May 1805

Evidence

Introd

Ch.3. Preparatory

Explanation

'. Division of Suits

'. Division of Suits By every suit at law, by every juridical demand, an obligation of some sort or other is, endeavoured /sought/ to be imposed upon the defendant: if the nature of the obligation be such that the evil or burthen /sustained[]?]/ to which the defendant is subjected is of a nature /so circumstanced/ to be comprized /come/ under the denomination of punishment if the defendant on being subjected to it is said to suffer punishment he being understood to have done some act that comes under the denomination of an offence the suit is of the penal, say (for a reason that will appear presently) purely penal class: if the nature of the obligation be such that from the defendants being subjected to it, the plaintiff receives some advantage, but the Defendant is not considered as suffering any thing /subjected to any suffering/ on the score of punishment /not being considered as having committed /done/ any act that comes under the denomination of an offence/, the suit is of the non penal class: if from the defendant's being subjected to the obligation, the plaintiff is understood to have received an /some/ advantage, and his right to that advantage is understood to be constituted by the fact of the defendants having committed some /an/ offence, among the consequences of which is that of having been productive of some lot of mischief falling exclusively upon the defendants, the suit may be said to be of the mixed class: what advantage is in that case understood to come under the name of satisfaction, and in some cases compensation indemnification, indemnity damages(a) The mixture consists in this: viz: that in this case, the benefit received by the plaintiff by the administration of such satisfaction /upon such satisfaction being administered/ to him, his [...?] respect to the augmentation of his well-being an effect similar to that which redounds to him when by the non act of the Judge he is made to receive the benefit of a right, the inchoate right conferred on him by the legislator being for his benefit converted into a consummate /correspondent/ right: at the same time that on the part of the defendant the burthen attached to the obligation of rendering this satisfaction, being imposed on him a consideration of the offence committed by him (or her) to the prejudice of the plaintiff, has in that respect the effect of punishment.