Part 1 of 2
CHAP. III. Of Bubhar, that is, of Justice.
SECT. I. Of the Forms of administering Justice. If a Person brings a Complaint before a Magistrate, in the Name of another, the Magistrate shall make a thorough Investigation of the Affair; otherwise he shall by no Means of himself send for the Complainant, and cause him to bring on his Complaint.
If any Person goes to an Arbitrator of Discernment, for the Purpose of distinguishing the Nature of his own Cause, the Arbitrator also may make such Investigation.
When an Arbitrator of Discernment hears any Affair, he shall first demand of the Plaintiff, "What is your Claim?" The Plaintiff shall then relate his Claim: Afterwards he shall demand of the Defendant, "What Answer do you return in this Case?" The Defendant also shall then repeat his Answer, upon thus having heard the Accounts of both Plaintiff and Defendant. He who thoroughly investigates the Nature of the Affair is called an Arbitrator of Discernment, and such an Arbitrator as this shall be chosen.
A Magistrate, at the Time of Examination, shall have near him a Man of Knowledge and Discernment, and Officers tried by his own Experience, and a learned Bramin, and shall then examine the Cases of the Plaintiff and Defendant.
If a Magistrate, for any particular Reason, cannot himself examine a Cause, he shall delegate a learned Bramin as Examiner; if there is no learned Bramin, he shall delegate a learned Chehteree; if there is no learned Chehteree, he shall delegate an intelligent Bice as Examiner; if there is no intelligent Bice, he shall delegate an unlearned Bramin as Examiner; he shall never delegate a Soodar as Examiner upon the Sheertee of the Shaster, or Beids of the Shasters. Whoever, sitting aside a Bramin, constitutes a Sooder Arbitrator, in any Affair of the Shaster, the Possessions and Property of such a Man are ruined and dissipated: If a Sooder examines any Affairs of the Sheertee of the Shaster, he shall pay a Fine to the Magistrate of Two Thousand Puns of Cowries.
If a learned Man is present when an Affair is examined before a Magistrate, although the Magistrate should not delegate him as Examiner, yet he has the Liberty of uttering his Sentiments to the Case in Point.
Whoever considers in the same Light his Friends and his Enemies, and is knowing in the Beids of the Shaster, and in the Sheertee of the Shaster, and is a Man of Honour, and a Speaker of Truth, to such learned Bramins as these the Magistrate shall give Money, and every Token of Respect and Consideration in the Judgment-Seat, to have them near him; but he shall not retain fewer than Ten of such Bramins.
The Magistrate, having employed the first Four Ghurries of the Day in bathing and praying, and having paid due Adorations to his Deity, shall sit upon the Judgment-Seat, to settle Affairs, the Space of One and a Half Paufs; at this Rate, the Bench will break up after the Second Paufs of the Day.
If an Affair is not properly examined, or is decided unjustly, the Fault is divided into Four Shares, and falls upon Four Parties, One Share upon the Plaintiff or Defendant, whichever of them was the Cause of the improper Examination or Decision; and One Share falls upon the learned Bramins who partook of the improper Examination or Decision; and One Share to the Witness who gave in false Evidence: If the Examination is proper, the good Result of it is, that whatever Part of the Fault belongs to the Magistrate, and to the rest of those who were present upon the Bench, and partook of the Examination, all this Fault goes to the Person who made a futile and groundless Complaint.
If several Persons, at the same Time, make a Complaint to a Magistrate, or Arbitrator, then the Magistrate, or Arbitrator, at the Time of Investigation, shall first examine the Cause of him who has suffered the most Detriments; if the Causes of all the Complainants are equal, he shall then examine the Affair of him who is of the most honourable Tribe; if all the Complainants are of equal Tribes, and their Causes also of equal Consequence, then the Suit of him who first complained shall be first examined.
At the Time that the Plaintiff and Defendant are present before the Magistrate, or Arbitrator, then that Magistrate, or Arbitrator, shall take a Man of Responsibility and Property as Bail or Security for such Plaintiff or Defendant; if either the Plaintiff or Defendant are unable to give such Security, a Peiadac, or Guard, shall be appointed for both of them, and, in the Evening, the Plaintiff and Defendant shall give to that Peiadac Cowries sufficient for the Day's Subsistence.
SECT. II. Of Appointing a Vakeel (or Attorney.) If the Plaintiff or Defendant have any Excuse for not attending the Court, or for not pleading their own Cause, or, on any other Account, excuse themselves, they shall, at their own Option, appoint a Person as their Vakeel; if the Vakeel gains the Suit, his Principal also gains; if the Vakeel is Cast, his Principal is Cast also.
In a Cause where the Accusation is for Murder, for a Robbery, for Adultery, for eating prohibited Food, for false Abuse, for thrusting a Finger into the Pudendum of an unmarried Virgin, for false Witness, or for destroying any Thing, the Property of a Magistrate, a Vakeel must not be appointed to plead and answer in such Cases; the Principals shall plead and answer in Person; but a Woman, a Minor, an Idiot, and he who cannot distinguish between Good and Evil for himself, may, even in such Causes as these, constitute a Vakeel.
Except the Brother, Father and Son of the Plaintiff and Defendant, if any other Person, at the Time of Trial, should abet, and speak for either Party, the Magistrate shall exact a Fine from him: If a Brother, a Father, a Son, or a Vakeel, should assist, and speak for either Party, it is allowed.
SECT. III. Of not Apprehending an accused Party.If a Person is employed in celebrating a Marriage, at that Time, neither a Creditor, nor any other Person for his own Concerns, shall apprehend and seize him: If the Creditor, or any other Person, should make complaint against him before a Magistrate, the Magistrate also, during the Term of the Marriage Festivals, shall not have Power to seize him.
If a Person, in a Fit of Sickness, until his Recovery, neither his Creditor, nor any other Person for his own Concerns, shall have Power to apprehend and seize him: If the Creditor, or any other Person, during such Sickness, makes complaint in his Name, the Magistrate also, during his Disorder, shall not apprehend him.
If a Man is employed in the Jugg, the Poojeh, the Dan, or any such religious Duties, until he finds Respite from those Offices, neither his Creditor, nor any other Person upon his own Concerns, shall have Power to apprehend and seize him; if a Complaint is lodged against him before a Magistrate, the Magistrate also shall not apprehend him during that Period.
If any Person is appointed Vakeel to plead or answer in any Suit, until he is released from such Appointment, neither his Creditor, nor any other Person for his own Concerns, may have Power to apprehend and detain him; if a Complaint is lodged against him before a Magistrate, the Magistrate also shall not apprehend him.
If any Person is employed, in the Magistrate's Presence, upon such Magistrate's Affairs, until he is released from the Magistrate's Business, neither his Creditor, nor any other Person for his own Concerns, shall have Power to apprehend or seize him; if a Complaint is lodged against him before a Magistrate, that Magistrate also shall not apprehend him.
If any Person is employed in feeding his Kine, or Buffaloes, or Goats, or Sheep, or such Kind of domestick Animals, until he is at Leisure from such Occupation, neither his Creditor, nor any other Person for his own Concerns, shall have Power to apprehend and detain him; if the Creditor, or any other Person lodges a Complaint against him, the Magistrate also, during that Period, must not apprehend him.
If any Person is employed in watching his Tillage, until he returns from thence, neither his Creditor, nor any other Person for his own Concerns, may have Power to apprehend and detain him; if a Complaint is preferred against him before a Magistrate, the Magistrate also shall not apprehend him during that Period.
If any Person is employed as a Painter, a Carpenter, a Builder, or in other Works of this Kind, until he is at Leisure from such Business, neither his Creditor, nor any other Person for his own Concerns, shall have Power to apprehend and detain him; if a Complaint is preferred against him before a Magistrate, the Magistrate also, during that Period, shall not apprehend him.
If any Person is engaged in War, until the War is determined, neither a Creditor, nor any other Person for his own Concerns, shall at that Time apprehend and detain him; if his Creditor, or any other Person, during that Period, prefers a Complaint against him before a Magistrate, the Magistrate also shall not apprehend him.
If any Person is employed as a Messenger, Until he returns, neither his Creditor, nor any other Person for his own Concerns, may have Power to apprehend and detain him; if a Complaint is preferred against him before a Magistrate, the Magistrate also, until he returns from the Execution of his Message, may not apprehend him.
If a Person is a Minor, his Creditor may not apprehend him; and if the Creditor makes complaint against him before a Magistrate, the Magistrate also shall not have Power to apprehend him.
If a Season of Scarcity or Calamity should happen to any Kingdom or Town, until the Calamity is ceased in that Kingdom or Town, a Person for his own Concerns shall not have Power to apprehend and detain another; if a Person on his own Concerns makes Complaint before a Magistrate, the Magistrate also may not apprehend a Person during that Period.
If any Person, having a Claim on another, hath preferred his Complaint, the Person sued must answer the Suit, and settle the Claim, before he can commence a Suit against the other; if he makes a Complaint, the Magistrate shall exact a Fine from him, but his Suit shall not drop.
If any Person has made a Complaint against another, as that, "Such a Person has traduced my Character, or has threatened me," in that Case, if the Complainant had first traduced, or threatened the other, the latter, without answering the Suit brought against him, may prefer a Complaint against the other for Abuse, or for Threats.
If any Person hath first abused another, or threatened him, after that, if the Second should abuse or threaten the First, he is not amenable; but he who first abused, or threatened the other, shall be fined by the Magistrate.
If a Person, to procure a Man's Death, should set his House on Fire, or cause him to take Poison, or endeavour to assassinate him, or should seize his Wife, and carry her away with him, or plunder and take away all his Effects and Grain, if the other should deprive such a Man of Life, he is not amenable: If a Bramin should commit such Crimes as these above-mentioned, his Life shall not be taken away; but if such a Bramin should come with Intent to murder another, and that Person has no Means of escaping, and cannot save his own Life, but by the Death of the Bramin, in that Case, if he should even kill the Bramin, the Magistrate shall not take a Fine from him: Also, if a Cow should attempt to kill any Person, and there is no Way of escaping, that Person may kill the Cow, for the Preservation of his own Life, and, in this Case, he shall not be amenable.
If Two Persons mutually abuse each other, or give Blows to each other, and the Abuse and Threats are equal on both Sides, the Magistrate shall exact from each of them an equal Fine.
If any Person first abuses another, or gives him Blows, and afterwards the Other returns him more Abuse, and a greater Number of Blows, the Magistrate shall exact a Fine from both of them; but he who first proceeded to Violence shall pay the largest Fine.
SECT. IV. Of Giving immediate Answer to a Complaint.If a Person brings a Suit against another for the Murder of a Man, in that Case, the Accused, at the Time of appearing before a Magistrate, shall immediately, upon the Spot, give his Answer to this Affair; he may not be allowed any Time in giving his Answer.
If any Person is apprehended on Account of a Robbery, that Person, at the Time of appearing before a Magistrate, or Arbitrator, shall give immediate Answer to this Affair, and shall not be allowed any Delay in speaking.
If any Person accuses another for false and scandalous Abuse, the Accused, when he comes before a Magistrate, or Arbitrator, shall immediately give his Answer, and not be guilty of any Delay.
If any Person is apprehended upon an Affair concerning a Cow that produces Milk, he shall not be allowed any Procrastination in his Answer, but shall speak his Defence immediately.
On an Accusation for drinking Wine, a Man must not make any Delay in giving his Answer, he shall answer immediately to such an Affair.
If a Man is apprehended, on a Complaint, For criminal Conversation with any of his Father's Wives, exclusive of her who bore him, in such a Case, he shall not make delay in returning his Answer, but shall immediately answer to the Point.
If any Person makes complaint against another, that, "Such a Person has destroyed some very valuable Goods of mine," in such an Affair, the Accused shall not make any Procrastination in his Answer; he shall answer immediately to the Point.
If any Person has called a modest Woman unchaste, and the Woman or her Husband should make complaint to a Magistrate, whenever the Person accused appears before the Magistrate, or Arbitrator, he shall, upon the Spot, answer to the Complaint, and make no Delay.
If Two Persons quarrel for Possession of a Slave Girl, and both of them should separately assert the Girl to be their own Property, and One of them makes complaint against the other before a Magistrate, that Person shall directly give his Answer, and shall make no Delay.
In all other Causes, except such as have been before-mentioned, the Defendant may require some Delay to give in his Answer; but the Accuser shall in no Cause make any Delay in his pleading.
If either the Plaintiff or Defendant, being terrified, are unable to give immediate Answer, then, according to the Nature of the Affair, a Time shall be appointed them for giving in their Answer; if at the Time appointed they are unable, either by some Calamity of the Season, some Innovation of the Magistrate, to give their Answer, they are not blamable; but they shall be held to prove such Calamity of the Season, or Innovation of the Magistrate; if they cannot produce this Proof, they shall incur Blame; and on the Time appointed, if they, with any fraudulent Intent, do not give in their Answer, the Magistrate shall make them amenable, and they shall be Cast in that Cause.
SECT. V. Of Plea and Answer. When the Plaintiff and Defendant come before the Magistrate, or Arbitrator, the Plaintiff at that Time shall give an Account of the Circumstances of his Plea, in such a Manner, that the Words be few and the Meaning extensive, and that no Doubt of the Sense of his Speech may arise in the Minds of any of the Audience, and that the first and last Parts of his Plea be well connected and consistent, and the Cause of the Dispute shall be therein explained, and the Reason why the Defendant should be Cast; in the same Manner also the Defendant, after Conclusion of the Plaintiff's Plea, shall return his Answer.
If the Plaintiff gives, in Writing, to the Magistrate, or Arbitrator, a Statement of his Case, he shall write that Statement also, in the same Manner that hath been above directed; and the Defendant also shall write his Answer after the same Mode.
If the Plaintiff hath delivered in a written Statement of his Suit, until the Defendant gives in his written Answer, the Plaintiff may take back his Representation, to alter what may be too full, or too concise, in some Places, and give in a fresh corrected Writing; but if the Defendant hath delivered in his written Answer, the Plaintiff may not correct and rewrite what may be too copious, or too contracted of his original Plea.
When the Plaintiff, or Defendant, writes his Plea or Answer, it shall be written. with his own Hand; if he is unable to write, he shall cause it to be written by another: If the Plaintiff or Defendant should give one Explanation of his Case, and the Copyist should state it another way, that Copyist shall receive the same Punishment as a Robber.
In a Cause concerning Property, if the Plaintiff or Defendant should be guilty of a Mistake or two in the Course of his Pleading, he shall not, upon that Account, lose his Suit, but the Magistrate shall fine him.
If a Person complains against another, that, "Such a Person has kicked me on the Head," and it should afterwards appear that he has not kicked him on the Head, but has struck him with his Fist, that Person is condemned in that Suit, and he shall become amenable to the Magistrate.
When the Plaintiff urges his Plea, the Defendant must answer regularly, according to the Plea, and not deviate from the immediate Subject of the Suit.
After Suit begun by the Plaintiff, if the Defendant should abscond, after an Absence of One Month and an Half, he shall be cast.
After Suit begun by the Plaintiff, if the Defendant delays to answer beyond Seven Days, he shall be Cast; if an appointed Day for Answer be given him, and he does not give his Answer in the Time of that Appointment, he shall be Cast.
If the Plaintiff urges his Plea, and the Defendant denies it, in that Case, when the Plaintiff, by producing Witnesses, can prove his Suit, the Defendant shall be Cast.
SECT. VI. Of Two Sorts of Answer, proper and improper. That is a proper Answer, when, after Statement of the Plaintiffs Plea, upon the Defendant's giving in his Answer, he weighs his Words with such Nicety, that they comprehend the whole of his Meaning, and no Doubt arises in the Audience from his pleading, and the first and last Parts of his Speech are well connected and consistent, and he explains himself in so clear and perspicuous a Manner, that every Person understands him. — This is called a proper Answer.
That is an improper Answer which does not regularly take up the Assertions of the Plea; as for Instance, when the Plaintiff gives a full and copious Statement of his Case, and the Defendant makes a contracted, defective Answer, or when the Plaintiff's Plea is concise, and the Defendant's Answer prolix; when there is a Difference and Inconsistency between the first and last Parts of the Answer, and when it is confused and varied, so as not to be intelligible. This is called an improper Answer.
The Two Modes of Answer, that have been explained above, are composed of Four Distinctions, viz.
First. Mut-booter.
Second. Shumpertee-putt.
Third. Pertubbish Gunden.
Fourth. Perranek Neeay.
First. Mut-booter, that is, an Answer denying the Plea.
Mut-booter has Four Distinctions.
First. When the Plaintiff brings in a regular Bill, and the Defendant says, "Your Plea is false."
Second. When the Plaintiff brings in a regular Bill, and the Defendant says, "I know Nothing of the Matter."
Third. When the Plaintiff brings in his Suit, as, "In such a Year, I deposited such Goods in your Hands, or lent you such a Sum," the Defendant answers, "In that Year, I was not yet born."
Fourth. When the Plaintiff brings in a regular Suit, that, "In such a Year, in such a Place, I deposited certain Goods in your Hands, or lent you a Sum of Money," the Defendant answers, that, "In the Year specified, I never was at the Place you mention," upon Answer being given in these Four Methods, the Proof of the Plea rests with the Plaintiff.
Second. Shumpertee-putt is when a Man producing Claim upon another, the Person answers, "I confess that the Subject of your Claim is in my Possession," in this Case, there is no Need of Writing or Witnesses.
Third. Pertubbish Gunden is when a Man producing a Claim upon another, the Person answers, "I acknowledge the Justice of your Claim," but at the same Time, if he has it not in his Power to make good the Subject of the Claim, he should so express himself: Pertubbish Gunden also admits of Three Distinctions: As,
1st. When a Man produces a Claim against another, saying, that, "You owe me a Debt of One Hundred Rupees" the Person answers, "I confess to have borrowed One Hundred Rupees of you, but I have repaid them," in which Case, the Proof of the Affair rests with the Claimant;
2d. When One Man says, "Such a Piece of Ground belongs to me by Inheritance from my Father and Ancestors," and another Person also affirms of the same Piece of Ground, that, "It belongs to me by Inheritance from my Father and Ancestors," in this Case, the Proof of the Affair rests with the First Claimant; and if he is unable to produce Proofs, the Second Claimant shall then ascertain and prove his Title to the Ground in Question.
3d. When Two Persons lay claim to the same Parcel of Land, One saying, "This Ground belongs to me by Inheritance from my Father and Ancestors," the other replying, "I have applied to my own Use this Piece of Ground, for the Space of Ten Years, and of Right it belongs to me," in this Suit, the former Claimant is held to prove the Inheritance derived from his Father and Ancestors; if he can prove this Point, then the Cause must be referred to the Chapter of the Daye Bhag, for considering the Time of the Usufruct, which is explained in the Section of Acquiring a Property in the Possessions of another.
4th. Perranek Necay is when a Man, upon losing his Cause before a Magistrate, or Arbitrator, says, that, "My Opponent, in this Affair, was formerly Cast upon a Trial before such an Arbitrator, and I gained my Suit," in such Case, he who affirms to have had a Verdict in his Favour, upon the Investigation of a former Arbitrator, shall be held to produce Proofs of that Circumstance.
If a Man brings a Suit against another, saying, "I lent you One Hundred Rupees" and the Defendant answers, "I never received One Hundred Rupees, I received Fifty Rupees, and have repaid them," in this Case, the Arbitrators shall first investigate the Repayment, and afterwards make Inquiry, whether the Sum lent was really One Hundred or Fifty Rupees.
If a Man brings a Suit against another, saying, "You owe me a Debt of One Hundred Rupees" if the Defendant answers, "I never received One Hundred Rupees, I received Twenty-five Rupees, and have repaid them," in this Case, the Arbitrators shall first investigate, whether the original Debt was really One Hundred or Twenty-five Rupees, and afterwards shall make Inquiry as to the Repayment; and in all Cases, where the Plaintiff makes a large Demand, of which the Defendant acknowledges a Part only, less than Half the Sum claimed, Inquiry shall be conducted upon this Principle here explained.
A Plaintiff lays his Claim for One Hundred Rupees lent, the Defendant answers, "I never borrowed from you any Part of it," but at the same Time the Plaintiff hath in his Hand a Bond for One Hundred Rupees, and it therein appears that the Defendant hath repaid Fifty Rupees, and there are Witnesses to this Circumstance, in such a Case, the Arbitrator shall first investigate the Bond, and then examine the Witnesses.
If a Man brings a regular Suit against another, and that Person absolutely denies the Claim, in that Case, the Plaintiff shall be held to prove his Claim; if the Plaintiff has neither Writing nor Witnesses for his Proof, the Defendant shall perform the Purrikeh (that is) an Ordeal, to satisfy the other.
If a Man brings a Suit against another, who answers, " I am in doubt about this Affair," such Plea is not to be admitted as an Answer; in that Case, the Plaintiff shall prove his Claim by a Deed, by Witnesses, or by Usufruct on the Part of the Defendant; if he fails in these Three Modes, he shall take his Oath, or perform the Purrikeh: In every Affair, where a Deed, Witnesses, or Proof of Usufruct cannot be produced, an Oath must be taken, or the Purrikeh performed.
If a Man brings a Suit against another, saying, "I have lent you several different Articles," and the Person answers, "I never received One of the Articles you mention," in that Case, if the Plaintiff proves any One of all the Articles claimed, to be in the Defendant's Possession, the Magistrate shall cause the whole so claimed to be restored: In this Affair, it is not the Fault of the Magistrate; if the Plaintiff, having made his Claim for several Things, should add afterwards, that, "Another Article is still in your Possession, which by Mistake I formerly omitted to mention in my Suit;" such a Claim is not approved; according to the Ordinations of Sewarteh Behtacharige, and this Ordination is approved (or customary.)
If a Man brings a Suit against another, saying, "I have lent you several different Articles," and that Person answers, "I have not received any Thing, if you can prove my Receipt even of One Article, I will make good the whole of your Claim," in that Case, if the Person can prove any One Article, the other shall be held to make good the whole; according to the Ordination of Jogue Logue, and the Pundits of Methilla.
If a Man hath accused another of the Murder of a Man, or of a Robbery, or of Adultery, and should say, "You have in several Places been guilty of these Crimes," and the Defendant denies the Accusation, in such a Case, if the Accuser can prove upon the other the Commission of any One of these Crimes, it shall be a Proof of the whole Complaint.
If a Man brings a Suit against another, saying, "I have intrusted several Articles (or) I have lent a Sum of Money to your Father, or Uncle, or Grandfather," which he demands should be returned, and the other denies the Affair, saying, "I know not the least of this Matter, prove your Claim, and receive it," in that Case, whatever Article the Plaintiff can prove he shall receive, and whatever he cannot prove he shall not receive.
When Two Persons upon a Quarrel refer to Arbitrators, those Arbitrators, at the Time of Examination, shall observe both the Plaintiff and Defendant narrowly, and take notice, if either and which of them, when he is speaking, hath his Voice falter in his Throat, or his Colour change, or his Forehead sweat, or the Hair of his Body stand erect, or a Trembling come over his Limbs, or his Eyes water, or if, during the Trial, he cannot stand still in his Place, or frequently licks and moistens his Tongue, or hath his Face grow dry, or, in speaking to One Point, wavers and shuffles off to another, or, if any Person puts a Question to him, is unable to return an Answer; from the Circumstances of such Commotions, they shall distinguish the guilty Party. In a Suit where One of the Parties, be it either Plaintiff or Defendant, produces a Writing, which the other doth not approve or allow, the Possessor of that Writing shall not gain his Suit, until he can confirm it by Proof. The Mode of ascertaining a Writing is this, that he shall produce another Copy of the Man's Writing, who, with his own Hand, drew out the Writing in Question, and so prove its Authenticity.
If a Man brings a Suit against another, and can by any Means produce Proof of his Claim, the Cause shall be decreed in his Favour.
A Writing is of Two Sorts, First, that which a Man writes with his own Hand; Second, that which he procures to be written by another: Of these Two Sorts, that which is written by a Man's own Hand, even without Witnesses, is approved; and that written by another, if void of Witnesses, is not approved. When a Debtor, having caused his Bond to be written by another Person, and, having procured Witnesses to it, hath borrowed Money upon it, after that, supposing that the Witness, who signed his Name upon the Bond, and he also, by whose Hand the Bond was written, are both dead, and the Debtor and Creditor also are dead, and a Dispute arises between the Sons of the Debtor and Creditor concerning this Bond, the Son of the Debtor, saying, "I know Nothing of this Bond," then, if the Creditor, or Sons of the Creditor, at the Time when the Bond became due, had demanded their Money from the Debtor, in the Presence of some other Persons, and had caused the Bond to be read by Three or Four People, and can prove this Circumstance, the Bond is approved; but if any Article had been pledged, then, even without previous Demand of the Sum due by the Bond, before other Persons, and without having caused it to be read, the Bond is approved.
If a Lender of Money says to a Person, "A Debt due to me is outstanding in your Hands," and that Person denies the Debt, if at that Time the Bond is not in the Lender's Hands, but should be in some other Kingdom, then, until he brings the Bond from such other Kingdom, the Suit shall not be determined.
If it should happen that a Bond in a Creditor's Possession should be burnt, or some of the Letters in it are become invisible, or the Bond be stolen from him, or by any Means be spoiled, and, upon Demand of the Sum due, the Debtor should refuse Payment, in that Case, the Creditor shall bring any Person who had formerly seen the Bond, and shall prove the Bond by his Evidence.
If a Bond in a Creditor's Possession should chance to be torn, or the Letters should be obliterated, or the Bond by any Means be spoiled, the Creditor shall cause the Debtor, in such Case, to write a fresh Obligation.
If a Man hath, for any Reason, executed a Bond, in the Name of another Person, and borrowed a Sum of Money on Account of it, and afterwards, upon the Creditor's demanding Payment of the Man, from whom he received the Bond, that Person should answer, "I never borrowed any Money of you, if I have so borrowed, produce my Bond," the Creditor says, "You borrowed Money of me upon a Bond, written in the Name of another Person," which other Person says, "I never borrowed any Money of you, but, as a strict Intimacy subsisted between the Borrower and me, he gave the Bond in my Name, and converted the Money to his own Use,'' on a Dispute of this Nature, the Arbitrator shall first examine the Connexion that subsisted at the Time of the Execution of the Bond in Question, between the Borrower of the Money and him in whose Name the Bond was passed, and whether or no they are near Relations; from these Two Circumstances he shall form his Judgment, and also from the Evidence of the Witness who originally attested the Bond.
If a Person possesses the Title Deed of any Article, and another Person, by Intervention of his own, renders that Deed unapproved, in that Case, he who Possesses such a Writing shall reduce it to Proof; but if that Person should be dead, after having applied the Article in Point to his own Use, the Son of that Person shall not be held to prove the Title Deed, but shall prove his Father's Usufruct.
If a Person, possessing the Title Deed of any Article, should die, without having applied that Article to his own Use, in that Case, his Son shall be held to prove the Validity of the Title Deed.
If a Lender of Money should say to a Person, "You owe me a Sum of Money, I demand Payment," to which Demand that Person makes no Reply, after that, he again makes the same Demand, and in like Manner receives no Kind of Answer, after a Repetition of such Demand for Five several Times, if that Person should say to the Claimant, "I owe you Nothing," upon such a Suit, the Magistrate shall cause that Person to pay the Claimant the Money demanded.
If a Plaintiff prefers a Claim, and the Defendant denies it, then, upon Proof of the justice of the Claim, the Magistrate shall cause the Money in Dispute to be paid to the Plaintiff, and shall also exact a Fine from the Defendant.
If a Person, who hath brought a Suit against another, can ascertain his Claim, by the Evidence of Witnesses, by a Writing, by Proof of Usufruct, by Opinion of Arbitrators, by the Purrikeh, or by an Oath, the Suit shall be given in his Favour: If he cannot prove it by any of these Means, he is culpable, even if he acknowledges the Fault he has committed, he shall still be deemed culpable.
SECT. VII. Of Evidence.Whoever has seen a Transaction with his own Eyes, or has heard it with his own Ears, such a Person is a Witness.
When a Plaintiff or Defendant have not applied to a Witness, who is conscious of any Transaction, desiring him to appear as a Witness in their Cause, if the Magistrate, or Arbitrator, summon such a Witness, and question him as to the Circumstances of the Transaction, such Part of his Evidence as relates to what he has seen with his own Eyes, and heard with his own Ears, is approved.
When a Person, being Witness of any Transaction, hath explained the Circumstances of that Transaction to another Person, the Plaintiff or Defendant may constitute such Person as a Witness, to testify whatever was explained to him by the other; such Person is called a Secondary Witness; and the Evidence delivered by such Secondary Witness is approved.
In a Suit concerning Limits and Boundaries, whoever is acquainted with the true State of those Limits and Boundaries, without being appointed Witness in the Cause, may deliver in his Evidence.
If a Plaintiff or a Defendant secretly hides a Person where he may over-hear the Discourse, and then asks a Witness the true Circumstances of the Case, and that Person with his own Ears hears the Relation of the Witness, such Person is called a hidden Witness, and the Evidence of a hidden Witness is true.
He who is a Witness shall keep by him a written Statement of every Transaction, in which he is a Witness, that, even after a considerable Space of Time, he may be enabled to recollect it.
A Witness, a Borrower, or a Principal in any other Affair, shall write with his own Hand an Account of every Affair so concerning him; if he does not know how to write himself, he shall cause it to be written by another.
SECT. VIII. Of Proper and Improper Evidence. A Minor until Fifteen Years of Age, One single Person, a Woman, a Man of bad Principles, a Father, or an Enemy, may not be Witnesses; but if the Father and the Enemy are Men of good Disposition, and Speakers of Truth, and Men are well acquainted with the Goodness of their Disposition and Veracity, these Two Persons may be Witnesses.
He who regulates his Actions by the Beids and Sheerut of the Shaster, Three such Men shall be appointed Evidences; less than this Number shall not be made Witnesses; and this Order is in the Chapter concerning Affairs of a long Space of Time.
Men of every Tribe shall appoint Witnesses from their own Tribe, as a Bramin shall appoint a Bramin, a Chehteree shall appoint a Chekteree; and so in regard to each Tribe, Men of the same Tribe shall he constituted Witnesses; a Woman also shall appoint a Woman her Witness; but upon the Time of any Transaction, if a Person of the same Tribe happens not to be present, a Witness shall be appointed from those upon the Spot, to whatever Tribe they may chance to belong.
If the Plaintiff or Defendant, at their own Option, appoint a single Person only, known to be a Man of Veracity and good Behaviour, as their Witness, that single Person also may become a Witness; also a Person who is not of good Disposition, yet not fraudulently inclined, nor avaricious, if such a Person be agreeable to both Plaintiff and Defendant, he may, though single, be a Witness.
If the Serwutteree, or Bramins learned in the Beids, give Evidence, Nine of them are required; if there are not Nine, there must be Seven; if there are not Seven of them, there must be Five; if there are not Five of them, there must be Four; if there are not Four of them, there must be Three; if there are not Three of them, Two shall give Evidence; a single Bramin, learned in the Beids, cannot be a Witness.
A Bramin Serwutteree, or learned in the Beids, a Devotee become very infirm, and a Sinassee shall not be Witnesses; but if these have seen a Quarrel between Two Persons, and of themselves deliver in Evidence, it is approved.
He who hath killed a Man, or who is guilty of Theft, of Adultery, or of false Abuse, or who, enticing a Man to himself, by Treachery and Deceit, deprives him of Life, and destroys his Effects, or whoever is a Juggler, and is constantly employed in Games of Dice and Chances, or whoever is a perpetual Wrangler, such Persons shall not be Witnesses.
A Slave of either Sex, a blind Man, a Woman, a Minor until Fifteen Years of Age, an old Man of Eighty Years, a Man afflicted with a Leprosy, One guilty of Murder, of Theft, of Adultery, or of false Abuse, or who, enticing a Man to himself, by Treachery and Deceit, deprives him of Life, and destroys his Effects, or whoever is constantly employed in Games of Dice and Chances, or who is a perpetual Wrangler, or a Juggler, such Persons, in Affairs of Murder, of Theft, of Adultery, and of false Abuse, may not be Witnesses: In these Four Cases, One single Man of Veracity and good Conduct, with whose good Disposition and Love of Truth Men are well acquainted, may alone be a Witness.
Supposing a Person to lend another Money secretly, or secretly to intrust his Property to the Care of another, in such Affairs, One single Person is a sufficient Witness.