date

[094-173v] 9 Feb y 1808 on
[094-173v]

9 Feb y 1808

on L d Eldons Bill

4. In section 8 th, measures are taken for securing a decision in the case of a difference in opinion among the Judges with equal numbers on each side.

5. In section 9 th option is given to the plaintiff under which of the two Division of the Court he will commence his cause.

6. Section. A cause commenced under an [...?] shall not /is not to/ go from them[?] to any other Division than that to which such Ordinary belongs.

Then in the same section comes the prior abovementioned for regulating concerning the remittal of causes from Division to Division on occasion and in consideration of a connection ( ob [...?]) between man and cause.

6. Section 10 th provides that in each division, viz. it[?] will in the single-seated subordinate judicatories as in the one many-seated superordinate judicatories, the "The forms of [...?] and [...?] shall be the same: no alteration being to be made in either but by the already established [...?] of the whole Court.

8. In Section 12 provision is made for distributing between the two divisions the causes to which it shall happen to be depending at the commencement of the proposed Act.
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  • Title: [[094-160v] 22 Jan y 1808 Transpose]
    Description: [094-160v]

    22 Jan y 1808

    Transpose[?]

    1 [...?] contents[?]

    III Contents of Part III [...?]

    Powers to [...?]

    II. Contents or Topics of Part II. Powers for subordinate legislation, enquiry and Initiation.

    I. Sections 5,4,11 in part, and 9, are the sections occupied in giving powers ofr subordinate legislation to the Court of Session, exercisible by its present Quorum of 9, the Court sitting all together, in its undivided state.

    1. In Section 5 are contained four distinguishable parts /clauses/ In[?] clause 1[?] gives them power/ is given/ to regulate the mode in which the "[...?] of ordinances" shall be performed. 2. In clause 2 power to determine "what number of Judges shall operate either separately or together in the Outer House or Bill Chamber: 3. In clause 3, power is proved "if it shall seem expedient...that some of the said Ordinary Judges shall constantly or usually perform the duties of Ordinances in the Outer House or Bill Chamber":... others ... constantly or usually officials in the Inner House: 4 clause in part 4 th. power to determine the "Rotation" in which in the Outer House and Bill Chamber these Ordinances shall officiate.

    5. In Section 4 th power is given to regulate the days of sitting in the [...?] sections of the Court.

    6. In Section 11 th, power is given to regulate concerning the "forms of proceeding and process and in particular the mode of conducting the pleading, as well in the Outer as of the Inner House, and whether carried on by writing or viva voce. /single-seated judicatores of the Ordinaries as in the many-seated judicatores/

    7. In Section 9 th power is given to regulate concerning the remittal[?] of causes from one division to another, on the ground of a connection between cause and cause.
  • Title: [[094-159v] 21 Jan y 1808 L]
    Description: [094-159v]

    21 Jan y 1808

    L d Eldons Bill

    3. To another set of Commissioners is attributed /committed/ the doings of enquiring into and reporting upon the expediency, and eventually the mode, of engrafting Jury Trial onto the Scottish system of procedure in civil: Then I call the Great Seat Commissioners.

    The part which stands first is that which occupies itself in the establishment of regulations outright: regulations to take effect immediately by authority of Parliament.

    But observing that the effect of it is liable to be modified, and the design in an word[?] counteracted, by the regulations which the Court of Session are [...?] to make, I shall take the liberty of so far changing the order of the matters as to take first into consideration the part which occupies itself in buying[?] a foundation as above for regulations to be framed in future.

    The whole number of Judges, at present 15 to be divided into two sections eight in one, seven in the other: in the eight-seated section the Lord President of the whole Court to preside; in the seven-seated, the Lord Justice Clerk: each section to contain an equal number of the Judges of the Court of Justitiary, reckoning the Lord Justice Clerk as two. This forms the principal matter of the [...?] first section of the Bill. Section 6 th gives to each of those two sections, except as excepted the powers, duties and functions of the whole: section 7 th undertakes to appoint for each section a quorum number, two finding the task not quite so easy perhaps as at first [...?],
  • Title: [Feb y 1808 II. No Inner House Causes]
    Description: Feb y 1808

    II. No Inner House Causes

    Oblige the Judge of the immediate single-seated judicatory to decide /abolish at the same time the distinction between/ prohibit at the same turn[?] the Judge of the appellate, the many seated judicatory from taking cognizance of causes in the first instance[?], every thing is therefor placed upon a footing at once rational, simple and [...?] to judicial practice are the judicatories of England and of other nations.

    Immediate judicatory, single-seated, as in the case of the judicatories [...?] in rank[?], the Sheriffs Courts - appellate and in other respects superordinate judicatory, a many seated judicatory.

    That to [...?] i.e. /and thereby/ to the avoidance of the evils of superfluous delay vexation and expence, in the great mass /bulk/ of causes the superiority of single seated judicatories will it is supposed be out of dispute.

    Difficulty in the nation[?] of the cause, coupled with the vice of indecision on the intellectual part of the character of the Judge present one exception: for in a many sided judicatory the slowness of one Judge even though he be the presiding Judge, may find a remedy /be remedied to a considerable degree/ in the superior quickness of his colleagues: as in a team a lazy or weak horse is dragged by the others /by/, and his rate of [...?] made to keep him with theirs. But further to this mischief there are other remedies.

    In the great bulk of causes /suits/ never[?] is composed of those in which the fault has in the defendant's side, and the cause if it has reluctance or incapability ultimate [...?] to comply with the demands of justice. In these instances, there being no point really in dispute, no demand is made upon the evidence, none but upon the power of the Judge. And in this predicament stand none out of law, or perhaps nineteen out of twenty, of the whole number of suits.