date

30 April 1808 J.B. to H of Commons
30 April 1808

J.B. to H of Commons

I. Reasons for the Work

§. English pleadings inapplicable to Scotland

11. In the designation of the ground of demand, the efficient cause of the right demanded, and feint[?] of the positive branch of that cause, viz. the collative incident, the practice is scarcely less definitive than in any of the abovementioned cases.

12. I. Is it an individual thing of the class of moveables that the plaintiff demands of you? a horse for example, or a saddle? What in no case he informs you of, is by what title he expects to prove it to have become his. What in every case he is forced to aver is that the horse, or the saddle, which he demands of you, was some where or other found by you, an assertion which in 99 cases out of a hundred is not true. {Not that if the horse or the saddle is his you will be obliged to give it him. What you will give him is the horse or the money it has been valued at by twelve men who have never seen it. But of this mention has been [made] under a the preceding head.}

13. II. Is it a thing immoveable that is demanded of you? Still the same silence with regard to the title. No, not absolute silence: for a story is told about somebody that was turned out by somebody: of the parties one at least, viz. the plff., is always fictitious: and the fact of turning out is almost always so: besides being nothing to the purpose. With respect to what is called the title, certainty is indeed required: but this title is the fictitious one: what is meant by certainty is a circumstantial statement of a fact that never happened.

14. IV. In respect of the title to service and to money due (I speak still of the positive part of the title) the information given is not always so compleatly consultative[?]/uns[b]stantive[?] as in those two other cases. In one shape or other however it is replete with falshoods: which, if the plaintiff's lawyer were to omitt, the client would lose the cause; instead of the one sum due, half a dozen such sums, each to the same amount for example, alledged to be there: each by a different title.
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  • Title: [28 April 1808 J.B. to H. of Commons]
    Description: 28 April 1808

    J.B. to H. of Commons/Evidence/

    §.3.

    I. Reasons for the Work

    §.3. demand includes Defence

    A burthen which a man /Damon[?]/ ought to be permitted to decline bringing upon himself, by his evidence, another man /Pythius[?]/ ought to be permitted to decline bringing upon him (Damon) by his (Pythius's) evidence! - Why? - For the same reason that every other man ought: and not only permitted but compelled.

    A burthen which Damon ought not to be permitted to decline bringing upon himself by his evidence, Pythius ought not [be] permitted to decline bringing upon him by his (Pythius's) evidence. - Why? - For the reason above assigned: because if Damon were a murderer or an incendiary, and Pythius the only person capable of giving evidence of the crime, Pythius would, if thus excused, have the power of pardoning him.

    2. If the judgment of the demandant himself, his right to the service demanded, is not compleat, which it can not be unless his efficient cause as above described be compleat, much less can it be so, or so much as appear likely to be proved to be so, in the belief of the Judge, of whom the service is demanded. What may very well happen, and what commonly enough does happen, is -that the demandant, the plaintiff, has not any such compleat information, nor consequently any such strong belief or persuasion concerning the negative part of his title (the efficient cause of his supposed right) as if concerning the positive: but unless both parts be included in his belief, he does not himself believe himself his supposed right to have a compleat efficient cause:- he does not believe himself to have a right.
  • Title: [1 May 1808 J.B. to H of Commons]
    Description: 1 May 1808

    J.B. to H of Commons

    I. Reason for the Work

    English pleading inapplicable to Sotland

    II. Defence

    23. I. Of the four species of satisfaction correspondent to so many species of wrong, and capable, as above, of being taken for the subject or objects of so many sorts of demands, the two first are possessions of an individual thing, moveable in the first case or immoveable in the second. It is by the species of action called an action of trover, that notice of the demand made in the first instance is conveyed: it is by the species of action called an action of ejectment, that the demand made in the other instance is notified.

    To either these demands the sort of defence most usually made is notified by the same expression Not Guilty: more at length, I am not guilty of the act charged upon me.

    24. But in neither of these instances is any thing of Guilt so much as imputed to the defendant. In the case of the action of trover, what the plaintiff says to the defendant is - there is a something of mine which you having found, have converted to your own use.

    In the case of the action of ejectment brought for the obtainment, for example, of ten acres situated on[?] such[?], what the plaintiff says of the defendant is, a person, real or imaginary, has turned an imaginary person out of a hundred acres situated in that same place.

    In both these cases if what the plaintiff has been saying be false, there exists not on the defendant's part any thing that can justly bear the name of guilt: but as little is there any guilt on the defendant's part even admitting what is said on the Plaintiff's part is true.
  • Title: [May 1808 J.B. to H. of Commons]
    Description: May 1808

    J.B. to H. of Commons

    I. Reasons for the Work

    Ch.1.

    §.2. Demand proper Contents of

    Ch. 1

    §.2. Instrument of demand - its proper contents -

    1. In every instrument wherein and whereby a demand made by a person in the character of plaintiff is expressed. Whatsoever be the nature of the demand - i.e. of the judicial service demanded by the plff. at the hands of the Judge, two things ought to be {distinctly and truly} stated in it: 1. the nature of the service: 2. the ground of the demand, as constituted by the right or title which the plaintiff has, in his own declared conception and persuasion at least, to warrant his calling upon the Judge to render him that service.

    2. In every judicial case there are at least two parties interested: one at least on the plaintiff's, one other at least on the defendant's side of the cause: and except in the case where between the Plff. and the defendant there is no point really in dispute, the object of the suit being not to settle any point in dispute between the parties, but to obtain the sanction of the Judge for whatsoever comes to be done, (as in the meaning[?] of the case where a mass of property requires for the legal division of it the concurrence of a Judge) no judicial service can be rendered by the Judge to the party who demands it, without imposing a correspondent burthen on the defendant at whose charge it is demanded.

    {3. By every such judicial demand two distinguishable services are required to be eventually performed, one or other, or both, at the hands of two distinct persons, viz. the Judge and the Defendant: the one the service which it is required that the defendant himself shall, by the Judge, be engaged to render to the plff., the other, the service which is rendered by the Judge in so far as by his authority the defendant is engaged to render the principal service immediately above mentioned from whence the advantage to the plff's. side of the cause more immediately takes its rise.}