date

13 July 1804 Procedure and Evidence
13 July 1804

Procedure and Evidence

1. wrongful decision against self

1 a continued

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.
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  • Title: [14 July 1804 Procedure and Evidence]
    Description: 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,
  • Title: [13 July 1804 Procedure and Evidence]
    Description: 13 July 1804

    Procedure and Evidence

    1. wrongful decision against self

    A decision thus contrary to the merits will in every case have been pronounced in the supposition of the non-observance of some obligation (collateral obligation) imposed upon the party in question by a law or rule of procedure, with a penalty attached to it, consisting in the loss of his cause: that is, if the demandant in the non-compliance of his demand although compliance with it should be due on other accounts - whatever be the object of it, punishment, satisfaction, or right, if the defendant, in the vexation attendant on the compliance with the demand, although it should be ---- /compliance with it should on other accounts.

     Insert here definition of ----- form of nullity - void sitting aside for ------.

    The composition of this obligation will in some instances appear to be purely capricious, having no perceptible tendency, not even in the slightest degree, to promote either of the two ultimate ends of procedure, or so much as any one of the three ends.

    In other instances it will appear to have had in view the fulfilment of some one or other of those three ends, howsoever little conducive to the end aimed at, or repugnant to the two other ends /other end/ which ought not to have been lost sight of or neglected.

    Suppose for example, that in the view, real or pretended, of saving a defendant from being subjected to an obligation in a case in which it is it not due, an obligation be imposed on /a rule //regulation// be made/ on the demandant, requiring him, on pain of seeing compliance with his demand refused, to convey /communicate/ to the defendant a summons on a certain form, to the end that he may have the opportunity of making /soliciting/ the allegations and proofs necessary to his defence: necessary that is to his proving himself /showing himself to be/ exempt from the obligation in question in the event of its not being due and
  • Title: [14 Nov 1804 Evidence Circumstantial]
    Description: 14 Nov 1804

    Evidence

    Circumstantial

    Ch Supernatural

    § 4

    § 4. Parallel mode - decision on points foreign to the merits

    One ground of decision there is which though perfectly natural - as natural in one sense as it is technical in another - is in another point of view exactly upon a level with the supernatural. I mean /This is/ the decision of a cause upon points foreign to the merits.

    In an indictment for murder a clerk makes an omission: he drops the Devil or the value of the knife. The murder is put out of doubt in all its circumstances. Is the murderer guilty or no? The answer depends upon the materiality of the Devil and /or/ the knife. The Devil is he material? The omission of him is an exculpative fact disproving and that conclusively the existence of as many criminative facts ass have been proved. The evidence in this case - I mean the circumstantial evidence - is it of the Duel kind or the Ordeal kind? Answer. It depends upon circumstances. Was the Clerk [...?] for the omission? it is of the Ordeal kind Did he make it inadvertently and without a fee? It is of the Duel kind. It is upon a par with the duel: with the duel fairly fought. (In either case a connection is assumed between two facts between which there is none.)

    In the detail[?] the cases in which the want[?] of a cause is made to turn upon points foreign to the merits belong not to this place. They will find their place in the rationale of procedure.