JB_082_229.xml

Title: [28 April 1808 §.4. I. Reasons]

Description: 28 April 1808

§.4.

I. Reasons for the Work

§.4. Demand the sole instrument

3. True it is, that forasmuch as it may happen to the effect of the collative incident or state of things of which the positive part of the demandants efficient cause of right is composed, to be defeated by the existence of some ablative event, so may it to the effect of such ablative incident or state of things, to be defeated by some other incident or state of things, the effect of which on that account may with relation to the collative or investitive incident in question be termed re-investitive: and so on indefinitely, through a chain of opposite and alternating incidents of any length.

4. But of such reinvestitive incident the possible existence, as it might be, so it ought to be, foreseen and provided for in and by the instrument of demand, and the designation of it subjoined to the designation of the ablative incident to which it applies: the ablative incident (it may be said) has not had place unless accompanied or followed by the reinvestive incident by which the ablative effect of it is destroyed.

5. In fact, whether in the case supposed, any separate mention need be made of any distant incident in the character of a re-investitive incident, will frequently depend upon the structure of the language, and upon the words employed accordingly for the designation of the collative incident, so that according to the mode of designation pursued, the re-investitive incident may either be brought forward in the first instance, or kept back till the ablative incident makes its appearance, and then subjoined to it, and as it were placed behind it.

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_192.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

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.