JB_082_189.xml

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

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.

JB_082_193.xml

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

32. In at least nineteen cases out of twenty, there exists not between the parties, either in the way of fact or in the way of law, any matter in dispute. The advantage deducible from delay, not rightful examination, is the final cause and object and profit of the defence.}

33. When, either in toto or pro parte[?] it is conceived on the part [of] the defendant that were by his side of the cause an[?] incident is furnished capable of operating in his favour in the character of an ablative incident, destroying the effect of any such collative incident as the plaintiff may have it in his power to prove, the plaintiff proves or endeavours to prove the incident he relies on in the character of a collative incident, the defendant on his part, the incident he relies on in the character of an ablative incident with relation to the plaintiff's title. Supposing on each part the sufficiency of the proof not of dispute, it is for the Judge in case of contestation to pronounce whether the incident, proved on the plaintiff's part, be among the incidents by which, in the character of collative incidents, it has been customary to consider the species of demand characterized by the species of action brought by him, suppose say an action of indebitatus assumpsit, as receiving in favour of a person circumstanced as he is, a legal and an effectual support: and so in like manner whether the incident proved by him in the expectation of its being received in the character of an ablative incident, ought under any of the different modes of defence which his plea (suppose non assumpsit) is understood to comprehend, be received in the character of a good and sufficient defence.

JB_082_190.xml

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.