date

27 Apr. 1805 Evidence Ch.1
27 Apr. 1805

Evidence

Ch.1. Ends

'.3. Procedure branches

Particular Ends.

3. Besides the horse, Testator bequeathed to you a certain share - a fourth part - of the value of his effects not specifically disposed of as the horse was disposed of, directing the aggregate mass of such effects to be sold for the purpose, and the produce so divided. Here comes the mass of services due by Fiduciarius to various persons, yourself being one. On the part of Fiduciarius no reluctance as to the rendering to any one of the persons having right, the services which are his due. But intermixed with the articles which beyond doubt formed so many component parts of the estate of Testator, are some in relation to which Fiduciarius entertains various doubts: - whether they really belonged or not to the estate - which is the properest[?] time for the offering them to sale - which the properest mode. On these several points, It is desirous, partly for the sake of prudential advice partly for the sake of legal authority and security, to have the benefit of a decision from the Judge. In this we see a case in which a like service a service of collation is due to you from the Judge not as before in default of Fiduciarius, but with his consent and his voluntary /not involuntary/ concurrence, though at the instance of some one else.
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  • Title: [26 Apr. 1805 Evidence Ch.1]
    Description: 26 Apr. 1805

    Evidence

    Ch.1 Ends

    '.3. Procedure branches

    Particular Ends

    Testator[?] is just dead, bequeathing /having bequeathed/ to you by his will, a certain horse now living /feeding/ in a field attached to his house, and having appointed Fiduciarius[?] Executor of such his will. To this horse you have a right, but of what sort? Not a compleat connsummate right; only an inchoate and as yet imperfect one. What you have an immediate right to is the sort of service on the part of Fiduciarius that will be rendered to you by delivering to you the horse, and thereby by enabling you to keep the horse in a field of yours and make such use of him as you may think fit. If without his having rendered to you that service, you were to attempt to take away the horse, he might under the protection of the law, as above make the same resistance to you, as if you were to attempt without his consent to take the value in money out of his purse.

    What you have moreover a right to is as before, in the event of his not having delivered over to you the horse before the point of time, before which in virtue of the law relative to Executorship he was /stood/ bound to render you that service, a corresponding service to be rendered to you, as above by the Judge. By Fiduciarius your inchoate right in relation to the horse might and should have been converted /turned/ /compleated/ into a consummate one; he failing, the same conversion may, and at your instance /demand/ Fiduciarius after due opportunity allowed[?] him having no sufficient[?] reason to allege to the contrary &[?] ought to be rendered to you by the Judge.
  • Title: [27 April 1805 Evidence Ch.1]
    Description: 27 April 1805

    Evidence

    Ch.1 Ends

    '.3. Procedure branches

    Particular Ends

    The service which consists in the administering of punishment where due is the sort of service which is the most apt to exhibit itself in the shape of a service of physical execution. Numerous however and extensive /various/ are cases where it is not in this shape but in that of a service of collation that the service by which the punishment is administered manifests itself. In this case is /are/ pecuniary punishments, forfeiture of office, or other condition in life, public private, or domestic, to /of/ the profit of another person.

    It is in the cases where the service consists in the administering of satisfaction for injury that it is least apt to assume the shape of a service of physical execution, most apt to present itself in the shape of a service of collation. Why? because in general the advantage of recovering receipt /possession/ of a sum of money, or of some material subject of property - a horse, a house[?], a piece of land is the most eligible[?] shape in which satisfaction can present itself. But other shapes in which satisfaction is capable of preventing itself, besides that of computative[?] satisfaction have been consummated[?] elsewhere+: viz: honorary and vindictive. In this latter case, without the necessity of any distinct operation, it accrues /is administered/ to the party injured by the same operation by which punishment is administered.

    To which may be added military?

    + Dum.[?]
  • Title: [Evidence 6 July 1805 Introd]
    Description: Evidence

    6 July 1805

    Introd

    Ch. Perversion

    By technically-perverted language I understand such language as being in an active sense in common use among the people is taken in hand by lawyers and employed by them with a sense annexed to it different from any which at the time in question, is commonly annexed to it by the body of the people /in common use with the body of the people/. There is ambiguity: and the /fraud is the [...?] in the existence of it/ creation of it is the work of fraud. In every such case there is ambiguity, every such case there is deceit /fraud/.

    In the case of perverted language two modes of perversion require to be distinguished.

    1. In the one case the person by whom the perverted language is employed is of the body of the people. The man of law - the Judge, taking up /in hand/ this language, ascribes to it an import which not being annexed to those same words in ordinary usage, was to his own conviction not meant to be annexed to it by him who used it. Of this species of perversion the nature and effect is most conspicuous in the case of instruments of contract: such as Wills, Conveyances, and Agreements.

    Take particular[?] for example the case of a Will. Testator makes a will, by the terms of which taken together, to the full understanding of the Judge himself, he thought to have bequeathed an article to Ortho[?]. Seeing this, the judge adjudges it to Pscredo[?]. On pretence /On what pretence/ that those same words have a different meaning, in virtue of which had it been the meaning of Testator, it would have been bequeathed to Pscredo. A meaning? but in whose mind? By the supposition, not in the mind of the person in question - Testator: by whom the power which the man of law had professed to have put into his hands is exercised: but a secret meaning annexed or pretended to be /have been/ annexed to those same words by a different person /by a [...?] of [...?] reservation/ set of persons: or set of lawyers. In this way it is evident, that the Judge, in pretence of carrying into effect the will of the testator, makes a false will for him, and it is this false will alone that he carries into effect.