PREFACE

TO THE

FIRST EDITION.

I HAVE always maintained that a familiarity with the principles of the Law of Evidence on the part of both Judges and Vakeels, is the chief thing requisite to secure an efficient administration of Justice in India. Considerable practice for several years in the Sudder has placed within my reach the means of forming a confident opinion upon this point: and the result of my experience is, that in the great majority of cases, the errors observable in the decrees of the Original and Appellate Courts are to be traced to a want of practical knowledge of this subject. A man of strong sense may probably come to a right conclusion, one which shall meet the justice of the case, upon any set of facts submitted to his judgment. Complicated cases in which it becomes necessary to draw fine distinctions in regard to doctrines of Law, seldom arise in this country; the Courts are not hampered by precedent; and they are directed to decide" according to equity and good conscience." It is in the process of collecting the facts, especially in the delicate task of excluding such facts as the Law of Evidence says shall not form part of the matter to be considered, that justice chiefly miscarries; for it is apparent that injustice may as effectually result from our forming our opinion upon facts which ought never to have been admitted, as from pronouncing an erroneous decision upon facts legitimately before us. When once the Law of

Evidence is understood, the practitioner has a guide, a rule and mote-wand to keep him straight in every case in which he is concerned, be its subject-matter what it may. With this knowledge, any man of fair average ability and habits of assi

duity and patience, may hope to administer the law efficiently in this country for many years to come, although a knowledge of the principles of Jurisprudence generally cannot fail to make him infinitely more competent.

A consideration of these facts induced me to take up the Law of Evidence as the first subject of the Lectures which I had to deliver as Professor of the Law: and the present volume contains the substance of the course which I delivered.

My object was to produce a volume which should be a textbook for the Judge, the Practitioner, and the Student.* No such book, adapted to the wants of India, has hitherto been extant. English Law-books, such as the works of Starkie, Taylor, and the like, are very costly; and while they contain a quantity of matter which it is not indispensable that the Indian Lawyer should know, they of course do not contain those points of practice, regulations, and cases, with which it is necessary for him to be familiar. The books of practice, such as Roscoe, Archbold, and the like, are too condensed and technical; and both classes are crammed with a multitude of references to cases, which, from want of Law Libraries, are inaccessible in the Company's Courts.

I have sought to make the present work, as much as possible, self-contained. Having regard to the impossibility of the reader's referring to books of reports for himself, I have abstracted and introduced into the body of the text, those leading cases, or parts of them, that illustrate the point under discussion. As I do not write for the Supreme Court Bar, I have not thought it necessary to multiply my cases, or even to refer to the latest decisions in point of time, where they have not made any marked alteration in the Law, or rest upon fine distinctions. My chief aim has been to explain first principles;

It would be desirable that the Law Lecturers at the various Colleges should be required to publish their Lectures at the earliest practicable period after delivery. As we have some four Professors at work, each upon a different subject, we should thus, by the time an entire curriculum of instruction is once run through, have a body of text-books on the most important subjects of Law.

PREFACE TO THE FIRST EDITION.

vii

in doing this, I have not attempted any originality, but copiously availed myself of the expositions of writers of acknowledged merit; and this form of conveying instruction was unavoidable in the Lecture room, where the pupils could only be furnished with references which they had to verify for themselves. I have endeavoured to be as little technical as possible, though I fear that some may think I might have been less technical still with more advantage.

A logical synopsis of the contents of the Lectures, which I placed in the hands of the class at starting, will be found at the commencement of the work. I would advise the student to refer frequently to this during the course of his reading; as he will thus see the dependence of one part upon another, and obtain a clear idea of his own progress as he proceeds.

Although I have bestowed much time and attention in preparing the present volume from my notes, and in passing it through the Press; I am aware that there must be in it many faults and deficiencies of execution, for which I crave the forbearance of the critic. I offer this work to the Indian Legal Profession, as my contribution to those efforts, which many are now commendably making in this Presidency, to explain the Law; in the sincere hope that it may aid in facilitating the administration of Justice.

I cannot conclude without expressing my deep sense of obligation to Mr. John Maskell of the Revenue Board, who was one of my Students, and without whose kind aid I could not have got this book through the Press; his full and accurate notes of my Lectures have lightened my labors; his methodical care and accuracy have saved the pages from being full of typographical errors; and to him are owing those copious Indices, without which, even the most valuable Law book is but as a costly tool without a handle.

PREFACE

TO THE

SECOND EDITION.

THE success of this work, beyond either my anticipations. or its own deserts, proves the correctness of my belief that the Law of Evidence was the most important subject on which a Professor of the Law could commence his lectures. For the rapid sale of the first Edition is attributable far more to a general craving for information on this topic, than to the fashion in which the work itself was performed. Nevertheless, the volume is now stamped as one of authority; since the Governments of Madras and Bombay have introduced it as one of the text and test books of the candidates for legal and revenue preferment; nor is there any reason why the same course should not be adopted by every Government in India. The Law of Evidence, with very trifling local variations, is one and the same throughout Her Majesty's dominions.

upon

Its principles depend not upon arbitrary enactments, but well reasoned arguments of what is convenient and just. The noting up of Bengal or Bombay Regulations and cases, would form a useful exercise for the students in those Presidencies; as in respect to Regulations and Sudder Decisions alone, this work is illustrated by the authorities of the Presidency of Madras. In all other respects, it is as suitable for one Presidency as another.

The Governments of Bombay and the North West Provinces have notified their desire to have the work translated into the vernaculars principally prevailing in their own territories; facts which I venture to make public, in the hope of stimu

PREFACE TO THE SECOND EDITION.

ix

lating the present Professors of the Law to publish their lectures at the earliest possible date, so as to place within easy reach of all Indian legal practitioners a complete body of text books on the subject-matter of their studies.

In preparing the Second Edition, I have spared no pains to make the volume as deserving as possible of the patronage and support of the Public. of the Public. With this view, I have divided it into Chapters, and have added a column of pages to the sectional references in the Index. The Index has been enlarged, many new Cases, Acts, and Maxims quoted, and additional matter thrown in here and there, though without altering the arrangement of Sections followed in the first Edition.

During the passage of this Edition through the Press, the Legislature passed the New Procedure Act, of which the portions applicable to Evidence have been collected in Appendix No. II, as it was too late to distribute them in the several places to which they were applicable in the text. A third Appendix has also been added, containing the principal Decisions of the Privy Council, Madras Sudder, and the Old Madras Select Decisions, upon points of Evidence.

Finally, I venture to mention here, as more likely to attract attention, the substance of a note to Section 741, (first Edition) wherein I endeavoured to enumerate the Law-books most requisite for the Indian Practitioner, Judge, Pleader, or Student in the Provinces.

"I need not refer to Regulations, Circular Orders, Acts, Macpherson, Baynes, Dawes, and other writers on Indian Law, because I conceive that they must be in the possession of every body. The same observation applies to McNaghten, Strange, Elberling, &c. As to English law writers, I should recommend all Mr. Justice Story's works; Smith's Leading Cases; Tudor and White's Leading Cases in Equity; their forthcoming Leading Cases on Mercantile Law: Archbold's