be illegal, by another not, the latter shall prevail. So, if by one reading it would operate as a forfeiture,(e) by another not, the latter shall prevail. So if certain parties join in a deed, some of whom are capable and others not, the deed shall not be altogether void, but shall bind those who are capable. So where a bond may be construed either as joint or several, it shall be taken to be joint or several according to the intention of the parties. See 1 Stokes, 264. § 771. On this footing stands the doctrine of Cypres(f) which is frequently applied in the case of wills: especially in the case of charitable bequests. Where there is on the face of the will a particular intention of the testator, which cannot be carried out, and also a general intention which can. Here the general intention shall have effect. Thus Courts of Equity will sanction a scheme of a charity, which though not totally or exactly, is substantially as near the intention of the testator as circumstances will allow. On this principle was the will of Patcheapah construed, and the School of Madras established. CHAPTER XLIII. APPRECIATION OF EVIDENCE. § 772. Let us now turn to those guiding rules and principles which are to direct the Judge in his appreciation of the evidence before him. What shall in each case amount to sufficient proof, must be a matter of much latitude, and subject to the discretion of the individual Judge. It must satisfy his own mind; the materials must have been collected secundum artem; and it may be well to bear in mind the words of the rescript of Hardiam to Varus, (Dig. 22. 3. Cod. 4. 19. Dig. 22. 5. Cod. 4. 20,) especially the following-" what arguments and in what degree, amount to proof in each case cannot accurately be defined. Sometimes the number of witnesses, sometimes their rank and authority-sometimes the unanimous voice of public fame, establishes the proof of the matter under investigation. All the direc (e) So in the case of a grant by a Hindu widow of estate descended to her from her husband, for a period longer than her own life, the grant, I conceive, would not be roid, but good for the period of her own life. The right of a Hindu widow over such property is now before the Courts in a case brought by Government against a Mootadar in Masulipatam. (f) Cypres is old Norman French, 66 near this," ""thus far." tions I can give is that you should not tie yourself down to any one particular species of proof, but allow your own belief to decide what is, and what is not sufficiently established." § 773. Where civil rights are in issue, a less degree of probability may be safely adopted as a ground of judgment, than in criminal trials, where liberty or even life is at stake. In civil cases, where evidence is nearly balanced, a mere preponderance on either side may be sufficient to turn the scale. See Morley's Digest, Tit. Ev., c. 108. "A claimed a sum of money from B, on a bond alleged to have been executed by him. The bond was purchased by A; and though the attesting witnesses were dead, its execution and identity were proved by four witnesses on behalf of A, B brought five witnesses, who asserted that though a bond, similar in amount and date, was executed by B to A, the bond produced in Court differed in its terms, and was not the same bond they attested and saw executed by B. Held, that the admission by B's witnesses of the existence of a bond, similar in amount and date, independent of other considerations, gave to the evidence a manifest preponderance in favor of A ; and B was accordingly decreed to pay the amount due on the bond with interest. Narasimmah Chitty v. Wheatley. Case 2 of 1824. 1 Mad. Dec. 435-Grant and Gowan." See also Starkie, page 818. "But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale. This happens, as it seems, in all cases where no presumption of law, or prima facie right, operates in favor of either party: as, for example, where the question between the owners of contiguous estates is whether a particular tree near the boundary grows on the land of one or of the other. But even where the contest is as to civil rights only, a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient. It would be so in all cases where it fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law. If a party claimed as devisee against the heir at law, full proof of the devise, with all its formalities, would be essential; circumstantial evidence, which merely showed it to be more probable that the testator had made a will in favor of the party claiming as devisee, than that he had not done so, would be insufficient. So where a devise to be fully established by one who claimed as devisee, it would not be sufficient to show a mere probability that the devisor had made a subsequent will, revoking the former. One who seeks to charge another with a debt, must do so by full and satisfactory proof; and on the other hand, where a debt has once been established by competent proof, the debtor cannot discharge himself but by full proof of satisfaction. Again, where the law raises a presumption in favor of the fact, the contrary must be fully proved, or at the least such facts must be proved as are sufficient to raise a contrary and stronger presumption. Thus the law presumes man to be innocent of a crime until his guilt be proved; but if the fact be proved that A killed B, then the presumption of law which before was in favor of A is now against him, and malice will be presumed, unless he can establish facts which justify or extenuate the act." § 774. But in criminal cases, in order to convict, the evidence must be conclusive. Observe, however, that evidence, inconclusive in itself, may become conclusive, through the defect of proof on the other side, or by the act of the party himself. So where a man is accused of theft, the only evidence being his recent possession of the stolen goods, the mere possession is in itself inconclusive, but it establishes a primâ facie probability against the accused, which cast on him the onus of showing that he became originally honestly possessed of the property. Thus in the case of R. v. Parthasarthy and others at the Madras July Sessions for 1855, when the party accused said that one Moonesawmy give him the document, he was accused of forging, and he called evidence to character, but did not call Moonesawmy or in any way account for his not doing so, this rendered the evidence inconclusive before, conclusive against him. So in Palmer's case, when the accused declared that he had given the strychnine which he purchased to his groom to kill dogs that infested the premises; and that dogs had been so destroyed; the prisoner's neglect to call the groom, or to show that dogs had been so killed, was a very strong circumstance against him. The poison was traced to his possession: he avowed that he had disposed of it in a particular way totally incompatible with his administering it to the deceased, and which, if true, must have established his own innocence; yet he took no steps to establish this fact, all important to him, if true. The presumption, if not irresistible, was strongly inculpatory of him. See also Morley's Digest, Tit. Ev., c. 124. "An Ikrar nameh, or written acknowledgment, from the defendant to the plaintiff, that the latter is proprietor of a portion of the estate belonging to the former was held to be good evidence of the transfer, although no consideration was proved; an attempt by the defendant to prove a counter Ikrar nameh by the plaintiff having failed. Ranee Indranee v. Ram Koomar Burm 21st July 1824. 3 S. D. A. Rep. 392.-Martin and Harington." § 775. We come now to the principles which should guide a Judge in his appreciation of direct personal testimony. Be it remembered, he is always to decide secundum allegata et probata. § 776. Discrepancies, often trifling in themselves, when compared with the great mass of evidence in the case, are only too frequently made in Indian Courts the ground for acquittal, or disbelief. It may of course happen that discrepancies occur in such material portions of the evidence; are so glaring and so utterly irreconcileable with the truth of the rest of the case, or of the story of the particular witness; as to afford just ground for an unfavorable verdict, or for the rejection of the whole of a particular witness's evidence. But this is comparatively seldom the case; and the acute and practised Judge will generally be able to sift the wheat from the chaff, to separate the true from the false; and if after this has been done, there remains a residuum of credible testimony, he should thereon found his judgment; not reject the whole evidence on account of its being more or less tainted with incredibility. A plea constantly urged on behalf of the Judges in the Mofussil, is the difficulty of their task as compared with that of Judges in England, in consequence of the untruthful nature of the evidence with which the former have to deal. The presumption in England, it is said, is that a witness is the witness of truth: here the presumption is, that a witness is the witness of falsehood. But however true this may be, I doubt much if the witnesses in the Mofussil are more untrustworthy than those in the Supreme Court. Yet there, though the fact is to be lamented, we seldom if ever hear a complaint raised on the score of this difficulty. The Judges thread their way safely amid the burning ploughshares about them; and I must be pardoned for expressing my conviction that the greater the difficulty of the task, the greater is the necessity for instructed Judges: the greater the probability that the instructed Judge will succeed where the uninstructed will fail: incedit per ignes, Suppositos cineri doloso. The conduct of mankindat large under given circumstances varies so little when their own interests are at stake, that the Judge usually has (3) See Morley's Digest, Tit. Cr. Law, c. 240. "Held, that the discrepancy of the evidence of the parties in an affray affords no ground for the acquittal of those charged: credit must be given to that which appears best supported by the circumstances of the case. Rousun Pardhun v. Rujgoo Dowbey and others, 22n ́1 April 1829. 3 N. A. Rep, 221-Leycester and Rattray." safe landmarks to go by, however extraordinary may be the accounts given of transactions by parties and their witnesses.(h) § 777. Trifling discrepancies are often a test of truth; and the observations of Paley, though familiar, are too important to be omitted "I know not," he writes,() "A more rash or unphilosophical conduct of the understanding than to reject the substance of a story, by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experi ence of Courts of justice teaches. When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but often times with little impression upon the minds of the Judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud. When written histories touch upon the same scenes of action, the comparison almost always affords ground for a like reflection. Numerous, and sometimes important variations present themselves; not seldom, also, absolute and final contradictions; yet neither one nor the other are deemed sufficient to share the credibility of the main fact. The embassy of the Jews to deprecate the execution of Claudian's order to place his statue in their temple; Philo places in harvest; Josephus in seed-time-both contemporary writers. No reader is led by this inconsistency to doubt whether such an embassy was sent, or whether such an order was given. Our own history supplies examples of the same kind. In the account of the Marquis of Argyle's death, in the reign of Charles II, we have a very remarkable contradiction. Lord Clarendon relates that he was condemned to be hanged, which was performed the same day; on the contrary, Burnet, Woodrow, Heath, Echard, concur in stating that he was beheaded; and that he was condemned upon the Saturday, and executed upon the Monday. Was any reader of English history ever sceptic enough to raise from hence a question. whether the Marquis of Argyle was executed or not ?" To this let us add the caution of Hallam,() and weshall have a pretty accurate idea of the manner in which, and the extent to which, discrepancies ought to effect our belief in evidence. "Such a maxim, if not applied with great discretion and much limitation, leads to absurdity, and would be laughed at in any Court of justice. The (h) See note to Sec. 295. (i) Evid. of Christ. part III, ch. 1. |