ed and saw executed by B. Held, that the admission, by B's witnesses, of the existence of a bond, similar in amount and date, independent of other considerations, gave to the evidence a manifest preponderance in favor of A; and B was accordingly decreed to pay the amount due on the bond with interest. Narasimmah Chitty v. Wheatley. Case 2 of 1824. 1 Mad. Dec. 435-Grant & Gowan."

See also Starkie, page 818.

"But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale. This happens, as it seems, in all cases where no presumption of law, or prima facie right, operates in favor of either party; as, for example, where the question between the owners of contiguous estates is, whether a particular tree near the boundary grows on the land of one or of the other. But even where the contest is as to civil rights only, a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient. It would be so in all cases where it fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law. If a party claimed as devisee against the heir at law, full proof of the devise, with all its formalities, would be essential; circumstantial evidence, which merely showed it to be more probable that the testator had made a will in favor of the party claiming as devisee, than that he had not done so, would be insufficient. So where a devise to be fully established by one who claimed as devisee, it would not be sufficient to show a mere probability that the devisor had made a subsequent will, revoking the former. One who seeks to charge another with a debt, must do so by full and satisfactory proof; and on the other hand, where a debt has once been established by competent proof, the debtor cannot discharge himself but by full proof of satisfaction. Again, where the law raises a presumption in favor of the fact, the contrary must be fully proved, or at the least such facts must be proved as are sufficient to raise a contrary and stronger presumption. Thus the law presumes a man to be innocent of a crime until his guilt be proved; but if the fact be proved that A killed B, then the presumption of law which before was in favor of A is now against him, and malice will be presumed, unless he can establish facts which justify or extenuate the act."

§ 774. But in criminal cases, in order to convict, the evidence must be conclusive. Observe, however, that evidence, inconclusive in itself, may become conclusive, through the defect of proof on the other side, or by the act of the party himself. So where a man is accused of theft, the only evidence being his recent possession of the stolen

AND CRIMINAL CASES.

413 goods, the mere possession is in itself inconclusive, but it establishes a primâ facie probability against the accused, which casts on him the onus of showing that he became originally honestly possessed of the property. Thus in the case of R. v. Parthasarthy and others at the Madras July Sessions for 1855, when the party accused said taht one Moonesawmy gave him the document he was accused of forging, and he called evidence to character, but did not call Moonesawmy or in any way account for his not doing so, this rendered the evidence inconclusive before, conclusive against him. So in Palmer's case, when the accused declared that he had given the strychnine which he purchased, to his groom to kill dogs that infested the premises; and that dogs had been so destroyed; the prisoner's neglect to call the groom, or to show that dogs had been so killed, was a very strong circumstance against him. The poison was traced to his possession: he avowed that he had disposed of it in a particular way totally incompatible with his administering it to the deceased, and which, if true, must have established his own innocence; yet he took no steps to establish this fact, all important to him, if true. The presumption, if not irresistible, was strongly inculpatory of him.

See also Morley's Digest, Tit. Ev. c. 124.

“An Ikrar nameh, or written acknowledgment, from the defendant to the plaintiff, that the latter is proprietor of a portion of the estate belonging to the former, was held to be good evidence of the transfer, although no consideration was proved; an attempt by the defendant to prove a counter Ikrar nameh by the plaintiff having failed. Ranee Indranee v. Ram Koomar Burm. 21st July 1824. 3 S. D. A. Rep. 392.-Martin and Harington."

§ 775. We come now to the principles which should guide a judge in his appreciation of direct personal testimony. Be it remembered he is always to decide secundum allegata et probata.

§ 776. Discrepancies, often trifling in themselves, when compared with the great mass of evidence in the case, are only too frequently made in Indian Courts the ground for acquittal, or disbelief. (P) It may of course happen that discrepancies occur in such material portions of the evidence; are so glaring and so utterly irreconcileable with the truth of the rest of the case, or of the story of the particular

(p) See Morley's Digest, Tit. Cr. Law, c. 240.

Held, that the discrepancy of the evidence of the parties in an affray affords no ground for the acquittal of those charged: credit must be given to that which appears best supported by the circumstances of the case. Rowsun Pardhun v. Ruggoo Dowbey and others. 22d April 1829. 3 N. A. Rep. 221.-Leycester and Rattray."

witness; as to afford just ground for an unfavorable verdict, or for the rejection of the whole of a particular witness's evidence. But this is comparatively seldom the case; and the acute and practised judge will generally be able to sift the wheat from the chaff, to separate the true from the false; and if after this has been done, there remains a residuum of credible testimony, he should thereon found his judgment; not reject the whole evidence on account of its being more or less tainted with incredibility. A plea constantly urged on behalf of the judges in the Mofussil, is the difficulty of their task as compared with that of judges in England, in consequence of the untruthful nature of the evidence with which the former have to deal. The presumption in England, it is said, is that a witness is the witness of truth; here, the presumption is that a witness is the witness of falsehood. But however true this may be, I doubt much if the witnesses in the Mofussil are more untrustworthy than those in the Supreme Court. Yet there, though the fact is to be lamented, we seldom if ever hear a complaint raised on the score of this difficulty. The judges thread their way safely amid the burning ploughshares about them; and I must be pardoned for expressing my conviction that the greater the difficulty of the task, the greater is the necessity for instructed judges; the greater the probability that the instructed judge will succeed where the uninstructed will fail

incedit per ignes Suppositos cineri doloso.

The conduct of mankind at large under given circumstances varies so little when their own interests are at stake, that the judge usually has safe landmarks to go by, however extraordinary may be the accounts given of transactions by parties and their witnesses.(?)

§ 777. Trifling discrepancies are often a test of truth; and the observations of Paley, though familiar, are too important to be omitted. "I know not" he writes,(r

"A more rash or unphilosophical conduct of the understanding than to reject the substance of a story, by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experi ence of courts of justice teaches. When accounts of a transaction come

(g) See note to Sec. 295.

(r) Evid. of Christ. part III. ch. 1.

APPRECIATION OF EVIDENCE.

415 from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but oftentimes with little impression upon the minds of the judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud. When written histories touch upon the same scenes of action, the comparison almost always affords ground for a like reflection. Numerous, and sometimes important, variations present themselves; not seldom, also, absolute and final contradictions; yet neither one nor the other are deemed sufficient to share the credibility of the main fact. The embassy of the Jews to deprecate the execution of Claudian's order to place his statue in their temple, Philo places in harvest; Josephus in seed-time-both contemporary writers. No reader is led by this inconsistency to doubt whether such an embassy was sent, or whether such an order was given. Our own history supplies examples of the same kind. In the account of the Marquis of Argyle's death, in the reign of Charles II., we have a very remarkable. contradiction. Lord Clarendon relates that he was condemned to be hanged, which was performed the same day; on the contrary, Burnet, Woodrow, Heath, Echard, concur in stating that he was beheaded; and that he was condemned upon the Saturday, and executed upon the Monday. Was any reader of English history ever sceptic enough to raise from hence a question, whether the Marquis of Argyle was executed or not?"

To this let us add the caution of Hallam,(s) and we shall have a pretty accurate idea of the manner in which, and the extent to which, discrepancies ought to affect our belief in evidence.

"Such a maxim, if not applied with great discretion and much limitation, leads to absurdity, and would be laughed at in any court of justice. The tendency of any mixture of error in testimony is to lessen the probability of the whole. This diminution is in many cases so small, as not perceptibly to affect our belief. But where an essential circumstance in a story is evidently unfounded, it is to pull a stone out of an arch; the whole fabric must fall to the ground."

CHAPTER XLIV.

§ 778. In determining on the credit due to the witnesses, the judge should have regard to the following considerations:

1st. Their integrity.

(s) Const. Hist. of England, vol. 2, p. 637.

2nd. Their ability.

3rd. Their number and consistency with each other.

4th. The conformity of their testimony with experience.

5th. The conformity of their testimony with collateral cir

cumstances.

§ 779. A judge is to weigh, not to number witnesses. Thus the testimony of an infamous witness is not to be rejected on that account; but the circumstance is one of the deepest moment in weighing the amount of credit due to him. See Starkie, page 821.

"A witness of depraved and abandoned character may not be unworthy of credit, where it appears that there is not the slightest motive or inducement for misrepresentation; for there is a natural tendency to declare the truth, which is never wholly eradicated, even from the most vicious minds; and the danger of detection, and the risk of temporal punishment, may operate as restraints upon the most unprincipled, even where motives for veracity of a higher nature are wanting.

"But it is to be remarked, that it is difficult to detect the motives which may influence a depraved and corrupted mind; and hence it is for the jury to consider, whether the apparent want of motive to deceive be sufficient to accredit an exceptionable witness, and whether some assurance of the actual absence of such a motive be not necessary to warrant their confidence. A jury may, no doubt, in a criminal case, convict on the testimony of an accomplice, but then it is expected that the tainted credit of the witness should be supported by circumstances confirmatory of his testimony in material points; so that in practice such a witness is considered to be incredible, unless his testimony be supported by undoubted facts and unexceptionable

witnesses.

"It frequently happens that a witness labors under some influence arising from natural affection, near connexion, or mere expectation of contingent benefit or evil, which may afford a strong temptation to perjury. In these as in so many other cases, it is for the jury to estimate the degree of influence by which the testimony of a witness is likely to be corrupted, and to determine whether, under all the circumstances, he be the witness of truth."

§ 780. We may conveniently here consider the weight due to an accomplice, a species of infamous witness. When an accomplice is admitted as an approver, he of course confesses his own guilt: and is therefore infamous. The evidence of an accomplice should never be had recourse to except from necessity; that is to say, if the case can be proved without him; and not unless it will be proved by him. A