date

6 July 1807 13 Letter V
6 July 1807

13

Letter V

II. Litigation promoted

3. Keep down costs: meaning as usual, reimbursement of costs:- not the money which each or either party has disbursed, but that money which the party against whom the decision passes has the disadvantage in the cause, is obliged to pay to the winner, in reimbursement for the disbursement made on his part:

On the party on whom a burthen in this shape is imposed the recent wrongdoer, the defendant, it operates as so much punishment: which on the other party, the injured plaintiff, though it does not operate as satisfaction viz. as for the damage by the wrong, yet it operates per tanto in alleviation of an additional and collateral burthen, antecedently to the removal of which satisfaction for the wrong can not ever take place. Accordingly you should keep down costs as well as satisfaction and punishment, and for the same reasons.

When the money that had been disbursed on the occasion of the suit by the winning party has been disbursed by him, if under the name of costs he receives any thing more of this surplus or any part of it be given the name of costs such name will evidently [be] fictitious and improper. Considered as going into the pocket of one party, it is so much satisfaction: or, in case of his having no personal interest in the subject matter of the suit, but on the public account, performing the function of prosecutor instead of a public officer, and for a reward, and thence by contract, it forms part of the reward: considered as coming out of the pocket of him who pays the costs, it constitutes so much punishment. But whatever be the name it goes by, it will pro[?] tanto operate in the way of satisfaction or in the way of punishment, or in both at once, and must therefore be kept down for the same reasons.
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  • Title: [22 June 1807 4 Letter V]
    Description: 22 June 1807

    4

    Letter V

    II. Litigation

    III. Def t malâ fide

    Costs

    Forced disbursement, whether in the way of original disbursement or in the way of reimbursement - costs in English law the word used in both cases - this burthen though pro tanto, viz. according to the apprehended probable amount of it, the apprehension of it acts or helps to act in the character of a check upon litigation viz. upon litigation in whatever shape, and thence amongst others in the shape of litigation, though a malâ fides on the defendant's side yet beyond that amount, it is of course without action or without effect in that way or any other.

    If by factitious delay, continued for one, for two or for any other number of years, matters are so ordered that the defendant shall, clear of all burthen on the score of satisfaction, make a profit to the amount of £200, it is not the assurance of a burthen, though it were ever so strong, in the shape of costs amounting to £100, £150, no nor £199 that will have the effect of preventing him from bearing his part in the making of such delay: deduction made of the profit on one side counterballanced by the loss on the other, there will always remain in the three several cases a profit of £100, £50, £1, neat and without any thing to counterbalance it.

    In no case, let them amount to what they will, do costs paid by the defendant either in the way of original disbursement or in reimbursement of costs disbursed by the Plff. operate, as to any part of them, in satisfaction of the main demand made by him in and by the suit, unless in so far as gratification of enmity may have been the object of it: in no case does the expectation of any part of them which finds its compensation as above, in profit extracted from the delay, contribute to constitute in two[?] instances a check to the delay, contribute to lessen the inducement by which he is urged to bear a part in making it.
  • Title: [28 June 1807 Note Letter V]
    Description: 28 June 1807

    Note

    Letter V

    Every evil regarded by the proposed wrongdoer as liable to attach upon him in the character of a burthen in the commission of the meditated wrong, operates on him por tanto (i.e. according to its value, its apparent value, in his eyes) in the character of a check, tending to restrain him from and thereby to prevent the commission of it: every evil, whatsoever name regarded as so attached; for example under the name of satisfaction (burthen of satisfaction) punishment, or costs.

    But so long as satisfaction (full and compleat satisfaction) remains in any part unrendered, no burthen to an equal amount in any other shape, constitutes in an equal degree to the purposes of the law: viz. to that of making satisfaction for the evil of such wrongs as the law has not succeeded in the prevention of: nor yet to the purpose of doing what is capable of being done towards the prevention of the like wrongs in future.

    For it may be that the benefit looked for by the wrongdoer in the commission of the wrong consists in part or altogether of the view of the evil or burthen intended thereby to be imposed upon the party wronged: (as in the case where satisfaction of the vindictive hand is reaped by the party wronged at the charge of the wrongdoer:) and in this case it will be generally impossible to say what degree of burthen falling upon himself may not be regarded by the proposed wrongdoer as compensated for and outweighed by the pleasure attendant on the prospect of seeing a burthen even of less real value, imposed upon and borne by the object of his ill-will.
  • Title: [1 June[?] 1807 Letter V II]
    Description: 1 June[?] 1807

    Letter V

    II. Proper Remedies

    2. Costs, though as against delay as will be seen at large by no means in the present case an appropriate remedy - by no means an appropriate restraining check, as not unless by some accident, keeping par with the force of the generative impulse - will still act in restraint of factitious delay, in proportion to its magnitude.

    In the anxiety to keep down the amount of the allowance made under the name of costs has accordingly composed another parcel of standing policy with the partnership.

    Costs - putting upon the word a meaning not much different from that which is put upon it in technical practice - viz. the arrangement by which the party in the wrong is laid under the obligation of reimbursing to him in the right such money as the defence of his interest[?], or rendered it necessary for him to disburse in an arrangement which, without any other expression or abatement[?] than what may be suggested by the relative indigence of him at whose charge it should be made, is prescribed by common honesty at the suggestion of common sense.

    To refuse this reimbursement to the plaintiff when the right is on his side - is to despoil him of his right and violate the engagements contracted by the sovereign in his character of the author of that article of the substan[tive] branch of the law by which he stood invested with that right: to despoil him of it - viz. in every instance in which the means necessary to be disbursed in pursuit of the right exceeds the value of it. In this case the effect of the refusal is to give encouragement pro[?] tanto[?] to dishonest men to inflict on their respective adversaries injuries in all imaginable shapes and to any amount not exceeding the expence necessary to be incurred for the chance of obtaining satisfaction at the hands of the Judge.