date

1 May 1808 J.B. to H of Commons
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.
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  • Title: [1 May 1808 J.B. to H of Commons]
    Description: 1 May 1808

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    I. Reasons for the Work

    II. Defence

    29. Thus it is that generally speaking, by these pleadings no real information is conveyed to either side. It is not from these pleadings, through this source, that either party receives any of that information which it concerns him to possess. From this source it is but seldom that the defendant learns what is expected of him, and still seldomer on what ground: still less frequent is it for the plaintiff to be able to ascertain through the channel of such Defendant's instrument of defence what defence it is that the Defendant intends to make.

    30. What it is not in the power of either, even with the assistance of the profounder learning, to conceal from the other, is whatever knowledge it may happen to them respectively to possess in relation to the matter in dispute. It is from this source that generally speaking they derive whatever true[?] and information it happens to them to really possess.

    31. The plaintiff under the conduct of his advisors, proves, or endeavours to prove, his case - proves or endeavours to prove the existence of an efficient cause of right viz. of the positive branch of such efficient cause - the existence of one incident coming under the description of that class of incidents to which in favour of any individual, circumstanced as he is, the law is understood to have given the effect of a collative or investitive incident in respect of the right to demand the service which, at the charge of the Defendant, he demands of the Judge: as for any incident of an ablative tendency as for the Defendant's being able to prove the existence of any such incident, the plaintiff must take his chance.
  • Title: [1 May 1808 J.B. to H of Commons]
    Description: 1 May 1808

    J.B. to H of Commons

    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.

    28. What is above may, it is hoped, be sufficient for a sample: - and surely if the commodity is of this sort, a sample will be deemed sufficient.