JB/056/016/001

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1824. Jany. 9
Collectanea

3.
Scots Appeals

4. The practice of the whole business of the Court
being conducted through the medium of written pleadings,
deprives it's decisions of the weight of public opinion,
adds incalculably to the costs and delay of litigation,
and renders nearly nugatory that most important
of all steps, the verbal debate. Thus the conduct
of the argument is thrown, in almost every case,
into the management of junior counsel, who alone
write papers, except in important cases, and the
Court and the country are deprived, in the majority
of cases, of the invaluable aid of the older counsel;
or if this should be afforded in a verbal pleading,
it is received after prepossessions have been given
which they may never know, and which therefore
they may fail to remove.

If the facts could be set forth simply and
shortly in a separate paper, to be received by all
concerned as those on which alone the case is to be
decided — and no case should be decided until
these are ascertained — these would suffice for the record
of the case, and written pleadings might be altogether disposed
with, or if preserved, they would be much
shortened and simplified, because nothing need be
said as touching the facts, and both parties would necessarily
address their argument to the same facts. It would
require more detail than the limits of a Letter permitts,
to show how this object can be attained.

5. In Scotland, there is no Court purely for the decision
of cases in equity, and very uncertain notions
are entertained with regard to what equity is. Perhaps
a good definition of Scots equity is, a fair and equitable
decision of a case so as to administer substantial
justice but no determinate rule.

'Ex nabili officio' the Court of Session exercise an equitable
jurisdiction, and no one has ever said that this
jurisdiction has been abused. But if in the exercise
of this power, there are no fixed rules for ascertaining
how far equitable feelings have mingled with the other
reasons for the judgment, the decision on the point
of Law is either deprived of all authority, as a precedent

Identifier: | JB/056/016/001 "JB/" can not be assigned to a declared number type with value 56.
Date_1	1824-01-09	Marginal Summary Numbering	4-7
Box	056	Main Headings
Folio number	016	Info in main headings field	Collectanea
Image	001	Titles
Category	Collectanea	Number of Pages	1
Recto/Verso	recto	Page Numbering	F3
Penner		Watermarks
Marginals	Jeremy Bentham	Paper Producer
Corrections		Paper Produced in Year
Notes public		ID Number	18072
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