date

5 Feb y 1808 on L d Eldons Bill
5 Feb y 1808

on L d Eldons Bill

Appeals

5. The suits of the infliction to which it may happen to a man to be subjected by a wrong, are in [...?] reducible to these four. 1. person. 2. regulation. 3. property. 4. condition in life.

6. Of the damage or infliction produced by a wrong in whichever shape by a wrong of whatever kind, pecuniary loss or damage is, for the purpose of discourse the most apt and convenient representation; value as expressed /constituted //seated in/ by money being so much more commodiously and accurately measured and expressed than as constituted by /seated in/ any other article.

7. Principal Subjects of wrong considered as affecting property are 1. A sum of money considered as being withheld, taken away, kept from being received or wrongfully caused to be disbursed.

2. Possession or use of a corporeal subject, moveable or immoveable: human being, in respect of the service of all sorts which they are capable of rendering[?] on to another included.

3. Use in the way of consumption or otherwise of the excercise naturally afforded by a thing moveable or immoveable.

4. Use as above, temporary or perpetual, of a sum of money received by [...?] in return for the use or increase (in some cases called rents or profits) of a thing moveable or immoveable.
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  • 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.
  • Title: [13 June 1807 A6 5 Letter V]
    Description: 13 June 1807

    A6 5

    Letter V

    II. Litigation

    Note continued

    Another case that, to prevent misconception and confusion, must not be passed over altogether without notice, is - that on one side or both sides of a cause, the plaintiff's and the defendant's, there may be divers parties: of whom on either side or on both sides, one or more may be in bonâ fide, one or more in malâ fide.

    These diversifications are mentioned, lest for want of comprehensive attention, error should creep in any where.

    But the division here about to be made of litigation into three branches as above - bonâ fide litigation, litigation malâ fide on the defendants side, litigation malâ fide on the plaintiff's side will not (it will be seen) be the less correct, nor the inferences grounded on it, less applicable to practice, or with less advantage.

    Text resumed

    Where the defendant is in the wrong, the wrong may be either of the positive kind, or of the negative kind: of the positive kind where, for example, some positive act has been committed by him to the plaintiff's prejudice, such as destruction, or deterioration of an article of property, or undue imposition of expence, or interception of profit: of the negative kind, where it consists in the omitting to render to the plaintiff by a positive act some service that is due to him, such as the payment of a sum of money, conveyance, in a physical or legal sense, the delivery of some article of property, moveable or immoveable, to him or to his use.

    A description of cases there likewise is in which no wrong being committed or so much as supposed to be committed by the defendant, the only service demanded by the plaintiff is a service supposed to be due to him, on the part of the Judge - but there being an individual at whose charge such service if rendered would be rendered, he is constituted Defendant, to the end that in the event of his supposing that the rendering of it would be prejudicial to his right, would be a wrong done to him, the opportunity may be afforded him, of defending himself against such wrong if shewing that of such service, if rendered by the Judge, wrong, viz. to him (the defendant), would be the result.
  • Title: [5 Feb y 1808 on L d Eldons Bill]
    Description: 5 Feb y 1808

    on L d Eldons Bill

    Appeals

    [...?] [...?] what a man would like to receive[?] the wrong. Provison[?] in case of wrongs for which [...?] will not allow a man to admitt the existence[?] of the equivalent.

    12. The loss of the use of money, in whatsoever of the above ways the loss were produced /occasioned/ a more commercial man can not have /has not/ received adequate compensation, unless he has received over and above the principal, non-commercial interest at the same rate at which, had it not been for [...?] temporary loss be created or if he had pleased might have received it: and so in the case of a commercial man [...?] to non-commercial, commercial interest

    13. So a converse[?], from a non-commercial man the profit to[?] will have derived or may reasonably be supposed to have derived from the temporary use of money which by his own wrong was left to that other will not have been compleatly taken away, unless, being a non-commercial man, he has been made to pay non-commercial interest for and during the rime in question, or if /being/ a commercial man, commercial interest

    14. To save in general / By a general rule/ the delay, vexation and expense attendant on particular investigation, rates of interest corresponding to the different situations in which we may be placed with reference to /in respect of/ the opportunities of profiting by the use of money, should for the purpose of the purpose of the provisional allowance[?] to be made in the sum of interest to a party wronged, od the restitution to be exacted on the like sum from a wrongdoer be fixt by general rules: his rates rates corresponding to the two terms of the main distinction between non-commercial and commercial money at any rate.