date

1 May 1808 J.B. to H of Commons
1 May 1808

J.B. to H of Commons

I. Reasons for the Work

English pleading inapplicable to Scotland

II. Defence

18. The information furnished on the plaintiff's side being thus sparing of instruction, that which is furnished on the Defendant's side can not easily be more abundant. He who gives so little, and most of that little, false, has not much title to complain, though he should receive nothing in return.

19. In general in 19 /49/ instances perhaps out of 20 /50/ after the first link in the chain of pleading, viz. the instrument of demand called the Declaration, the chain of pleadings has but one other, viz the instrument of defence, called the plea: and wherever this number is thus limited, the plea is said to be a general plea, and in pleading it the defendant is said to have pleaded the general issue: having pleaded that sort of plea, the effect of which is to bring the altercation to an issue ( exitus) i. e. to conclusion, earlier than any other would do.

20. In contradistinction to the less usual sort of pleas, called special pleas, what the number is, of the pleas distinguished by the appellation general pleas, is a question to which no one has undertaken to give an answer.

21. General pleas in frequent use - there are but four: 1. Not guilty: 2. Non-assumpsit. 3. Nil debit 4. Non est factum: among which four, the use of the two last is, again, unfrequent in comparison of the two others.

22. In no one of all these instances does the sense put by lawyers upon the allegation on this occasion bear any tolerable resemblance to the sense that would be put upon the same expressions on any other occasion, by lawyers themselves any more than by any body else.
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    I. Reasons for the Work

    English Pleading inapplicable to Scotland

    II. Defence

    25. Another of these four most usual general pleas is the pleas called non assumpsit. It is by this plea that the most usual defence is made to a species of action the recurrence of which is by far more frequent than that of all other species of actions put together.

    26. In this case what the defendant is made to say is - I did not make any such undertaking - any such promise - as the plaintiff has alledged me to have made.

    Now what in this case is always true is that the plaintiff has been made to alledge that the defendant at a time designated did make to him a promise to such or such an effect. But what is very frequently true is, that by the defendant no such promise, nor in truth any promise at all in the performance of which the plaintiff has any interest, was ever made. Accordingly, on the plaintiff's part no promise at all is proved: but, by such, his failure is no obstacle, he is not prevented from gaining his cause.

    27. In this case, the information given on the plaintiff's side, being false, is necessarily useless: so that by the denial if this false information the plaintiff gains no instruction, he gains at least as much as he gave. But whether as much as he has need of, depends upon contingencies.

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