date

30 Dec r 1806 Scotch Reform
30 Dec r 1806

Scotch Reform

To L d Grenville

Omissa

3. Pleadings

As to form, there are some demands that do admitt of form, those[?] that do not: susceptibility of form depends upon simplicity: when he story becomes in certain respects and to a certain degree complicated and diversified, no forms can be found that will hold it.

Happily the cases most susceptible of forms[?], were beyond comparison the cases of most frequent occurrence: for example most common modifications of debt (taking the word in the proper sense) the modifications expressed by the 7 or 8 courts usually put into the action Anglico-jargonici [...?...?].

The cases that /The cases which by their complication //[...?]/ seem to bid deference to forms are in comparison of the other cases of rare occurrence: as /take/ for example the Scotch action or petition of [...?] and sale: where a debtor having or lately demand having fallen [...?] or definitively or for the time into a state of insolvency, the aggregate mass of his property, and in particular the prudence of the unmovable part when sold, is claimed liable in a way to be claimed, by creditors applying in concert or coming in [...?] for the purpose.

In court of Bankruptcy, there is of insolvency on the part of a [...?] so declared, this action has its equivalent in the promisings under the Commission: in a case of one insolvency on the part of a non-tender who has property /an interest/ in immoveables in the shape of the sort of property called Anglico-jargonici real property, the business of payment is left to the operation of two maxims in pays vulgo[?] dect'[?] catch as catch can and the [...?] take the hindmost: the property being in some cases not allowed to be caught at all, in others only by [...?].
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    Description: 27 Dec r 1806

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    Facienda

    II. Registration

    Difference in the nature and importance of the heads calling for registration corresponding to the difference between species and species of cause. Demand for registration least diversified and extensive in the instance of the two sorts of causes that are beyond comparison of most frequent occurrence: demands among causes affecting /concerning/ property of many on the score of debts on the ordinary grounds such as goods sold and delivered, money lent &c: among causes affecting /concerning/ person, common assaults (among causes generally referred to the most highly or next most highly priced class prosecution for theft, or other modes /species/ of depredation /predation/ against strangers transgression with or without threats or violence commissible by strangers)

    Examples of basis on which the demand for registration is apt to be most diversified, most extensive and most important - causes concerning property in immoveables, and causes concerning condition in life, domestic or public. Condition of Husband, Wife Father, Son, Daughter Mother, Apprentice, Member of this or that Corporation - Occupant of this or that office, Civil, Military Ecclesiastical, Testamentary[?] Executor or other Trustee, and so forth. In these too may be some examples of the cases in which the interest is not apt to spread from the immediate parties to third persons, connected or not connected with the parties by any special tie.

    [...?] & sale[?] &c.
  • Title: [30 Dec r 1806 Scotch Reform]
    Description: 30 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    But in Scotland /Scotch procedure/, the use of forms has not extended to defences: not in regard to demands even[?] of the most simple class /description: and here at any rate the new /newly/ -projected or at least unnamed system of pleading would find itself at a loss /fault/.

    But when defences /instruments of defence/ are [...?] by forms - [...?] forms - I must not have[?] say uncircumducible[?] as evidence and if my [...?] of them be correct Scotch pleadings, apparently where they get into print, boil out and expatiate /spread themselves/ over the field of evidence. French Memoires used to do so: they contained the whole story that is on each side the whole story on that side, including according to the c;ass of the cause the already collected, or expected, or pretended to be expected evidence: all always under the benefit of the mendacity-licence: and in the Scotch cases and pleadings may be seen the legitimate offspring /natural children/ of the French Memoires.

    In English procedure, on the Common Law side, every thing capable of coming under the demonstration of evidence, is [...?] effectually excluded by the forms in use. In most cases /The cases of most frequent occurrence/ the defence is happily considered into that very concise form of expression called the General Issue. 1. Non assumpsit /he (better I) in [...?] made no such promises/: I [...?] entered into no such engagement. 2. Not debit. I owe nothing. 3. non est factum. I extracted no such instrument. 4. [...?] ad [...?]. He paid at the day: (capable without any impropriety of being included under he owed nothing). 5. non [...?] - he is not guilty.
  • Title: [30 Dec r 1806 Scotch Reform]
    Description: 30 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    What these /That which/ general assertions profess to do and are said to do, but do not, is - giving information capable of being of use to him[?] (the [...?]) for which use they are pretended to be designed - information enabling him to make if he happens to have a legal and true defence, sufficient preparation for that defence. That which they do, and which unquestionably has its use is - the putting an end to the choice[?] of useless /unnecessary/ altercation, which goes on alone for want of a form of General Issue deemed apposite, the succession of alternate instruments goes on to the length and [...?] - the name and character of the special pleading: snaps off the chain just as Get about your business - or any of he still coarser formularies in vulgar use for breaching of inference[?] might have done instead of it.

    As for not guilty in the most comprehensive /extensive/ species of General Issue in defence - that which covers demand to a greater extent than all the others put together - applied to the action of trespass it does not except in so far as the declaration in trespass may happen to contain true and intelligible information, convey any information whatsoever: applied to Troves it is out of the power of it to convey any true and intelligible information, unless perhaps it be the designation of the individual thing claimed: applied to Ejectment it is out of the power of it to convey even that [...?] and imperfect scrap of information - even that not being conveyed by the declaration in ejectment.