date

11[?] May 1805 Evidence Introd
11[?] May 1805

Evidence

Introd

Ch. Collateral Incidental

'.6. Expence

'.6. Expence.

Compared with vexation, expence, (it has been already intimated) has neither exactly the same causes, nor therefore exactly the same remedies.

In whatsoever shapes, in whatsoever persons vexation impresses[?] /alights/ in the first instance, if from that person it be transferred upon any other, the /its/ shape is changed as well as the person of the bearer, it is transformed into expence.(a)

Of the operation which in the course of a cause a man finds himself obliged to perform /carry on/ or bear a part in, if the situations in which in the course of it he is placed, some are not necessarily attended with expence, pecuniary expence, others are accompanied with that evil and grow out of it.

Of the expences arising out of this but one[?] source, the chief part naturally falls upon the party in the first instance. Some[?] however falls /In some cases however it falls/ upon witnesses: in others upon Judicial officers, directing /directorial/ and executive here and there by accident upon third persons: but in all these instances it is commonly transferred from these other descriptions of persons upon one or other of the parties, viz: either upon him to whom on each particular occasion the production /authorship/ of it is imputed, or upon him, who at the conclusion of the suit is regarded as being in the wrong

Of /Among/ the vexations which in the first instance fall in that shape upon the party /a party to the cause/ whatsoever there may be which are either shared with him or taken off his shoulders /hands/ by a professional agent, so many change their shape as well as their suit[?], and on their return[?] to the party, are /become/ transformed into expence.
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  • Title: [11 May 1805 Evidence Introd]
    Description: 11 May 1805

    Evidence

    Introd

    Ch Collateral Incidental

    '.6. Expence

    Vexation (it has already observed) can not be transferred to /from/ a different seat /seat to seat/ without changing its nature /shape/: expence may without any change in its nature go round the world without any change or shape: although, according to the situation of the person on whom it falls, the degree of its pressure[?] is susceptible of variation on a very large scale.

    In the case of expence this transferability is a happy circumstance /fortunate property/. the quantity of suffering ultimately pressing upon the community taken together is in some instances /cases/ lessened by it. Suppose that in this or that instance, the conduct of a party has been such as to create a demand for punishment. Give to the punishment the form of pecuniary punishment, the produce[?], if suitably applied, the produce[?] by being made over to the persons damnified or otherwise vexed on the occasion of the suit, the produce[?] of these suitably applied, annihilates so many lots of vexation, which otherwise would /with the pressure of which society would otherwise/ have continued to be afflicted. Such is the end of that allowance which in the practice of the English law is for shortness expressed by the name of Costs[?].
  • Title: [30 April 1805 Evidence Introd]
    Description: 30 April 1805

    Evidence

    Introd. Ends

    Ch.5 Collateral Incidental

    '.4. Vexation - Profess[?]

    Lawyers

    '.4[?]. Vexation - its effects, when impinging in the first instance on Men of law.

    5 Men of law of all classes Official and Professional: Judges, Subordinate Officers of Justice judicial and ministerial /executive/; Agents of parties, such as Attorneys, and Advocates.

    According to circumstances, juridical vexation, falling in the first instance upon men /a man/ belonging to any of these classes, takes a different shape, and rests ultimately upon different sorts of persons, according to circumstances. On each /any given/ individual occasion, if the lot of vexation falling on that occasion upon the species[?] of man of law in question has no remuneration attached to it, [...?] [...?] but what is inadequate, it then rests in the shape more of vexation, mere and unprolific /pure and simple/ vexation, and the interest which calls for the avoidance of it, is that of the man of law himself. If on the other hand, the lot of vexation so impinging in the first instance, has a lot of remuneration attached to it, and that an adequate one, in this case, whether it be at the expence of the public that the remuneration is afforded, or at the expence of an individual, for instance /such as/ the suitor, the burthen being thus taken off /removed/ from the shoulders of the man of law, the interest which calls for the avoidance /subtraction[?]/ /removal/ of it, is not that of the man of law but some other interest: if at the expence of the public, the interest of the public /public interest/; if at the expence of the individual, the interest of the individual /that private interest/.

    But this remuneration, if it be so much as adequate, can scarce ever be so exactly adequate, as not to be more than adequate: and more than adequate it will be sure to be, if the appreciation and fixation of it be left to to depend upon him to whom it is to be paid. On these terms he will be not only content but eager to load himself with it, and without stint: pile[?] Pelion[?] upon Ossa[?] upon Pelion[?]: and as whatever vexation thus falls upon the shoulders of the man of law is sure to be transported upon /transferred to/ /handed over/ those of the suitor, in the shape of expence with augmented force, a given lot of vexation thus falling in appearance upon the man of law, falls in effect not in any proportion upon him, but in the whole upon the suitor, and that with much greater weight than if it had fallen directly upon himself.
  • Title: [18 May 1805 Evidence Introd]
    Description: 18 May 1805

    Evidence

    Introd.

    ch. Procedure

    ' Effects of no of suits

    Effects of a Reform in the number of suits.

    Misdecision is one cause of the contravention of the ends of procedure, whether by non-fulfilment of direct ends, or by the production of one not apposite to a collateral end misdecision is a cause, and the most prominent cause. It is however not the only cause. Three other causes are alike /equally/ adequate to the production of this effect: 1. on the part of the judge non-decision: 2. on the part of the party interested in the fulfilment /accomplishment/ of the substantive law, 2. non-demand, or 3. desistmemt.

    When misdecision is the cause, the station of the demandant and that of the defendant are alike exposed to receive /experience/ /bear the brunt/ the overwhelming force of the mischievous effect. Both ends of justice are alike exposed to be contravened by it: the direct end, and the ultimate collateral end.

    When non-decision is the cause, the station of the demandant is that one of the two that is most obviously and most frequently exposed to receive the damage: so long as /since/ the cause /suit/ continues undecided, the demandant fails of obtaining the service, which was the subject of /prayed for by/ his demand.

    Not that the station of defendant is /is altogether/ in all cases altogether unaffected by mischief /exempt from damage/ flowing from the same source. So long as the cause continues even though no further steps /operations/ with the attendant expences and vexations, be taken in it, vexation, in the shape of anxiety, still continues.

    Where non-demand is the cause, the station of defendant, that is of him, who if in the instance in question the direct end of justice had been /to be/ fulfilled would have been demandant, is the only one of the two opposite stations the only one on which any sensible portion of the misfortune falls: punishment, satisfaction, propriety, right whatever it be, he fails of obtaining the object which is his due. To injustice or suffering from this source, the station of defendant is not in any degree exposed. In respect of the consequence of the demand, no room for vexation, for anxiety; for, by the supposition, no demand hath as yet been made.