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1 May 1808
J.B. to H of Commons
I. Reasons for the Work
ยง. 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.
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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. 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: [27 Oct r 1807 L d Eldon's Bill]Description: 27 Oct r 1807 L d Eldon's Bill '.11 assembled by President My conclusion is that it was desired on one side, and settled[?] by the learned draughtsman on both ends, that nothing should be done. But why then all this talk and bustle about enquiries and regulations? Why these commissions - these newly to be organised bodies of initiating legislators? The one commission proposed by the Lord President - that member so generally /liberally/ directed (by /on the part of/ the learned draughtsman) of the L d Chancellor? When a commission is established - established at the proposition[?] of Administration by the authority of Parliament, it may be for either of two purposes - to cause the business to be concluded in Parliament, or to prevent it from being begun there. In the present instance, without pretending to certainty /infallibility/, the opinion that appears to me the more probable is - that the latter (is the sort of termination that on both parts was looked to with most complacency,) was the real object of the learned exertions now bestowed, to which those /the present/ learned labours were really directed. Nor on these terms /this supposition/ would those labours be either without their suitable object or without fruit. Beside the composing of the public mind in Scotland, which is an object in all plans and at all times highly desirable, here are two funds - two new funds created for the reward of merit: I mean not of merit displayed in the business thus brought /put/ for forms sake into action /into a train/ - that being by the supposition destined to receive /repose/ its question - but to merit antecedently displayed in whatsoever other shape: merit remaining to be discovered by the discerning /penetrating/ and judicious eyes to whom under his Majesty, name and auspices the charge of the discovery is proposed to be committed.
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