date

14 July 1804 Procedure and Evidence
14 July 1804

Procedure and Evidence

1. wrongful decision against self

Of the arrangements, in consequence /-----/ of which decisions adverse to the merits may come to be given on points /grounds/ foreign to the merits, some belong to the substantive branch of law, others to the adjective - the system of procedure. It is with the latter that we have any concern at present /The latter alone are in question here/.

Decisions adverse to the merits on points /grounds/ (say sure(?)) of procedure foreign to the merits, admitt /require/ of a description somewhat different according as the side, to the prejudice of which they operate, is the demandants' or the defendants' side.

A decision adverse to the demandants side, and at the same time adverse to the ----- on a ground foreign to the merits, supposes a law or rule of law established or assumed to be /considered as/ established, whereby it is ordained that a demandant for /for and in the course of/ some inaccuracy /transgression/, real or ------ , on his part, as on the part of some other person shall lose his cause - in other words that compliance with his demand shall be refused by the judges and this without any persuasion on the part of the judge, ascribing to the rich demandant a want of right: - that accordingly, if the suit be partly penal, punishment shall not be applied to the defendant, although, setting aside the regulation in question, it would or might have been regarded by the judge as due: if the suit be of a mixt kind, that neither punishment shall be applied to the defendant, nor satisfaction at his charge be administered to the demandant, although setting aside the regulation in question as before,
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  • Title: [13 July 1804 Procedure and Evidence]
    Description: 13 July 1804

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    1. wrongful decision against self

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    and suppose this form of summons to consist of two distinguishable parts: one (according to a supposition but too abundantly verified) consisting altogether /of a heap/ of lies and nonsense, the effect of which is either to convey no information of any kind or none but what is false, and if trusted be deceptitious: the other, adapted to the end, and serving to convey the information requisite and intended. The first part of this form of summons will be an example of the case just supposed, the latter part of the other case.

    Suppose now an inaccuracy committed in the transcription of this nonsensical and altogether useless part, and that for this inaccuracy the plaintiff /demandant/ is made to lose his cause. There then we have a decision on a point foreign to the merits; and that a decision contrary to the merits: and in this case the absurdity and mischievousness of such a decision cannot with any shadow of reason be controverted or put in doubt.

    Suppose again that an inaccuracy is committed in respect of the rational and useful part of the notice: but the defendant appears notwithstanding, just as he would have done, had the notice been correct, and by appearing, has altogether as good and effectual an opportunity of defending himself: and yet notwithstanding his appearance, the , the cause is not suffered to go on; but on the ground of such inaccuracy a decision is pronounced against the complainant, refusing compliance with his demand. Here again we have another decision on a point foreign to the merits: another /and that to a/ decision contrary to the merits: and though in this case /as to this point/ the requisition by which the form of action is prescribed has nothing of absurdity in it - nothing but what is reasonable - yet the mischievousness of the decision to the effect in question is not less undeniable in this case than in the other.
  • Title: [4 July 1804 Procedure & Evidence]
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    Note Evils causes

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    (a) A few instances /A rare and heteroclite sort of case/ will be mentioned /brought to view/ in its place /further on/ /in proper ----/, in which a cause may be, and is sometimes /is,/ carried on without a complainant /demandant/ the same person ---ling /adding/ the function of the plaintiff to the office of the judge /that of the judge/.

    Setting aside this /that/ heteroclite sort of case, so long as there is no demandant, and thence no demand, there can not be any decision. no decision either on that side or the ---- can take place /be pronounced/ never ---- takes place. With regard to the ------ of the parties in respect of the result of the suit, it is exactly the same, setting aside the incidental evils of vexation and expence, as it would be if the complaint having been instituted, a wrongful decision /adverse/ to the prejudice of the plffs side had been pronounced.

    But to an individual whose station is on the plaintiff's side /of the demandant/ - to an individual who stands in need of a service to be rendered to him by the judge, the effect of non-decision, which so long as it lasts, is exactly to same as that of wrongful decision - a decision importing a wrongful refusal to render him that service.
  • Title: [13 July 1804 Procedure and Evidence]
    Description: 13 July 1804

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    Evil causes 4th order

    5. Anti-merits

    1(a) continued

    In a quirk. By a decision foreign to the merits.

    The point on which a decision, contrary /adverse/ to the merits of the cause is pronounced, may belong either to the substantive or to the adjective branch of the law. The latter only belong to the subject now in hand.

    On a question belonging to procedure, by a decision on a point foreign /contrary/ to the merits I understand any decision by which the ultimate ends of procedure are either of the disfulfilled.

    1. Fulfilment of the productions issued by the part in question of the substantive branch of the law: 2. avoidance to produce vexatious effects not predicted by the part in question of that substantive branch: - but more especially of the first of these two ends which is the main end and that one of the two which is most apt to be disfulfilled /exposed to be in this way disfulfilled/.

    A decision of this sort will accordingly have taken place to the prejudice of the demandants side, as often as of punishment or satisfaction fail to be \have been\ applied and rights to be \have been\ conferred, the decision from which such failure results, being grounded on any other consideration than that /the -------/ such punishment, satisfaction, or rights were respectively not done, viz: according to the prescription of some article of substantive law: to the prejudice of the defendant's side, as often as punishment /a punishment demanded/ or the obligation of rendering the /a/ satisfaction demanded - or the obligation corresponding to the right demanded, has been imposed on any other ground than that of their being regularly due: viz. according to the prescription of some article of substantive law as before.