10 May 1805

Evidence

Note?

Introd

Ch Collateral Incidental

''.6. Expence.

Note (a)

(a) To relieve the strain upon the conception, any specification, how incompleat soever is better than none. There follows a list of some of the principal incidents most apt to operate in the character of sources of juridical expence. In any given individual instance How many and which of them shall thus operate depends in a considerable degree upon the individual circumstances of each individual suit. As to expences purely factitious, they are susceptible of whatever degree of regularity that the authors may be pleased to give them.

1. Expences incident to attendance: - on officers of justice superior or subordinate - on witnesses - on the party's own professional assistants, if he has any, on adverse parties and their assistants.+ See above under the head of Vexation

2. Expences incident to journeys for the purpose of such scarce[?] attendences[?].

3. Expence incident to the conveyence of real or written evidence. This answers[?] to journeys on the part of witnesses.

4. Expences incident to the imitative representation of a source of real evidence, where the production of the original is not exacted /producible/.++

5. Expences incident to the transcription of written evidence, wherever any such substitution happens[?] actually to be admitted /allowed/. Under transcription are included translation, abstraction[?], abbreviation methodization or ingestion[?], and the like.+++

6. Pay of professional assistance - whether in the way of advice, agency, or advocation.

7. Registration of the evidence,++++ and other instruments exhibited in the course of the cause.

8. Registration of the operations performed in the course of the cause by the parties and other persons concerned in the cause.

+ See

++ See Forthcomingness - Ch.

+++ See Transcriptional

++++ See [...?], [...?] [...?]
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    '.4. - Persons liable to be affected by it.

    Of the different actors in /several sorts of actors in/ the juridical drama /theatre/, mention has been already made: Judge and his official subordinates, party or parties, witnesses. For the present purpose say 1. Witnesses. 2. Parties: Party demandant Party defendant and add here[?] 3 Third persons. 4 Judge and his subordinates: 5. Professional assistants of the parties.

    1. In the case /station[?]/ of a witness the following are the /seem the/ principal shapes in which the juridical vexation is apt to show itself: - [...?].

    1. Trouble or Uneasiness and loss of time, by attendance, understand over and above any actual pecuniary expence, which belongs to a separate head: - Loss of time, which according to the situation and prospects[?] in life is as much as to say, loss of /in respect/ present pleasure, of future pleasure, of future security against evil or of the means of subsistence.

    2. Trouble /Uneasiness/ and loss of time by journies, viz: to and from the place of examination: also, over and above any expence.

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    Before this abuse of writing, whatever allegations, relevant or irrelevant, true or false, came out in the course of the cause, must have been exhibited, by the parties, or, in the accidental case of inability to attend, by their gratuitous proxies: for the assistance /interference/ /agency/ of professional and hired agents /assistants/, not even in the character of assistants, much less in the character of proxies, could there have been any real need felt, or plausible appearance of necessity created. In the presence of the party, even where he is unfortunate enough to be obliged to purchase the treacherous service of a [...?] assistant, the art of making business can never be carried to any extent, approaching to that to which it is carried of course, when that check to professional treachery is removed.
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    Imitative representation. - Transcription.

    4. Transcription - This, taken in its literal and most confined /narrowest/ sense is an operation, confined as to its subject matter, to the case of written evidence. It may be necessary, whether without preponderant inconvenience, the document in question can or can not itself be removed without preponderant inconvenience. In the latter case, the produce of the operation the transcript will in all events and in every state of things be an indisputable /indisputably necessary in the character of a/ substitute to the original; for the purpose of the definitive hearing and the exhibition made on that occasion of the evidence in question in the character of ultimate evidence. In the other case, it may or may not be necessary for the purpose of previous exhibition or consideration or exhibition at a /any/ time prior to that of the definitive hearing of the cause: if the contents of the document are compleatly foreknown by the party who will have occasion to exhibit, transcription at an early period, and for the purpose of consideration, is of course unnecessary, but if in any point it fails of being compleatly foreknown, transcription may be necessary /requisite/, and the necessity of it will be more and more urgent in the proportion in which the contents of it fail of being foreknown: the necessity of the transcription will be more and more urgent: insomuch that a case may easily happen in which a refusal of the liberty of transcription, shall be tantamount to a refusal to cause or suffer the source of evidence to be produced at all - in a word tantamount to a denial of evidence, which is itself tantamount to a denial of justice.