10 July 1805

Evidence (4)

Note?

Introd

Ch. Complication Table

Equity Cases

Note ( )

Were the /Not the[?]/ complexion of the[?] times favourable, there is nothing /any thing/ in the nature of things /the case/ that should render it more impracticable to the Common Law Courts to make provision some how or other for chronical cases any more than for cases of fraud, trust, and accident. The case of the Action of account might serve for a pattern. If a Court of Equity had its masters, its Remembrancer, the Court of King's Bench too has its Masters, the Court of Common Pleas, its Prothonotaries. If in the Action of Account the opinion of a Jury authorizes /is sufficient to authorize/ the Judgment Quid[?] computet[?], after which the Master of Prothonotary, (if there wer such an action brought) would proceed de die in diem, treating the case as chronical cases are regularly treated in a Court of Equity, if in an Action for partition (an Action in which the Writ called a Writ of partition is the first instrument) neither Common Law Court is altogether in want of powers by which this chronical case might also receive the treatment it requires /suitable to it/, a little /a small [...?]/ of that ingenuity of which under the technical system there never can be any want might serve to extend the Common Law regimen[?] to many perhaps to all, of the chronical cases for which at present the Equity procedure is alone in the habit of providing.

I say /set out with saying/, were the complexion of the times favourable. But the complexion of the times is no longer favourable to new enterprizes and bold strokes. The [...?] same cases /jealousy/ which prevents ghosts from swarming, which keeps miracles of all sorts from being wrought to any tolerable advantage /which has confined judicial astrology to the very lowest orders/, which renders the making of "magisterial estates" no longer easy in [...?], nor so much as practicable in ministerial offices, puts a negative upon all those exploits in judicature, by which the 17 th Century was so illustriously distinguished. Men shut their eyes upon established impositions, but they will not /don't choose to/ have any new ones.

Many years ago I remeber hearing of a [...?] on the part of the Court of Common Please, to do business in the quod computet[?] line. The shop is always open, but for /as to/ articles in that way instances are not in use to come to it.

I have heard of a project in embryo in a Common Law Court, for laying hold of a party should he happen to present himself at a Trial, for clapping a Subpoenâ upon him, and examining him on the other side. But neither have Chancellors and barons in the heavens] above, nor malâ fide suitors in the earth beneath, any thing serious to apprehend from it. What business has a man to be present at the hearing of his own cause? AS the scheme, in the character of a permanent one, went [...?] (for it could not do for more than once) I feel no compunction at betraying it.