Front Page Titles (by Subject) CHAPTER XVI.: SUITS—TERMINATION. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XVI.: SUITS—TERMINATION. - 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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When the suit is other than a distribution-demanding one, the times for the termination of every suit are two:—
1. When all the evidence which on both sides the nature of the individual case in question appears to have furnished, has been elicited; understand, in a form fitted for ultimate use.
2. When of this or that piece of relevant evidence, the existence of which is more or less probable, the obtainment is, in the opinion of the judge, physically or prudentially impracticable.
In the first case, the definitive decree will be absolute.
It will be so in the case of every one of the four species of suits following:—
2. Inculpative, but not criminative.
3. Criminative, and purely public.
4. Criminative, and publico-private.
Correspondent to the nature of the remedies to be granted,—and thence to the nature of the remedy, the application of which is the subject-matter of the ultimate service demanded by the suit,—will be the operations, the performance of which will be the subject-matter of the mandate by which the decree is expressed. As to these, see Penal Code, Part II. Remedies collectively.
In the other case it may, as in the opinion of the judge may seem most meet, be either absolute or conditional.
If absolute, and in favour of the pursuer’s side, it will by the imperative part of it, order execution and effect to be given to the correspondent portion of the substantive law.
If absolute, and in favour of the defendant’s side, it will, by the imperative branch of it, pronounce dismissal; dismissal, to wit, of the pursuer and his suit, inhibiting him from making any ulterior application to that same judicatory in respect of it.
In this case, provision is made for securing judicatories, and suitors in the character of proposed defendants, from vexation by unduly reiterated pursuit.
The decree being conditional, it may be so in either of two modes:—
1. In favour of the pursuer’s side, but reversible simply, or modifiable, in the event of the exhibition of this or that piece of evidence by which the pursuer’s right would be established, or the non-exhibition of this or that piece of evidence by which the existence of the alleged right of the pursuer would be disproved.
2. In favour of the defendant’s side, but simply reversible, or modifiable, in the event of the exhibition of this or that piece of evidence by which the pursuer’s title would be established, or the non-exhibition of this or that piece of evidence by which the existence of the alleged right of the pursuer would be disproved.
In both cases it will rest with the judge to determine, which of any collateral security shall be afforded by the party in favour of whom the conditional and defeasible decree is pronounced: in the event of the condition not being fulfilled, or being disfulfilled, as the case may be.
On this occasion, he will elicit in the way of evidence, and hear in the way of argumentation, what the party demanding such collateral security has to allege in support of such his demand; and what, if anything, the party opposing this demand has to allege in opposition to it.
If the suit be a distribution-demanding one, two decrees, to wit, an initiative and a consummative, have place.
By the initiative decree, the cause of inquiry, or say of examination, preparatory to the distribution, is determined to be entered upon.
By the consummative decree, the inquiry is declared to be terminated; and by the appropriative mandate, the distribution determined upon, as the result of the inquiry stands expressed.
Whenever a suit receives its termination, it is by a pair of decrees, the opinative and the recordative; with or without a third, the compensative: with reference to the two principal decrees, it is adjectitious or supplementary.
The opinative decree is either simple or mixed: simple, when in favour either solely of the pursuer’s, or solely of the defendant’s side, there being but one party on each side: mixed, if partly in favour of one side, partly in favour of the other; so likewise if there be any distinction made as between party and party on either or both sides.
When, either on the ground of law, or on the ground of fact, the pursuer fails to prove the justice of his demand to the effective service, which at the charge of the defendant he demands at the hands of the judge, through the means of his judicial service, the tenor of the opinative decree is—failure in the question of fact; failure in the question of law; or failure in the question of fact, and failure in the question of law.
Of the correspondent decree—the tenor in this case is, pursuer, your pursuit is dismissed—let it cease.
Tenor of the compensative decree: Pay to the defendant compensation-money [so much]: (if there be expense or vexation to any person in the character of defendant.) For delay of justice by useless occupation of judge’s time, pay to the helpless litigants fund [so much.]
Although, by the present supposition, the suit may and does receive, and is accordingly supposed to have received its termination in the course of the same hearing as that in which it was commenced;—in which case, what is done on the defendant’s side will have to be entered on the record, as well as what is done on the pursuer’s side;—yet on this occasion, for greater distinctness, it may be advisable not to exhibit anything of what will have been required to be done on the defendant’s side: reserving that for the case which will manifestly be by much the more ordinary case, namely, that in which nothing is done on the defendant’s side, until, in consequence of an appropriate mandate issued by the judge, he has paid his attendance at the judicatory before the judge: the pursuer, exceptions excepted, being present at the time.
Here then will follow the demand-paper, containing the entries that will require to be made on the part of the pursuer, he being the person, and only person, whose discourse it is considered as containing. Any portion of discourse, which in consequence of it may have to be made on the defendant’s side, as and for the discourse of a defendant, or a number of co-defendants, will be exhibited at the same time at which, in consequence of an appropriate mandate from the judge, the defendant or defendants in the more accustomed manner, at a subsequent stage of the suit, make their appearance on the scene.
Tenor of the terminative decree in this case:—
I. Opinative decree. The pursuer’s demand is well grounded—1. On the question of law; 2. So on the question of fact.
II. Mandative decree. Of this the tenor will vary according to the species of the case, and thence of the suit.
1. No wrong or quasi-wrong imputed to any defendant. Suit purely requisitive not inculpative; partition requisition.
Appropriate mandate:—Partition shall be begun, and under my direction made.
Pursuers one or more: defendants one or more: extraneous witnesses, none. Parties fully bound on both sides; judicial service demanded by the pursuer, granted. Opinative decree, pursuer’s demand, was adequately grounded on the question of law: so, adequately grounded on the question of fact. Mandative decree, by the issuing of which the judicial service is rendered, and the effective service commanded to be rendered to the defendant, expressible in the following examples:—
2. Cause of suit, say corporeal vexation, or the correspondent attempt, preparation, menace, or challenge. Mandative decree: compensation-ordering,—Pay [so much] in compensation.
3. Cause of suit, non-performance of contract: contract the most ordinary sort,—work done, goods furnished in expectation of value in money, expected on just and adequate grounds. Decree here again,—Pay [so much] in compensation.
4. Suit publico-private; cause of suit, theft: goods found on defendant—defendant immediately prehended and adduced by pursuer, confessing, or in vain denying: other witness none. Opinative decree, under question of fact, the goods taken by the defendant; under the question of law, taken under circumstances which make it theft. Mandative decree, under compensative part, Convict, restore the goods: under punitive part, Convict, submit to the appropriate punishment [naming it:] thereupon correspondent subsidiary punifactive mandate to the appropriate authorities.
By execution given to this punishment, correspondent service is rendered to the public at large, say a securative service.
In every one of the four sorts of suit, and in every individual of each sort, will be the option of employing either a mandate addressed to the individual at whose hands compliance is expected and called for; or a prehension mandate, addressed to a prehensor, and requiring prehension to be performed either on a person, or a thing, or on both, as the case may be.
Whether the need of prehension has place, cannot be determined with propriety by the mere consideration of the species of suit; that is to say, as to whether it belongs to one or another of the above-mentioned four species.
1. In the case of an individual suit belonging to the non-inculpative species, it may happen that the employment of this instrument, strong and drastic as it is, may be needful.
2. In the case of an individual suit belonging to the criminative species, whether it be the purely-public or the publico-private species, it may happen that the employment of this instrument of security may be needless: indeed, to by far the greatest part of the extent, it will be so.