15 April 1804

Evidence

Forthcomingness

Ch. Real

Instead of a system of procedure thus honestly and naturally directed /adapted/ to the attainment of its professed object, suppose a lame one, such as it will be but too easy to exemplify, and observe the consequence. A party (say the plaintiff) stands in need of the evidence which the documents in question, if produced at the judgment seat would afford: the document is known by him to be or at least to have been in the hands of the adverse party, the defendant; of what comes to the same thing in the hands of a third person, whose inclinations, towards the plaintiff's side, though he be not a party to the cause, are not less adverse. This being /Such being/ the /In this/ state if the facts, the provision made by the law for securing the production of the document, is in this wise /as follows/. A form of summons is provided, by which under a penalty, adequate or inadequate, the proposed witness is required to attend at the judgement seat on a day certain and not postponeable in the character of a witness: and to secure the forthcomingness of the document, to the above requisition is added /subjoined/ another, commanding him to bring it with him the document at the same place and time. Will he do any such thing? - not, if he has common sense. Witness, where is the deed /document/? it is, in the hand of [...?] ?Sir, it ought to be at hand/: before the summons was issued I had lent it him, he asking leave of me to look at it: upon receipt of the summons, I desired him to return it: he consented of course; the last thing I did before I, set out to pay my attendance here, was to ask him for it once more: his answer was that he had searched and searched, but had not as yet been fortunate enough to find it. Does Pirimus (the witness summoned) run any risk of suffering as for perjury? - not the smallest: in all this story, not a syllable but what was true.