date

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

J.B. to H of Commons

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.
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  • 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.
  • 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

    No effectual or useful information generally speaking being in fact given in this established course, though certainly as much as by the [...?] it was ever designed to give, there remain two courses of proceeding by either of which it might be given.

    One is if a system, such as the above, really designed for that purpose, were to be established.

    The other is, if at the outset of the cause, the parties being met together in Court in the presence of the Judge, each with the right of requiring explanations of the other, the plaintiff were to state on what supposed facts he means to ground his demand; the defendant, at the same time if it happens to him to have a positive ground of defence, what it consists of.

    Of these two modes of explanation neither is exclusive of the other: in some cases the forms above would be most conducive to mutual convenience: in others, the latter above: in others again both.

    But it is under the forms alone, it must be observed, that the system of legal rights with their efficient causes is really and compleatly established: by the latter, the existence of such a system is indeed supposed, but in instances to a very considerable extent that supposition would be found to be erroneous. In many instances howsoever, and those of the most frequent occurrence, the supposition is true: and to this extent the second of the two courses would be effectual without the other.
  • 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

    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.