principle which declares that res inter alios acta shall not be evidence against third parties. ()

§ 84. Certain classes of judgments are however conclusive upon all the world: this from necessity; and also from regard to general convenience. Such for instance are judgments in rem;) judgments declaring personal status or condition; as judgments of Bastardy, Adultery, and in this country, of Adoption. For the absurdity of holding that A was at one and the same time a bastard and not a bastard, adopted and not adopted is manifest. If therefore this status has once been established in a regular judicial trial between A and B, to permit C, or all the world to re-try that question, on which perhaps a different decision might be come to, would be to declare that as against B, A is adopted, and against C, that he is not, and this at one and the same time. Of course if the judgment between A and B has been fraudulent or collusive, its validity may subsequently be questioned in another suit on that ground, for fraud avoids the most solemn transactions; where however no such imputation can be cast upon the original judgment, it stands good against the world.

§ 85. The Roman Law upon this topic is well worthy of quotation :(m)

"The general rule of the Civil Law is this: Res inter alios judicate nullum inter alios prejudicium facit. But it is inapplicable to causes of status. The reason of this may be deduced from the rule Res judicata pro veritate accipitur. That rule applies (saving the right of appeal) to all causes so far as regards the parties. But the nature of the actions called prejudiciales is such, that unless they were taken pro veritate not only as between the parties but with regard to all men, they would be of no effect, because the question decided therein would not be held pro veritate.

"Thus, for instance, if it be decided that Titius is a slave, or that he is a free man, he must be so to all the world, because the question decided by

"Works of standard authority in literature may, provided the privilege be not abused, be referred to by counsel at a trial in order to show the general course of composition, explain the sense in which words are used, and matters of a like nature, but cannot be resorted to, to prove facts relevant to the cause.

"Per Pollock, C. B.-Medical books or books on farriery cannot be cited by counsel, but a medical man may be asked on cross-examination whether he has read a particular medical book."

(k) See § 62-63.

(7) See § 63.

(m) See Bowyer's Readings on Civil Law, p. 296. These actions were called in the Roman Law prejudiciales, because they prejudge and prejudice many besides the immediate parties to them.

the court regards not the relative rights of the parties, but the positive and absolute right of Titius.

"Thus if Sejus alleges himself to be the lawful son of Sempronius, he alleges what must be absolutely true or false with respect to all men. But if Sejus alleges a certain estate in the possession of Titius to be his, he only affirms his title to be superior to that of Titius, for there may be some other person who is the real owner, and the right of that person not being directly and lawfully decided upon by the court, as he is not a party to the cause (though he may be incidentally before the court) he is not concluded by the decree.

"It follows that valid judgments deciding causes of status are conclusive and final against all men, while judgments in other causes are so only between the parties and touching their relative rights and obligations."

§ 86. Another apt illustration may be found in the famous Vasooreddy Case. There the Plaintiff had established his right as adopted son to succeed to the family estates, in a suit between himself and the Defendant. The suit was appealed, and for many years litigation was protracted, but ultimately the Privy Council(") established the Plaintiff's right. In the meantime the Government Peishcush had fallen into arrears; the Estates had been sequestered and sold on that account, and the Government had purchased them. The Plaintiff sought by an interlocutory motion in the Sudder Court to obtain the benefit of his Decree by ousting the Company. (0) This was successfully resisted as it was clear that the Plaintiff's only course was to commence a fresh suit to eject the third party who had obtained legal and peaceable possession pending the proceedings. It is believed that an intention prevailed (sanctioned by high legal authority) of disputing on behalf of the Company, if necessary, the adoption, on the ground that the Company was no party to the original suit. This I conceive could not have been done; nor will it be competent to the Company to dispute the personal status of the Plaintiff as established by the judgment of the Privy Council, in the event of his instituting any fresh suit against the Company to try the legality of their title to the Vasooreddy Estates.

§ 87. With the exception of judgments of this quality, the Law annexes no universal effect to the decisions of legal tribunals. Only under special circumstances will it do so. That is to say, where the judgment which it is sought to produce as evidence has been pro

(n) See Moore's Indian Appeals, Vol. V, p. 300.

(0) See Sudder Proceedings, 7th July 1853, M. P. No. 406 of 1852, in App. S. No. 11 of 1827

nounced between the same parties,(P) or their priries; that is, those who claim through or represent the original parties, and the matters in dispute sought to be established by the judgment in the second suit have been substantially the matters enquired into and decided upon in the first.

§ 88. To come now to Private Instruments.

The law has in certain cases prescribed certain conventional forms for the purpose of manifesting and perpetuating the acts and transactions of private individuals, and it annexes an artificial effect to such Instruments.

§ 89. Such for instance are the cases of Wills, (2) or agreements which the Statute of Frauds(r) declares must be evidenced by some written memorandum of the transaction. Here the Law prescribes the forms in which the evidence is to be preserved.

§ 90. To illustrate this by an example. Take that of Wills. Here though the law does not require any precise form of words in order to show a testamentary disposition-the attempt would be evidently futile-it has declared that in order to make a valid testamentary disposition of property by a British subject.

1st. The Testator must sign the document.
2nd. It must be attested by two witnesses.

3rd. The Testator must sign in the presence of the witnesses,
who must sign in his presence and in the presence of each
other.

4th. Until lately the Testator must sign at the "foot" of the will: but this led to so many hard cases of intestacy that Lord St. Leonards got a Bill passed to obviate this evil. See 15, Vic. I. 24.

§ 91. But the law has also annexed artificial effects to certain private written instruments, even where it has prescribed no form. For instance, it declares that a Bond under seal is conclusive proof of the consideration which it recites. (s) Thus, if in a Bond under seal, A ac

(p) See the Duchess of Kingston's case, 20. Howell's State Trials, p 538. See the opinion of the Judge set out, 2, Smith's Leading cases, 424, where there is an admirable disquisition in the author's note on the whole Law of Estoppels.

(9) I Vic. c. 26. Sec. 9 amended by 15 and 16 Vic. c. 24.

(r) 29. Car. II. c. 3.

(s) See Starkie, p. 747, note (h) Lowe v. Peers, 4 Burr. 2225; i. e. so long as the deed remains unimpeached; a bond or other specialty may be directly impeached, on the ground of fraud; and then the consideration may become the subject of enquiry; but whilst the legal existence of the deed stands admitted, the presumption of a good consideration is peremptory and absolute.

knowledges himself to have received the consideration money, say 5,000 Rupees, he is peremptorily precluded from denying such receipt.

§ 92. Thus a Bill of Exchange implies primâ facie, that consideration has been given for it; and therefore if the consideration is not disputed, the holder need not prove it; but a Bill of Exchange or Promissory Note is not like an instrument under seal, such as a Deed or Bond, conclusive proof of consideration. It is open to the party sought to be charged, to dispute it, and in this case the holder is obliged to prove that he gave value for it. But when a deed is impeached for fraud, parol evidence of a consideration different from that appearing on the deed may be given in support of the deed. So in Gale v. Williamson(t). "The question in each case" says Rolfe, B. (Lord Cranworth) "whether the deed is fraudulent or not; and to rebut the presumption of fraud, the party is surely at liberty to give in evidence all the circumstances of the transaction; not to contradict the consideration stated in the deed, but to take it out of the operation of the statute" and in Pott v. Todhunter(v) a deed of settlement, in form voluntary, but appearing from extrinsic evidence to have been made for valuable consideration, was upheld against creditors.

§ 93. In all other cases of Contracts, the consideration must be proved. Thus a Charter Party is sometimes under seal, sometimes not; in which latter case, it falls under the head of Simple Contracts; and the reader will see how different may be the effect of such an instrument according to the form in which it is clothed.

In the case of Beaumont v. Reeve, (w) a woman sued for the recovery of a sum of money which her seducer with whom she had ceased to cohabit had promised to pay her. The consideration was held not to support the promise, which was a parol agreement. Had it been under seal, she might have recovered!

§ 94. So stands the Law of England. Whether this is not one of those points wherein the Courts of the Company, not being bound to conform in all respects to the English Law of Evidence, may not wisely somewhat depart from it, is worthy of serious reflection.() A

(1) 8 M. and W., 405.

(v) 2 Coll. Ch. C. p. 76. (c) 8 Q. B. R. 483.

(2) It appears that there is a conflict of opinion on this point between the Sudder Courts of Calcutta and the N. W. Provinces: the former affirming the necessity of proving consideration in all cases, and drawing no distinction between deeds and other instruments in this respect. The Agra Court on the other hand follows the English Law. See Macpherson on Mofussil Mortgages, p. 57, et seq: et its cases.

discussion of the Law of "Consideration" falls rather under a course of Lectures on Contracts than one on Evidence; but the distinction pointed out in the foregoing sections is one of those remnants of feudal times which are honored more from habit than from any consonance to reason and it is not too much to expect that the time is not far distant when there shall be no difference in this respect between specialty and simple contract instruments; and indeed a Bill was brought into the House of Commons in the Session of 1856, by Mr. Malins, Q. C. " to abolish all distinction between specialty and simple contract debts."

It is by no means curious that a seal should have been thought more solemn than a signature in the "good old days" when the Baron affixed his mark or sealed his deed with the pommel of his sword, and only Clerks (Clerici) could read; but surely, in these days, the act of sealing is not more solemn than that of signing. The sealing consists in fact of putting the finger upon a red wafer affixed by some Attorney's clerk, and even this is often not performed. "At present" says Bentham," and since the art of writing has become comparatively common, sigillation in the character of real evidence, has gone completely out of use. The Coat of Arms that substitute for a name, invented for the use of those who could neither read nor write, might in that way be not altogether without its use. Sigillation, at one time, an efficient and almost the only security against fraud, has for this long time past degenerated into an idle and mischievous ceremony."(y)

It should seem therefore reasonable that one and the same effect should now be given to all classes of instruments; probably the best rule would be that which now prevails with respect to Bills of Exchange; namely, that as a man has signed the instrument, he should be presumed primâ facie to have done so for a valid consideration ; but that he should not be precluded in any case from disputing this fact and even though he may have contracted by a deed, or under seal, he should nevertheless be permitted to show that he had not received such consideration as would support his promise.

:

The Courts of the Company are all Courts of Equity and good conscience; they are not bound by the rigid rules of Law; and may well

(y) Bentham's Works, vol. 6, page 575.