date

6 July 1804 Procedure & Evidence
6 July 1804

Procedure & Evidence

Evils causes

4th order

3 Non-notoriety

3. Non-notoriety of the law bearing on the point in question: - non notoriety - viz with reference to the judge.

The judge for want of being apprized of the existence of the law by which a decision in favour of the party in question demandant or defendant, on the point /in the cause/ in question has been prescribed, gives a decision in favour of the other side, which decision is accordingly a wrongful one.

I. Natural causes

1. Want of appropriate knowledge and intelligence on the part of the judge: see judicial establishment as above.

2. Intricacy of the law so far as it is natural. See infrà - causes of the 5th order intricacy.

II. Factitious causes negative

1. Non-promulgation. Want of sufficiently efficacious arrangements taken by the legislator for the making the existing laws sufficiently known to each individual bound or favoured /served/ by them, at the very time at which he is called upon to act in such a way as to render the service intended to be rendered by him (including the negative service of abstaining from an offence of any kind) or receive the service intended to be rendered to him (with or without demand) and received by him: - (including the right intended to be conferred on him. N.B. The judge is an individual whose duty it has been made /on whom the obligation has been imposed/ of rendering on each occasion to each demandant the service claimed /demanded/ by him, if due: to refuse to render it if undue.

2. Non-digestion. When the body /mass/ of the law has been extended to a certain bulk, it requires to be digested into some convenient method or order, by the help of which a man may on each occasion be enabled / -------/ in time to know the existence and possess his mind of the tone and purport of the particular article by which on such an occasion his conduct is to be governed. Where such assistance is wanting, the article in question, although promulgated along with the rest may on the occasion in question as effectually unknown as if it had not ever been promulgated.
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  • Title: [4 July 1804 Procedure & Evidence]
    Description: 4 July 1804

    Procedure & Evidence

    Note Evils causes

    3d order

    '.3 Non-decision

    Note (a)

    (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: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils

    3d order

    '.1 1. Wrongful decision to plff

    Evils of the 2d Order (= Cause of the 1st Order)

    1. Wrongful decision - viz: on the part of the judge to the prejudice of the plff.

    Immediate causes of this evil: being causes of the 2d order with reference to ultimate injustice in any of its six several branches -

    I. On the part of the judge.

    1. I. Natural causes

    Deficiency in respect of

    1. Want of intelligence - including

    1. Knowledge of appropriate matter of fact, in the character of precognition.

    2. Real lack of judgement or say discernment

    3. Promptitude of conception and judgement

    4. Faculty of repression

    2. Want of probity: 1. impartiality 2. assiduity of bodily attendance 3. Attention - labour of mind.

    3. Want of adequate power ab extrà - i.e. from the legislator, or rather from the nature of things. (a)

     For the remainder to the causes of wrongful decision so far as they are referable to the formal qualifications of the judge, see the Book on the Judicial Establishment.

    II. On the part of the evidence -

    4. Unforthcomingness of a part or of the whole of the existing mass of requisite evidence

    5. Fallaciousness of /in/ any part of the mass of evidence forthcoming and exhibited.

    II. Factitious causes negative.

    1 Non-notoriety of the law bearing upon the case. viz: of that part of the law by which if known a different decision would have been seen to be prescribed.

    2 Uncertainty of the law - (The terms of the law (viz: to the judge) but the sense to be put upon them uncertain.

    (a) Note

    These causes may be deemed natural, within the limits of the differences produced by the idiosyncratic character of the individual: in each individual instance: factitious in so far as it may be within the powers of law /the legislator/ to provide an adequate remedy to those natural causes, by arrangements relative to the ----, mode of r-----ation, and mode of procedure /operation/ on the part of the judge.
  • Title: [4 July 1804 Procedure & Evidence]
    Description: 4 July 1804

    Procedure & Evidence

    Evils causes

    3d order

    '.1. 4. Non-decision

    III. Non-decision

    Immediate causes of this evil /----/

    I. Natural causes

    1 to 5 The same as in the case of Wrongful Decision to the prejudice of the Demandant.

    6. Non-demand:- no suit instituted by the party to whose prejudice the offence against the substantive branch of the law has been committed; or on whom the -----trable or -----rate right would, on demand in a legal way be converted into a consummate right. For the causes of non-demand see title non-demand.

    9. Desistment: - the demandant ceasing to prosecute /persevere in/ the demand.

    II. Factitious causes negative

    1 and 2. The same as in case of Wrongful Decision.

    III. Factitious causes positive none observed - or see title non-notoriety and uncertainty.

    For the causes of expence and vexation and expence, see Evils of the 4th Order.