date

6 Jan y 1806 Facienda Outline
6 Jan y 1806

Facienda

Outline

Appeal & Jury

To prevent irreparable damage by the party in the wrong, especially when /if/ conscious of wrong, as well as to help do away /remove/ the motive for /final cause of/ proposed delay (/waste, embezzlement,/ for instance by dissipation or asportation of the subject matter in dispute /demand/ delivery of a minor to a wrong guardian, of a female to a wrong husband, and the like.) as well to help remove the final cause of delay and malâ fide defence, let the judgement of the primary Court to receive its execution, notwithstanding Appeal, whether made to a jury sitting in the same Court, or to a metropolitan Court of appeal: provided always understood that adequate security be provided against like irreparable damage in the hands of him in whose favour such judgment has been pronounced, by pledges real or personal, or by sequestration in mara [?] tortiâ[?], according to the manageability of the party and the nature of the case.
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  • Title: [6 Jan y 1807 Facienda Outline]
    Description: 6 Jan y 1807

    Facienda

    Outline

    Appeal & Jury

    For saving unnecessary delay, vexation and expence by journeys and demurrage[?] of witnesses; power to the Judges of the regularly competent forum (the defendant's) to transmitt the cause with consent of parties to any other forum being in those respects the most convenient: any party not consenting, and thereby preventing the transmission, to be chargeable with the difference in point of expense.

    To either party dissatisfied with the judgment given in the verdict of a first Jury, power to appeals for a new Trial either to the Judge of the primary Court, or (as in case of misdirection to the Jury or other misbehaviour imputed to that Court) to the Metropolitan Court of Appeal at Edinburgh: transmitting for that purpose the Minutes of the Trial from the Court below to the Court above.

    Power thereupon to the Metropolitan Court of Appeal either to give judgment upon the said /these/ minutes, or to order a new Trial either at Edinburgh before itself or in any other more convenient Provincial Court from which the Appeal was made.

    To prevent Appeals to Edinburgh by an opulent party for the mere purpose of delivering or disabling an indigent adversary from the prosecution of his demand or defence, power to the Court below to exact of the Appellant, consideration had of their respective pecuniary means, a competent sum to be applied, under the direction of the Court, to the defraying of the Respondents's share of the expence.

    Power to the Metropolitan Courts of Appeal to order, on reasonable cause other /ulterior/ new Trials without any express translation as to number, but in each instance on condition that the applicant deposit as above, a sum sufficient for the opposite party share of the expense, and being security for the eventual payment of a sum predeterminable by the Court, applicable in the name of satisfaction for the vexation and expence of such impending trial, in the event of a Verdict unfavourable to the applicant.
  • Title: [6 Jan y 1807 Facienda Outline]
    Description: 6 Jan y 1807

    Facienda

    Outline

    Appeal & Jury

    On view of the Verdict given, on the occasion of any such Trial ordered by the Metropolitan Court of Appeal, together with the Minutes of the Trial power, to the Court to declare the Judgment final, on the principle of the perpetual Injunction granted by the English Courts of Equity.

    N.B. The question how far after a judgement already pronounced the case of any Court shall be open to applications for reversal or modification requires to be settled upon all comprehensive principles - comprehending demands of all sorts. The perpetual Injunction above mentioned is a technical /technically manufactured/ remedy to a technically produced /generated/ /begotten/ inconvenience. In general judgment except in case of appeal /arrest of judgement/, or writ of error, is conclusive on both parties; admitting no fresh action, (unless the useless and abusive action in lieu of execution in that same judgement) for the same cause. Hence it is that in general there is no room for application for perpetual injunction here[?] in general no ground to operate upon. In the fictitious action at Common Law employed for trying titles to property in immoveables (ejectment) one of the consequences is that fresh and fresh actions may be brought by the losing party in each instance to the end of time. Abuse infinite, remedy an enormous grievance.
  • Title: [Aug 1806 Scotch Reform Facienda]
    Description: Aug 1806

    Scotch Reform

    Facienda

    Power of Deputation

    The office of Judge Depute would be a sort of School of probation in which gentlemen and especially young gentlemen would be glad to distinguish themselves, and afford each of them an experiential proof of his fitness for a permanent and profitable situation in the same honourable line of reason. I understand that the reasonableness of this expectation has actually been exemplified in the London Police Offices.

    The Benches might then be filled in part if not in the whole with men brought up ab initio in the pure love of justice instead of the indiscriminate defence of right and wrong followed by that line of injustice which is inseparable from the habit of profiting from it.

    Already provided with a system of local /[...?]/ Courts capable of doing what Criminal Courts profess to do but never have done nor can do, giving /rendering/ to each more justice at his own home, the field of judicature in Scotland saw the germ of perfection already planted in it. She has preserved the practice [...?] which England has so long lost.

    Appeal from the local Courts to a Metropolitan Court after final judgement but not before. No Advocation suspension &c

    Appeals for delay obviated by the means mentioned above.