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?16/2 13/ 8 103
Ch. IX
(1 §. 5 Countersecurity — Shapes
Ch. IX
§. 4
1.
Art 1. Countersecurity
is security for the Defendant,
against oppression
designed or
undesigned, producible
at the instanced, or on
the behalf of the Pursuer,
by the exaction of
preliminary security
for the reddition of the
service demanded by
the Pursuer, as above.
2
Art 2. It is constituted
by and is in proportion
to, the responsibility,
satisfactional &
punitional, eventually
imposed on the Pursuer:
to wit, in case of
oppression, as above:
particularly if falshood
be employed in the
production of it.
3.
Art 3. Considered as to
the person on whom imposed,
it is either direct —
directly seated:
or collateral — collaterally
seated: directly
in so far as imposed
on the Pursuer alone,
collaterally in so far as
imposed on a person
other than the pursuer,
imposed on a Pursuer's
Bondsman, whose
consent to be subjected
to the burthen has
been procured by
some tie of self regarding
or sympathetic
interest.
Ch. IX
§. 5
4.
Art 4. Considered as
to time, it is either actual —
in so far as the
burthen of it is actually
imposed; or eventual,
in so far as the burthen
is only made
eventually imposable.
5.
Art 5. Of the employable
species of countersecurity —
of the shapes in
which of the judicial
operation by which
it may be afforded,
examples are the following
1. Impignoration pecuniary-exaction
of
the deposit of a sum
of money, under the
charge of the Registrar.
2. Impignoration applied
to things moveable,
of condensed value; say
for instance precious
stones, or gold bullion,
or costly paintings.
3. Impignoration, applied
to things moveable
of ordinary value: for
instance, household furniture,
or stock in trade
in any shape: by consignment
to some special
trustee, located by the Judge.
4. Impignoration, applied
to a thing immoveable,
by consignment
as above.
In these three cases, the
Impignoration may
be termed quasi-pecuniary.
Ch. IX
§. 5
5. contind
5. Impignoration of
miscellaneous and
detached rights: by suspension
and eventual
ablation of them.
As to these see Ch §.
6. Impignoration, applied
to the person —
by incarceration for
safe custody.
7. Impignoration by
quasi-incarceration.
Confinement within
boundaries not physical,
but ideal, prescribed
by Mandate.
6.
Art 6. In choosing the species
of countersecurity
the Judge will have
regard to the following
rules.
Rule 1. A shape or species,
by means of which
compensation may
eventually be afforded
to the Defendant, prefer,
so far as it goes,
to any by which no
such satisfaction can
be made to be afforded
thence.
7.
Art 7. Rule 2 Give to
the security the pecuniary
or quasi-pecuniary
shape, according
to the amount of it, in
preference to any other.
Reason 1. By the burthen
of compensation, the effect
of punishment, according
to the amount of it, is
produced; whereas by
barren punishment
no such effect as that
of compensation is
produced.
7. contind
2. As to satisfaction in
a vindictive shape this wd
equally be produced
by compensation to the
same amount.
8.
Art 8. Rule 3. In so far
as sufficient, prefer the
least effective shape:
eventual, accordingly
establishment & announcement
of eventually
imposable to actually
imposed, as above.
9.
Art 9. In so far as consented
to, employ
countersecurity with
less reserve than the
preliminary security
Reason. The individual
is the most competent
judge of the degree
of afflictiveness
in his own instance:
if the burthen be too
afflictive, he will not
subject himself to it.
10.
Art 10. Rule 5. with a view
to degree of afflictiveness,
never lose sight of the difference
between the situations
of the two parties,
in respect of pecuniary,
quasi-pecuniary
& other circumstances.
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