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30 April 1808
J.B. to H of Commons
1. Reasons for the Work
§ English pleadings inapplicable to Scotland
4. The nature of the service demanded not designated {In the common intercourse between man and man it would be apt to be regarded as a mark of imbecillity, if one man wanting something of another, were not to give any tolerably intelligible account of the object of his desire. In common law this imbecillity becomes matter of science or the fruits of it becomes as[?] an object of veneration as forming part and parcel of the matter of the science.}
5. Of the services which under the head of satisfaction as for wrong a plaintiff is liable to have need to demand at the hands of the Judge, those in principal use are as follows:
1. Delivery of an individual thing of the class of things moveable.
2. Delivery of a specific thing of the class of things immoveable.
3. Delivery of sufficient security for specific services of any description to be rendered by the defendant to the plaintiff.
4. Rendering of that particular species of service which is in most general demand, and which consists in the payment of a sum of money to this or that amount.
6. In the case of an individual thing moveable, in the designation of the service demanded will be included the designation of the thing which is the object of the demand.
In strictness of speech the English system of pleading can not be chargeable with imperfection on this head. The law does not in fact so much as undertake to render satisfaction in any such shape: it does not either command or authorize the Judge to render any such service. If in the catalogue of things moveable lying within the jurisdiction of English Judges a man were to look for the objects of property in respect of which the common law of England affords its protection to the proprietor, he would look for them in vain.
Subject to limitation in a great extent, the Courts called Equity Courts do, it is true, hold out against a wrong of this description - a remedy so disadvantageous as to be scarcely ever sought.
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Title: [30 April 1808 J.B. to H of Commons]Description: 30 April 1808 J.B. to H of Commons I. Reasons for the Work § English pleadings inapplicable to Scotland Make this, & the last, shorter & lighter 7. What in a case of this description the law will not do for a man is the securing to him the use or possession of any one thing which by[?] common speech he calls his own. What it does, or at least profess to do for him, is to give him a sum of money instead of its leaving to the wrongdoer the choice as between the money and the thing. 8. II. Delivery of an individual thing of the class of things immoveable. For administering satisfaction in this shape for wrong in this shape, the law does not refuse his service. But as to any such descriptions of the subject matter of this service, the quantity and situation of the portion of land, for example, which the Defendant is expected to deliver to the plaintiff, no tolerably compleat or correct description is ever required to be given. What is always required is a description: what is always undeniably true of the description is that it enormously and wantonly false. 9. III. Delivery of sufficient security for specific services of every description to be rendered by the defendant to the Plaintiff. 8. 3. Service on the part of the Judge consisting in the compelling [of] the Defendant to render a service of any kind to the Plaintiff. Except in the cases to a very narrow extent in which this service is rendered by a Court of Equity, there is scarce one instance in which satisfaction in this shape is rendered by the law of England. The proprietary interest, which men are capable of having in the infinitely diversified services which they are capable of receiving at each others hands, has as small a share in the protection of the law of England as the rights which, as above, they are capable of having in and to the use of things. 10. IV. The service which consists in causing the defendant to deliver at his own expence a sum of money to the plaintiff. When the object of a man's demand is thus simple, the designation of it can not be matter of much difficulty: the quantum is the only circumstance in which falshood is capable of lodging itself.
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Title: [10 March 1807 Judicial Justice]Description: 10 March 1807 Judicial Justice Letter V I. Shapes 1. Misdecision Where in pursuance of any juridical demand a decision is pronounced in favour of the plaintiff, adjudging a service to be rendered to him at the charge of the Defendant, a question that commonly remains to be resolved, is - what shall be the quantity of the subject matter of that service: as in the case of the money, what shall be the quantity of money paid. The separation which thus takes place is not matter of accident or caprice, but results almost necessarily from the nature of the case. For it follows, not by any means that because that precise quantity which the plaintiff demands is not due to him, therefore nothing at all is due to him: and to require that where the first demand is deemed too great, that demand having thereupon been repelled shall be followed by demand after demand (in the manner of the Dutch substitute for an Auction) would be to require delay, vexation and expence in prodigious waste. In the nature of things whatsoever is susceptible of quantity, and that quantity susceptible to variation, is thus capable of being made the subject of liquidation: money, moveable property such as corn, wine, and oil: and land. But in English law under English Jury Trial, the only article which ever becomes the subject of liquidation, at least of liquidation made by the Jury, is money. So far as moveable property is concerned, the reason (meaning nothing more than the cause) is altogether curious. The Common Law Courts affording no means of recovery for corn, wine, oil or in a word for any one thing moveable that exists, hence the quantity of it never becomes (before the Jury at least) the subject matter of liquidation.
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Title: [May 1808 1. Reasons for the Work]Description: May 1808 1. Reasons for the Work Notes {Positive part of the Plaintiff's title - consisting of some collative incident. Examples of a collative event are with reference to a man's right to or in a thing moveable. Examples of a collative state of things with reference to a man's right to or in a thing moveable are: Examples of a Examples of a N.B. As against a Defendant, at whose charge the delivery of a thing moveable or immoveable is demanded, possession ought in general to be considered as a sufficient positive title on the part of the plaintiff, unless a more determinate title is set up on the part of the defendant.
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