date

28 Dec r 1806 Scotch Reform To L d
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[?]:
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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

    (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: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    10

    Resolut. 14

    Be pleased, my Lord, to observe, that it is only in case of malâ fides in the part of the Judge, that the danger of injustice from this arrangement can with reason be claimed /set down as/ the amount to any thing. For suppose danger of misdecision only simple misdecision, from malâ fides, the Judge below may be tempted, supposing the power given him for taking [...?] measures of precaution as in case /the event/ of misdecision, so pronounced by the Court above, shall prevent the mischief from being irreparable.

    I find some difficulty in conceiving that Court of justice, be the Judge ever so mean and ignorant, on whose part such malâ fides can with consistency be presumed. At any rate, of no Court can it be presumed but of that of the very lowest and least trustworthy class, whatsoever that be.

    But in Scotland - in the Court of Session, my Lord? In England, in any one of the Great Courts in Westminster Hall is the supposition of that sort and degree of untrustworthiness for a single moment so much as endurable.
  • 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.