date

22 April 1808 Reasons for the Work
22 April 1808

Reasons for the Work

In brief, in any instrument of demand the plaintiff's right to the service therein and thereby demanded at the charge of the defendant at the hands of the Judge is not sufficiently established, even supposing the allegations therein contained to be true, in fact, as well as warranted by the power of the law, unless, unless along with an allegation of the existence of some one at least of the events or states of things to which the law has given the effect of collative or investitive events or states of things with reference to that right in favour of an individual so circumstanced as the plaintiff is, it contains an allegation of the non-existence of all such events or states of things, to which the law has given the effect of ablative or divestitive events or states of things with reference to that same right.

If this be so a portion of law (substantive law) is never compleatly and sufficiently designated and expressed, unless to whatever events and state of things it establishes in the character of collative events with relation to any right it subjoins, either at length under that same head or division of the [...?], or by reference to some other head or division, a designation of all such events or states of things to which the law has given the effect of ablative events or states of things with reference to that same right.

So, as to any instrument of demand grounded on such portion of substantive law. No[?] such instrument of demand is in no case sufficient and compleat, unless along with the individual demand which, together with the grounds thereof it exhibits, it contains a designation of all such grounds of defence as, by possibility, have application to any such demand: not only the existence of some determinate ground of demand being therein asserted, but the sure[?] existence of whatever grounds of defence might, had they existed, have been applicable to it.
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  • Title: [28 April 1808 §.4. I. Reasons]
    Description: 28 April 1808

    §.4.

    I. Reasons for the Work

    §.4. Demand the sole instrument

    3. True it is, that forasmuch as it may happen to the effect of the collative incident or state of things of which the positive part of the demandants efficient cause of right is composed, to be defeated by the existence of some ablative event, so may it to the effect of such ablative incident or state of things, to be defeated by some other incident or state of things, the effect of which on that account may with relation to the collative or investitive incident in question be termed re-investitive: and so on indefinitely, through a chain of opposite and alternating incidents of any length.

    4. But of such reinvestitive incident the possible existence, as it might be, so it ought to be, foreseen and provided for in and by the instrument of demand, and the designation of it subjoined to the designation of the ablative incident to which it applies: the ablative incident (it may be said) has not had place unless accompanied or followed by the reinvestive incident by which the ablative effect of it is destroyed.

    5. In fact, whether in the case supposed, any separate mention need be made of any distant incident in the character of a re-investitive incident, will frequently depend upon the structure of the language, and upon the words employed accordingly for the designation of the collative incident, so that according to the mode of designation pursued, the re-investitive incident may either be brought forward in the first instance, or kept back till the ablative incident makes its appearance, and then subjoined to it, and as it were placed behind it.
  • Title: [28 April 1808 §.4. I. Reasons]
    Description: 28 April 1808

    §.4.

    I. Reasons for the Work

    §.4. demand the sole instrument

    §.4. The instrument of demand is the only one that requires details: of the instrument of defence the substance being contained in the instrument of demand: and no ulterior instruments necessary.

    1. If, in the instrument of demand, be contained, as they might be and ought to be, all possible official causes of defence - i.e. all that the law admitts of, there remains nothing more for the defendant than to affirm the existence of some one or more of the efficient causes of defence (events or states of things having an ablative effect with relation to the demandant's supposed right) the existence of which has been disaffirmed in and by the instrument of demand. But by being disaffirmed, they have already been designated. Thus whatsoever matter is capable of being inserted with propriety into the instrument of defence, is already contained in the instrument of demand: with no other difference than what algebraists would call that of the sign: the sign being in the instrument of demand, negative; in the instrument of defence, positive.

    {And so vice versâ. For the defence may consist either in the affirmance of an ablative incident disaffirmed by the demandant, or in the disaffirmance of the collative incident affirmed by him.}

    2. This being the case, all use and place for any ulterior instrument of allegation may be seen to stand excluded. For when the instrument of defence has been produced, a proposition or a string of propositions has been brought to view, as being the subject of unqualified affirmance on the one part, of unqualified disaffirmance on the other: i.e. (to use a phrase which, though bred in the technical part, has become current in the main body of the language -) the parties are already at issue.
  • Title: [22 April 1808 J.B. to H. of Commons]
    Description: 22 April 1808

    J.B. to H. of Commons

    Reasons for the Work

    The demand is incompleat unless it staes ground of demand in[?] [...?] [...?] the service demanded, grounds of demand or right viz. existence of some collative event, non-existence it its ablative one.

    Universally then, be the sort of right what it may, under Statute law every man is, at any given point of time, in possession of such right, in whose favour an event, or state of things, has antecedently to that point of time taken place, to which such portion of law has given the effect of conferring on him that right, and which, neither at that same point of time nor at any subsequent point of time, has any event or state of things had place, to which the same or any other portion of law has had the effect of divesting him of that same right.

    A benefit of any kind can not, in the shape of a right, be conferred on any person, in the character of a plaintiff or demandant, but a correspondent burthen, in the shape of an obligation, must at the same time be imposed upon at least one other person, viz. in the case of a suit at law, in the character of a defendant.

    Accordingly To warrant the Judge, therefore, in acceding to any such juridicial demand, it is not sufficient to him to know what that demand is - what the service is which is thus demanded at his hands; it is necessary also that he understand what are the grounds of that demand: and to be satisfied that such demand is properly and sufficiently grounded in point of fact, as well as in point of law: and accordingly that, in favour of the individual appearing in the character of plaintiff, or in favour of a class of persons of which the individual plaintiff is one, an individual event or state of things to which in favour of such individual or such class the portion of law referred to has given the effect of a collative event, or state of things with reference to the species of right in question, has taken place, since which no individual event or state of things has taken place, in which that same, or any other portion of law, has given the effect of an ablative or divestitive event or state of things with relation to that same right.