date

30 Der[?] 1806 To L d Grenvill
30 Der[?] 1806

To L d Grenvill

Facienda

Outline

 After a page of introduction, proved as follows

1. Judge, but one in each Court /Judicature, single handed /seated/ throughout:/, viz. the Sheriff Depute, as at present; but with the power to appoint a deputy or deputies /substitute or substitutes/, to sit in his stead, to act in his absence, or in case of press of business, to act at the same time, but not in the same cause: In being civilly[?] responsible for the good behaviour of such his deputes[?].

2. The Judge, as well as every officer under him to have a competent Salary, in lieu of all profit, direct and indirect, by fees: no fees to any office in his gift, or under him. His deputies /his substitutes/, neither fees nor salary their remuneration consisting, as in the case of the Country Magistracy, in power and dignity, with the expectation of succeeding, such of them as may be disposed for it, to the office of Judge. The occasional function of deputy will thus serve as a sort of noviciate or apprenticeship to the office of Judge /judicial office/. It may be supposed that a man will have sitten for some time by the side of the Judge, before he comes to be seated in the place of the Judge.

3. Mode of Procedure, purely[?] natural: the parties appearing in the first instance in their own persons, in the presence of the Judge, and each or will at his own instance was[?] at the instance of the adverse party, speaking upon oath (or what is equivalent) in the character of witness or even[?] as party: neither to be heard on any occasion without that same search for truth.

Thus in the ordinary case respecting /in respect of/ residence: viz. when the residence of both parties is within the local judicature of the Court: or when the residence of the plaintiff being not within that jurisdiction, he thinks fit to address himself to the forum of the defendant. The case in which the plaintiff does not choose thus to follow /will not give his attendance at the forum of/ the defendant is a case comparatively speaking extraordinary, requiring a separate provision, of which afterwards in its place.
Similar Items
  • Title: [30 Dec 1806 Facienda Outline]
    Description: 30 Dec 1806

    Facienda

    Outline

    4. For the purpose of bringing about of this simultaneous appearance, this can not but be an ex parte application on the part of the Plaintiff: if there be any thing special in the application it is to the Judge or his deputy that he must address himself (always upon Oath). If the nature of his demand be such as to be capable of being expressed by the filling up of a blank form, to serve as a summons for compelling the simultaneous attendance of the defendant, this part of the business may be transacted by a subordinate officer, indeed[?] for instance the Registrar or Clerk: but even here to intitle him to impose upon the defendant the trouble of attendance, he must assert upon oath by the filling up of a blank form his own persuasion of the justice of his demand, and of the necessity of his taking this course in order to obtain the effect of it: and by submitting to a penalty, or by means of some other security, bind himself to appear at the time appointed for the meeting, and whether he appear or fail, to render in case of his not having justice on his side, other satisfaction to the defendant for the vexation and expense if any, attached to the forced attendance.

    5. If it be the wish of the plaintiff to have the attendance of the defendant in Court secured by arrest instead of summons his application must be made to the Judge, who before he grants his warrant for that purpose, must satisfy himself, as well as it is in his power to satisfy himself of the necessity of such infringement upon personal liberty, except in particular cases of necessity which it may be allowable to the plaintiff to employ himself or others in the arrestation of the defendant but upon no other terms than that of conveying him directly /taking him with him/ into the presence of the Judge.

    N.B. In Scotish judicature such examination is a preliminary to arrestation,if not in all civil cases in some. By English Judges, to get Plffs [...?], defendants liberty has for ages been sold for fees, to any body that will buy it -[...?] no questions asked.
  • Title: [1 Jan y 1807 Facienda Outline]
    Description: 1 Jan y 1807

    Facienda

    Outline

    Where the abode and thence the forum of the defendant is at such a distance from that of the plaintiff that he does not chose to pay /give his/ attendance there, he has his option between two courses for providing as far as can be provided the effect of first /initial/ meeting coram[?] judice[?], he has his option between two courses: 1. One is by application to his own judge, causing the examination of the Defendant to be taken at the Defendants forum vivâ voce, by that Judge, (with liberty to appoint /appointing or not appointing/ an agent for the purpose of interrogation ex advisio[?] the Judge of the Plffs forum transmitting for that purpose to the Judge of the defendant's forum, a set of interrogations proposed nu the plff and amended if necessary by the Judge: as in England in the system of Ecclesiastical Courts the Judge of one district avail himself in this way /for this purpose/ of the assistance of the judge of another district sub mutuo vicissituduous obliatu[?], as the phrase is: do this for me now, I will do as much for you another time.

    In this case correspondent power on the defendant's part, for extracting the testimony of the plaintiff.

    In this way in lieu of conjunct hearing and examination in pretence /enter[?] [...?]/, comes the reciprocal material ex parte hearing and examination inter absentis.

    In this same way the proofs of extracting testimony in the best shape may be /is capable of being/ carried on as amongst any number of plaintiffs and defendants at a distance.
  • Title: [1823 Feb. 28 Greece. J.B's Observations]
    Description: 1823 Feb. 28

    Greece. J.B's Observations etc.

    Judiciary resumed

    As the only effectual preventive of delay, power to every Judge to appoint Deputies in any number, to sit at the same time with himself for the dispatch of business in different causes, but let no emolument be receivable by any such Deputy at the expence either of the public or of individuals. No doubt can be entertained of willingness on the part of a sufficient number of sufficiently apt individuals to undertake so honorable an office. The having served in such office might and should be made a necessary qualification, for the being placed in the office of Judge. The choice thus proposed to be made of a Deputy should be declared to the parties and objections received. The principal Judge should not be sitting at home unoccupied while any such Deputy of his was sitting for if such inaction were allowed two evils might follow, 1 to save his own reputation a partial Judge might assign the function in this or that particular case to some connexion of one of the parties who for the sake of the profit, from partiality, would be content to submit to the disrepute: 2 The office of principal Judge might moreover be converted into a sinecure. In case of sickness such power of deputation is matter of absolute necessity.