date

12[?] May 1808 Ch.V. §.6. I
12[?] May 1808

Ch.V. §.6.

I. Reasons

Ch.V. Advantages

§.6./5./ Special Pleading ousted

4. Advantage the fourth /fifth/. Exclusion of special pleading.

1. This effect, advantageous or not, this effect is the necessary result of the exclusion of new cases:

Of the advantage looked for in Scotland from the introduction of English Jury trial, in comparison of the present mode of judicature, the mode of practice most frequently exemplified, the practice according to which the decision is grounded upon proof taken operating in affirmance or disaffirmance of some proposition usually of a general description, as in the case where the general issue is pleaded the practice that obtains in the case where a general issue is thus pleaded is naturally looked to as the source. What in England is called Special Pleading, is what in Scotland or[?] wherever[?] of Jury trial would scarce regard with approbation or, at any rate with preference. It would present itself as too near kin to Southern[?] practice. On this occasion therefore as on so many others, England being out of the question in[?] Scotland the exclusion that would of course be put upon that dilatory experience and vexatious modification of Jury trial procedure, would probably without much difficulty be admitted upon the advantage side of the account.
Similar Items
  • Title: [18 May 1808 Ch. V. § I. Reasons]
    Description: 18 May 1808

    Ch. V. §

    I. Reasons

    Ch.V. Advantages

    §.│ │ Jury trial extended

    §.│ │ Advantage the │ │. Jury trial extended. {The extent given to Jury trial not limited as in England.}{The extent given to Jury trial increased.}

    1. I mean not on this occasion to attempt to prejudge the question whether under any, and if on any on what conditions it be desirable that Jury trial in

    civile should be received in Scotland. If Jury trial be admitted, the object of this plan is to give the utmost extent possible to the advantages derivable from it - to reduce within the narrowest pitch possible whatever inconveniences may be liable to result from it.

    If Jury trial be not admitted, the object is, so to order matters, that the want of it be as little felt as possible.

    But if upon the whole the influence of it be advantageous to justice, I speak always of Scotland, the object should be to give to that beneficial influence whatever extent it may be susceptible of. In England the benefit of it is confined to causes of certain particular sorts of causes. But if with equal benefit to justice it be applicable to causes of other descriptions, any disadvantage which it may have happened in England to labour under in this respect, affords no reason why Scotland should be subjected to the same disadvantage.
  • Title: [16 May 1808 I. Reasons Ch.V]
    Description: 16 May 1808

    I. Reasons

    Ch.V. Advantages

    §.9./8./ Fiction ousted

    Into Scottish judicature the English Jury trial as bestowed upon English pleading could not be imported but that fiction - that is if not the practice, the result and produce of the practice, would be imported along with it: imported, and by wholesale; nothing in the whole system of pleading being done without it: for the short but not less true account of the matter, if on such a matter the truth may be spoken, is - the whole system of procedure - of Common Law procedure - is one great lie. But once more, the importation of English pleading into Scotland is impossible.

    On the present occasion this truth may be acknowledged without much difficulty, Scotch lawyers not having been attached to the use of fiction by habit and prejudice, will not naturally be disposed to regard the exclusion put upon it by the proposed plan as a loss. Fictions of English growth nothing hinders them from viewing in a true light: for fictions of Scottish growth, even were[?] the cast[?] favourable to them, which it never has been, the season is too late.
  • 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

    18. The information furnished on the plaintiff's side being thus sparing of instruction, that which is furnished on the Defendant's side can not easily be more abundant. He who gives so little, and most of that little, false, has not much title to complain, though he should receive nothing in return.

    19. In general in 19 /49/ instances perhaps out of 20 /50/ after the first link in the chain of pleading, viz. the instrument of demand called the Declaration, the chain of pleadings has but one other, viz the instrument of defence, called the plea: and wherever this number is thus limited, the plea is said to be a general plea, and in pleading it the defendant is said to have pleaded the general issue: having pleaded that sort of plea, the effect of which is to bring the altercation to an issue ( exitus) i. e. to conclusion, earlier than any other would do.

    20. In contradistinction to the less usual sort of pleas, called special pleas, what the number is, of the pleas distinguished by the appellation general pleas, is a question to which no one has undertaken to give an answer.

    21. General pleas in frequent use - there are but four: 1. Not guilty: 2. Non-assumpsit. 3. Nil debit 4. Non est factum: among which four, the use of the two last is, again, unfrequent in comparison of the two others.

    22. In no one of all these instances does the sense put by lawyers upon the allegation on this occasion bear any tolerable resemblance to the sense that would be put upon the same expressions on any other occasion, by lawyers themselves any more than by any body else.