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15 April 1804
Evidence
Forthcomingness
Ch. Real
The bill filed - and Defendant on his part being also unfortunate enough to have need of a document, the possession of which happens to be in the plaintiff, can the defendant, now that both parties are within the grips of the same court, avail himself of it's powers, for obtaining by the same opportunity the justice he, on his part, stands in need of? Can he not [...?] indeed. Not in that same suit, for concerning that the question was; not in virtue of that same bill : Yes, on condition of filing a cross-bill, doubling vexation, doubling expenses, doubling delay, dragging the plaintiff through the same misery and thorny road through which he has himself been dragged.
In this way, for the purpose of obtaining or [?]effectually trying to obtain, that same sort of justice which in another case is obtained by a single /man/ [...?], of the simplest nature, such a one of which dozens or scores are obtained in a Court of Common Law in the compass as well as for the purpose of a single cause, the party is compelled to [...?] a separate suit, and that of a sort some number of times more vexatious, expensive, and dilitary than the principal one. A suit of an immoderate size is thus crammed into the belly of another suit, the size of which but for this unnatural distension would have been comparatively moderate. In the natural history of reptiles /serpents/, we read of a sort of serpent called the Bora one of which of the size of a ship's cable was seen bathing with a huge swelling in the throat, and the horns of a stag sticking out of its mouth. The monster thus described may serve as an emblem of an English suit at law with an English suit in equity in the belly of it. To an English eye a viper gorged by a toad some number of times his own natural diameter is a more frequent spectacle.
In the case of an Issue out of Chancery we have already had occasion to observe this sort of intro-susception [...?]. In this case balking at the suit of law, considered by itself, the distinction is scarcely visible. It is as if the reptile[?], fresh from the egg, were to be swallowed by the toad.
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Title: [9 April 1805 Evidence Securities]Description: 9 April 1805 Evidence Securities Ch. Procedure Natural ''. Recapitulation The minuter and [...?] lineaments of the system will be brought to view as we advance. At present let us take a [...?] view /simultaneous glance/ /look/ of the strong and discriminatory features upon which the difference between the /[...?]/ system, and the immeasurable size that are not natural principally terms. 1. At the very first or second stage the plaintiff in the presence of the Judge 2. stating, under the sanction of an oath, or at any rate /rather/ under the [...?] [...?] in case of mendacity, as in the case of an extraneous witness, what the facts are on which to ground his claim, and what reasons he has for looking upon them in time[?]. 3. The plaintiff consequently /in course/ [...?] on these occasions, to hear questions put to him by the Judge, tending to rife[?] into the truth of the persuasion expressed by him in relation to those facts, and bound to make answer to all such question, on pain of seeing his claim disallowed, in case of silence. 4. If, at this first stage, the defendant happens likewise to be present, some obligation on the part of the Plaintiff to answer any such proper questions as may be put to him by the Defendant, in the same view[?]. The consequence is - that in a case where the claim is palpably destitute of foundation, it is in vain /it would be in vain/ for a Plaintiff unless prepared to encounter the danger of punishment for perjury to compel the defendant to undergo the expence or vexation of any further enquiry; whereas under the Natural system a man who neither has any foundation for his claim nor so much as conceives himself to have any, has it as fully in his power to cause the suit to go on and run out its utmost length, as if his claim were ever so notoriously just and undeniable. By this means /In this state of things/, all malá fide facts, that are such on the part of the plaintiff, are nipped in the bud before they have run any such length as to have produced expence or vexation to the defendant, unless where for the chance of being able to draw the suit out into further length, the Plaintiff is rash enough to encounter certain guilt, together with the [...?] of punishment as for perjury.
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Title: [? June 1804 Uses of this arrangement]Description: ? June 1804 Uses of this arrangement in a purely final case - To the plff in such a case, the uses admitt of exactly the same description. In the case of the defendant, such uses as suppose on the part of the plaintiff a capacity of yielding evidence have here no place /gradually operating[?]/ - Why? because there being no individual more than another to whom the offence is productive of any special inquiry, the plaintiff will in general be some official person, who has no knowledge of the fact except[?] from the relation of others. An evident exception is constituted by that class of cases in which a reward is offered to turn [...?] [...?] or contribute to the conviction of an offence /the [...?]/, and the plaintiff is an informer whose inducement to take upon him that sanction is constituted by the reward, and whose means of obtaining it are constituted by the testimony which his [...?] have enabled him to give. Uses of this arrangement in a mixt suit - in which punishment ever and above satisfaction is demanded. To the present purpose, this case will, it is manifest, coincide in every point[?] with that of a non-penal suit abovementioned.
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Title: [May 1805 Evidence Introd]Description: May 1805 Evidence Introd Ch.3. Preparatory Explanation '. Division of Suits '. Division of Suits By every suit at law, by every juridical demand, an obligation of some sort or other is, endeavoured /sought/ to be imposed upon the defendant: if the nature of the obligation be such that the evil or burthen /sustained[]?]/ to which the defendant is subjected is of a nature /so circumstanced/ to be comprized /come/ under the denomination of punishment if the defendant on being subjected to it is said to suffer punishment he being understood to have done some act that comes under the denomination of an offence the suit is of the penal, say (for a reason that will appear presently) purely penal class: if the nature of the obligation be such that from the defendants being subjected to it, the plaintiff receives some advantage, but the Defendant is not considered as suffering any thing /subjected to any suffering/ on the score of punishment /not being considered as having committed /done/ any act that comes under the denomination of an offence/, the suit is of the non penal class: if from the defendant's being subjected to the obligation, the plaintiff is understood to have received an /some/ advantage, and his right to that advantage is understood to be constituted by the fact of the defendants having committed some /an/ offence, among the consequences of which is that of having been productive of some lot of mischief falling exclusively upon the defendants, the suit may be said to be of the mixed class: what advantage is in that case understood to come under the name of satisfaction, and in some cases compensation indemnification, indemnity damages(a) The mixture consists in this: viz: that in this case, the benefit received by the plaintiff by the administration of such satisfaction /upon such satisfaction being administered/ to him, his [...?] respect to the augmentation of his well-being an effect similar to that which redounds to him when by the non act of the Judge he is made to receive the benefit of a right, the inchoate right conferred on him by the legislator being for his benefit converted into a consummate /correspondent/ right: at the same time that on the part of the defendant the burthen attached to the obligation of rendering this satisfaction, being imposed on him a consideration of the offence committed by him (or her) to the prejudice of the plaintiff, has in that respect the effect of punishment.
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