22 May 1804

Evidence

Forthcomingness

Ch Investigatorial Eng Law

§.6. Equity application

§.6. Incompleat application /exercise/ of it in Courts of Equity.

If the system of procedure was the work of any one man in the character of a legislator furnished with requisite powers - if there were any one individual breathing on whom /to whose account/ the responsibility /blame/ for any the grossest and most mischievous /pernicious/ imperfections observable in it could be fixed /charged/, the single word discovery would lead to /afford on his part/ evidence but too conclusive of the most flagrant deficiency of probity or the grossest want of intelligence /either of probity or intelligence/.

The Courts of Common Law refusing /denying/ as hath been already /since/ stated all aid to justice from this source, the only recourse was in the power of comparatively modern date assumed by the Courts calling themselves /called/ Courts of Equity. An application made to a Court of Equity, and having for its object the discovery of evidence, is accordingly termed a Bill of Discovery.

When the individual of /from/ whom the information is sought is not a party to the suit - is witness purely extraneous - the Bill is not allowed /does not lie/: nothing that is called discovery - no preparatory discovery is to be had from him. Has he in his hands the evidence - say the written evidence - the deed you stand in need of to support your claim? You must commence your suit bring your action at Common Law - file your Bill in Equity, subject yourself to all that vexation and expence before you know whether it will be in your power to obtain the evidence necessary to constitute a ground for it. After a certain number of months or years spent in the combat /warfare/ commenced in the Bill you then obtain a summons /notice/ to be issued to the possessor of the deed requiring to produce the deed, appearing or not appearing to be examined in the character of a witness at the same time: if his inclinations are in your favour, he therefore produces it; if his inclinations turn against your, or what comes to the same thing lean in favour of your adversary as soon as necessary before the summons, the subpeonâ reaches him, he empties his hand of the deed and you loose your cause.