6 July 1807

+ B

Scotch Reform

Note (a) *13

Note

Letter V

II. Litigation promoted

40 (a)

(a) The case in which the suit has for its object the obtainment of satisfaction includes by far the greatest part of the civil (non-criminal) branch of law: but not quite the whole of it.

Of the civil (non-criminal) branch of the main body of the law no part that may not seem to be included in some way, or rather to wrong on one side and satisfaction on the other. The satisfaction demanded may be 1. ob praettum[?] in respect of past wrong as in the common case: or 2. de futuro, as against future contingent wrong, as in a case rarely exemplified, or[?] no wrong as yet committed or so much as supposed to be committed: but the plaintiff apprehends the deposition of some evidence necessary to the support of some right, and on the deposition of which he would be exposed to suffer wrong he therefore prays and demands that such steps may be taken as may be deemed necessary to the preservation of it.

2. The plaintiff, though his right has been recognized or established by the decisions pronounced in one or more suits, apprehends the seeing it contested and perhaps taken away in the course of an unlimited series of future contingent suits: that it may be established once for all is the service he demands at the hands of the Judge. This example is taken rather from law as it is than from law as it ought to be: whenever a party, plaintiff or defendant, conceives that his right to the subject matter in dispute has been sufficiently established, beyond the possibility of being disproved by ulterior evidence, then is the time for demanding that after sufficient opportunity of contestation on the other side, the right shall be declared to be established for ever. Law as it ought to be would render this provision co-extensive with the whole field of wrongs and satisfaction. Law as it is, applies it to but a small part.