness who says that B told hin that lie lieard A Bay $0 Again, you are told,'hcarsay is no evidence, but this time the expression means, not that the fact is irrelevant, but that the testimony by which it 19 pro. posed to prove the fact is improper. Ono extreme inconvenience of this is that the most important part of the English lay of evidence is thrown into the most intricate and inconvcmcnt of all possible forts, that of a Tery wide negative, of most uncertain meaning, qualified by a long string of csccedingly intricato exccptions. "No ono who has not gone through the process of learning the law by mere rule. of-thumb practice can imagine the degree of ricedlces obscanty and difficulty upon this point, of the custence of which he becomes gradaally conscions. It would bo perfectly fair to say to almost any English toxt-writer, 'you tell me, at enormous length, what is not evidence, but you kon here tell me what is evidence, ercept, indeed, in largo compilations, which point out what has to be proved upon particolar sucs, and which it 13 as impossible to read or remember, as it is to read or remem. ver any other necro »or. reference " I hope that we have been able to avoid this, and that the sccond chapter of the Bill will bo found to state specifically, and in a positive form, what sorts of facts aro relorant, as being suiciently connected with the facts in issue to afford grounds for an inference as to their cristanco or non.cxistence I will not wcary the Council by mentioning thoso rules, and I will content myself by referring to the Bull and to the report Bat I may shortly illustrate them by reference to a passo from n modern historian, which will relieve the dulness of n very technical speech. The penge to wcb I reter 13 a slort summary, by Dr. Froude, of the grounds on which he believes that Mary, Queen of Scots, murdcred her husband "As Mr Fronde is not a lawyer, he certainly wrote what I am about to read withont reference to ruleg of evidenco I think the fact that lo duit, in fact, un. consciously observe them illastratcs very strongly the truth of my assertion that they aro no more than tho result of experienco nnd practical sagacity thrown into a categorical shiro. I need hardly say that I uso tho passage merely ng an illustration. and witbout any notion of adopting Mr Froude's opinions, or asserting the truth of his facts. I am concerned merely with their rolerance. "* She (Mary) was known to kare veen weary of her husband, and antious to get rit of him " (Cy our drit, facts n bich show motiro are relevant.) "Tho difficulty and the means of dierosing of him had been dierusscd in her presence, and she had hicroelf anggested to Sir James Balfour to kill him." "(Facts which show preparation for a fact in issuo are relorant) "Sho brought him to the liouso where he was decroscil; the was with him to Jours beforo his death; * (Factso connected with the facts in issue as to form part of tho samo transaction nn relevant ) ** and after minds thircu erery difficulty in the ry of any esamination into the circunstances of his cud)." " (Sulyqucat conulact indicaced us in fact in issue is relcrant) ·MT. STEPIICN'S SPEECII ti "The Earl of Bothwell as pallicly accuscu of the murilor.' "(Facts necessary to be known in order to introduco iclerant facts are rolorant) "She kept lun close at lier side; slie would not allow him to be arrested; sho went orcely to Scton with him before her widowhool was a fortnight old When at last, unwillingly, she consented to bus trial, Edinburgh 29 occupied by his rctainers IIo presented himself at the Tolbooth surrounded by the Royal Guard, and the charge fell to the ground, because the Crown did not prosecuto and the Earl of Lennot had been prevented from arrearing' "(Sabsequent conduct infuenced by any fact in issuc is rclerant) "* A few weeks later, she married Bothwell, though lio liad a wife already, and when her subjects rose in arms against her and took her prisoner, she refuscd to allow herself to be divorced from him.' "(Sabsequent conduct plotive ) "A large part of the evidence consisted of certain letters which the Queen was said to have written Mr Froude, in passages which I need not rearl, alleros facta which go to show that she tried to prevent tho production, and to secare the des. truction, of these letters An illustration as to subsequent conduct meets tho case of a person who destroys or conccals cvidence "Finally, Mr Froudo observes. 'In her own correspondence, though who denics the crime, there is nowhere the clear ring of innocence which makes its weight felt even when the evidence is weak which sapports the words.' "Tho letters would be cvidenco under the section relating to adınissions, and Dr Froudo's remark 18 in naturo of a criticism on them by a prosecuting Counsel. "In English text-books, so far as my experienco gocs, these rules and others of the same sort aro powhero presented in a compact substantivo form. They como in, for the most part, as exceptions to the rule that evidence must be confined to the points in suc. In fact, they can be leamed only by the practice of tho Courts, though they aro as natural and lax as any rules necd be if they are properly etated. "From tho rules which state what facts may be provel, we pass to thoso which prescribo the manner in which a relevant fact must be provcil Passing 'orer technical matters--buch as the law relating to judicial notice, questions relating to publio documents, and the like these rules may be said to be three in number, thougl, of course, namerous introductory rales are required to adopt for practice. They are thesc- "1. If a fact is proved by oral ovidence, it must be direct; that is to say, things meen must be derogeil to by some one who says he 87 them with 13 own eyes. Things lioard by some one who says he heir them with his own ears. "2 Orignal doenments must be prodaced or accounted for before any other evidence can bo giren of their contents. 13 When a contract has been roluced to writias, it must not be tarici by oral cridence. " These rules, I hire , arc gubject to certain ciceptions, and require certain practical ritjustments; but I do not think that any one who has hul practinler. forrience of the working of courts of justice will deny their substantial syan lness, or indeel the absolate practical nccc53:1y for calorcing them ·xi ACT 19 or 1653, SEC 26 46 " Passing over certain matters which are explained at length in the Bill and report, I come to two matters to which the Committee attach the greatest importance as having rocaliar reference to the aduunistration of justice in India. The first of thege rules refers to the part taken by the Judge in the examination of witnesses, the second to the clfect of the improper admission or rejection of cridence upon the procecdings in case of appeal. That part of the law of evidenco which relates to the manner in which witnesges are to be examined assames the existence of a well-educated Bar, co operating with the Judge and relieving him practically of every other duty than that of deciding questions which may arise between them I need hardly say that this state of things does not exist in India, and that it would be a great mistake to legislate as if it did In a great pamber of cases-probably the vast numerical majonty-the Judge has to conduct the whole tral himself. In alt cases ho has to represent the interests of the public mach moro distinctly than he does in England. In many cases he has to get at the truth, or as near to it as he can, by the aid of collateral inquiries which may incidentally tend to something relevant, and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judgca with a general powor to ask any questions, upon any facts, of any witposses, at any gtago of the proccedings irrespectively of the rules of evidenco binding on the parties and their agents, and we have inserted in the Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to tho evidence pat before him, but to inquire to tho utmost into the truth of tho matter. We do not think that the English thcones, that the public have no interest in arriving at the truth, and hat even criminal proccodings ought to bo regarder mainly in tho light of private questions between the prosecutor and the prisoner, Aro at all enited to India, if indeed they are tho result of anything better than care cagness and apathy in England "With respect to the question of appeals, wo bavo drawn a scrics of provisions, the object of which 19 to provent mere mistakes in procedaro from destroying the value of work properly dono, as far as it goes. We haro gono throngh the various calcs in whiclı, as appears to 19, the question of the improper admission or rejection or omission of evidence can aruse; and havo provided that, whenever any Appel. Into Court discovers the occurrenco of any mistake, it oball not reverso tho decision of tho inferior Court, but shall esther striko ont what is redandınt, or supply what is defective, as tho caso may be, and give jadzment accordingly. ** 1 harc addressed your Lor/sbip and tho Condcl at great length, but not, I think, at greater length than the importance of the matter requires. I have only to add that I proposo to proceed with the Bill when the Goremment retoms to Calcutin, and I hope before that time to receive the criticisms ol tho Local Gorom. mente upon the measure." LIABILITY TO DAMAGES FOR RECUSING TO GIVE EVIDLXCL ACT 19 or 1833, SECTION 20 20 Ang proson, whether # party to the gut or not, to whom a mummone in Atten: nnilgir erlener or smduce a document, all I chronally drivered, ani! who stall, wit bout lawful ciCRXe, neglect or refuse to obey toch ummons, or ho ·1 19 & 20, vic. CAP 113 xiii shall bo prved to have aherandad no lontantes with such quired by without la produce a ander this Act, be liable to the party at whogo reqnest the summons shall have bo required to give endenco, or produce nay sustain in consequence of such neg. keeping out of the way as aforcsaid, to L.-. -. 1 19 & 20, Tic. Car 113. An Act to prouide for taking evidence in Her Jlajesty's dominions in relation to Curs and Commercial mattera pending before foreign tribunals. (29th July 1856 ) WHEREAS It is cxpedient that facilities be afforded for taking evidence in Her Majesty's dominions in relation to Civil and Commercial matters pending before foreign trbunals: Be at enacted. 1. Where, upon an application for this purpose, it is made to appear to any es accordingly, and it shall be lawful for the said Court or Jadge, by the game order, or for such Court or Judge, or any other Judge having authority under this Act, by any nubsequent order, to command the attendance of any person to be named in such order, for the purposo of being exammed, or the prodaction of any writings or other documents to be mentioned in such order, and to give all such directions as to the time, place and planner of Buch examination, and all other matters connected therewith, as may appear reasonable and jogt; and any such order may be enforced in like manner as an order made by such Court or Jadge in a causo depending in guch Court or before such Judge. 2. A certificato and the hamil. t. Cortificate of amlys. Munr, &c, ufficient evidenco in sapport of application, 2- ---- nt or Consul handg jurisdiction tribunal ja desirous of obtaining om the application relates, shall do such certificate is prodaced 3. It shall bo wol for every person anthorized to take the examination nt wit. samination ot it nesses by any order made in ponuance of this Act to take all ne Act to be taken upon meh examinations upon the oth of the witnesses, or arms oth, tion 19 6330 #hero a Birmation is allowed by law instead of ·XVI 22 & 23, VIC CAP 63. or elsewhere in der Majesty's dominions, beyond the jurisdiction of the Court ordering the examination, it shall be lawial for such court, or the Chief Judge thereof, or each Judge, to poimaate sono fit person to take such examination, and any deposition or examination taken beforo an examiner Bo Dominated shall bo admissible in evidence to the same extent as if it had been taken by or before such Court or Judge 3 Where in any cr 1 Power in criminal proceedings to nominate Judge or Magistrate to 2. F. LU 11 bame extent as if it had been taken by or before the Court or Judge to whom tho mandamus or order was addressed. 4 The provisions of the Act passed in the twenty-second year of Her Majesty, chapter twenty, intituled "An Act to provide for taking err Application of 22 Vic dence in suits and proceedings pending beforo tribunals in 2. Ar to contact ller Majesty's dominions in places ont of the jurisdiction of ings under this Act. auch tribunals" (which may be cited as the Evidence by Commission Act, 1839), as amended by this Act, shall apriy to proceeding, under this Act. 5. The power to make rules conferred by section six of the Evidence by Com. mission Act, 1859, shall be deemed to include a power to Amendment of 3 c. make roles with regard to all costs of or incidental to tho € 20, Ag to costs. examination of any winess or person, inclading the remuneration of the examiner, if any, whether the examination be ordered pursuant to that Act or apder this or any other Act for the timo being in force relating to the examination of witnesses beyond the jurisdiction of the Court ordonng tho examination 6. When pareant to any such commission, mandamas, order, or request as in this act referred to any witpens or person is to be examin- Outh or afirmation of ed in any place beyond the jurisdiction of the Court order- Vund . et on onth before a person duly authorized to administer an oath in the Court, ordering the examinntion, 22 & 23, Vic. CAP. 63. An det to afford facilities for the more certain ascertainment of the law adminwierci In one rart aller Majesty's dominions then pleader in the Courte el anolher rari thereot! (13th August 1939) TORREAS great improvement in the administration of the law would enson it taciti. tamme. tics womo Aitoned for more certainly sacertaining the Law administered in one part of Her Majesty'ı domuintont when plendead in the Court of another part thercol : No it therefore enacted, &c. 1. If, sa nng action de porning in any Court within Her Majesty's dominions, it Coarte in one part nf Fler Majesty'. mal. non my rralle fit the onlnias In 11 of Onta y other pent her of. 1 I.

·22 & 23, VIC CAP 03 xvii Coarts thereof, lose opinion is desired upon the law administered by them as applicable to the facts set forth ia such case, and desining them to pronounce their opinion on the questions subunitted to them in the terms of tho Act, and it shall bo 1-1-0---L раиси спец со идет он испCase, and But thетенен рговоинсe Lucu vрои ру the questions of law as administered by them which are submitted to them by tho Court, and in order to their pronouncing such opinion they shall bo entitled to tako such further procedure thereupon as to them shall seem proper. 2 Upon such opinion being pronounccal, a copy thereof, Opinion to be anthen. certified by an officer of ench Court, shall be given to each of t.catel and certified the parties to the action by whom the same shall be required, and shall be deemed and held to contain a correct record of guch opinion. copy aven, 4. In the event of an appeal to Irer Majesty in Council or to the House of Her Majestyin Cnunci or Fongo of Lords on apperl may adopt or reject option, Jouso may respectively aclopt or reject such opinion of any Court whose judgments are respectively rovienable by them as the same shall appear to them to be well founded or not in lary. 6. In tho construction of this Act, the worl"action" shall inclade etery jodical proceeding instituted in any Court, Civil, Criminal or Eccle- Interpretation of Bastical; and the words " Šoperior Courts" shall include, in ters, England, the Superior Conrts of Law at Westminster, the Y_Chancellor, Divorcu Scotlanul, ser of its he Rolls minions, ·24 Vic CAP 11. An Act to afurd facilities for the better ascertainment of the law of foreign countries tohen pleadeil sx Courts within ller Majesty's domintans (17th Jay 1961) WHEREAS an Act was passed in the twenty-second and twenty-third years of Iler Majesty's reign, intituled an Act to afford facilities for the Prenmble 22 & 23 Yuc more certain ascertainment of the law administered in ono e 63 1.1.-1.a.-L. M. dominons and the law as administered in any part of Her Majesty's doininions when pleaded in actions depending in the Courts of such foreign country or State: Bo it therefore enacted, &c 1 Superi ller 21 ninyo with 90 of Any Within Majesty mny have such action Inay depend to direct a caso to be prepared artmalo A convention for that purpose, foraseer ting forth the facts as these may bo ascertained by rerdict tainment of Law of such of a jury or other mole competent, or as may be agreed upon Stato. by the parties, or bottled such person or persona ns may 41 - convention, whose opinion is desired upon the law administered by Bush forcign Tarih : anak anan. -ad requesting them to and upon such opinion * Buch Court, ahall 20 2 It shall be competent to any of the parties to the action, after having obtaine! such certified copy of each opinion, to logo the same with Court in which actiom the oficer of the Court within ler Blajesty's dominions on dependa 10 apply toch which the action may be dependingi who may have the opinion to thio facta si ocial charge thereof, together with a notice of motion, furth I CILIK, &c. setting forth that the party will, on a crrtain day name in 1 1 alterations or Amenilmente, to the line or to any other such Raperin Court in such forriku State a lorrsand and w from time to titac os Day le pecorury or cap. dicat.

·31 & 32 tic car 37 Iit 3 II, in any action repending in any Court of a foreign country or State with whose Gorernment Her Majesty shall hare entered into a Courts in Fler Majes. ty's dominsons way pronounce on an se remitted by a for eign Court. 18 desired a case setting forth the facts and the questions of law arising out of the sanse on which they desire to have the opinion of a Court withun Her Majesty's dominions, it aball be competent to any of the partics to the action to present a petition to such last mentioned Court, whose opinion is to be obtained, praying such Court to hear parties or their counsel, and to pronounce their opınion thercon in partice to the action ug whom the eanic shall be required 4 In the construction of this Act, the word "action" shall include every judicial procecding instituted in any Court, Civil, Criminal or Ecclo- Interpretation of siastical; and the words "Superior Courts" Bhall include, in terms. England, the Superior Courts of Law at Westminster, 11:o Lord Chancellor, the Lords Justices, the Master of the Rolls, or any Vice-Chancellor, 1---EL- 19 31 a 33 VIC CAP. 37. An Act to amend the larc relating to documentary eridentc in certain cases. (251) June 1969) Preambto. WHEREA9 at 19 expedient to amend the law relating to cri. dence. Bo it enacted, &c Short title. 1. This Act may be cited for all purposes as “Thc Docu. mcntary Evidence Act, 1868." 2. Primi fucic cridence of any proclamation, order, or regulation issued beforo or after the passing of this Act by Her Majesty, or by the Bode of proving cor. Privy Council, alao of any proclamation, order, or regulation tonn documents, issued before or after tho passing of this Act by or under officer as is mentioned n all Court of Justice, thc modcs hercioaiter (1) By tho prolaction of a copy of the Gazette purporting to contaia mch pro clamation, order, or regulation. (9) By the production of a copy of soch proclamation, orler, or regulation pur. porting to le printed by the Government printer, or, where the questa Anscs in a Court in any British Coluny or possession, of a copy purportin to be printed under the authority of the legislature of such L:1tuh Colony or rossession ·31 & 32 Fic car 37 (3) By the production, in the case of any proclamalt, oriler, or regulation iggued by ller Blajesty or by the Privy Council, of a coſy or extract pur. porting to be certified to be true by tho clerk of the Privy Council, or by any one of tho Lords or others of the Prity Council, and, in the case of any proclamation, order, or rogulation used by or under tho authority of any of the said departments or officers, by tho production of a copy or cxtract purporting to be certificd to be truc by the person or persons specific in the sccond column of the said schedulo id connection with auch department or officer Any copy or extract made in parsuanco of this Act may be in print or in writing or partly in print and partly in writing. No proof shall be required of tho handwriting or officiul position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, or regulation. 3 Subject to any liw that may be from time to timo mulo by the legislatoro Act to ho in force in of any British Colony or noggrasion, this Act shall be in forco Colon.09. in crers ench Colony and possession. 4 Tunishroont of for If any person commits any of the offencos following that is to say gery (1.) Ponts any copy of nny proclamation, order, or regulation which falsely ir to bo printeit or Porcasion or regulation knowing that tho samo was not so printou: or (2) Forgox or tenders in ovidence, knowing tho samo to baro ficon forged, ary certificate by this Act authorized to be anoexcu to a cory of, or cxtract from, any proclamation, orier, or regulation; le slın) bo guilty of felong, and shallon conviction be liable to do scntenced to penal sertitudo for Buch term as in prescribed by the l'onal Servitudo Act, 1861, a tho least icrm to which an offender can bo sentoncol to ponal servitudir, or to w imunooned for any term not crcceding no fears, with or without liard Isbour. 5. The following worile ahill in this Act laro the meaning lcreinaftor Asimai Xonition of eros, to them, unless thero lo something in the context repaguant to such constructions; (that is to say ... in- en smag of this Act, include the ni anch territories as may Blairsty by virtue of any other der oferty's domi. nions, "Legislatoro" shall signify any authority other than the Imperial Parliament or Legislature. Jler Majesty in Coancil competent to mato lows for any Colony or pension. "Trity Council" alu!! Include ifer Majesty in Council and tho Lorils and other of ller Majesty', Privy Council, omny of them, and any "Priry Concil. Commitses of the t'riry Council, that is not ecially samod in the rcholule hereto. "Goremment l'rinter" shall mean and include the prioler toller Blafety and ang prinses painting to le tho printer Authorina to print "Government Inn. the ftatutcs, Onlinancer, Acts of tatr, or otber public Acta of the legislature of any intoh Colony, o poreuim, et allermiw to be the loremment printer of ench Colony or prudcntion. "Gazette" shall inclaio thn Leal Caselts, the Filindungi Gecite," 04:che, Avl the Dellin liarstte, or any of sucb Cacttc. .- : ler.

·ACT NO. XVIII OF 1872. xxi 6 Thc prorision. 1113 Let shall be deemed to be in addition to, aod not in Act to be cumulative. derogation of, any powers of proviug documents given by any cristing Statoto or existing at Common Law. SCHEDULE Coltus 1 COLCYX 2. Name of Department or Oficer. Names of Certifying Officers ... The Commissioners of the Treasury Any Commissioner, Secretary, or Assistant Secretary of the Treasury. The Commissioners for executing the Ang of the Commissioners for exccutiog Office of Lord High Admiral. the Office of Lord High Admiral or either of the Secretaries to the Bad Commiagioners. Secretaries of Stato Any Secretary or Under Secretary of Stato Committce of Privy Council for Trado Any member of the Committee of Priry Council for Trnde or any Secretary or Assistant Secretary of the said Con. mittee. The Poor-Law Board Any Commissioner of tloc l'oor-L99 Board or any Secretary or Assistant Secretary of the sand Board ACT No. XVIII OF 1872. (BECEIVED THE GOVERNOR-GENERAL'S ASSEXT ON THE 20TH ACCEST 1872.) AN ACT TO AMEND THE INDIAN EVIDENCE ACT, 1972. Tregubio. Whereas it is expedient to amend the Indian Evidenca Act, 1872, It is hereby enacted 19 fullows:- 1. This Act may bo called " The Indian Evidencc Act Short Litle. Ameedment Act." 2 Amendment of ACI In section thirty-two of the Indian Evidence Act, 1972, n 1872, section 32. clines five and sis, after the word "relatimship," the works clauses And G. " by blood, marriage or adoption shall be inserted. 3 In section forty-one of the same Act, lincs screatcen, twcuts and treats three, Amendment of sec. after the word "judgment," the words • onler or decreo Iton 41, shall be inserted. 4. Ia section forts-firo of the same Act, linc fire, altor Amendment of sec- the word "art," the worils " or in questions 1 to indentity Lion 45. of handwriting" shall lo inserted. 6. In section fifty-seren of the same Act, practaph (13) Amendment of Ke After the word "road." Ibo wonis" on Land or at och skall lo ion 67 insertai. Amendment ct BCL f. In section sixty-six of tho kame Acl, líne firs, after the tion to worl" ix," the words or to his attorney or ricader" shall be Inscried ·ACI NO Y OF 1873 7 In sectiou ninety-one of the same Act, Esception 2, the worla "under tha Amendment of sec. Inden Sacccssion Act," the words "admitted to probato in tion 91, British India," shall be substituted. 8. [Repealed by Ict No XII of 1876.] 0 In section one hundred and eight of the same Act, line one, for the word " Wher," the words" Provided that when" shall be subutituted: Amendmcat of sec. and, in the last line, for the word " on," the words "shifted to" tion too. Bliall be substituted. 10 In section one hundred and twenty-six of the same Act, lige twenty-two, and section one hundred and twenty-eight of the samia Act, l.no Amerulment of soc. Els after the word "barrister," the word "pleader" gliall be ttons 124 and 12 inscrted. In section one handred and twenty-six of the same Act, lige giftcen, for the word "criminal," the word "allegal" shall bo substitated. 11 In gcction one hundred and fifty five of the same Act, Amendment of sec. paragraph (2), for the word "had," the word "Accepted" shall tuon 155. be substituted 12 (Repealed by Act No X of 1873 ] ACT No. X or 1873. (RECEIVED THE GOVERNOR-GEVERIL'S ABSENT ON THE 8711 APRIL 1873.) THE INDIAN OATHS ACT, 1873, An Act to consolidate the law relating to Judicial Oaths, and for other purposes. Wrrras it is copedient to consolidate the law relating to judicial onths, afir miatto! and declarations, and to treat tho law relating to Irramble. oficial onths, affirmations and declarations; It is creby cnacted as follows: 1--Preliminary. lort title, 1. This Act may bo called " The Indian Oaths Act, 1873:" It extends to the whole of British India, anıl, so far ng manns subjects of ler Majesty, to the territories of Xatire l'rinces and Buated in Loral except alliance with fler Majesty; And it shall come into force on the first day of May Commencement 1873. ? [Repealed by del XII of 1873.) 3. Nothing hercin containeel appling to procrelings ktorn Courts Martial. or to asths, ristiar or deskmtions marbal y கார சா Karingol certain lich, under the provisions of the Indian Councils' Act, 191, aths Anil ranta. tho Gorengor-licneralia Coagcil hus not power to reporal. Il.-luthority is administer Oath and Airmations, The followioz Coarta and prons ar aathorized to administer, by themsirro or by an officer empowered by them to this bubail, ratha and Aathmly inutminia affimations in diecharge of thn datıcı or in certain of the tre o amico power mwd of evaferred crom them tripertirely by (a! 111 Couten: pernos hiring lis law or consent of parting anthority tn recrire arilance;

·X OF 1973 15) The Comis iicer of any military station occupied by troops in the burrice of ller Majesty Novide (1) thint the onth or affirmation be administered within the limits of the station, and () that the oath or afirmation be such as a Justice of the Peace is competent to admnister in British India. JI.- Person by phom Oaths or Afirmations must be made. Oath nr Athost100 5. Onths or affirmations shall be made by the following to be made by Tersang (a) all witnesses, that is to say, all persons who may lawfully be examined, or gire, or be reqaired to give, evidence by or before any Court Witnesses, or person haring by law or consent of parties authority to examino such persona or to receive evidence interpreters (6) interpreters of questions put to, and evidence given by, witnesses, and Jurort (c) jurors. Nothing herein contained eball render at lavtal to administer in a criminal proceeding an oath or affirmation to the accused person, or necessary to mminister to the official racerpreter of any Court, after he has entered on the execution of the duties of bis oftice, an oath or athrmation that he will faithfully dischargo those duties Aration by No. 6 Where the witness, interpreter or jaror is a Iliada or lives or by persons al 31uhammadan, Jerling to oths. or has an objection to making an oath, he sliall, instead of making an oath, make an afirmation. In every other case the witness, interpreter or juror whall mate an oath. 17.- Forms of Oaths and affirinations. 7 All oaths and stirmations made under Section 5 shall Forms of oaths and be administered according to such formas & the High Court trmations. may from time to timo prescribe. And untit any such forms are prescribed by the High Coart, such baths and Affirmations shall be adsiastered according to the forms daw it ose Erplanation As mgords oaths and nfirmations administered in the Court of the Recorder of Rangoon and the Court of Small Causea of Rangoon, the Recorder of Rangoon 8h3?) bo deemed to be sbe High Court within the meaning of this section. & It any party to, or witness in, any judicial proceeding offers to give evidence nn nnth no enlaun fit in For EAS la teeds 1 purt Rsty 9. Il ang party to any jadicial pmereling plans to be bound by any och onth or kolemn affirmation as is mentioned in Section 8, il sach Court may ask my oth or Bimation is made by the other party to, or by any te beter hina witness in, soch procrmuling the Court may, uit thinks fit, oplo make cene proposed ask each party or witness, or cause him to boasted, whether or not be will make the catli or abruption : Prorall that no parts or witorss shall be compelled to attend personally in Court wolely for the purpose of angrenog such question ·XSIY ACT NO. X OF 10. If such party or witness agrees to make such ition, the Conrt may proceed to administer it, or if of such a nature that Administration oath 11 accepted. 't may be more conveniently made out of Court, the Court may issue a Commission to any person to administer it, and authonizo him to tako tho evidence of the person to be sworn or affirmed and return it to the Court. 11 Erdezco conclusive The evidence so given sha!), as against the person who As galust person oller offered to be bound as aforesaid, bo conclasire proof of the ing to be bound. matter stated 12 If tho party or witness refases to make the oath or solenn afirmation referred to in Section 8, he shall not be compelled to make it, Procelure in case of but the Court shall record, as part of the proceedings, the refuen! to make outh, nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refracd it, together with any reason which he may assign for bis refusal. T-11scellaneous. 13 No omission to takc any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the I'roceelings and cri: form in n bich any one of them is administered, ahall invali. dence not poralidated dato any proceeding or render inadmissible any eridonco wyormurinn.of outdoor whnteser, in or in respect of which soch omisason, ambtitation or irregularity took place, or Bhall atlect the obligation of a witness to state the truth. TOE RII. 11 Every person giring evidence on any object beforo denro inond to stato any Court or person hereby authorized to ndminuter nathannel tbo truth afirmations shall Le bound to state the truth on each suhject. Amendment of renal 15. The Indian renal Code, Sections 178 and 181, shall bo Cole, Dectinha 178 & construed as of after the word "outh," the words or afir. 191. mation" were inserted 16. Subject to the provisions of Soctions 3 and 5, no person appointed to nny ottice shall, before entering on the execution of the datice or OMcl oaths abolish his offico, bo required to make any onth, or to malo or aubscrib any affirmation or declaratia mbatover.