date

24 June 1807 (10) Letter V
24 June 1807

(10)

Letter V

II. Litigation

II. Def t malâ fide

II. For the encouragement of the malâ fide defendant whose object is chance of ultimate success by means of intervening casualties.

1. Make the number of these casualties as great as possible: choosing in each instance one as liable to happen as possible: such as the death of the party, the death of the other party, and so forth.

{2. Of the cases in which in each instance the casualty attaches make the description in each instance as intricate as possible, attaches, viz. in such manner as to produce its intended effect, viz. destroying the title of the plaintiff to receive the satisfaction, and thereby exempting the wrong doer (the party to be encouraged) from the burthen of being obliged to render it.}

2. Make as before the length of delay capable of being purchased as great as possible.

In the case where ultimate success on the part of the wrongdoer, the malâ fide defendant - and (what is the same thing in other words) ill success of the cause of the side of the party wronged, the plff. is the natural result of the delay, for example where it is produced by deposition of evidence the course of the delay ought to be more particularly directed to the affording every obstruction possible to the obtainment of the evidence: for example referring the requisite powers for the performance of the operations (see Table I. Col.2) subservient to the forthcomingness of evidence: under which may be included or not included, the faculty of investigation, the powers constitutive of investigatorial procedure, of the necessity of which to the ends of justice, and the careful exclusion put upon the same in pursuit of the ends of judicature so much has already been said in Letter 4 th.
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    2. Next comes the solvent malâ fide Defendant, combating for ultimate success, through intervening casualties; such as deposition of evidence, death of plaintiff, death of defendant himself in a word, in the view of taking the benefit of casualties, of whatever nature and in whatever number, to which the nature of things, as in the instance of deposition of evidence, as for this or any other purpose, Judge and C o, as in the instance of the death of the party injured, or of the wrongdoer himself, have found means to give the effect of destroying the title of the party injured.

    In this, as in the last preceding case, the main engine or instrument provided for the use of encouragement of the wrongdoer, and put into his hands, is the delay: and the quantity of delay being given, and the deleterious quality infused into the casualty in question as above, no such ulterior and all-comprehensive and unremitting case is necessary, as was necessary in the last preceding case, to preserve the wrongdoer from the obligation of yielding up or making satisfaction for mesne profits.

    In a word in the last preceding cases of malâ fide defendant was the malâ fide litigant taking in that quality the benefit of the certain mischiefs of delay; in the present case it is the malâ fide litigant taking the benefit of the contingent mischiefs of delay; as per Table II in both cases.
  • Title: [15 Dec r 1807 Scotch Reform 2]
    Description: 15 Dec r 1807

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    Of the genus Stellio[?] in the species hitherto discovered are -

    1. Stellio praegravis

    (d): Solvent malâ fide Defendant, having possession of the subject matter in dispute, and combating for ultimate success, through indigence and consequent inability on the other side.

    2. Stellio tenax

    (e): Solvent malâ fide Defendant, combating for intermediate profit, by intermediate use or possession of the matter in dispute.

    3. Stellio dissipatorius sivi laceratorius

    (f): Insolvent malâ fide Defendant, combating for the intermediate faculty of embezzlement or dissipation.

    4. Stellio fortinicola[?] (g): Solvent or Insolvent malâ fide Defendant, combating for ultimate success and intermediate profit, through intervening casualties; such as deposition of evidence, death of one or other party &c. +See Table. Mischiefs of Delay:

    5. Stellio iratus

    (h): Solvent or Insolvent malâ fide Defendant, combating for the gratification of the irascible appetite, by the intermediate destruction or deterioration of the matter in his possession or power, to the prejudice of the right owner.

    6. Stellio cuniculus / vulpes sive (i): Solvent malâ fide Defendant, taking the benefit of the Insolvency-licence, granted to him who, from a shape in which the Judge does not refuse, chooses to convert the matter in dispute the shape of landed or other property, in which the Judge does refuse to lay hands on it, for the purposes of justice.
  • Title: [24 June 1807 (7) Letter V]
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    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.