27 Aug 1804 18

2 nd.

1

Jurisprudence

Sometimes a precetent

is so strictly followed, that a particular judgment founded

upon special circumstances, gives rise to a general rule.

2

III 433.

Falshood encouraged

The suggestion .... of every bill, to give jurisdiction

to the courts of equity.... is, that the complainant hath no

remedy at the common law. III 434.

3

. Nr land a Court of Justice

The rules of

property rules, of evidence, & rules of

interpretation in both courts [of law & equity] are, or

should be, exactly the same: both ought to adopt the best, or must

cease to be courts of justice.

4

III 434.

Party

The deft's counsel [in a suit in equity] ...

may not read any part of his answer. III 451.

On a trial at law if the plff reads any part of the

deft's answer, he must read the whole of it, for by reading

any of it he

shews a reliance on the truth of the deft's testimony,

& makes the whole of his answer evidence.

III 451 note .

5

Issue-trying

As no jury can be sumoned to attend this

c t, the fact usually directed to be tried

at the bar of the c t of k. b. or at the

assises upon a f eigned issue. For

(in order to bring it there, & have the point in

dispute, & that only, put in issue) an action is

fe igned to be brought, wherein the

pretended plff declares, that he laid a wager of £5 with the

deft, that A was heir at law to B; & then avers that

he is so; & brings his action for the £5. The deft allows

the wager, but avers that A is not the heir to B ; &

thereupon that issue is joined which is directed out of chancery

to be tried: & the verdict of the jurors at law

determines the fact in the c t of equity.

These feigned issues seem borrowed from the

sponsio judicialis of the Romans:

& are also frequently used in the courts of law, by consent

of the parties, to determine some disputed right without the

formality of pleading, & thereby to save much time

& expence in the decision of a cause . +

and expence of Special-Pleading confessed .

III 452.

6 —

Crime - Mischief misconceived

If I obtain a field from another man, to which the

law has given him a right, this is a civil injury, & not a

crime; for here only the right of an individual is concerned,

& it is immaterial to the public which of us is in

possession

of

the

land: but treason, murder, & robbery, are properly ranked

among crimes; since besides the injury done to individuals,

they strike at the very being of society; which cannot possibly

subsist, where actions of this sort are suffered to escape

with impunity. IV 5.

7

Crime — Mischief misunderstood

Murder is an injury to the life of an individual; but the law of

society considers principally the loss which the loss which

the state sustains by being deprived of a member, & the

pernicious example thereby set for others to do the like.

8

IV 6.

Law of Nature

It is clear, that the right of punishing crimes

against the law of nature, as murder & the like, is in a

state of mere nature vested in every individual. For it must

be vested in somebody; otherwise the laws of nature would be

vain & fruitless, if none were empowered to put them in

execution: & if that power is vested in any one, it must also be vested in all mankind ; since all are by nature

equal ...... In a state of society this right is

transferred from individuals to the sovereign power.

8

IV 7, 8.

Crime Mischief misconceived

If any accidental mischief happens to follow from

the performance of a l awful act the party

stands excused from all guilt; but if a man be doing any thing un lawful, & a consequence ensues

which he did not foresee or intend, as the death of a man &

the like , his want of foresight shall be no excuse; for being

guilty of one offence, in doing antecedently what is in itself

unlawful, he is criminally guilty of whatever consequence may follow

the first misbehaviour. IV 27.