TO THE

FIFTH EDITION.

So short a time has elapsed since the Fourth Edition was printed, that I have but very few observations to make on the present Edition. Such of the recent cases as elucidate the principles expounded in the text, or have wrought any changes in the Law of Evidence, have been noted up. I do not pretend to have noticed all, as to do so would only swell the bulk of the work, without any commensurate advantage being gained. The present Edition however contains a very important judgment by Mr. Justice Holloway on Judgments in rem, a subject on which there has been hitherto but little authority, and the misconception of which has led to grave mistakes in the decision of cases in India. I need only refer, for instance, to the judgment of the Privy Council, in the great Shevagunga Case, appealed from the late Madras Sudder Court.

It was open to the Lords of the Judicial Committee to have given a full and ample elucidation of the principles on which the effect of aJudgment in rem stands. But their Lordships did not do so. They contented themselves with observing that a strange mistake had been made with respect to what constitutes a Judgment in rem. As far as I am aware, the present decision is the first in which any English Judge has grappled with the subject, and traced the doctrine to its source. This Edition also contains an important decision of the Madras High Court upon Res judicata.

The Evidence Act, II of 1855, has been restored as an Appendix: the old paging has been kept, in the margin ; and all references in the Index are to the old pages. So also with respect to the Sections. The Index has been carefully revised, though compressed into a smaller compass.

MADRAS, August 1865.

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. Nevertheess, 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.

Its principles depend not upon arbitrary enactments, but upon 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 stimulating 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. 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 MeNaghten, 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 Criminal Practice; Roscoe's Criminal Evidence; Roscoe's

Civil Evidence: Taylor's Law of Evidence; Smith on Contracts; Smith's Landlord and Tenant; J. Smith's Law of Personal Property; J. Smith's Law of Real Property; Stephen's Commentaries; Abbot on Shipping; Parke on Insurance; Powell's Law of Inland Carriers; Byles on Bills; Best's and Wills' Works on Evidence; The latest (1 vol.) Edition of Sugden's Law of Vendors and Purchasers; Chitty on Contracts; Lewin on Trusts; Williams on Executors; Powell on Mortgages; Russell on Crimes; Broom's Legal Maxims ; Broom's Commentaries; Beck's Medical Jurisprudence; Mayne's Criminal Law; Mayne's Penal Code; Macpherson's Civil Procedure; Mayne on Damages; Smith's Mercantile Law; Gale on Easements. I would also recommend that the Jurist or Weekly Reporter, or both, should be regularly taken in and the cases noted up." To these may be added Domat's Civil Law, a work which contains all the universal principles of Roman Jurisprudence, without the technicalities with which the Institutes, &c. are replete. I do not mean to say that all these works are indispensable ; but that he who studies them carefully will be by no means a despicable lawyer; certainly quite adequate to the judicial investigation and decision of all such cases as ordinarily arise in practice in the Provinces.

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 submittted 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

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