date

24 Dec r 1806 Scotch Reform To L d
24 Dec r 1806

Scotch Reform To L d Grenville

Resolut. 10

Advocation suspension

On the part of a subordinate Court, a cause brought before it, either the cause comes within its cognizance or it does not: if it does not, let the conduct of the Judge be ever so irreproachable /free from misconduct/ in other respects misconduct is exemplified in the very first act done by him in it: [...?] misconduct is exemplified in every succeeding act. For this species of misconduct, [...?] of jurisdiction is the [...?]: prohibitionwith or without punishment the proper remedy

When on the ground of misconduct on the part of an inferior /a subordinate/ Court, having cognizance of the cause the [...?] of a superordinate Court is remarked[?] to for relief in respect in any of the main points in question in the cause, the alledged misconduct will have been considered as having displayed itself in one or other of these shapes: misdecision denial of justice, or delay. Vexation may indeed be another ground of complaint: and in misconduct of this description not only /it may be the/ parties but third persons of any description and in any number to be comprized. But as nothing /no practice [...?]/ can be done by a Court of Justice /in the way of judicature/, nothing can be done, which may not with propriety be considered as [...?] from /done by/ a decision to that effect, vexation so far as [...?] may in this point of view be considered as comprehended under the term misdecision: misdecision in regard to some part which is not among /of the number of/ the main points in the cause.

Misdecision supposes the cause already commences and entertained: commenced by the Plff, entertained by the Judge: it may be in /its operation may be to the/ prejudice of the Plff in toto, as by a rejection /complaint/ of his demand in toto: to the prejudice of the defendant in toto, as by a complete compliance with the demand, to the prejudice of the Plff in part by a not sufficiently extensive compliance with the demand, or to the prejudice of the defendant in part, by a too extensive complicance with the demand.
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  • Title: [24 Dec r 1806 Scotch Reform To L d]
    Description: 24 Dec r 1806

    Scotch Reform To L d Grenville 6

    Resolut. 10

    Advocat. Suspension

    Of the two species or forms of judicial misconduct, misdecision and delay, the one positive, the other negative, to one or other of which, when considered in a logical point of view carry species of inconveniences which can take place is removable the one which is the easiest to cope with the grievance to which the legislator finds with least difficulty in applying an adequate remedy, is misdecision: the one which he finds it most difficult to cope with, is delay. A plan /system/ of superintendence which has no application to delay, does but little more than half its duty /is deficient by little less than half/: it leaves altogether without a remedy little less than half the mass of mischief which a system of provision aims or at least professes to aim at obviating. A plan /system/ of superintendance which in respect of /its application to/ delay acts with a degree of efficiency /efficacy/ that of inferior to what might be given to it remains as big as the deficiency is /remains //[...?]/ misapplied[?] /remains on the part of the legislator/, a monument either of the [...?] or of the negligence /of [...?] or of negligence/ of the legislator.

    Against misdecision, the remedy, I have said, is plain and easy: if to the prejudice of the defendant in toto, or[?] reversal: if to the prejudice of the plaintiff in toto, decision in his former[?] de novo: if to the prejudice of either side pro tanto, modification: modification, unreformed by substituting to the decision pronounced below, a decision not opposite, as in the case of reversal, opposite, but different.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    (7

    Resolut. 14

    Costs

    Accidents apart Setting aside those factitious chances given to malâ fide in favour of injustice on the plaintiff's side given to malâ fide plaintiff by the technical system such as the chance of deterring him[?] (by factitious vexation and expence) or cheating him who should have been [...?] from defending himself, or by factitious delay keeping the cause in pendency[?] till his evidence has perished /is given/, a plaintiff can not have had any inducement /motive/ for commencing the cause /instituting his demand/ without a persuasion of its being well founded in point of justice. But to engage a man to resist the demand in the character of defendant - and resist it to the very utmost, no such persuasion is at all necessary. To be already in a state of insolvency? the longer he can stave off compliance with the demand, the longer he continues in the enjoyment of his [...?] affluence to feed[?] and falter upon the enemy. Is he solvent? he protects[?] at any rate (I mean under the advantage given him in that respect by the technical system) he protects at any rate the interest of the monet, and in the mean time takes the benefit of the chapter of accidents: death of the Plff deposition of the Plffs evidence, and so forth.

    By the bare presumption created /raised/ by bare possession at the time legislators in general hold themselves justified in giving the provisional possession to him who has this plan to plead for it. The presumption created by the decision of a competant Judge - the presumption of it is to be as one[?] that has been created by actual investigation wills a person in that commanding station to answer for it - is /should/ it not /it not be decreed/ so much as equal to the presumption created by mere[?] occupancy on the part of an individual - an individual taken at large?

    Before and untill decision pronounced in the Court below, the defendant a person taken at large - [...?] to any Court - has had - had of necessity (unless precautionary measures of sufficient promptitude[?] be allowed to be taken in the first instance in[?] the [...?] [...?] application of the Plff), all that [...?] to do whatsoever mischief could be done by the [...?], upon and after due inquiry, both parties are become known to the competant Judge, shall it not be in the power of the Judge to say which of /[...?] in the hands of/ them the thing or[?] person may be trusted with least danger, which the fate /[...?]/ of it awaits the decision of the Court above?
  • Title: [[094-345v] 27 Feb y 1807 Letter]
    Description: [094-345v]

    27 Feb y 1807

    Letter V

    [...?] 10.11.12.13.14.

    Appeal is one out of several modes of application to a Court above, on the ground of the supposed misconduct of a Court below.

    Misconduct on the part of the Court below may either be of a nature to affect[?] which affects the fate /[...?]/ of a /some/ cause instituted in the Court, or may consist in some injury or vexation inflicted indeed on the occasion of some such suit, but collateral to it, and not affecting the fate of it.

    There are but two ways in which the issue of a suit brought before a Court can be affected, whether by the misconduct of the Judge, or by any other cause. One is misdecision, the other by non-decision, which is as much as to say is delay. Exclusive of the /those/ chances of ultimate mis-decision with which delay is naturally pregnant, (see the Table) the mischief of delay is in its nature the same as that of misdecision, viz.: to the prejudice of the plaintiff's side, with no other difference than that of its being temporary instead of perpetual, being co-aval[?] and more than co-aval[?], with the delay itself.