date

10 April 1805 Evidence Securities
10 April 1805

Evidence

Securities

Ch. Procedure Technical

''.2. ruling Interests

continued

9. That in all instances in which misdecision would be /is/ productive of a greater degree of professional /lawyers/ or official profit than right decision, misdecision /the wrong course/ be the course adopted in preference: if /at any rate provided/ a pretence can be found capable of reconciling /hiding from/ the eye of the public to the injustice.

Note

If, the misdecision thus pronounced to the prejudice of the [...?] party who is in the right the effect be confined to that individual suit, having open to him the expectation of right decision, that is of a decision favourable to him, in case of another suit carried on in relation to the same demand, the natural effect of such misdecision is to produce two suits instead of one /give birth to a second suit in addition to the first/.

In this interest may be found /traced/ /seen the source/ the origin of decisions on the ground of informality , or nullity /a principal source of that class of decisions which are pronounced on/: decisions on grounds of all sorts foreign to the merits. Add Appeals Injunction &.

[...?] device[?] of technical procedure: device[?] for increasing the number of profitable suits: also of the mass of profitable proceedings in each given suit. Decisions on the ground of informality.

10. That whatsoever be the amount of profit extracted from the aggregate mass of suits, by the construction of the system, the quantity of inconvenience sustained by themselves in the extraction of it, viz. in the shape of vexation and delay (vexation including labour and expense) (delay in respect of the receipt of the profit) be as small as possible.

Of these two interests, that which respects the extraction of profit may be termed the main interest: that which respects the avoidance of vexation and delay, the collateral interest.
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  • Title: [10 April 1805 Evidence Securities]
    Description: 10 April 1805

    Evidence

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    5. That, in so far as the profit to the lawyer consists of so much expence to the suitor, converted into that shape, the expence to the suitor be in each instance made as great as possible: and thus, whether of any given mass of expence, the whole to be as [...?] [...?], so as may [...?] a part of it be thus convertible

    6. That in so far as vexation in any shape whether to the suitors or others be productive of expence or inseperably attended /connected/ with it, that expence being convertible, in whole or in part into profit as above, the quantity of vexation be in each instance made as great as possible.

    7. That in so far as delay is productive of profitable expence as above described, or inseparably attended /connected/ with it, the quantity of delay be in each instance made as great as possible.

    8. That in all instances /every instance/ in which misdecision would not be productive of any greater degree of professional /lawyers/ or official profit than right decision, the right as far as it is known which that is, be the course adopted in preference: at least so far as the public itself understands which is the right course: because by that course, the /approbation and acquiescence of the/ public upon whose approbation /humour/ /[...?]/ the reputation of the lawyer /man of law/ depends, and by whose acquiescence his power is constituted, is most likely to be secured /consiliated[?]/ /obtained/: - always understood that the particular labour of finding out this best course be not so great in each /any/ instance, as to preponderate when set in the scale against this general advantage.
  • Title: [13 Apr. 1805 Evidence Securities]
    Description: 13 Apr. 1805

    Evidence

    Securities

    Ch. Procedure Techn. Eng. Law

    ''. Oppression licenced

    Such are the effects /mischiefs/ produced even without the help of Special Pleading. The effects of that additionment[?] /additional yoke/ are somewhat different. The sure and constant and inseparable result is the addition thus made (an addition altogether needless and useless) to the mass of profitable delay, vexation and expence with its attendant profit such as its effect with relation to the collateral ends of justice. An accidental but too frequent effect is the misdecision, pretences the grounds /causes/ of which accompany the process in every part of its course. To whatever points are ever presented for decision in the course of the process thus denominated /Special Pleading/, one description belongs in common: they are all of them points foreign to the merits. On no[?] part of this class The decision when it comes to be pronounced will be either in favour of the merits i.e. to the claim of that one of the parties that /who/ has the merits on his side, or adverse: if favourable, the mischief produced by the process is confined to that which is /of the/ composed of the fictitious and unnecessary delay vexation and expence: if adverse /in the opposite case/, to the mischief produced by the contravention of those collateral ends of justice is super-added that which consists in the contravention of the diverse end of justice /that which is produced by misdecision/
  • Title: [16 May 1807 Judicial Injustice]
    Description: 16 May 1807

    Judicial Injustice

    Distinct as this object is from that of prevention of misdecision and delay in the instance of each individual suit taken separately, still more determinate and conspicuous is the distinction when applied to the aggregate mass of suits instituted within a given portion of time.

    In the case of the decision pronounced on any point in any given individual suit, supposing the decision erroneous, ultimate misdecision on that same point can not be prevented, the decision so assumed to be erroneous cannot be prevented from taking effect, unless it be known: from whatsoever superordinate authority the error receives its correction, it cannot be corrected by any person or persons without their knowing what it is.

    But taking in the aggregate the whole number of judicial decisions pronounced in the several subordinate Courts within a given length of time what may very easily, and in truth much too easily happen, is - that, while in the instance of some suit's parcel of that mass the decisions pronounced in them are known, and being so known a smaller portion of them being deemed erroneous receive correction accordingly - in such sort that in these instances though the decision pronounced in the first instance fell under the case of misdecision, ultimate misdecision was in that instance prevented from taking place - at the same time in the instance of other suits composing another parcel and perhaps much the larger parcel of that aggregate mass, the decisions pronounced remain, on the part of the superintending authority altogether unknown: whence it follows that in that parcel of the aggregate mass, in whatsoever and in how many soever instances it may have happened that misdecision took place, in all those instances the error has remained uncorrected.