and fraudulent, and the purchaser produces a deed duly registered; and it is not necessary to require the purchaser to file proof of payment. Mohun Singh v. Kunhya Lal Jah and others, 29th April 1850. S. D. A. Decis. Beng. 159.-Dick."

In 1 Moore's Indian Ap., p. 1. Mootee Lal Opudhiya v. Juggurnath Gurg. There

"The Court of Sudder Dewany Adawlut having refused to set aside a deed of Rázinamah for compromising an appeal then pending from that Court to the King in Council, alleged to have been obtained by fraud and duress held on appeal by the Judicial Committee that the onus of proving such fraud and duress lay upon the appellant in proceeding upon his petition in the Court below, and their Lordships being satisfied that full opportunity for such proof had been afforded him, confirmed the judgment of the Sudder Court but, under the circumstances, without cost."

See Rajunder Narain Rae v. Bajai Govind Singh, 2 Moore's In. Ap., p. 181, where it was held as follows:

“A Soluhnamah or deed of agreement to compromise conflicting claims entered into in the presence of witnesses and solemnly acknowledged in Court, by parties who were mutually ignorant of their respective legal rights, cannot afterwards be set aside upon plea of ignorance of the real facts, when the party seeking to avoid the deed had the means of ascertaining those facts within his reach.

"Gross fraud and imposition are not to be imputed upon mere suspicion, and unless the charge is proved, a party cannot be released from an agreement entered into by their own solemn act."

See Morley's Digest, O. S. Tit. Ev. c. 82.

"The onus of showing that a compromise has been fraudulently obtained, by intimidation and false representation, is cast upon those who seek to impeach the validity of their own deed.-Ib."

§ 596. The plaintiff is not bound to negative the defence in the first instance. Thus where the defence to an action on a bond is duress, it suffices for the plaintiff to prove the bond. It would lead to great delay were he to proceed further, and endeavour to prove (except by the attesting witnesses as to what took place at the execution, i. e., the circumstances of the execution in full) negatively, that there was no duress. The defendant may fail in establishing his defence; his witnesses may break down; and clearly it would have been time wasted for the plaintiff to attack a case which falls from its own weakness. But the plaintiff may generally call evidence in reply, but such evidence in reply must be confined to negative specific facts sworn to by the defendant's witnesses, the proof of which he could

not be supposed to anticipate. For a plaintiff is not to be allowed to cut his own case in halves, and prove half or a portion in his opening, and the remainder by way of reply, if he thinks the nature of the defence requires him to strengthen his hand. He must lay the whole strength of his case on which he intends to rely upon before the Judge when he is in possession of the Court.

So in the great case of Rowe v. Brenton,(k) where the plaintiff's title to a mine was in question, and he chose to rest his case upon evidence of possession, it was held that he could not in reply adduce evidence of his title.

§ 597. In addition to the substantive evidence which a party adduces, he is entitled to the aid of the comments and arguments of his pleader. This latter method of establishing a case is called by the Roman law(1) probatio artificialis, as opposed to the evidence which is termed probatio inartificialis, inartificial proof. (m)

(k) 3 M. and R. 139-231.

(7) Quint. t. 5, c. 3.

(m) The following remarks from Archbishop Whately's work on Rhetoric (p. 72) may be usefully studied :

"It is a point of great importance to decide in each case, at the outset, in your own mind, and clearly to point out to the hearer, as occasion may serve, on which side the Presumption lies, and to which belongs the [onus probandi] Burden of Proof. For though it may often be expedient to bring forward more proofs than can be fairly demanded of you, it is always desirable, when this is the case, that it should be known and that the strength of the cause should be estimated accordingly.

"According to the most correct use of the term, a "Presumption," in favor of any sup position, means, not (as has been sometimes erroneously imagined) a preponderance of probability in its favor, but, such a pre-occupation of the ground, as implies that it must stand good till some sufficient reason is adduced against it; in short, that the Burden of Proof lies on the side of him who would dispute it.

"Thus, it is a well known principle of the Law, that every man (including a prisoner brought up for trial) is to be presumed innocent till his guilt is established. This does not, of course, mean that we are to take for granted he is innocent; for if that were the case, he would be entitled to immediate liberation: nor does it mean that it is antecedently more likely than not that he is innocent; or that the majority of those brought to trial are so. It evidently means only that the 'burden of proof' lies with the accusers;--that he is not to be called on to prove his innocence, or to be dealt with as a criminal till he has done so; but that they are to bring their charges against him, which if he can repel, he stands acquitted.

"Thus again, there is a "presumption" in favor of the right of any individuals or bodies corporate to the property of which they are in actual possession. This does not mean that they are, or are not, likely to be the rightful owners: but merely, that no man is to be disturbed in his possession till some claim against him shall be established. He is not to be called on to prove his right; but the claimant, to disprove it; on whom consequently the burden of proof' lies.

"A moderate portion of common sense will enable any one to perceive, and to show on which side the Presumption lies, when once his attention is called to this question: though, for want of attention, it is often overlooked: and on the determination of this question; the whole character of a discussion will often very much depend. A body of troops may be perfectly adequate to the defence of a fortress against any attack that may be made on it: and yet, if ignorant of the advantage they possess, they sally forth in the open field to encounter the enemy, they may suffer a repulse.

§ 598. This is the second proposed head of the present enquiry. Let us consider first what need not be proved,

1st. Proof need not to be offered of that of which the Court is bound to take judicial notice: see ante § 444, for it would be superfluous and the maxim of the law is lex non requir it verificare quod apparet curice. The law requires no proof of that which is apparent to the Court.

2nd. No proof is required of that which is admitted by the opposite pleadings (see ante § 555.)

3rd. No proof is required of what the opposite pleader may admit in Court, or beforehand by agreement for the purposes of the trial.

4th. Where in the pleadings superfluous matter has been set forth, it need not be proved, so that the residue forms a legal cause of action or defence. Utile per in utile non vitiatur. The essential is not vitiated by the unessential; surplusage need not be proved.(n)

At any rate, even if strong enough to act on the offensive they ought still to keep possession of their fortress. In like manner, if you have the "Presumption" on your side, and can but refute all the arguments brought against you, you have, for the present at least, gained a victory but if you abandon this position, by suffering this Presumption to be forgotten, which is in leaving out one of, perhaps, your strongest arguments, you may appear to be mak ing a feeble attack instead of a triumphant defence.

"Such an obvious case as one of those just stated will serve to illustrate this principle. Let any one imagine a perfectly unsupported accusation of some offence to be brought against himself; and then let him imagine himself-instead of replying (as of course he would do) by a simple denial, and a defiance of his accuser to prove the charge,--setting himself to establish a negative,-taking on himself the burden of proving his own innocence, by collecting all the circumstances indicative of it that he can muster; and the result would be in many cases that this evidence would fall far short of establishing a certainty, and might even have the effect of raising a suspicion against him; he having in fact kept out of sight the important circumstance, that these probabilities in one scale, though of on great weight perhaps in themselves, are to be weighed against absolutely nothing in the other scale."

(n) The practice of the Company's Courts, whereby the Judges fix the issues, will afford much assistance to the pleader; but a Judge may fix an immaterial issue. The pleader should object to this. See S. Proceeding Rules, 1st July 1855. Title, 1st July 1855. Title, 1st hearing on the merits, Rule 19. See Morley's Digest, N. S. Tit. Ev., c. 14. These points must be recorded. See S. A. 41 of 1851. M. S. A. R. for 1851, p. 122, where the decision of the Privy Council is extracted. Its decree is also defective if it does not set out the points which have been regarded. S. A. 22 of 1852. M. S. A. R. for 1852, p. 22.

"The Court is to record the points to be established respectively by the parties; and having done that, it is for the parties to produce the evidence in support or refutation of such points; but no party can be allowed to plead as an excuse for neglecting to file evidence, that the Court did not specifically call for it. Colville and others v. Bennett and others, 9th Jan. 1819. S. D. A. Decis. Beng. 13.--Hawkins." See also S. A. 25 of 1852, M. S. A. R., p. 27.

§ 599. Having shown what need not, we come to show what must be proved.

§ 600. The respective issues are to be proved; but the proof must be confined to the issue; for the Judge's province is to determine secundum allegata et probata, according to what is alleged and what is proved, that is with reference both to the pleadings and the evidence. See S. A. 28 of 1850. M. S. A. R., p. 27. To admit proof of what is not pleaded and take issue on, would be to encumber the record with evidence of something not allegatum.

The practice with regard to settling the issues (which is matter of procedure) is now regulated by the Civil Procedure Code, Sections 139, 143, 145, 186 and 354.

See Morley's Digest, N. S. Tit. Cr. Law, c. 131. See also S. A. 44 of 1851. M. S. A. R., p. 125.

"Warrants in execution of former convictions are not to be brought forward as evidence for the prosecution: but, after conviction, due weight is to be given to them in awarding punishment. Case of Hur Patell Bin Chind Patell, 27th July 1846. S. F. A. Rep. 255.-Hutt and Grant."

§ 601. So in an action for assault, when the defence is "not guilty," the defendant will not be allowed to show that the plaintiff committed the first assault, which in law would justify the defendant's conduct; for his plea of not guilty, only puts in issue the fact of assaulting; and if he were to give evidence of the plaintiff having struck first, he would thereby be giving evidence of something "non allegatum:” had he relied on this defence, he should have pleaded the facts". e., though it is true that he struck the defendant, yet he struck in his own defence, having been first assaulted-or as it is called, son assault demense. The like law is of the case where the defendant justifies the battery in defence of his possession-using no more force than was necessary to oust the plaintiff, or "molliter manus imposuit," as the plea is termed.

§ 602. It follows from this rule, that evidence of collateral facts is generally speaking not to be received. As for instance, in an action for not supplying the plaintiff with good beer, the defendant could not show that he had supplied other parties with good beer.

§ 603. Evidence of the character of a party is generally not receivable, except when it is put directly in issue, as in an action for defamation, or on a trial for any crime; and the character of the prosecutor may become a material question in a criminal trial; as

for instance the character of the prosecutrix for chastity, or the reverse, on a charge of rape. It is true that a prostitute may be raped, but the probability of the charge ought to be very much weakened by showing that she had formerly been connected with the prisoner, with other men, or had walked the streets and the like. See Robin's case. (o)

"The prosecutrix having denied on cross-examination that she was acquainted or had had connection with several men named, and shown to her at the time she was questioned, the counsel for the defence proposed to call these persons to contradict her. The evidence was objected to as inadmissible, and Hodgson's case, was cited. Coleridge, J., after consulting Erskine, J., said that neither he nor that learned Judge had any doubt on the question. It is not immaterial to the question whether the prosecutrix has had this connection against her consent to show that she has permitted other men to have connection with her, which on her cross-examination she has denied. The witnesses were accordingly examined, and the prisoner was acquitted."

§ 603a. Where evidence of character is admissible, it must be of a general nature so as to show what reputation the person bore among his neighbours. In civil cases, character is of importance only where it affects the amount of damages, as in actions for libel, where the excellence or the contrary of the plaintiff's character previous to the defamation is matter for consideration in determining the amount of injury the plaintiff has received and the consequent compensation to which he is entitled. But in actions on contract it clearly matters not whether the plaintiff has suffered damage from a good man or one of indifferent character: the question is the amount of loss which the breach of the contract has occasioned. Nor can the plaintiff's character in such a question affect the decision by more than that of the defendant. But in criminal cases, the prisoner is always permitted out of motives of humanity to call witnesses to his character. The prosecutor may not call witnesses to show the prisoner's bad character in the first instance, but he may do so in reply, when the prisoner on his defence calls witnesses to character whom it is important to the prosecutor to rebut. It may be remarked here, that where the facts are clearly brought home to the prisoner, his character can have no weight in determining on his guilt or innocence of the particular charge under investigation. Where the facts remain in doubt, evidence of character may give the measuring cast in the

(0) Moo. and R., 512.