Front Page Titles (by Subject) CHAPTER XIV.: SUITS, THEIR SORTS. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XIV.: SUITS, THEIR SORTS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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SUITS, THEIR SORTS.
A suit (meaning a suit at law) is a course of action commenced on application made to some judge, requesting his efficient service for the giving execution and effect (contestation notwithstanding) to some determinate portion of law.
By every suit, a person constitutes himself pursuer; another, in case of contestation, defendant: thence, sides at the least two, pursuers and defendants in any number.
By every suit, two services are requested, principal and instrumentary: principal by the defendant; instrumentary by the judge, in causing the principal to be rendered.
Active or passive may be the principal, the defendant’s service:—active, where for the rendering it, motion on the part of the defendant is necessary; as in paying money, performing manual labour: passive, as in suffering money or goods to be taken out of his possession, or his body to be imprisoned.
Active is always the instrumentary, the judge’s service. In it are comprised of course as elementary services, all those necessary to the removal of obstructions to the rendering of the principal service—all such services as well on the part of the judge, as of all persons who, for purposes of this kind, are by law under his command.
Sources of distinction.
From divers sources of distinction, divers sorts of suits, viz.—
1. Manner in which defendant may be affected: suits non-penal and penal.
3. Multitude of the objects brought to view: suits simple and complex.
3. Duration: suits summary and chronical.
4. Dependence or independence as to another suit: suits original and excretitious.
5. Number of sides complete as above, or incomplete, two or one only: suits ambolateral and unilateral; unilateral, viz. either
1. Without pursuer, or
2. Without defendant.
The judge supplying the place of each.
Non-penal and penal.
Suit non-penal* has not for its object the producing on defendant’s part, suffering other than that inseparable from the obligation of rendering the service demanded; that service not consisting in suffering, for the purpose of punishment. Suit penal has for its object the producing the service rendered by suffering punishment.
Suit, when penal, is either purely public, or publico-private: purely public, where, no wrong being done to one individual more than another, none has need of the service rendered by satisfaction for special wrong: publico-private, where, wrong having been done to an individual, or to a class less than the whole community, service by satisfaction is needed and demanded accordingly. Of the service rendered by suffering punishment, no individual having more need than another, the pursuer, if any, must be a government agent, say a government advocate.
In this case, the satisfaction is demanded by the private, the punishment by the public, pursuer.
As to the government advocate, see Constitutional Code, Chapter XII. Judiciary collectively.
Simple and complex.
Suits simple and complex. In the case of complexity, for the standard of comparison, take the most simple conceivable.
Exemplification in the case of a non-penal suit:—
1. Subject-matter,—one; say a horse, claimed by pursuer of defendant.
2. Pursuer, one.
3. Defendant, one.
4. Evidence on pursuer’s side,—witness one, the pursuer.
5. On defendant’s side,—witness one, the defendant.
In the case of a penal suit—
1. Subject-matter, a horse as above; but now alleged to have been stolen.
2. Pursuer one, say the government advocate.
3. Defendant one, the alleged thief.
4. Evidence on the pursuer’s side,—witness one, as before, the pursuer.
5. Evidence on the defendant’s side,—witness one, the defendant.
Examples of sources of complexity:—
In a non-penal case—
1. Multitude of pursuers.
2. Multitude of defendants.
3. Multitude of pursuer’s evidences.
4. Multitude of defendant’s evidences.
5. Complexity of the subject-matter of demand.
6. Multitude of elementary services comprised in the nature of the principal service demanded; as in the case of an account with many items.
7. Multitude of elementary collative facts, necessary to constitute one effective title.
8. Multitude of counter-demands or set-offs on the defendant’s side.
In a penal case—
1. Multitude of defendants, i. e. alleged co-offenders, in respect of conjugated mode of delinquency; to wit, instigation, effectuation, assistance, subsequential protection.
2. Multitude of offences naturally concatenated on the occasion of the same forbidden design; acts of preparation, attempt, consummation; as in rebellion, sedition, riot, smuggling.
Examples of cases in which persons more than one may stand connected in interest, on one side or the other; in particular, on the pursuer’s side:—
I. Husband and wife.
II. Principal and trustee; to wit, in the various characters of
1. Guardian of a non-adult.
2. Guardian of a person insane.
3. Steward for residence or property.
4. Bailiff for property.
5. Commercial agent.
6. Trustee for a mass of property, placed in trust for some particular purpose.
III. Persons respectively claiming, or possessing an official situation, non-ecclesiastical or ecclesiastical, in the characters of locator (patron,) locatee (nominee,) incumbent, or other occupant.
IV. Executor or executors, or administrator or administrators to a party deceased.
V. Partners in a mass of manufacturing or trading stock, or in the exercise of a profit-seeking art or profession.
VI. Members of the same corporate body, suing or sued as such.
VII. Persons jointly interested, as co-occupants or expectants, simultaneously or successively, in a mass of immoveable property co-devisees, remainder men, & c.)
VIII. Persons having an interest in a complex subject-matter.
IX. Possessor of a thing claimed by divers claimants; as in case of interpleader, garnishment, foreign attachment (Anglicè,) multiple-poinding, arrestment (Scoticè.)
Examples of cases in which persons more than one may stand connected in interest on one side or other, in particular, on the defendant’s side;—to wit, in non-penal cases—
1. Proprietors or occupants of lands, on which tithes or fee-farm rents are claimed by the same title.
2. Drawer, drawee, and indorsers of a bill of exchange.
3. Principal and sureties, or say bondsmen.
4. Co-freighters in the case of a loss upon a ship’s cargo.
5. Co-underwriters in a case of insurance.
Examples of suits more particularly apt to afford a multitude of witnesses, or sources of real or written evidence:—
Suits relative to
2. Rights of common.
3. Rights of way.
5. Legitimacy and filiation.
6. Wills—their authenticity or fairness.
7. Deperition, or deterioration of buildings, or navigable vessels, or their contents, on the occasion of insurance.
8. Corporate rights—(rights possessed or claimed by persons as members of a corporate body.)
Examples of multitudinous masses of evidence, most commonly testimonial, each applicable to any sort of suit:—
1. Alibi evidence.
2. Character evidence. (Facts tending to the depression or exaltation of the character of a party or witness).
3. Facts tending to the proof or disproof of a circumstance operating in diminution or augmentation of the probative force of a person’s evidence: such as connexion or disconnexion in the way of pecuniary interest, natural relationship, rivality, or any other cause of amity or enmity, as towards a party to the suit.
4. Facts alleged as excuses for non-forthcomingness on the part of persons or things.
Examples of cases where multitudes of evidentiary facts may be requisite to prove or disprove a habit, or custom, or condition in life:—*
Case of a habit:—facts probative of
1. Insanity (as for the purposes of subjection to guardianship, invalidation of contracts, exemption from punishment.)
2. Cruelty (on the part of a master, father, guardian or husband, for the purpose of separation.)
3. Loose intercourse (on the part of the husband or wife, for extenuation in adultery.)
4. Case of a custom, to wit, a habit on the part of a multitude of persons.
5. Customary occupation of land, for the purpose of passage, pasture, or exfodiation, or abstraction of water.
Examples of cases where the subject-matter of demand; that is to say, of the service demanded, is complex:—
I. Case where the whole is demanded.
1. Mass of moveable property, due on a bill of sale.
2. Lands or buildings in the possession of divers occupants.
3. Estate yielding successive masses of income, in one or more of a variety of shapes; such as tithes, fee-farm rents, manorial quit-rents, fines or heriots, tolls, fees of office, &c.
II. Where a share only is demanded.
1. Share in a mass of property vacant by death.
2. Share in a mass of property possessed in common, on the footing of partnership.
3. Share in a mass of property subjected to division on the ground of insolvency or bankruptcy.
4. Share of a mass of property captured in war, generally by sea.
Original and excretitious.
An excretitious suit is a suit which has grown out of a former one, called thence, the original.
Sources of excretitious suits:—
1. Obstruction; viz. to the course of justice.
2. Retaliation (judicial;) viz. by counter-demands.
Sources of obstruction:—
1. Original circumstances of parties at commencement.
2. Incidental or adventitious; springing out in the course of the suit.
Original sources:—examples are—
1. Applicant’s relative indigence, thence inability of himself to pursue.
2. Applicant’s deficiency in respect of natural responsibility. [As to natural responsibility, see Constitutional Code.]
Incidental or adventitious sources of obstruction:—
Non-compliance, viz. with reference to judge’s decree, on the part of
2. Extraneous witnesses.
3. Judicial functionaries.
4. Persons at large, incidentally called upon for judicial services on the occasion of the suit.
Practical use of the mention made of obstructions:—
Rule 1. From obstructions in any number, and need of correspondent excretitious suits in consequence, make not a ground for delaying longer than necessary the termination of the original suit.
Rule 2. Where, for the purpose of the original suit, evidence has been adduced sufficient to warrant conviction of delinquency in respect of an obstruction, proceed to judgment and execution accordingly; making up the record of the excretitious without waiting for the termination of the original suit.
Exemplification of the use of these rules, as applied to testimonial falsehood uttered in the course of the suit:—in one and the same suit, by the same or any other person or persons, testimonial falsehoods may in any number have been uttered, when the grounds for withholding credence have been sufficient for conviction of falsehood, and no further ground or grounds for defence could be obtainable by any separate suit.
In the English system, for want of such rules, falsehoods by thousands remain unpunished, and in a vast proportion give to the criminal the profit sought by his crime: in case of a separate prosecution, the expense, delay, and vexation, being vast and certain; adequate motives wanting; and conviction, judgment, and execution, eminently uncertain.
Practical use of the mention made of judicial retaliation:—
Rule 1. If, from the applicant’s examination, it appears that the proposed defendant has a counter-demand against him, impose not the burthen of defence, unless, if applicant’s statement be correct, service in some shape is due to him on the balance.
Rule 2. For this purpose, make this a constant part of the applicant’s examination.
Rule 3. On the first mutual attendance, take cognizance of all subjects of disagreement, and decide accordingly, doing what can be done towards re-establishing amity of affection, and producing on both sides a sentiment of approbation in relation to the decrees, if any, issued in conclusion.
Plurilateral and unilateral.
Ordinarily, sides in a suit two—pursuer’s and defendant’s: in each situation, individuals in any number: suit plurilateral, viz. bilateral.
Necessary to constitute a suit,—situations two; whereof the judge’s, one; the other, either defendant’s or pursuer’s: suit in both cases unilateral.
Case where defendant’s side only has place: pursuer’s being wanting, judge occupies it. Examples:—
1. Suit penal, procedure styled Romanicè, inquisitorial; in contradistinction to accusatorial, the more ordinary mode.
Initiator here, the judge: to the judicial, he adds the pursuer’s function. Information he needs none. On suspicion (seat, and perhaps source, confined within his own breast,) he convenes, or causes to be prehended, the object: and by interrogation, extracts evidence, direct or circumstantial, or both;—direct, from responsion; circumstantial, from responsion or silence, and deportment.
If judge acts from information, the more apt course would be, to consign the pursuer’s function to the government advocate.
2. Suit non-penal,—audit of accounts. Judge styled auditor. Case in which it is most in use, that where an individual, having received money from or for government, has to prove the aptitude of the use made of it.
Case where pursuer’s side only has place: defendant’s wanting, judge occupies it.
Example:—Court of claims, Anglicè: benefit claimed, privilege of acting a part in a state ceremony—the coronation.
Preferable course, consigning the defendant’s function to the government advocate.
Thus, Anglicè, on a claim of peerage: so here on claim of a place in the Merit Register, as per Constitutional Code.
In both cases a suit has place: for so have contestation, and judicial decrees thereupon; else, the decision would be avowedly arbitrary, which it is not in either case.
In both, the judge, how unaptly soever, adds to his own function, those of the party or parties on one side: thus are both sides occupied.
Difference between number of sides, and number of conflicting interests. If for every one of a number of antagonizing interests supported in the course of a suit there were a side, the number of sides would be indefinite.
Examples are,—all cases where a mass of property is to be divided among co-claimants; where the subject-matter is complex.
Example of causes of opposition of interests here, are,—
1. Question, who shall be admitted, who not.
2. Of those admitted, what shall be the respective shares.
Here, if the supposition be that there is but one suit, if there be as many sides as interests, there are as many sides as claimants: or the suit may be resolved into as many elementary suits: in each of which there may be one pursuer, and the rest all defendants.
Illustration, on the supposition of four co-claimants. Suits and claimants, suppose four, A, B, C, and D:—
Suit 1. Claimant and pursuer A, the joint contestants and defendants B, C, D.
Suit 2. Claimant B, joint contestants A, C, and D.
Suit 3. Claimant C, joint contestants A, B, D.
Suit 4. Claimant D, joint contestants A, B, C.
Cause of the habit of considering a suit as having but two sides, whatever be the number of antagonizing interests. The design of the suit originating in some one party interested, his endeavours have naturally been, to engage all those to join with him (whose claims he regarded as uncontestable,) were it only that they might share with him in the expense. All who did not join with him were of course made defendants, that by the judge they might be compelled to submit to him the making the division, or say distribution.
Thus come to view identity, and diversity, as to suits.
Every separate demand may be considered as constituting a suit.
This admitted, in every course of action ordinarily considered as constituting the suit, may be distinguished as many elementary suits as there have been made demands in the course of it.
1. All excretitious suits that have grown out of the original.
2. All counter-demands made on the defendant’s side.
3. The demand, in consequence of which a quasi-jury inquiry is instituted.
4. The demand, in compliance with which appeal is allowed.
5. Any demand by which, after being instituted in one judicatory, a suit is for any purpose brought before another; for example, for effecting forthcomingness of evidence or execution.
6. Each such suit may be considered as resolved into as many suits as there are pursuers in it.
7. So, as to defendants.
8. The identity of a suit may be considered as destroyed either by the accession or the secession of a party on either side.
Use of the divisions of suits into plurilateral and unilateral, that the apparently unilateral being seen to be suits proper for the eognizance of a judge, the judge in these cases may be subjected to the same checks as in other cases.
Use of the exposition in regard to identity and diversity—that upon no assumption in regard to identity or diversity, any pretence be built for an arrangement not conducive to the ends of justice.
In particular, for causing operations or instruments to be repeated, under the notion of the extinction of the suit—for example, by death of a party. Examples are various to English procedure: occasions and pretences various—ends and motives the same.
Particular use in regard to succeeding stages of inquiry, recapitulatory and appellate:—
1. In the recapitulatory inquiry, all the excretitious suits that can have influenced the decision in the original suit, should be brought to view—none that have not.
2. So, on the appellate inquiry.
But as by the manifold-writing system, the record containing the whole proceedings will be brought to view in both stages, without fresh expense, the distinction will apply not to exhibition, but to observation—to the notice that may come to be taken in the course of argumentation.
Question—Inquisitorial procedure, why not here admitted?
1. With a view to appropriate intellectual and active aptitude: it is of use, that as the undivided attention of one person is employed on the one side, so should that of another person on the other side: the judge’s attention being equally applied to each, for the purpose of decreeing in favour of that side which has presented the strongest arguments.
2. With a view to appropriate moral aptitude: that in these extraordinary cases the judge may be acting under the same checks, as in all ordinary ones.
Services graduable or non-graduable.
The service demanded by the demand-paper may be either graduable or ungraduable. Understand by a graduable service, a service which admits of degrees: as, for instance, a service which consists in the demand of a sum of money, in compensation for a wrong suffered in a shape other than pecuniary. Whatsoever be the number of sums of money of the lowest denomination, capable of being taken for the subject-matter of payment on the score of compensation, that same is the number of degrees of which the amount of the compensation is susceptible.
Understand by a non-graduable service, a service, in respect of which no alternative has place, but that of complete performance and complete non-performance: as, for instance, the restitution or transference of a thing not susceptible of division, without destruction or deterioration of value, as a horse, or a house. The service consisting in the payment of a sum certain, in pursuance of a contract: for instance, a bill of exchange drawn on the defendant, and by him accepted.*
When the service demanded by the demand-papers, at the charge of a defendant, is graduable, the pursuer will individualize the degree which is the subject-matter of his demand; that is to say, in case of compensation-money for a wrong the precise sum which he consents to accept.
After examining him as to the grounds or reasons on which the fixation thus made of the sum is grounded, the judge will either attach his provisional assent to that fixation, or make such other fixation as to him shall seem meet; which done, the sum so provisionally fixed upon will be the sum stated in his compliance or defence-requiring mandate, as the sum which will be exacted of the defendant, in case of non-compliance, coupled with non-response.
Generally speaking, if the judge sees reason for substituting a fixation of his own to the fixation made by the pursuer, the sum fixed upon by the judge will be less than the sum fixed upon by the pursuer; and in the ordinary state of things, such lesser sum will, by reason of the self-preference inherent in human nature, be the sum fixed upon by the judge. But what may happen is, that in addition to the grounds for increase which have presented themselves to the views of the party, others may have presented themselves to the more experienced eye of the judge; in so far as this is the case, he will present them to the view of the pursuer, giving him at the same time the liberty of substituting the increased sum thence resulting, to the sum originally fixed upon as the sum demanded.
Suits expeditable and continuous: continuous, essentially continuous, and accidentally continuous.
By expeditable, understand capable of being terminated, so far as depends upon the issuing of the ultimate decree, and consequent imperative execution-ordering mandate, terminated on the day next to that of the admission of an applicant, in the character of pursuer, or say demandant.
All factitious delay being injustice while it lasts, all suits are, under the greatest happiness-principle presumed to be expeditable in the above sense; that is to say, that in every instance for the justification of the correspondent delay—of the delay occasioned by their being not expedited, some special reason will require to be given.
By a continuous suit, understand every suit which is not as above expeditable, and expedited; or say non-expeditable suit.
A suit to which it happens to have been a non-expedited suit, has been rendered so either by its own nature, or by accidental circumstances, with which a suit of any sort naturally expeditable, is not so liable to be attended.
Every suit which is complex is, according to the degree of its complexity, capable of being continuous in its own nature. For the modes of complexity, see Scotch Reform, Delay and Complication Tables, Vol. V.
When, for the purpose of the suit, money or money’s worth requires to be either colected or distributed, or both collected and distributed—collected from various persons—distributed among various persons,—such suit cannot fail to be in a greater or less degree continuous.
Every such collection and distribution suit supposes a trust, created for the purpose: a person constituted a trustee for the purpose of transferring the subject-matter of the suit to an intended benefitee, or aggregate of intended benefitees.
The original trustee will in this, as in all cases, be the legislature: but for the purpose of the fulfilment of the trust, giving effect to the benefit intended by the creation of the trust, the legislature may either locate, or endeavour to locate the trustee, by its own immediate and single authority, or by the intervention of some person or persons appointed by it for the purpose. This person or persons are either a person or persons at large, or the judge: when it is the judge, application must of necessity be made to him for that purpose. Call it a trust-demanding, or trusteeship-demanding application.
Of trusts created, and accordingly trustees located, or say constituted, examples are the following:—
1. In contemplation of insolvency, a person in whose apprehension the amount of his assets (including money in hand, and credits or any debts due to him) fails of being equal to the amount of his debts—that is to say, the money due from him—locates the aggregate of his assets in the hands of a trustee or trustees, to the intent, that after, or during the reduction of the whole to the shape of an aggregate sum of money, distribution of such aggregate sum of money may be made among his creditors, each receiving the same proportion of the debt due to him.
Here may be seen in this case—1. Trustor, the apprehended insolvent; 2. Trustee or trustees, the person into whose possession the money in hand, and the power of collecting the money not in hand, is transferred; 3. Intended benefitees, the creditors. Use of this disposition, putting it out of the power of the apprehended insolvent to transfer to any creditor more or less than that which is regarded as his proportionate and due share as above.
2. Of the proprietor of a mixed stock of property, the decease takes place: to some person or persons, one or more, the greatest happiness-principle manifestly requires that transfer shall be made of it. If (in virtue of an appropriate disposition of the law) by the deceased himself, appointment of this or these post-obituary successor or successors has been made in a will, he or they are in that case, in the language of English law, termed executor or executors. In default of such appointment of an executor, the law has, by enactments of its own, appointed the trustee or trustees for this purpose: say in that same language, an administrator or administrators.
But should the law be so worded, or the parties in question so circumstanced, that persons more than one, to the exclusion of others, demand to be received as administrator or administrators, or no person is willing to act in that capacity, and for that purpose to take upon himself the burthen of the trust,—in that case it will rest with the judge to make the appointment; and the question, who shall be the trustee or trustees so appointed, will be the subject-matter of the suit.
Note, that in case no person should be desirous, and thence no person applying, the nature of the case requires that on some person or persons, the obligation of taking upon himself, and giving execution to the power in question, must be imposed; for what is continually happening is, that among the persons by whom the vacant mass of property may come to be shared, are those who are neither fit nor able to give execution to such powers of themselves.
Suits at large, and distributive-demanding, or say, distributive-seeking suits: into these two sections may the aggregate, composed of non-inculpative suits, be divided.
By a distributive-seeking suit, understand a suit, in and by which the benefit sought to be obtained is an aliquot part of a mass of property of whatsoever kind; that is to say, whether it be a portion of the subject-matter or subject-matters themselves, or say the effects, as in common usage; or a portion of the value of them as determined by sale.
In every such case, for the giving effect to the suit, two decrees will be requisite: one by which commencement is given to the aggregate operation of distribution: the other, by which termination is given to the aggregate operation demanded; that is to say, the distribution of the effects.
Exceptions excepted, of the aggregate which is the subject-matter of the distribution, the composition may be infinitely diversified. For the different modifications, of which the subject-matter of property, that is to say, of proprietary rights and powers is susceptible, see Non-penal Code, Proprietary Rights, their modifications.
Occurrences by which, on the part of the proprietor, the need of demand for distribution is, or is capable of being produced, are the following:—
1. Death of the proprietor.
2. Insanity—relative insanity—on the part of the proprietor.
3. Latentcy of the proprietor.
4. Insolvency at large, on the part of the proprietor.
5. Insolvency on the part of the proprietor in the case in which it is termed bankruptcy.
In the case of the death of the proprietor, the title of the demand for the distribution may have either of two efficient causes:—
1. Testamentary disposition made by the deceased, with the concurrence of the legislature.
2. Disposition made by the legislature, in so far as such disposition has failed of having been made by the deceased.
In each of these several cases, two distinguishable services, the one succeeding the other, are demanded at the hands of the judge: the one the initiative, the other the consummative.
Of the initiative service, performance is made by conferring on some person or persons, in so far as is requisite for the purpose, right and powers the same as were possessed by the proprietor in question at the moment of the happening of the occurrence. The purpose of this transfer being the conferring of the benefit in question on some person or persons other than him or them into whose possession the subject-matter in question is to be made to pass,—the consequence is, that such person or persons are, in respect of the obligation conferred on him or them, a trustee or trustees. A trust is created, in respect of which the legislature is trustor or trust founder: such new possessor or possessors, trustee or trustees: all persons by whom it is intended that aliquot parts of the aggregate subject-matter of distribution shall be received, are intended benefitees.
This case is of the number of those in which the interessees, other than parties, are capable of having place, and on either side, or on both sides of the suit.
This species of suit is of the number of those which may be styled complex: sources of complexity essential to the case are the following:—
1. The subject-matter of the property in question, and thence of the suit.
3. Parties admitted on the pursuer’s side.
4. Parties admitted on the defendant’s side.
Several Suits against the same person, how combinable.
Whatsoever be the number of demands which a pursuer has against a defendant, if there be but one pursuer and one defendant, they may be carried on together; and so they ought to be, if either in respect of the direct, or in respect of the collateral ends of justice, any preponderate advantage be by such conjunction gained.
In the hitherto current practice, such conjunction has everywhere had place in sundry cases; to wit, in every instance in which demands in any number are customarily included under one and the same name.
Such complexity may have place on one side only, or on both sides: on the part of the pursuer only, or on the part of the pursuer and that of the defendant likewise.
Advantages from this conjunction, when it takes place on the pursuer’s side alone, are as follows.
I. Advantage to the pursuer:—
He may obtain at once the security sufficient for the eventual obtainment of satisfaction in respect of all of them: whereas, if admitted to adduce them no otherwise than successively, the result might be, that after obtaining adequate security in respect of the first, security in respect of all the rest might vanish and be lost.
II. Advantage to the defendant:—
1. By his learning and viewing at once the whole extent of his responsibility, his mind might, in so far, to wit, as against all demands from that individual, be comparatively at ease: he would see in its whole extent, the burthen capable of being imposed on him—the burthen, for his exoneration from which he would have to provide.
2. In case of cross demands, the defendant would have no more to do than to pay or perform the difference, instead of paying or performing the whole in the first instance: with respect to which he might perhaps be unable; and if able, subject to the accident of not being able to obtain the effect of his demand against the pursuer.
III. Advantage mutual to both parties:—
The same attendance, thence the same journey from home to the judicatory, might serve; and would serve for any number of demands and cross demands.
IV. Advantage to third persons:—
In the same manner as in the attendance of the parties, a single attendance on the part of witnesses, might serve, instead of two or more attendances. So in the situation of missionary judicial functionary, a single act of accersition or prehension, personal or real, instead of two or more.
But be the number of distinguishable demands thus conjoinable with advantage ever so small, or ever so great, they should not the less be kept distinct, and characterized each by its generic and specific name, with indication added of the evidences from which they respectively receive their support.
Advantages from the distinctness of description are as follows:—
1. On the part of all persons concerned—to wit, parties, assistants, judge, and registrar—clearness in the conception entertained of the several demands, with their grounds in respect of law and fact, would thus be maximized.
2. In regard to probation, whatsoever order turned out, upon inquiry, to be best adapted to the ends of justice, direct and collateral, might, and naturally would be, given to the several masses of evidence, and in case of need, to the several masses of argumentation.
3. In divers cases, the grounds of demand in point of law capable of applying to the same fact, are so nearly contiguous as to be difficulty distinguishable, especially by a pursuer, antecedently to judical examination. For these cases, provision has been made in Ch. XII. § 5, Pursuer’s Initiatory Application Demand how amendable: according to the evidence, for placing the demand, and consequent execution, upon a different footing from that originally alleged.
By the here proposed unlimited conjunction of demands, facility may, on various occasions, be given to such law-allegation-amendments.
Common-law and equity suits,—imaginary, their distinction.
To every one who will suffer himself to think, and who in thinking will consider the system of procedure as a means to an end, and that end the giving execution and effect to the substantive branch of the law to which it is an appendage, it will be sufficiently evident that the distinction between common law and equity is purely arbitrary and imaginary. Common-law procedure, in so far as it is anything better than a system of depredation and oppression, has for its several ends the giving execution and effect to the substantive branch of the law: of equity, if it be anything better than a system of depredation and oppression, the same may be said. Common-law procedure has for its subordinate object the elicitation of the facts which, if proved, the pursuer relies on, as constituting his right or title to the service demanded by him at the hands of the judge, as promised to him by the article of law, which the demand takes for its ground.
Equally true is this, when predicated of equity instead of common law.
This distinction, then, has nothing in it that is natural, nothing that belongs in common to man at large, or so much as to civilized men anywhere: what it is the result of, is altogether peculiar to British soil, and British practice. Originally it was a conflict, latterly a compromise, between two contending powers—the one called spiritual, in contradistinction to the other called temporal—the former having for its sanction that which bears the name of the religious.
So much for the origin. As to the effect, the broad line of distinction is that between what is transient and what is continuous; a distinction in the political nosology, analogous to that between acute and chronical in the natural nosology.
In a case of which the common-law judicatories take cognizance, there is but one demand either altogether simple, or in but a comparatively slight degree complex; in a case where the judicatories called equity courts take cognizance, the subject-matter of demand is to an indefinite degree complex: the common-law mode of procedure did not in its origin comprise, and does not at this time comprise power adequate to the affording satisfaction to the demand.
A case of account may serve for example.
By an account suit, understand any suit on the occasion and in the course of which cognizance is taken of demands more than one, on both sides or on either side, originating respectively from efficient causes of right or titles, more than one.
Whatever be the cause or causes of it, it is desirable that to all suffering on both sides, or on either side, from whatsoever cause originating, a termination should be put as soon as possible. Interest reipublicæ (says the Roman maxim) ut sit finis litum: still more strongly and manifestly is it the interest of the individuals concerned.
Accordingly, on what occasion soever a party on each side is come into the presence of the judge, before their departure he will take the requisite course for ascertaining whether between them any, and if any, what causes of disagreement have place: any cause or causes of complaint on either side at the charge of the other: complaint of any such wrong, for which it is in the power of the judicial authority to apply a remedy.
Suits summary and chronical..
By a summary suit, understand a suit dispatched at the end of the smallest length of time: by a chronical suit, a suit dispatched at the end of any greater length of time.
Considered as descriptive of the sort of suit, the only difference between a summary and a chronical suit is—that whereas a summary suit may be dispatched at the end of the smallest length, a chronical suit cannot be dispatched till at the end of a greater length of time.
A suit of any sort may last for any the greatest length of time; the absence of a necessary witness, or piece of real or written evidence, suffices to produce this effect.
Generally speaking, a suit will be likely to be the more lengthy the more complex it is. But some modes of complexity may be apt to produce greater lengthiness than others.
The case in which the length of the suit is at its minimum, is when on the initiatory application it is dismissed.
Of a suit which is not terminated by dismissal at the end of the initiatory application, the least duration is that which commences with the commencement of the initiatory application, and terminates with the termination of the first mutual meeting.
Where the pursuer is permitted, and the defendant required to attend in person, by far the greatest number of suits are actually thus summary.
Such, then, ought to be considered as the standard duration: in such sort, that for any greater duration some special cause should be looked for, and required to be assigned.
When the parties are both or either of them in the judge’s chamber, in presence of each other, of the judge and of the auditors, every such case is provisionally presumed to be a summary case: if adjournment be made of it to another ordinary sitting, or an appointed sitting, it must be because at such first sitting the evidence is not in such a state, that upon the ground of it an apt decision can be pronounced.
Quasi suits, or say incompletely organized suits.
Of the actors capable of being employed with advantage in the judicial drama, a list has been given in the Constitutional Code.
Without the idea of those characters at the least, the idea of a judicial drama, in any of its ordinary forms, cannot be so much as conceived. These are,—
1. A person by whom the demand is made: call him a pursuer.
2. A person at whose charge the demand is made: call him a proposed defendant.*
3. The person to whom the demand is addressed, and at whose hands the service necessary for the accomplishment of it is demanded: call him the judge.
The idea of a completely composed, or constituted suit, being thus established, a description is now capable of being given of two species of incompletely constituted suits:—
I. Incompletely constituted suit the first:—
Parties,—judge and proposed defendant. Wanting, or as grammarians say, caret, a distinct pursuer. In the person of the judge, the functions of judge and pursuer are united.
Exemplifications of this sort of things are—
1. In English practice—on the adjustment of accounts in non-penal cases—an audit court. Defendant the accountant. Here no demand is made, but the accountant being confessedly a debtor, he is called upon to exhibit evidence, the effect of which, if credited, will be in each instance to exonerate him from the obligation of paying the money in question in the character of a debtor.
2. In German practice, in a certain class of penal cases, there is an entire branch of procedure distinguished by the appellation of inquisitional or inquisitorial: defendant, or proposed defendant, in this case the inquisitor: such is the appellation by which he is distinguished. In the opposite case, accusatorial is the name given to the mode of procedure.
3. In Spain, this species of judicatory, if at all employed, has been seldom heard of, but as applied to that branch of penal suits which applies to offences affecting religion.
II. Incompletely constituted suit the second: Parties, 1. A pursuer; 2. The judge; caret the defendant. By the judge, in conjunction with his own, this part is also acted.
In English practice, the species of judicature called a court of claims.
[* ][Non-penal.] Civil, why, though customary, not here employed? Answer: It is ambiguous, meaning non-penal, non-military, non-ecclesiastical, or non-canon.
[* ]Ex. gr. of husband, wife, or child, of such a one.
[* ]The expression is ambiguous: preferable appellation, sanctioned or confirmed. Acceptance presents, in the character of acceptor, not the individual drawn upon, but the individual by whom the promise is accepted as an equivalent for performance, by payment.
[* ]By giving to a person, at whose charge a demand is made, the appellation of defendant, much confusion is produced: much confusion, and moreover, much oppression and injustice. Can it be otherwise, when a person, who is utterly unable to defend himself, is spoken of, and accordingly dealt with, as if he were actually defending himself?