date

[...?] Dec r 1806 Scotch Reform To
[...?] Dec r 1806

Scotch Reform To L d Grenville

Lett.3

Resolution 5

Pleading

Next, my Lord, I observe a Resolution, (5) on the subject of Pleading - "In all causes" (whether originally "brought before the Lord Ordinary, or before the Chambers as Inner House causes) the defender shall, in his defence, distinctly admitt or deny all rational facts ahhedged in the summons or other Writ by which the cause is brought into Court."

In reading /the perusal of/ this Clause, unless otherwise explained by verbal /ulterior[?]/ communication, your Lordship will naturally have placed it along with the rest upon the list of innovations. If so your Lordship may possibly /perhaps/ share in the surprize with which I was struck on reading a clause in one unrepealed[?] Act of Siderent[?] (11 August 1787 '.5.) in these words - "When the Defendant receives the summons, he shall therewith return upon a separate paper, his whole defences both dilatory and peremptory, relating the facts he is to insist upon, and explicitly admitting or denying the several facts set forth in the pursuer's libel."

Summons or other Writ is the word employed in the Resolution: in the Act of Sidernet[?], Summons at the [...?], libel at the close of the sentence. The libel is it the same Writ with the summons, though under another name? is it a different Writ? /The libel is included in the [...?] - [...?] Bill [...?/ be it the same or different, to the present purposes it makes no difference: for if they be differnet, wjen the case[?] comes to be returned, the other, inasmuch as it is at that same time to be answered, must already have been received.
Similar Items
  • Title: [[...?] Dec r 1806 Scotch Reform To]
    Description: [...?] Dec r 1806

    Scotch Reform To L d 1806 + (1

    Resolut. 15

    Extracts

    Resolution 15 th: That all Extracts, in every Court, Superior and inferior, be abolished or diminished, as far as it shall be found possible; and that for the execution of any decree of appealing therefrom, it shall in all Cases be sufficient that there be an Exemplification, signed by the Clerk of Court, containing the Summons, Petition, or other Writ by which the Cause was brought into Court, together with the Defence, and the different Interlocutors, and final Judgement of the Court, with such other Parts of the Proceedings only as it may be found indispensably necessary to include in such Exemplification

    To the principlee of this resolution considered as declaration of in general terms of the [...?] of the House of Lords for the abolition of the extortion practised on this ground there can be nothing to be said but in the way of eulogy /applause and gratitude/: of the degree of efficiency likely /intended/ to be given to it by the local operators, suspicious persons themselves are presented even upon the face of it.

    Extraction of the deceit, my Lord, it may or may not have fallen in your Lordships way to observe is from an [...?] of the French School: It /the practise which is as much as to say the extortion/ sprang up in the original Roman School: it swelled like an avalanche in its passage from Rome to Edinburgh by way of /viâ/ Paris. In France The power of adding distress to distress, at the will of the practicers[?], under the notice of administering justice, was, we all know /as every body knows/ an object of public sale: for extorting the money /matter of extortion/ out of the pockets of the suitor, French Judges, like /as well as/ English and Scotch had many engines /[...?]-[...?]/ but this was the most productive.
  • Title: [Dec r 1806 4 Resolution 5]
    Description: Dec r 1806

    4

    Resolution 5

    Pleading

    As to the drift of this Resolution, so far as I can hope to reach it by conjecture, what it aims at /expresses/, or rather the [...?] it hints at, is, by way of a preference[?] to English Juries, the introduction of English Pleading. If so, I fear or rather I hope, it stands [...?] to remain for som etime longer in the limbos of infant and abortive projects.

    Was not this the aim, (which however to a certainty it could not have been on the original enactment in 1787) to what end [...?] to force a defendant into a distinct admittance or denial of the plaintiffs alledged facts. Whatever is not denied may it not safely be taken for confession? Is not this the conclusion drawn naturally and of course? does it require an express regulation to authorise and require the drawing of it?
  • Title: [24[?] Dec r 1806 Scotch Reform To]
    Description: 24[?] Dec r 1806

    Scotch Reform To L d Grenville

    2

    Resolution 5

    Pleading

    Here there is a regulation established by an Act of Siderent[?] established already in 1787: now in 1806 comes a proposition for establishing the same thing over again by Act of Parliament.

    Here is /stands/ a [...?] fragment with reflections, and not much less so with doubts.

    The regulation has it been acted upon? then why in a system of reform introduce and re-enact the regulation, and this alone, to the exclusion of so many hundreds of others that also have been acted upon these few times alone out of the contents of a vast folio volume.

    Has it been consigned to neglect? - Then what security will the proposed re-enactment afford of itself against the regulations sharing the same fate a second time as it did the first.

    Is it that their Lordships were in the habit of making regulations, and [...?], without repeating them, or saying in point a syllable about them, making them in practice as waste paper? Yes, my Lord, they are. Practice swarms[?] with instances: to collect them all would be too heavy /severe/ a task: but to prove it to your Lordship that what is here said is not without ground, a few references in the margin are subjoined: and even were these all, the points they include /embrace/ are such as can not but present themselves as swarms[?] in every days practice.