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.