date

1 Jan y 1807 Facienda Outline
1 Jan y 1807

Facienda

Outline

Where the abode and thence the forum of the defendant is at such a distance from that of the plaintiff that he does not chose to pay /give his/ attendance there, he has his option between two courses for providing as far as can be provided the effect of first /initial/ meeting coram[?] judice[?], he has his option between two courses: 1. One is by application to his own judge, causing the examination of the Defendant to be taken at the Defendants forum vivâ voce, by that Judge, (with liberty to appoint /appointing or not appointing/ an agent for the purpose of interrogation ex advisio[?] the Judge of the Plffs forum transmitting for that purpose to the Judge of the defendant's forum, a set of interrogations proposed nu the plff and amended if necessary by the Judge: as in England in the system of Ecclesiastical Courts the Judge of one district avail himself in this way /for this purpose/ of the assistance of the judge of another district sub mutuo vicissituduous obliatu[?], as the phrase is: do this for me now, I will do as much for you another time.

In this case correspondent power on the defendant's part, for extracting the testimony of the plaintiff.

In this way in lieu of conjunct hearing and examination in pretence /enter[?] [...?]/, comes the reciprocal material ex parte hearing and examination inter absentis.

In this same way the proofs of extracting testimony in the best shape may be /is capable of being/ carried on as amongst any number of plaintiffs and defendants at a distance.
Similar Items
  • Title: [1 Jan y 1807 Facienda Outline]
    Description: 1 Jan y 1807

    Facienda

    Outline

    The other course is by testification and examination the epistolary mode: the shape in which the testimony is extracted ex adverso being the same as that in which it is extracted from the defendant by the Plff at the opening /commencement/ of the cause by means of a /an English/ Bill in Equity.

    The Plff (not as under English Equity with the benefit of the mendacity - licence, but) under the sanction of an oath or what is equivalent - addresses himself in person to the Judge, delivers his statement vivâ voce, submitting himself thereupon to be examined /in like manner ex adverso/ by the Judge, and at the same time submitting to the Judge the interrogations which by means of his letter of demand he proposes to administer to the defendant: the Judge, after making thereon such amendments as he thinks fit, gives his final binding form to the letter, authenticating it by his official signature; stating the time within which answer is to be made and under what penal consequences in case of failure.

    The great use of this mode of collecting testimony, is - that, [...?] on by property or any other bond of attachment the Judge of the plaintiff's forum has any sufficient hold upon the Defendant intervenes for the purpose of the cause may be carried on, not only although the defendant's abode /residence/ for the time be at any length of distance from that of the Plff within the dominions of the same sovereign, but even although it at any length of distance within the dominion of any foreign and even hostile state. Go take the examination of any person in a judicial way vivâ voce in the dominions of a foreign state requires that sort of assistance from the judicial authority of the foreign state that sort of assistance (that /such a/ sort of intercourse between the one state and that of the other) which without great difficulty, if at all, will not in general be obtainable.
  • Title: [30 Dec 1806 Facienda Outline]
    Description: 30 Dec 1806

    Facienda

    Outline

    4. For the purpose of bringing about of this simultaneous appearance, this can not but be an ex parte application on the part of the Plaintiff: if there be any thing special in the application it is to the Judge or his deputy that he must address himself (always upon Oath). If the nature of his demand be such as to be capable of being expressed by the filling up of a blank form, to serve as a summons for compelling the simultaneous attendance of the defendant, this part of the business may be transacted by a subordinate officer, indeed[?] for instance the Registrar or Clerk: but even here to intitle him to impose upon the defendant the trouble of attendance, he must assert upon oath by the filling up of a blank form his own persuasion of the justice of his demand, and of the necessity of his taking this course in order to obtain the effect of it: and by submitting to a penalty, or by means of some other security, bind himself to appear at the time appointed for the meeting, and whether he appear or fail, to render in case of his not having justice on his side, other satisfaction to the defendant for the vexation and expense if any, attached to the forced attendance.

    5. If it be the wish of the plaintiff to have the attendance of the defendant in Court secured by arrest instead of summons his application must be made to the Judge, who before he grants his warrant for that purpose, must satisfy himself, as well as it is in his power to satisfy himself of the necessity of such infringement upon personal liberty, except in particular cases of necessity which it may be allowable to the plaintiff to employ himself or others in the arrestation of the defendant but upon no other terms than that of conveying him directly /taking him with him/ into the presence of the Judge.

    N.B. In Scotish judicature such examination is a preliminary to arrestation,if not in all civil cases in some. By English Judges, to get Plffs [...?], defendants liberty has for ages been sold for fees, to any body that will buy it -[...?] no questions asked.
  • Title: [22 Mar. 1805 Evidence Securities]
    Description: 22 Mar. 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''.7. Extensions for Distance

    voyage would be the amount of the collateral inconvenience, in the shape of vexation and expence, that its preponderance over the direct mischief consisting in the failure of justice, is obvious and undeniable

    Suppose in the case of two parties, having their abodes in different judicial districts parcel of the same Empire, the plaintiff were to appoint as his agent a /another/ person having his above within the same judicial district as the proposed Defendant; which agent, summoning the defendant to appear /meet him/ at the tribunal of the district should meet him there as the plaintiff himself if present might would have done. Compared with the preceding this arrangement would be but a [...?], since though /while/ the agent of the plaintiff had the advantage of putting questions viva voce to the defendant, the defendant would be in possession of any corresponding means of extracting confessorial or self depressing evidence from the mouth of the plaintiff, so that on these terms the advantage would be all of it on one side. Under these circumstances however if the like faculty of facing and interrupting the adversary by proxy were given to the defendant, the inequality would at any rate be removed; though in this case whether justice /the avoidance of direct injustice/ would be worth the price paid for it by the inconvenience in the shape of vexation and expence, would depend upon the ratio of the mischief of the injustice, to the magnitude /collateral inconvenience/ of the price. In this case is the smaller modification of the system of natural procedure - of a system which notwithstanding the inconveniences attached to it is not the less natural, the inconvenience being in the nature of things [...?] natural procedure by reciprocal ex parte appearance [...?] [...?] /in the presence of the Judge/.

    The case thus described may be bruised in case of exprovinciation: each of the parties being in a different province, in a state of exprovinciation, with reference to the other.