Note 59 — LAW AND JUDICATURE.

This sloka is by no means unambiguous: but it is satisfactorily explained by the Commentator, who says: "What course is to be adopted where two parties simultaneously present themselves to the Court and tender proofs? e.g. A man acquired a field by gift, and, having for some time possessed it, departed with his family to another country: then, another person obtained a gift of the same field, and, having possessed it awhile, was likewise obliged to go to another country. Both parties return at the same time, claim the same field, and resort to a Court of law. Then arises the question,—whose proofs shall be taken? Yájnavalkya says (ut supra sl. 17); that is to say, where one sets up an older title, saying—I was possessed of this field at such a date—his witnesses are the first to be examined; but should the other party urge—True, the field was acquired and enjoyed by him at the first, but the king bought it of him and granted it to me—or—Another got the field and gave it to me; in that case, as the proofs of him who has the older title are of no consequence, and thus he is disposed of, the witnesses of the other claimant are to be examined. It is incorrect [to read the sloka as asserting] that, where there is a denial [of a claim] the witnesses of the plaintiff shall be examined, and where a former judgment or something as a ground of defence is set up, in [either of] which cases the original claim is met, then the witnesses of the defendant shall be heard; inasmuch as all this is included in the rule,—(here the Commentator quotes the 7th sloka of the text). This view is clearly supported by Nárada, viz. On a denial, proof is upon the plaintiff; where some ground of defence is stated, upon the defendant; upon an allegation of prior decree, the decree shall be the proof.—After this Nárada proceeds:—When there are two claimants, if there be witnesses, the witnesses of the prior claimant shall be [first examined]—So we perceive, this [description of] law-suit is distinguished from all others." These quotations favor the supposition, that the science of special-pleading is not of European origin, and is traceable to a remote antiquity.