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Scotch Reform Delay and Complication and delay TableExplanation
(f) [Extra delay]
The ordinary or
standard quantity of
delay, (with its insuperable concomitant
vexation, and its
natural and necessarily
frequent concomitant
expence —) this ordinary
quantity of delay considered as
the standard of comparison
and reference,
where any quantity
is spoken of under the
name of an extra
quantity, is no more than a portion
only as such that of a
single day that From a quantity
being mentionedstated
and no more being is stated
from experience as actually allocated to
such a proposition
of the Small Debt Causes such
as forms a majority
of the such causes of all
sorts annually commenced
in England.
See Mrs Hulten, back in the Birmingham
Court of Causes in Requests Birmingham 1787
in the Preface: and as stated
by the highest authority
in Scotland is stated
as sufficient for the purpose.
See Mr Hutchinsons
Book on the Office of a Justice
of Peace &c Edinburgh
1806 (revised by Mr the
Right Honourable Slay Campbell Lord
President of the Court of
Session) Pref. p. XIV.
and p. 137.
And this proportion of
a day is for each cause
a very small one: not
so much as 5 minutes:
for in the Birmingham Court
130 causes per day were
decided on an average:
whereof but a small part of which number a 2d attendance of either party took place.
Explanation.
(c) [Natural continued] Complication
Delay
Nature
of the not only of the Commotion —
causes of complication
and delay indicated in
this Table not only may
this or that one are
spoken of as they will be
seen to be, so many
natural causes of delay:
and that unavoidable,
i.e. not avoidable consistently
with due security
of argument against undermining
the main and
direct end of justice.
But from this is a must not
be inferred, that
whenever any man a certain whenever in this or that
individual
suit any one of these causes
of complication has
place, in that suit
an extra quantity of delay
delay must in point of necessity/will necessarily must unavoidably
physical or take place: in the
i.e. that more
days than one will be
in any sense be necessary for doing justice
to the suit. On the contrary,
without producing
any demand for
adjournment not one
only of these causes
but almost any number
of these causes
may have place, operating
to each of them
to a considerable extent.
The only cases causes which
are sure to render extra
delay absolutely necessary
are Nos i, ii and
being cases the demand for
the delay being in these cases
constituted by the absence
of some source or sources
of evidence the presence of
which is necessary to right decision.
Explanations
(c) [Unavoidable
Under avoidab the
attribute unavoidable
as applied to delay
must be are commonly
comprehended two cases
which require carefully
to be distinguished —
1. Where greater dispatch
is physically impracticable,
which is as
much as to say impossible
2. When it is only prudentially
impracticable
i.e. not practicable without
preponderant inconvenience
in respect of
some other or others reasons the end or ends
of justice.
In the case of the physical
impracticability if greater
dispatch the fact being admitted the propriety
of the delay, whatever it
be, is not susceptible of
dispatch.
In the case of alledged prudential
impracticability, the propriety
of the delay will frequently be
open to dispatch: thereon whereupon
the dispatch will have
for its proper ground, the a
comparative extent of the mass of
inconvenience on each
side.
Unless the propriety of
the the quantity of extra delay existing in the
case in hand be examined
into upon the principle,
superabundant
and factitious delay to
any amount may
find receive a sort of verbal
and fallacious justification,
by means of the application
some such attributes as
unavoidable applied to
it, as hath been by done for
example by Blackstone. See Col.
Explanations
(c) [Complication]
Complication abstracting setting
aside mode of its consequences
is not of itself an
evil. Taken into the account
its consequences
its natural consequences
and finding it is a
great evil most serious
evil: its tendency being
in proportion to the generality
of it to breed delay,
vexation, expence
(including lawyers profit) misdecision,
justice — in a word the
whole catalogue of the
correspondent and opposite
to the mode of justice
Accordingly to fabricate and
keep up this evil in the greatest
a master device, to which most of the artifice of under
denomination, may be seen to be subservient.
(c) [Sources]
In this Table, those
of the heads general heads
expression of the general
causes of complication and
delay these are put
first, of which the efficiency
is apt to be most
considerable.
Considered in a logical
point of view the sources
of those evils may perhaps be more
distinctly comprehended by
being placed raised in the following
order: the figures in which indicated
the requisite heads under
which the matter is arranged
in the order observed
in the body of the Table
1. Demand. Plfs demand
the subject matter of it complex.
2. Ground of demand in a civil case complex.
viz: the has both: viz:
collation or instructive
event or events by which it
is created.
3. Ground of demand in a criminal
case: it is
by the offence.
4. Source or Sources of evidence: i.e.
witness or witnesses, in the
case of testimonial evidence.
5. Source or Sources of the
evidence, in the case of
written or real evidence.
6. The source or correspondent
heads, on the defendants side.
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