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March 1808
Letter V
§.6. Reasons
Ends of Justice
5. Non-Justiciability Causes
V. Causes of Non-Justiciability on the part of the Defendant, in the case in which it operates as a cause of Failure of Justice.
In most cases, to the actual justiciability of the individual, that is, to his being rendered subjectible in fact to whatsoever obligation it may be necessary to the purposes of justice that he should be subjected, it is necessary that either his property or his person, or both, should be at the disposal of the Judge.
But in some cases, under the influence of assertion or opinion as assertion, such corporeal presence may not be necessary. Witness the cases when appearance is compelled by the fear of banishment from a man's native country, or consignment to a place of torment in a future life, by excommunication.
I. Natural Causes.
1. The person of him who should have been defendant, for example in case of wrong, the author of the wrong, unknown.
2. The person known or not known, but his name unknown.
3. In the character of the necessary matter of satisfaction properly on his part wanting.
4. - or not forthcoming in any such manner as to be within the reach of the power of government.
5. In a penal case, in the character of the subject matter of punishment, the person not forthcoming.
6. In a case for satisfaction on the score, as for wrong, death of the wrongdoer, he having no sufficient property, or none that is forthcoming, as above.
Similar Items
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Title: [9 July 1804 Procedure & Evidence]Description: 9 July 1804 Procedure & Evidence Evils causes 3d order '.3 Non-justiciability 2. Non-justiciability, (as above explained), on the part of the defendant. I. Natural causes 1. The defendant unknown - in respect of his person. 2. The defendant unknown - in respect of his name. 3. The demand for justiciability attaches upon his person, (as whose corporal punishment is the punishment due) and his person is not forthcoming. 4. The demand for justiciability attaches upon his property - and in quantity and quality sufficient to answer it, is not forthcoming. 5. The demand for justiciability attaches /attaching/ upon his property, and in this without accessible and adequate property in existence. 6. - or without accessible and adequate property situate within the reach of the Court. 7. The times, at which the causes nos. 3, 4, 5, and 6 are considered as operating, being a length of time terminating in that of the act, whatever it be, by which the suit is considered as commenced in so far as they respectively take place at any subsequent point of time, they may respectively be considered as having delay for their cause: viz: in the present instance so much of it as is referable to natural causes. See title Delay. N.B. In cases nos. 3, 4, 5, 6, it must be understood, that not only special justiciability with reference to the particular demand in question is wanting; but general justiciability in all its forms is either wanting altogether, or not present in a degree adequate to the purpose.
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Title: [10[?] March 1808 Letter V]Description: 10[?] March 1808 Letter V '.6. Reason Ends of Justice Inserendumae ? Cons[...?] II. Evils of the 2d order I. Evils of the 2d order the mischievousness of which consists of in their being or tending to be productive of those evils of the 1st order which are correspondent and opposite to the direct ends of Justice, as above 7. 1. Misdecision to the prejudice of the plaintiffs (or demandants) side. 8. 2. Non-decision: - the Judge not pronouncing any decision at all on the subject of the demand. 9. 3. Non-demand: No demand made by the person who on the occasion in question, would had he thought fit have been intitled to make a demand: i.e. a demand of some beneficial service to be rendered to him [...?] at the charge of some person or persons on the defendant's side, by the Judge. At first sight, here it may be thought is no evil produced no injustice done. In some cases no: but in others, an evil the same in the main, as that which has misdecision or non-decision for its cause: for instance where the cause of a man's not demanding what is his due, is his inability to defray the expence without which his demand can not be substantiated. See infra. 10. 4. Non-justiciability on the part of the Defendant. Though on the score of wrong committed by him satisfaction is done from him[?] yet for some reason /by some reasons/ or other the means of /means for/ compelling /engaging/ him to render it, are not to be found: the person or his property to the necessary amount are not forthcoming &c. See infra. 11. 5. Desistment on the part of the demandant. After a demand made he desists from pursuing it, desistment may be produced by most of the causes by which non-demand may be produced. See
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Title: [19 March 1808 Letter V §.6]Description: 19 March 1808 Letter V §.6. Reasons Ends of Justice Injustice v. Defend t Causes V. Non-Justicialities of Plff. V. Non Justiciability on the opposite side: viz. on the part of the Plaintiff. This is not, strictly speaking, of the number of the causes by which injustice is liable to be produced to the prejudice of the defendant's side. What may indeed happen, and does in fact happen but too frequently, is that by non-justiciability on the part of a plaintiff, the defendant sustains a loss, and in so doing suffers a wrong, in respect of the expense imposed on him by the obligation of defending himself against an unjust demand. But in so far as for that or any other wrong he demands money in the name of satisfaction i.e. as lawyers phrase it, applies for costs, he takes upon him to that effect the character of plaintiff: he acts as plaintiff in an incidental demand, a sort of cross cause, arising out of the original and principal one. Suppose the Defendant to have no demand on the Plaintiff, the non-justiciability of the Plaintiff can be no loss to him.
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