date

7 July 1804 Procedure & Evidence
7 July 1804

Procedure & Evidence

Evils causes

3d order

'.1 1. Wrongful decision to plff

III. Factitious causes positive: examples

1. Laws requiring a decision adverse to the demandant's side on points or grounds foreign to the merits of the cause v. infrà. (a)

2. Arrangements necessitating precipitation by assigning fixed and narrow limits to the term employed in the exhibiting, discussing and considering /exhibition, discussion and consideration/ of the evidence.

3. In penal cases (whether purely penal or mixt) laws giving to a known and determinate person or set of persons the power of exempting the defendant from punishment or the obligation of rendering satisfaction or both without reason assigned, under /----/ the name of pardon. (b)

4. In the like cases, laws giving to an unknown and indeterminate set of men the granting or exempting /to/ the defendant from the same obligations, and without reason assigned in an indirect way: viz: by creating in the course of the steps or instruments of procedure, through negligence or design, supposed errors, to which the same effect is annexed: and so in likewise in non-penal cases.

5. Laws excluding on insufficient grounds, this or that species of evidence.

(a) In long note

(b) To which in English law may be added the power of stopping prosecution by a Noli prosequi.
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  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils causes

    3d order

    '.2 Wrongful decision to Def.

    II. Wrongful Decision to the prejudice of the Defendant Immediate causes of this evil.

    I. Natural causes the same as in case of Wrongful Decision to the prejudice of the plff's side.

    II. So likewise, the negative among the factitious causes among the factitious causes, those of the negative stamp.

    III. So likewise those of the positive stamp; with the exception of no. 3 and 4. Laws authorizing pardon without reason assigned, whether so ------, or ----- by the power of fabricating causes of nullity. But in this case /---/ the exception extends not to non-penal cases: ---- in these the defendant as well as the demandant is liable to be prejudiced by such fabricated causes of nullity, although in these cases the the injustice is more apt to fall on the demandant's side than on the defendant's.
  • 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: [12 July 1804 Procedure & Evidence]
    Description: 12 July 1804

    Procedure & Evidence

    Introd.

    Ch Collat. Incidental 3. Delay

    ' 1. Sources

    II The operations having respect to the question of fact, and operations employed upon and in relation the evidence - at a time when the source of it is /on the occasion when the respective sources of it are/ forthcoming and in the presence of the Judge may be thus enumerated.

    1. Previous statement of the expected substance of the evidence, for the purpose of showing its relevancy, by pointing out /the attention of the Judge to/ its relation to the demand (the service demanded) and the grounds of such demand (viz: the facts operative in the character of investitive events with regard to the demandant's right to the service demanded by him at the hands of the Judge.)

    2. Operations employed in the extraction of the evidence from its source - according to the nature of the /each/ source, personal, real, or written: in the case of personal evidence, putting questions and receiving answers. in the case of written evidence, reading the evidence: in the case of real evidence, in general looking at the thing which is the source of evidence, in particular cases performing upon the thing /subjecting the thing to/ divers operations according to the nature of the case.+

    3. Committing instantly to writing, in the case of personal evidence (delivered viva voce) the questions so put, and the answers so received: with occasional observations, where necessary and proper, respecting the deportment of the witness: viz: for the purpose of serving as indications with respect to veracity or mendacity - bona or mala fides

    4. Recapitulating the substance of evidence so exhibited. This may be done by each of the parties on his own behalf, and on behalf of both of them, and especially of him who is most on[?] the right, by the Judge

    5. Making and delivering such observations grounded on it /observations as are suggested by it/. In the first place by each of the parties - in the last place by the Judge

    6. Framing the decision grounded on it: - the appropriate function of the Judge.

    7. Framing the mandates or orders necessary for giving effect to the decision: direct addressed either to the party or parties, or to the ministerial or say executive ministers of justice

    + Evidence.B[?]. Examination or Extraction