date

1 Jan y 1807 Facienda Outline
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.
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  • Title: [1 Jan y 1807 Facienda Outline]
    Description: 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.
  • Title: [[094-274v] 17 May 1806 *A]
    Description: [094-274v]

    17 May 1806

    *A

    Evidence

    Note?

    Exclusion II. Proper

    Ch. Engl. Law & Vexation

    '. to Judge

    Note 2 (a)

    (a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

    1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

    2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

    3. English epistolary mode: - examination, or [...?][...?][...?] - to the testimony of the Defendant only, not to that of the Plff or of any extraneous witness, in the English Courts of Equity: To Interrogatories delivered in writing, in an instrument called a Bill, on the behalf of one party, responses delivered in writing, /writing, in an instrument called an Answer,/ by the other. In point of reason and utility, this may be stated as necessary, be the subject of the suit what it may in some cases in the character of an eventual supplement, in some cases in that of a temporary, though never in that of an absolutely definitive, succedaneum, to the natural mode. In its own nature, who unless it be a lawyer, can need to be /the observation/, reminded, that no less applicable to plaintiffs than to Defendants; to extraneous witnesses than to parties?
  • Title: [22 Mar. 1805 Evidence Securities]
    Description: 22 Mar. 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Extensions for Distance

    But while the claimant /[...?] of one/ has his abode in the dominion of one state, that of another may be in the dominion of a different state. In this case no arrangements taken in either state alone can be sufficient to ensure that correspondence and reciprocity of advantage without which the procedure might [...?] be reconcilable to the interests /exigencies/ of justice.

    Yet even in this case, so it happened, that the defendant although resident at the home within the dominion of a foreign state were by /in/ any no matter by what means in an adequate degree subject to the powers or influence of the state in which the plaintiff has his residence (suppose by immovable possessions, by [...?] [...?] and [...?], or by the extention of personal visitation) in such case if with the cognizance of the judicial authority of his own country letters fraught with pertinent /suitable/ questions were by the care of some agent of the plaintiff on the spot put into the hands of the defendant suitable sources might then be extracted from him, sources containing testimony, self-serving or self-[...?] testimony, [...?] with or without extraneous evidence, information constituting a different ground for a decision in the cause.