JB_092_103.xml

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.

JB_092_189.xml

Title: [23 June 1807 (8) Note continued]

Description: 23 June 1807

(8)

Note continued

Letter V

II. Litigation

II. Def t.

malâ fide

Under whatever name, satisfaction, costs, punishment or any other in case of judgment against the wrongdoer who in case of litigation ripens into a malâ fide defendant, a burthen has been made to fall on him, this burthen, as above observed will by its apparent value, operate as a check.

Notwithstanding whatsoever diminution its value has experienced as above in the articles of certainty and proximity its real value, and thence to a certain if not equal degree its apparent value even in the eyes of the wrongdoer, whose appetites and passions dispose him to undervalue it, still if by any means such as the unrestrainable indignation of the legislator, it has happened to it in any instance to be raised in magnitude to a certain pitch, the addition made to the extent of its value in this dimension may still enable it to operate with success in the character of a check to the commission of the wrong, countervailing and overpowering the effect of the utmost defalcation that can have been made from the extent of its value in its two other dimensions, one or both of them.

JB_092_148.xml

Title: [12 June 1807 (15) (4) Letter]

Description: 12 June 1807

(15) (4)

Letter V

II. Litigation

As to certainty and uncertainty in each instance the real certainty or uncertainty respecting the issue of the suit is what it is. But it is by the apparent certainty or uncertainty, that the conduct of the suitor, in the situation of plaintiff or in that of defendant, is determined. Real certinaty can be only on one side. But apparent certainty, may be, and too often is, on both sides at once. For producing these opposite appearances, one of which may in each instance be false and deceptitious nothing is wanting that could be done by Judge and C o /the partnership/[?]

In regard to this point the ingenuity of the artist sees itself powerfully assisted by divers principles of human nature.

1. One is the general propensity in man to set an over value on any object presented to him by his hopes: or in the word of Adam Smith the overweaning confidence that in general a man is apt to have in his own fortune.

2. Another is the aid which the love of money is wont in all cases of contention, and especially as this vexatious shape, is wont to occasion from the enmity so apt to be excited in the course of it. A new object is started, viz. the pleasure of revenge. In point of pecuniary advantage the utmost that could be expected from the suit - from success on the plaintiffs side or even on the defendant's would not perhaps be worth the purchase viz. the vexation and the expence. But what is wanting to render the bargain a good one in appearance is supplied by - the gratification expected for the appetite/ the pleasure of revenge/[?]. The suit that a man would not engage in to gain £10, he will perhaps be contented to engage in for the chance of subjecting the adversary to a burthen of expence a little greater, or even less when the smallness of the absolute amount of the expence is made up for[?] the magnitude of its relative amount, relation being had to the pecuniary ability of the adversary on whom it is to be imposed.