date

28 Feb y 1807 Letter V IV.
28 Feb y 1807

Letter V

IV. Application Modes

Removal 1. some regard to decision. 2. in consideration of decision.

Application; made to one Court in the character of a superior Court, on the occasion of a cause commenced or proferred to be commenced in another Court, may have any one of │ │ objects.

1. Causing a definitive judgement pronounced in the Court below to be reversed: i.e. judgement for defendant, changed to judgement for plaintiff; or judgement for plaintiff changed into judgement for defendant.

2. Causing a definitive judgement to be modified: viz. if in favour of the planitiff. 1. by taking away something from what is given; 2. by adding something to what is given: 3. by substituting something not given to something given: 4. by annexing conditions either 1. to what is given, or 2. to the defalcation, the addition, or the substitution above-mentioned.

3. Causing an interlocutory judgement to be reversed as above.

4. Causing an interlocutory judgement to be modified, as above.

N.B. All these four modes of application are comparable under the word appeal taken in its largest sense.

5. Appeal in the case where the decision complained of was expressed by the verdict of a Jury and the object of the application is to have the cause substituted to another Jury, is called in English law Motion for a New Trial.
Similar Items
  • Title: [28 Feb y 1807 Letter V IV.]
    Description: 28 Feb y 1807

    Letter V

    IV. Application Modes

    7

    6. Writ of Error

    6. Appeal from a decision (called a judgement) pronounced by a Court of Common Law; in a case where nothing that has passed at the trial before the Jury is included in the subject of complaint, is called a Writ of Error.

    7. Appeal from a decision pronounced by a Court of Equity, the application being to another Court considered as a distinct as well as superior Court is called simply an appeal: so likewise is the case where the Court a quâ is a Spiritual Court or Court of Admiralty.

    8. After a definitive decision pronounced by the Judge of an Equity Court, an application addressed to that same Judge and praying an alteration in such decision, is called a Bill for a Rehearing.

    9. - if to a different Judge succeeding the former in that same Court, a Bill of Review.

    10. Causing a suit already instituted in an inferior Court to be removed into a superior Court without notice taken whether before or after judgement, definitive or interlocutory.

    To this head belong in English law the instruments called a Writ of Certiorari and a Writ of Pone: in Scotch Law, the instrument called a Bill of Advocation.

    N.B. The Writ called Certiorari is applicable to other purposes besides.
  • Title: [2 May 1807  After Juries or Justices]
    Description: 2 May 1807

     After Juries or Justices[?] to be inserted

    [Insert Table]

    Affirmed Reversed Remitted Withdrawn Dismissed

    1st Period 58 25 4 46 28 38 88 152

    2nd Perios 51 13 11 42 36 15 64 109

    109 38 15 88 64 53 152 261

    [End of Table]

    E1 (4) (1)

    Letter V

    Ch.12. Appeal list mutilated

    §.5. Execution - stoppage

    injustice amount

    In a former part of this letter I saw occasion to remark the inconsistency in not trusting to the highest local judicature in Scotland with the power of giving provisional effect to their judgment, notwithstanding Appeal, subject to the obligation of taking whatsoever arrangements might be necessary, according to the nature of the case from preserving such execution from the mishap of having become, in case of reversal, the instrument of irreparable damage.

    Imperfect as they are, the documents already furnished as above, are sufficient to place in the strongest as well as clearest light, the relative amount as well as the existence of the mass of injustice of which this incongruity has been productive.

    In the two periods, making together 14 years, judgments of the Court of Session, reversed on appeal or modified (viz. or remitted) 53: neither reversed nor modified, but the appeals either withdrawn or dismissed for want of being prosecuted, 261: within a trifle 5 to 1. But in every instance in which the judgment was in the Court above deemed so decidedly correct as neither to be reversed nor modified, so long as execution was stopped by the appeal, so long and as to so much was injustice done: 5 instances in which injustice was done by the stoppage, for every one in which it was saved: not that in this one injustice need have been done, or in the common course of things would have been done, had the powers necessary to the prevention of it been given as above.
  • 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.