date

21 July 1805 Evidence Introd
21 July 1805

Evidence

Introd. Jurisprudent

Equity Jurisdiction

In the Courts of Common Law the business of procedure is carried on upon one plan. In the Courts of Equity the business of procedure is carried on upon another plan as different from the other as any that can be conceived. Two plans here different for the accomplishment of the same object may be both wrong; and if to run counter to every end of justice is to be wrong are both wrong, but they can not both be right.

Not only did they travel /wish/ in use the execution of the same work /sort of business/ upon discordant and repugnant principles, but among the occupations of one of these sort of Courts is that of stopping and undoing the work of another /the other/. [When Penelope unravelled by night the web she had been compelled to weave by day, it was for the declared proposed purpose of impeding the work and not of forwarding it.] It To do this and that and other is contrary to equity and good conscience. So says /saeth/ the suitor in Equity to the Court of Equity. It is so it is indeed contrary to equity and good conscience, says the Court to the Plff in effect, as often as upon the ground /strength of the [...?]/ then made by the Plff it acceeds to his demand. Contrary to equity and good conscious? to do what? To do that very thing which the Courts of Common Law are constantly employed /occupied/ in doing, because the not doing it would be contrary to justice.

My property /land is withholden/ is taken from me. I apply for redress to the only Court /Court which in this case in question prefers to give in [...?]/ to which I can apply for it, a court of common law. When the Common Law storehouse of factitious expense, vexation and delay has been exhausted, and the time is come when it is no longer possible for the Common Law Court to forbear rendering a justice, I am dragged into a court of Equity, in which the process of factitious expense, vexation and delay recommences with improvements: to a Court of Equity, in /by/ which my demand is decided upon on principles disregarded by the Court of Common Law; the facts being also decided upon by evidence not there admissible and obtained by a mode of enquiry altogether different.
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    Ch. Regular [...?]

    Diverse classes of professional hands whose work /functions/ are useless in toto to the purposes of justice.

    In a Court of Summonary Procedure, neither of those instruments of the Daemon of Chicanery the Special Pleader and the Equity Draftsman have /can ever find/ any place.

    Whatever is done by either of them belongs in toto to the account of made business more /completely unnecessary, much more/ than useless business.

    In the Circle called Court of Common Law, the Special Pleader that is a pair of Special Pleaders on on each side, bring out allegation upon allegation, altogether without one, without any search for veracity on either side, and under the constant incitement of an interest more or less [...?] in permitting mendacity, on whichever party is in the wrong; and though neither party should have any impulse /temptation/ /interest/ or desire to inflict needless vexation expense and delay upon his adversary, then their aptitude are sure in every cause /can not in any cause fail/ to have an interest in keeping these affections of the highest possible degree of morality[?] upon both.

    In the courts called Courts of Equity the /under the system of/ Draftsmen, with their Bills and Cross-Bills their Answers and Cross Answers, the check upon mendacity is not, as in the other case, altogether wanting as in the other case, but the mass of vexation expense and delay is in an enormous degree even[?] /a great degree still more/ oppressive.

    Special Pleading consists in reciprocal allegation without enquiry or the possibility of enquiry on either side. Equity Drawing consists in enquiry but in enquiry in the form of which neither truth nor despatch, but vexation expense and delay, for the sake of professional profit, have been the manifest object in view: and much is the delay, that after a series of enquiries still longer than the entire duration of a suit at Common Law, whatever truth on both sides requires on this mode of proceeding two suits, each longer than a [...?] [...?] Common Law: and at the end of this double enquiry it is only from those two individuals, the parties, that whatever truth is there extracted is obtained: this remnant the remuneration if extraneous[?] witnesses which in Equity if performed at all is performed in a different, and by far less mistakes made.
  • Title: [22 July 1804 Procedure (1)]
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    '.4. 3. No - Jury not complained of.

    '.4. Want of Jury Trial nnot complained of, where the mode is alike beneficial to Men of Law.

    If absence of a Jury were a law, men of law are so desirous of seeing it believed to be, a bar to justice, by dar the greater part of their practice according to their own [...?]/, would be a mass of indefinable abuse /be irreconcilable to justice/. Individually taken The question of fact on the occasion of which a Jury is called in are but as one say to two, half a dozen - half a score, a whole dozen or a whole score, to the questions in which this precluded sine quâ non to good judicature is shut out.

    Considered in this point of view - with reference to the use made or not made of Jury judicature - the questions of fact that come under the cognizance of the several Courts of justice may be divided into three classes - viz:

    1. Questions decided with assistance of a Jury, by the mode of enquiry termed Trial by Jury:

    2. Questions decided in the Common Law Courts, by the professional Judges without Juries being introduced by Motions: applications made to them in open Court by Advocates, the allegations and evidence in which they are grounded being exhibited at the same in the form of prepared written statements called Affidavits /sanctioned by Oaths, and called Affidavits //guaranteed by the sanction of an Oath//.

    3. Questions decided in the Equity Courts, after having been introduced /brought in/ by a prepared written statement called a Bill in Equity. exhibited by the Plff without oath, and answered by the Defendant by a written instrument, called an Answer in Equity delivered in upon Oath, in the manner of an Affidavit.
  • Title: [10 March 1807 Judicial Justice]
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    1. Misdecision

    Thus much as to misdecision pro tanto in respect of quantity.

    By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

    When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

    When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

    In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

    In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.