CHARACTER IN EVIDENCE LAW: SAMHITHA & P. VASISHTAN

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LAW OF EVIDENCE: CHARACTER IN EVIDENCE LAW

Author: Samhitha Sharath Reddy

Co-Author: P. Vasishtan^*

ISSN: 2581-8465

ABSTRACT

‘Character’ means, the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behavior.1 The English Law has been including the term ‘character’ as a part of the evidence for civil and criminal cases. It also has a Criminal Justice Act, 2003 from which more versions and possibilities of ‘character’ as evidence is defined and well channelized. However, to the contrary, Indian Law remains silent when it comes to defining the term ‘character’, but in certain cases, do considers a person’s character as evidence for those cases.

Section 55 of the Indian Evidence Act, 1872, defines character similar to the generic definition.[1] ‘Disposition’ means what the person, actually is, as an individual, while ‘reputation’ relates to the society’s opinion on that person. Reputation is the primary measure to prove a person’s character. Character Evidence regards to one’s general personality traits or propensities, of a praiseworthy or blameworthy nature.[2]

This researcher will discuss the need for effecting ‘Character Evidence’ as a primary source of evidence in the Indian law context, like the English Law. The field of research will be based on comparing laws and the precedents between those two contexts and critically analyzing the need of convening a special rule/legislation for ‘Character Evidence’.

Key Words: Character, Good/Bad Character, Reputation, Disposition, Criminal Justice Act, 2003, Indian Evidence Act, 1872, Character Evidence.

INTRODUCTION

For any case that appears in front of a Court, there should be evidence to support a side. When it comes to Criminal cases, things forward a bit advanced, requiring evidence to be proved beyond a reasonable doubt. This is because the degree of seriousness attached to pronouncing judgments for such cases is high and requires a thorough investigation procedure as the consequences are worse when compared to the civil case pronouncements.

There are different types of evidence that are substantial towards proving a crime. Those can include any forms of acts under Actus Reus, materialistic evidence, footages of CCTVs, etc. But when there comes a situation where there is a lack or no materialistic evidence being present to prove a point, the concept of non-materialistic evidence comes into play. In other words, Mens Rea[3] aka the guilty mind is a concept that is taken into consideration at these circumstances.

The concept of Bad Character Evidence is one amongst them. This is new and also a vague concept in India. Character means, the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behavior.[4] The English Law has been including the term ‘character’ as a part of the evidence for civil and criminal cases. It also has a Criminal Justice Act, 2003 from which more versions and possibilities of ‘character’ as evidence is defined and well channelized.

This paper will aim at discussing the need for effecting ‘Character Evidence’ as a primary source of evidence in the Indian law context, like the English Law.

WHAT IS CHARACTER?

This is a very tricky term to define under the ambits of law. There is no accurate definition mentioned in any law books, law dictionaries for the same. Moreover, in common parlance, Character is something that is dynamic in nature and tends to vary from one person to another. The predictability of its change cannot be determined precisely by anybody as it is subjected to the moods, thoughts, lifestyle, social interactions and vendetta (if any) of the person who’s character is put to question. But generally, ‘Character’ can include the Public’s opinion on a person, his reputation in the society etc. The primary source of ‘Character’ of a person depends upon the morale of that person. Character Evidence is admissible under some conditions and for some purposes in both civil and criminal proceedings.

CHARACTER EVIDENCE IN ENGLAND

The English Law is the foremost legislation to account in the Character Evidence as a part of substantial evidence in regular cases. It is becoming increasingly prevalent that the conventional justifications and explanations to have Character as primary evidence is inadequate. These very reasons suggest that adopting Character Evidence as primary evidence is not yet fully been perceived by all sections of people and even the people in the Judiciary are yet to approve it unanimously. The raw reason that can be stated for this could be the reason for its being new and in a postmodern society like today, anything that is new and has not been in convention takes a bit of time to get gelled into the practicality.

The character of the accused to the case is determined by various characteristics in relevance with the given facts of that case, like their relation to the facts, gender, marital status, job, age, profession, past criminal records (if any) etc., These points were first discussed in the Criminal Justice Act, 2003.[5]

Author Stephan in his book Field’s Law of Evidence, says that,

“Though general evidence of bad character is not admitted against the prisoner; general evidence of good character is always admitted in his favour. This would, no doubt, be an inconsistency, justifiable or at least intelligible on the ground of humanity of English law, if such evidence was not often of great importance as tending to explain conduct.”[6]

Halsbury states as,

“It is not in general permissible, in a criminal case, for the prosecution to adduce evidence that the accused either bears a bad general reputation in the community, or has a natural disposition to commit crimes of the class charged”[7]

According to the Criminal Justice Act and common followings in the English Law, good character is not a defense for no one would then be convicted as everyone has a shard of good character. The defendant is however, entitled to rely on the fact that he is of previous good character as making it less likely that he would have committed that offence. If there is any room for doubt, his good character may be thrown in the scales in his favour. The rules set out here have not always been strictly observed and at times considerable flexibility has been allowed to the defence.[8]

CHARACTER EVIDENCE IN INDIA

As the suits in India are majorly classified into either Civil or Criminal, let us interpret the roles of ‘Character Evidence’ in both of these scenarios.

CIVIL CASES

Generally, in Civil cases, the Character of a person as primary evidence who is one of the parties of a suit is not admissible for the purpose of raising an implication as to his conduct. That is if a party is being judged, depending on the civil actions he/she has been subject to, in that case, the Character of him/her does not play any role in this due process of consideration. Therefore, it is outright that in civil cases, ‘Character’ as evidence, prima-facie becomes inadmissible unless the Character forms the substance in the issue.

Section 52 of the Indian Evidence Act, 1872,[9] ‘the character of any person concerned’ is used. Although it may involve any person including the witnesses also, the content of this section primarily refers to the parties of the proceedings only.

There are certain precedents in which the ‘Character’ forms a fact in issue or is a relevant fact. One of such cases may include when the character of a Female Chastity is considered if there is a breach of promise of marriage. Another case could be, if two people (A is a reputed businessperson and B is new to the field) are the party for a suit, the facts in issue revolves around verbally inviting investors, to invest on equity and then, not applying the necessary performance on it, thereby, incurring loss to those investors. The question of predictability of such loss before convincing them to invest comes into question. If B had convinced without the knowledge of A, A’s character can be considered in this regard.

Field states that “To admit character evidence in every case, or to reject it in every case, would be equally fatal to justice; that to draw a line or to define with precision where it ought to be received and where it ought to be rejected, is as embarrassing a problem as any Legislature can be called upon to solve.”[10]

The confusion arises when a person, who’s character is in issue, was either drunk or not in a sound mind, either temporarily or permanently, at the time of the accusation, The Allahabad High Court held that the mere general bad character of that person will be considered irrelevant in a civil case to prove the want of consideration of the other party.[11]

CRIMINAL CASES

ARVIND KEJRIWAL VS ARUN JAITLEY AND ORS[12]

This is an infamous case where the present Union Minister Arun Jaitley filed a defamation case against Aravind Kejriwal. The Character Evidence was primarily relied upon in this trial. It was an important case where it raised a question of defamation being a subject of reputation. The Counsel for Aravind Kejriwal, Ram Jethmalani claimed that “the Union Minister did not have enough reputation to be damaged about.” Jethmalani also argued that reputation and Goodwill are two different things and any defoliation in the goodwill does not constitute a defamation case. Aravind Kejriwal has appealed to the High Court and the case is still under consideration. With the latest hearing of this case on 29.03.2018, Jethmalani allegedly called Jaitley as “Crook”. Where this term means “a person who is dishonest or a criminal.”[13]

CHARACTER EVIDENCE IN CIVIL AND CRIMINAL CASES

In Civil Cases, to prove the probability of the party to the suit’s conduct ascribed to him is deemed to be irrelevant.

For the same, there should be a clear demarcation drawn between the cases where,

If the Character of one of the parties to the suit forms the fact of issue or not?
If the case’s nature is either Civil or Criminal?

When the general character of one of the parties to the suit is put to the question, it will be duly considered only when it forms the facts in issue. If it does not, then the argument for analyzing the ‘Character’ as evidence is rejected and declared to be invalid (in Civil Cases) under Section 52 of the Indian Evidence Act, 1872.[14]

There are two exceptions to this rule[15] though. They are,

In Civil Proceedings evidence of Character as affecting damages is admissible,
In Criminal Proceedings, the fact that the person accused is of a good character is relevant but the fact that he/she has a bad character is irrelevant except in some cases (Ss. 53 and 54).

The general exclusion of character evidence is based on the grounds of public policy and fairness since its admission would prejudice and be against the people by completely exposing not only their professional lives but also their personal lives which they could not possibly come into court prepared to defend. The business of the court is to try the case in hand and not judge the nature of the parties who are present in the court and sometimes, even a terrible person can have a very righteous cause.

BEST[16]

In Best, it is stated in much explanation that “to admit Character evidence in every case or to reject it in every case would be equally fatal to justice that to draw a line or to define with precision where it ought to be received and where it ought to be rejected is as embarrassing a problem as any legislature can be called upon to solve”

HALSBURY[17]

In Halsbury, it is observed that when a party’s Character which in this context means his reputation is not directly in issue in proceedings, but the evidence of it is tendered in proof of some other fact, it is generally excluded. In certain circumstances, the evidence of reputation is admissible for the purpose of establishing a person’s good or bad character. The admission of evidence of reputation is now largely confined to defamation cases and where it is relevant will depend on the terms of that particular case. Where damages are at large, the bad character of the plaintiff in such actions may be proved in chief, in mitigation of damages irrespective of the right to cross-examine. In general, in civil cases, evidence as to character and reputation is not admissible to bolster a party’s case although it can certainly be relevant in cross-examination for example as to credibility.

The commonly assumed rule is that the evidence as to the character of a person is irrelevant in a civil case.

In the case of Abdul Shakur v. Kotwaleswar Prasad,[18] the contention was that some of the promote were seized from the insolvent when he was drunk and thus, was found to be baseless. It was held that the mere general bad character of that insolvent person would be irrelevant for a civil case to prove the want of consideration of the promoters.

In the case of Lakshamamma v. Chinna Appaya[19], when the first wife filed a suit for maintenance, the husband threw allegations of un-chastity against his second wife. Here, the Court held that the character of the second wife was not relevant to the title suit.

Character Evidence cannot always be relevant to decide on an issue. But cross-examining is possible by counsels for the purpose of revealing truth by way of asking questions to reveal a person’s character under Section 146(3)^{^[20]} of the Indian Evidence Act, 1872. Section 155[21] prescribes the manner of impeaching a witness’ credit. Section 52 prohibits the evidence of character with regards to the subject matter of a suit.[22]. Therefore, Section 155 cannot be construed as an exception to Section 52.

Section 52 excludes character evidence from being given only for the purpose of rendering probable or improbable any conduct imputed to the party. However, when the facts which are relevant otherwise that for the purpose of showing character are proved, and those facts raise inferences concerning the character of a party to the suit, such facts become relevant not only to prove the facts for which they are directly given as support for but also for the purpose of showing the character of the party concerned. In such a case[23], it is open to the court to form its own conclusion as to the character of the party and as to the effect of such character on the conduct imputed to the party.

WHEN IS CHARACTER RELEVANT

Section 53 of the Indian Evidence Act, 1872,[24] talks about when the good character of an accused is relevant. The principle upon which the good character may be proved is that it affords a presumption against the commission of a crime. This presumption arises from the improbability as a general rule as proved by the common observation and experience that a man who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it.[25] Such a person may be overcome by temptation and fall into crime. However, it has been held in the case of Bhagwan[26] that character evidence is weak evidence and it cannot outweigh the positive and conclusive proof that a man is guilty. This has been reaffirmed in the Uday Kumar case.[27]

In the Bhagwan Swarup v. State of Maharashtra case,[28] Bhagwan was convicted u/S 409 [29] and u/S 120B[30] of the IPC. The evidence of the witnesses that include Jawaharlal Nehru to prove the good character of the appellant, their words praised his integrity, simplicity and the question is as to the evidentiary value of the good character of an accused. The provisions relevant in Section 53 and its explanation to Section 55 of the Indian Evidence Act, 1872[31], is clear from those provisions about the evidence general reputation and disposition. But the Judge Subba Rao ruled that the character evidence, in any case, is a weak form of evidence and cannot outweigh the positive evidence with regards to the guilt of the person. Although it may be useful to balance the case in favour of the accused considering his background and the good past, the opinions of the witnesses do not credit in favour of the accused.

In the Criminal Law (Amendment) Act, 2013, following the Nirbhaya Case,[32] inserted Section 53A in the Indian Evidence Act, 1872, that states that the evidence of character or previous sexual experience is not relevant in certain cases[33].

SECTION 54

Section 54[34] of the Indian Evidence Act, 1872 states that, Previous bad character of a person is not relevant, except when there is evidence of him having a good character which becomes relevant to the case.

Under this section, the prosecution to a side may give evidence of the bad character of the accused, it will be relevant. It can give evidence of bad character only when the accused claims his good character through his submissions of evidence. If the accused has already been guilty of certain criminal acts other than those of which covered by the accusation, for the purpose of heading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the crime for which he is being tried.[35]

RELEVANCY OF BAD CHARACTER AS EVIDENCE

The Courts may permit cases that give evidence of bad character only when the other party provides evidence of his good character. But submission of evidence to prove bad character in the first place is not permitted. This prohibition will not apply when the bad character of a person itself forms the issue of that case. The Supreme Court held that the evidence that discloses certain unpleasant information about the accused is examined by the Court in order to determine the motive behind the murder and not for proving the guilt.[36]

In Halsbury[37], it was observed that it is not permissible in a criminal case for the prosecution to adduce evidence that the accused either bears a bad general reputation in the community or has a natural disposition to commit crimes of the class charged. The accused is nevertheless permitted to adduce or give evidence of his good reputation and if he thus puts his character in issue, the prosecution may attack it.

At common law, evidence rebutted must be the same kind and subject to the same limits as that to which it is an answer, that is, it must not relate to specific instances and must relate to the general reputation of the accused.[38]

In a case where the foster parents of a child were jointly accused of killing and burying it in their backyard, further investigations revealed other children’s corpses in the same place. This confirmed their bad character in nature.[39]

In Sardul Singh v State of Bombay[40], while admitting the principle of the Makin’s case, the Supreme Court observed that it is well settled that the evidence in rebuttal of a very likely and probable defence on the question of intention can be let in by the case as a part of this it. To anticipate defense and to give evidence by prosecution is beyond a reasonable doubt.[41]

In Lakshmandas v State[42], it was held that section 54 cannot be given an overriding effect, the section itself is not so worded as to be directly contradictory to sections 7-15[43] of Indian Evidence Act, 1872. If the evidence of bad character is relevant under section 14[44] or 15[45] of the same Act. Merely because it might show previous misconducts of the accused, it is not inadmissible because of section 54.

It is also been held that the evidence which otherwise is relevant will not become inadmissible merely because of the bad character alone.[46]

SECTION 55

Section 55[47] of the Indian Evidence Act, 1872, acts as an exception to the general rule laid down in Section 52 of the same Act. The character of a party to a civil suit is relevant if it is of such nature as to affect the degree of damage in which, the plaintiff ought to receive, according to this Section. In cases like this, the damage is always an issue. For example, in the case of adultery, it is easy to prove the bad character of the plaintiff. In a divorce suit, the husband’s cruel character is more likely to be proved and is relevant. Like that, in the case of breach of promise of marriage, the plaintiff’s character can be relevant of being immoral. Thus, the plaintiff’s bad character in the case of adultery can be probably more proved easily.

Section 55 lays down that[48]

it is applicable only in a suit for damages
the character of the plaintiff only is relevant
such character of the plaintiff is relevant only as to affect the amount of damages to be awarded to the plaintiff.

In R v. Rowton[49], the opinion of a witness was given on his personal experience and it was excluded regarding the disposition of the accused charged for the indecent assault as a character was the only general reputation.[50]

R v Davidson[51] however, upheld that personal experience of a witness to be admissible.

In the case of Emperor v. Kumera[52], the Allahabad HV held that the reputation or the character of a person is generally hearsay evidence and hence it is inadmissible as a direct opinion of witnesses is not any character evidence but takes on a different nature.

In the case of In re Perne Maita Rai[53], Madras High Court held that, character evidence in one sense, is hearsay and can be admissible by Section 117 of CrPC[54].

CONCLUSION

Given the references in the papers and the findings, in this chapter, the answer to the research questions shall be dealt. That is, what is the feasibility of admitting the character evidence as a part of primary evidence in the Indian laws. Here, the question becomes quite complex. Although there is no specific legislation or pertinent laws to clarify all the aspects of character evidence, the Courts of India have always stood up to interpret the question of character whenever it was needed either by using the already-present vague laws of citing foreign cases of probability.

This has, in no way affected the cases and those Judgements have also been rationale. So, the researcher feels that there should be clear laws and amendments about making the character as primary evidence, and also, not having specific legislation on the same is not a drawback either as the cases dealing it have always been settled by the Indian Courts. There is a paucity of such issues that would come up in all the cases as in the majority of the cases, the primary evidence stands up to prove who the accused it and there are various methods of bringing out the truth like the Narco Analysis test, Polygraph test, etc.

Hence, Character Evidence is a brittle piece of evidence that does not have a strong base even in the Courts. While the entire concept of understanding a person’s character based on his reputation in the society and his past activities is not as substantial as other primary evidence, there is a hiccup in adding character evidence under the lines of primary evidence. But the role Character Evidence plays in saving some cases like divorce, defamation, etc., cannot be denied as well. But there needs to be an aggregate opinion that should form the final verdict on this. Hence, given the paucity of cases requiring Character Evidence in the first place, or the character of a person forming the issue of a case, the Court should not use Character Evidence as a crux, but as a compass that has high possibilities of being faulty.

Therefore, given the condition of Indian Law, it is not necessary to have specific legislations for Character Evidence but it is good if there are any laws that clear up all the vagueness in Character Evidence that the present laws contain.

BIBILIOGRAPHY

Best, Law of evidence.
Halsbury laws of England, James Bowman and Lord Hailsham of St Marylebone.
Dr. V Nageswara Rao, The Indian Evidence Act, 2012.
K D Gaur, The Indian evidence act, 2016.
R.Ramachadran, Digest of Indian EVIDENCE Act, 1872 (1950-2010).
Lexis Nexis, Short Notes & Multiple Choice Questions THE INDIAN EVIDENCE ACT (ACT 1 OF 1872).
Davind Bentley, ENGLISH CRIMINAL JUSTICE IN THE NINETEENTH CENTURY.
M. Monir, TEXT BOOK ON THE LAW OF EVIDENCE.
W. Field, FIELD’S LAW OF EVIDENCE, 11^th edition, Vol. 3.
Woodroffe and Ameer Ali’s Evidence, 10^th edition, Vol II.

* V Year, B.A., LL.B. (Hons.), Tamil Nadu National Law University, Tiruchirappalli.

1 Black’s Law Dictionary, p.282 (10^th ed., 2014).

2 Id.

3 Id. At p.674.

[3] Black’s Law Dictionary, p.165 (10^th ed., 2014).

[4] Id. At 282.

[5] https://www.legislation.gov.uk/ukpga/2003/44/contents (Last Accessed on 09.04.2020).

[6] Field’s Law of evidence, 11^th edition, Vol. 3, P.2570.

[7] Woodroffe and Ameer Ali’s evidence, 10^th edition, Vol II, p.718.

[8] Phipson 15^th edition, page 236 (2000).

[9] http://ncw.nic.in/acts/THEINDIANEVIDENCEACT1872.pdf (Last Accessed on 29.03.2020)

[10] Field’s Law of evidence, 11^th edition, Vol. 3, P.2570

[11] Abdul Shakur v Kotwaleswar Prasad, AIR All 54 (1958)

[12] Arvind Kejriwal v. Arun Jaitley and Ors, Crl.M.C. 2417/2016

[13] Supra Note 1, at p. 304.

[14] SECTION 52: “In civil cases, the fact that the character of any person concerned is such as to render probable or improbable, any conduct imputed / attributed to him, is irrelevant, except in so far as such character appears from facts, is otherwise relevant.”

[15] Woodroffe and Ameer Ali’s evidence, 10^th edition, Vol II, p.718

[16] Best, BEST ON EVIDENCE, 8^th edition, section 256, p. 245

[17] Halsbury Laws of England, 4^th edition, Vol 17, para 52, p. 38

[18] Abdul Shakur v Kotwaleswar Prasad, AIR All 54 (1958)

[19] Lakshmamma v Chinna Appaya, 2 AP, W.R. 94 (1970)

[20] S. 146 (3)- When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

[21] S. 155 (3)- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

[22] Supra Note 10.

[23] Guntaka Hussenaiah v Busetti Yerriah, AIR Andhra 39 (1954).

[24] Section 53- In criminal cases, previous good character relevant.— In criminal proceedings, the fact that the person accused is of a good character, is relevant.

[25] John A. Seiff, Presumption of Innocence, 25 Am. Inst. Crim. L. & Criminology 53 (1934-1935).

[26] Bhagwan Swarup v State of Maharashtra, AIR SC 682 (1965).

[27] Uday Kumar v State of Karnataka SC 1451 CrLJ 4622 (1998).

[28] Bhagwan Swarup v State of Maharashtra, AIR SC 682 (1965).

[29] S. 409- Criminal breach of trust by public servant, or by banker, merchant or agent.

[30] S. 120- Punishment of criminal conspiracy

[31] S. 55- Character as affecting damages. —In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.

[32] Mukesh &Anr. V. State for NCT of Delhi and Ors., S.L.P. (Criminal) Nos. 5027-5028 of 2014.

[33] S. 53A- In a prosecution for an offence under section 354, section 354A, section 3548, section 354C, section 354, section 376, section 376A, section 3768, section 376C, section 3760 or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.

[34] S. 54- Previous bad character not relevant, except in reply—In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. Explanation 1. —This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 2. —A previous conviction is relevant as evidence of bad character.

[35] Shantanu Chakrat, http://www.shareyouressays.com/knowledge/section-54-of-the-indian-evidence-act-1872/120442 (Last Accessed on 09.04.2020).

[36] Supra Note 26.

[37] Supra Note 17, at p.51.

[38] Criminal law, Vol II, para 369, 388.

[39] Makin v Attorney General for New South Wales AC 57 (1984).

[40] Shardul Singah v State of Bombay SCR 161 (1958)

[41] M. Monir, TEXT BOOK ON THE LAW OF EVIDENCE, 8^th Edn., (Universal Law Publishing Co. Ltd. 2010).

[42] Lakshmandas v State AIR Bom 400 (1968).

[43] S. 7- Facts which are the occasion, cause or effect of facts in issue.

[44] S. 14- Facts showing existence of state of mind, or of body or bodily feeling.

[45] S. 15- Facts bearing on question whether act was accidental or intentional.

[46] Saroj Kumar v Emperor 59 Cal 1361 (1961).

[47] S. 55- In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.

[48] Supra Note 35.

[49] R v Rowton 34 L.J.M.C. 57 (1865).

[50] Davind Bentley, ENGLISH CRIMINAL JUSTICE IN THE NINETEENTH CENTURY, p. 238.

[51] R v Davidson 31 How. St Tr,99 (1918).

[52] Emperor v Kumera AIR All 650 (1929).

[53] In re: Perne Maita Rai AIR Mad 591 (1938)

[54] S. 117- Order to give security. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behavior, as the case may be, that the person in respect of whom the inquiry is made should execute a bond with or without sureties, the with Magistrate shall make an order accordingly: the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive.