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22 June 1804< | <head>22 June 1804</head> | ||
<head>7</head> | |||
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The loving... may loving<lb/> | <p>The loving... may loving<lb/> | ||
an action of trespass for<lb/> | an action of trespass for<lb/> | ||
taking away his goods;<lb/> | taking away his goods;<lb/> | ||
but not for breaking his<lb/> | but not for breaking his<lb/> | ||
close or any other injury<lb/> | close or any other injury<lb/> | ||
done upon his soil | done upon his soil or<lb/> | ||
possession. III 237</p> | |||
Crown the foundation of<lb/> | |||
all justice. | <p>Crown the foundation of<lb/> | ||
The security... given by<lb/> | all justice. III 273</p> | ||
<p>The security... given by<lb/> | |||
the <gap/> for prosecuting<lb/> | the <gap/> for prosecuting<lb/> | ||
his claim... is... become<lb/> | his claim... is... become<lb/> | ||
a mere matter of | a mere matter of form &<lb/> | ||
John Doe & Richard Roe<lb/> | John Doe & Richard Roe<lb/> | ||
are always returned as<lb/> | are always returned as<lb/> | ||
the | the standing pledges for<lb/> | ||
this purpose. | this purpose. III 275.</p> | ||
It is... usual <del><gap/> | |||
to < | <p>It is... usual <del>in <gap/></del>...<lb/> | ||
first | to <unclear>sue</unclear> out a <hi rend='underline'><foreign>caprias</foreign><!-- Latin? --></hi> in the <lb/> | ||
first instance upon a supposed<lb/> | |||
.... & afterwards a < | return of the sheriff<lb/> | ||
.... & afterwards a <unclear>fictious</unclear><lb/> | |||
original is drawn up,<lb/> | |||
with a proper return<lb/> | with a proper return<lb/> | ||
thereupon, in order to give<lb/> | thereupon, in order to give<lb/> | ||
the proceedings a color of<lb/> | the proceedings a color of<lb/> | ||
regularity. | regularity. III 282.</p> | ||
When the action is<lb/> | |||
<p>When the action is<lb/> | |||
brought in one county &<lb/> | brought in one county &<lb/> | ||
the < | the <unclear>deft</unclear> lives in another,<lb/> | ||
it usual... to make out<lb/> | it usual... to make out<lb/> | ||
a <unclear><hi rend='underline'>totalum caprias</ | a <unclear><hi rend='underline'><foreign>totalum caprias<!-- Latin? --></foreign></hi></unclear> at the<lb/> | ||
first; supposing not only<lb/> | first; supposing not only<lb/> | ||
an original, but also<lb/> | an original, but also<lb/> | ||
a former <hi rend='underline'>caprias</hi> to have<lb/> | a former <hi rend='underline'><foreign>caprias<!-- Latin? --></foreign></hi> to have<lb/> | ||
been granted, which in<lb/> | been granted, which in<lb/> | ||
fact never was. | fact never was. III 283.</p> | ||
In fact Maxim of law<lb/> | |||
...in | <p><del>In fact</del> Maxim of law<lb/> | ||
< | ...in <foreign><unclear>fiction</unclear> juris consistit<lb/> | ||
In the exchanges the first<lb/> | aequitas</foreign><!-- Latin -->. III 283</p> | ||
process | |||
<p>In the exchanges the first<lb/> | |||
process is by writ of <hi rend='underline'><foreign><gap/></foreign></hi><lb/> | |||
<hi rend='underline'><foreign>minus<!-- Latin --></foreign></hi>... In which writ<lb/> | |||
the plaintiff is alleged<lb/> | the plaintiff is alleged<lb/> | ||
to be the king's <unclear> | to be the king's <unclear>farmer</unclear> or <lb/> | ||
debter, & that the deft<lb/> | debter, & that the deft<lb/> | ||
hath done him the injury<lb/> | hath done him the injury<lb/> | ||
complained of... by<lb/> | complained of... by<lb/> | ||
which he is the help able to<lb/> | which he is the <unclear>help</unclear> able to<lb/> | ||
pay the king his rent or<lb/> | pay the king his rent or<lb/> | ||
debt. | debt. III 286.</p> | ||
<pb/> | |||
<!-- Second Column --> | <!-- Second Column --> | ||
Every man's house is looked<lb/> | <p>Every man's house is looked<lb/> | ||
when by the law to be his<lb/> | when by the law to be his<lb/> | ||
castle of defence & | castle of defence & asylum,<lb/> | ||
wherein he should suffer<lb/> | wherein he should suffer<lb/> | ||
no violence. | no violence. <gap/>III 288.</p> | ||
Attornies, being officers of<lb/> | |||
the court, are always | <p>(<sic>Attornies</sic>, being officers of<lb/> | ||
the court, are always supposed<lb/> | |||
are not | to be there attending)<lb/> | ||
are not liable to be arrested<lb/> | |||
by the ordinary process of<lb/> | by the ordinary process of<lb/> | ||
the Court | the Court — — III 289.</p> | ||
In <hi rend='underline'>transitory</hi> actions, for<lb/> | |||
<p>In <hi rend='underline'>transitory</hi> actions, for<lb/> | |||
injuries that might have<lb/> | injuries that might have<lb/> | ||
happened any where, as<lb/> | happened any where, as<lb/> | ||
debt... the plaintiff may<lb/> | debt... the plaintiff may<lb/> | ||
declare in what county<lb/> | declare in what county<lb/> | ||
he pleases. | he pleases. III 294</p> | ||
It is generally usual<lb/> | |||
in actions | <p>It is generally usual<lb/> | ||
in actions upon the case<lb/> | |||
to set forth several cases,<lb/> | to set forth several cases,<lb/> | ||
by different <hi rend='underline'> | by different <hi rend='underline'><unclear>counts</unclear></hi> in the<lb/> | ||
same declaration; so that<lb/> | same declaration; so that<lb/> | ||
if the plaintiff fails in<lb/> | if the plaintiff fails in<lb/> | ||
the proof of one he shall<lb/> | the proof of one he shall<lb/> | ||
succeed in another. | succeed in another. III 296</p> | ||
Executory agreements<lb/> | |||
<p>Executory agreements<lb/> | |||
a court of equity will<lb/> | a court of equity will<lb/> | ||
compel... to be carried<lb/> | compel... to be carried <del>to</del><lb/> | ||
<del> | <del>be carried</del> into strict execution,<lb/> | ||
unless where it is improper<lb/> | |||
or impossible, instead<lb/> | |||
of giving damages<lb/> | |||
for their non | for their non-performance.<lb/> | ||
And hence a fiction<lb/> | |||
is established, that<lb/> | |||
what ought to be done<lb/> | what ought to be done<lb/> | ||
shall be considered as<lb/> | shall be considered as<lb/> | ||
| Line 99: | Line 112: | ||
time when it ought to<lb/> | time when it ought to<lb/> | ||
have been done originally:<lb/> | have been done originally:<lb/> | ||
& this | & this fiction is so closely<lb/> | ||
<unclear>pursued</unclear> through all < | <unclear>pursued</unclear> through all <unclear>it</unclear><lb/> | ||
consequences, that it | consequences, that it necessarily<lb/> | ||
branches out into<lb/> | |||
many rules of | many rules of jurisprudence,<lb/> | ||
which form a<lb/> | |||
certain regular system.<lb/> | certain regular system.<lb/> | ||
III 438.</p> | |||
< | |||
Bill. | <p>Fictions in an Equity<lb/> | ||
< | Bill. III 442.</p> | ||
< | <p>Fiction employed, by a<lb/> | ||
before a Jury. | feigned issue to bring a<lb/> | ||
<unclear>court</unclear> tried <gap/><lb/> | |||
before a Jury. III 652</p> | |||
<pb/> | |||
<!-- Third Column --> | <!-- Third Column --> | ||
< | <p>Feigned issues... are... frequently<lb/> | ||
used in the courts<lb/> | |||
of law... to determine<lb/> | of law... to determine<lb/> | ||
some disputed | some disputed right<lb/> | ||
without the | without the formality<lb/> | ||
of pleasing. | of pleasing. III 652.</p> | ||
The king, in whom < | |||
<p>The king, in whom <unclear>centers</unclear><lb/> | |||
the majesty of the whole<lb/> | the majesty of the whole<lb/> | ||
community, is supposed<lb/> | community, is supposed<lb/> | ||
by the law to be the<lb/> | by the law to be the<lb/> | ||
person injured by | person injured by every<lb/> | ||
infraction of the public<lb/> | |||
rights | rights belonging to that<lb/> | ||
community, & is therefore<lb/> | community, & is therefore<lb/> | ||
in all cases the proper<lb/> | in all cases the proper<lb/> | ||
prosecutor for every public<lb/> | prosecutor for every public<lb/> | ||
offence. | offence. IV 2.</p> | ||
The criminal law should<lb/> | |||
<p>The criminal law<add>...</add> should<lb/> | |||
be founded upon principles<lb/> | be founded upon principles<lb/> | ||
... conformable to the | ... conformable to the dictates<lb/> | ||
of truth & justice,<lb/> | |||
the feelings of humanity,<lb/> | the feelings of humanity,<lb/> | ||
& the | & the indelible right of<lb/> | ||
mankind. IV 2.</p> | |||
< | |||
the law of nature | <p>Murder a crime against<lb/> | ||
The right of punishing....<lb/> | the law of nature. IV 7</p> | ||
<p>The right of punishing....<lb/> | |||
must be vested in somebody;<lb/> | must be vested in somebody;<lb/> | ||
otherwise the laws of<lb/> | otherwise the laws of<lb/> | ||
nature would be vain<lb/> | nature would be vain<lb/> | ||
& < | & <unclear>fruitless</unclear>. IV 7</p> | ||
<p>The magistrate... bears<lb/> | |||
the sword of justice by<lb/> | |||
the consent of the whole<lb/> | |||
community. IV 8</p> | |||
<p>Individuals... in forming<lb/> | |||
societies, did either tacitly<lb/> | |||
or expressly invest the<lb/> | |||
sovereign power with<lb/> | |||
a right of making laws.<lb/> | |||
IV 8</p> | |||
<p>With regard to offences<lb/> | |||
<hi rend="underline"><foreign>mala in <unclear>se</unclear></foreign></hi>, capital punishments<lb/> | |||
are in some instances<lb/> | |||
inflicted by the<lb/> | |||
immediate <hi rend="underline">command</hi> of<lb/> | |||
God himself. IV 9</p> | |||
<p>Life is the immediate<lb/> | |||
gift of God to man;<lb/> | |||
which neither he can<lb/> | |||
reign, nor can it be<lb/> | |||
taken from him, unless<lb/> | |||
by the command or permission<lb/> | |||
of him who gave<lb/> | |||
it; either expressly <gap/>, or or society by clear & <unclear>indisputable</unclear><lb/> | |||
collected from the laws of <gap/> demonstration. IV 11</p> | |||
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{{Metadata:{{PAGENAME}}}} | {{Metadata:{{PAGENAME}}}} | ||
22 June 1804 7
The loving... may loving
an action of trespass for
taking away his goods;
but not for breaking his
close or any other injury
done upon his soil or
possession. III 237
Crown the foundation of
all justice. III 273
The security... given by
the for prosecuting
his claim... is... become
a mere matter of form &
John Doe & Richard Roe
are always returned as
the standing pledges for
this purpose. III 275.
It is... usual in ...
to sue out a caprias in the
first instance upon a supposed
return of the sheriff
.... & afterwards a fictious
original is drawn up,
with a proper return
thereupon, in order to give
the proceedings a color of
regularity. III 282.
When the action is
brought in one county &
the deft lives in another,
it usual... to make out
a totalum caprias at the
first; supposing not only
an original, but also
a former caprias to have
been granted, which in
fact never was. III 283.
In fact Maxim of law
...in fiction juris consistit
aequitas. III 283
In the exchanges the first
process is by writ of
minus... In which writ
the plaintiff is alleged
to be the king's farmer or
debter, & that the deft
hath done him the injury
complained of... by
which he is the help able to
pay the king his rent or
debt. III 286.
---page break---
Every man's house is looked
when by the law to be his
castle of defence & asylum,
wherein he should suffer
no violence. III 288.
(Attornies, being officers of
the court, are always supposed
to be there attending)
are not liable to be arrested
by the ordinary process of
the Court — — III 289.
In transitory actions, for
injuries that might have
happened any where, as
debt... the plaintiff may
declare in what county
he pleases. III 294
It is generally usual
in actions upon the case
to set forth several cases,
by different counts in the
same declaration; so that
if the plaintiff fails in
the proof of one he shall
succeed in another. III 296
Executory agreements
a court of equity will
compel... to be carried to
be carried into strict execution,
unless where it is improper
or impossible, instead
of giving damages
for their non-performance.
And hence a fiction
is established, that
what ought to be done
shall be considered as
being actually done; &
shall relate back to the
time when it ought to
have been done originally:
& this fiction is so closely
pursued through all it
consequences, that it necessarily
branches out into
many rules of jurisprudence,
which form a
certain regular system.
III 438.
Fictions in an Equity
Bill. III 442.
Fiction employed, by a
feigned issue to bring a
court tried
before a Jury. III 652
---page break---
Feigned issues... are... frequently
used in the courts
of law... to determine
some disputed right
without the formality
of pleasing. III 652.
The king, in whom centers
the majesty of the whole
community, is supposed
by the law to be the
person injured by every
infraction of the public
rights belonging to that
community, & is therefore
in all cases the proper
prosecutor for every public
offence. IV 2.
The criminal law... should
be founded upon principles
... conformable to the dictates
of truth & justice,
the feelings of humanity,
& the indelible right of
mankind. IV 2.
Murder a crime against
the law of nature. IV 7
The right of punishing....
must be vested in somebody;
otherwise the laws of
nature would be vain
& fruitless. IV 7
The magistrate... bears
the sword of justice by
the consent of the whole
community. IV 8
Individuals... in forming
societies, did either tacitly
or expressly invest the
sovereign power with
a right of making laws.
IV 8
With regard to offences
mala in se, capital punishments
are in some instances
inflicted by the
immediate command of
God himself. IV 9
Life is the immediate
gift of God to man;
which neither he can
reign, nor can it be
taken from him, unless
by the command or permission
of him who gave
it; either expressly , or or society by clear & indisputable
collected from the laws of demonstration. IV 11
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