5 July 1804

Procedure & Evidence

Evils causes

4th order

'.1 Unforthcomingness of evidence

Evils of the 3d Order Evil the cause of which is sought.

1. Unforthcomingness of evidence: viz: of the evidence necessary to rightful decision in favour of the demandant

1. Personal evidence

I. Natural causes

1. The witness (i.e. in respect of the faculty of yielding the evidence sought) not known

2. The abode, or other means of corresponding with him not known.

3. The witness does not appear when acted upon to depose.

4. - Is, or goes /-----/, out of the jurisdiction of the court.

5. has lost his recollection of the particular facts in question.

6. - dies

7. by insanity becomes disqualified from testifying.

8. On the part of the party who has need of the evidence, is unable to defray the expence naturally requisite for the procurement of it: see above title Expence - natural causes

9. Delay: in the present instance the natural length of delay, as above explained (suprà) inasmuch as the course of that length of time the testimony of the witness may, in one or other of those ways, or by virtue of one or other of those causes, cease to be forthcoming. See delay.

II. Factitious causes negative

1. Want of arrangements proper for the discovery of the source of evidence: i.e. of the individual capable of yielding the evidence sought.

2. Want of arrangements for the timely examination of a witness whose continuance in life is rendered precarious by old age or disease.

3. Want of effectual arrangements for compelling the appearance of the witness in case of latitantcy or disposition to expatriate.

4. Want of effectual arrangements for compelling him to -----

5. Delay in so far as any factitious quantity of it is produced /attended with any such effect as that in question/ by the operation of any of the factitious causes of delay. See delay.

III. Factitious causes positive - Exemplified

1. Exclusion of his testimony on the ground of untrustworthiness, without sufficient cause.

2. Exclusion /-----/ of his testimony on the ground of the vexation that would result from the extraction of it.