Indian Evidence - James Stephen

THE INDIAN EVIDENCE ACT

by JAMES FITZJAMS STEPHEN

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Title: THE INDIAN EVIDENCE ACT Author: JAMES FITZJAMS STEPHEN Language: English Subject: Fiction, Literature 'LJLWDOPublisher: World Public Library Association

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t^-

THE INDIAN EVIDENCE ACT

^-^^

(I.

OF

1872).

THE

INDIAN EVIDENCE ACT (I.

of 1872).

WITH AN INTEODUCTION

PRINCIPLES

JUDICIAL EVIDENCE.

*0E

By JAMES FITZJAMES STEPHEN,

Q.C.

fLanSon:

MACMILLAN AND Calcutta: Thacker, Spink

&

Co.

;

CO.

Bombay: Thackeb,Vining

MDCOCLXXII.

&

Co.

PEBFACE. On "

the 5th March, 1872, in moving that the " Indian

Evidence Act

"

shovdd be taken into consideration

by the Legislative

Council,

I

said

— " many

topics

" closely connected with the subject of Evidence are " incapable " press law. "

of being satisfactorily dealt with It

would be easy

on which the whole subject

to dilate rests,

by

ex-

upon the theory

and the manner in

" which an Act of this kind should be used in practice. " I think, however, that it would not be proper to "

do so on the present

"

put into

writing

occasion.

what

I

have

I

have therefore say

to

on

these

" subjects,

and I propose to publish what I have " written, by way of a commentary upon, or intro" duction to, the Act itself I hope that this may be " some use to Civil Servants who are preparing " in England for their Indian career, and to the law " students in Indian universities. The subject is " one which reaches far beyond law. The law of "evidence is nothing unless it is founded upon a " rational

conception of the manner in which truth

" as to all matters of fact whatever ought to

be in-

" vestigated."

written

This,

remarks were since

my

for

the

made, but

most

corrected

return to England,

ferred to. AuffUst.SOth, i,

1872.

Papek Buildings,

part

Tbmpli?.

is

before

these

and completed

the Introduction re-

—

POSTSCEIPT. In the Gazette of India of August 17, 1872, a Bill for the Amendment of the Evidence Act is published In the Statement of Objects and

for the first time.

Reasons appended to the BUI primary object of this Bill "which

it

is

time

opportiuiity

is

and other accidental

clerical

has been

is

" the

said that

to continue certain rules

believed were inadvertently

is

the Indian Evidence Act."

same

it

It

is

repealed

by

added that "at the

taken to errors to

correct

some

which attention

called."

If the Bill has already become or should hereafter

become law in

present shape, the following errata

its

should be made in the Act as printed below 1.

32,

S.

clauses

insert " 2.

S. 41, in

by

5

and

6,

after

:

"relationship"

blood, marriage, or adoption."

each of the last three paragraphs, after

the word "judgment" add

the words "order

or decree." 3.

S. 45, after

the word "art" add

"or

in

ques-

tions as to the identity of handwriting." 4.

S. 57,

paragraph

13, after the

word "road" add

" on land or at sea." 5.

66, after

S.

is "

add

" in

whose possession the document

" or to his attorney or pleader."

Postscript.

In

6.

9i, exception (2),

S.

Succession Act

" read.

vii

"under the Indian

for "

admitted to probate in

British India." 7.

S. 92, proviso 1, for "

In "

S.

want

In

want

of failure " read

or failure."

"when"

read "provided that when," and for the word " on" in the last line S.

for

108,

read " shifted to." 9.

In

S.

126 (paragraph immediately preceding the

explanation) and in section 128 insert "pleader" after "barrister." 10.

In

S.

126 paragraph

2,

for

"criminal" read

" illegal."

11.

In

155, paragraph 2, for " or has

S.

of a bribe

"

had the

read " or has accepted the

offer

offer

of a

bribe." 12.

In the repealing schedule No.

add "except

Of these

third column,

section 12."

errata three,

viz.,

substantial alterations in the it

3,

was drawn advisedly

Nos.

8, 10,

and

11,

make

Act on points on which

in the

words in which

it

now

stands, for various reasons which were carefully con-

sidered

and regarded as

points there

is

of course

satisfactory.

room

4,

Paper Buildwgs, Temple.

these

for difference of opinion,

but there was no inadvertence. September 30th, 1872.

Upon

TABLE

CONTENTS

OF

OF

CHAPTEE

INTRODUCTION.

I.

GENEEAL DISTRIBUTION OP THE SUBJECT.— Pp.

1-12. PAGE

Technical and

Law

English

General Elements of

of Evidence

^

" Evidence

2

3—5

Law

"

Natural Distribution of Subject

Relevancy of Facts

1

.

.

.

Fundamental Rules of English

Ambiguity of word

Law

6,7 7,8

.

9

.

Proof of Relevant Facts

10

Production of Proof

11

Tabiolar

.

Scheme

.

.

.

12

.

CHAPTEE

II.

A STATEMENT OF THE PRINCIPLES OF INDUCTION AND DEDUCTION, AND A COMPARISON OP THEIR APPLICATION

TO

SCIENTIFIC

AND

INQUIRIES—

JUDICIAL

Pp. 13—15.

....

Principle of Judicial and Scientific Inquiries

General Object of Science

13

14

... .16 ... ... ... ... ... ....

Pacts

.

.

15,

Definition of Pacts in Evidence Act

Propositions

.

.

True Propositions How framed

.

Induction and Deduction

.

.

16

.

17

.

.

.

16

.

17

.

18,

.

Methods of Agreement and Difference Their Difficulties

.

.

.

19

20, 21

21

X

Contents.

How

...

witt

dealt

PAGE .

.

Deductive Method

Comparison of Judicial and Difference as to

Amount

22,23

.

23,24 25

Scientific Inquiries

25—27

of Evidence

Difference as to Object of Evidence Difference

.

as to Trustworthiness

.

Evidence

of

.

27, 28

.

28,29

Advantages of Judicial Inquiries

29

Maxims

30

easily appreciated

Limitations easily perceived

31

Simplicity of Problems

32

32,33

Illustrations

Summary

.

.

33,34

Result of Judicial Inquiries to produce high degree of Probability

....

.

.

(

35

35

Meaning of Moral Certainty Moral Certainty a Question of Prudence

36

.

Principle on which Probabilities are estimated

Two

Classes of Inferences in Judicial Inquiries

37

38,39

.

40

Theory of these Inferences Inferences from Assertion to Truth of Matter Asserted Its Difficulties not AffeotedbyEulfes of Evidence

40 41,42

Grounds of Belief and Disbelief of a Witness Inference from Truth of Matters Asserted to other Matters

42,43

.

Comparatively easy Facts proved must

Rule as

to Cm-pus

Summary

.

fulfil

45

...

.

46

Test of Method of Difference

Delicti

47

48,49

.

of Conclusions

50,51

CHAPTER

III.

THE THEORY OF RELEVANCY, WITH ILLUSTRATION.— Pp.

52—128.

Relevancy means Connection by vfay of Cause and Effect Reasons of wider Definition in Evidence Act .

Illustrations

:

— Case

of E.

v.

Donellan

Case of R.

v.

Case of R.

V.

Richardson

Case of R.

v.

Patch

Case of R.

v.

Palmer

Irrelevant Eacts

.

.

Belaney

.

....

.

.

.

.

.

52

— 54

55,56

.

67

62

63—67 68

— 75

76, ,

.

.

82

81

— 121 1-22

XI

Contents. Facts apparcmtly but

Exclusion of Hearsay

Reasons

for it

.

not really relevant

.

...

.

.

PAGE 122

.

123

123—124 165, 124

Effect of Section 11

Unconnected but Similar Transactions

.... .... .... ... ...

121

.

Evidence of Opinion

.

Exceptions to Rules on Irrelevancy

.

Admissions

Statements by Witnesses

.

who cannot be

called

125

125

.

125

.

126

Statements under Special Circumstances

Judgments Opinions

126 .

127

.

127

127, 128

Character

CHAPTEE

IV.

GENERAL OBSERVATIONS ON THE INDIAN EVIDENCE ACT. -Pp. 129—134. English Cases not referred Judicial Notice

Oral Evidence

to

.

...... .....

.

.

.

Presumptions English

How

Law

....

129

.

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

.

as to Presumptions

by Evidence Act

129

.

129

129

.

130 .

131

131—132 132,

133

.

133

Legal Principles improperly called Presumptions

.

133

Estoppels

.

134

Affected

.

.

.

.

;

THE

PRINCIPLES OF JUDICIAL EYIDENCE BEING AN INTEODtfCTION TO THE

INDIAN

EVIDENCE ACT (I.

of 1872).

CHAPTER

I.

GENERAL DISTRIBUTION OF THE SUBJECT.

Almost every branch of law some

grounded

are

upon

is

composed of rules of which convenience

practical

experience of actual litigation, whilst

nected with

the

in

such as

of

which

but

it

relate

dishonest persons tamper

to

the effect

of

several of the

madness

forms

imitate

coin;

or

those which relate to

responsibility,

which depend on

most interesting branches of moral and physical

This

of evidence

on

general

is

than

of its provisions,

perhaps more conspicuously true of the law of

Many

any other branch of the law.

however useful and necessary, are technical

and the enactments in which they are contained can claim no other merit than those of completeness

The whole subject of documentary evidence

and perspicuity. is

of

this nature.

Other branches of the subject, such as the relevancy of are intimately connected with the

knowledge, and with

The

object

the

subject,

logic,

as

of this introduction

by

stating

the

whole theory of human

applied is to

theory

facts,

to

human

illustrate

conduct.

these parts of

on which they depend

and on which the provisions of the Act proceed.

As

to

more

i.

Technical ^"^^^^"'^'

society, ments

the various

with

contains provisions, such as

also

learning.

those which

the

others are closely con-

human nature and many provisions of no

constitution

Thus the criminal law contains interest,

and

chap.

of

;

General Distribution of the Subject.

2 Chap.

I.

nothing to add to

Act speaks

the

matters,

technical

its

for

itself,

and

I

have

contents.

Evidence Act to English law

more than an attempt to law of evidence to the form of express yeduce the English ° J T. propositions arranged in their natural order, with some modi-

denc^

fications

Relation of

The Indian Evidence Act

is little

•

•

necessary

rendered

peculiar circumstances

by the

of India. English law of evidence-

Like almost every other part of English law, the English law No part of the law has Qf evidence was formed by degrees. o ./

been

left so entirely to

The

Judges.

of

but

the discretion of successive generations

Legislature

very

tiU

with the matter, and since

little

it

interfered

recently

began to

interfere, it

has done so principally by repealing particular rules, such as that which related to the

disc|;ualification

of

witnesses

by

and that which excluded the testimony of the parties has not attempted to deal with the main principles of the

interest,

but

it

subject. Its

want

°'^^'"'

range-

ment.

It is

natural that a body of law thus formed

and with reference

to particular cases, should '-

arrangement, and in particular that

its

by

degrees,

be destitute of

leading terms should

by authority that general rules should have been laid down with reference rather to particular circumstances than to general principles, and that it should have been found necessary to qualify them by excep-

never

have

been

defined

;

tions inconsistent with the principles Difficulties

ing

it.

When subject courts

this

confusion had once been introduced into the

was hardly capable

it

on which ihey proceed.

of law, or

by

writers

of being

remedied either by

of text-books.

The

courts

law could only decide the cases which came before according to the rules

in force.

of

them

The writers of text-books

could only collect the results of such decisions.

The

Legisla-

ture might, no doubt, have remedied the evil, but comprehensive legislation

upon

abstract questions of

law has never yet been

attempted by Parliament in any one instance, though in several in India.

weU-kuown

it

has

cases been attended with signal success

Ftindamental Rules.

-i

That part of the English law of evidence which professes to Chap. i. be founded upon anything in the nature of a theory on the Fundasubject

may

be reduced to the following rules

:—

mies^of

(2)

Evidence must be confined to the matters in Hearsay evidence is not to be admitted.

(3)

In

(1)

Each

law or evidence.

the best evidence must be given.

all cases

of these rules

which

'evidence,'

English

issue.

is

very loosely expressed.

the leading term of each,

is

The word undefined

is

and ambiguous. It

sometimes means the words uttered and things exhibited

by witnesses before a court of At other times, it means the

justice.

proved to exist by those

facts

words or things, and regarded as the groundwork of inferences as to other facts not so proved.

Again,

it is

sometimes used as meaning to assert that a par-

under inquiry.

ticular fact is relevant to the matter

The word

'issue'

is

used with reference to the pleading, the

main

accuracy, the

precise

party to a

suit,

it is

cases

English

which

is

to

matter which

is

affirmed

object of

and denied by the

In other cases

of

rules

strict

many

In

ambiguous.

it

is

special

with great

define,

by the one

other.

used as embracing generally the whole

subject under inquiry.

Again, the word times it

it

'

hearsay

is

Some-

used in various senses.

means whatever a person

is

heard to say

;

sometimes

means whatever a person declares on information given by

some one

else;

sometimes

synonymous with

'

issue

as

being

must be confined

to the

it

is

treated

nearly

irrelevant.'

If the rule that evidence in

'

were construed

strictly,

it

would

matters Ambiguity

run thus

' :

ISTo

°^

confin^^

those facts which ™g ^viexcept witness shaU ever depose to any ^ > fact, ^ dence to by the form of the pleadings are affirmed on the one side and issue. '

_

denied on the other.'

So understood, the rule would obviously

put a stop to the whole administration of exclude evidence of decisive

A sues B note.

on a promissory

justice, as it

would

facts.

note.

B

denies that he

made

the

'

General Distribution of the Subject.

4 Chap.

A

I.

B

has a letter from

note,

and promises

proved

pay

to

This absurd result

the note, and not whether he

it.

is

avoided by using the word

meaning not testimony but any

may be inferred.

must be confined ,

This admission could not be

it.

B made

whether

is,

admitted having made

fact

may

Thus

be proved to

exist,

the rule

little

use

facts

may

run thus

except

facts

in

can be

of the facts in issue it

:

'

No

issue or facts

facts

from but

inferred;'

becomes so vague as

to

be of

from what sort of

for the question naturally arises,

;

the existence of other facts be inferred

To

?

this

question the law of England gives no explicit answer at

though partial and confused answers to parts of inferred

'

interpreted, the rule that evidence,

thus interpreted,

is

evidence

'

from which any other

fact

to matters in issue will

which the existence if

the

the rule referred to were construed strictly, because

if

the issue

as

made

in which he admits that he

it

all,

may

be

from some of the exceptions to the rule which excludes

hearsay.

For instance, there are cases from which

may sometimes be given may be inferred, although

that evidence

another fact

the inference

be founded

is to

fact to

be inferred

whom

the evidence

The which

full

is

is

be given

may

of a fact

be inferred

from which

the fact upon which

a crime, and although the

also a crime for

is to

it

is

answer to the question,

'

which the person agaiast on his trial.

what

facts are relevant,'

the most important of aU the questions that can be

is

asked about the law of evidence, has thus to be learnt partly

by

experience, and partly

and narrow

The

Ambiguity of the rule excluding hearsay.

collecting together such crooked

illustrations of it as the

rule that

'

^

hearsay n

,-<

degree, as each oi the ^^

by

one just given.

no evidence

is

'

is

vague to the

«,.-,, meanmgs of which the

word

susccptiblc is somctimes treated as the true one.

nowhere

down

'

last

hearsay

As

the

an authoritative manner, its meaning has to be collected from the exceptions to it, and

rule

is

laid

in

these exceptions, of which there are as thirteen, '

imply at

hearsay.'

least three different

many

as twelve

or

meanings of the word

Hearsay. Thus it is a rule that evidence may he given of statements which accompany and explain relevant actions. As no rule determines what actions are relevant, this factory

but as the rule

;

excluding

hearsay,

which a man

is

is

heard to

say.

that

in itself unsatis-

'hearsay'

If this is

which excludes

hearsay, the rule

i.

treated as an exception to the rule

implies

it

is

Chap.

means

meaning of

the

would run thus

it

that

'

:

No

witness shall ever he allowed to depose to any thing which he

has heard said by any one

else.'

The

result of this

would be

that no verbal contract could ever be proved, and that no one

could ever be convicted of using threats with intent to extort

money, or of defamation by words spoken, except in virtue of exceptions which stultify the rule.

Most of the exceptions indicate that the meaning of the word hearsay is that which a person reports on the infor'

'

mation of some one

is

and not upon the evidence

This, with certain exceptions,

senses. rule,

else,

but

it is

is

of his

no doubt a valuable

not the natural meaning of the words

no evidence,' and

own

'

hearsay

in practice almost impossible to divest

it is

words of their natural meaning.

The

may

rule that documents

which support ancient possession

be admitted as between person

them,

is

This

who

not parties to

are

treated as an exception to the rule excluding hearsay.

implies

that

quite, equivalent to

the

word

the word

'

'hearsay' irrelevant.'

nearly,

is

if

not

But the English

law contains nothing which approaches to a

definition

of

relevancy.

The ,

fact

of

rule

is

the

which requires that the best evidence of which a

susceptible

three

should be

rules

referred

one of the most useful. obvious maxim, that

know about

possible authority.

man his own

if

a matter,

It is

a

given,

to

is

above,

the

and

most it

is

distinct

certainly

simply an amplification of the

know aU are to him

wishes to senses

that he can

the highest

If a hundred witnesses of unimpeachable

character were all to swear to the contents of a sealed letter,

and

if

the person

who heard them swear opened

the letter

Rules as to nP^t evidence.

—

General Distribution of the Subject.

6 Chap.

and found that

I.

its

contents were different, he

would conclude,

without the intervention of any conscious process of reasoning at

The ambiguity

Ambiguity "evidence."

that they had sworn

all,

what was not

word

of the

'

evidence

great deal of obscurity apart from that

In

rules above mentioned.

and general purposes,

it

is

true. is

'

the cause of

which

scientific inquiries,

a

gives to the

it

and

for popular

no doubt convenient to have one

word which includes

The testimony on which a given fact the facts so believed, and the arguments founded upon them.

(1) (2)

(3)

For instance, tn the

word

tianity," the

is

title

of " Paley's

is believed.

Evidences

of Chris-

The nature

used in this sense.

of the

work was not such as to give much importance to the distinction which the word overlooks. So, in scientific inquiries, it

is

seldom necessary

occasion to refer

(foi

reasons to

hereafter) to

lay stress upon

between the testimony on which a

In judicial

fact itself

most

important,

mean mode ''

l.aiTty.'"

is

have

the difference

believed,

and the

and the neglect

to

observe

is

has thrown

it

by causing English lawyers

overlook the leading distinction which ought to form the

on which the whole law should be

principle

Effects of

fact

shall

however, the distinction

inquiries,

the whole subject into confusion to

which I

I

classified.

the distinction between the relevancy of facts and the of proving relevant facts.

The use of the one name evidence for the fact to be proved, and the means by which it is to be proved, has given a double meaning to every phrase in which the word occurs. '

Thus, for instance, the phrase

means

ment

'

'

primary evidence

a relevant fact, and sometimes the

opposed to a

as

opposed to

'

copy.

direct evidence.'

usually means a

fact,

'

'

sometimes

original of a docu-

Circumstantial evidence

But

'

'

is

circumstantial evidence

from which some other fact

is inferred,

means testimony given by a man as to what he has himself perceived by his own senses. It would thus be correct to say that circumstantial evidence whereas

'

direct evidence

'

—

English

Law

of Evideiue.

7

—

must be proved by direct evidence a clumsy mode of expression, which is in itself a mark of confusion of thought. The evil,

goes beyond mere

however,

Chap.

i.

clumsiness of expression.

People have naturally enough supposed that circumstantial

and direct evidence admit of being contrasted in respect of their cogency,

and that

which they ought

to the conditions is

different canons

convinced by them.

and

of proof,

word It

'

an

is

This,

can be laid down, as

to satisfy before the court

I think,

theory

confuses the

due entirely to the ambiguity of the

error,

evidence.'

would be a mistake

character and

to

infer

from the unsystematic

absence of an'angement which belong to the law

English law of evidence that the substance of the law

On

bad.

the contrary,

it

it is, is

to

what

it

itself is

of s™^°'=£-

possesses in the highest degree the

English case law,

characteristic merits of English case law.

as

Merits of

ought to be, and might be,

if

it

were

properly arranged, what the ordinary conversation of a very clever it,

man on

and

as

would be

down as he passing circumstances furnished him with all sorts of subjects

to the

written

matured and systematic statement of It is full of the

berate opinions.

the result of great

most vigorous

sagacity applied

to vast

uttered

a text,

his deli-

sense,

and

is

and varied ex-

perience.

The manner

in

which the law of evidence

the general theories which give

stood

it its

is

interest can

related

be under-

only by reference to the natural distribution

subject,

which appears

All rights and

to be as follows

liabilities

to

of the

;

are dependent

upon and

arise out

of facts.

Every judicial proceediag whatever has ascertaining of

some

right or liability.

for its purpose the

If the proceeding is

criminal, the object is to ascertain the liability to

of the person accused. is to

ascertain

some right of property

right of one party, of relief.

If the proceeding

and the

or

is

punishment

civil,

the object

of status,

liability of the other, to

or the

some form

Natural tion"ofVhe subject.

——

8 Chap.

General Distribution of the Subject. I.

In order to law

must be made by

provision

result,

foUowing objects

the

for

effect this

the

First,

:

legal

particular classes of facts in establishing rights

must be determined. called ^substantive

must be

laid

This

law.

effect

and

of

liabilities

the province of what has been

is

a

Secondly,

down by which persons

of

procedure

may

apply the

others,

two main

course

interested

substantive law to particular cases.

The law of procedure branches,

—

particular

amongst

includes,

the law of pleading, which determines what in

(1)

cases

the

are

questions

dispute between

in

the

how

parties,

and

parties

are to convince the court of the existence of that state

the law of evidence, which determines

(2)

the

of facts which, according to the provisions of substantive law,

would

establish the existence of the right

they allege to Illustration.

which

exist.

The following for Rs.

or liability

1,000.

a simple illustration

is

B

says

that the

:

A

sues

B

on a bond

execution of the bond

was

procured by coercion.

The substantive law

is,

that a bond executed under coercion

cannot be enforced.

The law

A

which

is to establish his

in

the method according to

right to the

One

secured by' the bond.

manner

down

of procedure lays

payment

of the

sum

of its provisions determines the

which the question between the

parties is to

be

stated.

The question

stated under that

provision

is,

whether the

execution of the bond was procured by coercion.

The law (1)

of evidence determines

What

sort of facts

may

the existence of that which

is

be proved in order to establish defined

by the substantive law

as coercion. (2)

(3) (4)

What

Who How

Thus,

sort of proof is to

is to

is it to

before

applied to

give

be given of those

facts.

it.

be given.

the law of evidence

any particular

case, it

is

can be understood

or

know

so

necessary to

—

Relevancy of Facts.

9

mucli of the substantive law as determines what, under given states of

much

would be the

fact,

of the law

what questions

rights

of procedure as

parties,

so

determine

to

sufficient

is

and

I.

open to them to raise in the particular

is

it

the

of

Chap.

proceeding.

Thus in general terms the

upon the following

provisions

law of evidence subjects

(2)

The relevancy of facts. The proof of facts.

(3)

The production of proof

(1)

to

For

exhaustive.

is

be relevant, and that

Court

is

in

existence,

a

position

nature,

ascertainment

and

of

to

of relevant facts.

if

we assume

its

existence

go

on

extent of

or

which

is

to

this

that a fact

how

right

or

the

liability,

the

the ultimate object of the inquiry,

carried further.

may be

more particularly

.TJie

rights (1)

facts,

and

Relevancy liabilities

known

affects

it

The matter must, however, be I

is

duly proved, the

is

say

the

account of the

Court has to do.

this is all that the

general heads

Result,

:

The foregoing observations show that matter

of

consists

distributed

of Facts.

—Facts

may

The three

be

as follows

related

:

to

in one of two ways,

They may by themselves,

in

or

Reievancy i^F

connection with other

constitute such a state of things that

the existence

*^'t'

in

issue,

of

the disputed right or liability would be a legal inference from

them. arises

From of

the fact

necessity

that

A

is

the eldest son of B, there

A

the inference that

is

by the law

England the heir-at-law of B, and that he has such

From

thaf^status involves.

of

B

under certain

the fact that

circumstances, and

A

rights

of as

caused the death

with a certain inten-

tion or knowledge, there arises of necessity the inference that

A

murdered B, and

law

is Liable

to

the

punishment provided by

for murder.

Facts thus ^related to a proceeding

may

be called facts in

issue, unless their existence is undisputed. (2)

Facts,

which are not themselves in issue in the sense

above explained,

may

•

affect

the probability

1

•

of the existence

2.

Rele-

V3Ilt 13.Cts

lo Chap.

General Distribution of the Subject. I.

foundation of inferences

of facts in issue, and be used as the

them

respecting

Act

;

such facts

as relevant facts.

All the facts with which

can in any

it

event be necessary

concern themselves, are included in

of justice to

courts

for

the Evidence

in

described

are

these two classes.

The

first

should decide

evidence

what

is,

answer to this question

facts

are

law

the

of

The

relevant.

be learnt from the general theory

to

is

which

therefore,

question,

great

of judicial evidence explained in the foUowing chapter.

What

facts are in issue in particular cases is a question to

be

determined by the substantive law, or in some instances by that

branch of the law of procedure which regulates the forms of pleading, civil or criminal.

Proof of facts.

II. is

The Proof of Relevant

Facts.

—Whether an alleged

fact

a fact in issue or a relevant fact, the court can draw no in-

ference from

its

existence tiH

it

believes

it

to exist

;

and

it

is

obvious that the belief of the court in the existence of a given fact

ought to proceed upon grounds altogether independent

of the relation

of the

proceeding in which question

is

fact

existence

its

whether

the object and nature of the

to

A

wrote a

is to

may have

crime by B.

It

may

court cannot act

^he

upon

a

libel.

it

confession of crime

the

unless

fact it

to

the

believes

but what-

;

proceeding, the that

A

did write

belief

court requires the

writing of the letter

is

production

.

of

the original

when the

a crime, there can be no reason

should be satisfied with a copy is

may have been

must obviously be produced, in each mentioned, by the same or similar means. If

and that

of the cases

may have

supply proof of an alibi in favour of A.

may be an admission or a ever may be the relation of letter,

It

letter

The

constituted the motive for the commission of a

It

the

The

letter.

contained the terms of a contract. It

be determined.

a motive for a crime.

In

when

short,

why

it

the writing of the letter

the

way

in

should be proved depends on the nature of the

on the relation of the fact to the proceeding.

which a fact,

fact

and not

Oral and Documentary Evidence. Some

facts are too notorious to reqiiire

i ]

any proof

at

and Chap.

all,

of these the court will take judicial notice; but if a fact does

i.

I.

judicia

require proof, the

convinced of uttered,

or

it is

instrument by which the court must be evidence by which I mean the actual words ;

documents,

in court, and

other

or

things

2°'oral evidence.

produced

mentary"

not the facts which the court considers to be

^'"^^"'=^-

proved by those words and documents. of the

word must be

third

class

either

Evidence in this sense

of things

A

documentary.

or (2)

(1) oral

might be formed

actually

produced in

court,

not being documents, such as the instruments with which a

crime was committed, or the property to which damage had

been done, but this division would introduce needless intricacy into

the matter.

The reason

and documentary evidence

is

distinguising between oral

for

that in

many

employment

of the latter excludes the

cases the existence

of the former

condition of material things, other than documents,

proved by oral evidence, so that there

is

;

but the

is

usually

no occasion to

dis-

tinguish between oral and material evidence. It

may

be said that in strictness aU evidence

documents or other material things must be evidence before

the

court

can take

notice

unnecessary to discuss the justice of phrase

'

documentary

convenient

evidence

common

and in

avoiding the use of the word in which most writers use

it,

'

is

The

evidence that

is

it

'

by

of them. criticism,

only

in the

as

oral,

identified

ambiguous,

not

use. '

this

is

oral

It

as

is

the

and

reason

is

for

general sense

leads, in practice, to

confusion, as has been already pointed out.

—

The Production of Proof. This includes the subject the rules upon which answer the of the burden of proof III.

:

question,

witnesses is to

By whom :

is

the rules

proof to be given

?

upon which answer the

give evidence, and under what conditions

of the examination of witnesses

the

question.

how

is

How

are

their evidence

The

to

the

:

subject

question, ?

The

of

who

subject

the rules upon which answer

witnesses

be tested

?

to

be examined,

Lastly, the

effect

and

upon

Produc-

^^°^

—

12 Chap.

General Distribution of the Subject. I.

the subsequent proceedings, of mistakes in the reception and rejection of evidence

may

be included under this head.

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

The object of legal proceedings is the determination of ri^ts and liabilities Trhich depend on facts (§3).

with

connected issue, §

the

5—16.

— admissions,

—

31. § 17 statements by persons who cannot be

I

In

issue,

§

called as witnesses,

Relevant to the issue (§ 3) which may be

3.

§

32—3.

—statements under special circnaistances, §

34-9.

-judgments

*

in

— —

other

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

§

—

They may be

—

—primary proved by

Judicially noticed, ch.

oral evidence, ch. iv.

iii.

or condary,

proved by

documentary evidence

(ch. v.)

which

se-

§61—6. —attested

is

or

un-

attested, §

67—73.

-public or private,

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

given

must

by

witnesses (ch. ix.) they testify, subject to rules as to

examination (ch. x.). Consequence of mistakes defined, ch. zi.

§

74—78.

-sometimes

sumed

pre-

to

be

genuine, -

§ 79—90. exclusive or not of oral evidence, ch. vi.

3

Ge7ieral Theory of Jtidicial Evidence.

CHAPTEE A

STATEMENT

OF

THE

1

II.

PRINCIPLES

OF

AND

INDUCTION

DEDUCTION, AND A COMPARISON OF THEIK APPLICATION TO SCIENTIFIC

The to

INQUIRIES.

general analysis given in the last chapter of the subjects

which the law

the

AND JUDICIAL

of evidence

must

relate, sufficiently explains

To

arrangement of the Indian Evidence Act.

general

understand the substance

of the

Chap. il

Act

it is

necessary to have

some acquaintance with the general theory of judicial evidence.

The

object

of the

and to compare

its

present' chapter is to

explain this

application to physical

science

application to judicial inquuies.

theory

with

its

—

Huxley remarks in one of his latest works " The vast results obtained by science are won by no mystical faculties, by no mental processes, other than those which are practised by every one of us in the humblest and meanest Mr.

•'

A detective policeman discovers

affairs of life.

the marks

with that

a burglar from

made by his shoe, by a mental process identical by which Cuvier restored the extinct animals of

Montmartre

from fragments of their bones, nor does

process of induction

that

and deduction by which a lady finding

a stain of a particular kind upon her

dress,

concludes that

somebody has upset the inkstand thereon, differ in any way from that by which Adams and Leverrier discovered a new planet*

The man

of science, in fact, simply uses with scru-

pulous exactness the methods which

every

moment

we

use carelessly." *

Lay Sermons,

p. 78.

all

habitually and at

^"''" J^""-

ley on physical judicial inl*"''^^-

A

H Chap.

tion of his remarlcs .to

law of evidence.

inverse application.

These observations are capable of an

II.

Applica-

Statement of the Principles of Induction.

methods in question to the investigation of matters of every-day occurrence, with a greater degree of exactness than is commonly needed, it is necessary This rest. to know something of the theory on which they

we wish

If

is

to apply the

specially important when, as in judicial

On

investigations.

have been imposed,

is

the

positive

it is difficult

is

conditions

understand their import-

to

theory on which

It appears necessary for these

understood.

upon the general subject

a certain extent

reasons to enter to

it

law upon such

when such

other hand,

significance, unless the

ance or their true

they are based

by

conditions

impose

necessary to

proceedings,

of the investigation of the truth as to matters of fact, before

particular

attempting to explain and discuss that it

which

General

relates to judicial proceedings.

First, then,

what

object of science.

to discover, collect,

is

appears,

illustration of its terms,

tions, (3)

it

what

are facts

Indeed,

perception.

namely,

(1)

one

for

thing that conscious

thing,

we

perceive,

we

as

We

regard

and we perceive

all

our perceptions of the external world

as

is

the

with

case

feelings of our

own

our perceptions

feelings.

collectively

They

the

of the

from the

whatever are

;

is

we

distinct

are

from

the case with

others, in

of the

time only,

thoughts and

our perceptions,

of

whole sum

constitute, in short, the

are acquainted, for without

existence

two

are

minds.

Whateyer may be the objects

make up

it

ot

are conscious of every-

Moreover, our perceptions

of

are in a state

and perception

consciousness

according

we

life

each other, some both in space and time, as

facts.

proposi-

facts, (2)

1

passive or active point of view.

External

facts.

necessary to enter upon

is

During the whole of our waking

names

It is

?

the truth of propositions.

First, then,

Facts.

the general problem of science

and arrange true propositions about

Simple as the phrase

some

branch of

external

entering world,

of our

thoughts

they

and

world with which we

upon the question of the

it

may

be

asserted

with

5

External and Internal Facts. confidence that our knowledge of

perceptions

;

that

for

illustration

composed,

we

should perceive

No

we were

The human

purpose.

of this.

if

one

of our

jir&t,

and, secondly, of the inferences which

from them as to what situated

it is

1

Chap.

ii.

we draw

favourably-

body supplies an

doubts that

his

own body

is

composed not only of the external organs which he perceives by his senses, but of numerous internal organs, most of which it is

highly improbable that either he nor any one else wiUever

see or touch,

and some of which he never

of things, see or touch as long as

he

can,

from the nature

When

lives.

he afiSrms

the existence of these organs, say the brain or the heart, what

he means

is

that he

is

led to believe from

by other persons about human

human

other

that

bodies,

if

what he has been

told

bodies, or observed himself in

his

skull

and chest were

laid

open, those organs would be perceived by the senses of persons

who might There

is

direct their senses towards them.

another class

of perceptions,

duration, and not perceived

which

are,

nevertheless,

utmost importance.

by the

distinctly

transient

five best

marked

perceptible

These are thoughts and

in

their

senses,

and of the

feelings.

Love,

hatred, anger, intention, will, wish, knowledge, opinion, are all

perceived that a

by the person who

man

is

feels

them.

When

it is

affirmed

angry, that he intends to sell an estate, that he

knows the meaning of a word, that he struck a blow voluntarily

and not by accident, each proposition

relates

to

a

matter

capable of being as directly perceived as a noise or a flash of light.

The only

difference between the

When

sitions is this.

it is

affirmed that a

intention, the matter affirmed is one

can perceive;

when

it

is

see,

man

man

has a given

man which may

is

sitting

be perceived

by any other perso:* able to But the circumthe purpose.

either event is

for

regarded as being, or as having

by some one or other, what we mean, and aU that we mean, when we say that been,

or

himself, but

and favourably situated

stance that

classes of propo-

which he and he only

affirmed that a

standing, the matter affirmed is one

not only by the

two

capable of being

perceived

is it

internal ^^'^'^^'

—

A

i6 Chap.

II.

Statement of the Principles of Induction.

when we denote the same thing by calling The word fact is sometimes opposed to theory

exists or existed, or it

a

'

fact.

sometimes

opinion,

to

modes of using

are.

it

'

sometimes to

more or

and

exists,

it

as

is

to

difficult

assertion that a thing exists

it

these

all

When

rhetorical

less

used with any degree of accuracy

but

feeling,

it

is

implies something which

attach

any meaning

which neither

is,

the

to

nor under any

conceivable circumstances could be perceived by any sentient

any meaning

being, as to attach

which can be so perceived does

to the assertion that

anything

time of percep-

not, or at the

tion did not, exist. Definition

with reference to this that the word

It is

'

fact

'

defined

is

of facts in

Evidence

in the Evidence Act (§ 3) as meaning and including

Act.

(1)

Any

thing, state of things, or relation of chings capable

of being perceived (2)

Any

the senses, and

mental condition of which any person

important to

It is

as

by

remember, with respect to

aU thought and language contains a

generality,

it

is

with greater or

we are concerned into Thus we might speak of

facts.

the

doubted, or

if

the

number

a

room

that

facts,

same

of

facts

minuteness, and to decompose every fact

with which

persons in a

conscious.

element

certaia

always possible to describe

less

is

at

one time as a

fact,

presence

but

other circumstances rendered

respective

positions,

furniture,

and many

their

if

the fact were

position

might

particulars

several

of

it desirable,

occupations, the

other

of subordinate

their

of

have

to

the

be

specified. Proposi-

Such being the nature

tions.

proposition

?

A

as to raise in the

of facts,

proposition

is

what

the meaning of a

is

a collection of words so related

minds of those who understand them a

cor-

responding group of images or thoughts.

The other

by which words are distinguished from their power of producing corresponding

aharacteristic

sounds

thoughts

though

or

is

images.

most words

I raise

images in the mind, this

say

thoughts

what may be is

or

images,

because

intelligibly

true principally of

those

called

which

7

Framing of

Such words

relate to visible objects. '

up

call

smell,'

Propositions. '

hard/

hardly be described as images, and the same

which qualify

of words

others, like

'

'

soft/

taste,'

Chap.

Ii.

more true

is still

although,'

'

but they can

thoughts,

definite

sufficiently

as

1

'

whereas,'

and

other adverbs, prepositions and conjunctions.

The statement that a

proposition, in order to be entitled to

the name, must raise in the mind a distinct group of thoughts or images,

may

'that horse

knows that '

be explained by two

niger

I see a sound

'

means

form a proposition to no one, unless some

sea)

Such bdug a

The words

black, but to no one else.

signification is attached

an arm of the

The words

illustrations.

form a proposition to every one who

niger'

is

word

to the

'

sound'

which would make the words

what

proposition,

is

instance,

(for

intelligible.

a true proposition

A

?

mind thoughts those which would be excited in

true proposition is one which excites in the or images

the

mind

riding

corresponding to

Tme

pro-

^°^' '°"^'

of a person so situated as to be able to perceive the

which the proposition

facts to

iiiusti-a-

"°"^'

down

The words

relates.

'

man

a

is

the road on a white horse' form a proposition,

because they raise in the mind a distinct group of images.

The proposition

is

true if all persons favourably situated for

purposes of observation did actually perceive a corresponding

group of

facts.

The next question is. How are we to proceed in order to How true proposiascertain whether any given proposition about facts is true, tionsareto .

.

This, and in order to frame true propositions about facts ? already observed, is the general problem of science, which

only another

name

knowledge so arranged

for

as

^

"^"^

is

as to be easily

imderstood and remembered.

The

facts, '

in the

must be correctly observed. Facts must ^ 11-''^ co-rectly observed must, in the next place, be recorded

first

place,

m

.

The observations made

apt language, and each of these operations delicacy

almost

and

difficulty

impossible to

than

is

one of

usually supposed

is

discriminate between

fa'r ;

greater

for

it

is

observation and

a bare record of our percep-

inference, or to

make language

tions, instead of

being a running commentary upon them. c

To

pg^i^ie" ''°^^^^-

8

A

1

Chap.

IT.

Statement of the Principles of Induction.

go into these

and some kindred points would extend

inquiry beyond

them

reasonable bounds, and I accordingly pass

all

with

over

this

reference

slight

and language

how

are they to be

common

purposes,

applied to inquiries into matters of fact

An

Mr. Mill's

fixed order

prevails in the world,

existence.

their

to

Assuming, then, the existence of observation sufficiently correct for

logic^— a

this

answer to these questions

?

sufficient

for

present

the

purpose will be supplied by giving a short account of what is The g^j^ ^^ i^q subiect by Mr. Mill in his treatise on logic. ° substancc of that part of it which bears upon the present •'

•"

subject is as follows

observation

of the

The

:

great lesson learnt from the

first

which we

world in

that a fixed

live, is

order prevails amongst the various facts of which

Under given

posed.

com-

is

it

conditions, fire always burris wood, lead

always sinks in water, day always follows night, and night

By

day, and so on.

conditions

are

happen.

We

we

degrees

under which these learn,

certain quantity of air

is

and

instance,

for

what the

able to learn

are

such

other

that

events

presence

the

a condition of combustion

of a

that the

;

presence of the force of gravitation, the absence of any equal or

greater

acting in

force

an opposite

maintenance by the water of

its

of lead in water

maintenance by the

bodies

positions,

of

;

their

and the persistency of the various

their paths are

the

properties as a fluid, are con-

ditions necessary to the sinking

heavenly

and

direction,

respective

forces

determined, are the conditions

that the

by which

under which

Induction

day and night succeed each other. The great problem is to find out what particular antecedents

tion.

S'^'i

the

consequents are thus connected together, and what are conditions

processes

are

of

their

employed, namely,

Deduction assumes and derives

which

it

rests

a great part at least affords

For

connection.

of carrying

this

and deduction.

induction

upon previous value

of its

purpose two

inductions,

and

from the means

on the process of thought from

the point at which induction stops.

the ultimate foundation of induction

The ?

questions, AVhat is

Why

are

we

justified

Observation of Facts. in believing tliat

ig

men will die because we have reason to men hitherto have died? Or that every

all

believe

that

particle

of matter

all

whatever wiU continue to

attract

other particle of matter with a force bearing a

proportion to

its

mass and

of matter have hitherto tions

which

lie

For practical purposes

is

limits

of

enough

to

are valid, and will be found

ferences

are

?

the present

ques-

inquiry.

assume that such

by experience

true results in the shape of general propositions,

we can

every

certain fixed

been observed to do so

it

ii.

because other particles

its distance,

beyond the

Chap.

in-

yield

to

from which

argue downwards to particular cases according to the

rules of verbal logic.

as every fact

What,

it

away.

would give us

can

for instance,

the ground.

it

facts

ob-

of™acts "^sufficient.

or no

A

?

natural

and

down.

tree is cut

It

Several birds which were perched upon

Its fall raises

and simple as

questions at least.

more

appear

a cloud of dust which

by the wind, and splashes up some Natural

little

Mere

were connected with and checked by other

than the following

simple

it fly

that

intricate

information xinless

falls to

extracted

which we can observe, however apparently simple,

in reality so

facts.

be

from the observation of nature or of human conduct,

directly

is

cannot

general propositions, however,

True

this

Why

of the

seems,

it

did the tree

dispersed

water in a pond.

raises fall

is

at

the all

?

following

The

tree

why did not the birds fall too, and how came they to away ? What became of the dust, and why did it disappear

falling,

fly

in the

aii",

which

it

whereas the water

was splashed

?

illustrations of the rules

of gravity,

them

is

fell

back into the pond from

To see in aU these facts so many by which we can calculate the force

and the action of

fluids

on bodies immersed in

the problem of science in general, and of induction and

deduction iu particular. Generally together

some

speaking, this

different groups

particulars,

and

problem

of facts

is

solved by comparing

resembling

differing in others,

inductive methods described by Mr.

each other in

and the

Mill are

in

different reality

no

Proceeddu'ction.

—

A

20 Chap.

II.

more

Statement of the Principles of Induction.

than

rules

The

comparisons.

these

arranging

for

last

methods which he enumerates are five* hut the three are

more than

little

method

the

special

and

agreement

of

method

the is

applied upon such a scale as to

make

difference.

equivalent

it

the

to

of difference..

Methods of

The nature

agreement and differ-

AU

ence.

of

other two,

iticonclusive, unless it is

Indeed the method of agreement

method

of the

applications

events

Every

of these

may

effect is

of which are

is

be regarded as

as follows

effects of

:

antecedent causes.

preceded by a group of events, one or more true

its

methods

cause or

and

causes,

all

of

which are

possible causes.

The problem

between the possible and

discriminate

to

is

the true causes.

whenever the

If

constant

one possible

cause

the

and

recurs,

causes precedes

its

the

extent

when

occurrence,

of possible

causes

a

particular

which

absent

set

of possible

co-exist,

one only being absent,

when

it

when

the effect was

was not produced,

The following

Illustrations.

materials

are

each case soap are

* 3.

illustration

makes the matter

mixed together is

on

produced, and in

two of the materials so mixed.

1.

The

The joint

of residues.

is

Arguments founded on such a arguments on the method of difference.

true cause of the effect. are

the

and does not occur when the

the possible cause which was present produced, and was

to

arguments on the method of agreement.

occurs

effect

of things

is

Arguments founded on such a

causes vary.

state of things are

set

cause which

measured by the persistency with which the

other possible

same

possible

probably the true cause, and the strength of this

is

probability is

If

one possible cause occurs, the

varying, the

causes

possible

other

effect occurs

several

plain.

It is

oil

state

Various

occasions.

each case

the

and

In alkali

probable from this

method of agreement. 2, The method of difference. method of agreement and difference. 4. The method 5. The method of concomitant variations.

1

Rules of Induction.

2

that oil and alkali are the causes of the soap, and the degree, of the probability

is

measured by the number

This

Various

is

of

materials,

which

oU and

of the

This

soap.

oil

alkali, are

would obviously be the same

materials, with

mixed, and soap

of

if

oil

two, are

are

alkali

and alkali

oil

method

the

is

and

The same

produced.

is

produced. The mixture of the the

and

oil

the method of agreement.

mixed, and soap exception

II.

of the experi-

ments and the variety of the ingredients other than alkali.

Chap.

is

not

is

the cause

The

difference.

and

the

alkali

of

case

were

only

Soap was unknown, and upon the mixture being

mixed.

made, other things being unchanged, soap came into existence.

These are the most important of the rules of induction induction

;

but

only one step c towards the solution of the probJ

is

Difficulties

—

^^^^"'^^

In the statement of the rules

causes producing the

for the sake of simplicity that all

—result as

i-

lems which nature presents.

same

of induction

the causes and

assumed

is

it

all

the effects under examination are separate

and independent

facts,

some one

effect.

single

and that each cause This, however,

may be produced by any causes may contribute to the

given effect

Various

This

effect.

is

peculiarly

If that

number

value

of instances,

its

method

not the

A

case.

production of a single in is

small.

is

connected with

one of several causes.

important

method of agreement.

is

is

reference

to

the

applied to a small

For instance, other

substances might produce soap by their combination besides oil

and

alkali,

say, for

that the combination of

instance,

and B, and that of C and

D

would do

were two experiments as follows

A

so.

Then,

there

:

(1)

oil

and

and B, produce

soap.

(2)

oil

and alkaU, C and D, produce

soap.

alkali,

if

A

would be produced in each case, but whether by the combination of oil and alkali, or by the combination of A and

soap

B, or

by that of C and D,

alkali,

A

with A, B,

watch

C

is stolen,

or

by the combination of oil, or D, would be altogether uncertain. or

of

from a place to which A, B, and C only

effect

of ™reement.

:

A

22 Chap.

II.

had

Statement of the Principles of Indiution. Another watch

access.

E

which A, D, and

A

one of three persons one of

is

the watch, but this

stolen

to

only had access.

In each instance,

must have

stolen from another place

is

whom

consistent Avith

is

it

having been stolen by any of the other persons mentioned. This weakness

^Yeakness of the

method of agreement can be cured

of the

method of

only by so great a multiplication of instances as to

agreement

highly improbable that any

make

it

other antecedent than the one

present in every instance could have caused the effect present in every instance.

statement of the theory of chances and

ITor the

on the probability of events, pursue the subject to the

upon

it

;

from the

A

either

but

its

A

observation

or 0,

who wish

many works which have been

general validity

common or B,

I miist refer those

A

wUl be

of

If

life.

or D, and

it

so forth,

same kind, no one could doubt that and the

test

when

applied

is

A

was the

instance,

for

it

had been committed committed

it

;

and

;

relied upon,

then, that one of

lastly, that in

of

thief.

peculiarly liable to error, as

would be necessary

separately in each of the cases

thefts,

such a test as

In the case

each separate alternative requires distinct proof. supposed,

written

by every one was certain that up to A and Z,

It is extremely difficult, in practice, to apply this,

to

inferred

had committed one of a large number of successive the

bearing

its

to

first,

ascertain

that a theft

two persons must have

each case the evidence bore

with equal weight upon each of them. Intermixeffects

and

interfe-

rence of causes with

The intermixture ^^'^

each other

is

of effects and the interference of causes

a matter of

much

greater intricacy

and

difficixlty.

It

may

each other. (1.)

"

take place in one of two ways,

In the one, which

is

viz.

exemplified by the joint opera-

tion of different forces in mechanics, the separate effects of all

the

causes

together, (2.)

"

continue

to

be

produced, but

and disappear in one In the

other,

action, the separate

are

compounded

total."

illustrated

effects cease

by the

entirely,

case

of chemical

and are succeeded

Difficulties.

by phenomena

23

and governed by

altogether different,

different

Chap.

ii.

laws."

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

In the

first case,

any one

i.

e.,

where an

effect

not the result of

is

but the result of several causes modifying

cause,

each other's operation, the results cease to be

Some

cernible.

and in

cancel each other.

by observation any

may

be the

fixed

body,

for

effect of the

action

of

effects.

exactly counteracting each other, but

be inferred from such an

A as

effect

balloon ascends into the

difficulty in

relation whatever between

A

the causes and the

This

Others merge in one sum,

an insurmountable

this case there is often

tracing

separately dis-

instance, is at rest

two opposite

how

forces

are such causes to

?

air.

This appears,

if it is treated

an isolated phenomenon, to form an exception to the theory It is in reality

of gravitation.

though several concomitant

an illustration of that theory

facts

and independent theories

must be understood and combined together before

this

can be

ascertained.

The

difficulty

of applying the inductive

cases arises from the fact that they state

of things

supposed.

assume the absence of the

The subsequent and antecedent

phenomena must be assumed separate observation before

methods to such

it

to be

capable of specific and

can be asserted that a

fact invariably follows another given fact, or that

possible causes

two

given sets of

resemble each other in every particular with

a single exception. It

is

necessary for this reason to resort to the deductive

method, the nature of

which

is

as follows

:

A

by induction is used as a premiss from which consequences are drawn according to the rules of logic, The as to what must follow under particular circumstances. position established

inference so if

drawn

is

compared with the

facts

Deductive

general pro- ™^

observed, and

the result observed agrees with the deduction from the in-

'°

'

——

A

'24 Chap.

II,

;

Statement of the Principles of Induction.

ductive

premiss,

the

inference

phenomenon

that the

is

is

The complete method, inductive and deductive,

explained.

thus involves three steps, Establishing

(1)

practice,

the

by

premiss

comes to

the

induction,

same

thing,

what,

or

by a previous

deduction resting ultimately upon induction (2)

Illustra-

;

Eeasoning according to the rules of logic to a conclusion

(3)

tion.

in

by observation.

Verification of the conclusion

The

whole

process

illustrated

is

and

by the discovery

proof of the identity of the central force of the solar system

known on

with the force of gravity as steps in (1)

were as follows

it

the earth's surface.

The

:

was proved by deductions resting ultimately upon

It

inductions that the earth attracts the

moon with

a force vary-

ing inversely as the square of the distance.

This

is

the

first step,

the establishment

upon

a process resting ultimately (2)

The

amount

moon's

was ascertained with would cause the moon

is

the second

the earth, and the actual

from the tangent being known,

what rapidity to fall if she

more acted upon by extraneous This

induction.

distance from

of her deflexion

by

of the premiss

step,

the

it

attraction

earth's

were no further

and no

off

forces than terrestrial bodies are.

the reasoning, regulated

by the

rules of logic. (3)

Finally, this

calculated velocity being

the observed velocity with which

all

compared with

heavy bodies

fall

mere gravity towards the surface of the earth (sixteen the

first

second, forty-eight in the second,

ratio of the

and

by

feet in

so forth in the

odd numbers), the two quantities are found to

agree.

This

the verification.

The

facts observed agree

with

tlie

facts calculated, therefore the true principle of calculation

has

is

been taken. This paraphrase, for

it is

no more, of Mr. Mill

—

is

I

hope,

•

;

and

Resemblances

and the manner

tigation,

Differences.

show, in general, the nature of

sufficient to

in

propositions about matters

'

which

of fact.

25

scientific inves-

Chap.

II.

aims at framing true

it

It

would be foreign

the present purpose to follow the subject

further.

to

Enough

has been said to illustrate the general meaning of such words

"proof" and

as

tific

to

their application

in

to

judicial

investigations,

it

will

investigations

some

are carried

essential

ever object, are,

they resemble each other.

points

cases whatever,

all

unknown, from

the

to

in

scientific

on.

quiries into matters of fact, of whatever kind

known

scien-

be convenient

compare the conditions under which judicial and In

to

Before inqiiiring into the application of these

inquiry.

principles

"evidence"

our

and with what-

inquiries

present

In-

from

the

perceptions

or

Judicial tific

inqui-

pa^d"— resemblances,

our

present recollection

(which

ception) of past perceptions,

might have perceived,

if

or hereafter should be,

to

is

in

itself

a present

what we might

we now

.

favourably situated for that purpose.

uniformity both in natural events are

perceive, or

were, or formerly had been,

They proceed upon the supposition that there that all events

per-

connected

is

a general

and in human conduct

together as

cause and effect

and that the process of applying this principle to particular cases, and of specifying the manner in which it Avorks, though a difficult and delicate operation, can be performed.

There inquiries is,

are,

however,

which

are

into the order

lated matters of

several

commonly

great

and course of nature, and fact,

whether

much

carefully

Differ-

for judicial

observed before

life.

inquiries into iso-

or historical pur-

These differences

we can undertake with

advantage the task of applying to the one subject the

principles

The

between

called scientific, inquiries that

poses, or for the purposes of everyday

must be

differences

which appear

first

difference

is,

to

be true in reference to the other.

that in reference to isolated events,

can never, or very seldom, perform experiments, but are tied down to a fixed number of relevant facts which can

we

never be increased.

Firstdiffer-

amou^ftof evidence.

A

26 Chap.

The great

II.

In

scienti-

fic

inqui-

ries unli-

Statement of the Principles of Induction. object of physical science is to invent

formulas (perhaps unfortunately called laws) which

sum

certained,

vip

and enable us

to

general

when

as-

understand the present,

mited.

and predict the future course ultimately

of

These laws are

nature.

deduced by the method already described from

individual facts

j

but any one fact of an infinite number will

Serve the purpose of a scientific inquirer as well as any other,

and

in

many, perhaps in most,

facts for the purpose.

In

spaces,

was necessary

different bodies

in

failed, or

observation was inaccurate, or instance,

allowed

the

for,

resistance

if

the

of

to measure the

falling

aud every such observation was an

however, one experiment

through given

isolated fact.

was interfered with,

a disturbing cause,

atmosphere

obviously as

and

much

to

it

for

any one

froiti

set

of

;

experiments were

be trusted as inferences drawn from any unlimited

may, by the way, be observed that the ease

with which this has

been assumed

aigument that the course of being uniform

centuries

as,

an

had not been

relevant facts can be multiplied to a practically

as

if

Thus, with regard to inquiries into physical nature,

set.

extent,

If,

nothing could be easier than to repeat the process

and inferences drawn other

possible to arrange

is

order, for instance, to ascertain the

force of terrestrial gravity, it

time occupied by

cases, it

under

before the

natiire

superficial

modern

in

all ages,

is

does impress variations.

discoveries

in

a strong

mankind

For

many

astronomy were

made, the motions of the heavenly bodies were carefully observed,

and inferences as

upou those useless tliey

observations.

to their

Such observations would have been

and unmeaning, but

had done in times

future course were founded

for the tacit

past,

assumption that what

they would continue to do for

tlie future.

In judicial inquiries limited.

In inquiries into isolated events this great resource available.

Where

the object

a particular occasion,

we

can

is to

is

not

decide what happened on

hardly ever draw inferences of

any value from what happened on similar occasions, because the groups of events which form the subject of historical or

Evidence limited. judicial inquiry are

so

assumed that they will

we wish ago, when

themselves.

sand

If

years

it

can scarcely ever be

that

they have repeated

that

intricate

repeat, or

27

know what happened two

to

quantities

specific

II.

thou-

oxygen

of

Chap.

and

hydrogen were combined, under given circumstances, we can obtain complete certainty by repeating the experiment the whole course of

human

history

;

but

must recur before we could

witness a second assassination of Julius Csesar.

down inexorably to a certain limited amount of evidence. We know so much of the assassination of Csesar as has been told us by the historians, who are to us ultimate authorities, and we know "With reference to such events

we

which experience shows

deductions as

subjects

which

new

or

doubts about

whether they

it,

the

in

re-

writers

on

historical

story

untrustworthy

arise

this

and

subject,

of

historians

at a considerable distance of time

and must remain

any

from inherent improbadetail in the

from general considerations as

character

are,

comprise the whole

for ever

from differences of

itself,

different narratives, or

relate,

by some unforeseen should come to light, a

materials on the subject

human knowledge upon

of

be necessary in

Unless

criticized.

few pages of general history will

they

creased.

and upon the authority

interest their feelings,

not be weighed

and

cannot

which are no longer extant and therefore can-

of materials

accident,

to

made by

true, statements

ceiving

bilities

it

Their testimony must be taken subject to aU the

no more.

amount

are tied

writing on

to

the

hearsay,

from the events which

for

ever,

unsolved

and

insoluble.

Besides accessible

this

in

difference

as

and

scientific

historical

great difference as to the objects to directed. is

two

those

The object

fold,

—the

who

feel

which happens elements of

of

at

also

human

all,

to be

is

of

inquiries,

evidence

there

is

a

which the inquiries are

inquiries into

satisfaction of a it

quantity

to the

the course of nature

form of

curiosity, which, to

one of the most powerful, and

one of the most generally useful

nature; and the attainment of practical

Object of inquiries.

A

28 Chap.

II.

Statemnt of the Principles of Induction.

results of very various kinds.

Neither of these ends can be

by nature have

attained unless and until the problems stated

been solved the

as

far

may be, but at all events truly, as goes. On the other hand, there is no

partially

:

solution

it

pressing

or immediate

scientific

question

is

be discovered after

made

for

necessity

Every

their solution.

for

always open, and the answer to attempts

vain

discover

to

it

may

it

have been

may

thousands of years, or an answer long accepted

be rejected and replaced by a better answer after an equally

In

long period.

short, in

or as near an approach to

and

needful,

scientific it

as can

inquiries, absolute

be made,

So long as any

the constant object of pursuit.

is

one thing

the

is

truth,

part of his proof remains incomplete, so long as any one ascer-

tained

fact

not

does

into

fit

scientific inquirer neither

is,

and exeniplify

nor ought to be,

the

extent,

at

of that

least,

Until he

satisfied.

has succeeded in excluding the possibility of to

his theory, the

possibility,

he

error,

bound

is

suspend

to

his

judgment.

In judicial inquiries

Object of '"" q"uiries.

the case

iiiq.iiiries)

(I

need not here

different.

is

It

notice

necessary

is

historical for

urgent

practical purposes to arrive at a decision which, after a definite

process has been gone through, becomes final and irreversible. It

under these circumstances,

obvious that,

is

the

and the high standard of certainty

suspension of judgment,

required by scientific inquirers, cannot be expected. decisions

made

inquin^es''''

trust-

worthy.

must proceed upon imperfect

materials,

advantage over those fact .

to

that the

j

who conduct

evidence

n

depend upon

than that which

,

and must be

is

of this

which a

scientific

are

have an additional

judicial inquiries, in the

before them, in

so

far

as

thev have

-,

oral evidence, is infinitely

reasons

sions.

Judicial

at the risk of error.

Finally, inquirers into physical science

Evidence

patient

more trustworthy

brought forward in courts of justice. manifold.

In the

first

place,

the

The facts

observer has to report do not affect his pasIn the second place, his evidence about them is not

taken at

all

unless his powers of observation have been

mor0

Evidence of Witnesses. or less trained lie

can liardly

and can be depended upon.

know what

which he observes

In

third place,

tlie

from the

will be the inference

if

he were otherwise

know what

posed to misstate them, he would not

In the fourth

serve his purpose.

place,

Chap.

II.

facts

combined

until his observations liave been

with those of other persons, so that

ment would

29

dis-

misstate-

he knows

that his observations will be confronted with others, so that if

he

is

careless

he would be found

dishonest,

class of facts

and he

or inaccurate, and,

which he observes

In the

out. are,

he should be

if

and a careful

its results.

The very a court of

opposite of

many facts

facts to

.

true as regards witnesses in

which they

which they are more

testify

or less interested,

are, as

.

Evidence Inquiries^ '^s^ '™s'-

worthy. .

strongest passions

are

a

and which

.

cases excite their

The witnesses

degree.

any

all this is

The

justice.

rule, facts in

in

the

specially arranged

for the purpose of securing accurate observatioj^,

record of

place,

fifth

generally speaking, simple,

means

provided with

usually

is

a fortiori,

the highest

to

very seldom trained to observe

or to express themselves

with accuracy upon any

They know what the point at issue is, and how their evidence bears upon it, so that they can shape it according to the effect which they wish to produce. They are generally so situated that a large part at least of what they say subject.

is

to

secure

from contradiction, and the

observe

facts

which they have

being in most instances portions of

human

con-

duct, are so intricate that even with the best intention on the

part of the witness to speak the truth, he accurate,

what So

wiU

and almost always incomplete, in

generally be inhis

account of

occurred. far

it

appears that

our opportunities

and proving the existence of isolated to our opportunities for investigating

which

are

commonly

however, something to the evidence often scanty,

called

is

are

investigating

much

inferior

and proving the formulas

the laws

of nature.

be said on the other

available in judicial

and

facts

for

and

side.

There

is,

Though

historical inquiries

is

always fixed in amount, and though the

Advan'^^|^^;°j

over ries.

scieri-

A

30 Chap.

II.

facts

Statement of the Principles of Indtiction.

which form the subject of such inquiries are than those which attract the

intricate

far

more

inquirer into physical

nature; though the judge and the historian can derive no light

from experiments

;

though, in a word, their apparatus for as-

inquirers

dispose,

and

moreover, by some special

performing

which they have

the task

proportionally easier

which physical

far inferior to that of

certaining the truth is

ambitious.

less

perform

to

It

is

is

attended,

which are great helps in

facilities

it satisfactorily.

The question whether it is in the nature of things possible Maxims more easily i^^i^ formulas should ever be devised by general the aid of ° ' appreciated.

which human conduct can be explained and predicted in the short

manner in which

specific

explained

and

discussion,

and

predicted, is

been

has

not yet decided

phenomena

physical

;

the

subject

are

great

of

but no one doubts that

approximate rules have been framed which are sufficiently precise to be of particular to

in estimating the

of great service

Whether

events.

human conduct can

generality and

or

any

not

ever be enunciated,

accuracy'to

the

proposition

probability

proposition

approaching

as

in

that the force of

gravity varies inversely as the square of the distance, no one

would

feel disposed to

property

who

deny that a recent possessor of stolen

does not explain his possession

the thief or a receiver; or that

document in

if

a

man

is

probably either

refuses to

his possession, the contents of the

when

facts

such rules as these are nearly as useful

as rules of greater generality

of little service

document are

In inquiries into isolated

probably unfavourable to him. for practical purposes,

produce a

and exactness, though they are

the object

is to

interpret a series of facts

either for practical or theoretical purposes.

If,

for instance,

whether a particular person committed a crime in the course of which he made use of water, knowledge of the question

is

the facts that there

was a pump

in his garden,

can be drawn from a well by working the

and that water

pump

handle,

useful as the most perfect knowledge of hydrostatics.

is

But

as if

the question were as to the means by which water could be

1

External Nature and supplied for a house and

Human

Nature.

3

during the year, considerable

field

knowledge of the theory and practice of

Chap.

Ii.

hydrostatics and

of various other subjects might be necessary, and the

more

extensive the undertaking might be, the wider would be the

knowledge

To

reijuired.

this it

must be added that the approximate

rules

which

human conduct are warranted principally by each man's own experience of what passes in his own mind, corro-

relate

to

borated by his observation of the conduct of other persons,

which every one that

their

upon the hypothesis

obliged to interpret

mental processes are substantially similar to his

Experience appears to show that the results given by

own. this

is

process

correct within narrower limits of error than

are

might have been supposed, though the limits are wide enough

room

to leave

for

the exercise of a

amount

great

of indi-

vidual skill and judgment.

circumstance

This

the rules

invests

conduct with a very peculiar character. expressed with

little

precision,

human

relating to

They

are usually

and stand in need of many

exceptions and qualifications, but they are of greater practical

use

than

rough

generalizations

of

the

same

kind

about

physical nature, because the personal experience of those

whom

they are used readily supplies the qualifications and

exceptions which they require. these

:

by

'

heavy bodies

fall

to

Compare two such the

sessor of stolen goods is the thief

ground,'

The

'

the

rules as

recent pos-

rise of a balloon into

the air would constitute an unexplained exception to the of these rules, which might throw doubt

upon

its

first

but

truth,

no one would be led to doubt the second by the fact that a shopkeeper doing a large trade had in his till stolen coins shortly after they

Every one would

had been stolen without having

stolen them.

see at once that such a case formed one of the

many unstated exceptions we know external nature

to

the rule.

The reason

is,

that

only by observation of a neutral,

unsympathetic kind, whereas every

man knows more

nature than any general rule on the subject can ever

of human tell

him.

Their limi^oreeasily perceived,

A

32 Chap.

Statement of the Principles of Induction.

To these

II.

Judicial

whether an isolated

aresim™llr

to

tifk

pro^'

biems.

fact

The process

depend upon

The inquiry

happen.

class

compass.

it

and prove the rule according

ascertain

a given

must be added that to inquire exists, is a far simpler problem than

considerations

to

The deductions

which

of

inductions,

previous

of

facts

within a smaUer

falls

generally deductive.

is

which

truth

the

is

generally recognised, and which (at least in judicial inquiries)

directly

judge.

and

so

of

advantage just noticed

appealing

sympathy

and

experience

personal

the

to

the

in

generally share

the

of

The deductions, too, are, as a rule, of various kinds cross and check each other, and thus supply each

other's deficiencies.

may be

inferred

motive to commit a crime,

say the

For instance, from one

lUustrations.

that

A

had a strong

B

A

In

poison. true,

of

it

(1)

the

by

A,

Each separate

number

A

If

falls

he

does, various

of

and

(3)

B

by poison, motive

the

proposition, as

B

died

which would explain the poison

the

propositions

and the

had a motive establishing

about

a murderer.

is

it

fact

of

is

for

its

like, are

for

administration.

narrows

established,

upon the

true,

the administration

(2)

subject.

;

of his

When

the it

is

when

which

B

death consistently with it

is

proved that

died,

excluded

;

when

A

ad-

every supposition,

consistent with A's innocence, except those fication,

of

class

poison, innumerable hypotheses

of

A's innocence are excluded ministered

died.

such propositions are supposed to be

death

that

small

B

no two of which have any necessary con-

of possible hypotheses

established

within the

upon the hypothesis that he

this case three

viz.,

may be

set of facts it

administered the poison of which

whether

is,

nection, except

it

died of poison, and from another independent

set of facts that

The question murderers by him must be

of facts

From an independent

murder of B. inferred that

series

of accident, justiit is

shown that

A

administering the poison, the difficulty of

any one of these hypotheses,

e. g.,

accident,

is

largely increased,

and the number of suppositions consistent

with innocence

narrowed in a corresponding degree.

is

—

—

Summary.

*

33

This suggests another remark of the highest importance in Chap.

ii.

such

?" judicial

inquiries in all civilized countries are, or at least ought to be,

parties in-

estimating the real weight of judicial inquiries.

It is that

tcrGstcd.

conducted in such a manner as to give every person interested in the result the fuUest possible

opportunity of establishing

the conclusion which he wishes to

A

tration just given

would have

to explain the fact that

and every opportunity

at once the strongest

small

Hence

to do so.

B

he failed to do

it,

member

else a

persons

of

class

if

fj"!^™'"^^ heai-d.

motive to

of that inii-

who, having a motive to

commit murder, and having administered poison

whom

illus-

he had administered the poison

he would either be a murderer or nitesimally

In the

establish.

have op-

to the person

they have a motive to murder, are unable to suggest

any probable reason

for

supposing that they did administer

it

innocently.

The

up

results of the foregoing inquiry ,

r.

shortly

summed

The

matters

:

problem

of discovering

which are

truth

the

investigated

judicially

general problem of science,

—the discovery

in

relation

a part

is

of

to

the

of true propositions

as to matters of fact.

The general

II.

solution

of this

problem

is

contained in

the rules of induction and deduction stated by Mr. MiU, and

employed

generally

for

purpose

the

conducting and

of

testing the results of inquiries into physical nature. III.

By

cause and

standing towards each other in

effect,

and we are able

to argue

be

the relation

of

and precision

with which the

relevant

proportionate facts

have

facts

from the cause to

the effect and from the effect to the cause certainty

may

due application of these rules

the

exhibited as

to

with a degree of the

completeness

been observed or are

accessible.

IV.

The leading

and inquiries 1.

In

Summai-y of results.

ioUows

as

may be

,,

differences

between judicial investigations

into physical nature

physical

inquiries

the

are as foUows

number

of

:

relevant facts

is

A

34 Chap.

II.

Statement of the Principies ofInduction.

generally unlimited, and

capable of indefinite increase

is

by

experiments.

In judicial investigations the number of relevant facts limited 2.

may

by circumstances, and

Physical

be required in order to obtain

when a

clusion reached, and is

always liable to review

any

incapable of being increased.

is

can be prolonged for any time

inquiries

objection

arrived

is

proof of the con-

full

conclusion has been reached,

if fresh

the

to

thab

facts are discovered,

by which

process

it

or if

was

it

at.

In judicial

investigations

is

it

in a limited time

result

definite

arrived

made

is

at, it is final

and

;

necessary

and when

irreversible

arrive

to

at

that result

a is

with exceptions too rare

to require notice. 3.

In physical

established

the

inquiries

by testimony open

to simple facts

which do not

to

relevant facts

are

usually

no doubt, because they

affect the

relate

which are

passions,

who are exposed to detection if and who could not tell the effect of

observed by trained observers

they

make

mistakes,

misrepresentation, if they were disposed to be fraudulent.

In

They

complex.

the

inquiries

judicial

affect

relevant

facts

are

generally

the passions in the highest degree.

by untrained observers who are generally not open to contradiction, and are aware of the bearing of the facts which they allege upon the conclusion to be established. They

4.

are testified to

On

other hand,

the

more useful in the

because in

approximate generalizations

judicial than they are

case

in

scientific

of judicial inquiries

are

inquiries,

every man's indi-

vidual experience supplies the qualifications and exceptions necessary to adjust general rules to particular facts, which

not the case in regard to 5.

scientific inquiries.

Judicial inquiries being limited in

of reaching as good a conclusion as

materials scientific

is

far

easier than the

conclusion

conclusion

arrived at

with is

is

to

process

complete

less

is

extent,

process

be got out of the of

establishing a

certainty,

satisfactory.

the

though the

Degrees of Probability. It follows

35

from what precedes that the utmost result that Chap.

can in any by iudicial evidence ^ case be produced jT J d

Whether upon any

high degree of probability. .

ever more than this

amounts

of scientific proof

— whether

quines

subject what- usuallypro.

the highest form

more than an

to

Judical ma very J

duce only a very high

assertion that a pr^abiUty

order in natui-e has hitherto been observed to take

certain place,

.

possible

is

is

II.

and that

if

order continues to take place such

that

and such events will happen, are questions which have been

much

discussed, but

sent inquiry.

However

show why courts lower

degree

which

of

lie

this

may

be, the reasons given

than

rightly

is

can under

above

demanded

The highest probability

scientific investigation.

of the pre-

have to be contented with

justice

of probability

court of justice

beyond the sphere

a in

which a

at

ordinary circumstances arrive

is

the probability that a "witness or a set of witnesses affirming

which they say they perceived by

existence of a fact

the

their

own

senses,

and upon which they could not be mis-

taken, teU the truth.

It is

difficult

measure the value of

to

such a probability against those which the theories of physical inquirers produce, nor would it serve any practical purpose to

attempt to do

so.

It

is

enough

to

by which a comparatively low degree to exist in the one case

is

say that the process

of probabihty

is

shown

identical in principle with that

which a much higher degree of probability

shown

is

by

to exist

in the other case.

The degrees of probability judicial

inquiries

measurement

are

attainable

infinite,

in scientific and in

and do not admit Cases might

or description.

easily

of

exact ^mora'l'''

be men- "rtamty-

tioned in which the degree of probability obtained in either is

so high, that

if

there

is

any degree

kind than the knowledge of

any

practical

purpose

to

of

knowledge higher in

probabilities, it

distinguish

is

impossible for

between

the

two.

Whether any higher degree of assurance is conceivable than that which may easily be obtained of the facts that the earth revolves round the sun, and that Delhi was besieged and taken by the English in 1857,

is

a question which

Degrees of

does not

A

36 Chap.

II.

Statement of the Principles of Induction.

belong to this inquiry. clusions

From of

as

these

these

down

the

Tor

may

faintest

person has committed of

described

as

suspicion there

crime,

a

absolutely

is

a descending scale

which does not admit of any but

probabilities

it

worth

certainty,

noticing

and

which he happens which he Moral

cer-

tainty

is

What

u

question of

pni ence.

act

moral

called

upon under the circumstances in reference to the matter of

to be placed in

said to

is

very

The only point

commonly

is

a

means simply such a degree of probability

this

man would

as a prudent

what

is

certain.

particular

a

that

rough measurement for practical purposes. in

such con-

about the inhabitants

to the faintest guess

and the

stars,

be

practical purposes

all

morally certain.

be

moral certainty

Constitutes

is

thus a question

.

.

prudencB, and not a question of calculation.

of

commonly

It is

^^^^ j^ reference to judicial inquiries; that in criminal cases guilt

ought to be proved " beyond

that ia civil side ttiis

it

a

which

the decision ought to be in favour of the

cases

most probably

is

rule there is

reasonable doubt," and

all

no

objection,

To the

right.

though

it

latter

which character

is

For instance,

at stake partakes

of the nature of a criminal proceeding

;

of

should be added that

cannot be applied absolutely without reserve. civU. case in

part

but the

more

first

or less

part of the

means nothing more than that in most cases the punishment of an innocent man is a great evil, and ought to be carerule

fully avoided

;

but

sible to eliminate

uncertainty from

that,

on the other hand,

often impos-

an appreciable though undefinable degree of the

decision that

danger of punishing the innocent expression "

it is

a

man

is

guilty.

The

marked by the use of the

is

no doubt," the necessity of running some degree

of risk of doing so in certain cases " reasonable."

intimated by the word The question, what sort of doubt is " reason-

able " in criminal cases case ever occurs

in

is

is

a question of prudence.

which

it is

Hardly any

not possible for an ingenious

person to suggest hypotheses consistent with the prisoner's innocence.

The hypothesis

of falsehood

on the part of the

witnesses can never be said to be more than highly improbable.

Mr. MiWs Though different

it

probabilities

possible to

what Mr.

how

not,

impossible

is

Principle. invent

to

any rule

can be precisely valued,

say whether or not they

ilill describes as the

Method

same

the

in

by which

it

always

is

and

of Difference;

The principle

it.

be

arranged

and

classified

is

hypothesis except one

is

inconsistent with one or

that one hypothesis

facts,

hypothesisis consistent with the

reasonably probable— that

may

the

to

thod

'ofdif-

ference.

different

or

existence of

with the

reference

Principle

unknown or suspected facts, by which the the known facts can be accounted for. If every

hypotheses,

known

cases,

^\-ith

ii.

if ^at'of Mr.

however complicated or however simple, and whether the nature of the inquiry is scientific or judicial. In all cases the known facts must all

Chap.

conditions of tingproba-

the

fulfil

nearly they approach to fulfiHing

precisely

37

common

is

is

proved.

known

more

of the

more than one

If

but one only

facts,

is

to say,'if one only is in accordance

course of events, that one in judicial inquiries

be said to be

proved "beyond

The word and uncertain quantity

all

reasonable

doubt."

" reasonable " in this sentence denotes a fluctuating

allowed), and

ceedings

is

of probability

the expression

shows that the lUtimate question

may

be

in judicial pro-

and must be in most cases a question of prudence.

Let the question be whether

cumstances

(if

are

such that

A

the

act

did a certain act

;

the

must have been

cir-

done

lUustra''°""

by somebody, but it can have been done only by A or by B. If A and B are equally likely to have done the act,

the matter cannot be carried

"Who did

it ?

must remain undecided.

have been done by one person, strength, child, it

and

may

further,

if

A

is

if

it

and the question

But

the act must

if

required

an exceedingly powerful

great physical

man and B

be said to be proved that B,did

it.

If

A

a is

stronger than B, but the disproportion between their strength is less, it is

B may

A

did

and so

on.

probable that

have done

it,

it,

but not impossible that

In such a case as this a

nearer approach than usual to a distinct measurement of the probability

is possible,

but no complete and definite statement

on the subject can be made.

_/"/.

f

—

A

38 Chap.

II.

^ufrie'fin"-'

Statemeni of the Principles of Induction.

Jii'iicial

volve two

process

inferences,

mine

inquiries

by which they

the

chief

and the general nature of the

directed,

are

are carried on,

forms

it

be well to exa-

will

somewhat

process

that

of

which

of the object towards

Such being the general nature

more

particularly. It

be found

will

employed in judicial (1)

Inferences

upon examination that the inferences inquiries fall under two heads :

from an

assertion,

whether

or docu-

oral

mentary, to the truth of the matter asserted. (2)

upon the strength of such facts of which the existence

Inferences from facts which,

assertions, are believed to exist, to

has not been so asserted.

For the sake of simplicity, I do not here distinguish various subordinate classes of inferences, such as inferences from the

manner

which

in

assertions are made, from silence,

from the

absence of assertion, and from the conduct of the parties.

They may be regarded

may

as

so

many forms

of assertion,

and

therefore be classed under the general head of inferences

from an assertion to the truth of the matter asserted. Direct and stantiai

evidence.

This

is

the distinction usually expressed

evidence

either

is

circumstantial

or

direct

by saying that aU I

avoid

the

use of this expression, partly because, as I have already ob-

whereas

cir-

cumstantial evidence means a fact on which an inference

is to

served,

direct

be founded,

evidence

means

and partly

for

direct

assertion,

the more important reason that

the use of the expression favours an unfounded notion that

the principles on which the two classes are different,

and that they have

of inferences depend

different degrees of cogency,

The truth is that each inference the same general theory, though

which admit of comparison. depends

upon precisely

somewhat

different

considerations apply to the investigation

of cases in which the facts testified to are

many, and

to cases

in which the facts testified to are few.

The general theory has been the question

is,

are the

a;lready stated.

known

other than the conclusion

facts

suggested

?

In every case

inconsistent with

The known

any

facts

in

—

Direct

and Circumstantial

Evidence.

39

every case whatever are the evidence in the narrower sense of

The judge hears with

the word.

his

the witnesses and sees with his

of

produced in court. sees

and

His task

hears, the

is to

own ears own eyes infer,

Chap.

II.

the statements the documents

from what he thus

existence of facts which he neither sees

nor hears. Let the question be whether a will was executed. witnesses,

entirely

they witnessed

above suspicion, come and

its

These

execution.

which the judge hears possible suppositions,

that

testify

are

assertions

Now

himself.

for

Three

facts

are three

there

and no more, which the judge has

consider in proceeding from the

known

to

the assertion of

fact,

the witnesses that they saw the will executed, to the fact to

be proved

—the actual execution

of the will

(2)

The witnesses may be speaking the The witnesses may be mistaken.

(3)

The witnesses may be

(1)

and

(3)

i. 6.,

be proved.

as to render suppositions

improbable in the highest degree, and generally

speaking they would be thesis,

truth.

telling a falsehood.

The circumstances may be such (2)

:

so.

In such a case the

hypo-

first

that the will really was executed as alleged, would

The

facts before the

judge would be inconsistent

with any other reasonable hypothesis execution of the

except

that

This would be commonly

will.

of

the

called

a

case of direct evidence.

Let the question be whether

A

committed a crime.

The

which the judge actually knows are that certain witnesses made before him a variety of statements which he

facts

believes to

be

true.

establish certain facts

The

result

of

these

which show that

statements

either

A

or

B

is to

or

C

must have committed the crime, and that neither B nor In this case the facts before the judge would did commit it. be inconsistent with any other reasonable hypothesis except This would be commonly that A committed the crime. called

a

case

of circumstantial

evidence; yet

it

is

obvious

that the principle on which the investigation proceeds as in the

Illustra-

,

A

4-0

Chap.

II.

last case is identically the

number

the

The only

same.

no new principle

of inferences, but

method

tl^e

by Mr.

of difference as explained

in

difference is

introduced.

is

with

It is also clear that each case is identical in principle

Identity of

with Mr.

Statement of the Principles of Induction.

Mill.

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

tHeonr

the motions of the planets

is as

follows

:

—The planets with

The planets

central force give areas proportional to the times.

without a central force give a different set of motions

;

but

Therefore there

areas proportional to the times are observed. is

a

a central force. Similarly in

the cases

The

suggested.

witnesses give the execution of a will,

*.

of the

assertions

no other cause

e.,

can account for those assertions having been made.

had not been executed those assertions would not have

will

But the

been made. will

If the

were

assertions

Therefore the

made.

was executed.

Though

inferences

an

from

assertion

to

truth,

its

and

inferences from facts taken as true to other facts not asserted to

be

true, rest

upon the same

has

principle, each inference

its

peculiarities.

The inference from the

Inference

from

assertion to the truth of the matter

asser-

.

tion to

asserted

matter as-

T,i.i

serted.

little

rightly,

lot

easy matter, callmg for

i

in particular cases

certain sense

it

an

remark.

Though a

regarded as

iisually

is

is

it is

by

of a judge

it is

always easy, to deal with, to deal with

far the

most

difficult

and miscarriages

by dealihg with

variably caused

and though in

really easy,

task which justice

it

wrongly.

the

almost in-

are

of

falls to

This requires

full explanation.

To is

infer

from an assertion the truth of the matter asserted,

The

in one sense the easiest thing in the world.

process consists of only one step, and that gives no trouble,

But

to

true

is

and

is

is

taken in most cases

intellectual

a step

which

unconsciously.

draw the inference in those cases only in which a matter of the utmost difficulty.

affirm the proposition, " All

men upon

all

If

we

it is

were able to

occasions speak the

Inference frofn Assertion. truth/' the so," "

remaining propositions,

Therefore

major premiss, however, are not forced

upon the

were, the judge has

and

or not,

How

to

is it

says so and Chap.

Moreover,

means

often no

which

to

they

if

whether

of ascertaining

what extent they apply

any particular

case.

how far the powers of observaman seen once for a few minutes

possible to tell

and how

enable him,

one or more of which he

may

be actuated dispose him, to

on which he

the truth upon the matter

testifies

?

least

as

its

A

cool,

man

steady

contradiction will

baffle

liar

not shaken by

who happens

who

it

it

ought to be

not to be open to

the most skilful cross-examiner in

the absence of accidents, which are not so tice as persons

who

application wiE. be disposed to trust

a proof that a

believed.

tell

Cross-

examination supplies a test to a certain extent, but those

have seen most of

its difficul-

innumerable motives by any

the

far

II.

The

difficulty.

subject to wide exceptions,

is

judge's attention.

and memory of a

tion

man

This

"

would present no

true,"

it is

—

41

take their

notions

common

in prac-

on the subject from

anecdotes or fiction would suppose.

No

of evidence

rules

which the

perceptibly affect this difficulty.

legislator

can enact can Cannot be

Judges must deal with

it

by the use of their natural faculties and acquired experience, and the miscarriages of justice in which they wiU be involved by reason of it must be set down to The the imperfection of our means of arriving at truth. natural and acquired shrewdness and experience by which an as well as they can

observant is

man

not lying,

forms an opinion as to whether a witness

is

by

far the

qualifications, infinitely

most important of

all

or

a judge's

more important than any acquaintance

with law pr with rules of evidence.

No

which the

not required

exercise

is

of this faculty

is

trial

ever occurs in ;

but

it is

only in exceptional cases that questions arise which present

any

legal difficulty,

or

in

which

it is

necessary to exercise

any particular ingenuity in putting together the which the evidence tends

to establish.

important power for a judge

is

different facts

This pre-eminently

not to be learnt out of books.

^^f^'^g'^f^^

evidence,

A

42 Chap.

II.

In so

Statement of the Principles of Induction.

far

as

it

can be acquired at

all,

it

is

be acquired

to

only by experience, for the acquisition of which the position of a judge

by no means peculiarly favourable. People come before him with their cases ready prepared, and give the evidence which they have determined to give. Unless he knows them in their unrestrained and famuiar moments, is

he will have great believing one

may

provide

man tests,

value

the

quality of the materials is

of

drawn from a

may

upon which

logical

Grounds

satisfied that

be

their

tells

the truth or

the

judgments are to ;

but they

know whether

what inference

or not is

to

be

The correctness with which done must depend upon the natural sagacity, the power, and the practical experience of the judge,, not

is

upon

rules of evidence

not open to certain obvious objections

a particular witness

for

which has been proved by

do not profess to enable the judges to

this

The

rather than another.

long experience, by which judges

proceed

any good reason

diificulty in finding

his

particular fact.

acquaintance with the law of evidence.

The grounds

for believing

or disbelieving particular state-

witness.

ments made by particular people under particular circummay be brought those which under three heads, °

Power.

affect

inganddis-

—

behevinga gtanccs

the power of the witness

which

affect

his

wiU

do so

to

;

to

speak the truth; those

and those which

arise

from

the nature of the statement itself and from surrounding cir-

cumstances. his

A

man's power to speak the truth depends upon

knowledge and his power of expression.

His knowledge

depends partly on his accuracy in observation, partly on his

memory, partly on pression depends

his

upon an

and varies in relation •yviu.

A

presence of infinite

mind number ;

to the subject of

his

power of ex-

of circumstances,

which he hag

to speak.

man's will to speak the truth depends upon his educa-

tion, his character, his courage, his sense of duty, his relation

to the particular facts as to for the

which he

is to testify,

his

humour

moment, and a thousand other circumstances, as

presence or absence of which in any particular case difficult to

form a true opinion.

it is

to the

often

Poor Reason for

Probability a

The

third set of reasons are those

Belief.

43

which depend upon the Chap.

ii.

probability of the statement.

Many

discussions have taken

improbability

of

which can never

place

statement upon

a

on the

under judicial consideration.

fall

necessary to enter upon that

subject here.

observe

that whilst

is

un-

Looking

at

the

for disbelieviag it if

its

is

in practice, a conclusive reason

probability

is

a poor reason for believing

upon uncorroborated testimony. Probable falsethose which an artful liar naturally tells and the ;

that

occurs

is

Upon

good

a

opportunity

the commonest of

all

for

telling

reasons for

such a falsehood

its

being told.

must be admitted that little that is really serviceable can be said upon the inference from an assertion to the truth of the matter asserted. The observations of which the matter admits are either generalities too vague to be of

the whole,

much

that they

it

practical use, or they are so narrow

Such observations

thrown by those who make them do

into

are seldom,

if

it

would be impos-

The most acute observer would never be

so.

ever

the form of express

Indeed, for obvious reasons,

propositions. sible to

and special

can be learnt only by personal observation and

practical experience.

able

to catalogue the tones of voice, the passing shades of expression

or the unconscious gestures which he

with falsehood

be of

little

this sort

;

and

if

he

himself,

for

had learnt

did, his observations

use to others.

important to

to associate

would probably

JEvery one must learn matters of

and though no

a judge, no

rules

can

sort of

be

knowledge

laid

down

is

for

so its

acquisition.*

* I

may

give a few anecdotes which have no particular value in " I always used to look themselves, hut which show what I mean. at

stateni°ent.

it rests

hoods are fact

it,

be,

Pipba-

sufacient

it is

the improbability of a statement

may

always a reason, and

cases

It

matter merely in relation to judicial inquiries, to

in

credibility

its

of the

effect

the witnesses' toes

friend of

when

I

was cross-examining them," said a

mine who had practised

they began to

lie

they always fidgeted

"

As soon as I knew a about with them."

at the bar in Ceylon.

Expefjf'"^ni'^

guide on

—

A

44 Chap.

Statement of the Principles of Induction.

If the

II,

™"^ite

opinion

class of cases in

a

it

man and

railway carriage.

The

man

history of either.

a

woman

are

alone in

travelling

train stops at a station,

is

known about

The woman

is

he

not betrayed on cross-exami-

them

is

a bet, but

easier to deal satisfactorily with the

may

from

of syllogisms in this form

make

most com-

an assertion

to

the

be shown by stating them

They may be considered

logically.

it is

inference.

inferences

matter asserted

truth of the

as

anything

easy to

It is easy to decide

of

denies.

the character or previous

like so great.

The uncertainty

a

and the woman

the difficulty of arriving at a satisfactory decision

and lengthy chain of

?

There are no cases in which

nation into any inconsistency.

plicated

come

depend upon the

with indecent conduct, which

Nothing particular

it is

any

of the case, incapable of corroboration

For instance, a

the

Is there

so difficult to

those which

as

—

testimony of a single witness uncorroborated,

by the nature

charges

in practice,

is,

satisfactory decision

explicit, direct

and,

which

:

would

I

strange,

attention to the following illustration

tion^''^'^"

to

advanced appears

here

as being the conclusions

:

Judge who formed the opinion that a letter had been forged because the expression " that woman " which it contained appeared to him to be one which a woman and not a man would use, and the question was whether the letter in question had been forged by a woman. In

Lord Keeper Guildford it is said that he always acted on the principle that a man was to be believed in what he said when he was in a passion. The commonplaces about the evidence of policemen, children, women, and the natives of particular countries belong The only remark I feel inclined to add to what is to this subject.

the

Life of

commonly to tell

said

on

it is

that, according to

the truth, which implies accurate

the relative importance of

facts,

proportioned to each other,

suppose to

it

is

my

observation, the

observation, knowledge of

and power of

much

less

power

description, properly

common than

people usually

to be. Ic is extremely difficult for an untrained person not

mix up inference and

to distinguish

assertion.

It is also difficult for

such a person

between what they themselves saw and heard and what

they were told by others, unless their attention to the distinction.

is

specially directed

Inference from All

men

situated

such

in

Broad

45

and such a manner speak the

truth or speak falsely (as the case

A

Facts.

may

chap.

ii.

be).

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

so.

Therefore, in saying so and so, he speaks truly or falsely

the case

(as

This

is

be).

a deduction resting on a previous induction,

obvious

is

may that

the

induction

which furnishes

and

it

major

the

premiss must always be exceedingly imperfect, and that the truth of the miaor premiss which is

always more or

is

essential to the deduction

less conjectural.

In many cases the defects of inferences of the- first kind may be incidentally remedied by inferences of the second kind, namely, inferences from facts which

on the ground of such

by the court

assertion, believed

not asserted to exist

exist, to facts

;

asserted, and,

are

and these

to

Inference

proved to otherwise proved,

now proceed

I

to examine.

have observed that the inference from an assertion to the

I

inference

from

truth

the

01

matter asserted often

In very many instances, which

appears to be. to recognise assertion,

when they

even by a single witness of

is

tradiction.

mass of that a

is,

A

number

combined

of

is to

falsehood.

may

allege

sort

fair,

were

known,

is

that

open to con-

be,

may

outweigh a

Suppose, for iastance,

have been

witnesses

be proved at a

magistrate of the

easier

and upon which

called

to

fair

district,

prove

an

on a given day they were

present together with the person on behalf of

aim the

much

little is

itself,

single assertion of this

artfully

always

Suppose, for instance, that the matter

or for aught he can tell

aim, and that they all

whom

of a character indifferent in

the witness

it is

it

occur than to reduce to rule, a direct

entitled to great weight.

asserted

easy as

as

is

whom

held at a certain place.

whose duty

it

was

to

the

If the

superintend

to depose that the fair did not begin to

be held

day subsequent to the one in question, no one would doubt that the witnesses had conspired together to give false In this evidence by the familiar trick of changing the day. tiU a

case one direct assertion

would outweigh many

direct asser-

asser-

tion to

thnes^"™^" really easy.

A

46 Chap.

II.

Statement of the Principles of Induction.

Why ?

tions.

be a

man

Because the magistrate of the

of character

and position

must assume) be quite issue

indifferent

because he would (we

;

the particular case in

to

known

to a vast

contradiction,

and

;

number

lastly,

because the feet would

of people, and he

and

detection,

ruin

adultery

testi-

Suppose,

was asked whether he had committed

His denial would carry hardly any weight in any

?

conceivable case, inasmuch as the charge

man would

is

one which a guilty

man

always deny, and an innocent

could do no

In other words, since the course of conduct supposed

more.

one which a

is

falsely.

explicit

same man might be worthless.

of the very

instance, that he

for

would be open

he spoke

if

Change these circumstances, and the equally

mony

it

and on which he

his official duty to be cognizant,

could hardly be mistaken

to

would

because he would be deposing to a fact of which

;

would be be

district

man would

certainly take whether he were

innocent or not, the fact of his taking

it

would

afford

no

criterion as to his guilt or innocence.

Now

in almost

all judicial

proceedings a certain

number of

assertions

made under such

circumstances that no one would seriously

doubt their truth.

facts

are

by

established

direct

Others are rendered probable in various degrees, and thus the

judge

furnished with facts which he

is

inferences

his

to the

as

may

use as a basis for

existence of other facts

which are

by

unsatis-

These inferences are generally considered to be more

difficult

either not asserted to exist or are asserted to exist,

factory witnesses. Such

in-

ferences

comparatively easy,

to

draw than the inference from an assertion to the matter

asserted.

In

is far

fact, it

easier

to

combine materials sup-

posed to be sound, than to ascertain that they are sound. the

one case no rules for the judge's guidance can be laid

No

down. can

In

process

afterwards

be

is

gone through, the correctness of which

independently

nothing to trust to but his

In the

other

case

all

process with which, as

own

that J\Ir.

is

tested.

The judge

has

natural and acquired sagacity.

required

is

to

go through a

Huxley remarks, every one has a

—

Converging Probabilities. general superficial acquaintance tested

and the theory of which to follow out

The

by every-day

practice.

must ultimately

combined by any of the recognised combination of them aU.

they

aU

are

directed

to

make

instances omissions

it

be

method of

by

difterence.

reach

it

this plain.

small

in

sum

a book is.

in

that the

The account-

accidental.

found that in a long

series

of

sums have been made, each

of

is

of small

enter

His defence

it.

entry was

the

examined, and

is

not

did

have entered

make

to

and

employer,

which he ought book

though they

embezzled a

has

or

Facts must

indeed, at which

object,

illustrations will

A

may

logical methods,

same,

fulfil

say a particular rupee which he received on ac-

count of his

omission

The

the

is

by different roads. A few The question is, whether of money,

ii.

and apply.

the conditions of the method of difference, but they

a

Chap.

easy to understand and interesting

it is

supposed to be proved

facts

47

This, in the absence of which omissions is in A's favour. explanation, would leave no reasonable doubt of A's guUt in

each and every

account

such

for

systematic fraud.

would be practically impossible

It

case.

except

facts

upon the

assumption

Logically, this is aniustance of the

to

of

Method

number of instances as to When, however, this is exclude the operation of chance. done, the Method of Agreement becomes a case of the Method of

Agreement applied

to so great

a

of Difference.

The well-known

number

cases

which

in

guilt

inferred from a

is

of separate, independent, and, so to speak, converging

probabilities,

principle.

B was

may

be regarded as an illustration of the same

Their general type

murdered by some

is

as follows

:

one.

Whoever murdered B had a motive

for his murder.

A

had a motive for murdering B. Whoever murdered B had an opportunity

A

had an opportunity

for

murdering B.

murdering B.

Whoever murdered B made ofB.

for

preparations for the murder

Converblbfii^e°'

A

48 Chap.

II.

A for

Statement of the Principles of Induction. manner which might amount

acted in a

a preparation

to

murdering B.

In each of these instances, which might of course be indebetween the ascertained hypothesis

that

A

of agreement

item

one

multiplied,

finitely

fact that

established

is

B was murdered and

murdered him; and

sometimes

does

it

happen that these coincidences may be multiplied extent

and may be of such a character as

to

to

such an

exclude

the

A

was

supposition of chance, and justify the inference that

and there

I'he case, however, is a rare one,

guilty.*

the

is

always

a great risk of injustice unless the facts proved go beyond

the mere

multiplication

cating guilt, and

circumstances

of

amount

separately

indi-

a substantial exclusion of every

to

reasonable possibility of innocence. Illustra-

The

in Lord

passage

celebrated

Macaulay's

Essays in

tion.

which he seeks

author of Junius 's this

kind.

prove that

to

The

an instance of an argument of

letters, is

he

letters,

PhUip Francis was the

Sir

says,

show

may

be predicated of Junius, whoever he these five facts

may

and of no one

else.

Whether

proceeds Rule

as to

The

corpus delicti.

will

ment

is

in which

be done by

cases

it

which

the method

it.

This

is

it

would be

on which

it

be inferred from It

that

most

no

are

probable that injustice' the method

of

of agree-

those in which the existence

circumstances

the foundation of the well-known rule

delicti

independently.

is

has to be inferred from

fact

the corpus

proposition

a question to

the application

to judicial inquiries

of the principal

that

is

argument

this

legitimate there can be no doubt.

cases

pointing to

can

But

have been.

any part of

here, but that

refer

facts

five

be predicated of Sir Philip Francis

also

can in fact be sustained, impertinent to

that

should other

has

not facts,

in

general

but

should

in

be proved

been sometimes narrowed

one should

be

criminal

convicted of

to

the

murder

unless the body of the murdered person has been discovered.

*

Ste TUchaiclson's Case,

p.

68.

Rule as Neither of these rules application

of

the

Corpus

to

more

is

general

Delicti.

than a

principle

circumstances are such as to

make

49 and

rough

partial

il.

If the

above.

stated

Chap.

morally certain (within

it

the definition given ahove) that a crime has been committed, the inference that

it

was

committed

so

any other

as safe as

is

such inference.

The captain

of a ship, a thousand miles from any land, and

with no other vessel in

sight, is

pursued by several mutinous

captain

A

is

The cabin

The

in confusion, and the

is

never seen or heard of again.

Immediately at

of a struggle

of the vessel.

person looks at his watch and returns

snatch

his cabin,

soon afterwards come

sailors

command

out of the cabin and take the cabin windows are open.

The noise

sailors.

The

and a splash are heard.

to run into

seen

man comes

afterwards a

the watch, which

He

side.

the watch

never found.

In these cases respectively

it is

makes a

and

;

man

he

is

being

arrested

possession,

and

morally certain that murder and theft

were committed, though

body, and in the second the watch Cases, however, do

to his pocket.

The

river

has no watch in his

on the other is

across a

it

past,

disappears.

away and swims

pursued, runs

is

in the

case

first

undoubtedly occur in which the -1

committed at

ence that a crmie has been

the

not producible.

•

71

all is

infer-

.

a mistake,

They may often be resolved into a case of begging the quesThe process is this suspicion that a crime has been tion. committed is excited, and upon inquiry a number of circumstances are discovered which if it is assumed that a crime :

has

been

committed

are

suspicious,

suspicious unless that assumption

A

is

but

which

are not

made.

away under such circumstances that her either by fraud or by accident. loss may be accounted for The captain is tried for making away with her. A variety of circumstances exist which would indicate preparation aud expectation on his part if the ship really was made

away

ship

lllustra-

is

cast

with, but

which would

justify

E

no suspicion at

all if

she

Existency of corpus delicti

wrongiT^ '"^^="6^.

—

A

50 Chap.

II.

was

;

Statement of the Principles of Induction.

not.

It

manifestly

is

illogical

regard

to

first

the

antecedent circumstances as suspicious, because the loss of the ship the

is

assumed

was

ship

be fraudulent, and next to

to

from the

destroyed

fraudulently

common occurrence, both proceedings and in common life.* The modes in which facts may be so combined fallacy

every hypothesis other than the one which establish

from

are very numerous,

specific illustrations

abstract

in

very

of

are,

I

as to excludfe

is

it

judicial

intended to

think, better learnt

and from actual practice than from

One

theories.

and

suspicious

This, however, is

character of the antecedent circumstances.

a

infer that

of

given in the next chapter

the objects

the illustrations

of

enable students to understand

is to

this matter.

Summary

The

result of the foregoing inquiries

may

summed up

be

as

of conclusions.

follows

:

In judicial inquiries the

I.

the

for

decision

persons

These

assert

facts the

own

with his

the

of

certain

facts

court

things

which form the materials

are

the

under certain

judge hears with his

own

certain

that

facts

circumstances.

He

ears.

also sees

documents and other things respecting

eyes

which he hears certain

infer—

II.

His task

(1)

From what he

is to

assertions.

himself hears and sees the existence of

the facts asserted to exist (2)

From

the facts which on the strength of such assertions

he believes to

exist other facts

which

are not so asserted

to exist.

Each

III.

Method each

vs.

for

cause,

inferences

and

each

of Difference; that

case

An

*

the

to

effect

of these

should

be

such

illustration of this

is

is

an

ought to

that

inference to

from the

conform

to

the

say,

the circumstances in

the

effect

is

inconsistent

form of error occurred in the case of E.

Steward and two others, who were convicted at Singapore in 1867 casting away the Schooner JBrm, and subsequently received a

free

pardon on the ground of their innocence.

"

1

Degrees of Probability. (subject

to

paragraphs)

than

the

the

limitations

contained

with the existence of which

cause

the

in

5

the

following

any other cause

of

existence

is

for

proposed to

it

be

proved.

The highest

IV. rally

be,

result of judicial investigation

for the reasons already

given, to

must gene-

show that

certain

conclusions are more or less probable.

V.

The

question

necessary to

show,

in a given case,

and

is

is

— what

in

degree

probability

of

order to warrant

is

it

a judicial decision

a question not of logic but of prudence

identical with the question, "

What

risk

of error

is

it

wise to run, regard being had to the consequences of error in either direction

?

VI. This degree of probability varies in different cases to an extent exists

which it

may

cannot

be

strictly

defined,

be called moral certainty.

but wherever

it

Chap.

ll.

The Theory of Relevancy, with

52

CHAPTEE

Illustrations.

III.

THE THEOET OF EELEVANCT, WITH ILLUSTEATIONS. Chap.

III.

means^"*^^ connection as cause

^

intelligence

of

atlc to conceive of

cause and effect

relation of

of

human minds

short

aU events

of this,

and

in

regard

lengths, but

to

effect,

which

efforts

fall infinitely

only to trace the connection

human

both in regard to

inanimate

see that

to

matter,

numerous

may

may

events

cause their

to

effect;

widest

when any true,

and

if

acceptation

theory has

ence of any

was

not be open to observation.

be traced in either direction, from

fact,

would be

It

whatever are or universal

all

may

alleged

fact

to

to

exist

taken

say

in

that

exist-

theory

either in

effect.

would extend the limits of

reasonable bounds, inasmuch as

all

events

be more or less remotely connected by the

chain of cause and

gravitation

were

relevant which, if that

all facts are

said that this theory

relevancy beyond

cause or from

been formed which alleges the

would stand to the

may be

which con-

The connection

correct

the relation of cause or in the relation of Objections.

connected

are

effect to

these two words it

conduct

very considerable

to

together, although the precise nature of the links

nect them

be

and though the most powerful

;

possible not

between cause and

perhaps

as standing to each other in the

are unequal to

it is

might

capacity

sufficient

would upon

this

effect,

principle

so

that the

theory

of

be relevant wherever

one of the facts in issue involved the falling of an object to the ground. Answer.

The answer which apply

to

this objection

is,

to all occurrences, are,

that wide, general causes,

in most cases, admitted,

and do not require proof; but no doubt to the matter

if

their application

in question were doubtful or were misunder-

Cause and stood, it

might be necessary

Effect.

53

For instance,

to investigate them.

Chap. hi.

suppose that, in an action for infringing a patent, the defence

up was that the patent was invalid, because the invention had been anticipated by some one who preceded the patentee. The issue might be whether an earlier machine was substanset

tially

the same

therefore,

as the

patentee's

the

facts,

which went to make up each machine would be

But each machine would be constructed with

facts ia issue.

the general formulae caUed laws of nature, and

reference to

thus the existence of an alleged law

become,

not

the

iaventor

first

AU

machine.

and had had

merely of

but

relevant,

a

fact

in

had taken

barometers

to defend its validity,

might well

of nature

issue.

out a

If,

patent,

the variation of atmos-

pheric pressure, according to the height of a column of air, and

the fact that air has weight, might have been facts in issue.

With

regard to

the remark that

events

all

together more or less remotely as cause and

...

observed that though this

is

may

or

are connected

effect, it is

be true,

it

to be

equally ^

is

./

.

true that the limit withia which the influence of causes

upon

A

knife

effects is

can be perceived

generally very narrow.

is

used to commit a murder, and

is

is

out.

It is

and

obvious that, unless each effect

could be

is

link in this

separately

°"

effects

narrow.

carefully washed, the

thrown away, and the notch in the blade

water

of causes

notched and stained

is

The knife

with blood ia the process.

cause

it

Traceable

proved,

it

ground

chain of

would be

impossible to trace the connection between the knife cleaned

and ground and the purpose the other hand,

if

the

first

that

fact,

which

had been

On

used.

fact

inc[uiring into the

further effects produced

such as the staining of the water in which

washed, the infinitesimal

effects

rule, therefore, that facts

it

by

was

produced on the river into

which the water was thrown, and so

The

it

that the knife was —the place — was proved, there would

step

bloody at a given time and

be no use in

for

forth.

may '

be regarded as relevant ° which can be shown to stand either in the relation of cause or in the relation of effect to the fact to which they are said to

^"1^ ^^ '? cause and effects true

—

The Theory af Relevancy ^ with

54 Chap.

III.

subject to caution

that every

connection

made^out

lllustra-

*'°°'

—

^^^

'

^jjgjj

be accepted as true, subject to the caution

may

be relevant,

Illustrations..

^^ inference

is to

be founded upon the existence of .

,

.

gucb a connection, every step by which the connection is made out must either be proved, or be so probable under the circumstances of the case that

it

be presumed without proof.

may

The circumFootmarks are found near the scene of a crime. stances are such that they may be presumed to be the foot-

made by the

marks

These

criminal.

precisely with a pair of shoes found

on the

marks

correspond

feet of the accused.

The presumption founded upon common experience, though its force may vary indefinitely, is that no two pairs of shoes It may further be would make precisely the same marks. presumed, though this presumption is by no means conclusive, that

shoes were worn

Here the steps are (1)

by

their

as follows

owner on a given

occasion.

:

The person who committed the crime probably made those marks by pressing the shoes which he wore on the ground.

(2)

The person who committed the crime probably wore his

(3)

(4)

own

shoes.

The shoes These

so pressed

shoes are

A

were probably these

B's shoes.

Therefore

A B probably made those

Therefore

A B

These effect

facts

thus

(1)

shoes.

marks with those

shoes.

probably committed the crime.

may

be exhibited in the relation of cause and

:

A's owning the

shoes was the cause of his wearing

them. (2)

His

wearing them at a given place and time caused

the marks. (3)

The

marks

were

caused

by

the

flight

of the

criminal. (4)

The

flight

of the criminal

was caused by the com-

mission of the crime. (5)

Therefore the marks were caused by the flight of the criminal, after committing the crime.

A

Obscurity of Definition.

Though it

this

mode

of describing relevancy might he correct,

would not be readily understood.

how is an

be asked,

55

alibi relevant

For instance,

under

might

it

this definition

The

?

answer

is,

time

a cause of his not having done a given act at that

is

obscurity definition

that a man's absence from a given place at a given

place and time.

be

Chap. hi.

and

obscui-e,

mode of using language would, however,

This

was

it

fully defined in

for this reason that relevancy

the Evidence Act

(ss.

6

—

was very

both iaclusive)

11,

These sections enumerate specifically the different instances of the connection between cause and effect frequently

iu

They

proceedings.

judicial

worded very widely, and in such a way

Thus a motive

other.

cause

(s.

part of

as

issue

effect

(s.

(s.

8) is part of its

by

it

on which

Act in

facts

this

and as popular forms its

relevancy

may

8) is

The

object

manner was that the general ground

relevant

are

(s.

11 would,

s.

in most cases, be relevant under other sections. of drawing the

each

overlap

to

Facts relevant under

7).

designedly

are

SubsecLuent conduct influenced

7).

its

for a fact in

which occur most

might

be stated in as

as possible, so that if a fact

many

is relevant,

be easily ascertained.

These sections are by

far

the most important, as they are

most original part of the Evidence Act, as they af&rm positively what facts may be proved, whereas the English law

the

assumes this to be known, and merely declares negatively that certain facts shall not be proved.

Important as these sections are for puposes of study, and in order to make the whole body of law to which they belong easily intelligible to students and practitioners not trained in English courts, they are not likely to give nice distinctions.

The reason

which was formerly a matter of

little

s.

57 of

is

that

II. of

s.

rise to litigation or to

167 of the Evidence Act

1855, renders

it

practically

importance whether evidence of a particular

fact is admitted or not.

The extreme

intricacy

of the law of England on this subject

is

and minuteness

principally due to

the fact that the improper admission or rejection of a single question

and answer would give a right

to

a

new

trial

in

Importtheir see-

*'™^'

—

56

The Theory of Relevancy^ with a

civil

case,

ground

and -would upon a crimiual

Crown Cases reserved. The improper admission

be

trial

sufficient

Court

conviction before the

the quashing of a

for

Illustrations.

for

has no

effect

or rejection of evidence in India

at all unless the court thinks that the evidence

improperly dealt with either turned or ought to have turned

A judge,

the scale.

moreover,

of a fact suggested,

can,

thing relevant, ask about

In order to exhibit

Illustra-

he doubts as to the relevancy

he thinks

if it

if

it

himself under

wHl lead

any-

to

165.

s.

fuUy the meaning of these

sections,

show how the Act was intended to be worked, and to furnish students with models by which they may be guided to

the

in

discharge

abstracts

lowing remarkable K.

2.

E.i;.Belany.

3.

E.

4.

E.«. Patch.

5.

E.

V.

most

trials

the

important of evidence

given at the

Palmer. fact

proved in each of these cases, the most in-

section of the Evidence

may

Act

it

would be

showing under relevant.

observe upon these cases that the general princi-

ples of evidence are, perhaps, for

fol-

:

tricate that I could discover, a note is attached,

I

duties,

Eiehardson.

To every what

their

Donellan.

1.

y.

the

appended of

are

V.

of

more

murder, than in any others.

cealed with as

much

clearly displayed in trials

Murders are usually con-

care as possible

;

and, on the other hand,

they must, from the nature of the case, leave traces behind

them which render effects

to

it

possible to apply the argument from

causes with greater force

other cases.

attention,

vestigated with special care.

which show so and

ground

fact,

these than in most

Moreover, as they involve capital punishment

and excite peculiar

fact

in

the evidence

is

generally in-

There are accordingly few cases

distinctly the

sort

of

connection

which makes the existence of one

for inferring the existence of another.

between

fact a

good

Case of R.

Donellan.

v.

57

I.

Case of E.

John Donellan,

Esq.,

was

v.

Donellan

tried at

*

Warwick Spring

Assizes,

1781, before Mr. Justice BuUer, for the murder of Sir Theodosius Broughton, his brother-in-law, a young tune, twenty years death,

had been in good health and

laxative

Mrs.

draught.'^

for

spirits,

with the excep-

which he occasionally took a

Donellan was

deceased, and, together with

of for-

who, up to the moment of his

of age,'

tion of a trifling ailment,

man

the

Lady Broughton,

sister

of

the

his mother, lived

with him at Lawford Hall, the family mansion.' In the event of Sir T. Broughton's death, unmarried and without

issue,

the greater part of his fortune would descend

Mrs. Donellan

to

;

^

but

was

it

stated,

though not proved, by

the prisoner in his defence that he on his marriage entered into articles for the immediate settling of her whole fortime

on herself and children, and deprived himself of the possibility

of

and that

enjoying even a this

life

estate in

settlement extended

case of her death,

not only to the fortune,

but to expectancies.*

For some time before the death of

Sir

Theodosius

the

prisoner had on several occasions falsely represented his health

*

"Wills,

on " Circumstantial Evidence," pp.

192-6.

Introductory fact (section

'

State of things under which facts in issue happen (section

^

Motive (section

*

Fact rebutting an inference suggested by a relevant fact (section

9).

'

These

7).

8).

facts are omitted

account of the case.

9).

by Mr.

Wills, but are

Gen. View, Grim. Law.,

mentioned in

p. 338.

my

Case of R.

58

Donellan.

v.

On

to

te very bad, and his

of

August the apothecary in attendance sent him a nuld and

harmless draught

life to

be precarious.^

the 29th

In the

be taken the next morning.^

to

evening the deceased was out fishing/ and the prisoner told

mother that he had been out with him, and that he had

his

imprudently got his feet wet, both of which assertions were

When

false.^

Sir

Theodosius was

morning he was in good mother went

to his

and about seven o'clock his

health,*

chamber

on the following

called

him

to give

his draught,'" of

he immediately complained," and she remarked that like

bitter

very

much

Broughton

keep the

"to

observed

a

found

she

clenched, and

down, and

medicine

gurgling

in

his

minutes he seemed inclined to doze afterwards

it

smelt

In about two minutes he struggled

almonds.'^ as if

which

him with

;

stomach

" but in

his

eyes

;'*

five

fixed,

Lady ten

in

minutes

his

teeth

running out of his mouth, and within

froth

half an hour after taking the dose he died."

Lady Broughton ran down-stairs to go for the apothecary,

and in

less

than

who

to give orders to a servant

lived about three miles distant,'^

minutes after Sir Theodosius had been

five

taken Donellan asked where the physic bottle was, and Lady

^

Facts showing preparation for facts in issue (section

The

8).

Btatementa are also admissions as against the prisoner (section 17). ^

A

'

Introductory to what follows (section

^

Preparation (section

°

State of things under which fact in issue happened (section

fact affording

an opportunity

8).

for facts in issue (section 7).

Admission

9).

(section 17). 7).

was suggested that Donellan changed the apothecary's draught for a poisoned one administered by Lady Broughton, an innocent Therefore the administration of the draught suggested to be agent. '°

It

poisoned was a fact in issue, (section

5).

"

As to this, see section 14. "J. e.,of prussic acid. Lady Broughton presence of the poison.

" Effects of facts in issue (section

up the

perceived by smell the

Therefore she smelt a fact in issue (section

fact of his death,

which was a

7).

All these facts go to

fact in issue.

" Introductory to next fact as fixing the time (section

9).

5).

make

Case of R. v. Donellafi. Broughton showed him the two took up one of them and

bottles.

said, " Is this it 1"

59

The prisoner then and being answered

" Yes,"

he poured some water out of the water bottle which was near into the phial, shook it, and then emptied it into

some dirty water which was in a wash-hand basin. Lady " Broughton said, You should not meddle with the bottle,"

upon which the prisoner snatched up the other bottle and poured water into that also, and shook it, and then put his finger into

it

and tasted

what he was about, and the bottles

it.

Lady Broughton again asked

said

he ought not to meddle with

on which he replied that he did

;

though'* he had not tasted the

first

away the

ordered a servant to take

it

to taste

it,'*

The prisoner the dirty things, and

bottle.'*

basin,

the bottles, and put the bottles into her hands for that pur-

pose

;

she put them

Broughton to do

down

so,

again on being directed by Lady

but subsequently removed them on the

peremptory order of the prisoner."

On

the arrival of the

apothecary the prisoner said the deceased had been out the preceding evening fishing, and had taken cold, but he said

nothing of the draught which he had taken.'^

The prisoner

had a

for

in

still

roses;'"

his

own room which he used

and a few days

brought cleaned.'"

full

it

of

after the

wet lime

to

The prisoner made

distilling

death of Sir Theodosius he

one of

the servants to be

several false

and inconsistent

statements to the servants as the cause of the young man's death;'"

and on the day of

death he wrote to Sir W.

his

Wheeler, his guardian, to inform him of the event, but made

no reference "

to its

suddenness.™

Subsequent conduct influenced by a

explanatory of conduct (section '*

The cof&n was soldered up

This word

is

fact in issue

and statements

8).

Mr. Wills's comment.

"

Subsequent conduct and explanatory statements (section 8). " Opportunity to distil laurel water, the poison said to have been

nsed (section

7).

'"

Subsequent conduct (section

'»

Admissions,

17, 18.

8).

6o

Case of R. on the fourth day

W.

Sir

after

v.

Donellan.

Two

the death."

days afterwards

Wheeler, in consequence of the rumours which had

reached him of the manner of Sir Theodosius's death, and that suspicions were entertained that he had died from the effects of poison,^^ wrote a letter to the prisoner requesting that an

examination might take place, and mentioning the gentlemen

by whom he wished

it

to

be

conducted.*'

W.

Wheeler's

suspicion that the deceased

had been

accordingly sent for them, but did not exhibit Sir letter

alluding to the

poisoned, nor did he mention to for

at

his

The prisoner

them

that they were sent

Having been induced by the prisoner

request.

to suppose the case to be one of ordinary death,-*

and finding

the body in an advanced state of putrefaction, the medical

gentlemen declined to make the examination on the ground that

it

might be attended with personal danger.

lowing day a medical

man who had

examine the body offered to do

to

his offer for

On

him.'^

^'^

fully

but the prisoner declined to

send

W. men

the same day the prisoner wrote to Sir

letter

in

satisfied

which he stated that the medical

the family, and

endeavoured to

Introductory to what follows (section

^ Introductory

the fol-

heard of their refusal

on the ground that he had not been directed

Wheeler a

had

so,

On

to,

and explanatory

of,

account

9).

wliat follows (section

9).

It

should be observed that proof of the rumours and suspicions for the

purpose of showing the truth of the matters rumoured and suspected

would not be admissible. picions explains Sir "'

W.

The

fact that there

Wheeler's

were rumours and sus-

letter.

Statement to the prisoner and affecting his conduct (section

8,

ex. 2). *"

Subsequent conduct of prisoner (section

8)

and Mr. Wills's com-

ment on the conduct. ^^

Subsequent conduct (section

8).

The

fact that the first set of

doctors refused explains the prisoner's conduct by showing that

it

had the effect of preventing examinations (section 7). The ground on which they refused tends to rebut this inference (section 9), but the second doctor's offer, and the prisoner's conduct thereon, tend to confirm

it

(section 9).

—

Case of R.

6i

Donellan.

v.

the event by the aflment under which the deceased had

for

been suffering

;

but he did not state that they had not made

the examination.^*

Three or four days

after. Sir

W. Wheeler

having been informed that the body had not been examined,*'^ wrote to the prisoner insisting that it should be done,''^ which, however, he prevented by various disingenuous contrivances,"'

and the body was interred without examination.'"

In the

meantime, the circumstances having become known to the

he caused the body to be disinterred and examined

coroner,

on the eleventh day to

be

after

Putrefaction was found

death.

advanced, and the head was not opened, nor the

far

bowels examined, and in other respects the examination was incomplete.''

When Lady

Broughton,

giving

in

evidence

before the coroner's inquest, related the circumstance of the

prisoner

having riased the

he was observed to take

bottles,

hold of her sleeve and endeavour to check her, and he

after-

wards told her that she had no occasion to have mentioned that circumstance, but only to answer such questions as were

put to her

;

and in a

letter to the qproner

and jury he endea-

voured to impress them with the belief that the deceased had inadvertently poisoned himself with arsenic, which he had

purchased to

kill fish.''

Upon

the

trial four

—were

three physicians and an apothecary

medical

men

examined on the

part of the prosecution, and expressed a very decided opinion,

mainly grounded upon the symptoms, the suddenness of the death, the jpost-mortem appearances, the smell of the draught ''^

"''

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

Introductory (section

9).

^ Statement to the prisoner affecting his conduct (section 8, ex. 2.) ^' Each contrivance and each circumstance which showed that it was disingenuous would come under the head of subsequent conduct (section 8). 30

The burial was part

examination

whole '^ ^^

is

is

The absence of explanatory of parts of the medical evidence. The of the transaction (section

6.)

introductory to medical evidence (section

Introductory to opinions of experts (sections

Subsequent conduct (section

8)

9).

9, 45, 46).

and admissiona

(section 17).

^2

Case of R.

v.

Donellan.

by Lady Brongbton, and the

as observed

similar effects pro-

duced by experiments upon animals, that the deceased had been poisoned with laurel water

;'*

one of them stating that on

opening the body he had been affected with a biting acrimonious

tastCj like

experiments with laurel water.^^ anatomist

him

that which affected

stated

An

aU the subsequent eminent'* surgeon and in

a positive opinion that the

symptoms did

hot necessarily lead to the conclusion that the deceased had

been poisoned, and that the appearances presented upon section

explained nothing but putrefaction.''^

The

dis-

prisoner

was convicted and executed. ^^

Opinion of experts (section

^*

This

present in ^2

is

45).

a case of tasting a fact in issue,

tlie

body.

See definition of

This was the famous John Hunter.

'

fact,'

int.,

section

the laurel water 3.

Case of R.

v. Belaney,

63

II.

Case of E.

A

surgeon

Belaney*

v.

named Belaney was

tried at the Central Criminal

Court, August, 1844, before Mr. Baron Gurney, for the murder of his wife. land,

They left

their place of residence, at

North Sunder-

on a journey of pleasure to London on the

1st of

June

made mutual wills in each other's favour),' where on the 4th of that month they went The deceased, who was advanced in pregnancy, into lodgings." a few

(having

was

days

previously

slightly indisposed after the journey;

but not sufficiently

On

so to prevent her going about with her husband.^

Saturday morning

beino- the

prisoner rang the bell

spoon

;

*

and he and

for

after^

arrival

in

town, the

some hot water, a tumbler, and a

his wife were

chamber about seven

the

the 8th,

o'clock.

heard conversing in their

About a quarter before

eight

the prisoner called the landlady up stairs, saying that his wife was very ill ; and she found her lying motionless on the bed,

with her eyes shut and her teeth closed, and foaming at the On being asked if she was subject to fits, the primouth. soner said she had had

she would for

fits

before,

not come out of

it.

but none like

this,

and that

On. beiag pressed to

send

a doctor, the prisoner said he was a doctor himself, and

should have

let

blood before, but there was no pulse.

beino- further pressed to

On

send for a doctor and his friends he

* Wills, on "Circumstantial Evidence," pp. 176-178. '

Motive (section

^

Introductory (section 9).

'

State of things under which fact in issue happened (section

•

Preparation (section

8).

8).

7).

Case of R.

"^4

assented, adding that she

two of the

fetch

would not come

to

;

The servant was accordingly

ago.

and applied a mustard plaster

to

was sent

arrival the

but before his

sent to

and on her return she and

prisoner's friends,

warm

the prisoner put the patient's feet and hands in

for,

was an

thSit this

and that her mother died in the same

affection of the heart,

way nine months

v. Belaney.

A

her chest.

water,

medical

had

patient

man

died.^

There was a tumbler close to the head of the bed, about onethird fuU of something clear, but whiter than water

was

also

paper

a

an empty tumbler on the other side of the

Epsom

of

In

salts.^

reply to

and there

;

table,

and

question from a

a

medical man' whether the deceased had taken any medicine that morning, the prisoner stated that she had taken nothing

but a

little

a grave

salts.''

for

On

the same morning the prisoner ordered

interment

on the following Monday.^

In the

meantime the contents of the stomach were examined, and found to contain prussic acid and Epsom

It

salts.

was de-

posed that the symptoms were similar to those of death by prussic acid, but might be the result of poison,

and that the means resorted

likely to promote recovery respiration,

in the

to

any powerful sedative

by the prisoner were not

but that cold affusion,

;

and the application of brandy

shape of smelling

salts

is

probably have been

effectual.

No

odour '

of

is

window was

remedies,

open, and

it it

°

soon dissipated by a current of

and admissions

'

air.^

The

facts in issue facts are

prisoner

and part

conduct

(sec-

or cause or effect of administration of

7).

Admissions (sections

17, 18).

°

Conduct (section

"

Effect of poisoning (section

46).

a very strong

(sections 17, 18).

State of things at death,

poison (section

has

was stated that the

The death and attendant circumstances are the transaction (sections 5, 26). The other

tion 8)

and might

smell of prussic acid had

been discovered in the room, though odour, but the

ammonia (which every house) and

or

found in

other stimulants were the appropriate

artificial

The absence

8). 7),

opinions of experts (sections 45-

of the smell of prussic acid

and the presence of the

Case of R. had purchased prussic

acid, as

v.

Belaney.

also

acetate

65 of

morphine, on

the preceding day, from a vender of medicines with whom he was intimate but he had been in the habit of using these ;

poisons under advice for a complaint in the stomach.'"

days after the

fatal

Two

event the prisoner stated to the medical

man, who had been called in and who had assisted in the examination of the body, that on the morning in question he

was about

some prussic acid that on endeavouring to remove the stopper he had some difficulty, and used some to take

;

force with the handle of a tooth-brush

breaking the neck of the bottle by the

was

spilt

that he placed the

;

that in consequence of force,

some of the acid

remainder in

the tumbler on the drawers at the end of the bed room, that he went into the front room to fetch a bottle wherein to place the acid, but instead of so doing began to vsrite to his Ijriends in the country, wife's

;

when

in a few minutes he heard a scream from his

bed room, calling

for

cold water, and that the prussic

acid was undoubtedly the cause of her death.

asked what he had done with the

Upon

being

bottle, the prisoner said

he and on being asked why he had not mentioned the circumstance before, he said he had not done so because he was so distressed and ashamed at the consequences of his

had destroyed

it

;

To various persons in the north of England the prisoner wrote false and suspicious accounts of his wife's illness. In one of them, dated from the Euston Hotel on the negligence.

6th of June, he stated that his wife was unwell, and that two medical men attended her, and that in consequence he should give

up an intended

visit

to

Holland,

and

intimated

his

apprehension of a miscarriage.

was no foundation.

Eor these statements there At that time moreover he had removed

from the Euston Hotel into lodgings, and on the same day he had made arrangements for leaving his wife in London, and draft are respectively a fact suggesting the absence of prussic acid,

and a '°

fact rebutting that inference (section 9).

Preparation (section

of poison (section

9).

8)

and

fact rebutting inference

from purchase

66

Case of R.

Belaney.

v.

In another

proceeding himself on his visit to Holland.

death, though

dated 8th of June, and posted after his wife's

was written before or that he had had his wife removed

could not be determined whether

it

the prisoner stated

after,

letter,

it

from the hotel to private lodgings, where she was dangerously

whom

and attended by two medical men, one of

ill

nounced her heart to be diseased equally

false.

In another

letter^

these Tepresentations were

;

dated the 9th of June, but

not posted until the 10th, he stated the fact death, but without any allusion to the

sequent letter he

be

conceal

to

The

prisoner's

the reason

stated

the

shame

statement

and to

cause for

reproach

;

of his wife's

and in a sub-

the suppression to

landlady that

his

hood, the prisoner having himself stated registrar of burials that brain fever

for so horrible a

was urged that of her

it

careless

was the

of death."

was of a kind dispo-

in

his

testamentary disposition."

suggested;

habits out,

;'^

and no

though

desire of obtaining her property

last

certainly possible that an accident

way

also a false-

in writing to the

deed was clearly made

though the case was to the

the

wife's

he and his wife had lived upon affectionate terms

and that he was extremely

means

his

was the cause

It was, however, proved that the prisoner

motive

negligence.

of his

mother had died from disease of the heart was

sition, that

had pro-

degree

Upon

it

by

the whole,

suspicious,

it

was

might have taken place in

and the jury brought in a verdict

of

acquittal.

Remarks

The two

on cases of

m .

DoneUan and Belaney are not merely ' themselves, but throw light upon one of the most cases

of

DoneUan

curious

Belaney.

important of the points connected with judicial evidence, the point namely as to the amount of uncertainty which constitutes

what can be

already said

is

called reasonable

doubt.

This I have

a question, not of calculation, but of prudence.

" All these are admissions (sections 17, 18),

" Character (section " Motive (section

8).

53).

and conduct

(section 3).

Case of R. The at

cases

in

show

question

times

different

do

Belaney.

v.

that

measure

not

f]

different

in

it

tribunals

precisely

the

same way.

In Donellan's case the jury did not think the possibility that Sir Theodosius Broughton might have died of a

fit

sufficiently great to constitute reasonable

having been poisoned.

doubt as to his

In Belaney's case the jury thought

that the possibiKty that the prisoner gave his wife the poison

by accident did

constitute a reasonable doubt as to his guilt.

and innocence of the two men could

If the chances of the guilt

be numerically expressed, they would I think be as nearly as possible equal,

and

might be said that both or that neither

it

ought to have been convicted

if it

ant principle that every case

is

and that no decision upon other decision.

two

If

were not

independent forms

facts

juries

for the all-import-

of every

a precedent

other,

for

any

were to try the very same

upon the same evidence and with the same summiug up and the same arguments by counsel, theymight very procase,

bably arrive

at opposite conclusions,

and yet

it

might be im-

them was wrong. Of the moral qualifications for the office of a judge few are more important than the strength of mind which is capable of admitting possible to say that either of

the unpleasant truth probabilities,

and

that

it

some

to run

is

often

risk

necessary to act upon

of error.

The cruelty of

the old criminal law of Europe, and of England as well as of

many bad effects, one of which was those who had to put it in force. The

other countries produced that

it

intimidated

saying that

it is

bettter

that one innocent

man

sentiment, which has

done much

I

that ten criminals should escape than

should be

convicted

expresses

think been carried too

far,

to enervate the administration of justice.

this

and has

Case of R.

58

Richardson.

v.

III.

Case of E.

v.

Eichaedson*

In the autumn of 1786 a young woman, wlio lived with her parents in a remote district in the stewartry of Kirkcudbright/ was one

day

left

alone

in

having gone out to the harvest-field.^ a

little after

cottage,^ her parents

the

On

their return

mid-day,' they found, their daughter

with her throat cut

^

The circumstances

in a

home

murdered,*

most shocking manner.

in which she

was found, the character of the deceased, and the appearance of the wound, aU concurred in excluding

all

who examined

supposition of suicide

the

wound were

;

^

satisfied

while the that

it

surgeons

had been

in-

by a sharp instrument, and by a person who must have held the weapon in his left hand.'' Upon opening the body the deceased appeared to have been some months gone with child ^ flicted

;

*

Wills, pp. 225-229.

is

also con-

Memoirs of the Life of Sir Walter Scott, IV., supplied one of the most striking incidents in Guy

cisely

stated in the

p. 52,

and

it

Mr. Wills observes, " This case

Mannering." Introductory (section

9).

"

Opportunity (section

7).

^

Explanatory (section

9).

They found her with the throat eut, and Mr. Wills says she was murdered but her murder was to them an *

Mr. Wills's comment.

;

inference, not a fact (section 3). '

Fact in issue (section

®

Suicide would be a relevant fact as being inconsistent with murder.

The

facts

5).

which exclude suicide are relevant as inconsistent with a

relevant fact (section 11). '

Opinions of experts (section 45).

*

State of things under which death happened (section

section

8).

7).

Motive

Case of R.

Richardson.

v.

69

and on examining the ground about the cottage there were

who had seemingly been

discovered the footsteps of a person

running hastily from the cottage by an indirect road through a c[uagmire or bog, in which there were stepping-stones.^

It

appeared, however, that the person in his haste and confusion

had slipped

his foot

and stepped into the mire, by which he

must have been wet nearly

prints of the footsteps were accurately measured,

impression taken of them," and those of a person

The

to the middle of the leg.'"

it

and an exact

appeared that they were

who must have worn

the

shoes,

which had been newly mended, and which,

soles

usual in that

as is

part of the country, had iron knobs or nails in them."

were discovered

also along the track

certain intervals drops of blood,

way

of the

and on a

near the cottage, and in the line

footsteps,

stile or

of the

of

These

and at

small gate-

footsteps

some

marks resembling those of a hand which had been bloody." ISTot the slightest suspicion at this time attached to any particular person as the murderer, nor

was

it

even suspected

might be the father of the child of which the nant.'^

tended,'^

At

girl

who

was preg-

the funeral a number of persons of both sexes at-

and the steward-depute thought

tunity of endeavouring,

if

possible, to

it

the

fittest

oppor-

discover the murderer

conceiving rightly that, to avoid suspicion, whoever he was

he would not on that occasion be absent." he called together,

who were

" '»

after the interment, the

present, being about sixty in

Effects of fact in issue (section

This

is so

stated as to

With

this

whole of the

number."

He

view

men

caused

7).

mix up inference and

fact.

Stripped of

might have been stated thus,—' There were such marks in the bog as would have been produced if a person crossing such the stepping-stones had slipped with one foot. The mud was of inference, the fact

middle of a depth that a person so slipping would get wet to the the

leg.'

1'

Effects of fact in issue (section

^"^

Observation.

" Introductory

(section 9).

7).

Case of R.

70

the shoes of each of

one of the

them

shoes was

Richardson.

v.

to be takeu

found

to

and measured, and

off

resemble pretty nearly the

The wearer which led to

impression of the footsteps near to the cottage. of the shoe

was the schoolmaster

of the parish,

a suspicion that he must have been the father of the child, and

had been guilty of the murder closer

examination of the shoe,

On

to save his character.

it

was discovered that

it

a

was

pointed at the toe, whereas the impression of the footstep was

round

and

at that place."

after

The measurement

going through

nearly the

of the rest

went

whole number,

one

length was discovered which corresponded

exactly with

impression in dimensions, shape of the

form of the

and the number and position of the son, the

young man

to

whom

foot,

nails.'^

on, at

the sole,

William Eichard-

the shoe belonged, on being

asked where he was the day deceased was murdered, replied, seemingly without embarrassment, that he had been

day employed master and

at his master's work,'^

fellow-servants

all

that

— a statement which

who were

present

his

confirmed."''

This going so far to remove suspicion, a warrant of commit-

ment was not then

granted, but

some circumstances occurring

a few days afterwards having a tendency to excite

young

man was apprehended and

'*

Irrelevaiit.

'^

The making

of the footmark

was an

lodged in

effect of,

quent to and affected by, a fact in issue (section

7).

it

anew, the

jail.'^

Upon

or conduct subse-

The measurement

of the siKty. shoes, of which one only corresponded exactly with the

mark, was a

making highly probable shoe made that mark (section 11). The experiment itself is an application of the method of difference. This shoe would make the mark, and no other of a very large number fact,

or rather a set of facts,

the relevant fact that that

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

The fact that his master and fellow-servants confirmed his ment is irrelevant. If they had testified afterwards to the fact '^

it

would have been relevant. '"

Irrelevant.

stateitself,

Case of R. his examination '^he

v.

Richardson.

acknowledged that he was left-handed

;2<'

and some scratches being observed on his cheek, he said he had got them when pulling nuts in a wood a few days before.^'

He

adhered to what he had said of his having been on

still

the day of the

murder employed constantly in

his

master's

work f but in the course of the inc[uiry it turned out that he had been absent from his work about half an hour, the time *

being distinctly ascertained, in the course of the forenoon of that day

;

that he called at a smith's shop under the pretence

of wanting something which

any occasion

for

;

and that

it

when

the murder was

to the time

not appear that he had

this smith's

to the cottage of the deceased.''^

hundred yards from the

did

A

shop was in the

young

cottage, said

girl

that,

way

who was some

about the

time

committed (and which corresponded

when Eichardson was

absent from his fellow-ser-

she saw a person exactly with his dress and appear-

vants),

ance running hastily towards the cottage, but did not see him return,

though he might have gone round by a small eminence

which would intercept him from her view, and which was the very track where the footsteps had been traced."* "

By

Scotch law, as well as by the Code of Criminal Procedure, a

prisoner *"

The

may fact

be examined. that he was left-handed would be a cause of a fact in

issue, viz., the peculiar

way

in which the fatal

wound was

given.

The

admission that he was left-handed would be relevant as proof of the fact

by

sections 17, 18.

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

If it

sion (section 17, 18). ^^

Opportunity (section

7).

Admissions (sections

17, 18).

the shop was preparation by making evidence (section '^

There

know

is

that a

mitted.

here a miKture of fact and inference

murder was committed

;

at the time

Probably she mentioned the time, and

it

8,

The

call at

illustration

e).

the girl could not

when

it

was com-

corresponded -with

This would be preparation and the time when Eichardson was away. opportunity (section 7). The existence of the small eminence explains

her not seeing him return (section

9).

Case of R.

rff

v.

Richardson.

His fellow-servants now recollected that on the forenoon that day they were employed with Eichardson in driving

their master's carts,

and

that,

when passing by a wood which

they named, he said that he must run to the smith's shop,

and would be back

He

a short time.

in

then

left

his cart

under their charge, and, having waited for him about half an

which one of the servants ascertained by having at the

hour,

time looked at his watch, they remarked on his return that

he had been absent a longer time than he said he would be, to

They observed

gather some nuts. his stockings

He

wood

to

same time one

of

which he replied that he had stopped in

said he

wet and soiled as

he had stepped in a puddle.

had stepped into a marsh, the name

mentioned, on which his

must have been

either

of

which he

fellow-servants remarked " that he

mad

or

drunk

if

he stepped into that

a footpath which went along the side of

marsh, as there was

then appeared by comparing the time he was absent

It

it."

if

at the

the

with the distance of the cottage from the place where he had left his fellow- servants

that he might have gone there,

mitted the murder, and

returned

A

them.^*

to

com-

search was

then made for the stockings he had worn that day.'^

They

were found concealed in the thatch of the apartment where he be

much

drops of blood on them.^^

The

and appeared

slept,

saying,

first,

before

but

;

that day,

that

it

to

his

nose

soiled, first

and

to

have some

he accounted

for

had been bleeding some

days

being observed that he wore other stockings on

he said he had assisted in bleeding a horse

was proved that he had not

assisted,

and had stood

;

but

On

All these facts are either opportunity or preparation or subse-

quent or previous conduct or admissions (section ''^

Introductory to next fact (section

7, 8, 17).

91).

subsequent conduct (section

8).

of the stockings is the effect of a fact in issue (section

7).

26

^'

it

at such a

distance that the blood cordd not have reached him.^''

^

by

The concealment The

is

falsehoods are subsequent conduct (section

(sections 17

&

18).

The

8),

The

state

or admissions,

prisoner's allegation about the horse

is

an

Case of R. Y examining the correspond

to

adjoining

the

mud

or sand

upon the

precisely with cottage,

Richardson.

that

73

stockings,

of the

and which was

of

appeared

it

mire

or

puddle

a very particular

kind, none other of the

same kind heing found in that neighThe shoemaker was then discovered who had

bourhood.^^

mended

his shoes a short time before,

to the shoes of the

and he spoke

distinctly

prisoner which were exhibited to

having been those he had mended.^'

It then

him

as

came out that

Eichardson had been acquainted with the deceased,

who was

considered in the country as of

one occasion

weak intellects, and had on been seen with her in a wood in circumstances

that led to a suspicion that he had criminal intercourse with her, and,

on being taunted with having such connection with

one in her situation, he seemed

much ashamed and greatly hurt.^° It was proved further by the person who sat next him when his shoes were measuring, that he trembled much and seemed a good deal agitated, and that, in the interval between that time and his being apprehended, he had been advised to

On

the

fly,

but his answer was,

other

hand,

"Where can

evidence was

I fly to ?"

^'

brought to show that

allegation of a fact explaining the relevant fact, that there

was blood

on the stockings (section 9) and the facb proved about his distance from the horse is a fact rebutting the inference suggested thereby ;

that the blood was the horse's (section

^

Effect of a fact in issue (section

slip,

which was the

effect of the

9).

The similarity of the sand marsh was one of the effects of

7).

on the stockings to the sand in the the

murder.

That the marks were made by the prisoner's shoe was relevant That the shoes which made the marks as an effect of facts in issue. were the prisoner's had been already proved by their being found on This further proof seems superflaous, unless it was sughis feet. gested that they belonged to some one else. ^° The opinion about her would be irrelevant. The fact that her intellect was weak would be part of the state of things under which the murder happened, and with what foUows would show motive ^^

(sections ^^

7, 8).

Subsequent conduct (section

slight.

i

10).

The weight of

this is

very

-

.>Vi'«.>^m.

—

—

C(3:^^

74

of R.

Richardson.

V,

about the time of the murder a boat's crew from Ireland had landed on that part of the coast near to the dwelling of the deceased

and

j'^^

was

it

said

that

some of the crew might

have committed the murder, though their motives for doing so

it

was

was

difficult to explain, it

their purpose,

not being alleged that robbery-

anything was missing from the

or that

The prisoner was convicted,

cottages in the neighbourhood. confessed,

Remarks ardson's' case.

"S.

.^*

THs

and was hanged.

case iUustrates the application of

*^^ method of agreement

upon a

supposition of chance, thus

The

(1)

had

murderer

what Mr. Mill

scale

calls

which excludes the

:

a

motive,

—Eichardson

had

a

1/8

motive.

The murderer had an opportunity

(2)

of a

day

certaiu

in

a

certain

at

a certain hour

—Eichardson

place,

had

an

opportunity on that hour of that day at that place. (3)

The murderer was

left-handed,

—Eichardson was

left-

handed.

The murderer wore shoes which made Eichardson wore shoes which made exactly (4)

(5)

If Eichardson

certain marks,

similar marks.

was the murderer and wore

stockings,

they must have been soiled with a peculiar kind of sand,

he did wear stockings which were

soiled with that

kiud of

sand. (6)

If Eichardson

conceal his (7)

was the murderer, he would naturally

stockings,

—he did conceal

his

stockings.

The murderer would probably get blood on

—Eichardson got blood on Eichardson was the murderer, —he did about the

his clothes,

his clothes.

(8)

If

blood,

tell lies

(9)

at the

If Eichardson

tell lies

he would probably about the blood.

was the murderer, he must have been

place at the time in question,

—a

man

very like him

was seen running towards the place at the time. (10) If Eichardson was the murderer, he would probably

^^

Opportunity

for the

mm-der

(section

7).

Case of R. v. Richardson. tell

liqp

about

Ms

proceedings

murder was committed,

during the

—he told such

Here are ten separate marks,

five

75 time

when

the

lies.

of which

must have

been found in the murderer, one of which must have been found on the murderer

if

he wore stockings, whilst

others

probably would be found in him. All ten were found in Eichardson. distinctive that they could hardly

man.

It

is

Four of them were so

have met in more than one

hardly imaginable that

two left-handed men,

wearing precisely similar shoes and closely resembling each other, should

have put the same leg into the same hole of

the same marsh at the same time, that one

of

them should

have committed a miirder, and that the other should have causelessly hidden the stockings

marsh.

Yet

this

would be

which had got soUed in the

the

only possible supposition

consistent with Eichardson's innocence.

Case of R.

76

Patch.

v.

IV.

Case of E.

A man

named

v.

Patch.*

had been received by Mr. Isaac Blight

Patcli

a ship-breaker, near Greenland Dock, into his service in the year 1803.'

Mr. Bright having become embarrassed in his

circumstances sition

with his creditors

of this arrangement,

perty to

them ness,

1805, entered into a deed of compo-

in July,

the

;

and in consequence

he made a colourable transfer of his pro-

was afterwards agreed between

It

prisoner.'

was

that Mr. Blight

to

which the prisoner was

to have

maining

two-thirds of the third,

for

of the failure

retire

to

nominally from the busi-

manage, and the former was

profits,

which he was

and the prisoner the to

pay £1,250.

Of

rethis

amount, £250 was paid in cash, and a draft was given for the remainder upon a person named Goom, which would become payable on the 16th of September, the prisoner representing that he to

it

had received the purchase-money

Goom.^

On

the 16th

of

September the prisoner repre-

sented to Mr. Blight's bankers that

the

bill,

Goom

to

and withdrew fall

it,

Goom

substituting

visit

and the prisoner accompanied him

his

On

his wife

as far

* Wills's Oiroumstantial Evidence. Introductory (section

Motive (section

own

draft

upon

the 19th of at

Margate,

as Deptford,* and

and represented to his bankers that

then went to London

•^

could not take up

due on the 20th September.^

September the deceased went to

'

an estate and lent

of

9).

8).

'

Preparation (section

'

Introductory (section 9) but unimportant.

8).

Case of R.

Goom would

v.

Patch.

not be able to face bis

jj

draft,

but tbat be bad

obtained from bim a note wbicb satisfied bim, and tberefore

tbey were not to present

prisoner boarded

in Mr.

and tbe only otber inmate was a female servant,

Bligbt's bouse,

wbom

Tbe

it.^

the prisoner, about eigbt o'clock tbe same evening (tbe

some oysters

19tb), sent out to procure

Dujing

for bis supper."

her absence a gun or pistol ball was fired through tbe shutter

when

of a parlour fronting tbe Thames, where the family,

home, usually spent their evenings.

mud was

the

so deep that

was low water, and

any person attempting

must have been

that direction

It

at

to escape in

and a man who was

suffocated,

standing near the gate of the wharf, which was the only other

mode

of escape, heard tbe report, but

saw no

From

person.'^

tbe manner in which tbe ball entered tbe shutter

it

was

clear

had been discharged by some person who was close to the shutter, and tbe river was so much below the level of tbe house, tbat tbe baU, if it bad been fired from thence, must have reached a much higher part than that which it struck.

that

it

The

prisoner declined the offer of the neighbours to

in the house with

bim

On

that night.^

remain

the following day he

wrote to inform the deceased of tbe transaction, stating bis

hope that tbe shot bad been accidental person

' '

who bad any

Preparation (section

tion

8).

own

in his

Hence

his

firing

favour.

9).

so, as

opportunity, and that

The

it

Preparation (section

of

no

8).

fired the shot himself in order to

This would be preparation

the shot would be a relevant

facts in the text are facts which,

bable that he did

knew

8).

The suggestion was that Patch

make evidence

tbat be

animosity against bim, that he wished

Explains what follows (section

'

;

taken together, make

it

fact.

(sec-

The

highly pro-

they show that he and no one else had the

was done by some one

last fact illustrates the

(section 11).

remarks made at pages

40, 41.

The infer-

ence from the facts stated, assuming them to be true, is necessary ; but, suppose that the " man standing near the gate " saw some one running,

and

for reasons of his

dicted? '

Conduct (section

8).

own denied

it,

how

could he be contra-

78

Case of R.

know

to

happy

for

whom

to hear

viously been to

was intended, and that he should be

it

home on London

subject of conversation,

Upon

his

getting home, the draft

became the

and the deceased desired the prisoner without the money."

return

and the deceased spent the

the prisoner

return,

on the subject of

his bankers

London, and not to

to

Mr.

September, having pre-

23rd

the

to see

Upon

the ^1,000 draft/"

go

Patch.

from him, but much more so to see him.^

Blight returned

to

v.

evening in the back parlour, a different one from that in which

About

the family usually sat.'^

eight o'clock theprisoner

went

from the parlour into the kitchen, and asked the servant for a candle'-^ complaining

way from

soner's

that

kitchen

the

which fastened by a spring

up

ships,

of soil peculiar

as

door

the

notwithstanding

the

of the state

The

pri-

outer door

and across a paved court

and

on which

premises for breaking

to

parlour,

of

palisades,

court,

and then through a counting-house.

doors, as well

open,

lock,

through an

wharf in front of that

throLigh a gate over a

there was the kind

was

which was enclosed by

of the house

in front

he was disordered.'*

All of these

the prisoner left

alarm

excited

by the

The servant heard the privy door slam, and almost at the same moment saw the ilash of a pistol at the door of the parlour where the deceased was sitting, upon which she ran and shut the outer door and gate. The priformer

shot.

soner immediately afterwards rapped loudly at the door for

admittance with his clothes in disorder. apparent concern for Mr. Blight,

and died on the following day. from the testimony of various '

Preparation (section

He

evinced great

who was mortally wounded, From the state of tide, and persons who were on the

8).

'°

Hardly relevant, except as introductory

"

Motive section

'"

State of things under which facts in issue happened (section

to

what follows

(section

9).

8).

" Preparation (section

8).

"

8).

Preparation (section

7.)

Case of R. outside of the premises, no

Patch.

V.

79

person could have escaped from

them.'*

In consequence of this event Mrs. Blight returned home,'^

and the prisoner in

answer

an inquiry about the

to

which had made her husband

so uneasy, told her that

and claimed the whole of the property

paid,

was

it

his

as

draft

own.''

Suspicion soon fixed upon the prisoner,"* and in his sleeping-

room was

stockings, but with the soil

up

found a pair of stockings rolled feet

clean

like

plastered over with

the

on the wharf, and a ramrod was found

found

of

sort

in

the

The prisoner usually wore boots but on the eventhe murder he wore shoes and stockings.^" It was

privy."

ing of

;

supposed that to prevent alarm to the deceased or the female servant,

the

murderer must

have

approached

shoes,

and afterwards gone on the wharf

pistol

into

the

All the prisoner's

river."'

his pecuniar}' transactions with

upon him, and the payment

He

false.^'^

to

Goom and

of

without

his

throw away the statements as to

his

right to

the bUl, turned

attempted to tamper with the servant

draw to

be

girl as

to

out

her evidence before the coroner, and urged her to keep to one account '^

shot

;^^

These

and before

that

facts collectively

officer

he

made

several incon-

are inconsistent with the firing of the

by any one except Patch

(section

11).

They would

also

be

relevant as being either facts in issue, or the state of things under

which

facts in issue

tunity (sections 7

happened

&

(section

8, illustration

7),

or as preparation or oppor-

h.).

'°

Introductory (section 9).

"

Subsequent conduct influenced by a fact in issue (section

" Irrelevant. " Effect of fact in issue (section

8).

7).

™ State of things under which facts in issue happened (section 7). the facts are Fact and inference are mixed up in this statement such that the deceased and his serwas (1) that the state of things ''

;

vant would have heard the steps of a man with shoes on under the window and (2) that a person who wished to throw anything into ;

the Thames would have to go on to the wharf. '"

Preparation (section

8).

^ Subsequent conduct (section

8),

and admissions

(sections 17ife 18).

8o

Case of R.

Patch.

v.

statements as to his pecuniary transactions with the

sistent

deceased, and

equivocated

much

as to

whether he wore boots

on the evening of the murder, as well as to the

or shoes

ownership

of

the

soiled

clearly proved to be his,

made no attempt

to

stockings,"* which,

and

for the

however, were

state of

soiled

The prisoner suggested the

account.^*

existence of malicious feelings in two persons with

deceased had been on

doing

for

him any

upon both occasions Remarks case.

ill

injury

and

may

it

it

no one

be regarded as

clearly proved

that

and the

of difference,

a very complete illustration

11.

else,

was

method

The general effect Patch had motive and opportunity

of section

the

of attack they were at a distance."

Patch's case illustrates the

whole of

whom

but they had no motive'-'

terms,^^ ;

which he

of

evidence

the

for the

is,

that

murder, and that

except himself, could have fired either the shot

which caused the murdered man's death,

or the shot

which

show that the murdered man had enemies who wished to murder him. The relevancy of the first shot arose from the suggestion that it was an act of preparation. The proof that it was fired by Patch consisted of independent facts, showing that it was fired, and that he, and no one else, could have fired it. The firing of the second shot by which the murder was committed was a fact in issue. The was intended

proof of

it

to

by a strange combination

of circumstances

precisely similar in principle to the proof as to the

was

first shot.

The case is also very remarkable as showing the way in which the chain of cause and effect links together facts of the most dissimilar kind and this proves that it is impossible to ;

draw a

line

between relevant and irrelevant

facts

otherwise

by enumerating as completely as possible the more common forms in which the relation of cause and effect dis-

than

plays ^* ^^ ""

itself.

In Patch's case the

Effect of fact in issue (section I.e.,

firing of the

7).

no special motive beyond general

^ Motive ill-will.

Pacts inconsistent with relevant fact (section

* P. 34

first

11).

shot was

(section

8).

— Case of R.

v.

by way

an act of preparation

8i

Patch.

of

what

called

is

evidence," but the fact that Patch fired

"

making

appeared from a

it

combination of circumstances which showed that he might,

and that no one

else could,

have done

easy to con-

It is

so.

some one of the facts necessary to complete this For proof might have had to be proved in the same way. ceive that

instance, part of the proof that Patch fired the shot consisted

in the fact that no one left certain premises

by a

which was one of the suppositions necessary

certain gate

to be negatived

show that no one but Patch could have fired the The proof given of this was the evidence of a man

in order to shot.

standing near,

who

at the time in

said that

question no one

did pass through the gate in his presence, or could have done so unnoticed

Suppose that the proof had been that

by him.

the gate had not been used for a long time

had been spun were unbroken

all

after the shot

have been spun examined.

over the opening of the gate

at night

;

that spiders' webs

;

that they

;

and remained unbroken in the morning

and that

it

was impossible that they should

after the shot

was

fired

and before the gate was

In that case the proof would have stood thus

:

Patch's preparations for the murder were relevant to the

question whether he committed

it.

Patch's firing the

The

shot was one of his preparations for the murder.

first

facts

inconsistent with his not having fired the shot were relevant to the question whether he fired

it.

The

fact

that a certain

door was not opened between certain hours was one of the facts

which, taken together, were inconsistent with his not

having

fired

The fact that a spider's web was whole in the morning was inconsistent with the

the shot.

overnight and also

door having been opened. Inversely, the integrity of the spider's

the opening of the door to the firing of the

first

;

shot

;

second shot was a fact in issue

web was

relevant to

the opening of the door was relevant

the firing of the

relevant to the firing of the second shot

spider's

web was

;

;

and the

shot was

firing of the

therefore the integrity of the

relevant to a fact in issue.

G

first

82

On Old

v.

Case of E.

v.

Palmer.

Case of R.

Palmer.'

the 14tli of May, 1856, William Palmer was tried at the Bailey,

under

powers

Bench by 19 Vic, Parsons Cook at Eugeley, in Queen's

twelve

days,

prisoner

and ended

on

conferred for

16,

c.

The trial lasted May, when the

27th

the

was convicted, and received sentence

which he was afterwards executed

was

a sporting

also

man

;

on

of death,

at Stafford.

Palmer was a general medical practitioner engaged iu sporting transactions.

of

Courts

murder of John

the

Staffordshire,

on

the

at Eugeley,

much

and

Cook, his intimate friend, attending

after

Shrewsbury

him on the 13th November, 1865, returned in his company to Eugeley, and died at the Talbot Arms Hotel, at

races with

that place, soon after midnight, on the 21st ITovember, 1855,

under circumstances which raised a suspicion that he had been poisoned by Palmer.

The

case against

he had a strong motive to murder his conduct before, at the time

and

of,

with the circumstances of the death

Palmer was that

friend,

death, coupled

after his itself,

and that his

left

no reasonable

doubt that he did murder him by poisoning him with antimony

and

strychnine,

antimony

administered

probably

being

used

on

various

as

a

occasions

preparation

—

for

^the

the

strychnine.

—

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

'

Eeprinted

England,"

from

p. 357.

my

" General

View

of the

Criminal

Law

of

Case of R. 1854,

and

on her

life,

on her

Palmer.

v.

83

he received £13,000 on

death

policies

nearly the whole of which was applied to the dis-

charge of his

In the course of the year 1855 he raised other large sums, amounting in all to £13,500, on what liabilities."

purported to be acceptances of his mother's.

The

bills

were

renewed from time to time at enormous interest (usually sixty per cent, per annum) by a money-lender named Pratt, who, at the time of Cook's death, held eight bills four on his own

—

account and four on account of his client due,

and

six others falling due

two abeady over-

;

—some in November and others

About £1,000 had been paid off in the course of the year, so that the total amount then due, or shortly to faR due to Pratt, was £12,500. The only means which Palmer had by which these biUs could be provided for was a policy on the life of his brother, Walter Palmer, for £13,000. in January.

Walter Palmer died in August, 1855,' and William Palmer

had instructed Pratt

to recover the

but the

refused to pay.

office,

office

amount from the insurance In consequence of

difficulty, Pratt

earnestly pressed Palmer to

in order to keep

down

He

this

pay something

the interest or diminish the principal

him and his mother on the 6th November, and informed him in substance that due on the

bills.

issued writs against

they would be served at once, unless he would pay something

on account.

Shortly before

the

Shrewsbury races he had

paid three sums, amounting in

accordingly

which £600 went in reduction of the deducted for

was

to

interest.

money due

to Pratt, Mr.

held bUls for £10,400.

collaterally secured

Palmer's property.

by a bUl

and £200 was

A bill was A bUl was

Wright of Birming-

Part of these, amounting

by Mrs. Palmer, fall

WiUiam

due on the

Mr. Padwick also held a

found against him for her murder. found against Palmer for his murder.

to

part were

of sale of the whole of

These biUs would

second week of November.

^

£800, of

was understood that more money

£6,500, purported to be accepted

"

principal,

to

be raised as early as possible.

Besides the

ham

It

all

first

or

bill

of

^4

Case of R.

Palmer.

v.

the same kind for £2,000, on which £1,000 remained unpaid,

and which was twelve months overdue on the 6th of October, 1855.

Palmer, on the 12th November,

had given Espin a

cheque antedated on the 28th November, for the other £1,000. Mrs. Sarah Palmer's acceptance was on nearly all these biUs,

and in every instance was forged. The result is, that about the time of the Shrewsbury races. Palmer was being pressed for payment on forged acceptances to the

were

amount a

of nearly £20,000, and that his only resources

certaiu

amount

of personal property,

over which

Wright held a bill of sale, and a poUcy for £13,000, the payment of which was refused by the of&ce. Should he succeed in obtaining payment, he might no doubt struggle through his

but

difficulties,

there

stUl

remained the

cheque given to Espia, which at once

his

by some means

own was proved by

it

It

of a farmer

was necessary

or other.

to provide for

That he had no funds of

the fact that his balance at the bank

on the 19th November was £9

£25

£1,000 antedated

6s.

named WaUbank,

and that he had to borrow to go to

Shrewsbury

races.

foUows that he was under the most pressing necessity to

obtain a considerable

obtaining

it

sum

of money, as even a short delay in

might involve him not only in insolvency, but in

a prosecution for uttering forged acceptances. Besides the embarrassment arising from the bills in the

hands of

Pratt,

Wright, and Pad wick, Palmer was involved in

a transaction with Cook, which had a bearing on the rest of the case.

Cook and he were

Pratt had discounted, giving rant for £65,

He

and

also required

parties to a bill for

£365 in

charging £60

for

cash,

£500 which

and a wine war-

discount and expenses.

an asignment of two racehorses of Cook's

— Pole-star and Sirius — as a collateral security.

By

Palmer's

request the £365, in the shape of a cheque payable to Cook's order,

and the wine warrant, were sent by post

Doncaster.

to

Palmer

at

Palmer wrote Cook's endorsement on the cheque,

and paid the amount to his own credit atjthe bank at Eugeley.

On

the part of the prosecution

it

was said that

tliis

transac-

Case of R. v. Palmer. tion afforded a reason

inasmuch as

Cook,

it

why Palmer

that there were

should desire to be rid of

amounted to a forgery by which Cook

was defrauded of £375. side,

85

It appeared, however,

£300 worth

on the other

some

of notes relating to

other transaction, in the letter which enclosed the cheque; and as it did not appear that

Cook had complained

consideration for his acceptance,

it

was suggested that he had

authorized Palmer to write his

name on

cheque, and had taken the notes

himself.

seems not improbable, as plain

why Cook

ceptance, for the

it

of getting no

the

back

This arrangement

would otherwise be hard

case that there

ex-

to

acquiesced in receiving nothing for his ac-

and there was evidence that he meant

bUl when

the

of

became due.

it

was another bin

Palmer were jointly

to provide

It also appeared late ia the for

£500, in which Cook and

^

interested.

Such was Palmer's position when he went to Shrewsbury 1855. Cook was races, on Monday, the 12th November, there also ;'and on Tuesday, the 13th, his mare Pole-star

won

the Shrewsbury Handicap, by which he became entitled to the stakes,

worth

nearly £2,000.

about £380, and bets

Of these

the course at Shrewsbury. saU's

bets he received

The

rest

was

to

to

the

£700

amount of or

£800 on

be paid at Tatter-

on the following Monday, the 19th November.

^

After

the race Cook invited some of his friends to dinner at the

Eaven Hotel, and on that occasion and on the foUowiag day On the Wednesday night a he was both sober and well.'' man named Ishmael Fisher came into the sitting-room, which Palmer shared with Cook, and found them in company with Cook comsome other men drinking brandy and water. plained that the brandy " burned his throat dreadfully," and '

put down his glass with a small quantity remaining in it. Palmer drank up what was left, and, handing the glass to Eead, asked him '

^

tion

if

he thought there was anything in

it

to

these facts go to show motive (section 8). (secState of things under which the following facts occurred

AH 7).

86

Case of R.v. Palmer. which Eead

when

"

replied,

What's the use of handing

me

the glass

empty?"

Cook shortly afterwards left the room, called out Fisher, and told him that he had been very sick, He and, " he thought that damned Palmer had dosed him." also handed over to Fisher £700 or £800 in notes to keep for him.^ He then became sick again, and was iU aU night, and had

it's

to

He

be attended by a doctor.

told the

doctor,

Mr.

Gibson, that he thought he had been poisoned, and he was treated on that

that

Cook had

Next day Palmer told Fisher that he (Palmer) had been putting some-

supposition. said

He added

thing into his brandy. tricks with people,

before

'

that he did not play such

Cook had been drunk the night

and that

—which appeared not

to be the

expressly say that he returned the

the

course of the evidence

it

case.

money

Fisher did not

8

to

seems that he

Cook, but from did,

'

Cook

for

asked him to pay Pratt £200 at once, and to repay himself on the following

Monday

out of the bets which he would receive

on Cook's account at the

About

settling at Tattersall's.

the Wednesday,

half-past ten on

Cook drank the brandy and water which he

shortly before

complained

and apparently

Palmer was seen by a Mrs. Brooks

of.

in the

passage looking at a glass lamp through a tumbler

contained some clear iluid

shaking and turning in

Ms

have been no secrecy in

to

and continued

to hold

like

hand. this,

as

and which

whom

he

he spoke to Mrs. Brooks

oflfence

as

he did

so.

'"

was committed, and

statement explanatory of such conduct (section 8

;

exp.

1).

'The administration of antimony by Palmer would be a issue, as

was

There appears, however,

and shake the tumbler

Conduct of person against

*

water,

which

fact in

being one of a set of acts of poisoning which finally caused

Cook's death.

Cook's feelings were relevant as the efiect of his being

poisoned (section

7)

and

;

his statement as to

them was

relevant under

section 14 as a statement showing, the existence of a relevant bodily feeling. '

Admission (sections

'

Motive (section

'"

17, 18).

8).

Preparation (section

8).

Case of R.

Palmer.

v.

87

George Myatt was called to contradict this

He

said tliat

for the prisoner.

was in the room when Palmer and Cook

lie

Cook made a remark about the brandy, though he gave a different version of it from Fisher and Eead that came

in

;

that

;

he did not see anything put in

been put

in

it

Palmer never

it,

he should have

left

Cook went

to bed.

and Eead."

All

and that

He

seen.

anything had swore that

also

the room from the time he came in

He

this,

however, came to

As Myatt was

till

put the time later than Fisher

also

very

the sort of difference which always arises evidence.

if

was

It

little.

in the details of

a frend of Palmer's, he probably

remembered the matter (perhaps honestly enough) in a way

more favourable

to

him than

appeared from the evidence of Mrs. Brooks, and also

It

from that of a

man named

Cook were taken £1 tion,

an

Herring, that other persons besides

at Shrewsbury,

with similar symptoms.

observation

poisoned his

the other witnesses.

in

way back

we thought

Shrewsbury.'' to

The evidence

Mrs.

on the evening Brooks

water

the

Palmer

said,

might

himself

in ques-

We

made

have

been

"

vomited

on

Rugeley according to Myatt.'^ as

to

what passed

at

Shrewsbury

clearly

proves that Palmer, being then in great want of money. Cook

was to his knowledge in possession of £700 or £800 in banknotes, and was also entitled to receive on the following

Monday about £1,400 more. It also shows have given him a dose of antimony, though

that Palmer

may

the weight of the

weakened by the proof that diarrhoea and vomiting were prevalent in Shrewsbury at the time. evidence to this. effect

It

however,

is,

is

important

in

connection with

subsequent

events.

On

Thursday, November 15th, Palmer and Cook returned

together to Pugeley, which they

Cook went

to the Talbot

reached

Arms, and Palmer to his own house

" Evidence against last fact (section

" Facts tion

9).

rebutting

about ten at night.

5).

inference suggested

by preceding

fact

(sec-

88

Case of R. Cook

immediately opposite.

On

Palmer.

v.

stUl complained of being

imweU.

the Friday he dined with Palmer, in company with an

Jeremiah Smith, and returned perfectly sober

attorney, Mr.

about ten in the evening." At eight on the following morning

(November 17th) Palmer came

and ordered a cup

over,

of

was given to Cook by Mills the chambermaid, in Palmer's presence. "When she next went to his room, an hour or two afterwards, it had been vomited.'* In

The

coffee for him.

coifee

the course of the day, and apparently about the middle of the day, Palmer sent a charwoman,

named Eowley,

broth for Cook at an inn called the Albion. to Palmer's house, put

Soon

room.

and sent from

who

it

Mr.

after

it

by the

Palmer brought

to the Talbot

Arms with

Jeremiah Smith.

at first refused to take it

said he

must have

it out,

poured

It

noon Palmer of age, his

to see Cook,

(Palmer's)

came

it

to Cook, in,

and

The chambermaid brought back the

it.

called

the

left

Palmer, however, came

was thrown up."

also

it

into a cup,

a message that

broth which she had taken downstairs, and

room.

it

The broth was given ;

some

She brought

warm, and

to

fire

to get

left

it

In the course of the

in Mr. Bamford, a surgeon

the

in

after-

eighty years

and told him that when Cook dined

house he had taken too

at

much champagne.

'^

Mr. Bamford, however, found no bilious symptoms about him,

and he said he had only drunk two

day night Mr. Jeremiah Smith

was

still

On

ill.

Palmer sent

the

over his

" Introductory

to

its

On

the Satur-

Cook's room, as he

between

twelve

gardener,

Hawley,

with some more

what follows

Pact in issue and

slept in

^^

Sunday,

things under which following '*

glasses.

(section

9),

and

and shows

one,

state

of

facts occurred (section 7).

eifect,

as

this

was an act of poisoning

(section 5).

" Conduct and statements explaining conduct '°

(section 8).

Eebuts inference in Palmer's favour, suggested by preceding

and

explains the object of his conduct

was

false (section 9).

(section 14).

by showing that

fact

his statement

Cook's statement relates to his state of body

Case of R. broth for Cook. "

Arms, tasted

Palmer.

v.

89

Elizabeth Mills, the servant at the

taking two or three spoonfuls.

it,

Talbot

She became

exceedingly sick about half an hour afterwards, and vomited till five

o'clock in the afternoon.

go to bed.

to

She was

This broth was also

cup afterwards returned

Palmer.

to

By

^°

ill

had

that she

taken to Cook, and the It appears

taken and vomited, though the evidence

on that point.

so

have been

to

not quite explicit

is

the Sunday's post Palmer wrote to Mr.

an apothecary, and Cook's most intimate friend, to come and see him. He said that Cook was " confined to his Jones,

bed with a severe

The

bilious

servant Mills said

on the

observed

there of

part

combined with

attack,

was no

the

diarrhoea." '^

diarrhcea.

defence that this

was

It

was

letter

The prosecution suggested that it was " part of a deep design, and was meant to make evidence in the prisoner's favour." The fair conclusion seems strong

proof of innocence.

be to that

it

was an ambiguous act which ought

neither way, though the falsehood about Cook's suspicious as far as

On

When

on the Monday he

She

"

said,

Why

He

said,

street.

not

It

sure.

was just mad

" I

for

he

was

all

fast

disturbed

two minutes."

He

? "

and

asleep,

by a

This incident

called at the request

not

" I

hear

quarrel in the

was not

mentioned

at first

It

of the prisoner's counsel.

had an attack

of

was

" Fact in issue

some kind before administered

;

—administration of

Effects of facts in issue (section

" Conduct (section

8),

it

and

by

being re-

their

was con-

Cook had

sidered important for the defence, as proving that

'8

said,

might have waked and disturbed him, but he was

Barnes and MiUs, but was brought out on

strychnine

is

Monday Cook had some

did you not ring the bell

said

also

symptoms

the servant Mills went into his room

thought that you would be it."

weigh

goes.

it

the night between Sunday and

sort of attack.

to

was suggested that any the

principal

poison (section

5).

7).

and explanation of

it

(section

9).

medical

Case of R.

90 witness

the

for

v.

Palmer.

Mr. Nunneley, referred to

defence,

it

with

this view.'^"

On

the Monday, about

Palmer

itgain visited

He

Cook

but as he was in London about

;

must have gone

half-past two, he

During

a quarter-past or half-past seven,

to

town by an

early train.

whole of the Monday Cook was much

the

better.

dressed himseK, saw a jockey and his trainer, and the

sickness ceased.^'

In

meantime

the

appointment a

man named

the turf Palmer told

and read read

it,

to

him from

was in London.

Palmer

Herring,

him he wished a

the particulars

list,

who was

He met hy

connected with

to settle Cook's account

which Herring copied

of the bets

which he was

Palmer

as

to receive.

£984 clear. Of this sum Palmer instructed Herring to pay £450 to Pratt and £350 to Padwick. The nature of the debt to Padwick was not proved in evidence, as Padwick himself was not called. Palmer told Herring the

They amounted

£450 was horses.

words

:

—

to

He "

to

settle the bill

for

which Cook had assigned

wrote Pratt on the same day a

Dear

Sir,

—you

in these

letter

£50 I have

will place the

his

just paid

£450 you will receive from Mr. Herring, together £500, and the £200 you received on Saturday " (from Pisher) "towards payment of my mother's acceptance for

you, and the

£2,000 due 25th October.^^

Herring received upwards of £800, and paid part of

accordmg the £450

to Palmer's directions. ;

Pratt gave Palmer credit for

was retained by Mr.

some debts due from Cook

less

away

but the £350 was not paid to Padwick, according

to Palmer's directions, as part for

it

than he expected.

said that the

to him,

Herring

and Herring received

In his reply the Attorney-General

£350 intended

to

be paid to Padwick was on

account of a bet, and suggested that the motive was to keep '°

Fact tending to rebut inference from previous facts (section

'^'

Supports

the

inference

suggested by the

Palmer's doses caused Cook's illness (section "'

previous

fact

9).

that

9).

Conduct and statement explanatory thereof (section

8, ex. 2).

;

Case of R. Padwick quiet to

Palmer.

v.

as to tlie aute dated cheque for £1,000 given

Espin on Padwick's account.

and

this,

tended

it

not

is

he

to

g

much

of

paid

There was no evidence of

importance.

Padwick

to

on

It

was

clearly in-

not

account,

thus

disposed,

attempted

or

to

dispose,

Palmer

the

in

course of

Monday, Nov. 19th, of the whole of Cook's winnings

own

and Palmer were

to the

biU for £500, in which Cook

On

jointly interested.

Cook and Palmer dined together (Nov. Fisher (his agent) in these words

:

—

the

" It is of

"

should be paid to a Mr. Pratt, of

" 300?. has

enough

" this,

been sent

to

up

" at TattersaU's."

if

Mayfair

Street,

you would be kind

I will settle it

receipt of

on Monday

Fisher did pay the £200, expecting, as he

a

person," said Pratt,

me

"

know, called on

"

account of the prisoner

"whose name I did not

with a cheque, and paid ;

me

300?.

When Pratt

heard

death he wrote to Palmer, saying, " The death of

Mr. Cook wiU now compel you

to look about as to the pay-

£500 due the 2nd of December." ^^ Great use was made of these letters by the defence.

ment

on

that " (apparently the cheque, not

the 300?.) " was a cheque of Mr. Fisher's." of Cook's

£500

of

Saturday, Nov. 17th (the day after the date of

the

letter), "

oblige me.

to

Cook's account on the Monday, and repay him-

said, to settle

On

and

sum

pay the other £200 to-morrow, on the

you wiU greatly

seK.

to-night,

Queen

when

very great im-

portance to both Palmer and myself that a 5,

Friday

Cook wrote

16),

"

"

his

a convenient place to mention the final result of

is

the transaction relating

the

for

advantage.'^

This

"

Cook

of

(except possibly as to a small part), but of Palmer.

of the bUl for

was argued that they proved that Cook was helping Palmer, and was eager to relieve him from the pressure put on him by Pratt

£500 '"

;

that in consequence of this he not only took

bill,

It

up the

but authorized Palmer to apply the £800 to similar

All this

is

Palmer's conduct,

and

is

explanatory of

7,9).

" Motive for not poisoning Cook (section

8).

it

(section

i

Case of R.

92

purposes, and to get the

which he had advanced interest,

die, especially as

the

settled

to Pratt.

on

first

this

It

by Herring, instead out of it the £200

was asked how

could

it

Cook should

supposition, that

consequence of his death was Pratt's

money due on the £500

application for the

These

amount

Palmer.

Fisher might not stop

of Fisher, so that

be Palmer's

v.

arguments were, no doubt,

bill.

plausible

that Cook's death compelled Pratt to look to

and the

;

Palmer

fact

the

for

£500 lends them weight but it may be asked, on the other hand, why should Cook give away the whole of his winnings to Palmer ? Why should Cook allow payment

of the

;

Palmer to appropriate to the diminution of his own

liabili-

£200 which Fisher had advanced to the credit of the biU on which both were liable ? Why should he join with the

ties

Palmer in a plan advance

As

No

?

for defrauding Fisher of his security for this

answer to any of these questions was suggested.

to the £300, Cook's letter

sent

up

received

for

it,

Cook's death. did receive

he

£300

lias

ieen

There was evidence that Pratt never

evening."

this

to Fisher says, "

applied to Palmer for

the

money on

Moreover Pratt said that on the Saturday he

£300 on account of Palmer, which he placed

Where

the account of the forged acceptance for £2,000.

Palmer get the money

to

did

The suggestion of the prosecution him to pay to Pratt on account of their ?

was that Cook gave it joint bUl, and that he paid

on

it

probably the true view of the

his

case.

own

account.

This was

The observation that

Pratt,

on hearing of Cook's death, applied to Palmer to pay the £500 bill, is

met by the

reflection that

collaterally secured

that the satisfied

other

that biU

by the assignment

was genuine, and

of the racehorses, and

biU bore a forged acceptance,

at all hazards.

The

result is

and must be

that on the

Monday

evening Palmer had the most imperious interest in Cook's death, for he

had robbed him of aU he had in the world, except

the equity of redemption in his two horses.

On Monday and went

to

evening (Nov. 19th) Palmer returned to Eugeley, the

shop of Mr.

Salt,

a

surgeon there, about

Case of R. nine p.m.

He saw

Newton,

v.

Palmer.

93 and asked him

Salt's assistant,

for

three grains of strychnine, which were accordingly given him."

Newton never mentioned

this

before his examination as

transaction tiU a day or two

London, though he

a witness in

was examined on the inquest. He explained this by saying that there had been a quarrel between Palmer and Salt, his (Newton's)

master, and that he thought

him

pleased with

having given

for

Salt

would be

dis-

No

Palmer anything.

doubt the concealment was improper, but nothing appeared on cross-examination to suggest that the witness was willfully perjured.

Cook had been much

Monday evening

Mr.

better throughout

Bamford,

who was

brought some piUs for him, which he

left at

Monday, and on him,

attending

They

the hotel.

They were taken Cook's room by the

contained neither antimony nor strychnine.

up in the box in which they came chambermaid, and were

left

there on the dressing-table about

Palmer came (according

eight o'clock.

to

to Barnes, the waitress)

between eight and nine, and Mills said she saw him the

fire

between nine and

sitting

by

ten.^^

If this evidence were believed he would have

had an oppor-

tunityofsubstitutingpoisonedpillsforthosesentbyMr.Bamford just after he had, according to Newton, procured strychnine.

The

was contradicted by a witness called He said that Jeremiah Smith the attorney.

evidence, however,

for the prisoner,

on the Monday evening, about ten minutes past Palmer coining

in a car

from the

ten,

he saw

directon of Stafford

;

that

they then went up to Cook's room together, stayed two or three minutes, and

went

with Smith to the house of

old

Mrs.

"Bamford sent him some pills, and he had taken them, and Palmer was late, intimating that he should not have taken them if he had thought Palmer Palmer,

his

would have it

Cook

mother.

called in before."

said

If this evidence were believed

would of course have proved that Cook took the piUs which ^ Preparation '"

(section

Opportunity.

The

8).

rest is introductory (section

7, 9).

Case of R.

94 Bamford sent examined

as

by

Palmer.

v.

Smith, however, was cross-

he sent them5

He

length.

Attorney-General at great

the

admitted with the greatest reluctance that he had witnessed the assignment of a policy for £13,000 by Walter to William

Palmer

;

an

that he wrote to

£10,000 on the

£1 a week his widow

;

office to effect

of Bates,

life

who was

an insurance for

Palmer's

groom, at

that he tried, after Walter Palmer's death, to get

give

to

up her claim on the policy

;

that he was

applied to to attest other proposals for insurances on Walter

Palmer's for

£5

life for

similar

amounts

;

and that he had got a cheque

for attesting the assignment.''^

Lord Campbell said of this witness in summing up,

"

Can

you believe a man who so disgraces himself in the witnessbox ? It is for you to say what faith you can place in a witness, who,

by

own

his

admission, engaged in such fraudu-

lent proceedings." It is curious that

much shaken

though the credit of this witness was so

in cross-examination, and though he

was contra-

both by MiUs and Newton, he must have been right

dicted

and they wrong

as

to the time

when Palmer came down

to

Eugeley that evening.

Mr. Matthews, the inspector of police

Euston

proved that the only train by which

at the

station,

Palmer could have left London Herring) started at

five,

after half-past

and reached Stafford on the night in

question at a quarter to nine. Stafford to Eugeley, so that he

the road in

him

"

much

less

""

tion "^

;

about ten miles

is

coixld

from

not have got across by

than an hour -^ yet Newton said he saw

is

more

on the other hand,

difficult if

ten.''

than to speak accurately to

Smith spoke the truth Newton

Evidence against the existence of the

fact last

mentioned

(sec-

5).

This cross-examination tended to test the veracity of the witness

and to •"

It

about nine," and MiUs saw him " between nine and

Nothing, however,

time

two (when he met

test his credit (section 146).

Facts inconsistent with a relevant fact

(section 11),

he time of the occurrence of a relevant fact (section

9).

and

fixing

Case of R. could not have seen

him

must have seen him

v.

Palmer.

at all that night,

for a

moment only

and

95 Mills, if at aU,

in Smith's company.

Mills never mentioned Smith, and Smith would not venture to

swear that she or any one else saw him at the Talbot Arms.

It

was a suspicious circumstance that Serjeant Shee did not open Smith's evidence to the jury.

An opportunity

for perjury

was

by the mistake made by the witnesses as to the time, which the defence were able to prove by the evidence of the police inspector. If Smith were disposed to tell an untruth, the knowledge of this fact would enable him to do so with an

afforded

appearance of plausibility.

Whatever view was

is

taken as to the

evidence

clearly proved that about the middle of the night

Monday and Tuesday Cook had About

When

in

beU rang

;

it

between

a violent attack of some

twelve, or a little before, his

sort.

he screamed

came in he was sitting bed, and asked that Palmer might be fetched at once.

violently.

up

effect of this

He was

Mills, the servant,

beating the bedclothes

and jerked.

He had great

protruded.

His hand

Palmer came

He

pills.

whole body jumped

and he asked

and to

his eyes

have

it

and gave him a draught and some glass,

He had

teeth.

stiff,

if

and got both it and the spoon

also great difficulty in swallowiag

After this he got more easy, and Palmer stayed by

the piUs.

him some Great

in,

his

difficulty in breathing,

was

snapped at the

between his

he said he should suffocate

His head and neck and

he lay down.

rubbed.

;

time, sleeping in an easy chair.^

efforts

were made in cross-examination to shake the

evidence of Mills by showing that she had altered the evidence

which she gave before the coroner, so as to make her description of the symptoms tally with those of poisoning by

by showing that she had been drOled as the evidence which she was to give by persons connected

strychnine, and also to

with the prosecution.

'"

tion

Effect 7).

of fact

She denied most of the suggestions

in issue,

iiiz.,

the administration of poison (sec-

96

Case of R.

v.

conveyed by the questions asked

As

to the differences

and

the

at

show that the

called to

at the inquest.

On

her,

others."

(Mr.

Gardner, an attorney) was

depositions were not properly taken

''

the following day, Tuesday, the 20th, Cook was a good

deal better.

Palmer

if

In the middle of the day he sent the boots to ask he might have a cup of

might, and came over, tasted a cup

took

and explained

between her evidence before the coroner

a witness

trial,

Palmer.

it

from her hands to give

it

Palmer said he

coffee.

made by the

servant,

,

and

This coffee was

to Cook.

afterwards thrown up.'^

A

little

before or after this, the exact hour

Palmer went

to

is

not important.

the shop of Hawkins, a druggist at Rugeley,

and was there served by his apprentice Eoberts with two drachms of prussic acid, six grains of strychnine, and two drachms of Batley's sedative.'* Whilst he was making the purchase,

Newton, from

whom

he had obtained the

other

Palmer took him

to the

strychnine the night before, came in

;

speak to him; and when he was

door,

saying he wished to

there

asked him a quesion about the farm of a Mr. Edwin

Salt

—a

matter

with which he

had nothing

at

aU

to

do.

Whilst they were there a third person came up and spoke to

Newton, on which Palmer went back

into. Hawkins'

shop and

took away the things, Newton not seeing what he took. obvious suggestion upon this

is

that Palmer wanted to pre-

vent Newton from seeing what he was about.

2'

Former statements inconsistent

'*

The

depositions

No

attempt

with, evidence (section 155).

before the coroner would be a proper

proof as being a record of a relevant fact in the discharge of his official

The

made by a

duty (section

35),

mode

of

public servant

and any document

purporting to be such a deposition would on production be presumed to be genuine, and the evidence would be presumed to be duly taken (sections 79

nition =^

"

of

and

80),

but this might

be rebutted (section

shall presume.'

Part of the transaction of poisoning (section Preparation (section

8).

8).

8),

defi-

Case of R.

97

Palmer.

v.

even was made to shake, or in any way

discredit,

Eoberts the

apprentice.^'

At about

four p.m. Mr. Jones, the friend to

had written, arrived from Lutterworth.'^

He

whom

Palmer

examined Cook

in Palmer's presence,

and remarked that he had not the tongue

of a bilious

patient

to

have seen

before."

it

;

which Palmer

Cook appeared

replied,

"

You

should

to be better during the

At about seven p.m. Mr. Bamford came in, and Cook told him in Palmer's presence that he objected to the pills, as they had made him ill the night before. The three medical men then had a private consultation. Palmer proposed that Bamford should make up Tuesday, and was in good

spirits.'*

the pills as on the night before, and that Jones should not

tell

Cook what they were made of, as he objected to the morphine which they contained. Bamford agreed, and Palmer went up to his house with him and got the pills, and was present whilst He they were made up, put into a pill-box, and directed. Cook took them away with him between seven and eight.'^ was well and comfortable all the evening he had no bilious ;

symptoms, no vomiting, and no

diarrhoea.'*

Towards eleven Palmer came with a box

He

Bamford's hand.

of pills directed in

called Jones's attention to the goodness

man

of the handwriting for a

of eighty.**

It

was suggested by

the prosecution that the reason for this was to impress Jones

with the fact that the

With

reference

to

had been made up by Bamford.

pills

evidence

Smith's

it

is

remarkable that

Bamford on the second night sent the pills, not " between Palmer pressed Cook to take nine and ten," but at eleven. the

him

pills,

which

at

first

so iU the night before.

afterwards vomited.

whether the '^

he refused to

Condact

pills

At last he

do, as

did

so,

they had made

and immediately

Jones and Palmer both examined to see

had been thrown up, and they found that ''

(section 8).

3*

State of things under which

'5

Preparation (section

'"

Conduct and statements

Introductory (section 9).

Cook was poisoned

8).

(section

H

8, ex. 2).

(section

7).

98

Case of R. they had not.

This was about eleven.

and went

supper,

Palmer.

v.

Jones then had his

"When

bed in Cook's room about twelve.

to

he had been in bed a short time, perhaps ten minutes, Cook

up and

started

lU

;

called out, " Doctor, get

ring the beU for Mr.

The back

neck."

across the road to Palmer's

came

diately

Two minutes

said he

had never dressed

sitting

By

was

;

I

going to be

Eub my

MOls ran Palmer immehe would come

and hard.

stiff

and rang the beU.

afterwards he was in Cook's room, and so quick in his

The suggestion upon

up expecting

am

also said, "

bedroom window and said

to the

at once.

as usual.

He

Palmer."

of his neck

up

be

to

this

He was

life.

dressed

was that he had been

called.'''^

the time of Palmer's arrival Cook was very

ill.

Jones,

Elizabeth Mills, and Palmer were in the room, and Barnes stood

the

at

Immediately afterwards

pills.

—he

pUls to have any effect

when he began

said,

be convulsed,

to

not, as the limbs

were

He

rigid.

which was done.

—

^too

soon

he

for the

was dreadfully convulsed.

Palmer and Jones

be suffocated."

over,

of his neck were stiff;

Palmer gave him what he said were two

screamed loudly.

ammonia

The muscles

door.

His

"

Eaise

tried to

me up, do

soj

.

He

or I shall

but could

then asked to be turned

heart

began to

beat

weakly.

Jones asked Palmer to get some ammonia to try to stimulate

He

it.

fetched a bottle, and was

When

that purpose.

absent about a minute for

he came back Cook was almost dead,

and he died in a few minutes, quite

quietly.

The whole

The body was twisted back bow, and would have rested on the head

attack lasted about ten minutes. into the shape of a

and

heels,

laid out,

it

had

till

feet also

had

the

been laid on

its

back.

When

the body was

The arms could not be kept down by they were tied behind the back with tape. The

was very

the sides

stiff,

it

stiff.

to be tied,

and the

hand being clenched.

or three quarters of

an hour

hand were very

This was about one a.m., half

after the death.''

Conduct (section

^^

Fact in issue (section

3^

Cook's death, in all its detail,

16).

fingers of one

was a

8).

fact in issue (section 6).

Case of R,

As soon

v.

Palmer.

99

Gook was dead, Jones went out

as

speak to

to

When

the housekeeper, leaving Palmer alone with the body.

Jones she

and

room he sent the servant Mills in, and Palmer searching the pockets of Cook's coat the

left

saw

searching

shortly

under

also

afterwards

returned,

He

and

for

me, as I

Palmer

am

and I hope Mr. Cook's they do not assist me,

any

said, "

take possession

all

five

He

shillings.

Mr. Cook's death

my

me

will not let

friends

horses

will

that

lose

a

is

it

;

If

it.

The

be seized."

said, " It will

Palmer

and added

one,"

that

responsible for £3,000 or £4,000

betting-book was mentioned. to

him

told

to

and

purse, containing five sovereigns

bad thing

Jones

accordingly took possession of his watch

found no other money.

use

Palmer

and

he (Jones) ought

as Cook's nearest friend,

of his property.

pillow and bolster.

the

be

no

would probably be

found.*'

On

"Wednesday, the 21st

racing agent,

who kept

ceived from

Palmer a

against the

amount

Wetherby was

a sort of letter

of the

receive

to

Mr. Wetherby, the London

inst.,

bank

for

enclosing a

sporting

cheque

Shrewsbury stakes for

him.

This

men, for

re-

£350

(£381), which

cheque had been

drawn on the Tuesday, about seven o'clock in the evening, Palmer sent for Mr. Cheshire, under pecuL'ar circumstances.

him to bring a receipt stamp, and when he arrived asked him to write out, from a copy which he produced, a cheque by Cook on Wetherby. He said it was for money which Cook owed him, and that he Cheshire wrote was going to take it over for Cook to sign.

the

postmaster

Eugeley, telling

at

out the body of the cheque, and Palmer took

it

away.

When

Mr. Wetherby received the cheque, the stakes had not been He accordingly returned the cheque paid to Cook's credit. to Palmer, to at the

whom It

trial.''"

the prosecution gave notice to produce

was

called for,

Conduct

(section 8).

" Conduct

(section 8).

'^

*'

but not produced.*'

See section 66 as to notice to produce.

it

This

"

loo

Case of R. was one

Palmer.

v.

Palmer in the whole of

of the strongest facts against

the case,.

had produced the

he

If

and

cheque,

appeared to have been really signed by Cook,

shown that Cook, his stakes

some reason

for

Palmer,

to

strong presumption

the bets to his

own

and

or

In

purposes.

would have

it

have

destroyed the

it

was a forgery

On

as to the motive.

;

of

would have greatly

fact, it

amounted

the other hand, the non-production of the cheque

an admission that

had

it

from Palmer's appropriation

arising

weakened and almost upset the case to

if

had made over

other,

would

this

;

and

if

that were

so.

name for the purpose of stealing his stakes at the time when to all outward appearance there was every prospect of his speedy recovery which must If he knew that Cook result in the detection of the fraud. Palmer was forging his

would die that position

it

friend's

was

night, this

was LQConceivable

On any

natural.

other sup-

rashness.'"

Either on Thursday, 22nd, or Priday, 23rd, Palmer sent for

a paper which he said Cook

Cheshire again, and produced

had given to him some days be aji acknowledgment that which were stated Palmer's.

was

—were

for £1,000,

certain biUs

— the

particulars

for

£500.

This document

ported to be signed by Cook, and Palmer wished

document was

it,

which he refused

called for at the

same observations apply to

it

trial,

£25

to

£9

6s, at

England note

*^ *^

Ab

This

The

^''

Palmer, who,

the bank, and had borrowed

He

paid Pratt £100 on the 24th

he paid a farmer named SpUsbury £46

of

do.

go to Shrewsbury, paid away large sums of money

soon after Cook's death.

sum

to

as to the cheque.'"''

that

pur-

Cheshire to

and not produced.

Evidence was further given to show shortly before, had but

of

considerable, as at least one item

and another

attest Cook's execution of

to

Cook's benefit, and not for

for

all

The amount was

The paper purported

before.

£60

for

or

£50 on the 22nd

thereabouts

in

;

2s.

with a Bank of

and Bown, a draper, a

two £50

notes,

to these inferences see section 114, illust. g.

Conduct

(section 8).

on the 20th,"

Case of R. The general

result of these

appropriated to his

own

appropriate his stakes

;

Palmer.

V.

money

use

transactions

Cook's bets

aU.

loi

and that shortly

;

is,

that Palmer

that he tried to

before, or just

after

he was in possession of between £400 and £600, of which he paid Pratt £400, though very shortly before he was his death,

being pressed for money.

On Wednesday, November

21st,

Mr. Jones went up

to

London, and informed Mr. Stephens, Cook's step-father, of his Mr. Stephens went to Lutterworth, found a

step-son's death.

by which Cook appointed him his executor, and then went on to Eugeley, where he arrived about the middle of the will

He

day on Thursday."* Cook's out of

affairs,

his,

and he

and I

am

asked Palmer for information about

replied, "

There are £4,000 worth of bills

my name

sorry to say

them

to

is

;

but

up by a lawyer and signed by Mr. Cook to show that I never had any benefit from them." Mr. Stephens said that at all events he must be buried. have got

I

Palmer

a paper drawn

offered to do so himself,

and said that the body ought

be fastened up as soon as possible.

to

Palmer went

ended

for the time.

from

Mr. ^Stephens

ordered

a

out,

The conversation then and without authority

shell

and

a

oak

strong

cofEin."^

In the afternoon Mr. Stephens, Palmer, Jones, and a Mr. Bradford,

dined

Cook's brother-in-law,

together,

and

after

dinner Mr. Stephens desired Mr. Jones to fetch Cook's bettingbook.

Jones went to look for

it,

but was unable to find

it.

The betting-book had last been seen by the chambermaid. Mills, who gave it to Cook in bed on the Monday night, when he took a stamp from a pocket at the end of it. that the book could not be found. Palmer said

manner

won

of use.

no

it

hearing,

was

of

no

Mr. Stephens said he understood Cook had

a great deal of

replied, " It's

On

money

at

use, I assure

Shrewsbury, to which Palmer

you

;

when

**

Introductory and explanatory (section

*5

Admission and conduct

a

man

dies, his bets

9).

(sections 17, 18;

section 8).

^02

Case of R. v. Palmer.

He

are done with."

bets

had been paid

mention the fact that Cook's

not

did

to Herring

on the Monday.

Mr. Stephens

then said that the book must be found, and Palmer answered that no doubt

would

it

phens went to look

Before leaving the inn Mr. Ste-

be.^"

at the body, before the coffin

and observed that both hands were clenched. at once to

town and went

to

his attorney.

was fastened

He returned He returned to

Eugeley on Saturday, the 24th, and informed Palmer of his intention to

place on

have a post-mortem examination, which took

Monday,

26th.''^

The post-mortem examination was conducted in the presence of Palmer by Dr. Harland, Mr. Devonshire, a medical student, assisting Dr.

Monkton, and Mr. Newton.

was

empty.

contracted and

There were

The heart

numerous

small

yellowish white spots, about the size of mustard-seed, at the larger

cord

The upper part

end of the stomach.

was

in

its

natural

lower

the

state;

spinal

of the

part

was

not

examined tUl the 25th January, when certain granules were found.

There were

many

follicles

on the tongue, apparently

The lungs appeared healthy to Dr. Harland, but Mr. Devonshire thought that there was some congestion.** Some points in Palmer's behaviour, both before and after the post-mortem examination, attracted notice. Newton said that on the Sunday night he sent for him, and asked of long standing.

what dose grain.

He

of strychnine

would

asked whether

it

and what would be death.

Newton

did not think

it

" It's all right,"

snapped his 40

These

that Pahner stole

duct (sections

a dog.

Newton

said a

would be found in the stomach,

the appearance

said there

of

the

stomach

after

would be no inflammation, and he

would be found.

Newton thought he

as if speaking to himself,

fingers.

facts

kill

replied,

and added that he

Whilst Devonshire was

opening the

and statements together make it highly probable the betting-book, which would be relevant as con-

8, 11).

4'

Introductory to what follows (section

*'

Facts supporting opinions of experts (section 46).

9).

"

Case of R.\. Palmer.

103

stomacli Palmer -pushed against him, and part of the contents of the stomach

was

Nothing particular being found

spilt.

in the stomach, Palmer observed to Bamford, "

They

will not

hang us yet." As they were all crowding together to see what passed, the push might have been an accident and as ;

weU known,

Mr. Stephens' suspicions were

though

natural,

After

coarse.

pleted, the intestines, &c.,

which were

tied

two

he thought

placed

it

examination was

the

were put iato a

jar,

over the top of

and when

it

was missed

When

would be more convenient.

it

was found that a

com-

Palmer removed the jar from

bladders.

the table to a place near the door, said

the remark was

slit

re-

had been cut through both the

bladders.*^

After

the

examination

Mr.

and

Stephens

clerk took

the jars containing the viscera,

Stafford.^"

Palmer asked the postboy

them to Palmer said,

drive

He

Stafford " Is it

Palmer

said, " I believe it is." ?

"

he would upset them

said

if

its

a fly to

going to

said, " I believe I ani."

?

He He

" I suppose

said,

said,

said,

" I

shall

you are

not."

Palmer

He

also said

him.

for

being " a humbugging concern."^'

confusion was introduced

into

this

1

Palmer asked

am."

" I

he would there was a £10 note

something about

&c., in

he was

if

attorney's

Mr. Stephens you are going to take

going to take the jars if

The postboy

?

an

evidence

by the

Some cross-

examination, which tended to show that Palmer's object was to upset Mr. Stephens (J.

Myatt) repeated

difference whether jars, as

it

and not the jars, but as given above.

Palmer wished

they were aU in one

fly,

at last the postboy

Indeed,

to upset

it

makes

little

Stephens or the

and must be upset together

if at aU.

Shortly after the post-mortem examination an inquest was

held before Mr. Ward, the coroner.

It

began on the 29th

November and ended on the 5th December.

"''ir^l,.

^^

Conduct

'"

Introductory (section

''

Conduct

(section 8).

(section 8).

9).

On Sunday,

Case of R.

I04

v.

Palmer.

3rd December, Palmer asked Cheshire, the postmaster, "

had anything open a

Cheshire

fresh."

Afterwards,

letter.

replied that

he

could not

he

he did open a

however,

if

letter

from Dr. Alfred Taylor, who had analyzed the contents of the stomach, &c., to Mr. Gardiner, the attorney for the prosecution,

and informed Palmer that Dr. Taylor said in that no traces

of strychnia were

letter that

Palmer said he knew

found.

they would not, and he was quite innocent.

Soon afterwards

Palmer wrote to Mr. Ward, suggesting various questions to be put to witnesses at the inquest, and saying that he Taylor had

Dr.

Gardiner there were no traces

Mr.

told

knew

strychnia, prussic acid, or opium.

A

few days before

this,

of

on

the 1st December, Palmer had sent Mr. Ward, as a present, a codfish, a barrel key.*^

These

even

criminal

of oysters, a

circumstances conduct.

brace

certainly

Cheshire

and a

of pheasants,

prove

improper and

was imprisoned

and Lord Campbell spoke in severe terms

offence,

conduct of the coroner

;

tur-

for

his

of the

but a bad and unscrupulous man, as

Palmer evidently was, might act in the manner described, even though he was innocent of the particular offence charged.

A

medical book

found in Palmer's possession had in

some MS. notes on the subject of strychnine, one

of

it

which

by causing tetanic contraction of the respiIt was not suggested that this memorandum ratory muscles." was made for any particular purpose. It was used merely to show that Palmer was acquainted with the properties and was, "It kills

effects of strychnine.^^

This

completes

before, at,

and

evidence

the

after the

as

to

death of Cook.

Palmer's It proves

behaviour

beyond

all

question that, having the strongest possible motive to obtain at once a

considerable

sum

of money, he robbed his friend of

the whole of the bets paid to Herring on the series of ingenious devices,

stakes;

it

raises the

and that he tried

strongest presumption

'*

Conduct and

'^

Pact showing knowledge (section

to

Monday by a rob him of the

that

he robbed

facts introductory thereto (sections 8/ 9). 14).

Case of R.

Cook

Palmer.

v.

105

£300 which, as Cook supposed, was sent up to Pratt on the 16th, and that he stole the money which he had on his person, and had received at Shrewsbury it proves that he forged his name the night before he died, and that he of the

;

tried to procure a fraudulent attestation to another forged docu-

ment

relating to his

affairs

the day after he

died.

It

also

proves that he had every opportunity of administering poison to Cook, that he told repeated

lies

about his state of health,

and that he purchased deadly poison, lawful

use,

on two

separate

for

occasions

paroxysms of a similar character to each

which deprived him

of

which he had no shortly before

two

other, the second of

life.

The rest of the evidence was directed to prove that the symptoms of which Cook died were those of poisoning by strychnine, and that antimony, which was never prescribed for

him, was found in his body.

tne course of the

At

as

trial

Both

the state of Cook's health.

Cook was about twenty-eight father and mother died young, and

death

the time of his

years of age.

to

Evidence was also given in

his

He inherited and half-brother were not robust. from his father about £12,000 and was articled to a solicitor. Instead of following up that profession he betook himself to his

sister

sporting pursuits, and appears to have led a rather dissipated life.

He

suffered from sjrphilis,

consulting Dr.

sionally

Dr. Savage saw

him

Savage

and was in the habit of occaon the

in November,

state

of

his

health.

1854, in May, in June,

towards the end of October, and again early in

November

1855, about a fortnight before his death, so that he had ample

means of giving satisfactory evidence on the subject, especially Dr. Savage as he examined him carefuUy whenever he came. said that he had two shallow ulcers on the tongue corresponding to bad teeth that he had also a sore throat, one of his ;

tonsils

small.

being very large, red, and tender, and the other very

Cook himself was

syphilitic, not.

He

afraid that these

symptoms were

but Dr. Savage thought decidedly that they were also noticed

"

an indication of pulmonary affection

1°^

Case of R. under the

man who was saw him some

for

to get

His general health Dr. Savage considered good

winter.

last

him away from his turf Savage recommended him to go ahroad for the Wishing

left lung."

associates, Dr.

Palmer.

v.

Mr. Stephens said that when he

not robust. alive

he was looking better than he had looked

and

time,

on

his

"You do

remarking,

and said he was quite

said that his health

also

not

very

His

well.

Mr. Jones

friend,

was generally good, though he was and played

and that he both hunted

robust,

look

not

himself on the

anything of an invalid now," Cook struck breast,

for a

at

cricket.^*

On the other hand, witnesses who gave a different account of said he

bury

was with him that

races,

mouth and

he

surprised

was

He

in.

months,

A

his health.

at Liverpool a

week

Mr. Sargent

before the Shrews-

he called his attention to the state of his

throat,

complete state of

were called for the prisoner

and the back part of

ulcer.

could

eat

" I

said,"

added the witness, " I was

and drink in the

he had been in that

said

mouth weeks and his

state for

state

and now he did not take notice of

it."

certainly not consistent with Dr. Savage's evidence.

Such being the

state of health

was in a

his tongue

of

Cook

This was ^*

at the time

of his

The prosecution was as to its cause. contended that the symptoms which attended it proved that Several eminent physicians he was poisoned by strichnia. Mr. Curling, Dr. Todd, Sir Benjamin Brodie, and surgeons death, the next question

—

Mr. Daniel, and

Mr. Solly

—gave

an account of the general

character and causes of the disease of tetanus.

Mr. Curling

said that tetanus consists of spasmodic affection of the volun-

tary muscles of the body which at last ends in death, produced either

or

by

suffocation caused

by the wearing

effect

by the

of the

closing of the windpipe

severe

which the muscular spasms produce.

and painful struggles

Of

—idiopathic tetanus, which

are three forms,

'*

State of things uuder which crime

this is

disease there

produced with-

was committed

(section

7).

Case of R.

v.

out any assignable external cause results

from wounds

Palmer. ;

107

traumatic tetanus,

and the tetanus which

;

wliicli

produced by

is

the administration of strychnia, bruschia, and nux vomica, aU of which are different forms of the

same

tetanus

England.

is

a very rare disease

Brodie had seen

who

only one doubtful case of

was surgeon

for twenty-eight years

saw only two. Leeds, had seen four.

pital,

Mr. Daniel,

it.

to the

Bristol

In India, however,

it is

Hos-

comparatively

in twenty-five years' practice there,

cases.

It

was agreed on

all

though the exciting cause of the two diseases

symptoms

Benjamin

Sir

Mr. Nunneley, professor of surgery at

common: Mr. Jackson, saw about forty

in

Idiopathic

poison.

hands, that is

different,

They were described in similar terms by several of the witnesses. Dr. Todd said the disease begins with stiffness about the jaw, the symptoms then extend themselves to the other muscles of the trunk and body. They their

are the same.

When

gradually develop themselves.

begun there are remissions of mission of the symptoms.

much

by one of the

shortest case

In chronic cases

will go

it

on

There was some question as to

as three weeks.

what was the

but not complete inter-

In acute cases the disease termi-

nates in three or four days. for as

severity,

has

once the disease

upon

record.

In a case mentioned

prisoner's witnesses, Mr. Eoss, the

patient

was

said to have been attacked in the morning, either at eleven or

some hours

earlier,

it

did not clearly appear which, and to

This was the

have died at half-past seven in the evening.

shortest case specified on either side, though its duration

not

accurately

determined.

As

a rule,

whether traumatic or idiopathic, was said

however, to

was

tetanus,

be a matter not

of minutes, or even of hours, but of days.^^

Such beiug the nature of four questions arose. of traumatic tetanus

^*

?

tetanus, traumatic

Did Cook die Did he die of

of tetanus

?

idiopathic,

Did he

idiopathic tetanus

Opinions of experts, and facts on which

(sections 45, 46).

and

The rest of the evidence

falls

they

were

?

die

Did

founded

under this head.

"

ioS

Case of R.v. Palmer. he die of the tetanus produced by strychnia the prosecution upon these questions was,

was

action of the muscles (which

Cook's case

who contended

by tetanus

very

his definition of tetanus) in

like "

that the death of

for

Cook was caused

by the tetanus of

in its ordinary forms nor

strychnia, admitted that the

was

that he did die

and even Mr. Nunnely, the principal witness

;

the prisoner,

"

first,

case for

Mr. Curling said no doubt there was spasmodic

of tetanus.

neither

The

?

paroxysm described by Mr. Jones

The

the paroxysm of tetanus.

close general

resemblance of the symptoms to those of tetanus was indeed

assumed by aU the witnesses on both

sides,

was proved

as

by the various distinctions which were stated on the side of the Crown between Cook's symptoms and those of and idiopathic

traumatic

between

prisoner

of

the tetanus

sidered

to

form or

Cook's

tetanus,

and on

symptoms

of strychnia.

and

established that he died

be

side

of

the

symptoms

the

therefore, be

might,

It

the

of tetanus in

con-

some

other.

The next point

asserted

by the prosecution was,

that he did

not die of traumatic or idiopathic tetanus, because there was

no wound on

symptoms

was

different.

symptoms were those

Upon

these

any form

Q.

"

What

" tetanus

or

They

"

by

was

?

He

"

them from the

which you have described?"

" milder

A.

" Yes."

He

of tetanus."

Q.

:

—Mr.

consistent with

come under

answered, " 'No."

cases

of traumatic

notice the disease has been preceded

symptoms

" their complete

foUows

A. "There was the In aU cases that have

" sudden onset of the fatal symptoms.

my

as

tetanus which has ever

observation

the

strychnia.

Were the symptoms

distinguished

" fallen under

asserted that

further

the evidence

of traumatic

" your knowledge

because the course of the

also

of poison

points

Curling was asked, Q. "

and

his body,

by the

" Gradually progressing to

development, and completion, and death also

?

mentioned "the sudden onset and rapid

subsidence of the spasms " as inconsistent with the theory of either traumatic

or idiopathic tetanus

;

and he said he had

;

Case of R.

known

never

In the one case which occupied so

short a time, the true period

Benjamin Brodie was

"

could not be ascertaiaed.

was from one

general, the time required

asked, "

as

In

to several days.

Sir

In your opinion, are the symp-

toms those of traumatic tetanus or not

" far

109

case of tetanus whieli ran its course in less

a

than eight or ten hours.

"

Palmer.

v.

?

He

"

replied, "

As

the spasmodic contraction of the muscles goes, the

"

symptoms resemble those of traumatic tetanus as to the course which the symptoms took, that was entirely different." He added, " The symptoms of traumatic tetanus

"

always begin,

;

"

as

" stiffness of the lower " first

"

complained of

seen,

—at

jaw being, I least, so it

very gradually, the the

believe,

has been in

" extremities " the

much later; a much less

are affected in

neck and trunk, except in some

symptom

my experience

then the contraction of the muscles of the back

" a later symptom, generally

"

have

as I

far

always

is

the muscles of the degree than those of

cases,

where the injury

has been in a limb, and an early symptom has been a con-

" traction of the " lect

case in which in

a

" contraction "

muscles of that limb.

stand was stated to

three

" period " to sion,

days,

I

;

and

have terminated " I

runs

often

know one

of

the

there was that

hand which I under-

The

have existed in this instance.

" ordinary tetanus rarely "

ordinary tetanus

muscles

of the

I do not myself recol-

is

its

course in less that two or

protracted

case only in

to

a

much

longer

which the disease was said

in twelve hours."

He

said, in

conclu-

never saw a case in which the symptoms described

" arose from any disease

;

when

I

say that,

of course I refer

" not to the particular

symptoms, but to the general course

"

took."

which the symptoms

Mr. Daniel being asked whether

the symptoms of Cook could be referred to idiopathic or trau"

In

my

judgment they could

He

matic tetanus,

said,

also said that

he should repeat Sir Benjamia Brodie's words

if

he were

that the

to

enumerate the

symptoms were not

witnessed

;

and Dr. Todd

distinctions.

referable to

said,

" I

not."

Mr. SoUy said

any disease he ever

think the symptoms

were

'

I

lo

Case of R.

The same opinion was expressed with

those of strychnia."

equal

confidence

Palmer.

v.

by

Dr.

Alfred

Dr.

Taylor,

and

Eees,

Mr. Christison.^*

In order to support

who gave account

called

strychnia,

The

who was

Senet,

1845,

fatal cases of poisoning

of three

cases

fatal

by

was that

of

Agnes Trench, or

accidentally poisoned at Glasgow Infirmary, in

by some piUs which she

and which were intended

took,

According to the nurse, the

a j^aralytic patient.

for

evidence witnesses were

and of one case in which the patient recovered. of the

first

general

this

was

girl

taken Ul three quarters of an hour, according to one of the (who, however, was not present) twenty minutes

physicians

swallowed the

after she floor

when her

;

clothes

she vomited slightly

spine

of the

curved.

seconds,

were cut

;

fell

suddenly back on the

was

off she

arms were stretched

poker," her

traction

She

pills.

out, _

mouth and

face,

"just like a

her hands

had no lockjaw

she

stiff,

;

there

clenched;

was a

re-

the head was bent back, the

She went into severe paroxysms every few

and died about an hour

She was perfectly conscious.

after

the

symptoms began.

The heart was found empty on

examination.

The second case described was that of Mrs. Serjeantson Smyth, who was accidentally poisoned at Eomsey in 1848, by strychnine put into a dose of ordinary medicine instead of

She took the dose about

salicine.

seven

by a

;

in five or ten minutes

violent

five

or ten minutes after

more the servant was alarmed

ringing of the beU.

She found her mistress

leaning on a chair, went out to send for a doctor, and on her return found

her on the

floor.

She screamed loudly.

She

asked to have her legs pulled straight and to have water thrown over her.

A

me

she was turned over, and died very quietly almost

over

;"

few minutes before she died she

The

immediately.

fit

lasted about

clenched, the feet contracted,

tion the heart

The third

an hour.

said,

"Turn

The hands were

and on a post-mortem examina-

was found empty.

case

was that of Mrs. Dove, who

was poisoned

;

Case of R. v. Palmer. at Leeds

by her husband

which he was afterwards hanged) She had five attacks on the Monday

in February,

1856.

Wednesday,

Thursday,

(for

and Saturday of the week She had prickings in the legs and

Friday,

beginning February 24th. twitchings in the hands.

arms and

1 1 j

legs before the

She asked her husband spasms came

to

but when they were

on,

strong she could not bear her legs to be touched.

two hours and a

attack in her case lasted

were semi-bent, the

congested, the spinal cord

being opened

first,

was

paralytic

patient of Mr.

found him stiffened ;

made

out,

part of

heart.

Moore's.

He

every

in

of

a

took an over dose of

he was screaming and

His head was drawn

limb.

" frequently requesting that

should turn him, move him, rub him." back.

The head

and ia about three quarters of an hour Mr. Moore

strychnia,

back

congested.

which the patient recovered was that

in

case

much

fatal

The lungs were

good deal of blood flowed

a

which might flow from the

The

also

The

The hands

half.

strongly arched.

feet

rub her

He

we

His spine was drawn

snapped at a spoon with which an attempt was medicine, and was

to administer

perfectly

conscious

during the whole time. Dr.

and

Taylor

They found no liver,

Dr.

Owen Eees examined

Cook's body.

but they found antimony in the

strychnia,

the left kidney, the spleen, and also in the blood.

The case for the prosecution upon this evidence was, that the symptoms were those of tetanus, and of tetanus produced The case for the prisoner was, first, that several by strychnia. of the symptoms observed were inconsistent with strychnia and secondly, that all of them might be explained on other hypotheses.

Their evidence was given ia part by their

witnesses, and in part

examination.

founded

partly

given by

way

obtained

from

examination.

The on

Crown in crosssuggested by the Crown were

by the witnesses

replies

the

evidence

of anticipation,

the

own

witnesses

of

for the

their

own

witnesses

and partly by the evidence for

the

prisoner

on

cross-

112

Case of R. The

first

Palmer.

v.

and most conspicuous

prisoner was, that

the fact that no strychnia was

by Dr. Taylor and Dr. Eees was that any had been administered. Taylor's evidence

argument on behalf of the

upon

this

inconsistent with the theory

The material part of Dr. point was, that he had examined

the stomach and intestines of Cook for a strychnia

among

the stomach were

variety of poisons,

The contents of

without success.

others,

discovered

gone, though the contents of the intestines

remained, and the stomach itself had been cut open from end to

and turned inside

end,

which poison,

would have been found was rubbing

if present,

against the surface of the

This Dr.

intestines.

most unfavourable condition

sidered a poison,

and the mucous surface on

out,

for

the

and Mr. Christison agreed with him. witnesses,

prisoner's

on

Letheby, and Mr. Eogers,

the

—Mr.

contrary

—thought that

it

Taylor condiscovery of

Several of the

Nunneley,

Dr.

would only increase

thedif&culty of the operation, and not destroy

chance of

its

success.

Apart from the

way

discover

mode

this Dr. Taylor expressed his opinion that

in which strychnia acts,

even

it

if

of testing

it

might be impossible to

the circumstances were favourable.

its

presence in the stomach

stomach in various ways, until at

from

last

to

is

a residue

is

The

treat the

obtained

which, upon the application of certain chemical ingredients,

changes

its

colour

if

strychnia

is

present.

agreed that strychnia acts by absorption

up from the stomach by the

All the witnesses

—that

is, it is

absorbents, thence

it

taken

passes into

the blood, thence into the solid part of the body, and at some stage

of

its

nerves and muscles. it

a

has

left

stomach

noxious

From

by

effects

its

action

on the

do not begin tiU

this Dr. Taylor argued that if

dose were administered, none would be

at the

left in

the

time of death, and therefore none could be

discovered there. the blood

Its

the stomach.

minimum

death

causes

progress

before

He

also said that if the strychnia got into

examination,

it

would be diffused over the

whole mass, and so no more than an extremely minute portion

Case of R.

v.

Palmer.

would be present in any given quantity.

i

If the dose

were

half a grain, and there were twenty-five pounds of blood in the

body, each pound of blood would contain only one-fiftieth of a grain.

He was

also of opinion that the strychnia undergoes

some chemical change by small quantities short, the

the

in

of

result

would be it

tissues

it

was not in the stomach, there was no

fallacious,

He

In

detected.

a

if

minimum

was uncertain whether strychnia

present in the stomach after

be found at alL

presence in

its

be

cannot

evidence was, that

his

dose were administered,

reason of which

and that

death,

certainty that

it

if

could

added that he considered the colour

tests

might be produced by other

because the colours

substances.

Dr. Taylor further detailed some experiments which he had tried

upon animals

jointly with Dr. Eees, for the purpose

ascertaining whether strychnia could always be detected.

of

He

poisoned four rabbits with strychnia, and applied the tests for strychnia to their bodies.

been administered at

In one

intervals,

case,

where two grains had

he obtained proof of the presence

by a bitter taste and by the colour. In a case where one grain was administered, he obtained the taste but not the colour. In the other two cases, where he administered one grain and half a grain respectively, he obtained of strychnia both

no indications at

all

of the

presence

These

of strychnia.

experiments proved to demonstration that the fact that

lie,

did

prove that no strychnia was

not discover strychnia did not present in Cook's body.

Mr. Nunneley,

Mr. Herapath,

Mr. Eogers,

Dr.

Letheby

and Mr. Wrightson contradicted Dr. Taylor and Dr. Eees They denied the theory upon this part of their evidence. that strychniae undergoes any change in the blood, and they professed their

own

ability

to discover

its

presence even in

most minute quantities in any body into which introduced, and their belief that factory.

it

had been

the colour tests were satis-

Mr. Herapath said that he had found strychnine in

the blood and in a small part of the liver of a dog poisoned I

^3

Case of R.

114 by it

;

and he

Palmer.

v.

also said that lie could detect the fifty-thousandth

part of a grain

if it

were unmixed with organic matter.

Mr.

Wrightson (who was highly complimented by Lord Campbell for the

way

in which he gave his evidence) also said that

should expect to find strychnia

had found

were present, and that he

if it

in the tissues of an animal poisoned

it

he

by

it.

Here, no doubt^ there was a considerable conflict of evidence

upon a point on which persons

to

was very

it

have

pretend to

for unscientific

difficult

The

any opinion.

evidence

given for the prisoner however tended to prove not so that there

was no strychnia in Cook's body,

ought to have found less to

as that Dr. Taylor

In other words,

there was.

it if

much it

had

do with the guilt or innocence of the prisoner, than

with the

question whether Mr. Nunneley and Mr. Herapath

were or were not better analytical chemists than Dr. Taylor.

The evidence

could not even

be considered to shake

Taylor's credit, for no part of the case rested on his

except the discovery of the antimony, as to corroborated by

the

Mr.

Brande, and

Cook's symptoms was shared by of the highest eminence,

peached. difficulty

The by

this

rebutting

as

;

the natuare of

were placed in a curious

They had

to attack

credit vigorously for the purpose

conclusion

poisoned by strychnine

to

was altogether unim-

state of the question.

his

which he was

other medical witnesses

credit

prisoner's counsel

and did attack Dr. Taylor's of

many

whose

evidence

was not contradicted by

His opinion

witnesses.

prisoner's

Dr.

that

Cook

might

yet they had also

have been

to maintain his

credit as a skilful analytical chemist, for if they destroyed

the fact that he did not find strychnine went for nothing.

dilemma was client's all

fatal.

guilt.

their

admit his

own skill

To admit

To deny evidence.

it

was

his

was

to

This

admit their '

to destroy the value of nearly

The only

and deny his good

less for the reason just

skill

it,

possible

faith,

course was

to

but this too was use-

mentioned.

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

Case of R. poisoning by strychnine.

v.

Palmer.

Mr. Nuniieley

115 and Dr. Letheby

thought that the facts that

Cook sat up in Bed when the attack came on, that he moved his hands, and swallowed, and asked to be rubbed and moved, showed more power of voluntary motion than was consistent with poisoning by strychnia. But Mrs. Serjeantson Smyth got out of bed and rang the bell, and both

she, Mrs.

Dove, and Mr. Moore's patient begged to

be rubbed and moved before the spasms came

movements were before the paroxysm paroxysm ended his life. Mr. Nunneley referred

the

to

set

in,

that

fact

on.

Cook's

and the

the

heart

first

was

empty, and said that, in his experiments, he always found that the right side of the heart of the poisoned animals was full.

Both in Mrs. Smyth's Senet, the heart

case,

however, and in that of the

was found empty

and in Mrs. Smyth's case

;

the chest and abdomen were opened

was not emptied by the opening said that if a

man

girl

so

first,

of the head.

that the heart

Mr. Christison

died of spasms of the heart, the heart would

be emptied by them, and would be found empty after death, so that the presence or absence of the blood proved nothing.

Mr. Nunneley and Dr. Letheby of time before the

symptoms appeared,

of

measured.

paroxysm was not accurately

the pills and the It

as inconsistent with

The time between the adminis-

poisoning by strychnine. tration

also referred to the length

might have been an hour, or a

more

;

pills,

which would not begin

but the poison,

present at

if

all,

to operate

little less,

or

was administered in till

they were broken

and the rapidity with which they would be broken up would depend upon the materials of which they were made up,

Mr. Christison said that

if

the

pOls

were made up with

resinous materials, such as are within the knowledge of every

medical man, their operation would be delayed. " I

do not think

"precise

time

we can

fix,

He

added,

with our present knowledge, the

for the poison

beginning to operate."

Ac-

cording to the account of one witness in Agnes French's case,

1

16

Case of R. the poison did not operate

v.

Palmer. an

three quarters of

for

though probably her recollection of the time was not

hour, very-

Dr. Taylor also referred (in cross-

accurate after ten years.

examination) to cases in which an hour and a half, or even

two hours

elapsed, before the

These were the principal

symptoms showed themselves. points in Cook's symptoms said

to be inconsistent with the administration of strychnia.

of

them appear

to

have been

All

Indeed,

satisfactorily answered.

the inconsistency of the symptoms with strychnia was faintly

The defence turned rather on the

maintained.

possibility of

showing that they were consistent with some other

In order made.

to

make

out this point various suggestions were

In the cross-examination of the

the Crown,

it

diEferent witnesses for

was frequently suggested that the case was. one

of traumatic tetanus, caused there were

disease.

three

by

syphilitic sores

In the

fatal objections.

were no syphilitic sores

first

;

but to this place, there

in the second place, no witness for

;

the prisoner said that he thought that

it

was a case

of trau-

matic tetanus; and in the third place, several doctors of great experience

physician

in to

respect

the

of

syphilis

— especially

—declared

Lock Hospital

Dr.

Lee, the

that they never

Two witnesses man died of teta-

heard of syphilitic sores producing tetanus. for the prisoner

were called to show that a

nus who had sores on his elbow and elsewhere, which were possibly syphilitic

;

but

it

did not

appear whether he had

rubbed or hurt them, and Cook had no symptoms of the

sort.

Another theory was that the death was caused by general convulsions.

This was advanced by Mr. Nunneley

was unable

mention any case in which general convulsions

to

had produced death without destroying consciousness.

;

but he

He

said

vaguely he had heard of such cases, but had never met with one.

Dr. McDonald, of Garnkirk, near Glasgow, said that

he considered the case to be one of " epileptic convulsions with tetanic complications."

But he

also

failed to

mention

an instance in which epilepsy did not destroy consciousness. This witness assigned the most extraordinary reasons for sup-

7

Case of R. posing that that the

1

He

case of this form of epilepsy.

man was

though the ;

Palmer. said

might have been caused by sexual excitement,

fit

his death

was a

it

V.

and that

sexual intercourse

at

ill

Eugeley

was within the range of

it

week

for nearly a

before

possibility that

might produce a convulsion

after

fit

an

interval of a fortnight.

Both Mr. Nunneley and Dr. McDonald were cross-examined

Each

with great closeness. through point

strychnia,

how they

from those

differed

from anything

arise

Mr. Nunneley was forced "

paroxysm were

of the

separately

of

poisoning

by

and what were the reasons why they should be

supposed to trouble,

them was taken

the various syniptoms of the case, and asked to

all

out

of

After a great deal of

else.

to

admit that the symptoms

very like " those of strychnia, and that

the various predisposing causes which he mentioned as likely to produce convulsions could not be

He

have

existed.

but the only excitement

convulsions;

to

to

excitement and depression of spirits

said, for instance, that

might predispose

shown

under which Cook had laboured was on winning the race a

week

before

and

;

as

depression of

for

spirits,

he was laugh-

ing and joking with Mr. Jones a few hours before his death. Dr.

McDonald was

equally

explanation

of these

abridgment

to

It

difficulties.

convey

the

cares

full

give

is

impossible

which

to

satisfactory

by

these

any

cross-

be carefully studied

understand the

to

a

to

effect

They deserve

examinations produced.

by any one who

unable

full

effect

of this

the manifestation not merely of truth,

great instrument for

but of accuracy and fairness.

Of the other witnesses mitted that he had

for the prisoner,

said

that he

Mr. Herapath ad-

thought

that

there

strychnine in the body, but that Dr. Taylor did not know to find

it.

He

paper reports

;

he was

of

how

added that he got his impression from newsbut

it

did not appear that they differed from

the evidence given at the

symptoms

was

Cook were

acquainted

trial.

Dr. Letheby

irreconcilable

with

—strychnia

said

that

the

with everything that poison included.

He

1

;

ii8

Case of R.v. Palmer. admitted, however, that they were not inconsistent with what

he had heard of the symptoms

of Mrs. Serjeantson

who was undoubtedly

by

was

tridge

called

to

poisoned

cord caused

might be one of

case

one of the membranes of the

arachnitis, or inflammation of

spinal

Mr. Par-

strychnine.

show that the

Smyth

by two granules discovered

In

there.

cross-examination he instantly admitted, with perfect frankness, that

he did not think the case was one of arachnitis, as

the symptoms were not the same.

Moreover, on being asked

whether the symptoms described by Mr. Jones were consistent with poisoning by strychnia, he

said, "

Quite

cluded by saying that in the whole course

and he con-

;"

of his

experience

and knowledge he had never seen such a death proceed from natural to

Dr.

causes.

show that

Eobinson, from Newcastle,

tetanic convulsions

the cause of death.

preceded

was

called

by epilepsy were

He, however, expregsly admitted in cross-

examination that the symptoms were consistent with strychnia,

and that some

of

them were

inconsistent with

absence of any other cause,

said that in the

if

the hypothesis of strychnia," he would ascribe

He

epilepsy.

he

"

it to

put aside epilepsy

and that he thought the granules in the spinal cord might

The degree

have produced epilepsy.

by

to these granules

the witnesses for the

The

different

of importance attached

witnesses

Several of

varied.

Crown considered them unimportant.

last of the prisoner's witnesses

was Dr. Eichardson, who

said the disease might have been angina pectoris.

He

said,

however, that the symptoms of angina pectoris were so like those of strychnine that distinguishing

The

them from each

fact that

all

it

the

be denied that

symptoms

could have administered result of

in

other.

its

dis-

administration would

of sickness, &c.,

during the week before Cook's death.

The general

difficulty

antimony was found was never seriously

puted, nor could

account for

he should have great

No

which occurred

one but the prisoner

it.

the

whole

evidence

on both

sides

appears to be to prove beyond aU reasonable doubt that the

Case of R.

Palmer.

v.

symptoms of Cook's death were those of poisoning

by

strychnine,

119

perfectly

consistent with

and that there was strong

reason to believe that they were inconsistent with any other

Coupling this with the

cause.

strychnia just before each

robbed Cook of

all his

proof that

two

of the

property,

Palmer bought

attacks,

and that he

impossible to doubt the

it is

propriety of the verdict.

Palmer's case

is

remarkable on account of the extraordinary Remarks

minuteness and labour with which of the extreme ability with

both

was

it

which the

tried,

trial

and on account

was conducted on

sides.

The

intricate

of facts

set

which show that Palmer had a

strong motive to commit the crime

when

at the time

been committed

;

his behaviour before

it,

was being committed, and after it had the various considerations which showed it

;

Cook must have died by tetanus produced by strychnine that Palmer had the means of administering strychnine to him; that he did actually administer what in all probability was that

;

strychnine casions

;

that he also administered antimony on

and that

;

all

the different

theories

many

oc-

by which Cook's

death otherwise than by strychnine could be accounted for

were open

to fatal

ten different sets

form a collection of eight or

objections,

of

facts,

all

connected together immedi-

ately or remotely either as being, or as being

shown not

to be,

the causes or the effects of Cook's murder, or as forming part of the actual murder

The

scientific

itself.

evidence

but particularly because tration

of the

scientific

identity

research,

is

it

remarkable on various grounds,

supplies a singularly perfect illus-

between the ordinary processes

of

above

as

Take

for

and the priuciples

explained

being those on which Judicial Evidence proceeds. instance the question. or idiopathic first

?

Did Cook

die of tetanus, either traumatic

The symptoms

of those

diseases

are in the

place ascertained inductively, and their nature was proved

by the testimony

of Sir

Benjamin Brodie and

others.

course of the sjonptoms being compared with those

The

of Cook,

Paimer's '^'^^^

—

I20

Case of R.v. Palmer. The inference hy deduction was that

they did not correspond. Cook's death was

caused by those

not

diseases.

Logically

of traumatic or of

idiopathic

the matter might be stated thus

who

All persons

die

either

:

tetanus exhibit a certain course of symptoms.

Cook did not Cook did not

may

course

that

of

symptoms, therefore

die of traumatic or of idiopathic tetanus.

Every one case

exhibit

arguments and theories stated in the

of the

easily be

shown by a

attention to be so

little

many

on the one hand, and of

illustrations of the rules of evidence

the rules of induction and deduction on the other.

On

the other hand, a flood of irrelevant matter apparently

connected with the

and

to speak, for admittance,

trial pressed, so

had been admitted, would have swollen the

if it

unmanageable proportions, and thrown no

main

Palmer was actually indicted

question.

Ann

of his wife,

upon the

for the

murder

Palmer, and for the murder of his brother,

Every

Walter Palmer.

what he had

real light

trial to

done.

It

sort of story

was

was

in circulation as to

said that twelve or fourteen per-

sons had at different times been buried from his house under suspicious

circumstances.

It

was

had poisoned

said that he

Lord George Bentinck, who died very suddenly some years

He had

before. bills of

certainly forged his

mother's acceptance to

exchange, and had carried on a series of gross frauds

on insurance

offices.

There was the strongest reason to suspect

the evidence of Jeremiah Smith, referred to in the case

that

was plotted and

artful perjury.

If

Palmer had been

tried in

Erance, every one of these and ianumerable other topics would

have been introduced, and the real matter in dispute would not have been nearly so fully discussed.

No

case

practical

Act

is

One

sets

in a clearer

working of

light

the principles

theory or the

either the

on which the Evidence

based. special

matter on which Palmer's

trial

light is the nature of the evidence of experts.

relating to this subject are

throws great

The provisions

contained in Sections 45 and 46

Case of R. v. Palmer. of the Evidence Act.

The only point

connection with them

is

their evidence is given

occurred, but that

it

that

121

much importance

of

should be borne in mind that

it

on the assumption that certain

does not in

in

common

cases

facts

show whether

or

not the facts on which the expert gives his opinion did really '

occur.

For instance, Sir Benjamin Brodie and other witnesses

in Palmer's case said that the cribed were the

symptoms

symptoms they had heard

of poisoning

des-

by strychmne, but

whether the maid-servants and others who witnessed and des-

was speaking, an

cribed Cook's death were or were not speaking the truth

not a question for them, but for the jury. expert ought not to be asked, "

man

died of poison?"

He

Strictly

Do you think

that the deceased

ought to be asked to what cause

he would attribute the death of the deceased man, assuming

symptoms attending his death to have been correctly described ? or whether any cause except poison would account This, however, is a for such and such specified symptoms ? the

matter of form.

The substance

of the rules

that they are only witnesses, not judges

however important,

upon which fact

is

opinions

experts

is

that their evidence,

intended to be used only as materials

others are to form their decision

which they have

certain

;

as to

to prove

is

;

and that the

the fact that they entertain

on certain grounds, and not the

grounds for their opinions do really

exist.

fact

that

—

—

122

iKEBLEVAlirT FACTS.

Having thus vancy,

will be desirable to say something of irrelevant facts

it

which might

From

effect

at first sight be

the' explanations

chapter

shown

described and illustrated the theory of rele-

it

supposed to be relevant.

given in the

follows that facts are irrelevant unless they can be

to stand ia the relation of cause to

part of the

earlier

in issue, every step

facts

either proved or

of such

or in the relation of

connection beiug

in the

a nature that

may

it

be presumed

without proof. What

The

facts

vast majority

being

*^^^

any assignable

in

^ajit"^"^^^^"

For instance, in

a

great

of ordinary facts

at

city

moment

the

manner

on in the immediate neighbourhood

them

connected with the crime. present

with

Facts ap-

Enl

1-

transactions ;

are

going

but no one would think

some way

unless they were in

The only

difficulty arises in dealing

which are apparently relevant but are not really

The most important

so.

together.

Facts obviously irrelevant therefore

little difficulty.

facts

connected

of the commission of a crime

numberless other

of giving evidence of

simply coexist with-

of these are three

Statements as to facts

:

made by persons not

called as

Witnesses. 2.

Transactions similar to but unconnected with the facts

in issue. 3.

Opinions formed by persons as to the facts in issue or

relevant facts.

None

of these are relevant within the definition of relevancy

given iu Sections 6

argued that the Section 11

is

—

both inclusive.

11,

effect of the

as follows

It

may

possibly be

second paragraph of Section 11

*

:

Facts not otherwise relevant are relevant. (1)

If they are inconsistent with any fact in issue or relevant

fact.

Irrelevant Facts.

would be to admit proof of such instance, be

said

declare that he

A

:

had seen

B

higlily probable that

facts as these.

B commit

12

XJ. (Sections

which

— 39)

regarded

are

as to

sort of facts facts

which

made

or

was designedly

left in

the

them with The evidence can be got. to include

imply more or

are

distinctly

less

Some

the existence of the facts sought to be proved. latitude

because

invest

which the section was intended either exclude

Chapter

of statements,

either

facts

circumstances under which they are importance, or because no better

elaborate

part of the

particular classes

relevant

as

it

This was

(2).

shown by the

is

following

contained in the

for

Therefore A's

declaration is a relevant fact under Section 11

provisions

may,

This makes

a crime.

did commit that crime.

not the intention of the section, as

It

a witness) was heard to

called as

(not

123

degree of

the wording of the section (in

compliance with a suggestion from the Madras Government)

on account of the variety

The meaning expressed it

:— " No

if

of

the

words

of matters to

section

which

it

might apply.

would have been more

to the following effect

fully

had been added

to

statement shall be regarded as rendering the matter

stated

highly probable

unless

it

is

within the meaning of this section

declared to be a relevant fact under some other

section of this Act."

The reasons why statements

as to facts

made by persons

not called as witnesses are excluded, except in certain specified cases (see Sections 17

matter

of

common

conversation are

—

39), are various.

experience

made

that

so lightly,

In the

first

statements

and are so

place

in

liable to

it is

common be mis-

understood or misrepresented, that they cannot be depended

upon

for

any important purpose unless they are made under

special circumstances.

(2)

If by themselves, or in connection -with other facts, they

the existence

or non-existence

highly probable or improbable.

of any fact

make

in issue or relevant fact

Reason

for

of hearsay,

124

Irrelevant Facts. It

Objection.

may

be said that this

an objection to the weight of

is

such statements and not to their relevancy, and there

No

degree of truth in this remark.

doubt,

when

inquire into facts of which he receives in the

to

very confused accounts,

may and

it

a

some

man

first

often will be

is

has

instance

extremely

important for him to trace the most cursory and apparently report.

futile

facts

in issue

And facts relevant in the highest degree may often be discovered in this manner.

policeman or a lawyer engaged in getting up or

would neglect

civil,

to

^

a case, criminal

his duty altogether if he shut his ears

which was not relevant within the meaning of

to everything

A judge or

the Evidence Act.

magistrate in India frequently

has to perform duties which in England would be performed

by

He

police officers or attorneys.

has to

he can, and with

for himself as well

as

professional kind.

Section 165

is

out the truth

sift

little

assistance of a

intended to arm the judge

with the most extensive power possible for the purpose of Effect of section IDS.

getting at

order to

the

The

truth.

effect of this

section,*

get to the bottom of the matter before

and inquire into every

wiU. be able to look at It will not,

however, be

able to

found

its

it

is

that in

the court

fact whatever.

judgment upon

the class of statements in question, for the following reasons. If this were permitted

it

would present a great temptation

to indolent judges to be satisfied with second-hand reports. It

would

make

open

a

wide

door

to

fraud.

People

statements for which they would be in

sponsible,

and the

fact

that

these

statements

would

no way were

re-

made

would be proved by witnesses who knew nothing of the Every one would thus be at the mercy of matter stated. people

who might

choose to

tell

a

lie,

and whose evidence

could neither be tested nor contradicted. * Section 165 "

is

aa follows

The judge may

:

in order to

" relevant facts ask any question

discover or obtain proper proof of lie

pleases in any form, at any time,

" of any witness, or of the parties about any fact relevant or irrele" vant,

and may order the production of any document or thing."

Irrelevant

D

Suppose that A, B, C, and detailed

by

Z.

A,

B,

Facts.

125

G

give to E, F, and

a minute

account of a crime which they say was committed E, F,

C,

and

and

D

what they have heard

G- repeat

disappear or are

correctly.

not forthcoming.

evident that

Z would

in this case,

and that the court would be unable

It

is

be altogether unable to defend himself

The only way

statements of A, B, C, and D.

to test the

avoid this

to

exclude such evidence altogether, and so to put upon both

is to

judges and magistrates as strong, a pressure as possible to get to the It

trace

bottom of the matter before them.

would waste an incalculable amount of time. To try to unauthorized and irresponsible gossip, and to discover

may

the grains of truth which

lurk in

like trying to

is

it

trace a fish in the water.

The exclusion

of evidence as to transactions similar to, but

not specifically connected with the facts in issue, rests upon

the ground that or

civil life

were not enforced every

if it

criminal,

many

whether

"j.^'J'g,

''c'ions.

might run into an inquiry into the whole Litigants have

and character of the parties concerned.

frequently

trial,

Uncon-

matters

in

difference

point legally at issue between them, and

good deal of vigour

to prevent

justice into theatres in

which

the

besides it

often requires a

them from turning

all their affairs

may

courts

of

be discussed.

A

very slight acquaintance with French procedure

to

show the

evils of

precise

is

enough

not keeping people close to the point in

judicial proceedings.

As sion

to evidence of opinion,

would in nearly

The concluding

it is

all cases

excluded because

its

admis-

be mere waste of time.

part of the. chapter on the relevancy of facts

enumerates the exceptions which are to be made to the general rules as to irrelevancy.

The

rules as to admissions, statements

made by persons who ments made under circumstances which

cannot be called as witnesses,

a guarantee for their truth,

are an

and

in themselves

exception

to

the

state-

afford

exclu-

sion of statements as proof of the matter stated.

Judgments in courts

of justice

on other occasions form an

Exclusion

dence of °p™'°"tions to

^relevancy

126

Admission of Statements. exception

the

to

exclusion

with facts in

specifically connected

as to the

of transactions not

of evidence issue,

and the provisions

admission of evidence of opinions in certain cases

45

are contained in Sections

—

I will notice very shortly

55.

the principle on which these provisions proceed. Admissions.

The general rule with regard to admissions, which are defined to mean aU that the parties or their representatives in 1.

certain degrees say about the matter in dispute, or facts rele-

vant thereto,

may

that they

is

who made them, but not

A

If

rule is obvious.

be proved as against those

The reason

in their favour.

says,

''

B owes me

of the

money," the mere fact

that he says so does not even tend to prove the debt.

any value

statenient has fact

which

B

having lent testify,

beyond

lies

;

must be derived from some

for instance, A's recollection of his

To that

the money.

If,

on the other hand,

owe me anything," Confes-

it

all, it

fact,

of course,

A

can

but his subsequent assertions add nothing to what he

has to say.

use,

at

If the

this

is

A

a fact of

had

said, "

which

and which might be decisive of the

B

B

does not

might make

case.

Admissions in reference to crimes are usually called con-

sions.

fessions.

I

may

observe upon the provisions relating to

them

that Sections 25, 26, and 27 were transferred to the Evidence

verbatim from the

1861.

They

differ

inserted in the torture

by the

Code of Criminal Procedure, Act xxv. of widely from the law of England, and were

Act of 1861 in order

to prevent the practice of

police for the purpose of extracting confessions

from persons in their custody. State-

Statements made by

persons

who

are dead

or otherwise

ments by witnesses can-

who

not be called.

State-

ments under special

circumstances.

incapacitated from being called as witnesses are admitted in

the cases mentioned in Sections 32

and

33.

The reason

is

that in the cases in question no better evidence is to be had.

In certain cases statements are made under circumstances

which in themselves are a strong reason be true, and in these cases there calling the person

by

whom

sections whi(>h relate to

them

is

for believing

generally

them

little

use in

the statement was made. are

34

— 38.

to

The

yudgments. Opinions, Character. It

may be

well to point out here the manner in whiph the

Act

Evidence

the proof

affects

was

evidence

of

depends

given,

For instance,

principles of relevancy.

partly if

by

given

evidence

The relevancy

witness in a court of justice.

such

127

a

of the fact that

on

the

general

a witness were accused

of giving false testimony, the fact that he gave the testimony

alleged to be false

would be a

fact

But the Act

in issue.

also

provides for cases in which the fact that evidence was given

on a

different occasion is to

be admissible, either to prove the

matter stated (Section 33), or in order to contradict (Sections or in order to corroborate (Section

155, 3)

By

reference to these Sections

must be ascertained whether

it

the fact that the evidence was given relevant,

enacts that an

Section 35

made by any

If

relevant.

is

entry of

is

a record

in

it

it

public servant in the discharge of his duty shall

be relevant as a mode of proving

Procedure

Criminal

157) the witness.

direct

it.

The Codes

judicial

all

records of the evidence given before

of Civil

officers

to

and

make

them; and -Section 80 of

the Evidence Act provides that a document purporting to be

a record of evidence shall be presumed to be genuine, that statements

taken

made

shall

as to the circumstances under

be presumed

have been duly taken. gether sions

is

is

that

The

when proof

admissible,

it

to

may

be

true,

and

which

it

was

the evidence

to

result of these sections taken to-

of evidence given on previous occa-

be proved by the production of the

record or a certified copy (see Section 76).

The

sections as to

judgments

designedly omit to

(40, 41)

deal with the question of the effect of judgments in preventing further proceedings in regard of the same matter.

upon

this subject is

Civil Procedure,

and in Section

The

Procedure. are cases in

to be found in Section 2 of the

cases

of

the fact

is

of

Code of

460 the Code of Criminal

which the judgment of a court

The opinions

"g^'J^'^'

The law

which the Evidence Act provides

a law, and creates the right which

judgments

it

is

for

in the nature of

affirms to exist.

any persons, other than the judge by

whom

to be decided, as to the existence of facts in issue or

Opinions,

128

Characters. relevant cases to

facts are, as a

which they

rule, irrelevant to

the decision of the

the most obvious reasons.

relate, for

To

show that such and such a person thought that a crime had been committed or a contract made would either be to show nothing at

all,

or it

would invest the person whose opinion

was proved with the character of a judge. the reasons for which are self-evident, it are specified in Sections

The

Character when miportant.

—

is

is,

generally

51.

only

speaking,

(1)

In

Where conduct

this case

is

the owner.

highly

man

it

may

might

raise in the absence of

found in possession of stolen goods.

is

them and took charge

If he

is

explain conduct and

a

man

of

them

to give

of very high character

them this

be believed.

(2)

When

witness,

A

A

says he found

may

is

presumably criminal

equivocal, or even

evidence of character

such evidence.

to

it

:—

rebut the presumptions which

He

Evidence

makeweight,

a

though there are two classes of cases in which important

cases,

They

otherwise.

sections as to character require little remark.

character

of

45

In some few

man

whom

a charge rests on the direct testimony of a single

and on the bare denial of is

it

by

the person charged.

accused of an indecent assault by a

he was accidentally

left

alone.

He

woman with

denies

it.

Here a

high character for morality on the part of the accused person

would be of great importance.

—

129.

CHAPTEE

IV.

GENERAL OBSERVATIONS ON THE INDIAN EVIDENCE

ACT.

M the preceding pages I have stated and illustrated the theory of iudicial evidence ''

have but for

little

No

itself.

complete

to

and

on which the Evidence Act

add

to

As the

distinct.

feated

body

by

of

The Act. speaks make its provisions

law upon the

to

repeals

section

first

unwritten rules of evidence, and as distinct

which

If

it

it is

was meant

to ence't*^'" English

all

would be de-

subject, its object

elaborate references to English cases.

critics.

^°

the Act itself supplies a

In so

far as it is

obscure or incomplete, the judges and the Legislature are

proper

I

that explanation.

was spared

labour

based.

is

Chap. v.

its

turned iato an abridgment of the law

to replace, it will be injurious instead

being useful to those for

whom

it

of

was intended.

I shall accordingly content myself with a verj' short description of the contents of the remainder of the Act, referring for

a full explanation of the matter to the Act itself

The general scheme of Part

II.,

which

relates to

Proof and

consists of four chapters, containing forty-five sections,

expressed iu the following propositions

may

be

:

Certain facts are so notorious in themselves, or are stated

1.

Scheme Part II.

Judicial notice.

in so authentic a

manner

cations, that they require

know

them,

no

proof.

The

court, if it does not

can inform itseK upon them without formally

These

taking evidence. 2.

in well-known and accessible publi-

facts are said to

be judicially noticed.

All facts except the contents of documents

may be •>

by it

oral evidence,

must

which must in aU cases be

consist of a declaration

ceived by his

own

direct.

'

That

testifies.

9'"'^'

^^''"

dence. is,

by the witness that he per-

senses the fact to which he

K

proved

of

I30 Chap. IV, Documents.

Documentary Evidence. The contents of documents must be proved either by the production of the document, which is called primary 3.

evidence, or

copies or oral accounts of the contents, which

by

Primary evidence

are called secondary evidence. as a rule, but this

is

is

required

subject to seven important exceptiojls in

which secondary evidence may be given. of these are

cases in

(1)

The most important which the document is in the posses-

sion of the adverse party,

in which case

the adverse party

must in general (though there are several exceptions) have notice to produce the it

document before secondary evidence of

can be given.

And

(2) cases

in which certified copies of public documents

are admissible in place of the documents themselves.

Many

4.

documents which are defined in the

classes of

are presumed to be

what they purport

sumption

be rebutted.

is liable to

Two

be,

but this pre-

sets of

presumptions

to

apply to the same document.

will sometimes

For instance

what purports

to

produced.

must by Section 76 be presumed

It

be a

accurate copy of the

certified

act,

copy of a record of evidence

By

record of evidence.

facts stated in the record itself as to

to

is

be an

Section 80 the

the circumstances under

was taken, e.g., that it was read OA'er to the witness in a language which he understood, must be presumed to be

which

it

true. 5.

Writings

when

exclusive evidence.

is

When

a contract, grant, or other disposition of property

reduced to writing, the writing

of its contents)

is

not only the best but

evidence of the matter which

by

itself (or

it

is

contains.

secondary evidence the only admissible It cannot be varied

oral evidence, except in certain specified cases. It

is

applying these general doctrines

necessary in

expediency of which siderable

detail,

qualifications

they really

and

is

to

obvious) to

introduce provisos,

which appear more

are.

If,

practice to go into

intricate

exceptions,

and

difficult

(the

con-

and than

however, the propositions just stated are

once distinctly understood and borne in mind, the details will

be

easily

mastered

when

the

occasion

for

applying them

Presufnptions.

The provisions in the Act

arises.

131

are all

made

in Order to meet

Chap. iv.

which arose iu practice in England, and which must of necessity arise over and over again, and give occasion real difficulties

to litigation unless they

were

specifically provided for before'

hand.

One

single

runs

principle

through

documentary evidence.

relating to

the

propositions

Principle

It is that the very object

sfons^n'"

all

for

"^ocumen-

is

dence.

which writing is used is to perpetuate the memory of what written down, and so to furnish permanent proof of it. In

order that full effect

may

be

given to

document

necessary, namely, that the

this,

two things are

should whenever

itself

it is

possible be put before the judge for his inspection,

that

if it

purports to be a final settlement of a previous nego-

tiation, as in the case of

as

final,

first

and

and

a written contract,

shall not be

by word

varied

it

shall be treated

of mouth.

If the

of these rules were not observed the benefit of writing

would be unless

lost.

There

writing

the

is

is

read

observed people would settled, as

no use in writing a thing down

never

second

the

If

know when

they would be able to play

fast

rule

were not

a question

was

and loose with

their

M'ritings.

By

bearing these leading principles in miud the details and

exceptions

wiU become

Their practical importance

simple.

is

indeed as nothing in comparison to the importance of the rules

which they

The

qualify.

third part of the Act,

(Chapters

VII.,

VIII.,

relates to the production

which contains three chapters

and IX.) and

and sixty-seven

sections,

effect of evidence.

Chapter VII., which relates to the burden of proof, deals Presumpwith a subject which requires a the subject of presumptions.

little

explanation.

This

''°°^'

is

Like most other words intro-

duced into the law of evidence, it has various meanings, and it has besides a history to which ItshaH refer very shortly.

In times when the true theory of proof' was very imperfectly understood, inasmuch as physical science, by the progress

which that theoiy was gradually discovered, was in its infancy, numerous attempts were made to construct theories of

—

132 Chap. IV.

Presumptions. which should supply the wantof

as to the weight of evidence

In some cases this was effected

one founded on observation.

by requiring the testimony of a in

particular

cases;

such

witnesses, such another

a

by

particular items of evidence

number

certain

fact

must be proved

and so

four,

of witnesses

by two'

In other cases

on.

were regarded as

half

full proof,

proof less than half fuU, and proof more than half

full proof, full.

The doctrine of presumptions was

closely -connected with

Presumptions were inferences which the judges

this theory.

were directed to draw from certain states of facts in certain cases,

and these presumptions were allowed a certain amount

of weight in the scale of proof

amounted

evidence

and so

full,

on.

to

such

proof,

full

The very

such a presumption and such

;

irregular

another

manner

in

to

which the

English law of evidence grew up has had, amongst other that

of

making

it

an uncertain and

far the theory of presumptions,

they

formed a

the result

is

part,

somewhat

affect

difficult

half

effects,

question

how

and the other theories of which

English law, but

as follows

substantially

:

Presumptions are of four kinds according to English law. Conclusive

1.

presumptions.

they occur they provide that

These

certain"

are

modes

rare,

but when

of proof shall not

be liable to contradiction.

Presumptions which

2.

affect

the ordinary rule as to the

burden of proof that he who afi&rms must prove.

He who

man is dead must usually prove it, but if the man has not been heard of for seven years,

affirms that a

he

shows, that

he

shifts the

burden of proof on his adversary.

There are certain presumptions which, though Liable to

3.

be rebutted, are regarded by English law as being something

more than mere maxims, though say is

how much

to

more.

it

Ail instance

is

of

by no means easy

to

such a presumption

be found in the rule that recent possession of stolen

goods unexplained raises a presumption that the possessor either the thief or a receiver.

is

Prestiinptions. 4.

Bare

presumptions

arguments to

of

fact,

133

which the Court attaches

but Chap.iv.

nothing

are

-whieli

whatever value

it

pleases.

Chapter VII. of the Evidence Act deals with this subject as follows

:

—First

it

lays

regulate the burden

burden

in

particular

cases,

not

by

to

the

but

the

parties

It

111).

marriage cession

cases

cause,

two

notices

presumption

the

(section

of

— lOG).

the

determined

tions,

].01

(sections

which

the

—

of proof

the general principles which

in

enumerates

107

down

from

territory

cases

and

112),

is

relation

of

(sections

presump-

conclusive

of

from

publication

during

birth

presumption

the

the

the

then

proof

of

by presumptions

legitimacy

of

It

a

of

a

of

valid

notifica-

This

tion to that effect in the Gazette, of India, (section 113). is

one

of

will be

found in

Finally,

it

inferences

parts of the

different

draw

from

of this

as to reduce to their proper position

are to be applied to facts

number

large

a greater or

by the

of presumptions to

less extent,

an

in all

whatever

it

section are such

courts in their discretion, a

which English law

legal

gives, to

Nine of the most

artificial value.

notice of certain general

may

mere maxims which

of

important of them are given by way of

AU

before

facts

The terms

thinks just.

it

the

which

and Acts.

statutes

the court

declares, in section 114, that

whatever

cases

conclusive statutory presumptions

several

illustration.

principles

which

are,

sometimes called presumptions, but which in reality belong rather to the substantive law than to the law of evidence,

was

designedly omitted, not because the truth of those principles

was

denied,

but

because

it

was

not

Evidence Act was the proper place important of these called, that

more

is

for

stated

them.

the presumption, as

in the maxim,

law does not excuse a

breach

of

it

is

that the

The most sometimes

The principle

every one knows the law.

correctly

considered

that

it,

is

far

ignorance of the

which

is

one of the

fundamental principles of criminal law.

The

subject of estoppels (Chapter VIII,.)

differs

from that

134 Chap. IV.

Estoppels. of presumptions in the circumstance that an estoppel

sonal

disqualification

stanced

laid

from proving peculiar

is

prior judgments as a

is

pleading,

propositions

two

and the

particular

English learning

causes, the peculiarities fact that

the

effect

of

by the English text writers evidence, and not as a branch of the

of

of the Act consists of a reduction to express

rules

as

to

the

which are well established and no commentary or introduction,

own meaning, and do

law and

of the

a

Civil Procedure.

The remainder

their

drawn from

is

usually treated

branch of the law of

law of

presumption

extremely intricate and technical,

but this arises principally from of English special

A

facts.

Much

whoever proves them.

connected with estoppels

a per-

upon a person peculiarly circum-

rule that particular inferences shall be facts

is

practice.

examination of witnesses, understood. as they

They caU

sufficiently

for

explain

not materially vary the existing

THE

INDIAN

EVIDENCE

ACT.

—

THE INDIAN EVIDENCE ACT,

1872.

CONTENTS. Preamble.

Paet

I.

EELEVANCY OF FACTS. Chaptek

Pjrbliminaky.

1.

Section. 1.

Short

title.

Extent.

Commencement

of Act.

2.

Eepeal of enactments.

3.

Interpretation Clause.

4.

"

May

presume."

" Shall presume." " Conclusive proof."

Chapter II.— Of the Eelevancy of Facts. 5.

Evidence

may

he given of facts in issue and relevant

facts.

forming part of same transaction.

6.

Eelevancy of

7.

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

8.

Motive preparation and previous or subsequent conduct.

9.

Facts necessary to explain or introduce relevant

10.

Things

said

common 11.

When

12.

In

facts

or

done

by

conspirator

reference

to

design.

facts not otherwise relevant

suit for

in

facts.

become

relevant.

damages, facts tending to enable Court to

determine amount are relevant.

when

right or custom is in question.

13.

Facts relevant

14.

Facts showing existence of state of mind, or of body or bodily feeling.

—

;

;

The Indian Evidence Act, 1872.

138 Section. 15.

Facts bearing on question whether act was accidental or intentional.

16.

Existence of course of business,

when

relevant.

Admissions. 17.

Admission

18.

Admission

defined.

by party to proceeding or his agent by suitor in representative character; by party interested in subject-matter by person from whom interest derived. 19.

Admissions by persons whose position must be proved as against party to suit.

20.

Admissions by persons expressly referred to by party to suit.

21.

Proof of admissions against persons

by 22.

or

When

on their

making them, and

behalf.

oral admissions

as to contents of documents

are

relevant.

when

23.

Admissions in

24.

Confession caused by inducement, threat, or promise,

when

civil cases,

relevant.

irrelevant in criminal proceeding.

25.

Confession to police of&cer not to be proved.

26.

Confession by accused while in custody of police not to

be proved against him. 27.

How much ofinformation received

from accused

may be

proved. 28.

Confession

made

after

removal of impression caused by

inducement, threat, or promise relevant. 29.

Confession otherwise relevant not to become irrelevant

because of promise of secrecy, &c. 30.

Consideration of proved confession affecting person making

31.

it

and others jointly under

trial for

Admission not conclusive proof, but

may

some estop.

offence.

;;

;

The Indian Evidence Act,

;

;

1872..

139

Statements by Persons who cannot be called as Witnesses. Section.

Cases in which statement of relevant fact by person

32.

is

dead or cannot be found,

When

it

or

who

&c., is relevant.

relates to cause of death

is

made

in course of business

or against interest of

maker

or gives opinion as to public right

or

custom, or

matters of general interest or relates to existence of relationship or

made

is

in will or deed relating to family affairs

document relating

or in

to transaction

in section 13, clause (a)

or

is

made by

mentioned

;

and expresses

several persons,

feel-

ings relevant to matter in question. 33.

Eelevancy of certain

evidence

for

quent proceeding, the truth of

proving,

in subse-

facts therein stated.

Statements made undee Special Circumstances.

when

34.

Entries in books of account

35.

Eelevancy of entry in public record, made in perform-

relevant.

ance of duty. 36.

Eelevancy of statements in maps,

37.

Eelevancy of statement as to

charts,

and plans.

facts of public nature, con-

tained in certain Acts or notifications. 38.

Eelevancy of statements as to any law contained

in

law-books.

How much 39.

What

of a Statement

evidence to be given

is

to be proved.

when statement forms

part

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

The Indian Evidence Act, 1872.

140

Judgments of Coukt of Justice, when Eelevant. Section. 40.

Previous judgments relevant

bar a second

to

suit

or

trial.

41.

Eelevancy of certain judgments in probate,

&c., juris-

diction.

42.

Eelevancy and

effect

of judgments, orders,

or decrees

other than those mentioned in Section 41. 43.

Judgments,

40 44.

—

42,

&c., other

when

than those mentioned in Sections

relevant.

Fraud or collusion in obtaining judgment, or incompetency of Court,

may

be proved.

when

Opinions of Third Peksons,

relevant.

45.

Opinions of experts.

46.

Facts bearing upon opinions of experts.

47.

Opinion as to handwriting, when relevant.

48.

Opinion as to

existence

of

right

custom,

or

when

relevant.

when

49.

Opinion as to usages,

50.

Opinion on relationship, when relevant.

51.

Grounds of opinion, when

tenets, &c.,

relevant.

relevant.

Chaeactek when Eelevant. 52.

In

civil

cases,

character

to

prove

conduct imputed

irrelevant. cases, previous

good character relevant.

53.

In criminal

54.

In criminal proceeding previous conviction relevant,but not previous bad character, except in reply.

55.

Character as affecting damages.

——

The Indian Evidence Act, 1872. Paet OiT

Chapter

III.

141

II.

PEOOF.

Facts which need not be peoved.

Section. 56.

Facts judicially noticeable need not be proved.

57.

Facts of whicb Court must take judicial notice.

58.

Facts admitted need not be proved.

Chapter IV.— Of Oral Evidence. 59.

Proof of facts by oral evidence.

GO.

Oral evidence must be

Chapter V.

direct.

Of Documentary Evidence.

61.

Proof of contents of documents.

62.

Primary evidence.

63.

Secondary evidence.

64.

Proof of documents by primary evidence.

65.

Cases in which secondary evidence

relating

to

docu-

ments may be given. 66.

Eules as to notice to produce.

67.

Proof of signature and handwriting of person alleged to

68.

have signed or written document produced.

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

69.

Proof where no attesting witness found.

70.

Admission of execution by party

71.

Proof when attesting -witness denies the execution.

72.

Proof of document not required by law to be

73.

Comparison of signature, writing, or

to attested document.

admitted or proved.

Public Documents. 74.

Public documents:

75.

Private documents.

seal,

attested.

with others

—

The Indian Evidence Act, 1872.

[42 Section. 76.

Certified copies of public documents.

77.

Proof of documents by production of

78.

Proof of other

official

certified copies.

documents.

Presumptions as to Documents. 79.

Presumption as to genuineness of

80.

Presumption as to documents produced as record of

certified copies.

evidence. 81.

Presumption as to

gazettes, newspapers, private Acts

of Parliament, and other documents. 82.

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

83.

Presumption as to maps or plans made by authority of Government.

84.

Presumption as to collections of laws and reports of decisions.

85.

Presumption as to powers of attorney.

86.

Presumption

as to

certified

copies

of foreign judicial

records.

87.

Presumption as to books, maps, and

88.

Presumption as to telegraphic messages.

89.

Presumption as to due

charts.

execution, &c., of

documents

not produced. 90.

Presumption as to documents thirty years

Chapter VI.

old.

Of the Exclusion of Oeal by Documentary Evidence.

91.

Evidence of terms of contracts, grants, and other

dis-

positions of property reduced to form of document. 92.

Exclusion of evidence of oral agreement.

93.

Exclusion of evidence to explain or amend ambiguous,

document. 94.

Exclusion of evidence against application of document to existing facts.

—

.

The Indian Evidence Aci, 18^2

143

Section. 95.

Evidence as to document unmeaning in reference to existing facts.

96.

Evidence as to

application

of

language

vrhicli

can

apply to one only of several persons. 97.

Evidence as to application of language to one of two sets of facts, to neither of

which the whole correctly

applies. 98.

Evidence as to meaning of

99.

Who may

illegible characters, &c.

give SAadence of agreement varying terms of

document. 100.

Saving of provisions of Indian Succession Act relating to wills.

Part

III.

PEODUCTION AND EFFECT OF EVIDENCE. Of the Btjkden of Proof.

Chapter VII. 101.

Burden of proof

102.

On whom burden

103.

Burden of proof

104.

Burden of proving

of proof

lies.

as to particular fact. fact to

be proved to make evidence

admissible.

105.

Burden of proving that case

of accused

comes within

exceptions. fact especially within

106.

Burden of proving

107.

Burden of proving death of person known aUve within thirty

108.

knowledge. to

have been

years.

Burden of proving that person

is alive

who has not been

heard of for seven years. 109.

110.

as to relationship iu cases of partners,

Burden of proof landlord and

tenant, principal

Burden of proof

as to ownership.

and agent.

111. Proof of good faith in transactions where one party relation of active confidence.

is

in

——

;

The Indian Evidence Act, 1872.

144 Section. 112.

Birth during marriage, conclusive proof of legitimacy.

113. Proof of cession of territory.

114.

Court

may presume

existence of certain facts.

Chapter VIII.

Estoppel.

115. Estopppel. 116.

Estoppel of tenant

and

of licensee of person in possession.

117. Estoppel

of

accepter

of bill

of exchange,

bailee

or

licensee.

Chapter IX. 118.

"Who may

119.

Dumb

120.

Parties to civil suit,

Of Witnesses.

testify.

witnesses.

Husband

and

their wives or husbands.

or wife of person under criminal

trial.

121. Judges and Magistrates. 122.

Communications during marriage.

123. Evidence as to affairs of State. 124. Of&cial communications. 125.

Information as to commission of offences.

126.

Professional communications.

127.

Section 126 to apply to interpreters, &c.

128. Privilege not waived 129.

by volunteering

evidence.

Confidential communications with legal advisers.

130. Production of title-deeds of witness not a party. 131.

Production of documents which another person, having possession, could refuse to produce.

132. Witness not excused from answering

answer will criminate. Proviso.

133. Accomplice. 134. Niimber of witnesses.

on ground

that

— The Indian Evidence Act, 1872. Chaptee X.

145

Of the Examination of Witnesses.

Section. 135.

Order of production and examination of witnesses.

136.

Judge

to decide as to admissibility of evidence.

137. Examination in chief.

Cross-examination.

Ee-examination. 138.

Order of examinations.

139.

Cross-examination of person called to produce a docu-

Direction of re-examination.

ment. 140. Witnesses to character.

141.

Leading questions.

142. 143.

When When

144.

Evidence as to matters in writing.

145.

Cross-examination as to previous statements in writing.

146.

Questions lawful in cross-examination.

147.

When

148.

Court to decide

they must not be asked.

they

may

be asked.

witness to be compelled to answer.

when

question shall be asked and

when

witness compelled to answer. 149.

Questions not to be asked without reasonable grounds.

150. Procedure

of Court

in case

of question being asked

without reasonable grounds. 151.

Indecent and scandalous questions.

152. Questions intended to insult or annoy.

153. Exclusion of evidence to

contradict answers to ques-

tions testing veracity.

154.

Question by party to his

own

witness.

155. Impeaching credit of witness. 156.

Questions fact,

157.

tending to corroborate evidence of relevant

admissible.

Former statements of witness may be proved borate later testimony as to same

158.

What

matters

may

to corro-

fact.

be proved in connection with proved

statement relevant under section 32 or 33.

The Indian Evidence Act, 1872.

146 Section. 159.

Eefreshing memory.

When

may

witness

use copy of document to refresh

memory. 160.

Testimony to

stated in

facts

document mentioned in

section 159.

161.

Eight of adverse party as to writing used to refresh

memory. 162.

Production of documents. Translation of documents.

163.

Giving, as

evidence, of

duced on 164.

document

called for

and pro-

notice.

Using, as evidence, of document production of which

was refused on

notice.

165.

Judge's power to put questions or order production.

166.

Power

Chaptee XI.

of jury or assessors to put questions.

— Or

Improper Admission and Eejection of Evidence.

167.

No new

trial

for

improper admission

evidence.

Schedule.

—Enactments

repealed.

or rejection

of

—

:

—

ACT Passed by the

No.

—

;

I.

OF

1873.

Governoe Geneeal of India

in

Council.

{Received the assent of the Governor General on the 15th

March, 1872).

The Indian Evidence Act, 1872.

WHEEEAS Law

the

it is

expedient to consolidate, define, and

of Evidence

;

It is

hereby enacted as follows

Part

1.

This Act

may

Preamble.

:

I.

EELEVANCY OP Chapter

amend

PACTS.

Preliminary.

I.

be called "The

Indian Evidence Act,

Short

title.

1872:" It extends to the

whole of British India, and applies

judicial proceedings in or before

Martial, Officer,

and

but not to

affidavits

to all

any Court, including Courts presented

to

any Court or

nor to proceedings before an arbitrator

it

shall

come

of September, into force on the first day ' ^

1872 2.

Extent,

Commencement' of Act.

On and

repealed (1.)

from

that

•'

following °

laws

shall

be

AH

Repeal of enact-

ments.

:

rules

evidence not

of

Act or Eegulation in (2.)

day the

force in

contained in

any

Statute,

any part of British India

:

All such rules, laws and regulations as have acquired

the force of law under the twenty-fifth section of Councils' Act, 1861,' in ao far as they relate to

herein provided for

;

and

'

The Indian any matter

— —

—

;

The Indian Evidence Act, 1872,

148

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

But nothing herein contained any provision of any

Statute,

shall he

deemed

to

affect

force in

Act or Eegulation in

any part of British India and not herehy expressly repealed. Inteq)retation-

In

3.

this

used in the

clause.

Act the following words and expressions are following

senses,

appears from the context "Court."

" Court "

includes

a contrary intention

unless

:

aU Judges and Magistrates and

all

per-

sons, except arhitrators, legally authorized to take evidence.

" ¥act "

"Fact/

any

(1)

means and includes thing, state of things, or relation of things, capable

by the

of being perceived

senses

any mental condition

(2)

of

which any person

is

conscious.

TJluiiraixons. (a)

That there are certain objects arranged in a certain order in a

certain place, (J.) (c.) ((Z.)

is

a

fact.

man heard or saw something is a fact. That a man said certain words is a fact. That a man holds a certain opinion, has a certain That a

good

acts in

faith, or fraudulently, or

ticular sense, or is or

was at a

uses a particular

intention

word in a par-

time conscious of a particular

specified

sensation, is a fact. (e.)

One

" Relevant.

That a

man

has a certain reputation

is

a

fact.

fact is said to be relevant to another

when

the one

is

"

connected with the other in any of the ways refeyred to in the provisions of this

"Facts issue."

in

The expression any

fact

relating to the relevancy of facts.

" Facts in issue "

from which, either by

other facts, the

any

Act

means and includes

itself or in

connection with

existence, non-existence, nature, or extent of

right, liability,

or

disability,

asserted or

denied in any

suit or proceeding, necessarily follows.

Explanation. for the

—Whenever, under the

provisions of the law

time being in force relating to Civil Procedure, any

Court records an issue

of fact,

denied in answer to such issue,

is

the

fact

to

be asserted or

a fact in issue.

;

—

;

—

The Indian Evidence Act,

1872,

149

TXliistratwns.

A is

accused of the murder of B.

At his trial the following facts may be in issue ^That A caused B's death. >That A intended to cause B's death. ^ y That A had received grave and sudden provocation from B. > 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 :

.;}

,

/ r^

•^

i^.'1^'-J!Im.i

nature.

"Document" means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or whicli

may

"Docu-

be used, for the purpose of recording that matter. Illustrations.

A

writing

is

a document.

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

An

A "

inscription

on a metal plate or stone

is

are documents.

a document,

caricature is a document.

Evidence all

(1)

"

means and includes

statements which the Court permits or requires to

be made before

it

by

''

^^''j

witnesses, in relation to matters of fact

under inquiry such statements are called oral evidence

documents

all

(2)

produced

for

the

:

inspection

of

the

Court all

A

such documents are called documentary evidence. fact

said to be

is

matters before considers

its

it,

proved when, after considering the

the Court either believes

the supposition that fact is

dent

it,

considers

man

case, to act

exist,

man

or

ought,

case, to act

upon

it exists.

said to be disproved when, after considering the

matters before exist, or

to

existence so probable that a prudent

under the circumstances of the particular

A

it

ought,

'^Proved.'-

the Court either believes that its

it

does not

non-existence so probable that a pru-

under the circumstances of the particular

upon the supposition that

it

does not exist.

" DisP™^^'''

fj.

j-t' '^ir-'

—

—

:

The Indian Evidence Act, 1872.

I5P

A

"Not

fact

is

when

said not to be proved

it is

neither proved

proved."

nor disproved.

"May

4.

pre-

sume."

Whenever

raay presume a

Whenever

may

fact, it

unless and until "Shall

provided by this Act that

is

it

it

directed

is

Court

either regard such fact as proved,

may

disproved, or

it is

the

by

this

proof of

call for

it

Act that the Court

shall

presume.'

presume a until

disproved

it is

When

" Conclu-

fact, it shall

one fact

regard such fact as proved, unless and

:

declared

is

by

this

Act

to

be

conclusive

sive

proof."

proof of another, the Court shall, on proof of the one regard the

other as proved, and

shall not

be given for the purpose of disproving

Chapter Evidence may be given of

5.

Evidence

fact,

allow evidence to

it.

Of the Eelevancy of Facts.

II.

may be

given in any suit or proceeding of the

existence or non-existence of every fact in issue and of such

facts in issue and

other facts as are hereinafter declared to be relevant, and of

relevant

no

others.

facts.

ExplauMtion.

—This

section shall not enable

give evidence of a fact which he

any provision

law

of the

for

any person

is disentitled

to

to

prove by

the time being in force relating

to Civil Procedure. lOMsbfaiion. (o.)

A

is

tried for the mvirder

of

B by

beating

tim with a

club

with the intention of causing his death.

At A's

trial

A's beating

the following facts are in issue

B

with the club.

A's causing B's death by such a beating.

A's intention to cause B's death. (6.)

A suitor

does not bring with him, and have in readiness for

production at the relies.

prove

first

hearing of the case, a bond on which he

This section does not enable him to produce the bond or its

contents at a subsequent stage of the proceedings, otherwise

than in accordance with the conditions prescribed by the Code of Civil Procedure.

Relevancy of facts

forming

6.

Facts which, though not in issue, are so connected with

a fact in issue as to form part of the same transaction, are

The Indian Evidence Act, 1872, whether they occurred

relevant,

or at different times

and

151

the same time and place

at

places.

part of

sa^ron!^"'

mustrations.

A

(a.)

is

accused of the murder of

A

was said or done by

or

shortly before or after

B

it

B

by beating him.

Whatever

or the by-standers at the beating, or so as

to

form part of the transaction,

is

a

relevant fact. (6.)

A is

accused of waging war against the Queen by taking part in

armed insurrection in which property is destroyed, troops are attacked, and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at (c.)

A

sues

B

correspondence.

for

all

of them.

a Hbel contained in a letter forming part of a

Letters between the parties relating to the subject

out of which the libel arose, and forming part of the correspondence it

which

it is

contained, are relevant facts, though they do not con-

tain the libel itself.

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

7.

or

Facts which are the occasion, cause, or

otherwise,

of relevant facts,

or facts

constitute the state of things under

which

in

effect,

issue,

immediate or

which

which they happened,

or

afforded an opportunity for their occurrence or trans-

Facts occasion, effect f^*^''^

issue.

action, are relevant. IHustrations. (a.)

The question

is,

whether A robbed B.

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

he had

it,

to third persons, are relevant.

The question is, whether A Marks on the ground, produced where the murder was committed, (c.) The question is, whether A (6.)

murdered B. by a struggle

at or near the place

are relevant facts.

poisoned B.

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

poison, for the

oT ^'°-

The Indian Evidence Act, 1872.

152 Motive, tion

and

subsequent conduct.

8.

Any'

fact

which

relevant

is

shows

or

constitutes

motive or preparation for any fact in issue or relevant

^^^ conduct of any party, any suit or proceeding, in ceeding,

or

in

reference

whom

is

to

any

such suit or pro-

to

fact

in

issue

the subject of any proceeding,

such conduct influences or or relevant fact,

reference

is

and whether

influenced it

fact,

any party, to

to

therein

and the conduct of any person an

relevant thereto, against

any agent

or of

a

is

by any

was previous

or

ofifence

relevant, if

fact in issue

or

subsequent

thereto.

EocplaTiation

1.—The word "conduct"

in this section does

not include statements, unless those statements accompany

and explain is

than statements

acts other

;

but this explanation

not to affect the relevancy of statements under any other

section of this Act.

Explanation relevant,

hearing,

2.

—^When

any statement made which

affects

conduct

the to

him

such conduct,

any

of

or in

person

his presence

is

and

is relevant.

Uhbitrations.

A

(a.)

is tried for

the murder of B.

The facts that A murdered 0, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. B denies (6.) A sues B upon a bond for the payment of money. the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (c.) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, {d.)

The question

The

facts that,

is,

relevant.

is

whether a certain document

is

the will of A.

not long before the date of the alleged

will,

A made

inquiry into matters to which the provisions of the alleged relate

;

will

making the will, and be prepared, of which he did

that he consulted vakils ia reference to

that he caused drafts of other wills to

not approve, are relevant. (e.)

The

A

is

accused of a crime.

facts that, either before, or at

the time

of,

or after the alleged

The Indian Evidence Act, 1872.

A

crime,

153

provided evidence whicli would tend to give to the facts of

the case an appearance favourable to himself, or that he destroyed or

concealed

evidence,

absence of persons

or prevented

presence

the

who might have been

persons to give false evidence respecting

it,

A robbed

B.

(/.)

The question

The

is,

facts that, after

coming

police are

whether

B was

to look

immediately afterwards

or

procured

or suborned

witnesses,

are relevant.

C said in A's presence, man who robbed B,' and

robbed,

for the

the

'

the

that

A ran away, are relevant. whether A owes B 10,000 rupees.

(g.) The question is, The facts that A asked C to lend him money, and that D said to C in A's presence and hearing, I advise you not to trust A, for he owes B 10,000 rupees, and that A went away without making any answer, are relevant facts. The question is, whether A committed a crime. (?!..) The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of '

the letter, are relevant.

A

(i.)

The

accused of a crime.

is

facts that, after

the commission of the alleged crime, he ab-

sconded, or was in possession of property or the proceeds of property

acquired by the crime, or attempted to conceal things which were or

might have have been used in committing it, are relevant. y.) The question is, whether A was ravished.

The

facts that, shortly after the alleged rape, she

made a complaint

relating to the crime, the circumstances under which,

and the terms

was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though

in which the complaint

it

may be

relevant

as a dying declaration

as

under section

corroborative evidence under

thirty- two, clause (one), or

section one

hundred and

fifty-

seven. (it.)

The

The question fact that,

is,

whether

A

was robbed.

soon after the alleged robbery, he made a complaint

relating to the offence, the circumstances under which,

in which, the complaint

The

fact

complaint,

may be

was made, are

and the terms

relevant.

that he said he had been robbed, without is

making any

not relevant as conduct under this section, though

relevant

as a dying declaration under section thirty-two, clause (one), or

M

it

The Indian Evidence Act, 1872.

154 as

corroborative

under secbion one hundred and

evidence

fifty-

seven. Facts necessary to explain or

Or relevant fact, or

relevaut

gcsted

facts.

9.

Tacts necessarv to explain or introduce a fact in issue o s-

by a

which support or rebut an inference sug-

fact in issue, or relevant fact, or

jjjg i(Je]i(;ity

of

any thing

which

whose identity

or person

is

establish relevant,

or fix the time or place at which any fact in issue or relevant fact

show the

happened, or which

whom any

by

of parties

relation

such fact was transacted, are relevant in so far as

they are necessary for that purpose. Ilhisin'aVions.

The question

(a.)

The

A

(J.)

whether a given document

and of

of A's property

state

alleged will

is,

may be

sues

B

is

the will of A.

his family at the date of the

relevant facts.

for a

imputing disgraceful conduct to

libel

A

;

B

afl&rms that the matter alleged to be libellous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The

particulars of a

dispute between

connected with the alleged there was a dispute

may be

A

and B.

A

is

accused of a crime.

The

fact that,

from his house,

and

libel are irrelevant,

between (c.)

A

relevant if

it

B

about a matter un-

though the

affected

the

soon after the commission of the crime, is

fact that

relations

A absconded

under section eight, as conduct subse-

relevant,

quent to and afiected by facts in issue.

The

fact that, at the

time when he

left

home, he had sudden and

urgent business at the place to which he tending to explain the fact that he

The

left

home

on which he

details of the business

in so far as they are necessary to

left

went,

relevant,

is

as

suddenly. are not relevant, except

show that the business was sudden

and urgent. ((i.)

A

sues

B

for inducing

O

to break a contract of service

made

by him with A. 0, on leaving A's service, says to A, I am leaving you because B has made me a better offer.' This statement is a '

relevant fact as explanatory of O's conduct, which

is

relevant as a

fact in issue. (e.)

A

is

accused of theft,

is

seen to give the stolen property to B,

—

:

The Indian Evidence Act, who

is

seen to give

it

B

to A's wife.

you are to hide this.' B's statement fact which is part of the transaction. (/.)

A

is tried for

of a mob.

The

a

riot,

and

cries of the

is

mob

\^']2.

155

says, as lie delivers is

it,

'

A

says

relevant as explanatory of a

proved to have marched at the head are relevant as explanatory of the

nature of the transaction. 10.

or or

Where

there

reasonable ground to believe that two

is

more persons have conspired together an actionable wrong, anything

any one

to

commit an

done, or written by

said,

of such persons in reference to their

tion, after the

by any one

time

when such

of them,

is

offence

was

iatention

common

inten-

entertained

first

Things

done by f^^X-a. reference to common design.

a relevant fact as against each of the

persons believed to be so conspiring, as well for the purpose of proving the

existence of the conspiracy as for the purpose

of showing that any such person was a party to

it.

JXlusiration.

A

Keasonable ground exists for believing that

wage war against the Queen. The facts that B procured arms in Europe

has joined in a con-

spiracy to

conspiracy,

collected

suaded persons

money

to join the

for the

purpose of the

in Calcutta for a like object,

conspiracy

from Delhi to Calcutta,

G-

at

Cabul the money which

and the contents of a

B

Bombay,

in

writings advocating the object in view at Agra, and

letter written

F

had

by

D

per-

published

transmitted collected

at

H giving an account

of the conspiracy, are each relevant, both to prove the existence of

may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have the conspiracy, and to prove A's complicity in

it,

although he

taken place before he joiaed the conspiracy or after he

11.

Facts not otherwise relevant are relevant

(1)

if

they

are

inconsistent

with

any

fact

left it.

Whenfacts

in

issue

or

relevant

relevant fact (2)

make

if

by themselves

the

^se°'^^''

become

or in connection with other facts they

existence or non-existence of any fact in issue

relevant fact highly probable or improbable.

or

relevant.

—

15^

—

;

The Indian Evidence Act, 1872. lUiVLsiffaiions.

The question

(a.)

A

whether

is,

committed a crime at Calcutta on

a certain day.

The The

fact that,

on that day,

render

it

mitted

at

Lahore

relevant.

is

from the place where

it

A was

was committed, which would impossible, that he com-

highly improbable, though not

it, is

relevant.

The question

(6.)

was

time when the crime was committed,

fact that, near the

at a distance

A

is,

whether

A

committed a crime.

The circumstances are such that the crime must have been committed either by A, B, 0, or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by either B, 0, or D, is relevant. In suits for damages,

Will

enabk

wMch

amount

suits in

which damages are claimed, any

enable the Court

facts tend-

Court to determine

In

12.

to determine the

Ought to be awarded "v^iiere

]^3_

the question

amount

of

damages

jo

the existence of any right

is as to

'_

Any

(«)

transaction

which

is relevant.

or custom, the following facts are relevant

vant.

fact

by which

the

:

right

custom

or

in

Facts rele-

question was created, claimed, modified, recognised, asserted

right or

or denied, or

custom

IS

in question

which was inconsistent with

existence

its

Particular instances in which the right

(b)

claimed,

recognised,

or

or

exercised,

or custom

in which

was

its

exercise

A

deed con-

was disputed, asserted or departed from. Illustration.

The question

is

whether

A

has a right to a fishery.

ferring the fishery on A's ancestors, a father,

mortgage of the fishery by A's

a subsequent grant of the fishery by A's

cQable with the mortgage, particular instances

in

father,

exercised the right, or in which the exerciseof the right

by A's neighbours, are relevant Facts exi'sTenfe

of state of mind or of body or feeling.

14.

irrecon-

which A's father

was stopped

facts.

Facts showing the existence of any state of

^^°^ ^^ intention, knowledge, good

mind

faith, negligence, rashness,

good-wUl towards any particular person or showing 6 the existence of any state of body or bodily feelino' are ill-will or

—

.

relevant,

body

when

the existence of any such

state of

or bodily feeling is in issue or relevant.

mind

or

The Indian Evidence Act, Explanation.

a

relevant

—A

as showing the existence of

fact relevant

of

state

157

\Z']2.

mind must

show

that

exists,

it

not

generally, but in reference to the particular matter in question. JSmstrations.

A ia

(a.)

accused of receiving stolen goods knowing them to be

It is proved ttat lie

stolen.

was in possession of a particular

stolen

the same time, he was in possession of

many

article.

The

fact that, at

other stolen articles

and

all

(6.)

is relevant, as

of which he

of the^articles

A

is

accused

of

tending to show that he knew each

was in possession

fraudulently

to be stolen.

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, number of other pieces of counterfeit coin, is (c.)

A

sues

B

A

was possessed of a

relevant.

damage done by a dog of B's which

for

B knew

to

be

ferocious.

The

dog had previously bitten X, T, and

facts that the

Z,

and that

they had made complaints to B, are relevant. (d.)

The question

The

fact that

whether A, the accepter of a biU of exchange knew that the name of the payee was fictitious. is,

A

had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person. (e.)

A

is

accused

of defaming

B by

publishing

an

imputation

intended to harm the reputation of B.

The

fact of previous publications

will on the part of

A towards

B,

is

by

A

respecting B, showing iU-

relevant, as proving A's intention

to harm B's reputation by the particular publication in question.

The facts that there was no previous quarrel between A and B and that A repeated the matter complained of as he heard it, are re^ levant, as showing that A did not intend to harm the reputation ofB. (/.)

A is

solvent,

sued by

B

for fraudulently representing to

B

that

whereby B, being induced to trust 0, who was

C was

insolvent,

suffered loss.

A

The fact that, at the time when was supposed to be solvent by

his

dealing with him,

showing that

is

relevant, as

sentation in good faith.

represented

C

neighbours

A

to be solvent,

C

and by persons

made the

repre-

The Indian Evidence Act,

158

A

ig.)

sued by

is

of which

A

is

A's defence

The

work

of the

B

work done by B, upon a bouse

for the price of

that B's contract was with 0.

is

A

paid

A did,

A

is

work in question is relevant, as the management make over to

in good faith,

was in a position to contract with

in question, so that

it,

for

A.

accused of the dishonest misappropriation of property

which he had found, and the question priated

•

the

for

on C's own account, and not as agent {h.)

2.

owner, by the order of G, a contractor.

fact that

proving that

B

\'&']

he believed in good

is

whether,

faith that the real

when he appro-

owner could not be

found.

The

fact that public

of the property

notice of the loss

given in the place where

A was,

is

relevant, as

had been

showing that

A

did

not in good faith believe that the real owner of the property could not be found.

A

knew, or had reason to believe, that the notice was who had heard of the loss of the property given fraudulently by

The

fact that

and wished

to set

the fact that

A

up a

knew

false

claim to

of the

it,

is relevant, as

not

did

notice

showing that

disprove A's good

faith. (i.)

A

B

charged with shooting at

is

with intent to kiU him.

In

order to show A's intent, the fact of A's having previously shot at

may be (J.)

B

proved.

A

is

charged with sending threatening

ing letters

A to B

previously sent by

may

letters to B.

Threaten-

be proved, as showing

the intention of the letters. (&.)

The question

is,

whether

A has

been guilty of cruelty towards

B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

The question is, whether A's death was caused by poison. Statements made by A during his illness as to his symptoms are

(l.)

relevant facts. (m.)

The question

is,

what was the state of A's health at the time life was effected.

when an assurance on his Statements made by A

as to the state of his health at or near the

time in question, are relevant {n.)

A

sues

B

for negligence in providing

hire not reasonably

The

facts.

fit

for use,

fact that B's attention

whereby

A

him with a

carriage for

was injured.

was drawn on other occasions

defect of that particular carriage, is relevant.

to the

The Indian Evidence Act, 1872. The (0.)

B

that

fact

which he

was habitually negligent

about

159 the

carriages

let to hire, is irrelevant.

A is

tried for the

B

murder of

by

intentionally shooting

him

dead.

The

on other occasions, shot

that A,

fact

B

at

relevant,

is

as

showing his intention to shoot B.

The fact that A was in the habit to murder them, is irrelevant. (p.)

A is

The

of shooting at people with intent

tried for a crime.

fact that

he said something indicating an intention to commit

that particular crime, is relevant.

The fact that he said something indicating a general commit crimes of that class, is irrelevant. 15.

"When there

an act was

a question whether

is

disposition to

acci-

dental or intentional, the fact that such act formed part of a series

of similar occurrences,

doing the act was concerned,

each of which the person

in

is relevant.

Facts question ^c't^^'^ accidental or intentional.

lllnitrati<ms.

(a.)

obtain

The

A

is

accused

money facts

of

which

for

that

A

down

burniag

it is

house

his

order

in

to

iasnred.

lived in several houses

successively,

each of

which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office,

are relevant,

as

tending

to

show that the

fires

were

not

accidental. (&.)

A

is

employed to receive money

from

the debtors

of

B.

make entries in a book showing the amounts reHe makes an entry showing that on a particular

It is A's duty to

ceived by him.

occasion he received less than he really did receive.

The question

is,

whether

this

false entry

was accidental or

inten-

tional.

The fact that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant (c.)

A

is

accused of fraudulently delivering to

B

a

counterfeit

rupee.

The question is, whether the The facts that, soon before

delivery of the rupee

or

delivered counterfeit rupees to C,

that the delivery to

B

was accidental

soon after the delivery to B,

D

A

and E, are relevant, as showing

was not accidental.

—

;

The Indian Evidence Act, 1872.

l6o

of business

when

When

16.

Existence

rele-

there is a question whether a particular act

of any course of business, according to

doiG, the existence -^Y^y:^ it naturally

was

would have been done,

a relevant

is

fact.

Illwtrations. (a.)

The question

The

facts that it

is,

whether a particular

letter

was despatched.

was the ordinary course of business

for all letters

put in a certain place to be carried to the post, and that that particular letter

was put into that

The question

(6.)

facts that it

the

is,

place, are relevant.

whether a particular

letter

reached A.

The

was posted in due course, and was not returned through

Dead Letter

OflSce, are relevant.

Admissions.

An

17.

Admission defined.

admission

-wrhich Suggests

vant

fact,

is

statement,

a

oral

any inference as to any

and which

is

made by any

or

documentary,

fact in issue or rele-

of the

persons,

and

imder the circumstances, hereiaafter mentioned. 18.

Admission

—by

party

ceedingor

Statements made by a party to the

^^ agent to any such party,

whom

the circumstanccs

case,

of

the

his agent

,

in

^""

by party interested

by person

:

jj^ ^]^g

or

impliedly

sued in a

subject-matter of the proceeding,

and who make the

statement in their character of persons so interested, or (2.)

'

or

... admissions,

made while the party making them held that character. Statements made by (1-) psrsons who have any proprietary or pecuniary interest

interest

^"^^

expressly

representative character, are not admissions, unless they were

tadTC character

as

by

Court regards, under

by him to make them, are Statements made by parties to suits, suing

authorized by suitor

the

proceeding, or

persons from

whom

the parties to the suit have derived

their interest in the subject-matter of the suit,

are admissions, if they are

made during

the continuance of

the interest of the persons making the statements. 1^-

Statements

made by persons whose

position or liability

Admisby

^^

whose

admissions,

must be

such pei'sons in relation to such position or liability in a suit

sions

j^g

neccssary to prove as if

against any party to the suit, are

such statements would be relevant as against

— The Indian Evidence Aci, i8j7. brought by or against them, and

if

they are made whilst the

person making them occupies such position or

such

i6i

subject to

is

proved as

pf^Jyto si"t-

liability. Illustration.

A

undertakes to collect rents for B.

B

sues

A

for not collecting rent

due from

to B.

A denies that rent was due from to B. A statement by C that he owed B rent is relevant fact as against A, if A denies that 20.

Statements made by persons to

suit has

an admission, and

is

a

did owe rent to B.

whom

a party to the

Admissions

expressly referred for information in reference to a

elpressiyre-

matter in dispute are admissions.

^^'^'^^^

'°

^y

party to suit Illustration.

The question

A is

says to

is,

whether a horse sold by

B — Go

and ask

'

knows

0,

all

A

to

B

about

is it.'

sound. C's statement

an admission. 21.

Admissions are relevant, and

the person

who makes them,

may be proved

as against

or his representative in interest

.

proved by or on behalf of the r person who but they J cannot be r J makes them or by his representative in interest, except in .

the following cases

Proof of against

P^^^9^ making them, and by or on their be-

:

half.

(1.)

An

may be when it is

admission

person making

it,

person making

it

were dead,

it

proved by or on behalf of the of

such a nature that,

would be relevant

as

if

the

between

third persons under section thirty-two. (2.)

An

admission

person making

it,

may

when

be proved by or on behalf of the

it

consists of a statement of the ex-

mind or body, relevant or in issue, made at or about the time when such a state of mind or body existed, and is accompanied by conduct rendering its falseof any state of

istence

hood improbable. (3.)

An

admission

person making mission.

it,

may

if it is

be proved by or on behalf of the relevant otherwise

than as an ad-

1

The Indian Evidence Act, 1872.

62

Illustrations.

The

(a.)

deed

A

not forged.

or is

is

A

between

question

B

and

affirms that

it

is,

is

whether

genuine,

a

B

certain

that

it

is

forged.

A may prove a statement by B that the deed is genuine, and B may but A cannot prove prove a statement by A that the deed is forged ;

a statement by himself that the deed statement by himself that the deed

A, the captain of a ship,

(6.)

Evidence

is

is

genuine, nor can

is

B

prove a

forged.

is

tried for casting her away.

given to show that the ship was

taken out of her

proper course.

A produces

a book kept by him in the ordinary course

business, showing observations alleged to have been taken

of his

by him

from day to day, and indicating that the ship was not taken out of her

A may prove these

proper course.

admissible between third parties,

statements, because they would be

if he

were dead, under section thirty-

two, clause (two).

A is accused of a crime committed by him at Calcutta.

(c.)

He dg^y,

produces a letter written by himself and dated at Lahore on that

and bearing the Lahore post-mark of that day.

The statement if

A

were dead,

date of the

in the

would

it

letter

is

admissible, because,

be admissible under section thirty-two,

clause (two.)

A

(d.)

is

accused of receiving stolen goods knowing

them

to

be

stolen.

He

to

offers

prove

that

he

refused

to

them below

sell

their

value.

A

may

because

prove

they

these

statements,

are explanatory

of

though

conduct

they

are

influenced

adnyssions,

by

facts

in

issue. (e.)

feit

A is accused of

coin which he

He

offers to

coin, as

fraudulently having in his possession counter-

knew to be counterfeit.

prove that he asked a skilful person to examine the

he doubted whether

person did examine

it

it

was counterfeit or

and told him

it

not,

and that that

was genuine.

A may prove these facts for the reasons

stated in the last preceding

illustration.

When

oral

admissions tents of

^^-

^^^

admissions as to the contents of a document are

not relevant, unless and until the

them shows that he

is

party proposing to prove.

entitled to give secondary evidence of

The Indian Evidence Act,

xZ"] 2.

the contents of such document under the

163

rules hereinafter

contained, or unless the genuineness of a document produced

documents y^t!^^^'

in question.

is

In civU cases no admission

23.

relevant,

is

if

upon an express condition that evidence

either

it

of

made

is it

not

is

Admiscivil cases, '^^'^'

he given, or imder circumstances from which the Court ^^^"

to

can infer that the parties agreed together that evidence of

it

should not he given. Explanation.

exempt any

—Nothing

in this section shall

barrister, pleader, attorney

evidence of any matter of which he

be taken to

or vakil from giving

may be

compelled to give

evidence under section one hundred and twenty-six.

A

made by an accused person is irrelevant in a criminal proceedmg, if the making of the confession appears to the Court to have been caused by any inducement, 24.

confession

threat or promise, having reference to the charge against the

m .

accused person, proceeding from a person

him

person grounds, which would appear to

supposing that by making

it

^ induceJjJ™^'^

promise

when

.

authority and

the opinion of the Court, to give the accused

sufficient, in

Confession

reasonable, for

irre-

levant

in

p",^eed'"S-

he would gain any advantage or

avoid any evil of a temporal nature in reference to the pro-

him. ceedings against ° ° 25. No confession made to a Police .

as

,

agamst a person accused 26.

No

J.

-,

confession

custody of a Police

01

„ . , Confession

unless

to Police officer

any onence.

made by any person officer,

be proved

officer, shall

on

to

whilst he

be made

it

m

is

in the .

.

the im-

mediate presence of a Magistrate, shall be proved as against such person.

not

be

P^°''^^-

Confession

by accused custody of "°'

^°ll^

27. Provided

that,

when any

fact is

deposed to as discovered proved against

in consequence of information received from a person accused of

any

'

as relates distinctly to the

it

amounts

fact

much

of of^^i^ato a confession or not, ''^ ^f:

offence, in the custody of a Police

such information, whether

officer,

so

thereby discovered,

may be

proved.

If such a confession as .

four

is

made

ceivedirom accused

maybe

proved. 28.

him.

is

referred to in section twenty-

.

after the impression caused

1

•

J

by any such induce-

Confession

made

after

removal of

1

The Indian Evidence Act, 1872.

64

impression caused by

ment, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.

induce-

ment, or promise,

threat,

29.

If such a confession

become

is

otherwise relevant,

irrelevant merely because

it

does not

was made under a pro-

it

relevant.

Confession otherwise relevant not to be-

come

irre-

mise of secrecy, or in consequence of a deception practised

on the

when he was drunk,

it,

or

was made ra answer

to

purpose of obtaining

accused person for the or because

it

may

questions which he need not have answered, whatever

levant because of promise of

have been the form of those questions, or because he was not

secrecy,

warned that he was not bound

&c.

that evidence of Consideration of

30.

it

When more same

to

make such

confession,

and

might be given against him. persons than

one are being tried jointly

and a confession made by one

of such

proved

for the

confession

persons affecting himself and some other of such persons

offence,

is

affecting

may

person

proved, the Court

making it and others

as against such other

jointly

under

trial

who makes such

take into consideration such confession

person as well as

against

the

person

confession.

same

for

niusiraiions.

offence. (a.)

that

A and B are jointly tried for the murder of G. A said, — B and I murdered C The Court may '

It is proved

consider the

effect of this confession as against B. (6.)

A

is

show that murdered

on his

C

against A, as 31.

sions not

conclusive proof, but

may

the murder of 0.

was murdered by

This statement

Admis-

trial for

B

is

may

A

There

and B, and that

B

is

evidence to

said,

—

'

A

and I

not be taken into consideration by the Court

not being jointly tried.

Admissions

admitted, but they

are not

may

conclusive

proof of the matters

operate as estoppels imder the pro-

visions hereinafter contained.

estop.

Statements by Persons

who cannot be called

as

Witnesses. 32.

Cases in vfhich

statement of relevant fact

by per-

son

who

is

by

Statements, written or verbal, of relevant facts

a person

who

is

dead, or

who cannot be

become incapable of giving evidence,

or

found, or

made

who

has

whose attendance

cannot be procured without an amount of delay or expense

;

The Indian Evidence Act, wliicli,

under the circumstances of the

Court

unreasonable,

facts

to

the

dead or

in

the

found, &c. *= '^"i"^''"'-

:—

following cases

"When the statement

(1)

appears

case,

themselves relevant

are

165

x?,']2.

is

made by a person

as

to

the

cause of his death, or as to any of the circumstances of the transaction

which resulted in his death, in

which the

cases in

whenitre-

cbmx of ^^^^^'>

cause of that person's death comes into question.

Such statements are relevant whether the person who made

them was

was

or

not,

at

the

time when they were made,

under expectation of death, and whatever

may

be the nature

of the proceeding in which the cause of his death comes into question.

When

made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in (2)

the statement was

or

is

made

business

the ordinary course of business, or in the discharge of professional

him

duty

;

or of

an acknowledgment written or signed by

of the receipt of money, goods, securities or property of

any kind

;

or of

document used in commerce written

a

or

signed by him, or of the date of a letter or other document usually dated, written or signed by him.

When

(3)

the statement

prietary interest of the

would expose him

or

is

against the pecuniary or pro-

person making

it,

or when,

would have exposed him

if true,

it.

or against

^^^^If.

to a criminal

prosecution or to a suit for damages.

When

(4)

the statement gives the

opinion

of any

such

or gives

person, as to the existence of any public right or custom or

option

matter of public or general

right or

if

existed,

it

when such such

right,

(5)

he would have been likely to

be

which,

aware,

and

statmeent was made before any controversy as to

custom or matter had

When

relationship

to

the

existence of any

between persons as to whose relationship the statement

had

special

means

of

know-

and when the statement was made before the question

in dispute was raised.

matters' of .

'"'

f^j^t

arisen.

the statement relates

person making the ledge,

interest, of the existence of

as

orrelatesto

^f ^kt^onship; iyiCr^^^

^^ '^'^'p^^^"^

i66 or

The Indian Evidence Act, 1872,

IS

When

(6)

the statement relates to

the

existence of

any

m

any

made

in will or

deed

rela-

ting to

family

relationship nsetween persons will

or

and

deceased,

deed relating to the

affairs

made

is

which

of the family to

any such deceased person belonged or in any family pedigree,

affairs j

upon any tombstone, family

or

which such statement

or other thing on

portrait

statements are usually made,

made

was

the

before

and when such

question

dispute was

in

raised. or in docu-

ment

(7).

When

the statement

ting to transaction

mentioned in section 13, clause

other document which relates to any such transaction

mentioned in section thirteen, clause

When

(8)

is

made

by several

{a).

was made by a number of persons impressions on their part relevant

feelings or

to the matter in question.

persons

and expresses teeling relevant to matter in question.

as is

the statement

and expressed or

contained in any deed, will or

is

rela-

TWns^ations.

The question

(a.)

A

wtether

is,

A

was murdered by B

;

or

dies of injuries received in a transaction in the course of

she was ravished.

The question

B; or The question

whether

is,

stances that a suit would

Statements

made by A

A

lie

is,

was

whether she was ravished by

killed

B by

against

wUch

by

B

under such circum-

A's widow.

as to the cause of his or her death, referring

and the actionable wrong under

respectively to the murder, the rape, consideration, are relevant facts.

The question

(6.)

An

is

as to the date of A's birth.

entry in the diary of a deceased surgeon, regularly kept in the

course of business, stating that, on a given day,

he attended A's

mother and delivered her of a son, ia a relevant fact, (c.) The question is, whether A was in Calcutta on a given day.

A

statement in the diary of a deceased

on

in the course of business, that,

tended

A

place mentioned,

at a

conferring with (Si)

him upon

The question

is,

a

in

solicitor,

regularly kept

given day, the solicitor

at-

the purpose

of

Calcutta,

for

specified business, is

a relevant

fact.

whether a ship sailed from Bombay harbour

on a given day.

A letter which

whom

written by a deceased

she was

chartered,

to

member

their

of a merchant's firm,

by

correspondents in London to

the cargo was consigned, stating that the ship sailed on a

given day from

Bombay

harbour,

is

a relevant

fact.

The Indian Evidence Act, 1872. The question

(e.)

A

letter

ceived

is,

whether rent was paid to

from A's deceased

the

certain land.

saying that he had re-

ageflt to A,

acoonnt, and held

on A's

rent

A for

167

at A's

it

orders, is a

relevant fact. (/.) The question is whether A and B were legally married. The statement of a deceased clergyman that he married them

nnder such circumstances that the celebration would be a crime,

is

relevant.

The question

(g^

whether A, a person who cannot be found,

is,

wrote a letter on a certain day. is

dated on that day,

The question

fact that a letter written

by him

is relevant.

what was the cause of the wreck of a ship. protest made by the captain, whose attendance cannot be pro-

(fe.)

A

The

cured,

is

a relevant

is,

fact.

The question is, whether a given road is a public way. statement by A, a deceased headman of the village, that the road

(i.)

A was

a relevant

public, is

The question

(j.)

is,

fact.

what was the price of grain on a certain day

in a particular market.

A

statement of the price,

ceased banya in the ordinary course of his business,

The question

(fc.)

A

statement by

The question

(Z.)

A of

letter

A

is,

A

is,

An

B was

The question

entry in a

is is,

A

sues

B

a relevant

in a shop window.

cature and tators

33.

its

a

fact.

dead, was the father of B.

friend,

whether, and when,

libel

A

announcing the birth

fact.

memorandum-book by for

a relevant

what was the date of the birth of A.

his daughter's marriage with (w.)

is

is

de-

his son, is a relevant fact.

from A's deceased father to a

on a given day,

(m.)

whether A, who

that

made by a

A

and B were married.

C, the deceased father of

on a given date,

is

B, of

a relevant fact.

expressed in a painted caricature exposed

The question

is

as to the similarity

The remarks

libeUous character.

of a

of the cari-

crowd of spec-

on these points may be proved.

Evidence given by a witness in a judicial proceeding,

or before any person authorized

by law

to take

it, is

relevant

for the purpose of proving, in a subsequent judicial proceeding, or in a

later

of the

stage

truth of the facts which or cannot be found, or

it

is

same

states,

judicial proceeding, the

when

the witness

is

dead

incapable of giving evidence, or

kept out of the way by the adverse party, or cannot be obtained without

if

Relevancy "yi^g'j^^™ for prov-

sequent fng.'^tL"

is

his presence

rn amount of delay or expense

f^^^^^*^ in stated.

—

i68

;

:

The Indian Evidence Act, 1872. which, under the circumstances of the case, the court considers unreasonable.

Provided that the proceeding

was between the same

parties or their

representatives in interest

that the adverse party in the

and opportunity

first

proceeding had the right

to cross-examine

that the questions in issue were substantially the

the

in

as in the second proceeding.

first

Explanation. to be

same

—

be deemed

^A criminal trial or inquiry shall

a proceeding between the prosecutor and the accused

within the meaning of this section.

Statements made under special Circumstances. Entries in

34. Entries

in

books of

account,

regularly

J

kept

in

the

books of

course

account wiien rele-

matter into which the Court has to inquire, but such state-

vant.

of business,

ments

whenever they

refer

to

a

alone be sufficient evidence to charge any

shall not

person with

are relevant

liability.

TOMsivaiion.

A

B

sues

showing

B

for Es. 1,000,

to

and shows

the account-books

entries in

be indebted to him to this amount.

The

entries

are

relevant, but are not sufficient, without other evidence, to prove the

debt.

35.

Relevancy

An

entry in any public or other

official

book, register,

of entry in public re-

or record, stating a fact in issue or relevant fact,

cord, made in perform-

by a public servant

ance of duty.

by any

person

other

by the

enjoined

in the in

discharge of his

performance

of

and made

official

a

duty, or

duty specially

law of the country in which such book,

register, or record is kept, is itself a relevant fact.

36.

Relevancy

Statements of facts in issue or relevant

of statements in

published

maps,

in

maps

as

to

charts plans.

maps

facts,

made

in

or charts generally offered for public sale, or

or plans

made under

the authority of Government,

and

matters usually represented

or

stated

in

^uch maps,

charts, or plans, are themselves relevant facts. 37.

"When the Court has

to

form an opinion

as

to

the

The Indian Evidence Act, i^ji.

169

existence of any fact of a public nature, any statement of

made

in a

Relevancy

it,

contained in any Act of Parliament, or in

recital

any Act of the Governor General

of India in Council,

menfas

or of

to

^'^^°^

the Governors in Council of Madras or Bombay, or of the

public nature, con-

Lieutenant-Governor in Council of Bengal, or in a notification

certain

Government appearing in the

of the

of any

Gazette

the

Gazette of India, or in

Government, or in any printed

Local

^otifica''°"^-

paper purporting to be the London Gazette or the Government Gazette of

any colony

or possession of the Queen, is a relevant

fact.

When

38.

the Court has to form an

opinion as to a law of Relevancy

any country, any statement of such law contained in a book purporting to be printed or of the

Government

and any report

law-,

published under the authority

of such country ^

and

to contain

any such •'

ments as contained '" '^^^

books.

of a ruling of the Courts of such country

contained in a book purporting to be a report of such rulings, is relevant.

How MUCH When

39.

OF A Statement

any statement

of

is

to be pkoved.

which evidence

given forms

is

part of a longer statement, or of a conversation or part of an isolated document, or

is

contained in a document which forms

part of a book, or of a connected series of letters or papers,

evidence shall be given of so

much and no more

ment, conversation,' document, book, or '

papers

as

the

of the stateof letters

series

or

Court considers necessary in that particular

case to the full understanding of the nature and effect of the statement, and of the circumstances under which

it

what

evi-

^g"*^? '° ^''''="

statement forms part verea't°on,

'lo^nient, book, or series of papers.

was made.

Judgments of Courts of Justice, when relevant. 40.

The existence

of

any judgment, order or decree which

by law prevents any Court from taking cognizance of a suit is or holding ^ ° a trial, is a relevant fact when the question whether such Court ought to take cognizance of such to hold such 41.

A

suit, or

Previous ielera^n" to ^e^'^''f

cond for

suit

trial.

trial.

final

judgment,

order or

N

decree

of

a

competent

Relevancy of certain

;

;

i7o

The Indian Evidence Act, 1872,

judgments &c.^^uiis-^'

diction.

matrimonial, admiralty or

Court, in the exercise of probate,

insolvency fpQj^

g^j^y.

person

pgj^Qj^ a,ny

to

entitled

which confers upon or takes away legal character, or which declares any

jurisdiction,

be

any

to

any

to

entitled

person but absolutely,

is

such legal character, or the such thing,

is

when

relevant title

any

as against

not

specific thiug,

or

character,

such

to

be

specified

the existence of any

of any such person to any

relevant.

Such judgment, order

or decree is conclusive proof

that any legal character, which

confers accrued at the"

it

time when such judgment, order or decree came into operation;

that any legal

character,

to

which

declares

it

any such

person to be entitled, accrued to that person at the time when

such judgment. declares

it

have accrued to that person

to

that any legal character which

it

takes

away from

any, such

person ceased at the time from which such judgment declared that

it

had ceased or should cease

and that any thing

to

which

which such judgment

declares

any person

to

be

of that person at the time from

was the property

so entitled

it

.declares that it

had been

or should

be

his property. Relevancy and effect of judg-

ments

or-

ders or decrees, other than those meationed in

42.

Judgments,

orders

if

than

those

they relate to

matters of a public nature relevant to the enquiry

;

but such

judgments, orders or decrees are not conclusive proof of that

which they

state.

-m

i-

j.

niMstration.

A

sues

B

for trespass

on

pnbKc right of way over the

The

for a trespass

existence of the

land,

B

which

Judgments,

mentioned

in

onthe same

same right of way,

proof that the right of 43.

his land.

A

alleges

tlie

existence of a

denies.

existence of a decree in favour of the defendant, in a suit

A against

"her'ftan

other

decrees

mentioned in section forty-one, are relevant

section 41.

Judg'

or

way

by which C alleged the

relevant, but

it is

not conclusive

exists.

orders

sections

is

land, in

or

forty,

decrees,

forty-one

other

and

than

those

forty-two,

are

1

The Indian Evidence Act, irrelevant,

unless

the

decree,

a

in issue,

is

fact

1872.

of such judgment, order or

existence

those

40-42.

when releIllustrations.

A

and

of them.

B

separately sue

for

a

vant.

wHch

libel

reflects

upon

each.

in each case says, that the matter alleged to be libellous

and the circumstances are such that

is true,

men-

under some other seSfon™

or is relevant

provision of this Act.

(a.)

7

1

it is

probably true in each

case, or in neither.

A

C

obtains a decree against

failed to

make out

for

his justifi.cation.

damages on the ground that C The fact is irrelevant as between

BandO.

A

(6.)

B

prosecutes B, for adultery, with 0, A's wife.

B

denies that

C

is

Afterwards C

is

prosecuted for bigamy in marrying

C

lifetime.

A's wife, but the court convicts

during A's

says that she never was A's wife.

The judgment against B

A

of adultery.

B

is

irrelevant as against 0.

cow from him. B is convicted. A, afterwards, sues G for the cow, which B had sold to him before As between A and C, the judgment against B is his conviction. (c.)

prosecutes

B

for stealing a

irrelevant.

A

(d.)

has obtained a decree for the possession of

C, B's son, murders

The

A

exi3tence_of the

B

land against

in consequence.

judgment

is

relevant, as

showing motive

for a

may show

that

crime.

44.

Any

party to a suit or other proceeding

any judgment, section

forty,

or

order

forty-one

which

decree or

under

relevant

is

Fraud or obtaining'"

judgment,

and which has been

fqrty-two,

proved by the adverse party, was delivered by a Court not

competent to deliver

it,

or was obtained

Opinions of third Peksons, 45.

When

when

or collusion,

„

relevant.

.

J

,

•

1

,

-J

(.

1

the opinions upon that

Such persons

point of persons specially.,

are called experts. Illustrations,

The question

of experts,

1

of science or art, or as to identity ot hand-

skilled in such foreign law, science or art, are relev3,nt Tacts.

(a.)

b^pro^d

the Court has to form an opinion upon a point Opinions

of foreign law, or writing,

by fraud

petency of

is,

whether the death of

A was

caused by poison.

'

,

.

,. ''

The Indian Evidence Act, 1872.

172

The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (6.) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c.) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons, are relevant. Facts bearing upon opinions of experts.

46.

Facts,

not

otherwise

relevant,

are

relevant

if

they '

.

Support Or are inconsistent with the opinions of experts, when ^^^j^ opinions are relevant.

TQ,usira,tions.

The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certaiu symptoms which experts afBrm or deny to be the symptoms of that poison, is relevant. question is, whether an obstruction to a harbour is (6.) The caused by a certain sea-wall. The fact that other harbours similarly situated in other resnects, (a)

but where there were no such sea-walls, began to be obstructed at about the same time is relevant. Opinion as to

handwriting,

when

relevant.

When the Court has to form person by whom any document was 47.

an opinion as to written

the

or signed, the

opinion of any person acquainted with the handwritino- of the person by whom it is supposed to be written or signed that

it

was

or

was not written or signed by that person,

is

a

relevant fact.

Explanation.

—A person

is

said to be acquainted with the

handwriting of another person write, or

when he has

when he has seen

that person

received documents purporting to be

— The Indian Evidence Act, 1872. by

written

173

person in answer to documents written by

tliat

himself or under his authority and addressed to that person,

when,

or

ordinary course

the

in

of

documents

business,

purporting to be written by that person have been habitually

submitted to him. IWasiraiion.

The question

is,

wtether a given

letter is in

tte handwriting of A,

a merchant in London.

B

A

and received

clerk,

D

a merchant in Calcutta,

is

is

letters

whose duty

it

B's broker, to

who has

written letters addressed to

purporting to be written by him.

was to examine and

whom B

porting to be written by

A

file

B's

C

B's

is

correspondence.

habitually submitted the letters pur-

for the

purpose of advising with him

thereon.

The opinions of B, in the handwriting

ever saw 48.

D

and of

A

on the question whether the

are relevant, though neither B,

letter is

D

C nor

A write.

When

Court has

the

to

form an opinion as to the .

,

,

.

existence of any general custom or right, the opmions, as to

the existence of such custom or right, of persons

know

be likely to

of

its

existence if

it

Opinion as to exist-

.

who would

existed, are relevant.

ence of "ustom^ '^^^^ ^^^' y^rA.

.

.

.

Uxplanation.—The expression 'general custom includes customs or rights

common

to

or right'

any considerable

class

of persons. HhistraUon.

The

right of the villagers of a particular village to use the water of

a particular well 49.

When

is

a general right within the meaning of this section.

the Court has to form an opinion as to

the usages and tenets of any body of the

constitution

and

government

men of

Opinions

or family,

any

^ages,

religious

or

charitable foundation, or

t™^'^'

^j^-'

vant.

the meaning of words or terms used in particular districts or

by

particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts. 50.

When

relationship

the

Court has

to

form

an opinion as

to

the

of one person to another, the opinion, expressed

Opinion tionship,

:

The Indian Evidence Act, 1872.

174 when

rele-

by conduct,

existence of such relationship, of any

as to the

person

who, as a member

special

means of knowledge on the

family or otherwise, has

of the

subject, is a relevant fact

Provided that such opinion shall not be suf&cient to prove a marriage in proceedings under the Indian Divorce Act, or in

under

prosecutions

hundred and ninety-four,

four

section

four hundred and ninety-iive, four hundred and ninety-seven or four

hundred and ninety-eight of the Indian Penal Code. JUusirations.

The question

(a.)

The

married persons,

The

(6.)

fact that

question

A was

A and B

were married.

and treated by their

they were usually received

fact that

friends as

whether

is,

is,

is relevant.

whether

A was

The

the legitimate son of B.

always treated as such by the members of the family,

is relevant.

Grounds

51.

Whenever the opinion

any living person

of

is

rele-

of opinion

when

rele-

vant, the grounds on

which such opinion

is

based are also

vant.

relevant. likhshration.

An

expert

for the

may

give an account of experiments performed

by him

purpose of forming his opinion.

Chaeactee when eelevant. In

52.

civil

In

civil cases,

the fact that the character of any person

cases character to

concerned

prove conduct im-

conduct imputed to him,

puted, irre-

such character appears from facts otherwise relevant.

is

such as to render probable or improbable any is

irrelevant,

except in so

far

as

levant.

In criminal cases, pre-

vious good character

53.

In

accused 54.

is

criminal

the

proceedings,

that

fact

the

person

of good character, is relevant.

In criminal

proceedings,

the

fact

that

the

accused

relevant.

In criminal proceedings previous conviction relevant,

but not previous

bad character,

cept in reply.

person has been previously convicted of any offence

vant

;

but the fact that he has a bad character

is

is

rele-

irrelevant,

unless evidence has been given that he has a good character, in which case

it

Eayplanation.

becomes

— This

relevant.

section

does

not

which the bad character of any person

ex-

issue.

apply to is

itself

cases

in

a fact in

TJu Indian Evidence Act, 55. is

In

civil cases,

xZ"] 2.

175

the fact that the character of any person

Character

such as to affect the amount of damages which he ought damages"^

to receive, is relevant.

Explanation.

and

fifty-five,

—In

sections iifty-two,

the word

and disposition

;

'

character

but evidence

'

may

fifty-three,

fifty-four

includes both reputation

be given only of general

reputation and general disposition, and not of particular acts

by which reputation

or disposition were shown.

—

:

——

;

;

;

:

The Indian Evidence Act, 1872.

176

Paet

II.

ON PEOOF. Chaptee Facts judidaily noticeable

proved. Facts of

Court must ciafnotice,

Xo

56.

Facts which need not be proved.

III.

fact of whicli

the Court will take judicial notice

need be proved.

The Court

^7. facts

shall take judicial notice of

the following

:

(!)

laws Or rules having the force

All

law now or

of

heretofore in force, or hereafter to be in force, in

any part

of

British India (2.)

AU

public Acts passed or hereafter to be passed by

Parliament,

and

all

and

local

personal

Parliament to be judicially noticed (3.)

Articles of

(4.)

The course

War

for

Acts directed

:

Her Majesty's Army

of proceeding

time being relating thereto

(four), 1.

— The word

'

Navy

and of the

Laws and Eegulations

established under the Indian Councils' Act, or

Explanation.

or

of Parliament

Councils for the purposes of making

for the

by

any other law

:

Parliament,' in clauses (two) and

includes

The

Parliament

of

the

United

Kingdom

of

Great

Britain and Ireland

3.

The Parliament of Great Britain The Parliament of England

4.

The Parliament

5.

The Parliament of Ireland

2.

(5.)

of Scotland,

and

:

The accession and the sign manual

of

the Sovereign

:

:

:

:

:

:

:

i77

The Indian Evidence Act, 1872. for the time being of the

United Kingdom of Great Britain

and Ireland All seals of which English Courts take judicial notice

(6.)

the seals of out

the Courts of British India, and of aU Courts

all

British

of

Governor General or

established

Courts of Admiralty and Maritime Jurisdiction and

seals of

of Notaries Public, rized

by the authority of the any Local Government in Council: the

India,

use

to

and

all seals

by any Act

which any person

Parliament

of

is

other

or

autho-

Act

or

Eegulation having the force of law in British India

The accession

(7.)

to

office,

names,

titles,

functions,

and

signatures of the persons filling for the time being any public

any part

office in

ment the

to such

official

The

(8.)

of British India, if the fact

office is notified in

the Gazette, of India,

The

or in

Gazette of any Local Government existence,

title,

and national

flag of

Sovereign recognised by the British Crown (9.)

of the appoint-

every State or

:

divisions of time, the geographical divisions of the

world, and public festivals, fasts and holidays notified in the official

(10.)

Gazette

The

:

territories

under the dominion of the British

Crown The commencement, continuance, and termination hostilities between the British Crown and any other State body of persons (11.)

(12.)

and of and

The names

of the

their deputies

members and

and subordinate

and

assistants,

also of all officers acting in execution of its process,

of all advocates, attornies, proctors, vakils, pleaders

persons authorized by law to appear or act before (13.)

In

all

The

rule of the road,

ct,

or

the Court

officers of

officers

of

and

and other

it

Qe^ oyoI- oaa.

these cases, and also in all matters of public history,

literature, science or art, the

Court

may

resort for its

aid to

appropriate books or documents of reference. If the Court

is

called

notice of any fact,

it

upon by any person

may

refuse

to

do

so,

to

take judicial

unless

and until

—

;

—

;

:

;

:

TIu Indian Evidence Act, 1872.

178

such person produces any such book or document as consider necessary to enable Facts ad-

No

68.

it

do

to

or

may

so.

need be proved in any proceeding whicli thp

fact

parties thereto or their agents agree

not be

it

to

admit at the hearing,

which, before the hearing, they agree

to

admit by any

by any rule of pleading deemed to have admitted by

writing under their hands, or which in force at the time they are their pleadings

Provided that the Court may, in

:

tion, require the

by such

admitted to be proved otherwise than

facts

admissions.

Of oral Evidence.

Chapter IV. Proof of

ALL

59.

its discre-

facts,

except the contents

of documents,

may be

proved by oral evidence,

oral evience.

^^

Oral evi-

evidence

Q\z!^

must, in

cases,i whatever,>

all

;>

be direct

7

_

dencemust be direct.

That If

Say

is to

which could be

to a fact

it refers

seen, it

must be the

I

evidence of a witness

'

i

If

who

evidence of a witness If "

;

to a fact

it refers

who

in

a witness

who

it

says he heard

it

must be the

it

which could be perceived by any other

any other manner,

sense or

saw

which could be heard,

to a fact

it refers

says he

says he

perceived

it it

must be the evidence

by

of

that sense or in that

manner If

it refers

to

an opinion or to the grounds on which that

must be the evidence of the person who holds that opinion on those grounds opinion

is

held, it

Provided that the opinions of experts expressed in any treatise

commonly

such opinions are held, such treatises

if

and the grounds on which may be proved by the production of

offered for sale,

the author

is

dead or cannot be found, or has

become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Coiut regards as unreasonable Provided

also, that, if

:

oral evidence refers to the existence

or condition of any material thing other than a document, the

—

— ;

;

The Indian Evidence Act, Court may,

if

thinks

it

material thing for

its

The contents

the

I'i'] 2.

179 of such

production

inspection.

Chapter V. 61.

require

fit,

;

:

Of documentaey Evidence.

may

of documents

be proved either by

primary or by secondary evidence.

document"!^

Primary evidence means the document

62.

itself

produced

1.

each part

parts,

Where

—Where a document

is

each

a document

counterpart

executing

is

executed in several

primary evidence of the document is

executed in counterpart, each counter-

being executed by one

part

Primary evidence.

for the inspection of the Court.

Explanation

Proof of

or

some of the

parties

only,

primary evidence as against the parties

is

it.

Explanation

2.

—Where

made by one uniform

a

number

lithography, or photography, each

contents

of

common

original,

the rest

;

in

process, as

of

the

documents case

of

are

all

printing,

primary evidence of the

is

but where they are

all

copies

of a

they are not primary evidence of the con-

tents of the original. TXlustration.

A

person

is

shown

to have been

in

possession of a

placards, all printed at one time from one original.

placards of

them 63. (1.)

is is

Any

number

of

one of the

primary evidence of the contents of any other, but no one primary evidence of the contents of the original.

Secondary evidence means and includes Certified copies given

Secondary

under the provisions hereinafter

contained (2.)

Copies made from the original by mechanical processes

which in themselves insure the accuracy of the copy, and copies compared with such copies ;

made from

or

compared with the original

(3.)

Copies

(4.)

Counterparts of documents as agaiast the parties

who

did not execute them (5.)

Oral accounts of the contents of a document given by

some person who has himself seen

it.

evidence.

;

i8o

The Indian Evidence Act, 1872. Tllustraiions.

A

(a.)

contents,

photograph of an original

though the two have not been compared,

was the

that the thing photographed

A

(6.)

machine it

secondary evidence of

is

is

if it

its

proved

original.

copy compared with a copy of a letter made by a copying is

contents

secondary evidence of the

made by

be shown that the copy

the

the

of

letter,

if

machine was made from the

original.

A

(c.)

copy transcribed from a copy, but afterwards compared secondary evidence

but the copy not so com-

with the

original, is

pared

not secondary evidence of the original, although the copy

is

;

was transcribed was compared with the original. Neither an oral account of a copy compared with the original, (i.) nor an oral account of a photograph or machine-copy of the original,

from which

is

Proof of documents by primary evidence.

secondary evidence of the original.

Documents must be proved by primary evidence except

64.

m .

it

,,

j-i

i

t

i_-

the cases heremaiter mentioned.

Secondary evidence

gg

may be

given of the existence.

Cases in

.

which

condition,

secondary evidence reiatmg to

CaseS

documents may be

/^j^

^

or

contents

of

document

a

,,

,

in

.

the

followmg

to

be in the

:

N '

WTjien the Original °

is

shown

or

appears '-'-

possession or power

given.

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

and when,

legally

after

bound

When

it,

the notice mentioned in section

such person. does not produce (5.)

to produce

it;

the existence, condition or

contents of the ori-

gioal have been proved to be admitted in writing

son

against

whom

it

is

sixty-six,

proved or by his

by the

per-

representative ia

interest (c.)

the

When

the original has been destroyed or

party offering

evidence

of its

contents

lost, or

when

cannot, for any

—

;

;

:

;

The Indian Evidence Act, own

other reason not arising from his

duce

easily

When

the origiaal

moveable

When

(e.)

i8i

\%']2.

default or neglect, pro-

in reasonable time

it

(d)

;

;

is

of

is

a

such a nature as not to be

;

the

original

public document within the

meaning of section seventy-four (/.)

copy

When

the original

is

a document of which a certified

permitted by this Act, or by any other law in force

is

in British India, to be given in evidence {g^

When

the originals consist of numerous accounts or

other documents which cannot conveniently be Court,

and the

whole

collection.

In cases

be proved

fact to

(a.),

and

(c.)

contents of the document

In case In case

is

any secondary evidence of the

admissible.

or

(/.)

a certified

evidence

{g'),

may

is

admissible.

copy of the document, but no

other kind of secondary evidence

In case

the general result of the

the written admission

(&.), (e.)

(d,),

is

examined in

is admissible.

be given as to the general result

of the documents

by any person who has examined them,

and who

in the examination of such documents.

66.

is skilled

Secondary evidence of the contents of the documents

refeixed to in section sixty-five, clause

unless the party proposing

has

to

previously given to the

power the dociiment scribed

by law

and

;

is,,

if

(a.),

give such

shall not be

secondary evidence

party in whose

possession

such notice to produce

no notice

is

given

prescribed

it

by

as is

or

pre-

law, then

such notice as the Court considers reasonable under the

cir-

cumstances of the case Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in

any other case in which the Court thinks

dispense with (1.)

Wnen

it

fit

to

:

the document to be proved

is itself

When, from the nature of the case, the must know that he w^l be required to produce (2.)

'

a notice

adverse party it

Rules as to notice to """f^ duce.

;

;

l82

;

The Indian Evidence Act, 1872.

When

(3.)

it

appears or

proved that the adverse party

is

has obtained possession of the original by fraud or force (4.)

When

party or his agent has the original

the adverse

in Court (5.)

When

document

loss of the (6.)

When

of reach Proof of signature

and handwriting of

person alleged to

67.

the adverse party or his agent has admitted the

of,

the person in possession of the document

out

or not subject to, the process of the Court.

document

If a

is

alleged to be signed or to have been

is

by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his

written wholly or in part

have signed or written

handwriting. 68.

document produced.

shall

If a

document

is

required

by law

to be

attested,

it

not be used as evidence until one attesting witness at

Proof of execution of docu-

least has

ment

if

re-

quired by

been called

for the

purpose of proving

its

execution,

there be an attesting witness alive, and subject to the pro-

cess of the Court

and capable of giving evidence.

law to be

If

69.

attested.

no such attesting witness can be found, or

Proof where no

document purports

attesting

Kingdom,

witness found.

it

to

must be

have been executed proved

that

the

in

signature

of the

the

the United

attestation

attesting witness at least is in his handwriting^

if

of

one

and that the

person executing the document

is

in the

handwriting of that person. Admission

70.

The admission

of a party to

an attested document of

of execution

by

party to attested document.

Proofwhen

its

execution by himself shall be sufficient proof of

tion as

against him, though

law to be 71.

it

its

execu-

be a document required

by

attested.

If the attesting witness denies or does not recollect the

attesting

witness denies the execution.

Proof of

document not required by

law to be

execution of the document,

its

execution

be proved by

other evidence. 72.

An

attested 73.

attested

document

may be proved

as

if it

not

required

by law

to

be

was unattested.

In order to ascertain whether a signature, writing, or person by

whom

attested.

seal is that of the

Compari-

written or made, any signature, writing,

son of

may

it

purports to have been or seal

admitted or

—

The Indian Evidence Act,

183

\Z'] 2.

proved to the satisfaction of the Court to have been written or

made hythat person may be compared with the one which

is to

be proved, although that signature, writing, or seal has

not been produced or proved for any other purpose.

The Court may any words or

direct

any person present in Court

sigtiature,

^ai wfth ^-Jted m' proved.

to write

figures for the purpose of enabling the Court to

compare the words or figures so written with any words or figures alleged to

have been written by such person.

Public Documents.

The following documents

74.

Documents forming the

1.

are public documents

Public documents.

:

acts or records of the acts,

of the sovereign authority,

(i.)

of official bodies and tribunals, and

(ii.)

of public

(iii.)

officers, legislative,

judicial,

and executive^

whether of British India, or of any other part of Her Majesty's dominions, or of a foreign country.

Public records kept in India of private documents.

2.

75.

AU

76.

Every public

having the custody of a public

officer

document which any person has a right

demand

that person on

such copy that

it

thereof, as the case

a true

is

may

and subscribed by such and

by law

to

a copy of

with a

fees therefor, together

title,

pnvate documents.

other documents are private.

be,

make use

on payment of the

certificate written at

and such

documents.

the foot of

certificate shall

seal

be dated

with his name and his

whenever such

of a

legal

pXuc

copy of such document or part

officer

shall be sealed,

it

to inspect, shall give

Certified

;

and

officer is

official

authorized

such copies so

certified

shall be called certified copies.

E^plairmUon. duty,

is

— Any

officer

who, by the exercise of

official

authorized to deliver such copies, shall be deemed to

have the custody of such documents within the meaning of this section. Proof of

77.

Such

certified copies

may

be produced in proof of the documents "'^"

contents of the public documents or parts of the public docu-

ments of which they purport

to

tion^of

be copies. co^'i*'^'^

—

:

Proof of documents.

official

:

The Indian Evidence Act, 1872.

184

other

:

:

may

The following public documents

78. p

be proved

as

,,

lOlloWS ^j

Acts, orders or notifications of the Executive Govern-

^

ment

:

of British India in

any of

departments, or of any

its

Local Government or any department of any Local Govern-

ment,

by the

by the heads

records of the departments, certified

of

those departments respectively,

by any document purporting

or

to

be printed by order of

any such Government

The proceedings

(2.)

by the

journals

of the Legislatures,

of those bodies

lished Acts or abstracts, or

by order

of

or

by pub-

copies purporting to be printed

Government

Proclamations,

(3.)

by

respectively,

orders

or

regulations

by Her

issued

Majesty or by the Privy Council, or by any department of

Her

Majesty's Government,

by

or

copies

extracts

contained in the London Gazette, or

purporting to be printed by the Queen's printer

The

(4.)

acts

of

the Executive or the

:

proceedings of the

legislature of a foreign country,

by journals

published

by

their

authority,

received in that country as such, or

by a copy

of the

the seal

country or

some public Act

thereof in

sovereign,

or

or

commonly under

certified

by a recognition

of the Governor General of India,

in Council

The proceedings

(5.)

by a copy thereof, or

of a mimicipal

body in British

of such proceedings, certified

by a printed book purporting

by the

India,

legal keeper

to be published

by

the authority of such body

documents of

Public

(6.)

any other

class

in

a

foreign

country,

by the thereof,

or of

duly

a

original, or

with a

by a copy

certificate

certified

by the

legal

keeper

under the seal of a Notary Public,

British Consul or diplomatic

certified

by the

officer

agent, that the copy

is

having the legal custody of the

— The Indian Evidence Act, 1872.

185

and upon proof of the character of the document

original,

according to the law of the foreign country.

Peesumptions as to Documents.

The Court

79.

-n

1

to be a certificate, certified copy, or

by law declared fact,

to be duly certified

by any officer

with Her Majesty,

who

is

is

any

Presumptionasto genuine"'^"

particular

by any

officer in

[Jged" '^°V^^-

in any Native State in alliance

duly authorized thereto by the

Governor General in Council, such document

is

to be admissible as evidence of

and which purports

British India, or

J-o 11 other document, which

presume every document purporting

shall

.

be genuine

to

substantially in the form

:

Provided that

and purports

to

be executed in the manner directed by law in that behalf.

The Court shall also presume that any any such document purports to be signed

when he

signed

it,

the

officer

by whom

or certified held,

character which he claims in

official

such paper. 80.

Whenever any document

purportiag to be a record or

is

produced before any Court,

memorandum

of the evidence, or

of any part of the evidence, given

proceeding

or

such evidence,

by a witness in a judicial before any officer authorized by law to take or to be a statement or confession by any pri-

Presumpdocuments as record of evidence,

soner or accused person, taken in accordance with law, and

purporting to be signed

such

officer as aforesaid,

that the document

is

by any Judge

by

the Court shall presume

genuine

the circumstances under which

made by the person

or Magistrate, or

signing

that

any statements

as to

was taken, purporting to be are true, and that such evi-

it

it,

dence, statement or confession

;

was duly taken.

of every presume the genuineness " ^ ' document purporting to be the London Gazette, or the Gazette 81.

The Court

shall

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 a journal, or to be ,

copy of a private Act of Parliament printed by the Queen s Printer, and of every document purporting to be a document

Presumption as to Gazettes, pei^^^pri-

^^%^y^__ ment, and other documents.

1

86

The Indian Evidence Act, 1872. by any law to be kept by any

directed

ment

is

person, if such docu-

kept substantially in the form required by law and

is

produced from proper custody. 82.

Presumption as to

document admissible in

When any document

is

produced before any Court,

purporting to be a document which, by the law in force for the time being in England or Ireland,

would be admissible in

England

without proof of seal or signature.

proof of any particular in any Court of Justice in England or Ireland, without proof of the

thenticating

it,

and

signed

it,

which

Presump-

83.

purports to

seal,

the person signing the judicial or

and the document for

it

presume that such that

it

stamp or signature au-

or of the judicial or of&cial character claimed

by the person by whom shall

seal, or

stamp or signature it

official

shall

be signed, the Court

held,

at

character

the

is

time

genuine,

when he

which he claims,

be admissible for the same purpose

would be admissible in England or Ireland.

The Court

shall

presume that maps or plans pui-porting

tion as to

maps or plans

made by authority of Govern-

ment.

Presumption as to

collections

of laws and reports of decisions.

be made by the authority of Government were so made,

to

and

are accurate

;

but maps or plans made for the purposes of

any cause must be proved 84.

The Court

shall

to

be accurate.

presume the genuineness of every book

purporting to be printed or published under the authority of the

Government

of

any country, and to contain any of the

laws of that country,

and of every book purporting to contain reports of decisions of the Courts of such country. Presump-

85.

tion as to

powers-ofattomey.

The Court

shall

presume that every document purport-

ing to

be a power-of-attorney, and to have been executed

before,

and authenticated by, a Notary Public, or any Court,

Judge, Magistrate, British Consul or Vice Consul, or repre-

Presumption as to certified

copies of foreign judicial

sentative of

Her Majesty

so executed

and authenticated.

or of the

Government of

India,

was

The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Her Majesty's dominions is genuine and 86.

accurate, if the

document purports

records.

ner which

is

certified

to

be

certified in

by any representative

of

any man-

Her Majesty

'

The Indian Evidence Act, 1872. Government

or of the

the

187

of India resident in sucli country to be

manner commonly

in use in that country for

the

certifi-

cation of copies of judicial records. 87.

The Court may presume

that

and that any published map or facts,

to

and which

by

whom

or at

which

it

may

is

produced

for

Presump'°

interest,

chart, the statements of -which

was written and published by the person, and place,

which

on matters of public or general

refer for information

are relevant

any book

books^ °Jf

P^'

'^^^

inspection,

its

at the time

and

purports to have been written

it

or published.

The Court may presume

88.

from a telegraph

that a message,

forwarded

Presump-

whom

such message teWraph purports to be addressed, corresponds with a message delivered messages, for

office to

transmission at the

ports to be sent

person to

the

office

from which the message pur-

but the Court shall not make any presump-

;

tion as to the person

by whom such message was delivered

for transmission.

89.

The Court

presume that every document, called

shall

Presumption as to

for

and not produced

after notice

stamped and executed in the manner 90.

produce, was attested,

to

rec[uired

Where any document, purporting

years old,

is

by

law.

or proved to be thirty

may presume

that the signature and every other part of such document,

which purports is

to be in

and

attested, that it

by the persons by whom

it

was duly executed and

purports to be executed

attested.

Explanation. if

the handwriting of any particular

in that person's handwriting, and, in the case of a

document executed or attested

—Documents

are said to be in proper custody

they are in the place in which, and under the care of the

person with

tody

is

whom

improper

or if the

of docu""^"'^ not

produced from any custody which the Court in Presump-

the particular case considers proper, the Court

person,

due execu-

they would naturally be;

if it is

but no cus-

proved to have had a legitimate

origin,

circumstances of the particular case are such as to

render such an origin probable.

This explanation applies also to section eighty-one.

documents '^""ty years

—

1

88

The Indian Evidence Act, 1872. lUmiSbraiions.

A

(a)

He

has been in possession of landed property for a long time.

produces from his custody deeds relating to the land showing his

title to it.

A

(6.)

is

proper.

produces deeds relating to landed property of which he

mortgagee. (c.)

The custody

The mortgagor

is

in possession.

The custody

is

B

which were deposited with him by

The custody

is

the

proper.

A, a connection of B, produces deeds relating to lands

possession,

is

for safe

in B's

custody.

proper.

Of the Exclusion of deal by documentary

Chapter VI.

Evidence. Evidence

When

91.

of terms of

,

the terms of a contract, or of a grant, or of any

.

.

contracts.

Other disposition of property, have been reduced to the form

^hefdi^-

°^ ^ document,

positions of

law by "

and in

all cases

to be reduced to the

in which any matter

is

required

form of a document, no evidence

property reduced to

shaU be given in proof of the terms of such

document,

other disposition of property, or of such matter,

document

itself,

in which

secondary evidence

or secondary evidence of is

contract, grant or

its

except the

contents in cases

admissible under the provi-

sions hereinbefore contained.

Exception

1.

—When

a public

officer is

be appointed in writing, and when

it is

required

is

to

shown that any par-

ticular person has acted as such officer, the writing

he

by law

by which

notb^^vjd^^^^ ^ ^,^^ j^^^ 2. —Wills -wTiAef-tbe-Indiaa Success on Act m ay

appointed need

Exception

i

be proved by the probate.

Explanation

which the to

are

—This

1.

section

applies

equally to cases

in

contracts, grants or dispositions of property referred

contained in one

document,

and

to

cases in which

they are contained in more documents than one.

Explanation

2.

—Where

there are

more

originals

than one,

one original only need be proved. Explanation

3.

— The statement, in any document whatever,

of a fact other than the facts referred to in this section, shall

not preclude the fact.

admission of oral evidence as to

the same

:

The Indian Evidence Act, 1872.

189

lUnisbraiions,

If a contract be contained in several letters, all the letters in

(as.)

which

it is

contained must be proved.

If a contract

(6.)

is

contained in a

bill

of exchange, the bUl of ex-

change must be proved. If a bill of exchange is dravra in a set of three, one only need

(c.)

be proved,

A

(d.)

contracts, in writing, with

upon certain terms.

A

The

B, for the delivery of indigo

contract mentions the fact that

B had

paid

the price of other indigo contracted for verbally on another occa-

sion.

Oral evidence indigo.

is

The evidence

A gives B

(e.)

offered that

money paid by B.

a receipt for is offered

The evidence

is

When

for the other

admissible.

is

Oral evidence

92.

no payment was made

of the payment.

admissible.

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, have been proved accord-

Exclusion of oral agreement.

ing to the last section, no evidence of any oral agreement or

statement shall be admitted, as between the parties to any

such instrument or their representatives in purpose of contradicting, varying, adding

interest, for

subtracting

or

to,

the

from, its terms Proviso.

lidate

(1.)

—^Any

fact

may

be proved which would inva-

any document, or w'hich would

any decree or order relating thereto tion,

;

any person to

entitle

such as fraud, intimida-

want of due execution, want of capacity in

illegality,

any contracting

party,

want

«)f

failure

of consideration,

or

mistake in fact or law. Proviso as to

(2.)

—The existence

of

any separate

any matter on which a document

not inconsistent with

its

terms,

may be

oral

is silent,

proved.

agreement

and which

is

In consider-

ing whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso

(3.)

—The existence of any separate

constituting a

oral agreement,

condition precedent to the attaching of any

(r/

^90

The Indian Evidence Act, i^T 2. under any such contract, grant or disposition of

obligation

may

property,

Proviso

(4.)

be proved.

—The existence of any

distinct subsequent oral

agreement to rescind or modify any such contract^ grant or disposition

of property,

which such

may be

contract, grant

proved, except in cases in

by

disposition of property is

or

law required to be 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

inconsistent with, the express terms of the contract.

Proviso

(6.)

— Any

may

fact

what manner the language

of a

be proved which

document

is related

shows in to exist-

ing facts. nVmtraiions. (a.)

A

policy of insurance is

from the (6.)

The

is lost.

A

on goods 'in ships from

The goods are shipped

Calcutta to London.'

which

effected

fact that that particular ship

policy, cannot

was made that

was orally excepted

be proved.

B

agrees absolutely in writing, to pay

of March, 1873.

ia a particular ship

Es. 1,000 on the

first

The fact that, at the same time, an oral agreement the money should not be paid till the thirty-first

March, cannot be proved. (c.)

An

estate

called

'

the

Bampur

tea

which contains a map of the property included in the

and was meant {d.)

A

map had to pass

contract,

of

institutes

and

The

sold

by a deed

fact that

land not

always been regarded as part of the estate

certain terms.

as to their value.

a suit against

B

as that provision

that such a mistake

to have the contract reformed.

B

to

A was This

for the

also prays that the contract

its provisions,

may prove

B

is

'

by the deed, cannot be proved.

upon

misrepresentation of

A

sold.

enters into a written contract with

the property of B,

(e.)

estate

work

certain mines,

induced to do so by a feet

specific

may be

performance of a

may be reformed

was inserted in

proved.

it

as to one

by mistake.

was made as would by law

entitle

A him

The Indian Evidence Act, 1872.

A orders

(/.)

B

goods of

by a

igi

which nothing

letter in

said as

is

and accepts the goods on delivery. B sues may show that the goods were supplied on credit

to the time of payment,

A for the price. A for a

term

A

(gi.)

B

still

unexpired.

B

sells

may prove

—

:

'

A

Bought of

a horse for

gives

B

Rs. 500.'

the verbal warranty.

A hires

(fe.)

A

a horse and verbally warranis him sound.

a paper in these words

B

lodgings of B, and gives

a card on which

is

written

Eooms, Ks. 200 a month.' A may prove a verbal agreement that these terms were to include partial board. A hires lodgings of B foy a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the

f

'

A may

subject of board.

'

not prove that board was included in the

terms verbally.

A applies

(i.)

B

the money.

a

suit for the

A and

(_/.)

to

B

for

amount

B make

A upon

by sending a

receipt for

In

keeps the receipt and does not send the money.

A may

prove

this.

a contract in writing to take effect upon the

The writing

happening of a certain contingency. sues

A

a debt due to

A

it.

may show

is left

with

B who

the circumstances under which

was

it

delivered.

When

93.

the language used in a document

ambiguous or

defective, evidence

which would show

its

may

is,

on

•

its face, J-

I'

not be given of facts

meaning or supply

its defects.

Exclusion of evidence to explain

amb^ous document.

JUMstraiions.

A

(a.)

agrees, in writing, to sell

a horse to

B

for

'Es. 1000, or

Rs. 1,500.'

Evidence cannot be given to show which price was to be given.

A

(i.)

deed contains blanks.

Evidence cannot be given of

which would show how they were meant to be 94.

When

and when

may

it

accurately to

not he given to show that

such

filled.

language used in a document applies

it

facts

is

I

plain in

itself.

existing facts, evidence

was not meant

to apply to

to

sells

bighas.'

dence

A

may

against ap-

document

l^f^

facts. Illustration,

A

Exclusion

B,

by

deed,

•

my

has an estate at

estate

Bampur

at

Eampur

containing

containing 100 bighas.

100 Evi-

not be given of the fact tbat the estate meant to be sold

was one situated

at a different place Bind of a different size.

192

The Indian Evidence Act, 1872.

Evidence

When

95.

language used

ment unmeaning in reference to existing

but

document

in a

as to docu-

is

plain in

itself,

unmeaning in reference to existing facts, evidence maybe given to show that it was used in a peculiar sense. is

facts.

IJluglraiion.

A sells to B, by deed, my house in Calcutta.' A had no house in Calcutta, but it appears that '

B

Howrah, of which

had been

he had a house at

in possession since the execution of

the deed.

These

facts

may be proved

to

show that the deed

related to the

house at Howrah. Evidence

When

96.

the facts are such that the language used might

as to appli-

cation of whicli can apply to

one only of several

have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or

may

things, evidence

be given of facts which show which of

those persons or things

it

was intended

to apply to.

persons or things.

lUiadraiions. (a.)

A

agrees to

sell

two white horses. of

to B, for Es. 1,000,

Evidence

may be

them was meant. (6.) A agrees to accompany

B

'

my

white horse.'

A

has

given of facts which show which

to Haidarabad.

Evidence

may be

given of facts showing whether Haidarabad in the Dekkhan or Hai-

darabad in Sindh was meant. Evidence as to application of

language to one of two sets of facts,

97.

When

language used applies partly to one set of

the

existing facts,

and partly

the whole of

it

may be

to another set of existing facts, but

does not apply correctly to

given to show to which of the two

either, it

evidence

was meant

to

to

neither of which the whole correctly applies.

apply. TJkisbration.

A

agrees to seU to

B

'

my

land at

X

in the occupation of T.'

A

has land at X, but not ia the occupation of T, and he has land in the occupation of T, but

it is

not at X.

showing which he meant to Evidence asto^meanillegible

98.

Evidence

yigg^ijje or

may

Evidence

may be

sell.

be

given

to

show the meaning

of

not commonly intelligible characters, of foreign,

obsolete, technical, local,

and provincial expressions, of abbre-

chaiacters,

&c.

given of facts

viations and of words used in a peculiar sense.

The

Indian Evidence Act, 1872.

193

IWvLsiratwn,.

A, a sculptor, agrees to

and modelling

meant 99.

to

tools.

sell to

B

Evidence

my mods.' A has

'aU

may be

both models

given to show which he

sell.

Persons

who

representatives in

are not parties to a document, interest,

may

or their

give evidence of any facts

Who may dem;e^f

tending to show a contemporaneous agreement varying the

^7^^"'

terms of the document.

terms of document. 'nkisbtaiiom,.

A

and

cotton, to

B make

a contract in writing that

be paid for on delivery.

At

B

shall sell

A

the same time they

certain

make an

oral agreement that three months' credit shall be given to A.

conld not be shown as between C, if

it

A

and B, but

it

This

might be shown by

affected his interests.

100. Nothing in this chapter contained shall he taken to afifect

any

of

the provisions

of the

Indian Succession Act

(X. of 1865)' as to the construction of wills. ^

Saving of of Indian^ Successsion Act relating to wills.

— The Indian Evidence Act, iS/i.

194

Part

III.

PEODUCTION AND EFFECT OF EVIDENCE. Of the Btjeden of Proof.

Chapter VII. Burden of

Whoever

101.

prooC

any

legal

right

facts -which

When

he

desires

or liability dependent on the

asserts,

a person

fact, it is said

any Court to give judgment as to

must prove that those

bound

is

existence

of

facts exist.

to prove the existence

of

any

that the burden of proof lies on that person. Tdustraiwns.

(a.)

for a

A

desires

a Court to give judgment that

crime which

A

says

A must prove that B (J)

A desires

B

be punished

has committed the crime.

a Court to give judgment that he

by reason

and which B denies, to be true. A must prove the existence of those

to cer-

is entitled

of facts which he

asserts,

facts.

The burden of proof in a suit or proceeding lies on person who would fail if no evidence at all were given

102.

On whom proof lies.

shall

has committed.

tain land in the possession of B,

burden of

B

that

on either

side.

IWastraiicns. (a.)

A

A

sues

asserts,

B

was

for land of

left to

A

which

by the

B

is

in possession, and which, as

will of C, B's father.

If no evidence were given .on either side,

B

would be

entitled to

retain his possession.

Therefore the burden of proof (&.)

A

sues

B

for

is

on A.

money due on a bond.

The execution of the bond is admitted, but obtained by fraud, which A denies. If no evidence were given on either side,

bond

is

not disputed and the fraud

Therefore the burden of proof

is

is

A

B

it

would succeed, as

not proved.

on B.

says that

was

the

The Indian Evidence Act, The burden

103.

1872.

195

of proof as to any particular fact lies on

that person

who wishes

unless

provided by any law that the proof of that fact

it is

the Court to believe in

its existence,

Burden of plrdcufar" ^^'^'

on any particular person.

shall lie

IWastration.

A

(a.)

B

prosecutes

B

for theft,

A must

admitted the theft to 0.

B

and wishes the Court to believe that prove the admission.

wishes the Court to believe that, at the time in question, he was

He must

elsewhere.

104.

The

prove

burden

it.

proving

of

any

fact

necessary to

l*®

proved in order to enable any person to give evidence of any

g ^j „ proving

{

be proved to

fact to

other fact

is

on the person who wishes

to give

such evidence,

make Illustrations.

A

(a.)

evidence .

wishes to prove a dying declaration by B.

A

must prove

admissible.

B's death. (b.)

lost

A

wishes to prove, by secondary evidence, the contents of a

docum«it.

A

must prove

105.

When

that the document has been lost.

a person

is

accused of any offence, the burden

of proving the existence of circumstances bringing the case

^^^^

°^

that case

within any of the General Exceptions in the Indian Penal comes Code, or within any special exception or proviso contained in

any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations. (a.)

A, accused of murder, alleges that, by reason of unsoundness of

mind, he did not know the nature of the

The burden

of proof is

act.

on A.

A, accused of murder, alleges that,

(6.)

by grave and sudden pro-

was deprived of the power of self-control. The burden of proof is on A. of the Indian Penal (c.) Section three hundred and twenty-five Code provides, that whoever, except in the case provided for by sec-

vocation, he

tion three

thirty-five, voluntarily causes grievous

hurt,

be subject to certain punishments.

shall

A

hundred and

is

charged with voluntarily causing grievous hurt under section

three hundred and twenty-five.

^'ceptions.

The Indian Evidence Act, 1874.

196

The burden section three

106. "When any fact

Burden of fact especially within

of proving the circumstances, bringing the case under

hundred and

thirty-five, lies is

on A.

^ny person, the burden of proving that

I'now-

knowledge of

especially within the

upon him.

fact is

Ilhish-ations.

When

(a.)

a person does an act with some intention other than

that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (6.) A is charged with travelling on a railway without a ticket.

The burden Burden of

When

107.

the question

shown that he was

^T^^ it is

deaa"of

have been

108.

and

in thirty

B^^^" f proving that person isaiivewho

been h

d

of for seven

Burden of proof as to

it

y®^^^

When

partners,

landlord

and tenant,

^he person

who amrms

^^^^

in rela-

acti've

con

him

if

he

is alive is

on

-^ it.

whether persons are partners,

is

landlord and tenant, or principal and agent, and

^hown that they have been

it

acting as such, the

has been

burden of

proving that they do not stand, or have ceased to stand, to

each other

m those relationships respectively, is

who affirms it. HQ. When

the question

is

_

111-

^

which he

is

shown

of proving that he

is

not the owner

that he

Where

is

on the person

whether any person •'

_

-vybo affirms

is

it.

alive or dead,

is

naturally have heard of

*^^ question

proof as to ownership.

where

man

the burden of proving that he ju

i

l^i"^*i6n

tions

burden

whether a

Burden of

faith

alive within thirty years, the

is

of anything of

Proof of

or dead,

the question

principal

good

is alive

on the person who af&rms

alive,

i

relation-

ship in the cases of

man

is

is

^y t^ose who would

^^^'

whether a

is

on him.

proved that he has not been heard of for seven

is

had been ,

ticket is

dead

°^ proving that he

known

had a

of proving that he

to

^

is

owner

be in possession, the is

on the person

not the owner,

there is a question as to the good faith of a

transaction between parties, one of

whom

stands to the other

in a position of active confidence, the burden of proving the

good faith of the transaction

is

on the party who

*^°^ °^ active confidence.

fidence.

is

in a posi•

Illustrations. (a.)

The good

faith

of

a sale by a

question in a suit brought by a client.

good

faith of the transaction is

client

to an attorney

is

The burden of proving

on the attorney.

in

the

—

;

;

;

;

The Indian Evidence Act, The good

(5.)

is

faith of

the good faith of the transaction

The

fact

\%'] 2.

proof that he

is

and any

marriage between his mother

mother remaining unmarried,

the

197

was born during the con-

man, or withia two hundred and eighty days tion,

;

by the son. The burden of proving is on the father.

that any person

tinuance of a valid

;

a sale by a son just come of age to a father

in question in a suit brought

112.

;

after its dissolu-

shall

be conclusive

the legitimate son of that man, unless

it

Birth

dur-

rw^co'n^^l^^'^e

legitimacy.

can

be shown that the parties had no access to each other at any

when he

time

113. of

A

could have been begotten.

notification in the Gazette of India that

ceded to any Native

been

has

British territory

any portion State,

Proof of territory.

Prince or Euler, shall be conclusive proof that a valid cession of such territory took place

at

the date mentioned in such

notification.

114.

which the

The Cour* may presume the existence it

fact

thinks likely to have happened, regard being had to

common

public

any

of

course

human conduct and

of natural events,

and private business in

their relation

to

the facts of

the particular case. IlVastrations.

The Court may presume (a.) That a man who is in possession

of stolen goods soon after the

theft is either the thief, or has received the stolen, unless (J.)

he can account

That an accomplice

is

goods knowing them to be

for his possession

unworthy of credit, unless he

corrobo-

is

rated in material particulars (c.)

That a

bill

of exchange, accepted

or

endorsed, was

siccepted

or endorsed for good consideration id.)

That a thing or

state of things

which has been shown to be in

existence within a period shorter than that within which such things

or states of things usually cease to

and

(e.)

That

(/.)

That the common course

judicial

official acts

exist, is still in existence

have been regularly performed

of business

has been followed in

particular cases {g.)

That evidence which could be and

produced, be unfavourable to the person {Ji.)

That

if

a

man

refuses

to

is

not

produced would,

who withholds

answer a

if

it

question which

he

is

Court

may

existence ^'"

'^^^^

: :

;

^9^

:

:

:

:

The Indian Evidence Act, 1872. not compelled to answer by law, the answer, favourable to (i.)

would be un-

if given,

him

That when a document creating an obligation

is in

the hands

of the obligor, the obligation has been discharged.

But the Court

shall also

have regard to such

facts as the following,

maxims do or

not apply to the par-

in considering whether such

do*

ticular case before it

As

to illustration

rupee soon after specifically,

but

was

it is

(a)

—A

shop-keeper has in

stolen,

his

and cannot account for

a marked

tiU

possession

its

continually receiving rupees in the course of his

business;:

As

—

(6) A, a person of the highest character, is tried a man's death by an act of negligence in arranging cer-

to illustration

for causing

tain machinery.

B, a person of equally good character,

who

also

took part in the arrangement, describes precisely what was done, and

admits and explains the

As A,

to illustration (6)

B and

common

carelessness of

—A crime

is

A

and himself:

committed by several persons.

C, three of the criminals, are captured on the spot

Bach gives an account

apart from each other.

and kept

of the crime impli-

cating D, and the accounts corroborate each other in such a

manner

as to render previous concert highly improbable

As

man

to illustration

of business.

(c)

—A, the

drawer of a biU of exchange, was a

B, the acceptor, was a young and ignorant person,

completely under A's influence

As

to illustration {&)

—It

course five years ago, but

to illustration

it

proved that a river ran in a certain

is

known

might change

since that time which

As

is

(e)

—A

its

that there have been floods

course

judicial act, the regularity of

which

question, was performed under exceptional circumstances

As It

is

to illustration (f)

shown

—The question

is,

whether a

letter

is in

:

was

received.

to have been posted, but the usual course of the post was

interrupted by disturbances

As

to illustration (g)—

A

man refuses

to produce a

document which'

would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family: As to illustration (fe) A man refuses to answer a question which

—

he

is

not compelled by law to answer, but the answer to

cause loss to

him

it

might

in matters unconnected with the matters in relation

to which he is asked

As

to illustration

{%)

— A bond

is

in possession

the circumstances of the case are such that he

of the obligor, but

may have

stolen

it.

The Indian Evidence Act, 1872.

199

Chapter VIII.^Estoppel.

When

115.

omission, to

person has, by his declaration,

one

believe a tiling

and

to be true

another

or permitted

intentionally caused

act

Estoppel.

person

upon such a

to act

or

belief,

neither he nor his representative shall be allowed, in any suit or proceeding between himself sentative, to

and such person or

deny the truth of that

his repre-

thing.

IJhiijii/ration.

A

intentionally

and

falsely leads

B

land

to believe that certain

B to buy and pay for it. The land afterwards becomes the property of A, and A seeks

belongs to A, and thereby indnces

to set

aside the sale on the ground that, at the time of the sale, he had no title.

He must

116.

not be allowed to prove his want of

title.

Notenant.of immoveable property, or person claiming

through such tenant, tenancy,

shall,

be permitted to

during the continuance of the

deny that the

of such

landlord

tenant had, at the beginning of the tenancy, a

Estoppel '^"^'"'

°

title

to

such

immoveable property; and no person who came upon any

immoveable property by the

permitted to deny that such person

session thereof, shall be

had a

license of the person in the pos-

,

title to

.

such possession at the time when

was given. 117.

No it ;

deny that

IT such license

ox

acceptor of a bUl of exchange shall be permitted '

to deny that the drawer

endorse

1

had authority

to

draw such

bill or to

nor shall any bailee or licensee be permitted to

his bailor or licensor had,

at

the

time

when

bailment or license commenced, authority to make such

ment

bail-

or grant such license.

Explarmikm

(1.)

—The

deny that the biU was it

the

a biU of exchange

acceptor of

really

drawn

may

by the person by whom

purports to have been drawn.

Explanation

(2.)

—If

a bailee delivers the goods

a person other than the bailor, he

had a right to them as against the

may

bailed to

prove that such person

bailor.

^\°

^

person in possession.

Estoppel of acceptor of bill of bailee, or

^"^™^^^-

— 200

The Indian Evidence Act, 1872. Of Witnesses.

Chapter IX.

Who may

118. All persons

testify.

shall

Court considers that

be competent to testify unless the

thej'^

are prevented from understanding

the questions put to them, or from giving rational answers to those questions,

by tender

extreme old age,

years,

disease,

whether of body or mind, or any other cause of the same kind.

Explanation. unless he

is

—A

lunatic

is

not

incompetent to

testify,

prevented by his lunacy from understanding the

him and giving rational answers to them. 119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs but such writing must be written and the signs made in open Court. Evidence so questions put to

Dumb

wit-

nesses.

•

;

given shall be deemed to be oral evidence.

/

Parties to

120.

In

all

civil

proceedings the parties to the

suit,

and

civil suit,

and

their

the husband or wife of any party to the

wives or hnsbands.

petent witnesses.

Husband

son, the

or wife of person under criminal trial.

Judges and Magistrates.

suit,

shall be

com-

In criminal proceedings against any per-

husband or wife of such person,

respectively,

shall

be a competent witness. 121.

No Judge

or Magistrate shall, except

order of some Court to which he to

is

upon the

special

subordinate, be compelled

answer any questions as to his own conduct in Court as

such Judge or Magistrate, or as to anything which came to

knowledge in Court as such Jiidge or Magistrate but he may be examined as to other matters which occurred in his his

;

presence while he was so acting. TU.uiiraiicm.fi.. (a.)

sition

A, on his trial before the Court of Session, says that a depoB cannot be was improperly taken by B, the Magistrate.

compelled to answer questions as to

this,

except upon the special

order of a superior Court. (6.)

A is

accused before the Court of Session of having given

evidence before B, a Magistrate.

B

cannot be asked what

A

false said,

except upon the special order of the superior Court. is accused before the Court of Session of attempting to (c.)

A

—

The Indian Evidence Ac^, i8y2. murder a Police

B may

201

ofBcer whilst on his trial before B, a Sessions Judge.

be examined as to what occurred.

122.

No

peUed to

who

person

is

or has been married, shall be

any communication made

disclose

marriage by any person to

whom

he

is

to

or has

com- communi-

him during

been married

;

^u^ng mai>iage.

nor shaU he be permitted to disclose any such communication, unless the interest,

person

who made

consents, except in suits between married persons,

or proceedings

which one married person

in

any crime committed against the

No

123.

affairs

the

one shall

be

is

prosecuted for

give

any evidence

other.

permitted to

from unpublished

derived

or his representative in

it,

official

records

relating

to

any

Evidence of state?'"

of State, except with the permission of the ofBcer at

head

of

the department concerned,

withhold such permission as he thinks

No

124.

official

siders that the public interests

No

shall give

or

fit,

public officer shall be compelled to disclose com-

munications made to him in

125.

who

confidence,

would

Magistrate or Police

suffer

when he

by the

officer shall

con-

official

cations,

disclosure.

be compelled to

informa-

say whence he got any information as to the commission of c°^mis-°

any •'

s'°" °^

offence.

offences.

No

barrister, attorney,

pleader or vakil, shall at any

time be permitted, unless with

his client's express consent, to

126.

any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has disclose

become acquainted in the course and

for the purpose of his

professional employment, or to

disclose

him to his client employment :

and

in the course

Provided that nothing in this

any advice given by

for the

section

purpose of such

shall

protect from

disclosure •

,Q.)

Apy

sich communication made in furtherance of any

criminal purpose '^ (2.)

Any

fact

;

observed by any barrister, pleader, attorney,

profes-

^"n^J.^?™ tion.

202

The Indian Evidence Act, 1872. or vakfl, in the

course of his

employment as such, showing

that any crime or fraud has heen committed since the com-

mencement It

is

of his employment.

immaterial whether the attention of such barrister,

attorney or vakil was or was not directed to such fact by or

on behalf of his Explanation.

client.

— The

tinues after the

obligation

employment has

A, a

gery,

As

client,

man known

purpose, this communication

A, a

client,

session of property

you to

'

I have committed for-

to defend me.'

the defence of a

(6.)

—

says to B, an attorney

and I wish you

to be guilty is not a criminal

protected from disclosure.

is

says to B, an attorney

by the use

—

'

I wish to obtain pos-

of a forged deed

on which I request

sue.'

This communication, being made in furtherance of a purpose, (p.)

con-

ceased.

IllMstrations. (fls.)

in this section

stated

is

criminal

not protected from disclosure.

A, being charged with embezzlement, retains B, an attorney,

to defend him.

In the course of the proceedings,

B

observes that

an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book, at the commencement of his employment. This being a fact observed by

B

in the course

showing that a fraud has been committed since of the proceedings, Sectioni26 to apply to ters,

&c.

Privilege

by'vohn-'^ teering evidence.

127.

The

it is

not protected from disclosure.

provisions

of section one

barristers, pleaders, attorneys

own

hundred and twenty-

apply to interpreters, and the clerks or servants of

gj^ shall

128.

employment the commencement of his

If

any party

and

vakils.

to a suit gives

evidence therein at his

instance or otherwise, he shall not be

consented thereby to such disclosure as tion one hundred and twenty-six or proceeding calls

witness,

he

any such

shall be

;

and

is if

deemed

to

have

mentioned in

any party

sec-

to a suit

barrister, attorney, or vakil as

deemed

to

have consented to such

a

dis-

closure only if he questions such barrister, attorney or vakfl.

on matters which, but at liberty to disclose.

for

such question, he would not be

:

The Indian Evidence Acf, i8y2.

No

129.

any

203

one shall be compelled to disclose to the Court ConSden-

communication which has taken place be- munk™ ™"^ tween him and his legal professional adviser, unless he offers J'°°j confidential

may be compelled to communications as may appear to the be known in order to explain any evidence

himself as a witness, in which case he

any such

disclose

Court necessary to

which he has given, but no 130.

Ho

witness

who

pelled to produce his

document pledgee

in

virtue

is

mortgagee,

or

which might tend

others.

not a party to a suit shall be com-

title-deeds

of

which

or

advisers.

any property,

to

he

or

any

any property J -r r J

holds

as

Production deeds'^of «''?"essnot a party.

any document the production of

to criminate

him, unless he has agreed in

them with the person seeking the production of such deeds or some person through whom he claims.

writing to produce

131.

No

one shall be compelled to produce documents in

his possession

which any other person would be

entitled to

refuse to produce if they were in his possession, unless such last

mentioned person consents to their production.

A

Production

ments ^therpe" son, having possession,

not be excused from answering any

could re-

question as to any matter relevant to the matter in issue in

produce.

132.

any

suit

witness

or

shall

any

in

civil

or

criminal

proceeding,

upon the

ground that the answer to such question will criminate, or

Witness cused from

may

tend directly or indirectly to criminate, such witness, or on ground that it will expose, or tend directly or indirectly to expose, *g'j.^i']i

such witness to a penalty or forfeiture of any kiud

criminate.

Provided that no such answer, which a witness shall be

Proviso.

compelled to give, shall subject him to any arrest or prosecution,

or be

except

proved against him in any criminal proceeding, prosecution

a

for

giving

false

evidence

by

such

answer. 133.

An

accomplice shall be a competent witness against

an accused person because

it

;

and a conviction

is

not

illegal

Accom-

merely ^

"^^'

proceeds upon the uncorroborated testimony of an

accomplice. 134.

No

particular „

number

of witnesses

be required for the proof of any

shall

in any case

Number witnesses

,

fact.

of

—

The Indian Evidence Act, 1872.

204

Chaptee X. Order of

jij^g

^35

Of the Examination of Witnesses.

order

examined

witnesses,

time being relating to

shall

witnesses

whicli

in

production and exami-

produced ^

are

and

be regulated by the law and practice for the civil

and criminal procedure respec-

absence of any such law, by the discretion

tively, and, in the

of the Court. Judge

to

When

136_

give evidence of

any

ask the party proposing to give the

e'vi-

either party proposes to

the Judge

may

to admissi-

fact,

evidence.

dencB in what manner the alleged relevant

and the Judge

;

that the fact,

if

shall

fact, if

proved, would be

admit the evidence

is

admissible only upon proof of

some other

which evidence fact,

mentioned fact must be proved before evidence fact

mentioned,

first

proof of such

he thinks

proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of

•.

if

fact,

unless

is

such last-

given of the

the party undertakes

and the Court is

satisfied

to

give

with such under-

taking.

If the relevancy of one alleged fact depends alleged fact being tion, either

first

proved, the Judge may, in his discre-

permit evidence of the

the second fact

is

upon another

first fact

to

be given before

proved, or require evidence to be given of

the second fact before evidence

is

given of the

first fact.

Hhish-ations. It is proposed to prove a statement about

(a.)

a person alleged to be dead, which, statement

a relevant fact by is

relevant

under

section thirty-two.

The

fact that the

person

is

dead must be proved by the person

proposing to prove the statement, before evidence

is

given of the

statement. It

(6.)

is

proposed to prove, by a copy, the contents of a document

said to be lost.

The

that the original is lost

fact

must be proved by the person

proposing to produce the copy, before the copy (c.)

been

A

is

is

produced.

accused of receiving stolen property knowing

it

to have

stolen.

It is

proposed to prove that he denied the

property.

possession

of the

The Indian Evidence Act, 1872.

205

The relevancy of the denial depends on the identity of the property. The Court may in its discretion, either require the property to be identified before the denial

of the possession

is

proved, or

permit the denial of the possession to be proved before the property is identified. (d.)

It is

proposed to prove a

fact (A)

which

the cause or efiect of a fact in issue.

proved, or

A

either permit

may

effect of

exist before the

the fact in issue.

to be proved before B,

require proof of B,

been

There are several interme-

can be regarded as the cause or

The Court may is

said to have

and D) which must be shown to

diate facts (B, fact (A)

is

C and D

or

D

before permitting

proof of A.

The examination

137.

of a witness

by the party who

him shall be called his examination-in-chief. The examination of a witness by the adverse party

calls

chief.

shall be

of

Cross'-ex-

"""^

called his cross-examination.

The examination

Examlna-

a witness, subsequent

the

to

cross-

examination by the party who called him, shall be called his

'°"'

Re-exami°^''°°-

re-examination. 138. Witnesses

shall

the adverse party

so

be

first

desires)

examined-in-chief, then

then

cross-examined,

(if

the

(if

party so desires) be re-examined.

The examination and

cross-examination

must

relate

to

Order of tions.

Direction of re-examination.

relevant facts, but the cross-examination need not be confined to the facts to

which the witness

testified

on his ex-

amination-in-chief.

The re-examination

shall

be directed to the explanation of

matters referred to in cross-examination

by permission

is,

the

adverse

;

and

if

new matter

of the Court, introduced in re-examination,

party

may

further

cross-examine

upon

that

matter.

A

summoned to produce a document does not become a witness by the mere fact that he produced it, and 139.

person

cannot be cross-examined unless and until he

is

called as a

witness.

140. Witnesses

re-examined.

to

character

may ^

be cross-examined and

Cross-ex-

of person '^^'^j'^

'°

produce a document. Witnesses to character.

206

The hidian Evidence Act, 1872.

Leading

Any

141.

question suggesting the answer which the person

questions.

putting

wishes or expects to receive,

it

is

a leading

called

question.

When they

142.

Leading questions must not,

objected

if

to

by the

must not be

adverse party, be asked in an examination-in-chief, or in a

asked.

re-examination, except with the permission of the Comt.

The Court

permit leading questions as to matters

shall

which are introductory or undisputed, or which have, in

its

opinion, been already sufficiently proved.

When

they

asked.

cross-examina-

be asked in

tion.

Evidence

144.

as to

matters in

may

143. Leading questions

may be

Any

witness

whether any

may be

whUst under examination,

asked,

grant or other disposition of property,

contract,

writing.

as to

which he

giving evidence, was not contained in a

is

document, and

if

any statement

as to

he says that

it

was, or

if

he

is

about to

make

the contents of any document, which, in

the opinion of the Court, ought to be produced, the adverse

party

may

document

object to

produced, or until facts have been proved which

is

who

the party

entitle

evidence of

such evidence being given until such

called

secondary

the witness to give

it.

Explanation.

—

^A witness

may

give oral evidence of state-

ments made by other persons about the contents of documents

if

such statements are in themselves relevant

facts.

niuatration.

The question

is,

deposes that he heard of theft,

and I

will

A assaulted B, A say to D— B

whether

'

be revenged on him.'

as showing A's motive for the assault, it,

though no other evidence 145.

Cross-ex-

A

amination

witness

may

statements

previous statements

and relevant to matters

in writing.

being shown contradict

to

This statement

is relevant,

letter.

cross-examined

as

previous

to

in writing, or reduced into writing, in

question, without such

him, or being proved

him by

me

and evidence may be given of

given about the

be

made by him

as to

to

is

wrote a letter accusing

;

but

if it

is

writing

intended

the writing, his intention must, before

;

;

;

The Indian Evidence Act,

207

\%'] 2.

the writing can be proved, be called to those'parts of

it

wbicli

are to be used for the purpose of contradicting him.

When

146.

a

witness

he

cross-examined,

is

addition to the questions hereinbefore referred

may,

in

be asked

to,

to test his veracity

(2)

to discover

(3)

to

shake

who he his

cross-ex-

amination.

any questions which tend (1)

Questions

is,

and what

by

credit,

is

his position in life

injuring

his

;

or

character,

although the answer to such questions might tend directly or

indirectly

directly

or

to

criminate him,

indirectly

to

or

might expose

expose him to

a

or tend

penalty or for-

feiture.

If

147.

any such question

a matter relevant to

relates to

the suit or proceeding, the provisions of section one hundred

When

and thirty-two

compelled

148.

If

shall apply thereto.

any such question

relates to a matter not relevant

to the suit or proceeding, except

of the witness

credit

shall decide

answer is

it,

by

in

so

injuring his

as

far

affects

it

character,

Court

the

whether or not the witness shall be compelled to

and may,

if it

not obliged to answer

thinks it.

fit,

warn the witness that he

In exercising

its

discretion, the

Court shall have regard to the following considerations (1.)

the

Such questions

—

:

are proper if they are of such a nature

that the truth of the imputation conveyed

by them would

seriously affect the opinion of the Court as to the credibility

of the witness on the matter to (2.)

Such questions

which he

testifies

are improper if the imputation

which

they convey relates to matters so remote in time, or of such a character, that the truth of the imputation

would not

affect,

or would affect ia a slight degree, the opinion of the Court as to the credibility of the witness

on the matter to which he

testifies (3.)

Such questions

are improper if there is

a great dis-

proportion between the importance of the imputation agaiast

the

evidence;

witness's

character

made

and the importance of his

wit-

'° ^"^^^''•

Qfsaxi. to

"^^'"^^^gj. tion shall bfi asked.

and when

^^elled to answer.

2o8

The Indian Evidence Act, 1872. The Court may,

(4.)

if

it

sees

fit,

draw, from the witness's

refusal to answer, the inference that the

answer

if

given would

be unfavourable. Question

No

149.

such question as

hundred and forty-eight ought

asked reasonable grounds.

asking

referred

to

in

section

one

to be asked, unless the person

has reasonable grounds for thinking that the impu-

it

wMch

tation

is

it

conveys

is

weU-founded.

lllustraticma. (a.)

A

portant witness

a dakait.

is

the witness whether he

A pleader is

(6.)

by an attorney or vakil that an imThis is reasonable ground for asking

barrister is instructed

witness

is

pleader,

gives

is

a dakait.

informed by a person in Court that an important

The informant, on being questioned by the

a dakait.

satisfactory

reasons

for

statement.

his

reasonable ground for asking the witness whether he

A

(c.)

whom

witness, of

random whether he *»

is

nothing whatever

a

dakait.

is

is

This

is

a

a dakait.

known,

is

asked at

There are here no reasonable

grounds for the question. (d.)

A witness,

of

whom

tioned as to his

mode

answers.

may

This

nothing whatever

of Hfe

and means of

is

known, being ques-

living, gives unsatisfactory

be a reasonable ground for asking him

if

he

is

a

dakait.

150.

Procedure case of question

asked

asked without reasonable grounds,

^^^

^"'^ ,

scandalous questions,

it

any such question was

may,

if it

was asked by

vakil or attorney, report the circum-

barrister, pleader,

wMch

High Court

or

other authority to

such barrister, pleader, vakil, or attorney n

.

,

• i-

is

subject in

•

the exercise ot his proiession. \^\.

Indecent

which

The

may

Court

forbid

any questions or inquiries

indecent or scandalous, although such ° questions or inquiries may have some bearing on the quesit

regards as °

tions before the to

Court, unless they relate to facts in issue, or

matters necessary to

whether or not the

o

of opinion that

is

stances of the case to the

reasonable grounds. ^

,

If the Court

'•^^'

stions

intended to

it

annoy.

in

-"-^^

be

known

in

order

determine

facts in issue existed,

Court shall forbid any question which appears to

to be intended to insult or annoy, or which, itself,

to

though proper

appears to the Court needlessly offensive in form.

The Indian Evidence Act, 1872.

When

153.

a witness has been asked and

any question which as

it

is

209

has answered

Exclusion

relevant to the inquiry only in so far

to contra-

by injuring his but contradict him

tends to shake his

credit

evidence shall be given to ° falsely, he may afterwards

; '

charged

be

character, if

no

he answers

^n'swersto questions testing

with

giving

false

veracity.

evidence.

Exception

1.

—If a witness

is

previously convicted of any

may be

and denies

crime

it,

evidence

given of his previous conviction.

Exception to

asked whether he has been

2.

—

impeach his

If

a witness

impartiality,

he

facts suggested,

may

is

asked any question tending

and answers

it

by denying the

be contradicted. Illustration.

A

(a.)

claim against an underwriter

is

resisted

on the ground of

fraud.

The claimant

made

asked whether, in a former transaction, he had not

is

He

a fraudulent claim.

Evidence is offered to

The evidence (6.)

(c.)

A is denies

is

situa-

He denies it.

is offered to

The evidence

claim.

asked whether he was not dismissed from a

is

tion for dishonesty.

Evidence

it.

show that he did make such a

inadmissible.

is

A witness

denies

show that he was dismissed for dishonesty.

not admissible.

A affirms that on a certain

day he saw

B at Lahore.

asked whether he himself was not on that day at Calcutta.

He

it.

Evidence

is

offered

show

to

that

A

was

on that

day at

Cal-

cutta.

The evidence which

B

affects

is

his

admissible, not credit,

as

contradicting

A

on

a

fact

but as contradicting the alleged fact that

was seen on the day in question in Lahore. In each of these cases the witness might, if his

denial were false,

be charged with giving false evidence. whether his family has not had a blood feud {d.) A is asked with the family of B against whom he gives evidence.

He

denies

it.

He may

be contradicted on the ground that the

question tends to impeach his impartiality.

154.

The Court may,

in its discretion, permit the person

Questions

by party

to

2IO his own witness.

Impeaching credit of witness.

—

;

;

;

The Indian Evidence Act, 1872. who

him which might

a witness to put any questions to

calls

be put in cross-examination by the adverse party.

The

155.

credit

following ways

by the adverse

the Court, by the party

By

(1.)

from

who

the evidence

their

may be impeached

witness

of a

of

in the

party, or, with the consent of

him persons who calls

:

testify

that they,

knowledge of the witness, believe him to be un-

worthy of credit

By

.(2.)

'V

nadtne

proof

offer of

that

the

has been bribed, or has

witness

a bribe, or has received any other corrupt

inducement to give his evidence

By

(3.)

proof of former statements inconsistent

part of his evidence which

"When a man

(4.)

may

ravish, it

immoral

is

is liable to

with any

be contradicted

prosecuted for rape or an attempt to

be shown that the prosecutrix was of generally

character.

Explanation.

unworthy of

—A

credit

witness declaring another witness to be

may

not,

upon his examination- in-chief

give reasons for his belief, but he

may

be asked his reasons in

cross-examination, and the answers which he gives cannot be contradicted, though, if they are false,

he

may

afterwards be

charged with giving false evideiice. Illustrations. (a).

C

A

sues

B

says that

for the price of

lie

goods sold and delivered to B.

delivered the goods to B.

is offered to show that, on a previous occasion, he had not delivered the goods to B.

Evidence that he

The evidence (6.)

A

is

is

admissible.

indicted for the

says that B,

said

when

murder of B.

dying, declared that

A had given[B the wound

of which he died.

show that on a previous occasion, C that the wound was not given by A or in his presence. The evidence is admissible. Evidence

Questions tending to corroborate

156.

is

offered to

When

a witness

whom

it

is

said ^

intended to corroborate

gives evidence of any relevant fact, he

may

be questioned as

The Indian Evidence Act, 1872, to

any

otlier

211

circumstances which he observed at or near to

the time or place at which such relevant fact occurred,

Court

of opinion that such circumstances, if proved,

is

evidence of

the

fact™d-

would

™'ssible.

if

corrohorate the testimony of the witness as to the relevant fact

which he

testifies.

niustratimi.

A, an accomplice, gives an account of a robbery in which betook

He

part.

describes various incidents unconnected with the robbery

which occurred on his way to and from the place where

was

it

committed.

Independent evidence

of

these facts

may

corroborate his evidence as to the robbery

be given in order to

itself.

In order to corroborate the testimony of a witness, Former

157.

any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or any authority

before fact,

may

legally

thirty-two ,

.

or ,

m

"oved^tg corrobo-

testimony

statement,

thirty-three,

is

all

matters

T

section

may

,

order to contradict or to

in order to impeach or confirm the

^^^^

under

relevant

proved,

,

.

proved, either

whom

the

investigate

be proved.

Whenever any

158.

competent to

of witness

credit

of the

be What matters

.

corroborate

f^ct,

it,

or

person by

may be comiection

that ^"^

was made, which might have been proved if person had been called as a witness, and had denied upon

statement

cross-examination the truth of the matter suggested.

under

159.

it

A

witness may, •" while under examination,' refresh his

memory by

referring to

any writing made by himself

time of the transaction concerning which he or so soon afterwards that the Court considers

at the

^.l*^''""

32 or 33. Refreshing '"^°^°'7-

is it

questioned, likely that

the transaction was at that time fresh in his memory.

The witness may

also

refer to

any such writing made by

any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.

Whenever a witness may

refresh his

memory by .

to

reference

.

any document, he may, with the permission of the Court,

refer

to

a copy of such document,

provided the Court be

satisfied that there is sufficient reason for the

of the original.

When "''ss

non-production ^

wit-

may

use copy

ment'to ""^f"^^*

memory,

2

2

The Indian Evidence Act, 1872.

1

An

expert

may

memory by

refresh his

reference to pro-

fessional treatises.

Testimony to facts stated in

meXned in section

160.

A

may '

witness

such document as fifty-nine,

mentioned in any

''

m

mentioned

is

although he

themselves,' if he

f^pjjg

159.

also testify to facts

no

has

.

section one

specific

J J ana /I hunarea

1

recollection

sure that the facts were

is

of

the

correctly

recorded in the document.

Illusiratwm.

A

book-keeper

may

to

testify

recorded by

facts

regularly kept in tbe course of business,

if

him

in books

he knows that the books

were correctly kept, although he has forgotten the particular transactions entered.

Right of adverse

^jjy ;

ig]^

o referred to under the provisions of the

•v^rritinCT

4-

must be produced and shown

partyasto

two

used to

the adverse party

memory,

pl^ases, cross-examine the witness thereupon.

A

162.

Production ment°s!"'

last preceding

^^ ^^

sections if

he requires

summoned

witness

produce a document

to

iu his posscssion or power, bring

standing any objection which there or to its admissibility. shall .

it

may

to

shall, if

be to

its

production

The validity of any such objection

The

Court, if

sees

it

fit,

may

inspect the

document, unless

to matters of State, or take other evidence

to determine

on

be translated, the

to

to enable

its admissibility.

Court may,

translator to keep the contents is

he

Court, notwith-

jf for guch a purposc it is necessary to cause to

docu-

it

if

be decided on by the Court.

it refers

Transla-

such party may,

it;

to

be given in evidence

:

if

it

thinks

secret, unless

and

if

any document fit,

direct the

the document

the interpreter disobeys

such direction, he shall be held to have committed an offence

under section one hundred and sixty-six of the Indian Penal Code. Giving, as Evidence of docu-'

™lied

for

163.

When

a

party

calls

for

a document which he has

given the other party notice to produce, and such document ^^

produced and inspected by the party calling for

its

pro-

:

:

The Indian Evidence duction, he

ducing

is

requires

it

When

164.

bound

give

to

him

to do so.

and pro-

nXe.°" produce a document which

to

produce, he

to

213

as evidence if the party pro-

it

a party refuses

he has had notice

Act,' xZ"]!.

cannot afterwards use the

document as evidence without the consent

of the other party

or the order of the Court. _„

Using, as evidence of docu-'

dm;tion™f which was refused on notice.

.

Ilmstration.

A the

sues

B

trial,

A

document

The Judge may,

any form, tion

refuses to produce

B

contents.

At

it.

A

seeks to produce the

contradict the secondary evidence given by A, or show that the agreement is not stamped. He cannot do so.

proper proof of relevant

any

its

it.

notice to produce

itself to

to

165.

B

the document and

calls for

gives secondary evidence of

in order

B

on an agreement and gives

at

any time,

fact, relevant

in

order to

any

M'itness, or of

and

or irrelevant,

of any document

obtain

to

ask any question he pleases, in

facts,

of

discover or

may

the parties, about

order the produc-

and neither the

or thing,

make any

their agents shall be entitled to

Judge's

put queso™ej.

wo-

duction.

parties nor

objection to

any

such question or order, nor, without the leave of the Court, to

cross-examine

any witness upon any answer given in

reply to any such question

Provided declared

by

that

Act

this

Pr&vided also

Judge

to

the judgment must

this

based

upon

facts

and duly proved

to be relevant,

that

be

section

shall

not authorize

any

compel any witness to answer any question, or to

produce any document which such witness would be entitled to refuse

to answer or produce

and twenty-one if

to one

under sections one hundred

hundred and thirty-one both inclusive,

document were

the question were asked or the

by the adverse party which

it

;

nor shall the

would be improper

for

called for

Judge ask any question

any other

person

to

ask

under sections one hundred and forty-eight or one hundred and forty-nine nor shall he dispense with primary evidence ;

of

any document, except in the 166. In cases tried by jury

cases hereinbefore excepted. or

with assessors, the jury or Power jury or

of

—

The Indian Evidence Act,

214 assessoreto tions^"^^'

assessors

may put any

\Z']2.

questions to the witnesses, througli or

^y leave of the Judge, which the Judge himself might put and which he considers proper. Chapter

XL

Of Improper Admission and Eejectiox of Evidence.

No new tnalfor improper admission '

ofevirtence.

^^'^-

jjq^

'^'^

improper admission or rejection of evidence shaU

^g ground of °

decision in

any

a

itsclf for

ease,

if

which such objection evidence

objected

evidence

to justify

to

is

it

shall

raised

and

the

trial

that,

admttied,

it

or reversal

of

any

appear to the Court before

decision,

evidence had been received, decision.

new

or

independently of the there that,

was if

the

sufBcient rejected

ought not to have varied the

;

The Indian Evidence Act, 1872.

215

SCHEDULE. Enactments repealed. [See section 2.]

Stat.

26

cap.

Geo.

III.

57.

For

of the of certain Kast the

Section thirty-eight

Indies; for repealing so much of an Act, made in the twenty-fourth year of the reign of his present Majesty (intituled 'An Act for the better regulation and management of the affairs of the East India Company, and of the British possessions in India, and for estahlishing n, court of judicature for the more speedy and effectual trial of persons accused of offences committed in the East Indies') as requires the servants of the East India Company to deliver inventories of their estates and effects for rendering the laws more effectual against persons unlawfully resorting to the East Indies ; and for the more easy proof, in certain cases, of deeds and writings executed in Great Britain or India.

in the East Indies.

the further of persons

trial

committed

offences

Stat.

Vic,

14

and

15

To amend

regulation

accused

the

Law

in

of Evidence

eleven and of section nineteen as relates to British India.

Section

cap. 99.

ActXVof

1852.

so far as it relates to Courts of justice

so

To amend the Law of Evidence

much

So much as has not been heretofore repealed.

Act

XIX of 1853.

Act II of 1855

the Law of Evidence in the Civil Courts of the East India Company in the Bengal Presidency.

To amend

For the further improvement

Law Act

XXV

of 1861

of the

of Evidence.

of Criminal Judicature established by Koyal Charter.

Act I of 1868.

The General

Clauses' Act, 1868

So much been re

For simplifying the Procedure of the Courts

Sectito nineteen.

not

as has not heretofore

Section two hundred

and thirty-seven.

Sections eight.

seven

and

.

INDEX TO THE INDIAN EYIDENCE ACT L OF

1872.

PAGB

SECT.

Abbreviations, meaning of, evidence admissible to show Acceptor of Bill of Exchange estopped from denying anthority of drawer

.

.

may deny drawing Accession of Sovereign of TJnited Kingdom, Court must take judicial notice of Accession to office, &c., of Indian public officer, when Court must take judicial notice of

Accomplice, competent witness against person accused conviction upon evidence of, only, not illegal Account, books of, entries in, when relevant Act, application of

commencement

of conspirator,

how

19 9 199

67

176

67 133 133 34

177 203 203 168 147 147 147 147 155

192

1

of

1

extent of ... short title of

Act

98 117 117

1

1

10

far a relevant fact

See "Relevancy of statement." Acts,

how proved

of Parliament, of what Acts Court must take judicial notice private, copies of, presumption as to genuineness repealed Sched. and Sohed. and 26 Geo, III., c. 57, s. 38, part of 14 and 15 Vic, c. 99, s. 11, and part of s. 19 Sched. and Xy. of 1852 Sched. and Sched. and XIX. of 1863, s. 19 Sched. and 11. of 1855 Sohed. and XXV. of 1861, sec. 237 ... Sched. and I. of 1868, ss. 7 and 8 ... Exclusion of Evidence." Adding to terms of written contract, &c. See Admissibility of communications made during marriage document produced by witness evidence of affairs of State Judge to decide as to questions tending to corroborate evidence of relevant fact ... Admission by party to proceeding or his agent person interested in subject-matter of proceeding person from whom interest derived by party to suit person whose position or liability must be proved as against ... party to suit person expressly referred to for information by party to suit. ,

.

.

2

2 2

122 162 123 136 158

201 212 201 204 210 160 160 160

18

18 18

160 161 160 160 163 164 164 214 182 162 161

18

20 18 17 23 81 31 167 70

suitor in representative character definition of ... in civil oases, when relevant may operate as estoppel

not conclusive proof of evidence, improper, when no around for new trial of execution by party to attestea document oral, as to contents of documents, when relevant proof of, against person making it, and by or on his behalf Admissions Admitted fact need not be proved

184 176 185 147 147 147 147 147 147 147 147

78 57 81 2 2

,

...

22 21

17—31160- -164 68

...

178

2l8

Index

to

Act. SECT.

Affairs of state, admissibility of evidence of Affidavits presented to Court or Oiiicer, Act not appKcable to

Agent. Sea ' Principal and Agent." Agreement, oral, evidence of, inadmissible to vary terms of written contract, &c. Ambiguous document, exclusion of evidence to explain '

See "Language" Annoying questions. Court to forbid Answer of witness. See "Witness." Arbitrator, proceedings before. Act not applicable to Army of Her Majesty. See " Articles of War." Articles of War for Her Majesty's Army and Navy, Court notice of Assessors, questions to witness by

must take

judicial

Attested document, not required by law to be attested, proof of 6; required by law to be attested, proof of ... Attesting witness, proof when he cannot be found, or document executed in the United Kingdom proof when he denies execution when execution of document must be proved by Attorney. Se« "Powers of Attorney." certain questions asked by, without reasonable grounds, may be reported to High Court communication made to, by or for client, when disclosable when not disclosable ... waiver of privilege Authority. See "Estoppel."

Bad character, relevancy of, in criminal proceedings... Bailee estopped from denying authority of bailor may prove right of person to whom he delivers goods Bailor, authority of, estoppel of bailee from denying... Barrister, certain questions asked by, without reasonable grounds, may reported to High Court communication made to, by or for client, when disclosable when not disclosable waiver of privilege Bill of Exchange, acceptor of, estopped from denying authority of drawer

may deny drawing Birth during valid marriage, ^*''^

!o1?s["e of

"'

when

conclusive proof of legitimacy

...

}^-"Kelevancyoffacts."

Bona fides, i'ee "Good faith." Book of Laws, presumption as to genuineness Books of Account, entries in, when relevant Books, presumption as to

...

of ...

...

Bribe, credit of witness impeached by showing British India, Act extends to whole of laws in force in, Court must take judicial notice of British territories. Court must take judicial notice of British territory, proof of cession of Burden of proof 101definition of as to asserted legal right or liability in suit or proceeding as to particular fact of fact necessary to be proved to make other evidence admissible that case of accused is within exceptions of Indian Penal

Code of fact especially within knowledge of death of man known to have been alive within 30 years

92

Index

to

Act.

219 SECT.

Burden of proof

that man is alive who has not been heard of for 7 years as to relationship in case of partners

landlord and tenant and agent

principal

Business.

Su

as to ownership of good faith where one party stands in position of active confidence "Course of business."

220

Index

to

Act. SECT.

Contents of documents, oral evidence

secondary evidence of statements by other when admissible Contract in form of document, evidence of terms of of,

persons

of,

exclusion of evidence, of oral agreement varying terms of examination of witness as to ... Contradiction of proved relevant statement

ofwitness Contradictory terms of written contract, &c. 5ee " Exclusion of Evidence." Conviction, previous, relevancy of, in criminal proceedings upon evidence of accomplice only, not illegal Copy of document, when witness may refresh memory by reference to secondary evidence Corroboration of proved relevant statement Counsel. ^See "Barrister." Counterpart, how far primary evidence secondary evidence ... Course of business, existence of, when a relevant fact Course of proceeding of Parliament and Indian Law Couucil-s, Court must take judicial notice of Court. See "Judge." Act applicable to judicial proceedings in not applicable to af&davits presented to definition of names of Members and Officers of, Court to take judicial notice of ... to forbid insulting questions Court Martial, Act applicable to judicial proceedings before Courts, seals of, of wMch Court m'jst take judicial notice Credit of witness, how impeached 146questions in cross-examination affecting when may be confirmed

when may be impeached Criminal proceedings.

iSee

"Confession."

husband or wife of accused competent witness relevancy of bad character good character previous conviction 132— Criminating answer, witness not excused from answering on ground of Cross-examination of Witness as to previous written statements when they must be

produced leading questions may be asked meaning of must relate to relevant facts not confined to facts upon which examined in chief on new matter introduced in re-examination

producing document questions to test veracity, &c.

...

146-

not to be asked without reasonable grounds when Court may report asking of question to High Court to character

upon answer

to Judge's question, when permitted upon writing with which he refreshes memory

Custom.

Ste.

"Relevancy of

facts."

general, relevancy of opinions as to existence of

Damages, relevancy of character as affecting

48 55

...

...

173 175

"

Index

to

Act

221 SECT.

suits for, relevancy of facts in

Dead

person, statement of. Sia " Relevant facts. Death of man known to have been alive within 30 years, hurden of proving who has not been heard of for seven years, burden of proving _,

.

life

.

108

Documentary evidence

61 definition of

"Witness,

mode

156

107

Decision, reversal of. See " Reversal of decision," " Reports of decisions." Decree. See "Judgments." Deeds, title, of witness not a party, production of 130 Defective document, exclusion of evidence to explain 93 Definitions 3 Disease of body or mind, person affected with, when incompetent as witness 118 " Disproved," definition of 3 Divisions of time, when Court must take judicial notice of 57 Document. See " Evidence," " Presumption," " Production of document." contents of, how proved 61 definition of 3 if production refused, when party refusing can afterwards give it in evidence 164 presumptions as to 79—90 private 75 produced by witness, translation of 162 when Court may inspect 162 when referring to matters of State ... 162 on notice, party producing entitled to have it in evidence 163 production of, by witness 162 power of Judge to order 165 which another person, having possession, could refuse to produce 131 public 74—78 used by witness to refresh memory, production of, to adverse party 161

Dumb

PAGE

12

exclusion of oral, of giving evidence

3

2 ...

documentary exclusion of oral by documentary

when no ground

184 212

179 —187 149

"200

119

public record, &o., made in performance of duty, relevancy of ... Estoppel, admission may operate as definition of of acceptor of Bill of Exchange from denying authority of drawer bailee or licensee from denying authority of baQor or licensor licensee of person in possession of immovable property from denying licensor's possession tenant from denying landlord's title See the various titles. Evidence. admissibility of, Judge to decide as to admissible as to appUcation of language to one of two sets of facts, to neither of which whole correctly applies which can apply to one only of several persons or things as to use of language unmeaning in reference to exist ing facts as to written document or contents to show meaning of illegible characters, &c. when statement forms part of conversation, book, &c. definition of

of,

183,

91—100 188—193

by by

Enactments repealed Entry in books of account, when relevant

improper admission

— 90

185—187

for

new

trial

34 35 31 115 117 117

116 116 136

97

96

'

2

22

Index

to

Act. PAGE

SECT.

ETidence,improper rejection

of,

new trial language when document

when no ground

167

for

inadmissible as to meaning of applies accurately to existing facta 94 of affairs of State, admissibility of 123 of Attorney, Barrister, &o 126—128 of contemporaneous agreement varying terms of document, who may give 99 of dumb witness, mode of giving 119 of fact when not admissible under CivU Procedure Law 5 of facts in issue and relevant facts 5 of husband or wife 120—122 of Interpreter 127—128 of Judge or Magistrate... 121 of Magistrate or Police Officer 125 of oral agreement varying terms of contract, &c., exclusion of ... 92 of parties to suits 120 of public officer 124 of terms of contract, &c., in form of document 91 of witness, when relevant for proving in subsequent proceeding truth of facts stated 33

59,60

oral

must be

60 59 62 2 66 93

direct

proof of facts by primary... rules of, repealed

secondary 63,65, to explain ambiguous or defective document, exclusion of ... what matters may be proved when relevant statement proved under sec. 32 or 33 See " Evidence." Examination. of witness as to written document or contents of witnesses. Se^ ' Witness. Examination-in-chief of witness, leading question, when maybe asked ... when may not be asked '

facts

when cross-examination

191 201

...

201—202 ... ... ...

...

193 200 150 150

200—201 ... ... ... .-..

... ...

...

... ... ...

... ... ...

202 200 201 189 200 201 188

167 178 178 178 179 147

179—182 191

158

...

211

144

...

206

question

may

142 142 137 138

accurately to existing facts of oral agreement, varying terms of written contract, &c. to contradict answer to question testing veracity ...

94 92 153 93 100 70

to explain ambiguous or defective document 91 of oral by documentary evidence Execution, admission of, by party to attested document of document, proof of, when attesting witness cannot be found, or execution in the United Kingdom ... when attesting witness denies execution when must be proved by attesting witness ...

—

Executive, acts of, how proved Existence of foreign State, &c., when Court must take judicial notice of Expert, definition of may refresh memory by reference to professional treatises opinion of, expressed in treatise, when proved by production on foreign law, &c., relevancy of relevancy of facts bearing upon Explanation of ambiguous document, exclusion of evidence in S&e, "Relevancy of facts.'' fact in issue, or relevant fact. Extent of Act

... ...

... ...

206 206 205 205

be

154 138

"Presumption."

...

...

asked in Examinations of witness, order of Exclusion of evidence as to meaning of language when document applies

(See

214

'

meaning of must relate to relevant

Fact.

...

...

...

69 71 68 78 67 45 159 60 45 46 93 1

...

...

209 205

...

191 189 209

...

191

... ...

188—193 ...

...

... ...

... ...

...

182

182 182 182 184 177 171

...

212 178 171 172

...

191

...

147

... ... ...

"

Index

to

'

Act.

223 PAGE.

SECT.

Fact,

admitted need not be proved definition of

...

...

...

...

...

evidence of, when not admissible under Civil Procedure Law Fact in Issue. See, " Relevancy of facts." evidence of, may be given in suit or proceeding Facts in issue, definition of not requiring proof of which Court must take judicial notice proof of, by oral evidence ... relevancy of ... ... bearing on opinions of experts bearing on question whether act was accidental

66-

E

or intentional forming part of same transaction ... in suits for damages necessary to explain or introduce a fact in issue or relevant fact not otherwise relevant, when they become relevant showing existence of state of mind, body, or bodily feeling when course of business concerned where right or custom in question which are the occasion, &o., of relevant facts, or facts in issue relevant, evidence of, when admissible Fasts, public, when Court must take .judicial notice of Festivals, public, when Court must take judicial notice of Flag, national, of foreign State, &c., when Court must take judicial notice of Foreign expressions, evidence admissible to show meaning of Foreign judicial records, certified copies of, presumption as to Foreign law, opinions of experts on, relevancy of Forfeiture, exposure to, witness not excused from answering on ground of 132, 147 Fraud in obtaining judgment may be proved ... Functions of Indian Public Officers, when Court must take judicial notice of

" Gazette of India," notice

in,

of cession of British territory, proof

presumption as to genuineness of " General Clauses Act, 1868," sections 7 and 8 repealed

<7ffl2eWe,

s

Genuineness of documents, &c. See "Presumption." Geographical divisions of the world, when Court must take judicial notice of Good character, relevancy of, in criminal proceedings Good faith, burden of proof where one party stands in position of active Ill

confidence

...

196

...

189

'

Notifications of Government. Government. See Government Gazettes, of local Governments, &c, '

presumption as to genuineness of Grant, evidence of terms of, when in form of document examination of witness as to its being in writing exclusion of evidence of oral agreement, varying terms of, when in

form of document See " Opinion." Grounds of opinion.

...

...

...

...

...

...

of, relevancy of opinions of experts on proof of, when necessary ... relevancy of opinions as to High Court, certain questions asked by Attorney, &c., without reasonable ... grounds, may be reported to Holidays, public, when Court must take judicial notice of Hostilities between British Crown and other States, &c,, commencement, &c., of, Court must take judicial notice of Husband of accused in criminal proceeding, competent witness party to civil suit, competent witness

Handwriting, identity

92

"

2

'

24

Index

to

Act. PAGE

SECT.

Identity of handwriting, relevancy of opinions of experts on witness, questions in cross-examination to discover

45

146—150

...

not asked without reasonable grounds

to ...

...

171

207,208

be ...

149

...

150 98

...

208

When

may

Court report asking of question to High Court

Illegible characters, meaning of, evidence admissible to Impeaching credit of witness

show

155,158

Incompetency of Court to deliver judgment, may be proved Indecent questions, when Court may forbid India, British,

44 151

may not forbid Act extends to whole of

" Indian Councils Act, 1861," repeal of rules, &c., having force of law under sec. 25 course of proceeding of Councils under, Court must take judicial notice of " Indian Penal Code," burden of proof that case of accused is within excep-

...

210, ...

208 192 211 171

151

...

1

...

208 208 147

2

...

147

57

...

176

105

...

195

...

177

... ...

193 188

...

208

...

201 212 208 148

...

,

tions of

accession to office, &c., of, when Court must take judicial notice of "Indian Succession Act," provisions of, as to construction of "Wills not affected Wills under, how provable Inference Court may draw when witness in cross-examination refuses to answer question as to veracity, &c Information as to commission of offence, source of, Ma^trate and Police officer not compellable to disclose Inspection by Court of document produced by witness Insulting questions, Court to forbid Interpretation clause Interpreter. /Sse "Translator."

Indian Public

Officers,

communication made

to,

when disclosable when not disclosable

..,

waiver of privilege Introduction of &ct in issue or relevant fact. /See " Eelevancy of facts.

...

Judge must decide upon proved relevant facts not generally compellable to answer question as to conduct or ju(£cial knowledge when compellable to answer question as to conduct or judicial knowledge .. may be examined as to other matters which occurred in his presence power of, as to translation of document produced by witness to compel person to write for comparison to examine witness and order production of document to inspect document produced by witness to decide as to relevancy of facts

Judgment, fraud or collusion in obtaining, or incompetency of Court, be proved Judgments, &c, of Courts of justice, when relevant

when relevant to bar second suit or trial in Probate, &c., jurisdiction, of what conclusive proof relevancy of ... in other than Probate, &e., jurisdiction, relevancy effect of

Judicial notice,

other than above, when relevant ... must be based upon proved revelant facts facts of which Court must take

facts of which Court takes, not necessary to prove ... Judicial proceedings before Courts and Courts-Martial, Act applicable to Jury, questions to witness by

may

and

57 100 91

148 125 162 152

... ...

3

...

127 127 128

... ...

202 202 202

165

...

213

121

...

200

121

...

...

.

Index

to

Act.

225 SECT.

Landlord and Tenant, burden of proof aa to relationship in case of Landlord, title of, estoppel of tenant from denying Language. See, "Evidence." admissibility of evidence as to application of, to one of two sets of facts to neither of which whole correctly applies ...

when document

applies accurately to existing facts, evidence inadmissible as to meaning of which can apply to one only of several persons or things, admissible as to application of immeaning in reference to existing facts, evidence admissible as to use of Law book. /Sue " Law of Country." Law of Country, relevancy of statement of, contained in Law Book Laws. &e "Book of Laws." in force in British India, Court must take judicial notice of repealed Leading Question, meaning of ... in examination in chief and re-examination when may be

asked

when may not be asked asked in cross-examination Legislatures, proceedings of, how proved Legitimacy, in what cases birth during valid marriage, conclusive proof of Licensee, estoppel of, from denying authority of licensor of person in possession of immoveable property, estoppel of, from denying licensor's possession Licensor, authority of, estoppel of licensee from denying of immoveable property, possession of, estoppel of licensee from denying ... Lithographed documents, how far primary evidence Local expressions, meaning of evidence admissible to show London Gazette, presumption as to genuineness of Lunatic, when incompetent as witness .

may be

.

109 116

.

.

2

26

New

Index

to

Act. PA8E.

SECT,

167 57

-..

21i

...

177

163

...

212

...

213

...

164 66 66 66 113

...

78

...

3

...

184 150

98

...

192

improper admission or rejection of evidence, whenno ground for Notary public, seal of, Court must take judicial notice of Trial,

Notice to produce.

"Presumption" document produced under, party producing See.

have

if

entitled to

evidence production refused when party refusing can afterwards give document in evidence ... ... ... ... it in

rules as to

When when

necessary unnecessary

Notification in (?a2e
"Not

of Government, proved," definition of

how proved

...

...

...

...

...

Obsolete expressions, meaning of, evidence admissible to show Offence, commission of, source of information as to, Magistrate and Police officer not compellable to disclose ... Offensive questions. Court to forbid

125 152

Officer, affidavits

presented to. Act not applicable to communications, when public officer not compellable to disclose Old age, person of extreme, when incompetent as witness Onus. See, "Burden of proof." Opinion as to existence of general custom or right, relevancy of handwriting, relevancy of ... ... ... ... Official

relationship, relevancy of usages, tenets, meaning of terms, &c.

1 ...

...

124 118

48 47

relevancy of proved by its production ,

—

"

must be

direct of contents of document, secondary evidence ... of statements by other persons of contents of

when admissible proof of facts by Order.

...

...

...

... ...

60 63

201 208 147 201 200

... ... ...

...

...

... ...

50 ... 49 ... 60 ... 45 ... 46 ... 51 171 51 ...

of expert expressed in treatise, when ... on foreign law, &o., relevancy of relevancy of facts bearing upon 46 of third person, when relevant relevancy of grounds of ... ... ... ... ... ... ... Oral admission as to contents of document, relevancy of 22 ... ..; ... agreement, evidence of, not admissible to vary terms of written contract 92 evidence 60 69, definition of 3 119 evidence of dumb witness deemed ... 91—100 exclusion of, by documentary evidence

181 181 181 197

...

—

...

... ... ... ...

188

173 172 173 173 178 171 172 174 174 162 189 178 149 200 193 178 179

—

...

...

documents, 144 59

...

...

206 178

5ee " Judgments."

of examinations of witness Orders of Government, &c., how proved Ownership, burden of proof as to

138 78 110

Parliament, course of proceeding of, Court must take judicial notice of ... 57 See " Oral Evidence." Parol. Parties, power of Judge to examine 165 to civil suit, competent witnesses 120 Partners, burden of proof as to relationship in case of 109 Penalty, exposure to, witness not excused from answering on ground of 132, 147 Photographed document, how far primary evidence 62 Plans, Presumption as to 83 relevancy of statements in 36 Pleader, certain questions asked by, without reasonable grounds, may be reported to High Court 150 communication made to, by or for client, when disclosable ... 126 when not disclosable... 126 waiver of privilege ... 128

...

205 184 196

...

176

... ...

213 200 196 ... 203, 207 ... 179 ... 186 ... 168 ...' ...

...

208

...

201 201 202

... ...

.

.

Index

Act.

to

227 PAGE

SECT.

Police officer, confession to, not provable against accused 25 confession while in custody of, when provable against accused 26 how much provable against accused 27 Police officer not compellable to disclose whence information obtained as 125 to commission of offence 146- -150 Position in life of witness, questions in cross-examination to discover not to be asked without reasonable

grounds Court

149

may

when

report

asking

...

163 163

...

163

...

201

...

207, 208 ...

208

...

208

of

c^uestion to High Court I1O See "Judge." 85 Powers of Attorney, presumption as to .. 79-! Presumptions as to documents ... Sze " death." Presumption. as to books, maps, and charts ... certified copies of foreign judicial records document produced as record of evidence documents 30 years old ... execution &c. of document not produced after notice existence of probable facts genuineness of book of laws and reports of decisions certified copies, &e. England or admissible in document Ireland without proof of seal or signature newspapers, copies of private Gazettes, Acts of Parliament and other docu-

Power of Judge.

ments

maps and plans powers of attorney telegraph messages Previous conviction. S&& " Conviction." Primary evidence how far counterpart is printed document &c.

meaning

is

...

of

proof of document by Principal and agent, burden of proof as to relationship in case of Printed document, how far primary evidence Private documents Privilege.

"Attorney," "Barrister," " Marriage, " &c. of communications during marriage communications not waived by professional ,See

evidence

_

party

...

giving

...

how

waived when attorney examined by party how proved far

&c.

Privy Council, proclamations, &:c. of, Probate, proof of wUls under " Indian Succession Act," by Proceedings before arbitrator. Act not applicable to civil, parties to suit and husband and wife competent witnesses criminal, husband or wife of accused, competent witness Sk "Criminal proceedings." judicial, before Courts and Courts-Martial, Act applicable fo ... of

what

facts evidence admissible

in

Proclamations, how proved Production of document by witness

on

notice,

if

refused in what cases party refusing can afterwards give it in evidence .

,

party producing entitled to have it in evidence ... person summoned does not become witness by power of judge to order

...

"

.

Index

228

Act.

to

Production of document, which another person, having possession, could refuse to produce of title deeds of witness not a party of writing used by witness to refresh memory, adverse party entitled to See "Attorney," "Barrister," &c. Professional adviser. communication, when disclosable when not disclosahle ... ... waiver of privilege, as to treatise, expert may refresh his memory by reference to Proof, burden of. See ' ' Burden of proof. admission not conclusive facts not requiting judgments in probate, &c. jurisdiction, of what conclusive of admission against person maiing it and by or on his behalf admitted fact, not necessary ... attested document not required by law to be attested certain public and of&cial documents cession of British territory contents of documents documents by primary evidence ... execution of document required by law to be attested

when ing

witness

cannot be

found,

or

execution

in

... ...

212

126 126 128 169

Attoriiey,"

"Leading

question,''

...

Ee-exaimnation of witness, leading question,

...

when

attest-

on new Court

matter

164

— 178

...

170 161 178 182 184 197 179 180 182

...

182

... ... ... ...

... ...

...

71 134 69 67 112 77

...

... ...

...

... ...

91 3

...

98 74 76 77 78 57 91 124

...

57 35

...

...

... ... ... ...

... ... ...

...

182 203 178 182 197 183 188 149 192 183

183 183 184 177 188 201 177 168

facts,''

&c.

may

be reported to High 208

150

when may be asked when may not be asked

meaning of

...

201 201 202 212

attest-

United

of

...

...

the

•'Relevancy

...

...

41 21 68 72 78 113 61 64 68

...

69

"Veracity of Witness," "Witness," asked without reasonable grounds, when Court

memory by

...

...

'

Refreshing

161

176

ing witness denies execution no particular number of witnesses necessary facts by oral evidence handwriting and signature, when necessary legitimacy, in what cases birth during valid marriage conclusive ... public document, by production of certified copy Wills under " Indian Succession Act " "Proved," definition of Provincial expressions, evidence admissible to show meaning of Public documents certified copies of proof of, by production of certified copies proof of certain Public Festivals, &c., when Court must take judicial notice of ... ... ... ... ... officer, proof of appointment of... ... when not compellable to disclose official communications accession to office, &c., of, when Court must take officers, Indian, judicial notice of ... record, &c., relevancy of entry In, made in performance of duty

•'

203 203

31

fact,

See

...

...

56—58

Kingdom

Question.

131

130

142

...

introduced

by permission of

to character ... to what directed reference to writing, when

made by witness when made by other person when witness may refer to copy .

.

.

Index

to

Act.

229 SECT.

EefresMng memory, expert, by reference to professional Regulations of Government, &o., how proved ... repealed Rejection of evidence, improper, when no ground for Relationship, relevancy of opinions as to ... Relevancy of admission in civil cases bad character in criminal proceedings character as affecting damages

new

treatise

...

trial

...

to prove conduct imputed, in oivU cases

conduct

...

...

made

...

removal of impression caused hy inducement, threat, or promise entry in public record, &c., made in performance of duty ...

confession

after

facts

bearing on opinions of experts bearing on question whether act was accidental or intentional

forming part of same transaction ... in suits for damages ... judge to decide as to ... "necessary to explain or introduce a fact in issue or relevant fact

showing existence of state of mind, body, or bodily feeling where right or custom in question which are the occasion, &c., of relevant facta or facts in issue

good character, in criminal proceedings grounds of opinion judgments, &c., to bar second suit or trial in Probate, &c., jurisdiction

of what conclusive proof in other than Probate, &c., jurisdiction other than above opinions as to existence of general custom or right

handwriting

...

relationship usages, tenets, &c., oral admission as to contents of document previous conviction, in criminal proceedings statement as to fact of public nature contained in certain Acts or Notifications in maps, charts, and plans of Law of country contained in Law Book ... or act of conspirator

statements Relevant," definition of Relevant fact, existence of course of business, when a See " Relevancy of facts." facts. examinatiou-in-chief and cross-examination of witness must

"

relate to proved, judge must decide upon when evidence of, admissible when facts not otherwise relevant become written or verbal statement of, by person dead or not be found, &c., when relevant

who

Repeal of laws Reports of decisions, presumption as to genuineness of Reversal of decision, improper admission or rejection of evidence,

nogroundfor ;Se6 "Relevancy

of facts." general, relevancy of opinions as to existence of Rule of the Road, Court must take judicial notice of

Eight.

can-

when

Index

to

Act. SECT.

Eules of evidence repealed

Scandalous questions,

when Court may forbid .. when Court may not forbid

with admitted or proved seal of what Seals Court must take judicial notice Second suit or trial, relevancy of judgments, &o., to bar .,„. Secondary evidence, after notice to produce Seal,

comparison

of,

Seals, of Courts, &c.

,

certified copies

other copies far counterpart is ..» meaning of *hen admissible of existence, condition,

how

Servant.

;Se«

or contents of

document "Attorney," " Barrister," &c.

146... Shaking credit of witness, questions in cross-examination for not to be asked without reasonable grounds

when to

court

may

report asking

of question

High Court

"Shall presume," definition of ... Short title of Act Sign manual of British Sovereign, Court must take judicial notice of Signature, comparison of, with admitted or proved signature ' proof of, when necessary ... ... ... Signatures of Indian public officers, when Court must take judicial notice of Sovereign, foreign, existence &c. of, when Court must take judicial notice of State, affairs of, admissibility of evidence as to foreign, existence &c. of, when Court must take judicial notice of ... matters of, document produced by witness referring to State of mind, body, or bodily feeling. See " Relevancy of facts." Statement as to fact of public nature contained in certain Acts or Notifica... tions, relevancy of ... forming part of conversation, document, book, or series of letters or papers, what evidence admissible of conspirator, how far a relevant fact of law of country contained in Law Book, relevancy of

Statements.

ySee

"Admission."

by persons who cannot be

32 called as witnesses in maps, charts and plans, relevancy of 34made under special circumstances relevancy of written or verba], of relevant facts by person dead or who cannot be found, &c. , when relevant when relating to cause of death when made in ordinary course of business when against interest of maker when giving opinion as to public right or custom, or matter of public or general interest when relating to existence of relationship

and

made

in will, deed, pedigree, or on tombstone, &c. when made in document relating to transaction by which right or custom created, &c. when made by several persons and expresses feelings, &c., relevant to matter in question Sch. and Statutes, parts of, repealed Sch. and repealed, 26 Geo. III. c. 57, s. 38, (part) Sch. and 14 and 15 Vic. c. 99, s. 11, and part of s. 19 See "Exclusion of EviSubtracting from terms of written contract, &c.

dence."

Index Suit.

See, " Judgments," &c. for damages, relevancy of facts in of what facts evidence admissible in

to

Act.

...

Technical expressions, meaning of, evidence admissible to show Telegraph messages, presumption as to Tenant. See, " Landlord and tenant." estoppel of, from denying landlord's title years, person of, when incompetent as witness Tenets of body of men or family, relevancy of opiniona as to Terms, meaning of, relevancy of opinions as to Territory, British, proof of cession of

Tender

Title of Act, short of foreign State, &c.,

when Court must take judicial notice of of landlord, estoppel of tenant from denying Title-deeds of witness, not a party, production of Titles of Indian public officers, when Court must take judicial notice of Transaction. See " Relevancy of facts." Translation of document produced by witness See " Interpreter." divulging contents of document directed to be kept secret &e" Expert," "Professional treatise." Treatises. Trial. See " Judgments," &c. Trial, New. See " New trial." Translator.

United Kingdom, proof of document required by law to be attested when ... ... executed in, and attesting witness cannot be found... Usages of body of men or family, relevancy of opinions as to

69 49

Index

232

to

Act. SECT.

PAGE

146-150 questions in cross-examination affecting ... cross-examination. <See " Cross-examination of witness." 119 dumb, mode of giving evidence by evidence of, when relevant for proving in subsequent proceediiig 33 truth of facts stated 144 examination of, as to written document or contents "<Sfee Examination-in-chief of witness.'' examination-in-chief. 120 husband of accused, competent, in criminal proceedings ... 127 interpreter as

207, 208

Witness, credit

of,

121 165

judge as

power

of,

magistrate as

not a party,

to examine ...

title

..

deeds

of,

when compellable to produce when not compellable to produce

not excused from answerin g on ground that answer will criminate 132, by other persons of contents of documents, when admissible order of examinations of party to civil suit, and husband or wife, competent pleader as

...

200 167 206

...

... ... ...

121 ... 130 ... 130 ... 147 203,

200 202 200 213 200 203 203 207

oral evidence of, as to statements

pleader's clerk or servant as police officer as... production of document by proof of former statement of, to corroborate testimony public officer as questions to, by Jury or Assessors See, " Ee-examination of witness." re-examination. refreshing memory by reference to writing ...

...

when made by witness when made by another person witness

when

may

162 157 124 166

206 205 200 201 202 201 212 211 201 213

15§ 159

211 211

159

211

159

211

144 138 120 126 127 125

by persons who cannot be

it

called

32,

to character, cross-examination and re- examination of translation of document produced by ... vakil as ... vakil's clerk or servant as when compellable to answer question in cross-examination testing ,

.

.

veracity,

&o in

what decide

when he may

testify to facts

mentioned in document

161 33 140 162 126

ANU W.

ItlDBll;

...

...

...

PRINTKRS, LOWDOW.

...

212

164—168

127

...

205 212 201 202

147

...

207

...

... ...

case Court to

148 160 120 118- -134

wife of accused, competent, in criminal proceedings Witnesses 135—166 examination of ... 134 no particular number necessary to prove fact ... 135 order of production and examination of 118—133 what persons competent 73 Writing, comparison of, with admitted or proved writing to refresh witness's memory, adverse party entitled to production 161 of, and may cross-examine upon 159 when witness may refresh memory by reference to

111

...

be cross-examined

upon statements

...

refer

to copy

may

...

... ... ...

207 212 200

200—203 204—214 ...

...

203 204

200—203 ...

182 212 211

The End.

World Public Library Association