[094-273v]

27 May 1806

Evidence

Exclusion II. Proper

Ch. Engl. Law & Vexation

'. to Judges

4. Roman /Rome bred/ mode per judicam ad hoc solum. /The/ [...?], whether extraneous witnesses examined vivâ voce by the Judge alone: if a party no other party present: if no extraneous witness no party present: no person present in quality of assistant to either party: no interrogatory consequently no counter-interrogatory by any person but the Judge. Interrogations proposed before hand and in writing: testimony delivered vivâ voce but, consigned to writing upon the spot. Employed under Roman Law every where out of the English School, and in the English School within a certain number of scribes[?] of the metropolis, under the direction of the Courts of Equity.

+ The decision not formed by the Judge by whom the evidence is thus collected.

5. Romano-Anglican mode by Commissioners /on both sides/. The same as above, except that the Commissioners, being nominated in equal number on each side, unite in some measure the character of representatives of the parties to that of Judges.

6. Romano Anglican mode before a Master /(a sort of subordinate Judge) in Equity and at Common Law/. The same as in N o 4 except that the decision is framed by the same Judge by whom the evidence is collected. Examination sometimes upon Written interrogations, prepared on behalf of parties, sometimes without any such help or dep.[?]

7. English Affidavit made upon oath. Testimony delivered in writing: neither counter-interrogation nor interrogation, by Judge, party or any body else. /Evidence/ Received indiscriminately in this shape from parties on both sides, and from extraneous witnesses

8. Affidavit mode without oath /Assertion uninterrogated and unsworn/, or special pleading mode. The same as N o │ │ except as to the absence /non-existence/ of the ceremony of the oath, and thence of punishment, in case of mendacity, vis for perjury. For the occasion In which this form is employed, see the ensuing Chapter on the Mendacity-licence. In the Roman School, (in the French class of it at least) in all cases, except where the Roman mode N o 4 is employed: /employed/ in use on all interlocutory, or say incidental, applications. In the English School, in use in such alleviations alone, as are included under the name of Pleadings. See the Chapter so intituled.