date

6 July 1807 12 Letter V
6 July 1807

12

Letter V

II. Litigation promoted

If for example the legislator orders you to give double costs viz. double that part of the adversary's disbursements which you are in the habit of ordering to be reimbursed and which perhaps may not amount to much more than the costs he has been out of pocket, strike off 25 per cent of what you ought to give, giving instead of £100 but £75 where the allowed single costs would have been £50: if treble costs, instead of the £150 give less than double costs, for example £87:10 '.

If any body asks you why you thus break the law, talk of humanity: and remember once for all, that humanity is a limited fund, of which the wrongdoer, your partner for whom your are trustee, is entitled to the whole benefit, and that the party injured has no claim upon it.

[Remember on this as on all other occasions, that] the more openly and the more frequently you disobey the law, the better: it brings the law into contempt, and accustomes the people to look to the proper authority, that is to your undeclared and undiscoverable will, and not to the declared will of the legislature, as the arbiter of their fate.

Let your ears be ever open to receive complaints, and your hands ready to apply relief: for example, upon receipt of £10 grudge not to take off an over charge of £5.

As to certainty and proximity, proceed, as above in the cases of satisfaction and punishment.
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    Letter V

    II. Litigation

    It is not always enough to keep down satisfaction unless every thing else to which it can happen to operate as a check to the commission of wrong be kept down with it. It is only by the prospect of the evil attached to the obligation of rendering the satisfaction that it is in the power of satisfaction to have that effect: and in any other shape, such as that of punishment or that of costs, a quantity of evil in appearance the same will by the view taken of it in prospect be productive of the same effect.

    In every dimension of its value, in magnitude, in certainty, in proximity you must therefore remember to keep down value, that is apparent value, value as it appears to the eye of the proposed wrongdoer, as well in the instance of punishment and costs, as in the instance of satisfaction, as above.

    Observe how well this has been done in regard to costs. In a multitude of instances the legislature considering that under the name of damages, the operation of fixing the magnitude of the satisfaction was always performed by Juries, of whose practice nothing could be foreknown, employed upon costs, as a sort of burthen the quantity of which was not thus exposed to uncertainty, and to make the check the stronger imposed in some instances death costs, in other truth[?] costs.

    Thus was an injury done to the partnership, and was not to be considered. Where the legislature has said give twice the amount of the costs we give but one and a half as much: where the legislature says give treble costs, we give less than double.

    Besides counteracting the wicked designs of the legislature in these particular instances, this example does a world of good in other ways.
  • Title: [/25[?]/1 June 1807 Scotch Reform To]
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    Letter V

    II. Proper Remedies

    The importance of this object in the eyes of Judge and C o may be judged of by the risk they were content to run rather than give up the pursuit of it.

    By Acts of Parliament in great number and variety, under the notion of preventing malâ fide defence, and thereby removing the obstacle to bonâ fide pursuit, in the event of judgment in favour of the plaintiff, the burthen of extra costs have been imposed, that is endeavoured to be imposed on the Defendant: in some instances, the allowance to be made under the name of costs has been directed to be doubled; in others, trebled.

    By Judge and C o how has this engagement been fulfilled? how has this direction been fulfilled? When the order is to give double costs what they give or profess to give is single costs, with half single costs, and no more: where the order is to give treble costs, what they give or profess to give is single costs, with half single costs, and a quarter of single costs, and no more:- not so much as double costs.
  • Title: [22 June 1807 (5) Letter V]
    Description: 22 June 1807

    (5)

    Letter V

    II. Litig.

    III. Def t malâ fide

    Costs

    1. Till costs reimbursed Plff's satisfaction commences not but present amount and danger of non-reimbursement may be and are concealed[?].

    2. Costs in so far as known & certain operate on the solvent def. in restraint of litigation, thence proper to class them and involve them in clouds[?].

    Whatsoever allowance be provided for the Plaintiff under the name of satisfaction, such satisfaction does not commence, in fact, nor therefore ought to be considered as commencing till after reimbursement made to him, compleat reimbursement of all monies actually disbursed by him on the occasion of the of the suit.

    Nor yet indeed directly speaking till satisfaction have been made for all damage, if any, by loss of interest, non-commercial or commercial, ordinary or extraordinary, by damage direct or consequential, produced by the forced disbursements so extracted from him.