date

PRIVATE 22 June 1807 + Contents
PRIVATE

22 June 1807

+ Contents p.8

Scotch Reform

1 o

Letter V

Letter V

II. Litigation

II. Def t

malâ fide

Be the Defendant in malâ, or in bonâ fide, the burthen he combats against may be either the restitution of a benefit most commonly a source of pecuniary burthen, most commonly a pecuniary profit, or the susception of a loss: and the defendant's obligation to take upon him the burthen, to which corresponds the plaintiff's right to have it cast upon him, may have been created by misconduct on the defendant's part, by misconduct on the part of a third person, or by mere accident, without misconduct on the part of any body.

Whatever be the judgment pronounced on the plaintiff's demand, if among the objects aimed at by it with a view to the individual case in hand the making compensation for any factitious delay created by the defendant, or with a view to future similar cases preventing the fabrication of like delay, the effects of the judgment on both sides of the cause, that is on the interests of the parties on both sides, will be taken alike into the account and due provision made in relation to them. Neither from an act productive of delay any more than by any other state of things or event in the production of which it is possible that the conduct of the defendant could have any share, should the defendant be permitted any clear benefit, whether in a pecuniary or any other shape for so often as he sees a preponderant probability of his deserving any such benefit from factitious delay, so often may he be expected to do what depends upon him towards causing it to be made. In like manner neither from delay, nor from any other such state of things or event as above, should the plaintiff be left to sustain any uncompensated burthen. Why? because where gratification of enmity constitutes, or enters into the composition of the object by which a wrongdoer has been engaged to take upon him the state and condition of defendant, the benefit reaped or expected by the defendant, being constituted by the correspondent burthen imposed on the Plff., increases along with it.
Similar Items
  • Title: [22 June 1807 (3) II. Litig]
    Description: 22 June 1807

    (3)

    II. Litig.

    III. def. malâ fide

    Costs

    So far as concerns delay, factitious delay considered as liable to be fabricated and at the existence or by the industry of the defendant, a burthen to a given value, whether in a pecuniary shape or any other, thrown upon the defendant by the delay, or by whatever may have contributed to the production of it will operate pro tanto as a check tending to prevent his using his endeavours for the production of such delay: and thus whether the burthen in question considered as attaching upon the defendant, be or be not accompanied with any corresponding benefit attaching itself to the plaintiff's side.

    Thus it is that defendant's costs - the disbursements made by the defendant for the purpose of carrying on the suit on his side are to the amount of them productive of this effect.

    Thus it is that Plaintiff's costs - the disbursements made by the Plaintiff, or rather those expected by the defendant to be made by him, the costs on this side likewise, are in the event of the Defendant's finding himself under the obligation of reimbursing them or any part of them, are, pro tanto, productive of the like effect.
  • Title: [12 June 1807 (3) 10 Letter]
    Description: 12 June 1807

    (3) 10

    Letter V

    II. Litigation

    3. Of expence, considered independently of the portion of lawyers' profit extractible from it, the principal use and application consists, in the encouragement it gives to such malâ fides causes, in which the suit being the instrument looked to and employed for the commission of the wrong, the malâ fides is on the plaintiff's side: his object being either to extort something from the defendant by means of his inability to bear the expence, or simply to oppress him by the burthen of the expence.

    In both these cases expence is not only the instrument most immediately applicable, but almost the only instrument applicable to the purpose with any certainty of success.

    But expence, the burthen of it being considered as attaching itself alike to both sides of the cause, operates accordingly as an encouragement to wrongs and to litigation on the defendant's side, in as far as it affords a prospect of inability on the plaintiff's part to obtain redress, viz. by his inability whether to begin, or to continue in the character of plaintiff. A striking enough instance of this inability, and of the advantage made of if may be seen in the Defence of Usury.

    4. Vexation is an inseparable concomitant of each of these three other evils: of uncertainty, or at least of the sense of it on the part of him, whose wish it is alike to avoid committing and suffering wrong, but who knows not how:- of delay, more particularly on the part of the plaintiff against whom, while it lasts, it operates as a denial of justice; but also on the part of a defendant whose, being in bonâ fide, objects in the suit naturally are to escape from the wrong he is ensnared with by the suit, and to effect such escape as soon as possible:- of expence of course in every case.
  • Title: [[168-189v] 25 Dec r 1806 Scotch]
    Description: [168-189v]

    25 Dec r 1806

    Scotch Reform To L d Grenville

    To Refd.[?] ev

    Letter V

    Review Chamber

    In the encouragement provided by /held out to/ the technical system for the malâ fide defendant, two branches may again be distinguished: the one consists in the chance of ultimate success, whether by deposition of evidence, or by disabling or delivering the plaintiff from persisting /persevering/ in his demand: the other consists in the advantage /benefit/ of staving off the time for delivering up the matter in dispute. The former of these encouragements is quo[?] abito[?] to the plaintiff's and the defendant's side /both sides of the cause/: the latter is peculiar to the defendant's side. The former is matter of contingency; the latter is certain and indefensible.

    In the great majority of causes that here come before your Lordships /the House of Lords/, the matter in dispute is wholly or in part pecuniary, property in whatever shape, included. In this case the nature of the certain part of the benefit of delay is presented to view in the clearest terms, /at once in the clearest light,/ by the [...?]-interest of money.

    In this case the value of the contingent part of the benefit receives the small income from the certain /assured/ /secure/ part: plaintiff in the right, defendant in the wrong, and knowing himself to be so, fights him off with his own money.