date

10 June 1807 What there is of novelty
10 June 1807

What there is of novelty regards the newly proposed species of Appeals - the 2 d stage of Appeal to be presented from the Chamber of Session proceeding quod[?] hoc[?] in the manner of the Justitiary Court on the Circuit, to the proposed Chamber of Review.

"Provided always" (continues the Bill) "that whenever such Appeals shall be brought (it should have been whenever any Appeal shall be brought from a Chamber of the Court of Session to the Chamber of Review) "the party, at the same time that he enters his Appeal as aforesaid, shall lodge in the hands of the Clerk of the Chamber from which such Appeal is taken, a Bond for the Debt and Costs awarded in the said Chamber, with such Cautioner or Cautioners, as the said Chamber upon examination of the Cautioner or Cautioners upon oath in open Court shall approve."

The words in brackets I insert as containing in substance what seems altogether necessary to give any meaning whatsoever to this second part of the paragraph in contradistinction and addition to the first.

But hereafter arise divers questions. -

This second Bond required to be given on the presentation of the Appeal of the 2 d order, the Appeal from the Chamber of the Court of Session to the Chamber of Review why in respect of costs is it confined to the costs incurred in the Chamber of the Court of Session? For these costs what was deemed a sufficient security was already provided as we have seen - in and by the former part of this paragraph: this then is but actum agere[?].
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  • Title: [June 1807 Letter V VII Bail]
    Description: June 1807

    Letter V

    VII Bail-baiting

    The clause in containing the provision relative to the security to be found on the presentation of an Appeal instead of a Bill of Advocation or Bill of Suspension is that which is to be found in p. 19 of the Bill, constituting the 3 d paragraph on that page:

    In this clause, if my conception of it be correct, Appeals of two descriptions are meant to be provided for: Appeals from an inferior court to the Court of Session, i.e. when divided into Chambers, to one of the Chambers; and Appeals from any such Chamber into which the cause may thus have been brought, into the Chamber of Review.

    It is with a view to the first case that provision is made that "the party, at the same time that he enters his Appeal as aforesaid, shall lodge in the hands of the Clerk of the Court from which the Appeal is taken, a Bond with a sufficient cautioner or cautioners for the Debt and Costs, if any shall be awarded by the Court of Session."

    To this case nothing I imagine is meant to apply, which is said afterwards in the same paragraph, as will be seen presently, in relation to the examination, in open Court upon oath, to which in the other case cautioners are required to be subjected.
  • Title: [30[?] June 1807 Letter V VII]
    Description: 30[?] June 1807

    Letter V

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    In whichsoever of the two Courts the intention is that the examination of the Cautioner or Cautioners should be performed, other questions present themselves.

    The means provided by examination or otherwise for establ[ish]ing the sufficiency of the cautioner or cautioners on the preceding occasion were they sufficient or insufficient? If sufficient why on this succeeding occasion employ this novel security, imported from a foreign system of procedure. If insufficient, why not apply in the first instance to such preceding occasion the only security which is regarded as capable of answering the purpose?

    By the first Bond security was given for the debt together with such costs as might come to be incurred in and thence awarded by the Court of Session: the only additional costs requisite to be provided for in the 2 d Bond, are the costs that may come to be incurred in and awarded by the Chamber of Appeal. Why without necessity impose any heavier or fresh burthen on a party, for whose powers of purse and credit, the lightest burthen that could be imposed may so frequently be too heavy.

    Suppose the inferior Court from whence the Appeal comes in the first instance - suppose it within the Shireparish of Edinburgh, or in any other Shireparish at no great distance from the metropolis, the difficulty is comparatively small. But suppose it a distant Shireparish such as that in which the Orkneys or that in which the Hebrides are composed?
  • Title: [June 1807 Letter V III. Bail]
    Description: June 1807

    Letter V

    III. Bail-baiting

    To give any operation to this latter part of the paragraph is it not necessary to make a further addition or rather alteration - for example to some such effect as this: viz. {a Bond for such ulterior costs if any, as may come to have been awarded by the said Chamber of Review}?

    Supposing this to convey the draughtsman's meaning, then comes another question - In what Court was it intended that the examination should be performed? In the Chamber of Review, or in the Court below, the Chamber of Session?

    In the Chamber of Review? This construction seems rather the better adapted to the rest of the words of the paragraph as they stand at present.

    To the Chamber of Session? A subordinate sort of operation such as that of examining Bail seems better adapted to the subordinate Courts especially both of those being to this purpose fully and equally trustworthy, than to the station of the superordinate Court, the substitute to the House of Lords.

    N.B. In effect it appears as if the Appeal to the Chamber of Review was intended to be an Appeal of the 3 d order. Appeal of the 1 st order, from the inferior Court, to the Lord Ordinary: Appeal of the 2 d Order, from the Lord Ordinary in the Outer House, to the Chamber of Session in the Inner House; Appeal of the 3 d Order from the Chamber of Session to the Chamber of Review.