date

10 June 1807 (2) Letter V
10 June 1807

(2)

Letter V

VI.3. Appeal vice Advocation

But in the view which I should expect to find the learned Reformer taking of the subject I can conceive what might appear to him a good reason for permitting the change in all cases in which the value in dispute does not exceed the larger sum in question, viz. £50: whereas according to the other interpretation the reason of the mode of limitation appears to me altogether incomprehensible.

The procedure by Appeal he would say, is summary: but though, to save expence, vexation, and delay, summary procedure may be borne with; yet, as a security against misdecision, which is the main end of justice, it can never be regarded as equally trustworthy with the regular mode. In causes of inferior importance, even up to the value of £50; so they do not exceed that value, let this imperfect mode of procedure be admitted: but when a cause is of such importance as that the value in dispute rises above that sum, then it is time that the regular mode - the mode affording the best security against misdecision - should take place.

But upon the other construction, and without the word not, how will the[?] matter stand? In causes of the smallest importance - so small as not to rise above £12 this imperfect summary mode of procedure shall be admitted: also in causes above £50 value and so upwards to the highest degree of importance possible. But between these causes of the lowest importance and the causes of the highest importance between £12 and £50 there is an intermediate class of causes to which the indulgence shall not extend.

/+It is of the exception that in this construction would be made of this intermediate and comparatively narrow class of causes that the reasons appear to me to be altogether incomprehensible. Therfore it is that I have ventured to suggest the above alteration in the character of a correction to an erration either of the pen or of the press.
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    In the section which forms the 2 d paragraph on the 28 pages of the Bill the ground of the provision there made is to me so incomprehensible that, for a solution to the difficulty I can not help suspecting the omission of such a word as not. Instead of a Bill of Suspension or a Bill of Advocation presented to the Court of Session as at present, what is provided is that in the case therein mentioned, the proceeding, though still before the Court of Session, may be by way of Appeal, "after the mode and form by which Decrees of Inferior Courts are brought under Review by the Lords of Justiciary on the Circuits" viz. in virtue of the Statute 20 Geo.2.c.43. By that Statute the mode of proceeding, it is declared but without further explanation, shall be "in a summary way" and in respect of the value of the subject matter of the suit, the faculty of Appeal is limited to the cases where it does not exceed £12 sterling.

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  • Title: [24 April 1807 A7 7 Letter V]
    Description: 24 April 1807

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    Sometimes I could almost fancy that the object of this provision - I mean always the professed object - was to gain in point of security against misdecision: thinking at the same time to gain or to lose (for I protest I can not say which) in point of exemption from delay. For here a power is given to the Court - (a power though not accompanied with obligation) to employ the new and favourite security against misdecision (that I presume is the use or at least one use of it) Jury-trial.

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  • Title: [24 April 1807 A5 5 Letter V]
    Description: 24 April 1807

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    3. The analysis of this remedy is not yet compleat.

    A remedy against delay, it is in the like proportion a remedy against expence: observe then the application of it. It is not intended for any thing better than a makeshift. Against misdecision it is not regarded as affording a security equal to that which is afforded at present by the regular and established mode: if it were, that existing mode would be abrogated compleatly, and this new one compleatly substituted in the room of it. It being a principle of the technical system that the security against misdecision is in the direct ratio of delay, vexation and expence, this, like the institution of the Small Debt Courts, and every other institution that either affords or promises diminution of fabricated delay sacrifices (so it is understood) a portion of the security against delay, with those its et ceteras, for the purchase of a proportionable quantity of security against, or exemption from, inconvenience in those other shapes.

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