date

11 Feb y 1808 Homologation necessary
11 Feb y 1808

Homologation necessary

If it were possible to introduce into the Scottish judicatories the English forms of pleading the system of Scottish procedure might thereby be made to receive Jury Trial with its utilities and inconveniences exemplified in English practice, and at this same time this substantive branch of the law /rule of action/ might receive that imperfect degree of determinateness which by means of those forms it has acquired under English Law: and thus from its present barbarous /imperfect/ and abject state, it might be raised into the somewhat less imperfect and abject state, possessed by English Law.

Happily for Scotland this minute advance in the career of improvement is impossible. Two circumstances may be distinguished, either of them sufficient to render it so.

One is that the portion /in respect/ of substantive law involved as above in the English forms of pleading, is in a multitude of points altogether different from the correspondent portion of Scotch law: in many points inferior, in many others /in reasonableness and utility/ different without being superior.
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  • Title: [11 Feb y 1808 Scotch Reform]
    Description: 11 Feb y 1808

    Scotch Reform

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    on L d Eldon's Bill

    1. Homologation Necessary

    Pleading [...?]

    Reasons why Jury Trial in [...?] can not be introduced into Scottish procedure to good advantage without the previous homologation of the substantive part or main boy /branch/ of the Law.

    In English procedure, the use and Utility of Jury Trial in civile depends principally upon a connection it has with the forms of pleading: and in particular in so far as concerns general officer[?] - pleading the general office - and the general species or forms of action to which they have reference.

    By the species of actions, the demands [...?] are expressed and distinguished: by the general offices respectively applicable to these actions, [...?] the defences.

    Both indeed in the most wretchedly imperfect and incongruous manner: but being in a considerable degree, and in such manner as to cover the most common subjects of litigation, settled by lay practice, they serve for carrying in the business in the less imperfect mode in which in which it is carried in under English law.
  • Title: [11 Feb y 1808 Homologation necessary]
    Description: 11 Feb y 1808

    Homologation necessary

     Speak as to the mode by directing[?] Offices

    But though it is not possible for Scotland to import /derive/ a set of forms of pleading impure and putilated[?] /corrupt/ source, nor therefore to obtain by inference and fiction a correspondent portion of substantive law in the state of jurisprudential law, what is altogether possible is that it should receive a set of forms of pleading with a /the/ correspondent portion of substantive law in the order and in the state prescribed by utility and common sense: viz. in the first place a portion of substantive law in /to/ the requisite extent, and thereupon in the next place, a set of forms of pleading deduced from /correspondent to/, and moulded upon, that portion of substantive law: in the first place the rule of action, the law itself; and then a set of instruments expressive of the mode, in the several measures[?] of life, to the extent of the portion of the field of law covered by such portions of substantive law, the execution of the commands expressed by that portion of substantive law, the fulfilment of the engagement taken by it, may[?] /shall/ be demanded.
  • Title: [11 Feb y 1808 Homologation necessary]
    Description: 11 Feb y 1808

    Homologation necessary

    As The system of pleading at present in case under English law, constitutes a part of the regular that is the technical and dilatory system of procedure, to an English lawyer it would naturally seem of course that the application of any thing that could with propriety come under the denomination of a system of pleading would be attended as of necessity and of course with a mass of delay vexation and expence similar if not altogether equal to that which has place under that same technical system.

    But in truth a system of pleading, if properly constructed, and thence moulded upon: properly framed body of substantive law councils altogether as well with /is as compleatly adapted to/ the natural system of procedure as any system of pleading can possibly be to the technical. It stands in no degree dependent in any of those delays vexations and expences of which the technical system is composed.

    The parties being present in the face of each other and of the Judge, the /to enable the/ train[?] of pleading to have run out its length will require no greater length of time than to carry a suit for the same object through the forms of a Court of Natural Procedure such as are already on use - a /a Scotch/ Small debt Court or an English Court of Conscience.