of the execution by the subscribing witness. It appeared by the report, that notice had been given to the defendants to produce the bond, and the plaintiff's counsel called for the bond which the defendant's counsel declined to produce. On the part of the plaintiff, a copy was produced, and proved to have been obtained from the Sheriff's office, and was about to be read, whereupon the counsel for the defendants produced the original, and insisted that it could not be read until the subscribing witness had been called. The document, however, was read without the production of the witness; and it is contended that this ought not to have been done. We are, however, of opinion that the evidence was properly received. The document having been in the first instance kept back, and the plaintiff having entitled himself to read a copy without any proof being given that there was a subscribing witness to the original instrument, and having put it in to be read, the defendant's counsel let slip his opportunity, and had no right then to interpose and produce the original; and although in point of fact the original was read, that was but by a sort of legerdemain, and the proper evidence must be considered as having been read, which was the copy produced and proved by the counsel for the defendants. The case of Jackson v. Allen, bears out our view of the rights of the plaintiff's counsel under the circumstances."(i)

§ 583. A party who has given notice to produce, is not bound to pursue the matter further; and the opposite party cannot insist upon the document being produced, simply because he has had such notice; nor will it thereby become evidence for himself; but if the party who has given the notice, call for the document, which is produced in consequence, and inspect it, and thereupon declines to put it in evidence, he thereby makes it evidence.

See Wharam v. Routledge,(k) where Lord Ellenborough said :

"You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you called for it, you make it evidence for the other side, if they think fit to use it."

§ 583a. If a party refuse to produce a notice, he cannot afterwards produce as his own evidence. Laxton v. Reynolds.(1)

(i) See S. A. 91 of 1858. M. 8. R. for 1858, p. 148. 12 of 1815, M. S. D. p. 133. 3 M. I. A. 156, 53 of 1856, M. S. R. for 1857, p. 96. 7 of 1816, M. S. D. p. 136.

(k) 5 Esq. 234.

(1) 18 Jurist, p. 963.

CHAPTER XXXIII.

§ 584. We come now to the last remaining great branch of our subject that is to say, how Instruments are used in proof: and this we shall divide into two heads :

1st.

How proofs are to be supplied by the parties.

2nd. How they are to be applied by the Judge.

See the observations of P. C. on latitude with which documentary evidence is admitted by Indian Courts, Banwall Lall v. Maharajah Hetnarain Sing. 7 Moore's I. A. 148.

For the present we shall confine ourselves to the first head; and this will require consideration as to three distinct topics.

1st. On whom rests the burthen of proof; i. e., who is to supply the evidence.

2nd. What quantity of evidence need be produced, i.e., what amount of evidence must be offered in support of an issue. 3rd. The quality of the proof which it is necessary to produce.

I. On whom the burthen of proof rests.

§ 585. By the Civil Procedure Code, the Judge settles the issues to be proved, but the parties must produce the evidence to prove these issues. See Morley's Digest, N. S. Tit. Ev. c. 57.

"It was held to be highly irregular for the Court below to send for records of cases, judicial or revenue, in proof of allegations before the Court, instead of leaving it to the parties to adduce their own proofs. Anoopnauth Missur and another v. Dulmer Khan and another, 31st August 1846. 1. Decis. N. W. P. 135.-Thompson, Cartwright, and Begbie. Hafiz Mahood Khan and others v. Moonshee Sahib Loll and others, 7th December 1846. 1. Decis. N. W. P. 239.-Tayler, Thompson, and Cartwright. Sheodial Rae and others v. Bukht Rae and others, 15th December 1846. 1. Decis. N. W. P. 249-Tayler, Thompson, and Cartwright. Chota Singh v. Pershaud Singh, 8th January 1847. 2. Decis. N. W. P. 1.-Thompson. Rajah Nowut Kishore ▾. Syud Enayut Alee, 22nd March 1847. 2. Decis. N. W. P. 63-Tayler, Thompson, and Cartwright. Deenyal v. Syed Hoossein Ali and others. 31st July 1848. 3. Decis. N. W. P. 258.-Thompson and Cartwright. (Tayler,

dissent.) Futteh Narian Singh and others v. Bhoabul Singh and others. 6th March 1849. 4 Decis. N. W. P. 44.-Thompson."(m)

§ 586. The Law is quiescent until certain facts are established, to

(m) I have placed (writes Mr. Morley) these cases together, as they all bear upon the point of the power of the Court to call for documentary evidence not adduced by the parties to a suit, though slight differences exist as to their circumstances. In the first four cases the Lower Court had called for evidence recorded in suits previously dismissed; in the fifth and sixth cases the Principal Sudder Ameen had sent, at the request of the plaintiff, for records from the Collector's Office, and in the sixth, likewise, for the whole of certain proceedings that were held in the execution of decree department. In the last case the Principal Sudder Ameen required from the Judge's, the Collector's Office, a mass of proceedings and papers which, to use the words of the deciding Judge, might "fairly be termed a chaotic heap." The decision was given with reference to that passed in the sixth case. The majority of the Court, in giving judgment in the sixth case, observed that they were further of opinion that the practice of sending for revenue or judicial proceedings, excepting such as are specially allowed by the Regulations, such as Sec. 31 of Reg. VII of 1822, was tantamount to allowing an evasion of the Stamp Law, and quoted Sec. 17 of Reg. X of 1829, and Sec. 18 and Schedule B of the same Regulation. They concluded by stating, that, in their opinion, the practice was not only unsanctioned by law, but that it was opposed to every rule of practice which that law lays down, and productive of nothing but inconvenience and uncertainty from first to last. Mr. Tayler recorded his dissent in this case at considerable length, and stated, amongst other things, that the practice of the Court when he joined it was invariably to send for records or proceedings on good cause being shown: that the same practice existed in the Calcutta Court; and that the principle was recognised in Constructions, No. 693 and 1259. He further observed, that the practice had been denounced by recent decisions, and referred to the cases Hafiz Mohumed Khan, Chota Singh and Rajah Nowul Kishore, abovementioned, as having attracted the notice of Mr. Ledlie, the Principal Sudder Ameen, at Bareilly, who addressed the Court on the subject, and requested to know, whether with reference to those decisions, he was competent, on the motion of the party disputing an exhibit, to send for the particular paper, or the entire record, if necessary, in order to ascertain whether the document had been clandestinely foisted into the file, or the record falsified, as represented. He was informed, in reply, that he had full power, and he was referred to Constructions, Nos. 693 and 1259, which it was observed by the Court, expressly recognize the competency of the Court "to call for the records of a public office with a view to a just decision between the parties in suits pending before them." In regard to the case of Rajah Nowul Kishore, it was observed, "that it cannot be supposed that the Court, in passing the decision, overlooked the Construction 1259, or that they intended by implication to repudiate an authoritative rescript: the only allow. able presumption is, that the Principal Sudder Ameen irregularly insisted on sending for paper, of which the parties might have obtained copies without much expense, when the circumstances of the case were not so 'peculiar as to justify the act.' Mr. Tayler proceeded to remark that he did not intend, by the decision in Rajah Nowul Kishore's case, to discountenance the practice of calling for records, but to condemn an indiscriminate and injudicious call for them; and added extracts from a letter of the Calcutta Court in answer to a reference made to them on this point. These extracts I subjoin, as they clearly lay down the practice of the Calcutta Court :-" Par. 3rd. Viewing the question generally, the Court observe, that although ordinarily the Courts are not to seek for evidence, but to decide on what the parties choose to place before them, they are not precluded from calling for whatever evidence they may consider necessary for the elucidation of a case. The expression in Cl. 3, Sec. 10, Reg. XXVI, 1814, "evidence may be adduced by either party," is not considered to restrict the exercise of the Court's discretion in that res pect. Par. 4th. The practice of this Court is in conformity with these views. As an instance, may be mentioned the case of Sumeshur Pundee and others v. Rajah Gopal Surn Singh, decided on the 24th September 1845, (p. 306 of printed decisions,) when the Court through their Register called upon Government for certain records which the Judge considered would throw light on the question before them." And see the Placita 44c. 45, 58 et seq.

which it can attach certain consequences.(") Hence it is for him who seeks to attach such consequences, to bring forward proof of the facts which will warrant the attachment.(0)

See Morley's Digest, Tit. Ev. c. 121.

"Where the seals affixed to two documents alleged to have been executed by the same party were different, it was held that it was incumbent on the person claiming under such instruments, and producing them, to show, by evidence, that the party who was alleged to have executed the deeds was in the habit of using one or the other, or both of these seals. Husan Ruza Khan Bahadoor v. Mohammud Muhdee Khan. Case 12 of 1817. 1. Mad. Dec. 167.-Scott, Greenway and Ogilvie."

Ibid, c. 125.

"Where a person, after having filed a Rázinamah pleaded that the execution of it had been forced, but though repeatedly desired to prove his assertion, had failed so to do, the suit was dismissed with costs. Sheikh Dahoo v. The Collector of Purnea, for the Court of Wards. 2nd July 1825, 4 S. D. Rep. 80.-C. Smith."

§ 587. By the Mahomedan Law, when a defendant simply denies the truth of the plaintiff's case, the plaintiff must prove the affirmative; but when the defendant pleads some special matter in defence, he must prove his plea. Hukeem Wahid Ali v. Khan Beebee, 3 S. D. U. R. p. 102. Morley's Digest, Tit. Ev. c. 13.

"According to the rule of Mahomedan law, it is necessary that the plaintiff should adduce evidence to prove his claim on simple denial by the defendant but when any special plea is urged, the onus probandi rests with the defendant. Hukeen Wahid Ali v. Khan Beebee, 6th August 1821. 3 S. D. A. Rep. 102.-Goad."

:

§ 588. As a general rule by the English law of evidence, the party who asserts the affirmative is bound to prove it ; not only because it is incumbent on him to establish those facts to which he submits that certain legal consequences are to be attached ; but also from the inconvenience, difficulty(p) and delay, which attend the attempt to prove a

(n) It is a peculiarity of the barbarous codes of the dark ages that the accused began by proving his innocence.

(0) Hence the maxims actore non probante, reus absolvitur. denties &c. Ei incumbit probatio qui dicit, non qui nagat, &c. See them collected. Best, § 261.

Melior est conditio defen

(p) It is sometimes said that it is impossible to prove a negative, and that the maxim is lex non cogit ad impossibilia, the law does not require the performance of impossibilities but the doctrine is a fallacy; and the negative, as will be seen in the text, not only is capable of proof, but very often must be proved.

(2) According to the English practice, it is often of great importance to preserve the

§ 588a. In Trew, Executor of Hiorns v. Railway Passenger Assurance Company,(r) it was held that the party on whom the burthen of proof rests, must make out his case: it is not sufficient if he adduces evidence which is consistent with the truth of his own case, and that of his adversary.

§ 589. It is a good test for settling the question, on whom lies. the burthen of proof to consider for whom the verdict must be given, if no evidence were offered on either side. The party against whom the verdict would be given in the absence of evidence will have the laboring oar.

Qui regulam pro se habit transfert onus probandi in adversarium," was the maxim of the Roman law.

§ 590. But it is the affirmative in substance rather than in form which is to be looked to, for otherwise an ingenious pleader might frequently shift the burthen of proof from himself to his adversary by the form of his pleadings. Put the case of a Hindu family living together as an ordinary Hindu undivided family. A has dealings with one of the members by purchasing from him part of the family estate. A suit results in which it is important to show that the family was in fact divided, in order to secure plaintiff's title, inasmuch as it is a presumption of Hindu Law that every family living together primâ facie is undivided, and (donec probetur in contrarium, &c.) the presumption shall be relied on till the contrary is proved. Here the proof of division-the affirmative that the family is divided— clearly lies on A, nor could he shift it from himself by pleading in a negative form that the family was not undivided. It is the substance which will be looked to here, in determining on whom lies the burthen of proof of the state of the family. See Morley's Digest, N. S. Tit. Ev. c. 135.

"Where it is alleged that property which belonged to a member of an undivided Hindu family was separate property, the burthen of proof as to

:

right to begin, as it carries with it the general reply by the pleader upon the whole of the evidence but according to the Mofussil practice, where the pleaders do not address the Court until the whole of the evidence on both sides has been put in, it is perhaps of less importance; unless indeed the Court should lay down an analogous rule to that of the English law; for then it would not be the plaintiff's pleader who would always reply upon his adversary, but the pleader of that party who had been compelled to prove the affirmative. See Starkie, p. 611. note (x). In the Sudder, the appellant has the general reply.

And the maxim is Stabitur in præsumptione donec probetur in contrarium. (r) 6 Jur. N. S. p., 759.