074_414.xml

Title: [25 May 1804 Evidence 3. Forthcomingness]

Description: 25 May 1804

Evidence

3. Forthcomingness

Ch. Extraction

2. Personal - Party's

In a penal cause, on the side /in the case/ of the defendant, the result is not in all cases, quite so clear of difficulty. Yes: if the fact of any species of delinquency has been already /designated and/ rendered portable[?], by other evidence, although it be but make shift evidence.

But, suppose nothing more than a vague suspicion of delinquency to attach /has attached/ upon the defendant from any extraneous source so that not so much as the species of delinquency can from that source be ascertained, much /still/ less the individualizing circumstances of the act: - in this case [...?] the defendant cannot be convicted, since it can not be said of what he shall be convicted.

In this case, supposing him really guilty of any offinse, the punishment he receives cannot be the punishment attached to the /belonging to that particular/ offense. It can only be the punishment, whatever it may be, which it may be thought fit to attach to the offence against justice - the refusal to render the commanded service - the wilful and perspicatious silence. In this case the situation of /a/ party - called upon for his evidence is not /[...?] [...?]/ distinguishable from that of an extraneous witness. of which presently.

The case of a plaintiff in this same class of causes will also present but little difficulty. If the cause be of a compound nature, containing a claim of satisfaction to be rendered /afforded/ at the expense of the defendant, to the plaintiff in the character of a party injured as to so much the condition /situation/ of the plaintiff in this compound cause /coincides with/ is not to be distinguished from the situation of a plaintiff in a non-penal cause, as above.

JB_047_201.xml

Title: [5 July 1805 Evidence Note]

Description: 5 July 1805

Evidence

Note

Take for example two of the most common sorts of actions species of demand.

1. Demand called Action of Ejectment: or simply /more commonly in one word/ an Ejectment:

1. Action whereby the possession of an immoveable proprietary subject /subject-/ matter of property, say a piece of ground is demanded: demand of the sort of service which the defendant or in his default the Judge would render to the plaintiff by investing him with the mass of rights implied /included/ in the case of his being said to have possession of the ground.

In an action of this sort, what says the instrument /the declaration of demand? Instead of stating upon what title the plaintiff grounds his claim - i.e. what event has taken place having in his favour the effect of an investiture event for the purpose of conferring /so as to confer/ on him the right to that service, a silly story is told made up of a parcel of falshoods and forgeries - a story which instead of stating the particular title in which the plaintiff grounds his claim, contains the same assemblage of lies and forgeries, all of the foreign to the purpose, whatever be the title: a fictitious person is spoken of as being the plaintiff: to this fictitious person the real plaintiff is represented as having granted a lease: that person has taken possession accordingly, the defendant or some other person, real or fictitious, has turned him out, and so forth. The form may be seen in the Appendicies to Blackstone's Commentaries.

Were your Attorney to refuse (a case almost too ridiculous for supposition) were he to refuse to exhibit in your name this mass of lies (for as to doing justice on any other condition than that of employing an Attorney together with a tribe of other lawyers, the /[...?] [...?] what/ law of England does not so much as profess) should any such ridiculous refusal be made, so sure would the Judges refuse to do you justice. Observe however, that of /in/ the story contained in the demand, the property here in question is - not the mendacity but the irrelevancy of it.

059-313.xml

Title: [4 June 1804 Procedure. Evidence]

Description: 4 June 1804

Procedure. Evidence

CH. Basus

II. Purposes for which it may be of advantage to the defendant that the plaintiff should thus make his appearance.

1. That the Defendant may cause the Plaintiff to exhibit his confessional[?] testimony, on being examined, as above: that he (the Plff) may acknowledge such facts, if any, as may tend to repel his claim, they being such as the defendant might not otherwise have it in his power to discover - or if at all not without superior vexation expence and delay.

2. That he the defendant may cause /have the opportunity of causing/ the Plff to indicate and discover, and produce or bind himself to the producing any such other sources of evidence personal, real or written, as being in his custody or power, or lying within his knowledge or [sup...?] may tend to reject the claims of him the plaintiff, or constitute or substantiate any counterclaim of the defendant.

3. That he the defendant, on sight /on case of the production/ of any real or written evidence making against himself and produced accordingly by the plaintiff (suppose a memorandum or letter in a hand writing being or appearing to be that of the defendant but /having/[...?]/ per tanto though distinctly[?] in the character of confessorial evidence, may by the suggestion of ulterior facts or observations, have the opportunity of removing the delusion, and placing that part of the evidence in its true light.

4. That he the Defendant may have the opportunity of causing the plaintiff to authenticate by his confession all such sources of real or written evidence of an[?] instance[?] to operate in favour of him the defendant, as being in the custody /power, knowledge or [...?]/, of either party may on this same occasion have been brought to view[?] or to remembrance for this purpose.