JB_082_186.xml

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.

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_184.xml

Title: [30 April 1808 J.B. to H of Commons]

Description: 30 April 1808

J.B. to H of Commons

1. Reasons for the Work

§ English pleadings inapplicable to Scotland

4. The nature of the service demanded not designated {In the common intercourse between man and man it would be apt to be regarded as a mark of imbecillity, if one man wanting something of another, were not to give any tolerably intelligible account of the object of his desire. In common law this imbecillity becomes matter of science or the fruits of it becomes as[?] an object of veneration as forming part and parcel of the matter of the science.}

5. Of the services which under the head of satisfaction as for wrong a plaintiff is liable to have need to demand at the hands of the Judge, those in principal use are as follows:

1. Delivery of an individual thing of the class of things moveable.

2. Delivery of a specific thing of the class of things immoveable.

3. Delivery of sufficient security for specific services of any description to be rendered by the defendant to the plaintiff.

4. Rendering of that particular species of service which is in most general demand, and which consists in the payment of a sum of money to this or that amount.

6. In the case of an individual thing moveable, in the designation of the service demanded will be included the designation of the thing which is the object of the demand.

In strictness of speech the English system of pleading can not be chargeable with imperfection on this head. The law does not in fact so much as undertake to render satisfaction in any such shape: it does not either command or authorize the Judge to render any such service. If in the catalogue of things moveable lying within the jurisdiction of English Judges a man were to look for the objects of property in respect of which the common law of England affords its protection to the proprietor, he would look for them in vain.

Subject to limitation in a great extent, the Courts called Equity Courts do, it is true, hold out against a wrong of this description - a remedy so disadvantageous as to be scarcely ever sought.