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24 August 1804.
In the K.B. when
the deft is brought
into ct by bill of Middlesex,
upon a supposed
trespass, in order to give
the court a jurisdiction,
the pltf may declare
in whatever action, or
charge him with whatever
injury he thinks
proper; unless he has
held him to bail by
a special ac etiam,
which the pltf is then
bound to pursue.
III 293.
At the end of the
declaration are added
also the pltfs common
pledges of prosecution,
John Doe & Richard Roe,
which... are now mere
matters of form.
III 295.
Dilatory pleas are
...3. In abatement:
which abatement is
either of the writ, or
the court, for some defect
in one of them;
as by misnaming the
deft... giving him
a wrong addition, as
squire instead of knight
or other want of form
in any material respect.
III 301, 302.
In actions merely
personal, arising ex delicto,
for wrongs actually done
or committed by the deft
as trespass, battery, and
slander, the rub is, that
acto personalist moritur
cum persona; & it never
shall be revived either
by or against the executors
or other representatives.
III 302.
---page break---
Sir Edward Coke observes,
a record or enrollment
is a monument of so
high a nature, and
importeth in itself such
absolute verity, that
if it be pleaded that
there is no such record,
it shall not receive
any trial by witness,
jury or otherwise, but
only by itself.
III 331.
The law will not
suppose a possibility
of bias or favor in a
judge, who is already
sworn to administer impartial
justice, and
whose authority greatly
depends upon that
presumption & idea.
III 361
If it be found
that there is any better
evidence existing than
is produced, the very
not producing it is a
presumption that is
would have detected
some falsehood that at
present is concealed.
III 368.
It is wisely therefore
ordered, that the principles
& axioms of law,
which are general propositions,
flowing from
abstracted reason, &
not accommodated to
times or to men, shod
be deposited in the breasts
of the judges, to be occasionally
applied to
such facts as come
properly ascertained
before them. For here
partiality can have
little scope: the law is
well known & is the
same for all ranks of
degrees; it follows from as
a regular conclusion
from the premise of fact
pre-established.
III 380.
---page break---
If two juries agree
in the same or a
similar verdict, a third
trial is seldom awarded:
for the law will not
readily suppose, that the
verdict of any one subsequent
jury can countervail
the oaths of
two preceding ones.
III 387.
The jury who are to
by this false verdict
must be twenty four,
& are called the grand
jury; for the laws will
not that the oath of
one jury of twelve men
should be attainted
or set aside by an
equal number, nor by
any less indeed than
double the former.
III 403.
Escapes are either voluntary,
or negligent.
Voluntary are such as
are by the express consent
of the keeper, after
which he never can
retake his prisoner again,
(tho' the pltf may at
any time) but the
sheriff must answer
for the debt.
III 415.
The holding the penalty
of a bond to be
merely a security for
the debt & interest, yet
considering it sometimes
as the debt itself, so that
the interest shall not
exceed the penalty: the
distinguishing between
a mortgage at 5 per cent,
with a clause of reduction
to four, if the interest be
regularly paid, & a mortgage
at 4 per cent with
a clause of enlargement to 5,
if the paymt of the interest
be deferred; so that the former
shall be deemed a conscientious,
the latter an unrighteous,
bargain: all these and other cases
that might be instanced as plainest rules of positive law
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