091-119.xml

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.

091-135.xml

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?

091-138.xml

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.