date

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

J.B. to H of Commons

I. Reasons for the Work

ยง. 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.
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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

    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.
  • Title: [22 April 1808 J.B. to H. of Commons]
    Description: 22 April 1808

    J.B. to H. of Commons

    Reasons for the Work

    The demand is incompleat unless it staes ground of demand in[?] [...?] [...?] the service demanded, grounds of demand or right viz. existence of some collative event, non-existence it its ablative one.

    Universally then, be the sort of right what it may, under Statute law every man is, at any given point of time, in possession of such right, in whose favour an event, or state of things, has antecedently to that point of time taken place, to which such portion of law has given the effect of conferring on him that right, and which, neither at that same point of time nor at any subsequent point of time, has any event or state of things had place, to which the same or any other portion of law has had the effect of divesting him of that same right.

    A benefit of any kind can not, in the shape of a right, be conferred on any person, in the character of a plaintiff or demandant, but a correspondent burthen, in the shape of an obligation, must at the same time be imposed upon at least one other person, viz. in the case of a suit at law, in the character of a defendant.

    Accordingly To warrant the Judge, therefore, in acceding to any such juridicial demand, it is not sufficient to him to know what that demand is - what the service is which is thus demanded at his hands; it is necessary also that he understand what are the grounds of that demand: and to be satisfied that such demand is properly and sufficiently grounded in point of fact, as well as in point of law: and accordingly that, in favour of the individual appearing in the character of plaintiff, or in favour of a class of persons of which the individual plaintiff is one, an individual event or state of things to which in favour of such individual or such class the portion of law referred to has given the effect of a collative event, or state of things with reference to the species of right in question, has taken place, since which no individual event or state of things has taken place, in which that same, or any other portion of law, has given the effect of an ablative or divestitive event or state of things with relation to that same right.