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.