date

22 June 1807 (3) II. Litig
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.
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  • 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.
  • 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: [7 March 1807 Judicial Justice]
    Description: 7 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Misdecision, again, may either be in toto, or pro tanto. The distinction is no frivolous one: since according as the disorder wears the one or the other face, the remedy appropriated to it bears one or the other of two denominations: disorder, misdecision in toto, remedy, reversal: disorder, misdecision pro tanto, remedy not reversal but modification.

    Misdecision in toto is in its remedy, as in its nature extremely diversified. It may be in favour of the plaintiff's side alone, it may be in favour of the Defendant's side alone. Misdecision in toto in favour of the plaintiff's side is judgment simpliciter for the plaintiff, whereas it ought to have been for the defendant: misdecision in toto in favour of the defendant, is judgment simpliciter for the defendant, whereas it ought to have been for the plaintiff.