STARKIE'S REMARKS.

147 dence to bind a party, either directly or by inference; and, in general, no declaration, or written entry, or even affidavit made by a stranger, is evidence against any man. Neither can any one be affected, still less concluded, by any evidence, decree, or judgment, to which he was not actually or in consideration of law privy.

"As this is a rule which rests on the clearest principles of reason and natural justice, it has ever been regarded as sacred and inviolable."

§ 303. Having considered what is excluded, let us now see what is admitted.

§ 304. The principle does not exclude a declaration accompanying an act, whenever evidence of the act itself is admissible.

"The objection," writes Starkie, p. 87,

"does not extend to a class of declarations already described as declarations accompanying an act; for these, when the nature and quality of the act are in question, are either to be regarded as part of the act itself, or as the best and most proximate evidence of the nature and quality of the act: their connection with the act either sanctions them as direct evidence, or constitutes them indirect evidence, from which the real motive of the actor may be duly estimated.

"Hence it is that declarations, made by a trader at the time of his departure from his residence or place of business, are evidence of the intention with which he went. His real intention, in such a case, cannot be inferred otherwise than from external appearances; from his acts; and his declaratlons are collateral indications of the nature of his acts and his intention in doing them."

But he continues, page 88.

"It is, however, to be particularly observed, that in these cases, when declarations or entries are admitted in evidence as part of the res gestæ or transaction, they are admitted, either because they constitute the very fact which is the subject of enquiry, or because they elucidate the facts with which they are connected having been made without premeditation or artifice, and without a view to the consequences; and as such they are the best evidence-it may be, better than even the subsequent testimony of the party who made them -to prove the object for which they are admitted in evidence; for the party who made the declaration, if he were competent as a witness, would frequently be under temptation to give a false colouring to the circumstance when its tendency was known; besides, as in this case the effect of the evidence is independent of the credit due to the party himself, it could be of no use to confirm his credit by examination upon oath,

and his declaration as a mere fact is as capable of being proved by another witness as any other fact is."

§ 305. It does not exclude the real or natural facts connected with the main transactions. Starkie explains this lucidly as follows, page 90.

"The principle does not extend to the exclusion of any of what may be termed real or natural facts and circumstances in any way connected with the transactions, and from which any inference as to the truth of the disputed fact can reasonably be made. Thus, upon the trial of a prisoner on a charge of homicide or burglary, all circumstances connected with the state of the body found, or house pillaged, the tracing by stains, marks or impressions, the finding of instruments of violence, or property, either on the spot or elsewhere, in short, all visible vestigia, as part of the transaction, are admitted in evidence, for the purpose of connecting the prisoner with the act.

"Such facts and circumstances have not improperly been termed inanimate witnesses. It may be asked, whether the same principle which excludes all inferences from the acts, conduct and declarations of others, ought not also to exclude such real circumstances; for an artful person may not only deceive by speaking and writing, but may also create false and deceptive appearances, calculated to induce others to draw false conclusions from them; he may act as well as speak a lie, and may deceive by false facts as well as false expressions. Real facts, that is, such as are the object of actual observation, in contradistinction to mere recitals of facts, are in themselves always true, whilst a mere recital or statement may be wholly false; and although collateral circumstances, when considered without careful comparison, may, either in consequence of contrivance and design, or even from accident, present appearances which tend to false conclusions, that tendency is always subject to be corrected by a multitude of other facts which are genuine.

"The whole context of facts must be consistent with truth; to speak more properly, they constitute the truth; if all were known, nothing would be left for inquiry; the greater the number known, the more probable will it be that an artificial or spurious fact, from inconsistency with the rest, will be detected, and the truth manifested. This is the more evident, when it is considered that the practice of creating false appearances must always be difficult, limited in its extent, and constantly subject to detection and exposure from a comparison of the deceptive fact with such as are undoubtedly genuine.

"By way of illustration, the following instance may be selected: A person having been robbed and murdered, the body is so placed by the offend

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er, with a discharged pistol beside it, as naturally to induce the inference that the deceased had fallen by his own hand: but on close examination, it is discovered that the ball extracted from the body, and which occasioned death, is too large to have been discharged from that pistol, an inconsistency which immediately detects the imposture, and refutes the false inference to which some of the circumstances apparently tend.

"The general admission, therefore of evidence of the actual visible state of things, in the absence of any special reason for suspecting fraud, is quite consistent with the exclusion of statements or declarations, as contradistinguished from real facts; such statements may be altogether fictitious; they are easily invented, and would therefore be the more dangerous, because if they were to be admitted to any credit, they would usually be conclusive. At all events, there is a strong practical necessity for resorting, especially in criminal proceedings, to the aid of circumstantial evidence; the consequence would be infinitely mischievous if such evidence were to be excluded; and the real practical results from any suggestions as to the probability of fraud and deception being practised through the medium of such evidence, is that it ought in all cases to be received and acted on in the highest degree of caution and circumspection."

§ 306. We come now to the third great branch of our subject.

PART III.

CHAPTER XIX.

THE INSTRUMENTS OF EVIDENCE.

§ 307. We have reached the dryest, because the most technical part of our subject; but the rules and illustrations about to be considered are equally necessary with all others for the practitioner, and it may offer some inducement to proceed, to learn that our course will ultimately lead us into a region which has not inaptly been called the Romance of the Law of Evidence.

§ 308. A glance at the Chart will show that I have divided this subject into two great branches: the first embraces a consideration of the principles which in practice regulate the method for placing the instruments of evidence before the Court: the second leads us to

enquire how these instruments are to be used for the purposes of proof.

Practice regulating Instruments of Evidence.

§ 309. We may conveniently divide the Instruments of evidence into Oral and Written. The former are witnesses, who give their evidence vivâ voce; the latter documents.

§ 310. And here it will be well to remember, first, that the only natural limit to the introduction of evidence ought to arise from a consideration of the expense, delay, or inconvenience of its production, (see § 26) and secondly, that the fundamental principle of the Law of Evidence is that the best evidence which each case admits of shall be invariably produced. The following rules are framed for these objects; and will all be found more or less to be illustrative of them: § 311. We shall consider oral evidence under six different heads. 1st. The mode of procuring the attendance of witnesses. 2nd. How the law provides for enforcing the production of a document in the possession of a witness.

3rd. What protection the law affords a witness in the discharge of his duty.

4th. What preliminary objections can be raised to the examinanation of a witness.

5th. What rules the law prescribes for the examination of a witness.

6th. How the testimony of a witness may be rebutted or confirmed.

CHAPTER XX.

1ST. THE MODE OF PROCURING THE ATTENDANCE OF A WITNESS.

§ 312. The process for enforcing the attendance of a witness (r) in civil suits, when such witness is within the jurisdiction of the Court, will be found in Reg. III. of 1802, Sec. VII. para 1, Reg. VI. of

(r) See Dawes' Procedure "Evidence" Sec. 122-134. The process for securing attendance of witnesses in Bengal is provided by Act XIX. of 1853. It were to be wished that the provisions of that Act were extended to this Presidency, unless indeed the proposed new Civil and Criminal Procedure Codes should become Law, in which case the reader will have to note up the alterations thereby effected in this portion of the Law of Evidence.

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1816, Sec. XXVIII.(s) and Reg. IV. of 1802, Sec. XX. The penalty for recusancy is in the discretion of the judge by fine not exceeding 500 rupees.

§ 313. Act X. of 1855, Secs. II., III., IV., V., VI. and VIII., lays down the Law regarding the attendance of witnesses in Mofussil Courts.

§ 314. The attendance of the adverse party is enforced under Sec. II.

§ 315. Sec. XVI. provides that no appeal shall lie against any order or decision of a judge with respect to his summoning or examining a party.

§ 316. In England, the expenses of a witness must be tendered in the first instance, or he need not attend. By Sec. VII. of Reg. III. of 1802, the expenses need not be tendered in the first instance, but the judge can order the party summoning to pay the witness a reasonable sum. If the expenses ordered be not paid, the party at whose requisition he has been called, loses the benefit of the evidence, and the judge after decree passed, is to confine such party until he discharges the sum awarded to the witness. In England a witness not attending is liable to a suit for damages at the instance of the party summoning him, if any loss has thereby been sustained.()

§ 317. Act X. of 1855, Section X. introduces this practice of the English Courts into the Mofussil.

By the English Law, as it prevails in Courts in England and the Supreme Courts in India, where a person, required as a witness, is in custody, the method of obtaining his presence as a witness is by application to have him brought up by a writ of Habeas Corpus ad testificandum. As an instance, you may remember that some of the admirers of Buonaparte, in order to prevent his going to St. Helena, applied for a writ of Habeas Corpus to bring him up as a witness.

This provision consists of little more than pointing out the various authorities on the attendance, &c. of witnesses. As the books referred to are in the hands of all practitioners, it has not been thought necessary to swell the text with giving the passages in full; the more especially as the introduction of the new Procedure Codes will render much of the existing law obsolete.

(3) See S. A. 71 of 1852. S. R. p. 147.

(1) See Morley's Digest, Tit. Ev. case 102.

"Case 102.--A Musulman refusing to be sworn to prove the execution of a note, alleging that he was a Munshi, and could not take an oath, but, in fact, because he wished to defeat the action, was severely reprimanded by the Court. The Court, in addition, told him it was fortunate for him that the plaintiff had established his demand without his assistance: for had he failed for want of it, it would have been the duty of the Court to have considered what ought to have been done. Bantleman v. Aujoo Lubby Maistry. 5th Feb. 1807. 1 Str. 225.