CHAP. VI._ with in the same way as in the case of a similar offence before the Civil Court (1).

Expenses.

Subject to any rules that may be passed by the Local Government with the previous sanction of the Governor-General in Council, the Criminal Courts may order payment on the part of Government of the reasonable expenses of any complainant or witness attending for the purpose of any trial before such Court (2).

We have already seen that, if the Magistrate is of opinion that any witness is included in the list of witnesses, whom the defendant may wish to have summoned, for the purpose of vexation or delay, or of defeating the ends of justice, he may require the accused person to satisfy him that there are reasonable grounds for believing that such witness is material; and if he is not so satisfied, he is not bound to summon the witness, unless such a sum shall be deposited as he shall consider necessary to defray the expense of obtaining the attendance of the witness (3).

(1) Act XXV of 1861, ss. 163 and 192. By Section 208 of Act VIII of 1869, the provisions contained in Sections 188 to 192, inclusive, of Act XXV of 1861, are made applicable to witnesses summoned in support of the defence, who may be summoned by the Magistrate. Also, the provisions of Sections 187 to 192, inclusive, so far as they relate to the attendance of witnesses, are applicable to witnesses named by the accused person in the list mentioned in Section 227, Act XXV of 1861. Ante, p. 170.

(2) Act VIII of 1869, s. 438.

(3) Act XXV of 1861, s. 228. Ante, p. 189.

CHAPTER VII.

ON EXAMINATION-IN-CHIEF.

SPEAKING of the oath prescribed by the laws of Menu to be Truth the administered to the witnesses, Sir William Strange observes :mination. object of exa"The noble warning with which the subject, as detailed by Menu, is ushered in, is that either the Court must not be entered by Judges, parties, or witnesses, or law and truth must be openly declared ” (1).

A noble warning it is; and we proceed to the investigation of those principles by which, in attainment of this truth, the examination of the witnesses is regulated.

under control

They will be found in their leading features to be reduced into Examination a system, though as respects matters of detail, and the general of Judge. regulation of the working of the system itself, it is true, as observed by Professor Greeuleaf, that "the examination lies chiefly in the discretion of the Judge before whom the cause is tried, it being from its very nature susceptible of but few positive and stringent rules. The great object is to elicit the truth from the witness; but the character, intelligence, moral courage, bias, memory, and other circumstances of witnesses are so various, as to require almost equal variety in the manner of interrogation, and the degree of its intensity to attain that end. This manner and degree, therefore, as well as the circumstances of the trial, must necessarily be left somewhat at large, subject to the few general rules which we shall proceed to state" (2).

as well as in England.

This would apply alike to the Courts of England and India; This in India, and in reference to those of the latter regulated by the Civil Procedure Act (VIII of 1859), the Act, after providing for the taking of the evidence of the witnesses orally in open Court, declares that this is to be "in the presence and hearing, and under the personal direction and superintendence, of the Judge." Among other provisions for the more efficient eliciting of the testimony (which it is thought unnecessary here to repeat), the Court

CHAP. VII. is to "record such remarks as it may think material respecting the demeanour of the witness while under examination."

Examinationin-chief addressed to affirmative issue.

Among the rules for the examination of the witnesses might perhaps be expected to be found those which address themselves to the relevancy of the examination. The question of relevancy Onus probandi. belongs, however, equally to the quality of evidence, and its admissibility; and to the portion of the work devoted to this it is accordingly reserved (1). We only here observe that it is to an affirmative proof that an examination-in-chief is mainly addressed; and the proof is that of the issue to which the party producing the witness has, by his pleadings in the cause, challenged his antagonist; and this in avoidance of all diverting and collateral

matters.

"The object of evidence," says Mr. Roscoe, "is to prove the point in issue between the parties; and in doing this, there are three general rules to be kept in view: 1st, that the evidence be confined to the point in issue; 2nd, that the substance of the issue only need be proved; 3rd, that the burden of proof lies on the party asserting the affirmative fact, if unsupported by any presumption" (2).

We have seen in a former chapter (3) that, under certain given states of circumstances, there are legal deductions of fact called presumptions, which the law draws for itself, apart from actual proof. It is to a presumption of this nature Mr. Roscoe refers in his third category; and, in the exception which he makes to the onus of proof where the support of a presumption exists, he is contemplating the case in which that presumption itself would be tantamount to proof, and might supersede the occasion for evidence.

The proof would naturally fall on the affirming party-an obligation alternatively described as the burthen of proof or by its Latin rendering "onus probandi." Both the rule and its principle are thus well stated by Mr. Taylor:-" A third rule which governs the production of evidence is, that the burthen of proof lies on the party who substantially asserts the affirmative of the issue. This rule of convenience, which in the Roman law is thus expressed, Ei incumbit probatio qui dicit, non qui negat (4), has

(1) Chap. XI.

(2) Roscoe on Evidence, p. 61.

(3) Chapter I.

(4) The proof lies on him who affirms, not on him who denies.

been adopted in practice, not because it is impossible to prove a CHAP. VII. negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable; and moreover it is but reasonable and just that the party who relies upon the existence of a fact, should be called upon to prove his own In the application of this rule, regard must be had to the substance and effect of the issue, and not to its grammatical form; for, in many cases, the party, by making a slight alteration in the drawing of his pleadings, may give the issue a negative or affirmative form at his pleasure" (1).

case.

mination of

Notwithstanding the apparent simplicity of the rule, difficulty Tests for deteroccasionally arises in its application. The tests usually relied on onus. Right to to determine the question, are to examine, first, which party begin. would succeed if no evidence were given on either side; and secondly, what would be the effect of striking out of the pleadings the allegation to be proved, bearing in mind that the onus must be on whichever party would fail, if either of these steps were pursued. For example, were an action brought against a tenant for the recovery of damages for not repairing, the plaintiff's allegation would be that the premises were not kept in repair, yet he would have to prove the averment, albeit in the nature of a negative one; for though the grammatical construction of the issue would award the affirmative to the defendant, the substantial merits of the case would have to be proved by the plaintiff; and if the evidence were given, or if the allegation on which issue was joined, were struck from the record, the defendant would clearly be entitled to a verdict (2).

The party upon whom the burthen of proof lies is commonly said to have the right to begin. On this subject, Mr. Best (3) says, "as it is agreed on all hands that the order of proving depends on the burthen of proof; if it appears on the statement of the pleadings, or whatever is analogous to pleadings, that the plaintiff has nothing to prove-that the defendant has admitted every fact alleged, and takes on himself to prove something which

(1) Taylor on Evidence, Vol. I, p. 369. Old Edie Ochiltree, when brought before the Magistrate, or Bailie, on a charge of assault and theft, did not very incorrectly lay down the law on this subject, when in objecting to the course of interrogation addressed to him with a view to bringing out his supposed guilt, he exclaimed-" but it seems mair reasonable to me, now, that you, Bailie, or ony body that has onything to say against me, should prove my guilt, and no to be bidding me prove my innocence" Antiquary, Chap. XXXVII.

(2) And see Taylor on Evidence, Vol. I, p. 369, where other illustrations will be found. (3) Best on Evidence, p. 791.

CHAP. VII. will defeat the plaintiff's claim, he ought to be allowed to begin, as the burthen of proof then lies upon him. The authorities on this subject present almost a chaos. Thus much is certain, that if the onus of proving the issues, or even any one of the issues, however numerous, lies on the plaintiff, he is entitled to begin: and it seems that, if the onus of proving all the issues lies on the defendant, and the damages which the plaintiff could legally recover are either nominal or mere matter of computation, here also the defendant may begin. But the difficulty is where the burden of proving the issue, or all the issues, if more than one, lies on the defendant, and the onus of proving the amount of the damage lies on the plaintiff." Then he refers to the case of Mercer v. Whall (1), in which Lord Denman stated the rule, as promulgated by Tindal, C. J., and signed by several Judges, to be that "in actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative issue is on the defendant."

Rule that examination

affirmative

It will be obvious from what has been advanced that, in stating in-chief is to an an examination-in-chief is addressed to an affirmative issue, the issue applicable expression "affirmative" is used in the sense of something which is to witnesses of affirmed on either one side or the other. In this view a negation equally with by a defendant of the case of the plaintiff would have to be those of plaintiff.

defendant,

Testimony to be on

knowledge,

not belief or opinion.

regarded as an affirmation of the former. A, the plaintiff, avers that he sold goods to B, the defendant, while B says that he did not. The examination on the part of B of his witnesses, and in support of his defence, would be as much an examination-in-chief as that by A of his witnesses.

A witness, when under examination, must speak to facts within his knowledge. Except in certain exceptional cases, which will be pointed out, his opinion or belief would not be admissible.

Nor does this rule exclude only that which would ordinarily fall under the head of belief; such matters, for instance, as one believed because a narrator of credibility had averred their existence. It would extend even to inferences, in the nature of opinion, which the witness might himself draw from the facts before him.

Thus, in a case in which goods had been supplied to a firm, and it was sought to fix the defendant with the liability, as himself constituting the firm, or having so held him

(1) 5 Queen's Bench, p. 447.