date

19 March 1808 Letter V §.6
19 March 1808

Letter V

§.6. Reasons

Ends of Justice

Injustice v. Defend t Causes

III. Non-Defence

3. Non-forthcomingness on the part of the evidence: viz. of the evidence necessary to prove the facts which, if proved, would constitute the matter of the defence.

4. Want of a power ab extrâ in other shapes, adequate to the effectual support of the defence: and in particular want of the pecuniary power necessary to the defraying of the expence.

5. Want of ultimate will, adequate to the endurance of the expence added to the vexation attached in other shapes to the course of operations necessary to the purpose of defence.

This requisite will naturally be wanting and in general, on point of prudence, ought to be wanting, as often as it is understood that the neat expence attendant on defence even if successful, will be greater than the amount of the loss that would be produced by a compliance with the demand however unjust.

Factitious causes of Non-Defence when the result of it is injustice to the prejudice of the Defendant's side.

See above, d o of Non-Demand.

It is in this way that under Scottish as well as English procedure, but to a greater extent under English, the great majority of the community are placed under the yoke of the tyrannical part of the remainder, being exposed without remedy to oppression by groundless demands or prosecutions: oppression, viz in the shape of simple oppression, or of extortion, with or without ulterior oppression, as the case may be.
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  • Title: [17 March 1808 Letter V §.6]
    Description: 17 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    3. Non-Demand Causes

    III. Causes of Non demand, in the case in which it operates as a cause of failure of justice.

    As in the character of a cause of failure of justice, Non-Decision supposes demand, so in the same character, Non-Demand, supposes a just title: viz. on the part of some person who should have been plaintiff: a title to some service or other which is one or another of the three shapes so often mentioned should have been rendered by the Judge, and by the same rendering for want of which the failure of justice has been produced.

    Moreover the character of an evil thus ascribed to the negative end in question, supposes evil in some shape or other undue pecuniary loss for example, to have devolved on some person for want of such demand.

    I. Natural causes of Non-Demand, as thus explained:

    1. On the part of him by whom the demand should have been made, want of knowledge of the law or rule of action, in respect of such part of it by which the ground of such demand is created. See on the head the list of Factitious causes.

    2. In the same quarter, want of knowledge of the facts, the knowledge of which would have been necessary to their being brought to view in the character of evidence in support of the demand: collective events in respect of the right or title to the service which should have been demanded.

    See again the list of Factitious Causes.

    3. In the same quarter, want of correspondent power at extra, adequate to the effectual support of the demand, from the commencement of the suit to the termination of it: in particular want of power for defraying the necessary expence. See again Factitious Causes. For ulterior causes of this deficiency see further on, titles Non-Justiciability of him who should have been made Defendant, and Non-forthcomingness of Evidence.
  • Title: [19 March 1808 Letter V §.6]
    Description: 19 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v. Defend t Causes

    III. Non-defence

    III. Non-Defence.

    Correspondent to Non-Demand on the Plff.'s side, or Non-Defence on the Defendant's side.

    The effect of it naturally and commonly is, as with some exception, and under some conditions, it is right it should be, the same as that of decision in conformity to the plaintiff's demand: that is, supposing the decision wrongful, if misdecision to the prejudice of the defendant's side.

    Causes of Non-Defence. See Causes of Non-Demand

    1. Want of knowledge of the law: viz. in the case where the law, if known and understood, would have been seen not to warrant the demand, or to afford a ground of defence, if the benefit of which he who should have been defendant, is, by the want of that knowledge, deprived.

    2. Want of knowledge of the existence of this or that matter of fact, of which sufficient evidence might have been obtained, and which if proved would have been sufficient either to disprove the alleged facts which constitute the ground of the demand, or to establish a ground of defence sufficient to refute it.
  • Title: [19 March 1808 Letter V §.6]
    Description: 19 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v. defend t Causes

    IV. Desistment

    IV. Desistment from defence.

    This is no more than non-defence supervening at any point of time posterior to the operation by which Defence is understood to be commenced: subsequent to what in the language of learned and reverend mendacity and extortion is stiled as above, appearance. Where the effect of is in like manner to produce injustice to the prejudice of the defendant's side, the causes of it are to be found upon the list already brought to view.