date

4 July 1804 Procedure & Evidence
4 July 1804

Procedure & Evidence

Evils

2d order

'.1. Injury to plff

2 Immediate causes the 2d - non-decision

2. Second cause /cause the second/ of the above effects - non-decision

of non-decision suppose it to last for ever, the effect with regard to the production of the evil /evils/ opposite to the main end of procedure in /----/ its several branches is exactly the same as wrongful decision to the prejudice of the plff's side would be: for /since/, on this supposition, in the cause in question, if a penal one the time would never arrive when the punishment due would be applied; - in a non-penal one, the time would never arrive, when the right due would be conferred; in a cause of a mixt nature the time would never arrive when the satisfaction due would be administered /rendered/ any more than when the ulterior punishment due would be applied.

On the other supposition, --- that this species of negative misconduct on the part of the judge is but temporary, it is the same thing with /the evil in other words/ delay in the species of cases negatively in question. But delay in rendering to the plaintiff that justice which is due, is injustice while it lasts. For the causes of delay, see article delay.
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  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

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    '.1. Injury to defd.

    II. Independent Evils of the 2d Class - Injustice to the prejudice of the Defendant's side.

    Branches -

    1. Application of punishment where undue

    2. Collation of rights (thence imposition of obligations) where undue

    3. ---ddition of satisfaction (thence again imposition of correspondent obligation) where undue

    Immediate causes or cause /cause or causes/ of the 1st order

    1. Wrongful decision alone

    N.B. Of From non-decision, as well as from wrongful decision, evils /evil consequences/ accruing to the defendant's side as well as to the defendant's /plaintiff's/ . But these evils /consequences/ are not the ultimate evils - the evils produced by the decision of the cause but only the individual ones /evils/ of vexation and expence.
  • Title: [4 July 1804 Procedure or evidence]
    Description: 4 July 1804

    Procedure or evidence

    Evils

    Ch.1 2d Order

    '.i. Prejudice to plff. Independent

    1 Independent evils of the first class - Injustice to the prejudice of the plaintiffs /demandant's/ side -----ion of justice in its several branches non-fulfilment of the main end of judicial procedure in its /these/ several branches, viz: non-application of punishment when due - non-collation of rights when due - non-administration /rendition[?]/ of satisfaction where due. Immediate cause or causes of the 1st order. Cause 1. - Wrongful decision to the prejudice of the plaintiff's side that the effects in question have for their cause the operation there denominated, is a proposition /truth/ assented to as soon as announced, or rather before it is announced. Instead of doubling its efficiency the natural movement of the mind on this occasion is rather to ask - to what other cause - meaning immediate cause - can the effect ever be ----able? The answer to this question will be brought to view /appear/ immediately.

    I. Natural causes

    1. Wrongful decision to the prejudice of the plaintiff's /demandant's/ side: viz: where the causes of the /such/ wrongfulness are themselves natural. See infra causes of the 3d order - Causes of wrongful decision.

    2. Non-justiciability of the deft. viz: with reference to the nature of the demand - of the service demanded or that would have been demanded at the hands of the judge: - of the defendant - or of him who were it not for the known or supposed impracticability of extracting from him the service in demand (for example the ---ial of the debr. dare) or an equivalent, would have been made defendant. (a)

    (a) Note (a) in a separate page
  • Title: [17 March 1808 Letter V §.6]
    Description: 17 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    II. Non-Decision Causes

    II. Causes of Non-Decision in the case in which it operates to the prejudice of the Plff's side as a cause of failure of justice.

    To operate in this way, and that to a certainty just as misdecision to the prejudice of the Plff's side would do, the duration of the negative act thus designated must be, by the supposition, perpetual: otherwise the result of it is but delay: in which case though effects tantamount to those of misdecision, effects in consideration of which the party may be said to have lost his cause, are among the probable, and frequently they are not among the certain consequences. See Table │ │ Mischiefs of Delay.

    This is among the cases in which the failure of justice is seen the most distinctly to come under the description of a denial of justice: the failure having so decidedly for its cause a misconduct on the part of the Judge.

    By the term Non-decision the existence of a demand, i.e. of some act or other of the number of those by which a suit is understood to have been commenced, seems, by necessary implication, to be supposed.

    In this case, to the two portions of incidental mischief which in the shape of vexation and expence would, in case of mis-decision, have operated in aggravation of the principal evil, is to be added a further lot of vexation the length of which has for its initial point the moment at which decision {after having been} pronounced ought to have been {carried into effect} and for its final point the moment which gave death to hope.