058-271.xml

Title: [19 April 1805 Evidence Securities]

Description: 19 April 1805

Evidence

Securities

Ch. Procedure Natural

''. Recapitulation

In some instances /sorts of cases/ it may be proper to abstain from referring a Defendant man so much as to be called upon to appear in the character of a Defendant, until the Plff has presented /undergone/ the test of his sincerity: in these cases the first hearing /stage/ will be an ex parte hearing /hearing/. This accordingly in the course in English law no prosecutions for small penalties before one or more Justices out of Sessions.

In other instances /sorts of cases/, at the instance of a Plff, and without his having been subjected to the previous test of sincerity, the first hearing may be a reciprocal one: both parties finding themselves at the same times and in the first stage of the cause, (unless the summons directed to the Def and simply appointing the term be regarded as the first stage in the presence of the Judge. this accordingly is the arrangement /course/ adopted /pursued/, in suits for small debts in the English Courts of Conscience.

In /Under/ this sort of arrangement a man is not in the character of defendant absolutely exempted from all vexation, resulting from /producible by/ mala fide on the part of the Plff, in the first instance: but the /such/ vexation it can not, previously to the application of the check, have proceeded beyond that first stage: and then no source[?] is the Defendant struck upon by the vexation, than there the Plff - the author of it is - to answer and make satisfaction for it.

058-246.xml

Title: [9 April 1805 Evidence Securities]

Description: 9 April 1805

Evidence

Securities

Ch. Procedure Natural

''. Recapitulation

The minuter and [...?] lineaments of the system will be brought to view as we advance. At present let us take a [...?] view /simultaneous glance/ /look/ of the strong and discriminatory features upon which the difference between the /[...?]/ system, and the immeasurable size that are not natural principally terms.

1. At the very first or second stage the plaintiff in the presence of the Judge

2. stating, under the sanction of an oath, or at any rate /rather/ under the [...?] [...?] in case of mendacity, as in the case of an extraneous witness, what the facts are on which to ground his claim, and what reasons he has for looking upon them in time[?].

3. The plaintiff consequently /in course/ [...?] on these occasions, to hear questions put to him by the Judge, tending to rife[?] into the truth of the persuasion expressed by him in relation to those facts, and bound to make answer to all such question, on pain of seeing his claim disallowed, in case of silence.

4. If, at this first stage, the defendant happens likewise to be present, some obligation on the part of the Plaintiff to answer any such proper questions as may be put to him by the Defendant, in the same view[?].

The consequence is - that in a case where the claim is palpably destitute of foundation, it is in vain /it would be in vain/ for a Plaintiff unless prepared to encounter the danger of punishment for perjury to compel the defendant to undergo the expence or vexation of any further enquiry; whereas under the Natural system a man who neither has any foundation for his claim nor so much as conceives himself to have any, has it as fully in his power to cause the suit to go on and run out its utmost length, as if his claim were ever so notoriously just and undeniable. By this means /In this state of things/, all malá fide facts, that are such on the part of the plaintiff, are nipped in the bud before they have run any such length as to have produced expence or vexation to the defendant, unless where for the chance of being able to draw the suit out into further length, the Plaintiff is rash enough to encounter certain guilt, together with the [...?] of punishment as for perjury.

058-341.xml

Title: [15 April 1805 Evidence Securities]

Description: 15 April 1805

Evidence

Securities

Ch. Procedure Technical

''. Allegation is Evidence

The evidence by which the man of law is prompted to raise to its maximum the number of malâ fide suits has already been brought to view: that such should be /have been/ his endeavour is a natural, not to say a necessary consequence: in the encouragement - the efficiency coupled with the permitt[?] given on this occasion to the initiative mendacity, we may see the instrument employed by him, on this occasion, for this purpose.

What has thus been applied to the initiative instrument by which a suit is commenced on the part of the plff, applies with equal propriety to every other instrument and /as well as/ to every other step by which, on either side, the suit is continued and carried on: still the same indulgence, still the same encouragement, which to the malâ fide suitor, plff or defendant, is a sine quâ non, and for which a bonâ fide suitor has not, in either station, any use.