JB_092_107.xml

Title: [22 June 1807 (7) Letter V]

Description: 22 June 1807

(7)

Letter V

II. Litig.

II. Def t malâ fide

These phenomen...[?] no serent[?]. Judge & Co: they have invested themselves of them accordingly.

The less the check applying itself in restraint of litigation, under whatsoever name - burthen of satisfaction, burthen of costs or any other on either side (on the present occasion the defendant's side) is in value, meaning apparent value as it appears in the eyes of the litigant - in value, magnitude, certainty or uncertainty, proximity or remoteness, being taken into the account, the less its force and efficiency in such its character of a check: the greater, the greater.

Whatsoever be the value which an object viewed from the Defendant's side of the suit possesses in the eyes of the Defendant (value being composed as above, of magnitude, certainty and proximity, multiplied into each other) that value will be different in the eyes of the plaintiff, the object being viewed from the plaintiff's side.

If the given sum considered as about to come into the Plaintiff's pocket in the shape of gain the value will in the eyes of the Plaintiff, be greater than the real: and so in the case of the Defendant.

If the same object considered as about to go out of the Plff.'s pocket in the shape of loss the apparent value will in the eyes of the Plaintiff, be less than the real: and so in the case of the Defendant.

Such happily on the hole[?] for mankind is the constitution of human nature: hope is predominant over fear: the phenomenon has been noticed by Adam Smith and others.

JB_094_413.xml

Title: [21 March 1807 Table II. Mischiefs]

Description: 21 March 1807

Table II. Mischiefs of Delay in Judicatory

I. Mischiefs present, thence certain, and co-eval with the Delay -

I. To the prejudice of the Plaintiff's side

1. Denial of justice - thence In cases where the subject matter in demand is a determinate article of property, moveable or immoveable, loss of the use, together with the enjoyment and profit attached to it.

2. In case of money

loss of interest - in the case of a non-trader, ordinary interest; in case of a trader, / extra-interest;/ commercial interest: rate equal to that of profit in trade.

3. Vexation; from the contemplation of the loss thus incurred.

4. Expence, according to the costs, natural and factitious, attached, under the system in question, to the pursuit of justice.

II. To the prejudice of the Defendant's side.

1. Mischief on the score of Denial of justice, alone; but advantage. If the Defendant be in malâ fide, this advantage, though correspondent to the Plaintiff's disadvantage, is not equal to it; the absence of the article importing, to the Plaintiff, so much less: the presence, to the Defendant, so much gain: the enjoyment from which, the circumstances equal, is never equal to suffering from loss.+

+(See Bentham par Dumont, Traité de legislation[?] et pen.[?] Paris 1802. Tom.II. p.27. also pp. 308 to 351, in which the subject of satisfaction (for injury) is considered in all its branches)

2. As above, N o 1.

3. Vexation; if the Defendant be malâ fide, none: if in bonâ fide, considerable: to wit from the apprehension of an unfavourable result.

4. Expence, as on the Plaintiff's side.

II. Mischiefs Contingent

1. Final loss by misdecision, from deposition of evidence.

2. On the score of testimonial, and in some instances real evidence, deposition of freshness, and thence of trustworthiness and persuasiveness on the part of the evidence.

3. Deposition in the character of matter of satisfaction, in the hands of the Defendant, applicable to the purpose of satisfaction for the benefit of the Plaintiff.

4. Death of the Plaintiff; to whom alone satisfaction can be rendered without losing the greater part of its virtue: thence deposition of satisfaction, pro tanto, even where it is not lost in toto, viz. by refusal of the law to afford it to his representatives: - a denial of justice, established under English jurisprudence to a deplorable extent.

5. Death of the Defendant; by whom the satisfaction should have been rendered: thence deposition of satisfaction, either through inability on the part of representatives, or through established denial of justice, as above.

6. Ulterior delay:- the necessity, or demand for which may have been produced by fresh incidents sprung up during the course of the [...?]; and so on, more and more delay, with out any certain limit.

7. Expence: the necessity of it imposed by the fresh incidents; as above.

8. Vexation, produced by the fresh delay and expence.

1. Final loss by misdecision; to the prejudice of the malâ fidé

Defendant, none:- to d 0 of the bonâ fide Defendant, the same as to the Plaintiff.

2. As above. N o 1.

3. Mischief by deposition of the matter of satisfaction in the hands of the defendant himself to the prejudice of the Malâ fide defendant, none. &[?] contra, advantage in different shapes, according to the nature of his circumstances, and situation: viz: by the faculty of dissipating, concealing, exporting for future use, or carrying off, the value in dispute.

To the prejudice of the bonâ fide Defendant, deposition of the matter of satisfaction (viz: for his costs of suit) in the hands of the Plaintiff.

4. Death of the Plaintiff. to the malâ fide Defendant, no disadvantage in the respect in question, but an advantage. To the bonâ fide Defendant, a disadvantage in respect of costs, as above.

5. Death of the Defendant. To the malâ fide Defendant far[?] as concerns exemption from the painful sensation of loss matter of a consolation: to the bonâ fide Defendant, matter of increased regret: viz. on the score of loss of satisfaction for vexation and expence of suit, at the Plaintiff's charge.

6. Ulterior Delay. to the malâ fide Defendant, so much advantage, to the bona fide Defendant, so much disadvantage as above.

7. Ulterior Expence as on the Plffs side. To the malâ fide Defendant over-ballanced by the delay and consequent chances of misdecision in his favour:- to the bonâ fide Defendant, uncompensated.

8. To the malâ fide Defendant, compensated, as above; to the bonâ fide Defendant, uncompensated.

JB_092_104.xml

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.