date

24 April 1808 Reasons for the Work
24 April 1808

Reasons for the Work

Imperfections attached to the system of pleading, in the case where the rule of action has been constructed under the dimension of jurisprudential law -

1. In the instrument of demand ought, as above observed, to be in every case included not only a precise designation of the demand itself i.e. of the service demanded at the hands of the Judge, but also a designation of the ground of the demand in point of right: viz. of the matter of fact relied on in the character of a collative event, an efficient cause of the right; and of the portion of law relied on as having invested it with that character.

In respect of this compleatness and correctness the following imperfections are observable, each to a greater or less extent.

1. Of the service demanded no sufficiently clear designation given: viz. matters[?] for the use of the defendant, that he may know whether to make defence or no, and if yes, what defence: nor for the use of the Judge, that he may know what precise shape to give to the service demanded at his hands. a

2. Of the ground of demand, i.e. the efficient cause of the right demanded - {if the inconsummate right the consummation of which is demanded, is of the right to call for the consummation of it,} no sufficiently correct or no compleat designation given. (b)

3. Of the service demanded a designation notoriously false is regularly given: (c) and thus, without necessity, or so much as the smallest use, a sanction and currency is given to the notion that falshood, the deadly [...?] is the necessary food of justice: as if it were impossible that judicature should be administered, or at least well administered, but upon false pretences.

4. So of the efficient cause of right or title (d)

(a)

(b)

(c)

(d)
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    §.3. Demand includes Defence

    §.2. In the instrument of demand ought to be included, viz. in the way of designation, a designation of all possible grounds or efficient causes of defence.

    1. To the service demanded at the charge of the Defendant the demandant (as per §.1. art. 10) can not have a just right, unless to his supposed right to such service there be a sufficient, and thence a compleat efficient cause. But (per §.1. art. │ │) such efficient cause can not be compleat, unless both its necessary parts be comprized in it; viz. not only the positive, but the negative.
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    Thus the imperfections in the English System, though so much better than the Scotch.

    5. By an exertion of power, causeless upon the face of it the defendant is in general placed in that distressing condition, by means of the instrument called a writ, without the plaintiff's having given in any designation of the efficient cause of his supposed right to the service demanded at the charge of the defendant, and even without any designation given so much as of the nature of that service. For anterior to the Enforcement of demand called the Declaration comes the Writ

    (a): an order signed by the Judge, which gives no designation other than a false one of its own object, but of which the effect is to compel the defendant, on pain of an indefinable mass of punishment, to employ an Attorney to go through the form of litigation in his, the Defendant's name, and at his expence.

    The consequence is that it is just as easy for a man to commence one action without right as with right: to employ the hand of justice for the purpose of oppression, or extortion, or for the ruin of rival prosperity, as for the giving effect to his own just rights, or for the procuring due satisfaction for a wrong which he has sustained. To p. 5

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    9. With all these imperfections under the English system of pleading there exists a mass of cases, and to a vast extent, to which the regular and established forms do not extend. Under this description comes all cases which admitt of the sort of pleading called Special Pleadings.

    10. So all cases in which the service demanded by the plaintiff is not rendered by any other sort of judicatory than without the assistance of a Court of Equity.

    12. Not to speak of the cases which are understood to belong to the jurisdiction of the judicatories called Spiritual Courts.

    13 - and to judicatories called Admiralty Courts,

    11. So in the various species of Motive Causes: in which the cause takes its commencement in a speech made by an Advocate in open Court, grounded on evidence delivered in the shape of Affidavit evidence.

    (a) This supposes the Writ to be of the kind called judicial, as it is in most instances.
  • Title: [24 April 1808 Reasons for the Work]
    Description: 24 April 1808

    Reasons for the Work

    6. The designation which is the instrument of demand is given of the service demanded, and if the efficient cause of the right to such service being thus imperfect, thus incorrect, incompleat, and fallacious, the designation which, in the instrument of defence is given of the nature of the defence, is, as naturally it would be, at least equally so.

    Suits vastly more in number are carried on by the mode of pleading called general pleas, than by the mode called special. But to meet all the diversifications incident to the nature and grounds of the instrument of demand, followed by all the diversifications incident to the nature and grounds of the defence, the whole stock of established formularies afford no more than five or six different instruments of defence, under the name of General Issues, and of these not more than │ │ are much in ordinary use.

    7. In the construction of his instruments of demand, among the points of caution observed by a draughtsman, duly attentive to what is at the same time really useful and practicable in the way of precision, will be that of any such mode or degree of precision and determinateness (of certainty to use the technical word) as the nature of the case does not admitt of.

    In the English system, the erroneous assumption of the necessity of a degree of determinateness which not being practicable can not be necessary, has been productive of a mass of falshood and absurdity the enormity of which, as might naturally be expected, seems but to have endeared it the more respectable in the eyes of professors {those whose profit and scientific reputation are attached to it}.

    Many are the instances in which antecedently to the examination of the evidence it will be impossible to say with any sufficient assurance in which of a multitude of ways, sometimes as far as half a dozen or more, an event took place. As often as this is the case, truth and common sense require that the fact should be stated in the disjunctive mode of statement. Falshood and Common law have in cases of this description, preferred the cumulative mode of statement, giving to the case such a mode of designation as gives to understand either that a fact which (though it might have happened in any one of all those ways could not have happened in more than one) happened in each and every one, or that half a dozen such facts took place when in truth there was but one (a). In Mr Leach, Crown Cases may be seen as instances where as an instrument of demand in private (an indictment of murder, an allegation intimating that the same man was killed twice over received the sanction of the Judges.

    ( ) Non assumpsit, Not[?] Guilty, Nil debit.