date

14 June 1805 Evidence Introd
14 June 1805

Evidence

Introd

Ch. Procedure Technical.

Of these, the burthen of expence and vexation, the evil opposite to the collateral incidental ends of justice, is a quantity which in comparison of the other is little /but in an inferior degree/ subject to variation: the burthen from ultimate misdecision, the evil opposite to the ultimate collateral end of justice, the sort of oppression flowing /appertaining/ extensively from /to/ misdecision to the prejudice of the defendant's side, is subject to variation, upon a scale of indefinite extent /indefinite an extent/. Upon an indefinitely extensive scale.

The latter sort of burthen /evil/ being a burthen which requires situations, opportunities, interests and incidents in some degree particular /more or less peculiar/ for the imposition of it, will comparatively speaking be but little in use. It is the other that being his best fitted for general use, cuts /makes/ by far the greatest figure in practice.

A man having or purchasing for the purpose a small demand, just or unjust, against another, the state of whose affairs admitts not of immediate payment without ruin or great inconvenience, proceeds against him in the expensive and vexatious track marked out for the purpose by the system of regular procedure. for this purpose a demand of a shilling serves as well as a demand of ,1000: and it is evident that in the case of the shilling, whether it be due or not due, makes in this respect no material difference.

That for the mere purpose of a gratification /enmity[?]/ to the passion /[...?]/ of enmity and without any to the self regarding passion, the desire of pursuing /the matter of [...?]/ a course of the sort in question should be engaged in, is probably in England at least comparatively speaking rather an uncommon case. But that this very course should be engaged in, for the sake of the profit, the professional profit for example derivable from it, in so far from uncommon as to have become a regular and established branch of practice, at least so far as evidence may be given to the statements of the cases that so frequently transfer through the medium of the press.

A dealer of this sort, if by accident a good bill is put into his hands, with instructions to recover the amount of it, complains of the goodness of it as an injury. Being a good bill, the amount of it is paid on presentation: and thus litigation being presented, the lawyer professional lawyer not to speak of his official partners disappointed of the expected fees.
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  • Title: [29 April 1805 Evidence Introd]
    Description: 29 April 1805

    Evidence

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    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
  • Title: [28[?] April 1805 Evidence Introd]
    Description: 28[?] April 1805

    Evidence

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    Ch. 10 Collateral

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    Ch. Ultimate collateral ends /end/ of procedure - avoidance of vexation from misdecision to the prejudice of the defendant.

    Besides the lots of vexation which, in greater or less number, and each with more or less weight, fall /have been seen falling/ upon every person /individual/ whom the institution /exhibition/ of a legal demand places in the condition of a defendant, there is one /one remains to be spoken of/ which consists /is constituted/ of the burthen which it is the ultimate and direct object of the demand to throw upon him the burthen of bearing the punishment sought by it to be imposed upon, administering the satisfaction or seeing it be[?] administered at his expence - or in a purely non-penal case, conferring or seeing conferred at his own expence the particular right which is the object /constitutes the subject and object/ of the demand.

    In each case, suppose the burthen the obligation due - suppose it of the number of those by the imposition of which the arrangements and predictions of /delivered by/ substantive law in that behalf will be made to take effect, thus vexation at the end of the [...?] account is not to be placed to the account of great[?] evil or inconvenience: for, if /suppose/ it to be not outweighed by some good produced by that the same operation, the fault lies in the substantive law by which the burthen was imposed, not in the adjustive branch of the law, the perfection of which consists in giving effect and fulfilment to the utmost to the predictions /arrangements predictions and engagements/ contained in the substantive branch wherever they may be: provided always that the mass of incidental inconvenience produced by the adjuctive law - by the course of procedure be not so great as to preponderate over the good produced /attached/ to the fulfilment of the substantive.
  • Title: [6 April 1804 Evidence Forthcomingness]
    Description: 6 April 1804

    Evidence

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    Ch.8. Appearance Extraord y

    §.5. Sick bed

    As to the consumption /demand/ extraordinary draught made by it upon the judges time, the inconvenience is possible only, not unavoidable. Cases of this sort will in comparison be very rare: when they do happen, unless the time of the Judge be overloaded by ordinary duties, this extraordinary one will not easily or frequently be productive of any such effect: and if all this not to speak of other purposes, the judge have the power of deportation, as he ought to have, the /this/ inconvenience at any rate will be obviated altogether.

    How the evidence be extracted in this less advantageous way at an earlier period, or at the price of the requisite degree of delay, shall the operation be postponed, and the evidence extracted in the same advantageous way at a later period: viz: after the return of the patient to a state of health such as will enable him /requisite/ to render this service in the regular mode and place. - The option /choice/ /decision/ it is evident must be left /committed to the discretion of the Judge. The quantities - the values of antagonising advantage and inconvenience to be weighed against each other, being on both sides susceptible of indefinite variation, every /any/ regulation which assumes them to be fixed, cannot but be erroneous. The great evil to be guarded against it being an irreparable one will be the deposition of the evidence, by the extinction of the source. Further[?] in another chapter.

    As to the formalities proper to be observed in the conduct of an operation of this kind, any details in relation to them would hardly pay for the space they would consume. The leading principles are already given. Of the several securities for trustworthiness and their respective uses the Judge is supposed to [...?] a competent conception. It will apply more or less if the security deriveable from this source, according to the degree in which the patient is capable of bearing it. He will take with him for example either no person but his official amanuensis, or he will give [...?] [...?] to a party or an /a professional/ agent of a party on each side.