date

24 June 1807 (9) Letter V
24 June 1807

(9)

Letter V

II. Litigation

II. Def t malâ fide

Directions unexplained savour of arrogance - and of imposture[?] yet cleare[?] and more[?] expression: and the above objections are obviated by this previous explanation:

What remains is to adapt to the situation and character of such species of malâ fide defendant the general rule or maxim - viz. in the fabrication of the delay, enable him to be or what comes to the same thing to expect to find himself, upon the whole, a gainer by it: and of course to the greater amount the better.

I. For the encouragment of the malâ fide defendant whose object [is] combating for intermediate profit by delay.

1. Make the length of delay capable of being purchased by him, as great as possible.

2. Keep down in value, as much as possible the value of every burthen, capable of tending in the character of a check to restrain him from committing the wrong, or if committed, from giving continuance and addition to it, by malâ fide defence: burthen for example of satisfaction of rendering satisfaction for the wrong: burthen of costs: so far at least as concerns the eventual obligation of reimbursing to the plaintiff the disbursements made by him on occasion of the suit.
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  • Title: [24 June 1807 (7) Letter V]
    Description: 24 June 1807

    (7)

    Letter V

    II. Litigation

    II. Def t. malâ fide

    The two most regular customers whom Judge and C o have for their jus frandandi[?], and the two most distinct from one another on this side of the cause, are the malâ fide defendant combating for intermediate mesne profit by delay, and the malâ fide defendant combating for the intermediate faculty of embezzlement or dissipation. To each of these Judge and C o hold out in the character of a collateral and additional bonus, the chance of ultimate success, by means of intervening casualties.
  • 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 July 1807 (11) Letter V]
    Description: 12 July 1807

    (11)

    Letter V

    III. Litigat. prevet.

    III. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for success through indigence on the other side.

    Take away all factitious expence and vexation: in case of necessity provide for the defraying of the necessary mass of expence at the charge of some fund other than of the purse of the indigent individual in each case. See below Directions concerning malâ fide Plaintiffs.

    IV. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for intermediate profit by delay.

    1. Do away all such factitious delays as you find already established under and by the existing system: to do this you must substitute in every Court of judicature the natural system to the existing modification of the technical.

    2. In regard to such facititious delays as even under the natural system it might be in the power of a defendant, malâ fide or even bonâ fide, to produce, be careful to take away, in every shape, all possible profit from the delay; and in particular so ordering matters, that whatsoever be the loss produced by the delay to the party on the other side, viz. on the plaintiff's, full satisfaction shall be made to him for it at the defendant's expence.