date

28 April 1808 §. 5. I. Reasons
28 April 1808

§. 5.

I. Reasons for the Work

§.5. Demand supposes substantive law

The demandant, in and by his instrument of demand, can no otherwise shew to the satisfaction of the Judge that the service which he demands as due to him at the hands of the Judge really is due to him in virtue of the correspondent portion of substantive law than by bringing it to view, viz. either by repetition in terminis[?], or at least by description and reference.

On the conformity of the demand so made to the import of the portion of law on which the demand is grounded, depends the legality of the demand, the obligation, and even the right of the Judge to render the service so demanded at his hands. If in any material part the conformity fails, so does the right of the party to demand the service, so does the right of the Judge to render it.
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  • Title: [28 April 1808 §.5. I. Reasons]
    Description: 28 April 1808

    §.5.

    I. Reasons for the Work

    §.5. Demand supposes substantive law

    §.5. Every instrument of demand requires for its basis a correspondent portion of substantive law to which, it ought to

    be adjusted.

    1. By §.1 art.3. the business and only object and use of a system of pleading, of which the instrument of demand is the first article is to give execution and effect to a corresponding mass of substantive law: {if no such portion of substantive law exists, the instrument of demand, and consequently whatsoever other [...?] it gives birth to in a consequent chain of allegations are without an object.}

    The services which the plaintiff has a right to call upon the Judge to render to him upon demand, are three, and these alone, which the law has commanded or permitted him to render. The persons to whom the Judge is warranted in rendering any such service are those and those alone, to whom the law has commanded or permitted him to render it. The cases in which the Judge is warranted in rendering to such persons any such services, are those, and those alone, in which the supposed right of the person in question to demand the rendering of such service has an efficient cause of the number of those designated by the corresponding portion of the law.
  • Title: [28 April 1808 §. 6. I. Reasons]
    Description: 28 April 1808

    §. 6.

    I. Reasons for the Work

    §.6. Legislator should frame demand

    §.6. It belongs to the legislator in every case to determine as far as may be the tenor, as well of the instrument of demand, as of the correspondent portion of substantive law in which the party's right to make the service demanded is grounded.

    1. By §. 5. art.│ │ the conformity of the instrument of demand to the correspondent portion of substantive law ought to be entire. It belongs therefore to the legislator in every case to do what depends upon himself to secure such conformity. But by no other means can he render such security so entire, as by fixing, by his own choice, the words of both.

    2. Of these words there are some which it is not possible for him to determine in every, nor so much as in any, individual instance. Those are all such words as are necessary to the characterizing of the individual case. But the impossibility he is under of performing this small part which is so easy to be performed by other hands affords no reason for his omitting to perform such parts as can not with equal security against failure be performed by any but his own.

     This prevents all nulliture[?]
  • Title: [28 April 1808 §.2. I. Reasons]
    Description: 28 April 1808

    §.2.

    I. Reasons for the Work

    §.2. State Ground of Demand.

    9. To a person making application in the character of demandant (or say plaintiff) no such judicial service can ever be rendered by a Judge, but at the charge of some other person, who, in so far as he either seeks to exempt himself from such burthen, or, is considered as about to be so, becomes subjected to it, is termed a defendant.

    10. On no man ought any burthen to be imposed by a Judge without sufficient reason: i.e. unless to the judicial service by which such burthen would be imposed on the Defendant the demandant has a just right, which he can not have unless his assumed right has a legally sufficient efficient cause.