date

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

Scotch Reform To L d Grenville

4 16(14

Resolut. 10

Advocate suspension

So much as to the effect: now as to the cause. Advocation may be at the instance of either side of the parties. But supposing it a different [...?] from appeal, and supposing the party to have the choice between that and appeal, and delay on the part of the Judge below not the misconduct complained of or apprehended, it is /seems/ difficult to conceive how in either side it should have any thing but oppression for its object, malâ fides for its cause delay, but supposition, neither experienced nor apprehended: decision - none given: therefore no misdecision in the case. What remains then for the possible object? If at the instances /prompts/ of the plaintiff, increase of vexation, delay and expence: for what else can be the effect of taking the cause out of the hands of the Court below? Had decision been his object, to what purpose take the cause out of the hands of that Court when it was to be had sooner? By delay, more delay, so far as success[?] in the cause i.e. obtainment of the benefit demanded was the real object a plaintiff has every thing to lose, nothing to gain: but if oppression be his object, vexation and expence, the inseparable concomitants of the /a/ removal of the cause into another, especially of (as it is usually is) a more distant, Court - vexation and expence ensure /secure //put that object into his hand/ to him the accomplishment of it.
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  • Title: [[...?] 1806 Scotch Reform To L d Grenville]
    Description: [...?] 1806

    Scotch Reform To L d Grenville 13(11

    Resolut. 10

    Advocate suspension

    In addition to Appeal, or in lieu of Appeal, the practice of the Court of Session, as attended to in this Resolution (resolution the 10 th) admitts of two other modes of Removal - Advocation and Suspension.

    As to Advocation, considered as a remedy against misdecision what can be the use of it?

    1. Is it no /Let it be/ the instance of the Plaintiff that the superordinate Court is aplied /urged/ to take the cause out of the hands of the subordinate Court? - But why? What possible reason /ground in part[?] of/ can there be for it? Decision none, misdecision is impossible. What were the grounds for committing the cognizance of the cause to the subordinate Court, the Court wtin reach /a moderate distance/ of the abodes of the parties? saving of delay, vexation and expence. For what reason should an [...?] of all the mass of inconvenience be produced at the requisition of either party /side of the parties/. Can it be /is[?] application[?]/ productive of any other effect. can it have had any other object, than the [...?] of all that mass of collateral inconvenience in a word than the opposition of the party on the other side.

    Oh, but, partiality was expected /suspected/ - was even experienced. In the present case The mischief by the supposition of it take place at all it will be in the shape of misdecision, of mere misdecision without delay: wait then for the decision, if it be erroneous there is time to apply for removal: if not erroneous, then there is no ground for it. But if not till after decision removal is not advocation but Appeal.
  • Title: [24 Dec r 1806 Scotch Refom To L d]
    Description: 24 Dec r 1806

    Scotch Refom To L d Grenville

    5 17(15

    Resolut. 10

    Advocation Suspension

    Again, On the other hand, Let it have been at the defendants instance that the advocation has been performed, advocation in lieu of and in contradistinction to appeal malâ fides is still the cause, but the object /effect and object/ altogether different. Delay he is sure of: and to the extent of the delay, competance with the demand is eluded, so much of the value of the benefit sought by the demand saved[?] to the defendant, taken by him from the plaintiff. But by the delay, coupled with the attendant vexation and defence, the plaintiff may be definitively disabled or deterred from pursuing his demand; or of the evidence necessary to make good his demand, a part in the whole [...?] have punished: in either case the effect of the delay coincidence with that of definitive misdecision /misdecision without/ to the benefit of the defendant's, to the prejudice and injury of the plaintiff's side.

    As for suspension, that is, the application demanding it, the effect of it, as contradistinctory [...?] from appeal being delay, and nothing but delay, the advocation having avowedly no other object, the effect and object of it, on which ever side applied for, is under the head of advocation already stated.

    On the part of the plaintiff however, application for /praying/ suspension praying advocation for no other purpose than that of suspence, i.e. producing delay, adds absurdity, palpable inconsistency and absurdity, to oppression and injustice. The suspension, what is it to do for him? to prevent him from having the effect of his own demand. Is that his wish? is it his wish to forgo and for [...?] the benefit sought by his demand? he has nothing to [...?] to withdraw it. So is his wish to forgo it, but only for a certain time? he has nothing to do but to suspend, himself to suspend the production of it, for and during that time.
  • Title: [24 Dec r 1806 Scotch Reform To L d]
    Description: 24 Dec r 1806

    Scotch Reform To L d Grenville

    Resolut. 10

    Advocation Suspension

    On a closer examination denial of justice will be found resolvable, either into misdecision or into delay: if /is it/ the result of any positive act on the part of the Court, the propriety of the term misdecision /it comes under misdecision clearly/ if applied to it is indisputable: is it the result of a negative act, a continued[?] act, the /to the/ character of which there are no assignbale limits, it comes under delay: delay to proceed with the cause of already entertained delay - delay to entertain it, if not yet entertained. Denial of justice therefore /then/, if by a negative act, merely is neither more nor less than delay: and i conversio[?] all delay that might be avoided without preponderant inconvenience /mischief/ in some other shape (vexation expence of[?] misdecison) is denial of justice while it lasts.

    Of misdecision the mischief belongs not more to one side than to the other: of the mischief of delay, the greater part of the mischief attaches itself exclusively to the plaintiff's side. Whether it be or be not [...?] of the defendant to be compelled to comply with the /a compliance with the/ demand, it is matter of inconveniences /matter of vexation/ to time[?] to be kept in a state of apprehension in respect of the being thus compellable /subjected to the burthen of the demand/. But the inconvenience thus attached to the Defendant's side has its counterpart attached to the Plaintiff's side. There remains the main[?] inconvenience of /from/ delay, which is the not being in possession of the good /desirable object/ the benefit which is the subject of the demand: and the inconvenience this article in the catalogue of the mischiefs of delay is exclusively attach itself exclusively to the plaintiff's side, having /and has/ nothing that corresponds to it on the defendant's side.