date

3 March 1804 Evidence Securities
3 March 1804

Evidence

Securities

Ch. Procedure Technical

''. Engl. Law

Declaration of bona fide - Examples

''. Duration of bona fides - Examples

In here and there an instance the torrent of mendacity and wilful injustice has been checked: checked in the only effectual way in which it could be checked, by bringing /attaching/ home the responsibility in case of mendacity, to the party profiting by it.

Till within the memory of persons still living, every man might have ensigned to prison in the first instance to prison every other, with or without the expence of falshood in respect of the general assertion implied in every legal claim, and without the expence of any particular averment, to which in case of mendacity, mendacity might be imputed. After the business had gone on for ages upon this failing, came at length the statute by which a man who thus consigns to prison another man for a supposed debt, is obliged to swear /make an averment/ in the shape of an /a written/ affidavit, that a debt to a certain amount is owing to him.

Other requisitions, may even be mentioned, which as far as they go are of the same tendency.

In Equity practice /procedure/ to a Bill of Interpleader, must be answered, on the part of the Plaintiff, an Affidavit of Non-collection: that is,

 Go on with instances[?]
Similar Items
  • Title: [3 March 1804 Evidence Securities]
    Description: 3 March 1804

    Evidence

    Securities

    Ch. Procedure Technical

    Declaration of bona fides

    Examples

    The torrent of mendacity has thus far been checked. But by the degree and mode in which the check has been applied, it affords a much more /less/ copious indication of the [...?] and industry /indifference and negligence/ of the legislator, it there were any such person, in the numerous and extensive instances in which neither this nor any other /it has not, any more than any other/ has been applied, than in the few and scanty instances in which it has ben applied.

    On a general view, all these patches are but so many partial [...?] and those most palpably as well as deplorably inadequate to the manifest and only adequate /effectual/ remedy - personal appearance of the /both/ parties, in the face of each other and of the Judge, at the outset of the cause, in readiness to declare each at his own instance, and to be made to confess each at the instance of the adversary, under the sanction of an oath, whatsoever facts are pertinent to the cause, and the respectivity within their knowledge.

    This and this alone saving only the few and [...?] exceptions which casual necessity prescribes - this and this alone is righteous and honest judicature: every thing else /other commencement of a cause/ had professional extortion for its object, has injustice - direct and collateral - injustice in all its shapes for its effect: direct, but too frequently; collateral in its triple shape of vexation, expense and delay constantly and invariably.
  • Title: [3 March 1804 Evidence Securities]
    Description: 3 March 1804

    Evidence

    Securities

    Ch. Procedure Technical

    Declaration of bona fides

    Examples

    Note (a)

    (a) As to the partial expedients, they are not only constructed upon a bad plan - but were according to their bad plan, badly executed.

    The affidavit for holding to Court may serve as a sample of the rest. It requires much more candour than is consistent with evidence to suppose, that the lawyer by whom it was contrived had it really in his wish to carry the remedy a hairs breadth further than it was possible for him to avoid carrying it.

    1. The debt must indeed be sworn to: but nothing like a negative is required to be put upon the existence of a set off; + so that in the case of mutual claims, the debtor upon the ballance has it as much in his power to employ this coercion for his creditor in this way, as the creditor to seek a necessary security against his debtor.

    2. The coercion, if justifiable, is so on no other supposition than that of its being necessary to prevent the removal of the defendant through the apprehension of insolvency out of the reach of law /justice/. But no warrant /declaration/ on the part of the creditor is required, professing so much as the least apprehension /suspicion/ on his part that any such deficiency is to be apprehended.

    It is for want of regulations /amendments/ thus obvious - thus plainly indicated by every days experience, that this power continues to be employed as an instrument of oppression under the eyes of these, to whom oppression in every shape, if the routine of language is to be believed, is the object of continual and inescapable /infrequent and implausible[?]/ abhorrence.
  • Title: [26 Oct 1805 Evidence Securities]
    Description: 26 Oct 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Beneficial Consequences

    10. The particular circumstances in respect of pecuniary and other matters /situation and circumstances and expectations in all mutual respects/ being thus ascertained /brought to view/ that particular mode of execution might in each individual instance be employed which should have been ascertained to be the best adapted to those circumstances; as being the most effectual and the least burthensome

    11. So likewise for the eventual security of personal forthcomingness and justiciability responsibility to all purposes, on both sides, and especially on that of the Defendant in the cause: in general real security or vicarious personal responsibility /justiciability/ being employed in preference where attainable, corporal security by provisional imprisonment not without the previous ascertainment of the necessity for it in the hearing before the Judge.

    Note

    (a) In English procedure the means of execution are diversified by an infinity of modifications, each of them is of course of itself imperfect, all of them together an inexhaustible mine of the most flagrant injustice.

    (b) In English procedure where the cause is not an unusual one, but the subject of it a mere /common/ debt as in the case of 19 causes out of 20, the defendant is consigned to prison in the first instance at the sole will of the plaintiff, without any cognizance [...?] by the Judge of the demand /on point of [...?]/ for vexation or procedure: the plaintiff is made to swear in general terms to the justness of his demand, but not even in general terms to so much as his opinion of the necessity of the remedy: and the remedy at [...?] open to him, though at the very [...?] he should have in his hands property of the defendants to ever so many times the value of the debt claimed.