date

22 June 1807 (2) Letter V
22 June 1807

(2)

Letter V

II. Litigation

II. Def t malâ fide

Even under that[?] system impossible always to prevent delay made at the instance of def t because impossible to ascertain beforehand whether the shape alledged by him as necessary, will or will not be so.

In cases of burthen and benefit direct and consequential is a distinction which neither the technical system in general, nor the English mode of it in particular has neglected altogether to take into account. For the application made of it, viz. to burthen under the name of damage, in the character of a ground of title to satisfaction at the expence of the defendant, and the demand in point of justice was too obvious and too pressing to be repelled altogether: the exceptions limitations and conditions by which in this case it has been narrowed ran too much into detail to be noticed here.

But this same distinction applies not with greater propriety to burthen than to benefit: and forasmuch as, lest the plaintiff be a sufferer by the defendant's wrong consequential damage, how remote soever must be taken into account, so lest the defendant be a gainer by his own wrong, and thus, in so far as the wrong consists in factitious delay behold in it a premium considerable enough to engage him in the commission of it, thus it is that consequential benefit can with no more propriety be left out [of] the account than consequential damage.
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  • Title: [22 June 1807 (6) Letter V]
    Description: 22 June 1807

    (6)

    Letter V

    II. Litigation

    II. Def t malâ fide

    The bonâ fides of the defendant standing clear of suspicion, and the question, how far this or that article of profit made by him may have owed its existence to the money or money's worth wrongfully retained by him, being exposed to doubt, a case will now and then present itself in which it may be proper, consideration had of pecuniary circumstances on both sides, for the Judge to forbear exacting from the defendant the utmost possible amount of the consequential benefit of which the delay that has taken place is suspected or even ascertained to have been the cause.

    But setting aside the latitude thus proper to be left to the discretion of the Judge, unless in the character of a general rule the force of the maxim be maintained, that no man shall profit by his own delay, just so often as it is departed from, just so often is a bounty given, given by the Judge, to injustice in this shape.

    To search out extra profit under its various modifications, non-commercial and commercial, ordinary and extraordinary, direct and consequential as above marked out - to drag it to light, and strip it of the various disguises under which it will so naturally seek to cloak itself, is a process that in some instances will be found to involve more or less of difficulty: but to the investigation of latent profit or loss no greater difficulties oppose themselves than what frequently oppose themselves (as per Letter 4 th) to the investigation of latent evidence: and cases will arise in which in both of these lines investigation is alike necessary to justice.

    By a chain of whatsoever length drawn up, and by whatsoever disguises masked, will profit, even in value, abate any thing of its influence in the hand or in the heart?
  • Title: [PRIVATE 22 June 1807 + Contents]
    Description: 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.
  • 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.