date

26 Jan y 1805 Evidence Securities
26 Jan y 1805

Evidence

Securities.

Ch. Procedure Natural

''. Mutual Declarations

7. The Defendant, on his part will have it in his power to declare in the first instance, whether he admitts the justice of the Plaintiff's claim, or contests it.

8. If he admitts it, he will declare at or within what time he will engage himself to render the service as admitted to be done: or in case of inability, to confess the inability, and state what hopes he has, if any of being able in any and what degree, term and manner to surmount it; together with the /all/ specific facts which constitute the foundation of those hopes.

9. If he contests the justice of the Plaintiff's claim, he will then have it in his power to state on what grounds whether he disbelieves the truth of any of the Plaintiff's facts the ground of the evidence indicated as above by the Plaintiff himself, or whether he has moreover any counter evidence to oppose to it in relation to the same facts, or whether he disputes /disbelieves/ the applicability of the Plaintiff's law to the Plaintiff's facts, to the purpose of the inference drawn by the Plaintiff in support of his claim, as above.

10. So whether believing or disbelieving all or any of the Plaintiff's facts as above, he [...?] upon some distinct fact, not asked by the Plaintiff, as being, in virtue of this or that article of law, of a nature to put an end to the justice of the Plaintiff's claim, although, but for such counter-fact, the justice of it might have been out of dispute.

In this latter case comes a counter claim, the grounds of which and the sincerity of the Defendant's persuasion in relation to them respectively, will be to be depend to, under the several heads of vexation, above brought to view in relation to the Plaintiff's case.
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    Description: 4 June 1804

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    5. That he the defendant may cause the plaintiff to declare and make known to him, all such other facts, if any, of a tendency favourable to him - the plaintiff, and thereby unfavourable to him the defendant, as he the plaintiff means to rely on in the character of grounds for substantiating his claim[?]: and by that means to put him the defendant upon his guard, and give him such notion[?] and information, as may if uncontrovertible and unanswerable, save to convince him of the inability of maintaining his defence or repugnancy any longer - if controvertible or answerable, perhaps have for the production of counter evidence, viz: in relation to the facts in question, or if or in relation to ulterior facts, operating with a counter-tendency.

    6. That if his the defendants defence be grounded in any proposition or propositions relative to the disposition of the law on that behalf, viz: /ex. p[?]/ a proposition asserting that although they /the facts/ were such as the plaintiff contends would not operate in the character of /in favour of the plaintiff/ an investiture[?] [...nt?] enforcing upon him a right to the service to which at the hands of the defendant he lays a claim. He may have the opportunity of bringing them to the view of the plaintiff, and thereby if they be well grounded, causing him to desist from the prosecution of the claim at this early stage or if, upon such first view they appear doubtful to the Judge, he may have the opportunity of fixing in concert with the plaintiff, some certain term for the prosecution of the agreement /debate/.

    7. Upon the whole to cause the plaintiff, in the event of his being in the wrong, to receive a decision on the spot, in favour of him the defendant: or in case of non-decision, to cause him to join in the fixation[?] of some other time or times at which the enquiry may be pursued - and finally determined, that so in one way or other, he the defendant, may as soon as possible be acquainted with his fate.
  • Title: [17 Sept. 1803 Evidence Instructions]
    Description: 17 Sept. 1803

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    The case in which the testimony of a plaintiff in support of his own demand, supposing the testimony wilfully false appears to have the fairest chance, is where upon the face of it, the fact not having come under the cognizance either of the defendant, or of any body else but the plaintiff, the supposed false testimony of the plaintiff has neither the testimony of the defendant nor any other testimony to contradict it. But in this case it is provided that though by the supposition the defendant has it not in his power to give any specific testimony, whereby the force of the Plaintiff's testimony may be counteracted, yet it should be matter of obligation as well as right, on the part of the Defendant, after hearing the Plaintiff's testimony, to declare whether he himself gives credit to it - whether he decidedly believes it, decidedly disbelieves it, or remains in doubt. If he believes it, so may the Judge with still less difficulty: if he is in doubt, no doubt from such a quarter may in the conception /mind/ of the Judge afford some confirmation of the plaintiff's testimony. If the Defendant, decidedly and firmly can take upon him to say that he disbelieves it, and no confirmation comes in aid of it from any other source, personal evidence or real, direct or circumstantial, there seems little likelyhood that the Judge should suffer his decision to be governed by such scanty and suspicious evidence. To testimony thus circumstanced it will oftener happen to be disbelieved when true than to be believed /credited/ when false.
  • Title: [3 June 1804 Procedure. B1 Evidence]
    Description: 3 June 1804

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    Fundamental rule - except in the particular cases that will be specially excepted, and by which the arrangement generally proper /practicable and economical[?]/ is rendered either impracticable or preponderently inconvenient, the first step proceeding in every cause, after the preliminary proceedings whatever they may be, [...?] may be necessary to bring above this first step, ought to be the appearance of both parties or say all parties face to face in the presence of the Judge.

    Purposes with relation to which this state of things is necessary or conducive.

    1. [...?] of procedure, non final.

    1. Purposes for which it may be of [ad...ing?] to the plaintiff, that the defendant should then make his appearance.

    1. That the Plt[Plaintiff] may cause the defendant to exhibit

    1. To be examination in the character of a witness exhibit

    has [...eral?] testimony on being examined in the way of vivâ voce examination, in the character of a witness - a course of personal evidence: to acknowledge such facts, tending to [...?] this claim of the plaintiff as the plaintiff might not otherwise have been able to discern[?], or if not all and [...?] additional [...?] [...?] and [...?].

    2. To indicate and discover and engage himself for the [...?] [...?] such [...?] of wisdom, personal, real or written, as being in his custody or power, or lying within his knowledge or supposed or real wisdom or, may serve, or tend to serve to [...?] which the classes of the plaintiff.

    3. To authenticity[?] by his confession[?] all such sources or written or real evidence of thislike [...?] , by being in the custody[?], however [...?] or supposed of the plaintiff, may on this occasion have been produced or brought to remembrance for this purpose.

    4. To make known /[...?] and[...?]/ to the plaintiff all such facts of a tendency favourable to him (the defendant) and thereby consequently unfavourable to the claim of the plaintiff, as he the defendant means to rely on in the character of grounds for respecting the plaintiff's claim: or establishing on his own part any counter claim and by that means to put the plaintiff upon his guard, and give him such notice /information/ as may of [...?] and unanswerable, [...?] to convince him of the [...?] of pursuing his claim any longer - or if controvertible or answerable, propose him for the production of counterevidence, of the facts in question or of ulterior facts, operating with a counter tendency.

    5. If his defence in any respect be grounded on some /any/ proposition or propositions relative to the disposition of the law, [...?] in that behalf to bring them to view, that the plaintiff may desist or insist accordingly.