date

30 Dec r 1806 Scotch Reform
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.
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  • Title: [29 Dec r 1806 Scotch Reform]
    Description: 29 Dec r 1806

    Scotch Reform

    To L d Grenville

    Omissa

    3. Pleadings

    Besides action reported criminal, the defence of not guilty applies in common to those actions or demands each of very wide extent. Trespass, Trove and Ejectment. Trespass (transgression), is [...?...?] giving no information at all (for are we not all transgressers?). Troves giving information which is almost always false - Ejectment, giving information which is commonly false, and amounts to nothing when it happens to be true: trespass for all its sorts of purposes not included in the other denominations: Troves for the purpose of trying title to things moveable: Ejectment for the purpose of trying title to things immoveable.

    Add to these [...?] facit[?] vextum[?] he committed no such waste[?] - made /[...?]/ a distinct sort of General Issue from not guilty - as if there were no guilt in committing waste: and[?] not[?] [...?] - and not[?] [...?] - he committed no such wrong - he committed no such [...?]: as if there were no guilt in committing wrong of any sort or at least of that sort; and as if the guilt which there was in turning a man out of an estate which should have been his for a limited number of years, and[?] as soon as the number of such years swelled to such a degree /beyond all limits/ as to be [...?]: for such is the difference between ejectment and [...?], in so far as confusion so thick can be [...?] in /receive clearness from/ so few words.

    These are all the General Issues in Gilbert (on evidence) and even[?] there are more than are in use.
  • Title: [1 May 1808 J.B. to H of Commons]
    Description: 1 May 1808

    J.B. to H of Commons

    I. Reasons for the Work

    English pleading inapplicable to Scotland

    II. Defence

    18. The information furnished on the plaintiff's side being thus sparing of instruction, that which is furnished on the Defendant's side can not easily be more abundant. He who gives so little, and most of that little, false, has not much title to complain, though he should receive nothing in return.

    19. In general in 19 /49/ instances perhaps out of 20 /50/ after the first link in the chain of pleading, viz. the instrument of demand called the Declaration, the chain of pleadings has but one other, viz the instrument of defence, called the plea: and wherever this number is thus limited, the plea is said to be a general plea, and in pleading it the defendant is said to have pleaded the general issue: having pleaded that sort of plea, the effect of which is to bring the altercation to an issue ( exitus) i. e. to conclusion, earlier than any other would do.

    20. In contradistinction to the less usual sort of pleas, called special pleas, what the number is, of the pleas distinguished by the appellation general pleas, is a question to which no one has undertaken to give an answer.

    21. General pleas in frequent use - there are but four: 1. Not guilty: 2. Non-assumpsit. 3. Nil debit 4. Non est factum: among which four, the use of the two last is, again, unfrequent in comparison of the two others.

    22. In no one of all these instances does the sense put by lawyers upon the allegation on this occasion bear any tolerable resemblance to the sense that would be put upon the same expressions on any other occasion, by lawyers themselves any more than by any body else.
  • Title: [1 May 1808 I. Reasons for the Work]
    Description: 1 May 1808

    I. Reasons for the Work

    English pleadings inapplicable to Scotland

    Papers of Particulars

    Within the half century or thereabouts, the unconduciveness of the established system of pleading to the professed purpose {viz. conveying serviceable information and that information true} - its conduciveness to the purpose of withholding serviceable information, and giving false and fallacious in the room of it, and thus, by the maintenance of uncertainty, nursing[?] litigation, has been, in the instance of some species of demands, recognized. But under the technical system of the man of law, under the influence of a fee-gathering principle, when the existence of a burthen is recognized it is seldom for the purpose of subtracting, it is ever for the purpose of adding to the weight of it.

    To the pre-established system of altercation by instruments of demand in the form of declarations and instruments of defence, in the form of pleas of the general issue, neither giving any thing better than darkness little mended by a mixture of false lights, papers of particulars have been added.

    But by these papers of particulars, just so much delay, vexation and expence with the sweets of lawyer's profit in the belly of it, have been added to the mass which they found already established. By either of the courses above suggested, that mass might in a great measure be removed.