1
results found in
87 ms
Page 1
of 1
28 [...?] 1804
Evidence
Forthcomingness
Ch. Investigatorial
§.1. Investigation - quid
The discovery of evidence is an object /operation/ which every party, who feels any want of that necessary help /introduction/ to justice naturally betakes himself to of himself: by immediate application in each instance to the source of evidence, if he knows where to apply to it, and is able to apply to it with success: if not by enquiry of those whom he looks upon as able to inform him where the source of immediate evidence is to be found: a person to whom the percipient witness has related what he saw: a person under whose view the states[?] goods have come or are supposed to have come, sees the commission of the theft: a person who has had in his custody, or seen in that of another, a deed which is necessary to substantiate the title.
If then these several persons are alike ready and willing, and alike seem to be so ready and willing, to land him their assistance in their respective spheres: it is well: investigatorial power, and investigatorial procedure are thus far of no use. If on the contrary, whether by enmity towards him, by connection of interest or sympathy with the adverse party - by aversion to the labour, or by fear of the expense, any one of the individuals through whom alone the needful information is to be had, is prevented from furnishing it, the just claim of the party is defeated: it is defeated as effectually by the refusal of the means thus necessary to the discovery of the admissible lot of evidence, as it would be by the refusal to exhibit it (understand at the ultimate hearing - ) when discovered. If where a deed /document/ is safely lodged in a hand public or private out of which it can not be removed but at the call of justice, a subpoenä is necessary to [...?] /ensure/ the production of it at the trial, suppose the same deed lodged for the moment in a hand /a set of hands/ interested in preventing it from being made use of on the present occasion, and /but/ at the same time interested in keeping its forthcoming for other occasions, and on that account prepared to shift it from hand to hand, power is competent to the hunting it out from hand to hand till it be caught are not less necessary than the common subpoenâ was in the other case, to enable /the enabling/ a man to obtain the justice which is his due.
Similar Items
-
Title: [22 May 1804 Evidence Forthcomingness]Description: 22 May 1804 Evidence Forthcomingness Ch Investigatorial Eng Law §.6. Equity application §.6. Incompleat application /exercise/ of it in Courts of Equity. If the system of procedure was the work of any one man in the character of a legislator furnished with requisite powers - if there were any one individual breathing on whom /to whose account/ the responsibility /blame/ for any the grossest and most mischievous /pernicious/ imperfections observable in it could be fixed /charged/, the single word discovery would lead to /afford on his part/ evidence but too conclusive of the most flagrant deficiency of probity or the grossest want of intelligence /either of probity or intelligence/. The Courts of Common Law refusing /denying/ as hath been already /since/ stated all aid to justice from this source, the only recourse was in the power of comparatively modern date assumed by the Courts calling themselves /called/ Courts of Equity. An application made to a Court of Equity, and having for its object the discovery of evidence, is accordingly termed a Bill of Discovery. When the individual of /from/ whom the information is sought is not a party to the suit - is witness purely extraneous - the Bill is not allowed /does not lie/: nothing that is called discovery - no preparatory discovery is to be had from him. Has he in his hands the evidence - say the written evidence - the deed you stand in need of to support your claim? You must commence your suit bring your action at Common Law - file your Bill in Equity, subject yourself to all that vexation and expence before you know whether it will be in your power to obtain the evidence necessary to constitute a ground for it. After a certain number of months or years spent in the combat /warfare/ commenced in the Bill you then obtain a summons /notice/ to be issued to the possessor of the deed requiring to produce the deed, appearing or not appearing to be examined in the character of a witness at the same time: if his inclinations are in your favour, he therefore produces it; if his inclinations turn against your, or what comes to the same thing lean in favour of your adversary as soon as necessary before the summons, the subpeonâ reaches him, he empties his hand of the deed and you loose your cause.
-
Title: [15 Apr 1804 Evidence Forthcomingness]Description: 15 Apr 1804 Evidence Forthcomingness Ch. Real §. Appearance Under the head of investigatorial procedure, forthcomingness, considered in a general point of view being then the subject of consideration - discovery of the source, production of the source and extraction of the evidence included - but more particularly the operation of discovery as being the earliest of the three - the necessity of that comprehensive and efficient plan /scheme/ /course/ of procedure has already been brought to view. In the case of personal evidence, the utility of it appeared to bear in a more particular manner /almost exclusively/ upon the preliminary operation of discovery: the attendence of the witness at the judgement seat remaining in that case to be provided for by other means : viz: by those other means that have also been brought to view. In the case of real evidence, over and /after and/ above discovery, the use of this instrument of justice continues to be equally indispensible, for the purpose of securing the production and preventing the disposition of it. A man can not be locked up in a box, and shifted from hand to hand among a confederacy of hands interested in /bent upon/ the suppression of his evidence. A jewel or a deed may, without prejudice to its existence for other purposes, be disposed of in this manner, and without difficulty. Under the investigational system let but one hand in the chain be discovered, the document may be pursued through all the rest - pursued from hand to hand, till it be arrested and secured by the hand of law /for the use of justice/. No hand into /through/ which it has ever come /passed/, that can either deny the receipt of it, or refuse to indicate the next ulterior hand into which it has been passed, but at the peril of the pains of perjury.
-
Title: [17 May 1804 Evidence Forthcomingness]Description: 17 May 1804 Evidence Forthcomingness Ch. Investigatorial §.3. Rule 1 & 2 Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause. Reasons. 1. The Circumstance by which the demand for investigatorial procedure is constituted is a circumstance alltogether foreign to the nature of the cause. Penal or non-penal, it is alike incident to every sort of cause: as likely to take place in one sort of cause as in another. 2. The reason for compelling the evidence of an indicative witness, through whom alone an ultimate witness can be discovered and made known stands on exactly the same footing as the reason for compelling the evidence of the ultimate witness. In which ever instance, power for that purpose be denied /refused/, the probability or certainty, or failure of justice, or undue decision, as the case may be, is the same. 3. In the case of a source of real or written evidence, it has already been shewn /is sufficiently manifest/, that without an unlimited fund of investigatorial power, evidence of this sort may be shifted from hand to hand without end, and supposing a lot of evidence of this description necessary to substantiate the plaintiff/s claim, or the defendants defence, in /for/ whatever time the hearing of the cause is fixed, he may be sure to lose it, for want of the evidence thus kept back. 4. Take away the investigatorial power in question, the party having need of the evidence the lot of indicative evidence in question is altogether at the mercy of the individual on whom it depends whether or not the indicative evidence in question shall be exhibited /one individual from whom, by reason of [...?] to one party, favour to another, or caprice, or indolence, the obtaining of it may be altogether hopeless/: exactly as much as if the power of commanding the exhibition of the lot of ultimate evidence in question or any other lot of ultimate evidence were in like manner taken away. Add again the investigatorial power, the dependence of the party is no longer upon the favour of an individual, but upon the justice of his cause.
1
results found.
Page 1
of 1