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.