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1831. July 31. Constitutional Code.
Occasional, Why?
or 1. Why to principal add
occasional Deputes?
Reasons —
To save delay to where by
temporary pressure of business
permanent Deputes
are all occupied.
Of judges elementary functions
all to be exercised
by them but the imperative
to the purpose of
exercise as to persons
and things.
Suits in this case is important
not without consent
of parties: secure
if unimportant.
Of Arbitration,
the advantages,
with new one.
or 1. Object of these two sections,
giving all the advantages
derivable from arbitration,
with new ones.
Arbitration
2 cases - all
comprised
or 2. Provided for here is every
case for arbitration. If
both parties agree as to the
judge, so much the better:
but sometimes they cannot:
and a man who would not
consent to any single judge
whomhis adversary would consent
to, might consent to his adversary, appointing
another one judge, if he appointed
another.
Referees, three.
Why?
3 To Referees two, one chosen
by each, a third must be
added — Why? — Use by a
malâ fide suitor gaining
by non-decision would
be located an accomplice
who would never consent
in any decision.
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Objection, such
referees unless objection
4 If no application
to judge, compliance none:
if application, by him
alone is the authority
exercises. If then it be
without reading the record,
he makes himself responsible
for this untried Depute
without the security
afforded by the permanent
Depute. If he reads the
record no time is saved and
the degree is grounded
(as an Appeal) on evidence
in not the most trustworthy
shape.
Answer, no:
Answer
1. Demand, compensation
for wrong, the parties by
their consent ease the
judge of responsibility.
2. As to giving his fiat to
the exercise of coercive
power, it may be left
to his discretion and then
his responsibility will
depend upon himself
3. Many are the cases
in which considering the
swellings of the demand
the circumstances of the
parties and the character
of the permanent Depute
compliance with the
decree will be given
as readily and surely as
if it were a Depute
permanent.
Arbitration
must be provided
for
5 or 1 Necessary to be provided for,
under every Code is arbitration.
Under this frequency
will be minimized. Causes
of the resort to undue
technical proceedings are
1. Adverseness of that system
to the collateral ends of
justice.
2. So to the direct ends:
on which last account,
only be a mala fide
suitor will it be performed.
Under arbitration wants
Powers needful-
two-
1. Attendance-security
2. Execution-security.
6 or 2 1. Of power to secure attendance
of evidence-holders
2. Of power to give execution
to the decree.
Of want of attendance-securing
power, evil
consequence none, so far as
each party can command
attendance of his own
evidence-holders.
Of execution-securing
power the want extends
to every case.
English Procedure
7 or 3. Provision made by English
Law to the opinative decree
of the Arbitrator
adding the imperative
decree of the judge.
Judge-made
law adverse
to Arbitration
or 4 Necessarily unacceptable
to the law brotherhood was
this mode of escape from
their clutches. Thence not
by judge-made but by
Parliament-made law
was it established and not
till William the 3d's reign:
since which on every
occasion they have
clogged it with technicalities diminishing its
efficiency and bringing it
into disrepute.
Judges
authorization
necessary
8 or 3. If without judges authorization
men were able
to exercise such prehensive
power, by arbitrators inconfederacy
with sham
parties to a sham suit
evil unbounded might
be produced — adversaries
or rivals in trade
might be called off
from their business,
disclosion of secrets in
trade extorted by examination:
yes
Without evidence-compelling
power, evidence none
from willing and partial
evidence-holders.
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Ch.XV. Immediate Deputes
Occasional
I. Occasional Deputes, why. (1-2.)
II. . (3.)
III. Objection answers such referees and . (4.)
IV. Arbitration must be provided for. (5.)
V. Powers Needful: 1. Evidence-Securing; 2. Exception-Securing.(6.)
VI. Judge-made law averse to arbitration. (7-8.)
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