JB_168_197.xml

Title: [Dec r 1807 Table VII Jurisdiction]

Description: Dec r 1807

Table VII Jurisdiction Table Table VII

'.IV. Decision on Appeal, whether the only judicial remedy, against judicial misconduct? See Table VIII.

By the Statute of the 14 Ed.3.c.9. a remedy, applicable by the highest ultimate judicatory, was given against delay, considered as liable to result from misconduct[?] on the part of the judicature immediately subordinate.

JB_168_194.xml

Title: [25 Dec r 1807 Table VII. Jurisdiction]

Description: 25 Dec r 1807

Table VII. Jurisdiction Table VII

Notes

'.II. Stages of Appeal, how many?

Subordinate Topics.

1. In point of fact, in English and Scottish judication respectively, how far, in the several states of jurisdiction, the real number of stages coincides with the apparent: viz. in what instances is it greater?

2. Herein[?] if disguised stages of Appeal. In English Equity, procedure, for example. Report by a subordinate Judge (and[?] Master[?]) and Exceptions thereunto, argued before the supreme Judge: the Chancellor or the Master of the Rolls. So in Scottish procedure, in the Court of Session, vibrations between the Bill Chamber, and the two Houses, Inner and Outer. *?

3. In point of utility, what are general principles in the proper number of stages of Appeal? See Shapes of injustice

4 By what particular circumstances, topographical or logical (logical, resulting from the place of the cause in the field of judicature) are indications afforded for the diminution or augmentation of the number of these stages?

5. In point of fact, Comparative multitude of intermediate stages in Scottish judicature in comparison of English and Irish; no regard being had, in the case of the English, to the cases most frequently exemplified in practice.

6. In point of utility, how far it is desirable, that the number of stages, through which the suit is capable of being made to pass should rest on the arbitrary will of the Plaintiff or his Attorney, to be exercised either at the outset of the cause (ex. gr, by commencing[?] it either by Original, (which throws out the Exchequer Chamber) or by Bill, which leaves the Exchequer Chamber in) or at any intermediate period[?]: ex. gr. in Chancery by setting the cause down for hearing either before the Chancellor or the Master of the Rolls?

N.B. Analogous to this in criminale is the practice, which in capital cases, gives a power of pardon to the prosecutor, by leaving it at his option to ground[?] the indictment on a Statute subjecting the offence to capital punishment, or on a Statute subjecting it to a punishment less than capital, or on the Common Law.

JB_168_202.xml

Title: [2 Jan y 1808 Jurisdiction Table. Table]

Description: 2 Jan y 1808

Jurisdiction Table. Table VII

2

Notes

English distinction between King's Bench, Common Pleas, Exchequer and Common Law Chancery jurisdictions - a distinction the rational causes of which, if it ever had any have long ago ceased. Accident set up the barriers; mutual and universal rapacity has in many parts broken them down. Competition, a state of things which in the institution of the divisions was not only not arrived at but endeavoured to be excluded, brought forward of late years in the character of an advantage, to reconcile the people to a system of confusion produced by rapacity, working by fraud and usurpation.

Felicity of Scotch judicature, in being free from this sources of complication, as well as that produced by the distinction between Law and Equity.

Scotch Court of Exchequer: a judicatory necessary perhaps at the time of its establishment; less necessary, if at all, at present.

Absurdity and inequity, fraud and hypocrisy - See Duress attached to the distinction between Law and Equity: - the same Judge acting with equal regularity and complacency, in execution[?] of two repugnant rules[?] of action: two repugnant systems of substantive Law: stopping with one of his hands the work he has been doing with another: giving to A at one time, what on a call from B he is predetermined to take back from A at another. Common Law, a weaker sort of law, by which a precarious [...?] is sold at an inferior price: Equity Law, another sort of law, on which, as being stronger, a higher price is put. When, on payment of the Common Law price, the less opulent of two litigants has been put in possession of an article of property, the Judge, titles remaining unchanged, on securing from the Equity price[?], adjudges the property to the more opulent customer, and calls this Equity.