date

5 July 1805 Evidence Note
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.
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  • Title: [1 May 1808 J.B. to H of Commons]
    Description: 1 May 1808

    J.B. to H of Commons

    I. Reason for the Work

    English pleading inapplicable to Sotland

    II. Defence

    23. I. Of the four species of satisfaction correspondent to so many species of wrong, and capable, as above, of being taken for the subject or objects of so many sorts of demands, the two first are possessions of an individual thing, moveable in the first case or immoveable in the second. It is by the species of action called an action of trover, that notice of the demand made in the first instance is conveyed: it is by the species of action called an action of ejectment, that the demand made in the other instance is notified.

    To either these demands the sort of defence most usually made is notified by the same expression Not Guilty: more at length, I am not guilty of the act charged upon me.

    24. But in neither of these instances is any thing of Guilt so much as imputed to the defendant. In the case of the action of trover, what the plaintiff says to the defendant is - there is a something of mine which you having found, have converted to your own use.

    In the case of the action of ejectment brought for the obtainment, for example, of ten acres situated on[?] such[?], what the plaintiff says of the defendant is, a person, real or imaginary, has turned an imaginary person out of a hundred acres situated in that same place.

    In both these cases if what the plaintiff has been saying be false, there exists not on the defendant's part any thing that can justly bear the name of guilt: but as little is there any guilt on the defendant's part even admitting what is said on the Plaintiff's part is true.
  • Title: [22 April 1808 J.B. to H. of Commons]
    Description: 22 April 1808

    J.B. to H. of Commons

    Reasons for the Work

    The demand is incompleat unless it staes ground of demand in[?] [...?] [...?] the service demanded, grounds of demand or right viz. existence of some collative event, non-existence it its ablative one.

    Universally then, be the sort of right what it may, under Statute law every man is, at any given point of time, in possession of such right, in whose favour an event, or state of things, has antecedently to that point of time taken place, to which such portion of law has given the effect of conferring on him that right, and which, neither at that same point of time nor at any subsequent point of time, has any event or state of things had place, to which the same or any other portion of law has had the effect of divesting him of that same right.

    A benefit of any kind can not, in the shape of a right, be conferred on any person, in the character of a plaintiff or demandant, but a correspondent burthen, in the shape of an obligation, must at the same time be imposed upon at least one other person, viz. in the case of a suit at law, in the character of a defendant.

    Accordingly To warrant the Judge, therefore, in acceding to any such juridicial demand, it is not sufficient to him to know what that demand is - what the service is which is thus demanded at his hands; it is necessary also that he understand what are the grounds of that demand: and to be satisfied that such demand is properly and sufficiently grounded in point of fact, as well as in point of law: and accordingly that, in favour of the individual appearing in the character of plaintiff, or in favour of a class of persons of which the individual plaintiff is one, an individual event or state of things to which in favour of such individual or such class the portion of law referred to has given the effect of a collative event, or state of things with reference to the species of right in question, has taken place, since which no individual event or state of things has taken place, in which that same, or any other portion of law, has given the effect of an ablative or divestitive event or state of things with relation to that same right.
  • Title: [26 March 1804 Evidence Forthcomingness]
    Description: 26 March 1804

    Evidence

    Forthcomingness

    Ch. Extraction

    The means of extracting formal evidence will wear a very different aspect, according to the relation which the witness bears to the cause. Is he a party? justice has him in her power: does he refuse to speak? she makes him /he loses/ lose his cause. In his station in the cause of the plaintiff? - the object of his application is defeated. By appearing in the /To appear in the/ character of plaintiff he lays claim to the receipt of a service at the hands of the Judge - no, says the judge: you have no right to any such service: you refuse to fulfil a condition you refuse to render your service to justice a service on your part, without which your title to the service you demand at my hands is defective.

    In his station that of `defendant'? is it the defendant who is, or rather who would be thus refractory? The hold which justice has upon him is equally strong and efficient /sufficient/. Do you refuse to speak? says the judge? it is because the claim made upon you is just: - /because/ it is out of your power to contest it. But your contumacy shall /will/ not avail you. Silence on your part may as far as you are concerned, screen particulars from view: but, for the purpose of the general conclusion, for the purpose of your condemnation, silence and confession are alike instructive. To this purpose, they are the same and under different denominations. Confession is confession by discourse; silence is confession by deportment. +

    Difference between penal and non-penal in this respect.

    + In B. III[?] Circumstantial

    Ch. Confessional.