date

[...?] June 1805 Evidence Introd
[...?] June 1805

Evidence

Introd

Ch. Procedure Technical

''.3 [...?...?...?]

''.3. Encreasing expence encreases profitable, as well as diminished unprofitable suits

Nor was the hearing of the Court of unprofitable suitors the only service yielded in an indirect way by the augmentation of expence.

While it diminishes just litigation, it encreases unjust /Though on both sides just litigation is /was/ diminished, unjust is /was/ encreased/: viz on the part of that one of the suitors /two adversaries/, demandant or defendant, who is able and intent and willing to pay the price set upon judicial service, while his antagonist is unwilling or unable /shut out by inability or reluctance/. A shape[?] was thus opened, and that a most public one, for the sake of /the facility of/ Oppression: and that in either of two forms, according to the texture and exigency of the customers case. In the state of things whatever wrong /injury/ be indicated he commits it in the first instance, trusting for success and [...?] and success to his adversary's list coming up to the price /[...?] from his price/ put by the man of law on the ticket he sells in the lottery /litigation/ of procedure /justice/ /litigation/. In the other case, he borrows /hires/ and employs the hands of justice, the very hands of the Judge and his associates and subordinates in the production of the mischief. In the former case indeed, the profit to the man of law is not quite so assured /enduced[?]/ as in the other; since of the party marked out for injury /[...?]/ /destruction/ be altogether without the hope /bereft of the prospect/ of being able to pay the price put upon the chance of redress, he will institute no suit: in which case the oppressor gains /obtains/ his ends gratis compleatly gains his ends, and which the man of law as compleatly loses his. But another case, and perhaps a no less common one, is - when the party injured, blinded by his own resentment and deceived by the advisor whose interest it is to deceive him /puts in the character of [...?]/, commences the /a/ suit , without power to carry it to an end. Meantime the wrongdoer, assured before hand of his being provided with a sufficient [...?] of the pecuniary means of defence, harrasses him without worry /defends /fights/ the ground week by week/ plying him all the time with those obstacles and stumbling-blocks which the man of law [...?] in /constitute the stock in trade of the shape of justice/, and from the sale of which his profit is derived: But while either side thus plays off its artillery, the other is obliged to do the same: so that in this case the wrongdoer is pays[?], does not reap /[...?]/ the whole of the profit; but admitts /shares it with/ the man of law, his instrument and accomplice, to a share.
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  • Title: [14 June 1805 Evidence Introd]
    Description: 14 June 1805

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    In both cases the mischief that is done is alone /equally/ the handy-work of the man of law /collateral but not less certain result /produce//: the fruit of the tax imposed by him, and for his own benefit, on that sort of [...?] which goes by the name /to which he gives the name/ of justice: but in one case that is done by mere terror of the man of law, which in the other case can not be done without force actually applied: in the one case the man of law sees the whole profit reaped /got in/ by the wrongdoer, and gets some of it for himself: in the other case the wrongdoer is forced to let the mother of the iniquity into a share of the profits, and the business goes on in partnership. If it were possible to come in for a share in both cases /all cases/, the man of law of course would not have a single door open through which the wrongdoer might then creep in and get to himself the whole of the profit without paying for it and put the whole profit into his hands without allowing any part to leave[?] to when he is indebted for the whole. But the two cases are so mixed that they can not be separated: so that /and thus/ as to this part of the cause, the man of law is obliged on each individual occasion to take his chance /leave the matter to chance/.

    The option is - to act immediately in the character of plaintiff, or eventually in that of defendant.

    Upon this plan there is at any rate no suit in the first instance, and either there is no suit at all, or at any rate none till after the main wrong is done: but the wrong done, the wrongdoer rests, as it were upon his oars, and if thereupon a suit does take place, the part which he acts in it is the defendant's part /part of the defendant in the cause/.

    If he prevents the species of injustice (over and above the vexation expense and delay in the case of litigation) the species of injustice produced by the plan of injury is that which is called /comes under the denomination of/ failure of justice and which, according to the law[?] of conduct maintained by the part injured has for its immediate cause, either Non-Demand, [...?], or misdecision to the prejudice of the plaintiff's side: misdecision /ultimate misdecision,/ being under the technical system the result that takes place, as of course, wherever the party who is in the right is liable to pay the price set upon a decision, when given on his side in favour of his side.
  • Title: [14 August 1804 Procedure False]
    Description: 14 August 1804

    Procedure

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    1. Expensiveness: viz: in respect of that part /portion/ of the which goes in toto into the pocket of the man of law.

    2. Expensiveness again: viz: in respect of all those parts of the expense - which to not themselves go into the pocket of the man of law, but are so contributed and -------, that the disbursement of them is necessary to the disbursement of those other parts which do go into the pocket of the man of law.

    In respect of the above portion of the expense the interest is direct and manifest /obvious and indubitable/. Others there are in respect of which the interest is less clear and decided: the case being such that by a given /lot of/ expense, to an amount not susceptible to liquidation, a man gains or stands a chance of gaining in one way, what he loses or stands a chance of losing in another.

    1. In regard to expenses which neither go into his own pocket nor are necessary to any others that do, upon a first view that lawyer is no gainer, after an ulterior view /----- ----- -----/ he is a loser. He is a loser, because the more a man is made to pay to other people /forced to expend in other ways/, the less he can afford to pay to lawyers.

    In another way, this seemingly unprofitable /wasted/ expense is not altogether without its use to the man of law. The general principle and practice of imposing upon suitors factitious and unnecessary expense is sanctioned by it if the aggregate mass of factitious expense in particular share that goes into the pocket of the lawyers is covered by it.
  • Title: [9 July 1807 + D Scotch Reform]
    Description: 9 July 1807

    + D

    Scotch Reform

    18

    2 o

    Letter V

    II. Litig. promot

    v. Particular Directions concerning the species of Stellio stiled fortunicola: composed of malâ fide defendants, solvent or insolvent, combating for ultimate success through delay, by means of title-destruction casualties.

    1. In regard to such casualties as naturally and of themselves possess this property, such as deposition of evidence, do what you can to favour their taking effect: concerning which see above, p. │ │.

    2. These not being of themselves sufficient, take any casualties whatever, the more numerous and diversified the better, and bestow upon them this force and virtue - for examples, see above p. │ │.

    3. To make room for casualties of both sorts to take place, as well as for so many other good purposes, remember to have ready for the market, in addition to the minimum which you provide and establish gratis, as large an assortment of delays, and in pieces of the greatest length, as possible: besides those which the customers on both sides are forced to buy, whether they will or no.

    VI. Particular Directions concerning solvent Defendants combating for gratification of enmity:

    Whether in the Station of defendant or plaintiff, wrongdoer before or without litigation, defendant upon and in consequence of litigation, i.e. of a demand made in the quality of plaintiff claiming satisfaction for the wrong, plaintiff not having sustained any wrong, but claiming satisfaction on that pretence, on the pretence of having ascertained it, the more mischief you put it in the power of a man to do to another, the more extensive and prosperous this branch of your trade. This faculty, the jus urandi[?], you will take care to put in every man's power to purchase, and to the largest amount possible, in either capacity, and so leave it to his choice. The best choice he can take is certainly to become suited, viz. Plaintiff in the first instance, because in this case your profit is if any thing more certain than his, though both go hand in hand: whereas in the other case viz. when he committs the wrong in the first instance, and without coming to your shop for tools, if the party wronged is to such a degree helpless or timorous or well informed and prudent as not to take any legal steps to right himself the wrongdoer gains his ends without you and robs you of your due: but as to this you must take your chances.