059-311.xml

Title: [3 June 1804 Procedure. B1 Evidence]

Description: 3 June 1804

Procedure. B1 Evidence

Basis

Fundamental rule - except in the particular cases that will be specially excepted, and by which the arrangement generally proper /practicable and economical[?]/ is rendered either impracticable or preponderently inconvenient, the first step proceeding in every cause, after the preliminary proceedings whatever they may be, [...?] may be necessary to bring above this first step, ought to be the appearance of both parties or say all parties face to face in the presence of the Judge.

Purposes with relation to which this state of things is necessary or conducive.

1. [...?] of procedure, non final.

1. Purposes for which it may be of [ad...ing?] to the plaintiff, that the defendant should then make his appearance.

1. That the Plt[Plaintiff] may cause the defendant to exhibit

1. To be examination in the character of a witness exhibit

has [...eral?] testimony on being examined in the way of vivâ voce examination, in the character of a witness - a course of personal evidence: to acknowledge such facts, tending to [...?] this claim of the plaintiff as the plaintiff might not otherwise have been able to discern[?], or if not all and [...?] additional [...?] [...?] and [...?].

2. To indicate and discover and engage himself for the [...?] [...?] such [...?] of wisdom, personal, real or written, as being in his custody or power, or lying within his knowledge or supposed or real wisdom or, may serve, or tend to serve to [...?] which the classes of the plaintiff.

3. To authenticity[?] by his confession[?] all such sources or written or real evidence of thislike [...?] , by being in the custody[?], however [...?] or supposed of the plaintiff, may on this occasion have been produced or brought to remembrance for this purpose.

4. To make known /[...?] and[...?]/ to the plaintiff all such facts of a tendency favourable to him (the defendant) and thereby consequently unfavourable to the claim of the plaintiff, as he the defendant means to rely on in the character of grounds for respecting the plaintiff's claim: or establishing on his own part any counter claim and by that means to put the plaintiff upon his guard, and give him such notice /information/ as may of [...?] and unanswerable, [...?] to convince him of the [...?] of pursuing his claim any longer - or if controvertible or answerable, propose him for the production of counterevidence, of the facts in question or of ulterior facts, operating with a counter tendency.

5. If his defence in any respect be grounded on some /any/ proposition or propositions relative to the disposition of the law, [...?] in that behalf to bring them to view, that the plaintiff may desist or insist accordingly.

059-314.xml

Title: [4 June 1804 Procedure. Evidence]

Description: 4 June 1804

Procedure. Evidence

Ch. Basis

5. That he the defendant may cause the plaintiff to declare and make known to him, all such other facts, if any, of a tendency favourable to him - the plaintiff, and thereby unfavourable to him the defendant, as he the plaintiff means to rely on in the character of grounds for substantiating his claim[?]: and by that means to put him the defendant upon his guard, and give him such notion[?] and information, as may if uncontrovertible and unanswerable, save to convince him of the inability of maintaining his defence or repugnancy any longer - if controvertible or answerable, perhaps have for the production of counter evidence, viz: in relation to the facts in question, or if or in relation to ulterior facts, operating with a counter-tendency.

6. That if his the defendants defence be grounded in any proposition or propositions relative to the disposition of the law on that behalf, viz: /ex. p[?]/ a proposition asserting that although they /the facts/ were such as the plaintiff contends would not operate in the character of /in favour of the plaintiff/ an investiture[?] [...nt?] enforcing upon him a right to the service to which at the hands of the defendant he lays a claim. He may have the opportunity of bringing them to the view of the plaintiff, and thereby if they be well grounded, causing him to desist from the prosecution of the claim at this early stage or if, upon such first view they appear doubtful to the Judge, he may have the opportunity of fixing in concert with the plaintiff, some certain term for the prosecution of the agreement /debate/.

7. Upon the whole to cause the plaintiff, in the event of his being in the wrong, to receive a decision on the spot, in favour of him the defendant: or in case of non-decision, to cause him to join in the fixation[?] of some other time or times at which the enquiry may be pursued - and finally determined, that so in one way or other, he the defendant, may as soon as possible be acquainted with his fate.

JB_092_227.xml

Title: [June 1807 + 8 Letter V]

Description: June 1807

+ 8

Letter V

II. Litigation prevet. & promot.

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III. Arrangements for preventing litigation, by preventing wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

1. By every particle of money the disbursement of which is exacted of a defendant in the first instance, wrong is due to him in case of his not being bound in law and justice to render up the subject matter in demand, and loss of time is in itself, in particular in the case of all those whose subsistence or income is in any part of it derived from the employment given to that time, equivalent to disbursement of money, taking effectual care that no such obligation to any amount shall be imposed on any person in quality of defendant, untill in some shape or other, real, corporal or extraneous be given by the plaintiff, according to his circumstances for the eventual reimbursement or other adequate satisfaction to be made for such disbursement or other loss.

and that by [...?] examination of the parties, or otherwise sufficient assurance shall be obtained by the Judge, that the defendant, having good means of defence, i.e. evidence competent to the proof of facts alledged by him in that view, shall never find himself compelled to render up any subject matter in dispute, by any such cause as that of the mere inability to defray the expence necessary to the production of such evidence.

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III. Devices for promoting litigation, by promoting wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

1. In the direct ratio of its own magnitude, and in the inverse ratio of a man's pecuniary sufficiency, a mass of forced expence with its attendant vexation operates at the same time upon his passive[?], and, upon his active faculties: upon his passive faculties, as an instrument of sufferance in all cases; upon his active faculties, as an instrument of restraint, causing or tending to cause him to abstain or desist from acting in the character of defendant, and thus to abandon to his adversary the plaintiff, the subject-matter of demand, whatever it may be.

The faculty or power of punishing his adversary, in the character of Defendant with a pecuniary punishment to the amount of the pecuniary expence thus capable of being imposed, with the vexation attached to it in other shapes, as also in case of any relative pecuniary unsufficiency on his part forcing him to abandon (viz. to his adversary) any object in the defendant's possession which to him the plaintiff may happen to be an object of desire, is the commodity which Judge and C o have to sell, and are constantly offering to sale to every man whom they find, or when by this temptation they can succeed in rendering dishonest: viz. such sort and to such a degree as to accept of it.