date

18 May 1805 Evidence Evils
18 May 1805

Evidence

Evils causes

ch. -----------

' Effects on --------

Effects of reform on the no of judges

In the aggregate assemblage of the ends of procedure are included in substance /in purport/ though not in name /tenor/, two distinguishable objects: 1. the raising to its maximum the number of well-founded, i.e. non-temerarious and bonâ fide suits: the ----- to it minimum the number of ill-founded, i.e. temerarious and malâ fide suits. It is rarely by means of a suit /by means of a legal ----/ as often as the occasion a just occasion for the demand - a just cause of suit - presents itself, that the prescriptions of substantive law in that regard can be fulfilled.

I say the increasing the number of well-founded, bonâ fide suits is among the ends of procedure /legislation/. Not that any increase in the number of suits of any kind /description/ is not in itself an evil (it is always so in virtue of the attendant vexation and expence attending them - it can never fail of being so) but in as much as so far as it extends, in so far as is necessary to the attainment of a preponderant good. Not that by the production of such ----- it may not happen to a law to be productive not only of evil but of preponderant evil: - but /that/ where the evil is thus preponderant, it is the work and product not only of the adjective system of law, but of the same /correspondent/ part or other of the substantive.

By the ambiguity of its tenor, it may but too easily happen to the substantive branch of the law to give birth to a /an almost endless/ multitude of suits: but in this case the cause /fault/ of the evil lies solely in that branch of the law not in any respect in the adjective - not in the system of procedure.

A case in which a misfortune of this head is still more apt to happen is that where the corresponding article of the substantive law in question has no tenor at all: which is the case in so far as the substantive branch of the body of the law remains /is suffered to remain/ in the form, or rather the no-form of jurisprudential law; but of this more fully in its place.
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    Until and unless this distinction is duly attended to and allowed for, it can not be said to be among the legitimate ends or objects of procedure either to encrease or diminish the number of suits: neither an increase or /nor/ a diminution in the number of suits can with any propriety be set down to the account either of advantage or disadvantage.

    The tenor of the corresponding mass of substantive law being given, the texture of the corresponding system of adjective law - of procedure is so much the better as it tends to encrease or rather as it does not tend to diminish, the number of well-grounded, i.e. non temerarious and non-mala fide suits. It is so much the worse as it tends to encrease the number of temerarious but more especially mala fide suits.
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    What makes /gives to/ the history of this species of vermin its great importance, is the unlimited multtitude to which in a favourable sort and with the benefit of good nursing the number of them is capable of swelling.

    The number of bonâ fide suits is a limited number, uniform in its magnitude capable of being swelled indeed by imperfections in the substantive branch of the law, but so far from being [...?] /[...?]/, restrained and diminished by delay vexation and expence. And by the adjective branch of the law, when ever it has been so wronged as to give /afford harbour/ reception to the malâ fide suitor the number of malâ fide suits that may thus be bred passes all calculation. In the single article of the Exchequer Chamber, Your Lordship has seen a hundred malâ fide suits for one bonâ fide one: or rather, to speak correctly 100 in which it was certain /matter of certainty/ that the defnedant was in ,alâ fode, for one in which his being in bonâ fide was not imposible.
  • Title: [12 April 1805 Evidence Securities]
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    Every suit that takes place is with reference to each of the parties either a bonâ fide suit, or a malâ fide suit. The uncertainty of the law is the instrument by which bonâ fide suits are brought into existence /The source of bonâ fide suits, is hath just been seen, in the unnotoriety source of bona fide suits/. To the existence of Mala fide suits on the other hand the notoriety of the law, as to certain points of it is requisite: - as to certain parts of it: viz: as to /in respect of/ those arrangements from /in/ which the suitor who is not only in the wrong but himself compleatly fully /compleatly/ conscious of his being so, may behold a certainty of success.

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    1. A bonâ fide demand at any rate commences and pro tanto constitutes a suit: therefore it is the interest of the man of law requires that the number of bonâ fide demands be made as great as possible. First object of the technical system - to render the number of bonâ fide demands of bonâ fide suits being such on the part of the plaintiff or demandant - as great as possible.

    2. To the continuance of a suit, a defence is for the most part as necessary as a demand and the continuance of the demand. Second object of the technical system - to render the number of bonâ fide defences as great as possible.