EFFECT OF PLEADINGS AS ADMISSIONS.

257

original defence in the City Court, and, moreover, having been withheld for so long a time, was not considered by the Court as competent to preclude a judgment on the case according to the law of inheritance. Sufdur Hosein v. Enayut Hosein. 25th Nov. 1805. 1 S. D. A. Rep. III.-H. Colebrooke & Harington."

See Morley's Digest, N. S. Tit. Ev. c. 17.

"Where a party sued certain persons for cutting and carrying away the whole crop on certain lands cultivated by them under a Bhaoli tenure (according to which the Zamindár and the tenant divide the crop), and the cultivators replied that the plaintiff had not supplied them with seed at the proper time, and that when he did give it the seed was old and bad, such reply was held to be a clear admission of the Bhaoli tenure. Surbjeet Singh v. Kanta Chung Chowkeedar and others, 31st May 1847. S. D. A. Decis. Beng. 184.-Tucker."

Ib. N. S. Tit. Ev. c. 19.

"Where the plaintiffs sued in one and the same action for possession of certain Chur lands and for balances of rent; it was held, under the circumstances of the case, and taking the plaint by itself, that the suit should be dismissed; but as the defendant in his answer declared that he was willing to pay at a certain rate, and admitted a certain sum as due to the plaintiffs for rent, such sum was decreed to the plaintiffs. Broderick v. Hurmohun Raee. 11th Sept. 1847. S. D. A. Decis. Beng. 536.-Tucker, Barlow, & Hawkins."

§ 537. Pleadings, as has been before observed, (see ante § 536) operate against the party making them as admissions; and they should be drawn with care, as in many cases a party by pleading over, that is omitting to notice a material alleged fact in his adversary's pleading, is thereby taken to have admitted it.(ƒ)

CHAPTER XXX.

II. QUASI PUBLIC INSTRUMENTS.

§ 538. Such are memorial rolls, corporations, and perhaps joint

(f) The rules as to "pleading over" are of some nicety, but they fall under Lectures on Pleading, rather than on Evidence. The whole subject is elaborately considered by Taylor, 584-596.

See Modu Kaikoosoor Homusjee v. Coovoo Bhaee, 6 Moore's I. A. 448, where, it was held that there was no obligation on the Court in the absence of any pleading of family usage or custom, to call for evidence of the fact.

stock company books. It is obviously useless to consider the law on this head in the present state of this country.

CHAPTER XXXI.

III. PRIVATE INSTRUMENTS.

§ 539. Having exhausted the subject of public, we now come to the other great branch: private Instruments, or writings.

§ 540. All private writings tendered in evidence must be one of two classes; either made by a third person; or by the party against whom they are offered, or his privies.

§ 541. We shall consider private writings.

§ 542. With regard to writings made by third persons; it is unnecessary to add anything to what has been before stated. Written declarations and entries by third persons are generally not receivable, because they are res inter alios actæ, not under sanction of an oath, not tested by cross-examination. The exceptions are those already considered, with reference to entries against interest, in the course of business, &c. (see ante § 170 & 192.)

§ 543. We come then to a private writing made by the party him. self, or his privy. These are ordinarily contracts, or writings in connexion with them. Contracts are reduced to writing for the express purpose of being afterwards referrible to as the record of the agreement entered into. Some contracts are under seal; others are not. The former are held to be of a more solemn character, on the supposition that they are generally entered into with a greater degree of deliberation than the latter ;(9) and they certainly by law require a more solemn revocation.

(g) As to this see ante f 91 & 94.

§ 544. The Hindu law very clearly lays down the expediency of committing contracts to writing. According to Menu(1) “ Men after the space of six months forget, therefore the Creator invented writing" and it is expedient that when men have reduced their final settled wishes to writing, the writing itself should be taken to be the depository of their intentions. By Hindu Law no writing is necessary to evidence any contract. It would seem that in this respect the Mahomedan Law differs and requires a writing. See S. A. 23 of 1854. Mad. S. R. for 1855, p. 196. This subject will be considered at large hereafter, when we come to the cases in which parol evidence may be adduced to explain written instruments, &c. For the present it will suffice to quote the words of Starkie :(k)

"It may be observed here, that since in all these cases these documents have been framed by the parties themselves as the authentic evidence of the facts which they contain, and of their own intentions, no other evidence can in general be admitted to alter the obvious sense and meaning of the terms which they have used; to admit this would be to deprive them of all effect as permanent memorials for the purposes of evidence, for they could no longer be so considered if their meaning could be altered and subverted by extrinsic and collateral evidence."

§ 545. Where the writing of a party is used against him, its effect is that of an admission and this subject has been so fully considered, that it is only necessary to refer to what has been already said. See ante § 201.

See 1 Morley's Digest, N. S. Tit. Ev. c. 20.

"An admission by a party in a Rázínámeh filed in a suit is good evidence to refute a plea advanced by him in another suit. Vencapa Hegady v. Ganapaya. 15th Nov. 1849. S. A. Decis. Mad. 111.-Hooper & Thompson."

(h) 1 Coleb. p. 20. S. 17, Sir T. S. p. 276.

(i) Mr. Justice Strange in his manual in effect seems to maintain that there is no room for such an instrument as a Hindu Will see § 168-183. But it is perhaps too late to hold this contention. "Wills" are recognized in the Supreme and Sudder Courts of all Presidencies for many years past. Cases founded on Wills are of every day occurrence in all the Mofussil Courts. In the very last Volume of the Privy Council cases. 6 Moore. p. 526. Sreemutty Soorjeemoney Dossee v. Denobundo Mullich, we find "Rules for construing Hindu Wills" laid down. Though it is true that the Hindu law in its original antiquity knows no such instrument as a will, Sir T. Strange in his 1st vol. p. 253, shows that the practice has long prevailed and been recognized. Courts must keep pace with the wants of advancing civiliza tion, and alter their dogmata with the march of intellect. So in Walworth v. Holt 4. M. and C. p. 635, Lord Cottenham says "It is the duty of the Court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice and to enforce rights for which there is no other remedy."

(k) Page 463.

§ 546. Where a party has made an admission under seal, it must be pleaded, if it is sought to conclude him by it: that is, if the antagonist has the opportunity of pleading it. The whole subject of estoppels is lucidly considered by Mr. Smith in his note to the Duchess of Kingston's case.) But the tendency of modern authority leans against the doctrine of estoppels: and the New York Civil Code, § 1792, abolishes them.

"No evidence is by law made conclusive or unanswerable, unless so declared by this code. Estoppels are therefore abolished."

CHAPTER XXXII.

2ND. PROOF OF PRIVATE WRITINGS.

§ 547. It may not be out of place here to notice the comment of Sir William Jones on the character of the Hindu Law of Evidence. (m)

"That, with some trifling exceptions, the Hindu doctrine of evidence is, for the most part, distinguished nearly as much as our own, by the excellent sense that determines the competency, and designates the choice of witnesses, with the manner of examining, and the credit to be given them; as well as by the solemn earnestness, with which the obligation of truth is urged, and inculcated; insomuch that less cannot be said of this part of their law, than it will be read by every English lawyer with a mixture of admiration and delight, as it may be studied by him to advantage."

In proof of the justice of these remarks, let us cite the following Section from Colebrooke's Digest:(")

"Written evidence is declared to be of two sorts; the first, in the handwriting of the party himself, which need not have subscribing witnesses; and the second, in that of another person, which ought to be attested the validity of both depends on the usage established in the country.

§ 548. Whenever an instrument can be produced by a party, it should be so. By Reg. III. of 1802, Sec. VII. every exhibit must

(1) 2 Vol. Leading Cases, p. 436.

(m) 1 Str. p. 309.

(n) 1 Coleb, p. 21.

be produced in Court. By Reg. XV. of 1816, Sec. X. cl. 1. exhibits are not to be filed till the pleadings are complete. By Act X. of 1855, Sec. XVII. exhibits referred to in the pleadings must be filed with them.

§ 549. The writing must be proved to be that of the party purporting to have written it. Where there is a signature, the signature should be proved. Where there is a seal, the execution of the instrument must be proved; execution means, not the signature alone, but the delivery of the instrument with intent that it should take effect absolutely.(0)

§ 550. Where the instrument is attested, that is, has the signature of a witness, as well as of the party, generally speaking the attesting witness should be called, and prove his own and the party's signature, and that he saw the party sign the same.(p)

§ 551. When there are several attesting witnesses, it is not necessary to call them all, but one at least ought to be called. See Morley's Digest, N. S. Tit. Ev. c. 45.

"One of the witnesses to a deed being living, he should be called and examined, though the Court may have before it copies of the depositions of deceased witnesses taken in a summary proceeding relating to the same property. Sutputtee Dassee and others. v. Ramnurain Mookerjee and others. 6th March 1848. S. D. A. Decis. Beng. 136.-Hawkins.

§ 552. If the document is suspected or impugned, as where it is alleged to be a forgery, in prudence all the attesting witnesses should be called. Their absence affords strong ground for hostile comment by the opposite pleader, and suspicion by the judge.

§ 553. By Act II. of 1855. Sec. XXXVII. it is provided that an attested document may be proved as if unattested, unless it be a document to the validity of which attestation is requisite. Such for instance is the will of a British subject, whichrequires the attestation of two witnesses.

(0) Otherwise it will be an escrow; of which post.

(p) It is not an unusual practice in India for a person purporting to be an attesting wit ness, to put his signature, not at the time of the party's signature, but afterwards: and cross-examination on this point will often detect this. The party may have admitted it was his signature to the witness at the time he requested him to attest; which would be equivalent to having seen him sign; but in fraudulent cases, I have several times seen a concocted document exposed by a judicious cross-examination on this point.