date

28 April 1808 §.4. I. Reasons
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.
Similar Items
  • Title: [28 April 1808 I. Reasons for the Work]
    Description: 28 April 1808

    I. Reasons for the Work

    §.2. State Ground of demand

    §.1. In every instrument of demand, the efficient cause of the demandants right to the service demanded ought to be designated.

    1. Rights have, by Blackstone, been distinguished into general or absolute, and special or relative.

    2. Every right, created, conferred, and recognized as such, by the legislator has an efficient cause, all general or absolute rights, the efficient cause is no other than the state and condition of a known[?] human being, in the case where the right is of such a nature as to be considered of concern (saving special exceptions) to all mankind, in so far as by the legislator in question it has been thought fit to extend to them to the purpose of the right in question the benefit of his laws: a special right, a right which is considered as confined to some individual or to all individuals of a particular description or class to which class the individual in question (say the plff.) belongs, has in every instance a correspondent special efficient cause.

    3. In the efficient cause (general or special), of a right, two parts may in every, or almost every, instance be distinguished: the one positive, the other negative: the positive consisting in the existence or taking place of the event or state of things by which the right in question is conferred on the party in question, and he invested with such his right - an event or state of things having in his favour the effect of a collative event or investitive cause of right: the negative consisting in the not taking place or non-existence of all such events or states of things, of any one of which, had it had place, the existence would have been sufficient to divest him of such his right and then to take it away from him, or prevent his being invested with it: events or state of things, any one of which would in his disfavour have had the effect of an ablative or divestitive event or state of things.
  • Title: [22 April 1808 Reasons for the Work]
    Description: 22 April 1808

    Reasons for the Work

    In brief, in any instrument of demand the plaintiff's right to the service therein and thereby demanded at the charge of the defendant at the hands of the Judge is not sufficiently established, even supposing the allegations therein contained to be true, in fact, as well as warranted by the power of the law, unless, unless along with an allegation of the existence of some one at least of the events or states of things to which the law has given the effect of collative or investitive events or states of things with reference to that right in favour of an individual so circumstanced as the plaintiff is, it contains an allegation of the non-existence of all such events or states of things, to which the law has given the effect of ablative or divestitive events or states of things with reference to that same right.

    If this be so a portion of law (substantive law) is never compleatly and sufficiently designated and expressed, unless to whatever events and state of things it establishes in the character of collative events with relation to any right it subjoins, either at length under that same head or division of the [...?], or by reference to some other head or division, a designation of all such events or states of things to which the law has given the effect of ablative events or states of things with reference to that same right.

    So, as to any instrument of demand grounded on such portion of substantive law. No[?] such instrument of demand is in no case sufficient and compleat, unless along with the individual demand which, together with the grounds thereof it exhibits, it contains a designation of all such grounds of defence as, by possibility, have application to any such demand: not only the existence of some determinate ground of demand being therein asserted, but the sure[?] existence of whatever grounds of defence might, had they existed, have been applicable to it.
  • 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.