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27 Aug 1804 18 2nd.
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 ct, the fact usually
directed to be tried at
the bar of the ct of k.
b. or at the assises upon
a feigned issue. For (in
order to bring it there,
& have the point in
dispute, & that only,
put in issue) an
action is feaigned to be
brought, wherein the
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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 ct 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
isof inthe 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.
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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 state 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 lawful act the party
stands excused from all
guilt; but if a man
be doing any thing unlawful,
& 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.
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