date

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

Scotch Reform To L d Grenville

1 4

Resolut. 13

Interloc. Unapplicable

Translated out of jargon into plain English, the distinction of English law between possession and right of possession between right of possession and right of property, is but /neither more nor less //no other than/ the distinction between a provisional set of rights and a definitive right, between a defensible and an indefensible one. With the help of this jargon, so successful have English lawyers been in the organization of their chaos /system of confusion and pillage/, that where real property is in question, a judgment really final in effect is almost without example: Judgment in [...?] is but interlocutory /provisional/: judgment on a Writ of Right or decree on a Bill for [...?] possession is the final judgment that corresponds to it.

If in any case, without experience[?] to punishment, or even to disrepute, it be in the power of the Court below, by an interlocutory judgment, or a series /chain/ of interlocutory judgments, to produce the effect of a final one, the jurisdiction of the Court above, the House of Lords, is by the prohibition here proposed /in question/ laid at the feat /mercy/ of the Court below: and the view here given of the matter be correct, the cause will in comparison be fine[?] and narrow, in which this virtual /indirect/ [...?] would experience any difficulty.

For producing usurpations of this sort - usurpations increasing in a series without limit /to which there is no certin limit/, how much less [...?] and boldness would be necessary to Scotch Judges than what has so often been exemplified by English ones!
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  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    Adoplusida?[?] 1 3

    Resolut. 13

    Interloct[?] Unapplicable

    There are particular cases: and supposing the Resolution to be in these respects too extensive, its /the/ over-amplitude might be corrected by apposite exceptions.

    The /But/ proposed prohibition of Appeals against Interlocutory Judgments assumes and supposes a clear and invariable line of distinction in existence drawn between interlocutory judgments and final ones. Does /Exists then/ any such law exist my Lord? I do not mean in form, but in effect? Is is altogether clear tha neither precedent nor analogy can afford either warrant or plausible [...?] for framing /pronouncing/ judgments that shall be interlocutory in form, final in effect? Take almost any final judgment at random, is ther /can there be/ any difficulty, in framing a judgment, which shall /being/ be in all other respects the same, with the single difference of its being declared to be provisional only, reserving to another time the definitive disposal of the matter /subject matter/ in dispute till another time? This interlocutory judgment, (for under that appellation surely it could come,) this interlocutory judgment, for so long as it continues unmodified /unaltered/, produces the effect of a final one. But by whom is it to be altered? /But who is there to alter it?/ The Court below will not: and the Court above, the House of Lords, this Resolution being carried into act, can not.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville 2

    Resolut. 13.

    Interloc. Unapplicable

    Give judgment for the Plff? - That would be to determine that the evidence /testimony/ if which it knows nothing, would had it been given, have been conclusive. Shall it simply suspend the final judgment, [...?] it to the Court below, one of the Chambers of Session, to cause the testimony yo be collected? This would be - not [...?] entertaining an Appeal against an interlocutory judgment alone, but something worse. The delay that would have been occasioned by the appeal against the interlocutor alone would it have been too great to be endurable? Here is that same delay produced[?], plus /with the addition of/ the delay intervening between the interlocutor and the final judgment. Say that the delay /interval/ between interlocutor and final judgment would be the same as whether the final judgment were pronounced before Appeal, or afterwards: if nothing be lost by the prohibition put upon the Appeal against the Interlocutor alone nothing in part[?] of dispatch would be lost, still nothing would be gained.

    What if it be a case for examination in perfection[?] in memoriam, or for examination Scoticé Latina-Anglicé de bona esse?[?] At the time of calling for the evidence This witness on /at/ the point of death or expatriation: long before the House has given its Judgment (By the preceeding Resolution there is the new Chamber of Review for the cause to go through first[?] the testimony is given: Moreover the Table of Resolutions, if duly consulted might serve to prove not that it /nor let it/ should be altogether forgotten, that we are dying at all ages.

    It is by an Interlocutor that provisional possession is deterred: but the effect of such delivery if made to a wrong person may be irreparable injury. Irreparable injury by waste: timber cut down and sold /the land stripped of its timber/: the house pulled down and the materials sold. Irreparable injury to person yet more serious. Woman delivered to a wrong husband: female orphan to a seducer instead of a proper guardian. When Virginia was put into the hands of the nomine[?] of Appius[?], it was or might have been by an Interlocutor.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    (6

    Resolut. 14

    Costs

    But may it not happen to the judgment of the Court below to be unjust, and does not the very existence of a Court of Appeal assume the /a/ probability of such injustice?

    Undoubtedly, my Lord: neither course (where is the course that is?) is altogether free from danger. But, be pleased, my Lord, to weigh danger against danger.

    1. Suppose that out of every hundred judgments pronounced by the Court below 49 are wrong, no more than 50 right. Even upon this supposition (and your Lordship sees how extravagant ten[?] are[?]) there is a clear gain to justice by giving the provisional possession to the plff instead of the defendant after a judgment below in favour of the plaintiff gives a clear gain to justice. But in /among/ the most corrupt and shaped[?] Court /Judges/ that ever sat, could the proportion of wrong decisions have ever been any thing near so large?

    2. In such case, be pleased to obseerve, my Lord, here is a provisional possession, which as between plaintiff and defendant unless some third hand be found for it, must go to the one or the other: the question is - to which? I say to the plaintiff: and this can upon the supposition that a between right and wrong decision right is not in any degree more probable than wrong. Let the discernment and other qualification of the Judge below be equal to 0: or let the decision be by crop and pick[?]: