date

22 June 1807 (6) Letter V
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?
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  • Title: [1 June 1807 Letter V II. Proper]
    Description: 1 June 1807

    Letter V

    II. Proper Remedies

    Applied to damage, the distinction between direct and consequential is not unknown to Technical Justice in our English dress, than it is to Natural Justice: consequential may be considered as corresponding so far as it extends, to extraordinary interest, as above described.

    Such being the position of the solvent knave, the line of necessary policy to be pursued by Judge and C o for converting him in the station of defendant into a malâ fide litigant, and at the stage of appeal into a malâ fide appellant was plain and obvious. So long as he can contrive to stave off judgment and execution on the appeal, suffer him to extract from the delay whatsoever profit his situation enables him to make, non-commercial or commercial, ordinary or extraordinary - and that without reimbursement - if according to his calculation the profit thus extractable from the delay be superior to the expence necessary to the purchase of it - superior to his share of the expence of litigation, his enlistment in the service of Judge and C o in the character of malâ fide appellant is a matter of course.

    Thus obvious being the policy of Judge and C o, the counter-policy of the legislator is little less so. 1. Take away from him all such profit by delay: and, in the particular case of malâ fide appeal, to effect this object by the surest as well as most simple means, when a man appeals from a judgment, suffer not the appeal to be productive of any such effect as that of stopping execution on the judgment appealed from: except in the particular sort of case that will be mentioned presently, cause execution to take place, as if no appeal had been made.
  • Title: [16 Apr 1807 Letter V When it]
    Description: 16 Apr 1807

    Letter V

    When it is from delay, mere delay, that the profit flows - the malâ fide appellant is found naturally and almost instantly, on the Defendant's side. A service of this or that description - like, for example, the sort of service most frequently in demand - the payment of a sum of money - is demanded of the Defendant below by the Plaintiff, through the medium of the Judge, the Judge of the Court below. Satisfaction apart, satisfaction on the score of damage by the delay - the greater the length of time that elapses before the defendant pays the money, the greater his advantage.

    Such is the effect of the delay, thus stands the matter with regard to every individual placed in the station of defendant, whatsoever may be his condition in other respects.

    In this same station the profit proffered to him by Judge and C o through the medium of delay, will be different according to the situation in which it finds him in a pecuniary point of view.

    This situation is that of solvency or that of insolvency: and in case of solvency, non-commercial or commercial.

    To a non-commercial man the profit by the delay will in ordinary cases be measured by the ordinary rate of interest, say at present 5 per cent: to which in an extraordinary emergency may be added extra profit to an indefinite amount, according to the nature of the emergency.

    And so plaintiff's loss.
  • Title: [22 June 1807 (2) Letter V]
    Description: 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.