059-357.xml

Title: [10 July 1805 Evidence (3) Note]

Description: 10 July 1805

Evidence (3)

Note

Introd

'. Equity Cases

Peculiar /The peculiar and [...?]/ jurisdiction of a Court of Equity is that which has /takes/ cognizance of chronical causes.

Could it have been imagined by any unlearned fancy, that the distinction, a distinction rendered palpable by every day's practice, should to this hour have remained invisible to every learned eye.

Mr Mitford, in his elaborate analysis of the business of a Court of Equity, deservedly looked up to as an oracle by the practisers[?] of those Courts betrays not the slightest suspicion of it. Under /With/ the name /title/ of Lord Riderdale[?], and Lord High Chancellor of Ireland this gentleman, now fills the office of the highest Equity Judge of Equity in that part of the United Kingdom, under a unusual[?] persuasion of a degree of fitness at least equal to that of any Judge who ever sat on any such Bench. Neqin[?] suprâ, sed par negotia.

This example is but one among so many others that concurr in proving, that under the jurispridential system, to discharge the business of judicature with the highest applause, it is by no means necessary to have any clear conception of the nature of it. Whay should in Equity a Judge, while doing the business of Equity know what the business /practice/ of Equity consists in, any more than a Common Law know what theft is, while he is hanging men for theft? Why should a Judge have any tolerable concenption what the rules of evidence either are or ought to be or are, while he is writing about evidence? See further in[?] title Method, the [...?] rule of evidence.

059-358.xml

Title: [10 July 1805 Evidence (4) Note]

Description: 10 July 1805

Evidence (4)

Note?

Introd

Ch. Complication Table

Equity Cases

Note ( )

Were the /Not the[?]/ complexion of the[?] times favourable, there is nothing /any thing/ in the nature of things /the case/ that should render it more impracticable to the Common Law Courts to make provision some how or other for chronical cases any more than for cases of fraud, trust, and accident. The case of the Action of account might serve for a pattern. If a Court of Equity had its masters, its Remembrancer, the Court of King's Bench too has its Masters, the Court of Common Pleas, its Prothonotaries. If in the Action of Account the opinion of a Jury authorizes /is sufficient to authorize/ the Judgment Quid[?] computet[?], after which the Master of Prothonotary, (if there wer such an action brought) would proceed de die in diem, treating the case as chronical cases are regularly treated in a Court of Equity, if in an Action for partition (an Action in which the Writ called a Writ of partition is the first instrument) neither Common Law Court is altogether in want of powers by which this chronical case might also receive the treatment it requires /suitable to it/, a little /a small [...?]/ of that ingenuity of which under the technical system there never can be any want might serve to extend the Common Law regimen[?] to many perhaps to all, of the chronical cases for which at present the Equity procedure is alone in the habit of providing.

I say /set out with saying/, were the complexion of the times favourable. But the complexion of the times is no longer favourable to new enterprizes and bold strokes. The [...?] same cases /jealousy/ which prevents ghosts from swarming, which keeps miracles of all sorts from being wrought to any tolerable advantage /which has confined judicial astrology to the very lowest orders/, which renders the making of "magisterial estates" no longer easy in [...?], nor so much as practicable in ministerial offices, puts a negative upon all those exploits in judicature, by which the 17 th Century was so illustriously distinguished. Men shut their eyes upon established impositions, but they will not /don't choose to/ have any new ones.

Many years ago I remeber hearing of a [...?] on the part of the Court of Common Please, to do business in the quod computet[?] line. The shop is always open, but for /as to/ articles in that way instances are not in use to come to it.

I have heard of a project in embryo in a Common Law Court, for laying hold of a party should he happen to present himself at a Trial, for clapping a Subpoenâ upon him, and examining him on the other side. But neither have Chancellors and barons in the heavens] above, nor malâ fide suitors in the earth beneath, any thing serious to apprehend from it. What business has a man to be present at the hearing of his own cause? AS the scheme, in the character of a permanent one, went [...?] (for it could not do for more than once) I feel no compunction at betraying it.

049-058.xml

Title: [4 July 1805 Evidence Introd]

Description: 4 July 1805

Evidence

Introd Jurisprud.

Ch. II. Vices

''.2 [...?]

On the subject of the power of a Court of Equity the following is the information given as by /from/ the highest living authority among methodical writers.

1. That it is difficult to discover by what means the Court of Justice in England, usually termed Courts of Equity, have obtained the jurisdiction which they now exercise. Accordingly no such discovery is there communicated.

2. That their authority and the extent of it have been subject of much question. Accordingly, for any thing that is here done to put an end to such question, so they do or may still continue.

3. That the limits on their duty seem now to be in a great degree, though perhaps not compleatly ascertained. "To indicate the limits of a man's power (if that be what is here meant by duty) is to show in respect of such and such prevents what he can not do: shewing what he can or does do indicates the course of the power, but does not indicate nay limits to it. Diverse the things which the Court do and therefore can do are spoken /[...?]/ of in the course of the book. But if any thing of which it is said that they can not do it, no mention is to be found.

4. That a cause is the cause which has tended to prevent the bounds between the line[?] jurisdictions from being compleatly ascertained ..." is "the liberality with which of late years the Courts of Common Law have noted and adopted the principles of decision established in the Courts of Equity." This /That by/ liberality the whatever limits may have been previously set to the power of the Courts of Common Law may have been proportionably enlarged will not here be denied that by the same liberality any limits have been set to the power of the Courts of Equity is not assisted nor could be (as it should seem) consistently with the truth of things. The number of the individual cases over which the Courts of Equity exercise their jurisdiction /power/ may be more or less reduced by this liberality, but not the number of sorts of causes. Courts of Equity do prohibit men from carrying their causes to Courts of Common Law: Courts of Common Law do not prohibit men from carrying causes to Courts of Equity.