JB_092_122.xml

Title: [17 June 1807 (2) Letter V]

Description: 17 June 1807

(2)

Letter V

II. Litigation

III. Plff. malâ fide

I. Def t malâ fide

Whatsoever in the individual instance in question happens to be meant by the word possession (for, familiar as is the term nothing can be more vague and diversified and frequently obscure than the idea it represents) various are the causes in which it may happen to it to have taken rise. It may have devolved[?] upon the wrongdoer, previous to the plan formed for the ultimate appropriation: as in the case where the possession falls to him is put into his hands in the character of representative (Executor or Administrator called by the law or by the individual) to an individual deceased or Trustee of any other among the numerous classes and descriptions of Trustee. It may have been acquired by him by a strategem: it may have been put into his hands, in the hands of one to whom he is become representative in the character of mortgagee[?] or holder in pledge, by the injured plaintiff or one whose representative he is. Immoveable it may have been put into his by a tenant of the right owner: moveable, by any person into whose hands it had come, no matter in what way, on the footing of a deposit.

Though his plan of operations is in its main features the same as that of the malâ fide plaintiff proceeding in the way and for the purpose of extortion, his situation is in divers very important respects much more advantagious. If it be an article of marketable value, his means for repelling and smothering the adversary (the injured plaintiff) are on average greater than those of the malâ fide plaintiff by the whole amount of the marketable value of the subject matter of his possession, the subject matter or object of the dispute: and this over and above the advantage which, in a case that admitts of doubt the circumstance of possession affords in respect of the prescription it affords of the rights being on the possessor's side.

058-377.xml

Title: [14 June 1805 Evidence Introd]

Description: 14 June 1805

Evidence

Introd

Ch. Procedure Technical

Upon the other plan the wrongdoer does no part of the mischief above or by his own hands, he does the whole of it by the hand of the man of law. The individual /The destined victim/ marked out for ruin is bruised and oppressed /The oppression heaped upon the destined victim is produced/, party by the burthen imposed /thrown/ upon him by the ultimate decision pronounced to his prejudice, in observance of the [...?] observed put /proferred/ in by his oppressor in the character of plaintiff. the decision purchased of the Judge and his associates by the demandants heavier purse - party by the intervening[?] and continually encreasing burthen gradually heaped upon him by the mass of expence, vexation and delay heaped up /that has been accumulating/ during the continuance of the cause.

Of these two distinguishable efficient cause of oppression, the latter is the one that naturally speaking will of the two be the more frequently brought into use. For unless the suit be of the individual class[?], and punishment the mischief aimed /intended/ to be produced by it, it will fall in no other shape than that of pecuniary loss. but in this case, the loss consisting in general in the obligation of giving up something /some article or mass of property/ that a the defendant has already in his possession, the value of it will to the extent of that value supply him with the means and possibility /faculty/ of defending himself: while on the other hand, it may also happen /a case not to be overlooked, is that [...?]/, that before the hour of ultimate decision is arrived /come/, the means of defence, though at the outset not inconsiderable, may have been exhausted.

Upon the whole, there are two distinguishable burthens, which upon them second place, on the oppressor, that is every man who is rich enough may be sure of heaping upon the head of his intended victim by the hands and the means so carefully provided for him by the man of law: + the oppressor, that is every man who has money and wickedness enough to [...?] /pay/ up to the price set /put/ by the man of law /in this[?] aggressive warfare/ upon his assistance: the oppressed /the destined victim/, that is every man who is unable to pay the price put by this same official hand upon the penalty of self-defence.

+ the burthen of expence vexation heaped up during the continuance of the cause, and the burthen produced by the misdecisions pronounced to the prejudice of the defendant's side, at the conclusion of it.

JB_092_226.xml

Title: [5 June 1807 (23) Letter V]

Description: 5 June 1807

(23)

Letter V

Litigation - Prevent. Promot.

II. Def t malâ fide

[written in columns. Column 1]

10. Taking alike effectual care that whatever interval of delay, natural or factitious, may intervene, between the time when the subject matter in dispute ought to have been delivered up by the defendant, and the time in which by execution of the judgment given against him he actually does render it, either[?] money or money's worth be rendered by him, in the name of satisfaction more than equal to the sum of the advantage derived by him in all shapes from the intervening respite.

11. Taking alike effecual care that in regard to whatsoever article or articles of value may be provided to be rendered by the defendant in the name of satisfaction, (of which in the case of when the subject-matter i.e. the principal subject-matter of the demand is a determinate thing or assemblage of things, moveable or immoveable, restitution or delivery thereof after litigation can never constitute more than a part, the value of what is so delivered shall in point of magnitude exceed rather than fall short of whatever was orignally due.

12. So also in point of certainty: insomuch that the value of it in that respect shall not be diminished or suffered to be diminished by any defeasance or defeasances: i.e. that to no event or events, except the free consent of the Plaintiff or his representatives, shall be given any such effect as that of exonerating the defendant or his representatives from the obligation of rendering the satisfaction so due.

13. Providing, in all cases, on the score of costs, reimbursement to the party in the right of all expences produced on his part by the wrongful complaint or defence of the party in the wrong: saving the care necessary to prevent him in the right from profiting by this arrangement to oppress his adversary by extending the obligation to unnecessary expences incurred temerariously or in malâ fide: and saving the regard due to the comparative pecuniary circumstances of each, in case of considerable and manifest disparity, where the conduct is alike pure from blame.

[column 2]

Mesne profit

10. By means of delay, factitious delay, ready-made for his use, or which he is empowered to make, securing to him, and clear of the burthen of compensation such interest or profit, non-commercial, ordinary or extraordinary, as his circumstances enable him to make, on the capital equivalent to or representative of the subject-matter in dispute.

11. In regard to whatsoever provision might be proper to be made (viz. in the main body of the law) on the score of satisfaction (or compensation for the wrong (viz. the wrong meant to be encouraged) keeping down the value of it in point of magnitude, lest the deficiency produced in it as above in respect of want of certainty and propinquity being made up for in quantity, it should deter the proposed wrongdoer from becoming the character of malâ fide defendant.

12. So, in respect of certainty: viz. by defeasances, as numerous and unconsiderable as possible: producible by so many contingencies, of which how obvious soever in itself the physical event may be the legal effect thus given to it shall be as little as possible exposed to be desired[?] and anticipated by the light of reason and common sense. I. Ex.gr. 1. Death of the wrongdoer. 2. Death of the party injured.

13. Keeping down in the same view the quantity, and thence the value, of any other pecuniary allowance which it may have not been possible to avoid making (viz. to the plaintiff) at the charge of the defendant, where the decision is in disfavour of the defendant's side. Ex.gr. under the name of costs: i.e. reimbursement of that share of the expence of litigation which in the first instance fell on the plaintiff's side.

14. So, in regard to certainty:- viz. to the general rule for the allowance of costs, attaching exceptions as numerous, diversified, and irrational - and thence as [...?] and previously unascertainable as possible.