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29 April 1805
Evidence
Introd
Ch. 10 Collateral
'. Vexation from ultimate decision
For the sake of the illustration afforded by symmetry, it seemed necessary that the indication of this counterpart and antagonist to the general direct end of procedure should be brought to view. But the image presented by it while thus taken in an undivided mass, the image presented by it will be but faint and indistinct, untill upon its depiction the three branches which it envelops are seen /discovered/ rising /springing/ out of it.
First or modification branch of the undue vexation produced by misdecision to the prejudice of the defendants side of the cause: - administration of punishment when undue
Second or modification branch. Collation of rights (thence imposition of correspondent non-penal obligation) where undue
Third or modification branch - administration of satisfaction (thence composition of correspondent obligation) where undue.
Correspondent ends /particulars/ of the system of procedure - /branches of the ultimate collateral end:/ 1. Avoiding to administer punishment where undue: 2. avoiding to confer rights, where undue: 3. avoiding to administer satisfaction, where undue.
Similar Items
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Title: [28 June 1804 Procedure D 21]Description: 28 June 1804 Procedure D 21 (5) ends Ch.1. '.4. Particular Collateral Ultimate Lastly, satisfaction how pleasant so ever to receive, is a sort of a thing which naturally and most commonly /very frequently/, it is in a still greater degree unpleasant to be made to give. In the class of cases - a very numerous one in which satisfaction and punishment are administered at the same time for the same cause, and demanded, is at least capable of being demanded, by the same suit, the same danger still [...?] the defendant and from the same cause, whether the burthensome obligation thus might be imposed on him be or be not due. Third and last particular end - branch of the collateral end of procedure - avoiding to administer satisfaction where undue - viz: as before inasmuch as by such administration undue obligations would be imposed.
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Title: [14 May 1805 Evidence Introd]Description: 14 May 1805 Evidence Introd Ch 9. Precipitation Compared with delay, its seeming antagonist /opposite/ /correlative/ precipitation, will be found altogether disparate and anomalous. Besides the effects, it agrees not with it so much as in respect of the persons chargeable as authors. Delay, unnecessary or preponderant delay, is at least as liable to be the act and fault of the party, as of the Judge. Precipitation, considered as a fault by /an act from/ which any person other than the agent is liable /exposed/ to suffer injury, can not be the act of any person but the Judge or his subordinates. By precipitation, if the conduct of either party is chargeable with it, it is the precipitate party himself that suffers by it, not his adversary, unless it be by the default /by the fault/ of the Judge. Precipitation then, supposing it to take place, is peculiarly /more particularly/ if not exclusively the fault of the Judge: and when it does take place, of what nature is the mischief caused by it? It is the mischief of misdecision - the ultimate collateral evil incident to procedure - in one or other of its three branches: administration of punishment where undue, collation of rights (thence imposition of corresponding obligations) where undue administration of satisfaction, (with its correspondent obligations) where undue. But, through the medium of precipitation may it not happen to the Judge to produce unnecessary or preponderant vexation? - Yes: - or expence? Yes: - yes - and even delay. But in each of these cases whatever may be the mischief produced, it is the mischief of vexation, the mischief of expence, or the mischief of delay: distinct from /over and above/ those mischiefs respectively, precipitation, is not productive of any sort of mischief.
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Title: [29 April 1805 Evidence Introd]Description: 29 April 1805 Evidence Introd Ch. 10 Collateral ' Vexation from ultimate decision But suppose (what in here and there an instance must happen, spite of all that the legislator can do to prevent it) - suppose that, at the end of the cause, and in consequence of the demand that gave birth /commencement/ to it, the burthen sought by it to be imposed, falls on a person in respect of /relation to/ whom it is not due: falls upon the defendant, whereas either there exists no person at all in respect of whom it is due, or if there be any such person or persons, the defendant is not of the number. In this case, the good aimed at by the article of substantive law not being accomplished, the vexation in /the production of/ which the suit terminates, is not preponderant: but either the whole or at least a portion /one/ of it is so small[?] evil, clear and [...?] /the vexation thus produced by the ultimate decision, when given in favour of the demand /demandant/: and consequently against the defendant/. To avert this evil will of course be among the objects to which the legislator will direct his aim. It is however not the principal aim: for, if /to accomplish/ such aim, if it be not to suffer any such demand ever to be exhibited: which is as much as to say, either to have no substantive laws at all, or what comes to the same thing, not in any instance to suffer the predictions delivered by them to be fulfilled - in a word not to suffer the laws ever to be executed. Ultimate collateral end of the System of procedure - avoiding to impose on /throw upon/ a person, in whose instance it would be undue[?], the burthen the imposition of which is sought /prayed/ for by the demand. Vexation produced by ultimate misdecision to the prejudiced of the defendant's side of the cause: imposition of an /ultimate/ obligation, where undue. Ultimate collateral end of the system of procedure - avoiding /preventing/ to impose obligations where undue - non-imposition of undue obligations when undue + Decision - ultimate incidental before this
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