Loading ...
Sorry, an error occurred while loading the content.
 

action or brief

Expand Messages
  • jm367@bellsouth.net
    Lamphear v Buckingham 33 Conn 237, 1866 Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism of which the major
    Message 1 of 2 , Dec 28, 2004

      Lamphear v Buckingham 33 Conn 237, 1866 Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism of which the major premise is the proposition of law involved, and the minor premise the proposition of fact, and the judgement the conclusion. Blackstone states it thus (Comm, vol 3, p 396):

      "The judgement, though pronounced or awarded by the judges, is not their determination or sentence, but the determination or sentence of the law. It is the conclusion that naturally and regularly folows from the premises of law and fact which stand thus: Against him who hath rode over my corn I may recover damages by law; but A hath rode over my corn; therefore I shall recover damages against A."

      Usually the major premise is not set out in the declaration, but the proposition claimed is implied from or involved in the facts stated. The plaintiff in an action of tort, for instance, summons the defendant to answer for that, at a certain time and place he committed in a certain manner a certain wrong to the plaintiff's damage, etc., and by so doing impliedly claims that the law is so that he is entitled on those facts to recover. To this syllogism the defendant must answer according to the rules of law.

      If it requires a memorandum on the law to show the proposition of law involved, it is not a very well known proposition.  There is nothing in favor of having the proposition of law implied.  There is a lot to be gained from making the proposition of law in your cause of action explicit before stating the facts to which you claim the law applies. 

       

    • jm367@bellsouth.net
      Lamphear v Buckingham 33 Conn 237, 1866 Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism of which the major
      Message 2 of 2 , Apr 2, 2005
        Lamphear v Buckingham 33 Conn 237, 1866  Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism of which the major premise is the proposition of law involved, and the minor premise the proposition of fact, and the judgement the conclusion. Blackstone states it thus (Comm, vol 3, p 396):

        "The judgement, though pronounced or awarded by the judges, is not their determination or sentence, but the determination or sentence of the law. It is the conclusion that naturally and regularly folows from the premises of law and fact which stand thus: Against him who hath rode over my corn I may recover damages by law; but A hath rode over my corn; therefore I shall recover damages against A."

        Usually the major premise is not set out in the declaration, but the proposition claimed is implied from or involved in the facts stated. The plaintiff in an action of tort, for instance, summons the defendant to answer for that, at a certain time and place he committed in a certain manner a certain wrong to the plaintiff's damage, etc., and by so doing impliedly claims that the law is so that he is entitled on those facts to recover. To this syllogism the defendant must answer according to the rules of law.

        If it requires a memorandum on the law to show the proposition of law involved, it is not a very well known proposition. 

      Your message has been successfully submitted and would be delivered to recipients shortly.