date

20 June 1807 (3) II. Litigation
20 June 1807

(3)

II. Litigation

II. Defend t malâ fide

Expressed by the most general description it admitts of, the policy employed for the multiplication of this species of litigant consists in the giving to the wrongdoer in possession the assurance of his keeping in his hands, even after and notwithstanding a decision divesting him of the subject matter itself, the mesne profits of it, or as large a portion of them as possible, for as long a time as possible, and clear, to as great an amount as possible, of all burthen, in the shape of satisfaction to the party injured, or reimbursement of his costs of suit or, in a word, in any other shape.

It consists accordingly in avoiding as much as possible, to make any of those arrangements which in the view of preventing the wrongdoer to the greatest possible extent from profiting by his own wrong, would at the suggestion of common sense have been originally employed by the policy, and in consequence of the development of the sinister policy of the Judge would now be employed by the counterpolicy of the legislator.

This phrase - taking advantage of his own wrong, applies to malâ fide plff. as well as defendant, and should therefore be introduced earlier or not so early.

Now speak of the different modes and degrees of mesne profit - commercial, non-commercial, ordinary, extraordinary. Here, or under §.3. Proper Remedies?

See Proper Remedies Contents p.2. note 37 to Let[?].
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  • Title: [PRIVATE 22[?] June 1807 +]
    Description: PRIVATE

    22[?] June 1807

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    1 o

    Letter V

    II. Litigation

    II. Defend t. malâ fide

    II. Litigation in its second shape - litigation with malâ fides on the defendant's side.

    Two cases viz. that of the solvent malâ fide Defendant, combating for ultimate success, and trusting to indigence and its concomitant helplessness on the plaintiff's side, and that of the malâ fide Defendant, solvent or insolvent combating for gratification of enmity, being dismissed as above to the next head, there remain three species of malâ fide Defendants whose cases, with the policy and counterpolicy respectively applying to them, came to receive explanation.

    1. First comes the malâ fide Defendant, combating for mesne profits, and employing factitious delay for the creation and prolongation of them.

    In the natural order of things this species of litigant has no existence: he is altogether the offspring and nurseling of the policy of Judge and C o. His element is of their creation: it consists of a portion of the property of the party injured, the grant whereof is offered to him who will accept of it, on condition of his committing a species of civil wrong, at his choice and thereupon in case of complaint, taking upon himself the state and quality of defendant

    As to the expression mesne profits, i.e. intermediate, in the language of English jurisprudence from which it is borrowed, its import extends little if any beyond the produce or rent of an article of immoveable property recoverable by ejectment.

    But in its original import it is applicable with no less propriety to advantage in any shape considered as flowing out of a subject matter of any kind in the course of a length of time lying between any two given points.

    The faculty of educating and maintaining an infant, though it were at a man's own expence, would in this comprehensive sense be a taking of mean profits, viz. from the possession of the infant, as well as the faculty of taking a crop of corn from Black-acre[?].
  • Title: [19 June 1807 18 (1) Letter]
    Description: 19 June 1807

    18 (1)

    Letter V

    II. Litigation

    II. Def t malâ fide

    In the case of the malâ fide litigant, i.e. the dishonest individual considered as exposed to the temptation of becoming malâ fide litigant, to which side soever of the cause his lot has destined him, one rule will serve as above for the description to express the policy of Judge and C o for the encouragment of him, make it his interest to become so: one rule consequently to express the correspondent counterpolicy - make it his interest not to become so - or even negatively thus - to order matter that it shall not be his interest to become so.

    But in each situation a man's interest, meaning on this occasion, his own conception of his interest admitts of considerable diversification having its source partly in the nature of the advantage or gratification he has in view, partly in the nature of the means or opening to which he has in view as leading to the acquisition of it.

    I. To begin with the malâ fide litigant whose station is on the defendant's side.

    Here to bring to view the two systems of policy of Judge and C o and counterpolicy of the legislator we shall have occasion to distinguish the malâ fide defendant into five species -

    1. Solvent malâ fide defendant, combating for ultimate success trusting to the medium of indigence on the other side.

    2. Solvent malâ fide defendant combating for ultimate success through the medium of deposition of evidence on the other side.

    3. Solvent malâ fide Defendant combating for mesne profits.

    4. Insolvent malâ fide Defendant, combating for the faculty of embezzlement or dissipation.

    5. Solvent or insolvent malâ fide Defendant, combating for gratification of enmity.
  • Title: [5 June 1807 (23) Letter V]
    Description: 5 June 1807

    (23)

    Letter V

    Litigation - Prevent. Promot.

    II. Def t malâ fide

    [written in columns. Column 1]

    10. Taking alike effectual care that whatever interval of delay, natural or factitious, may intervene, between the time when the subject matter in dispute ought to have been delivered up by the defendant, and the time in which by execution of the judgment given against him he actually does render it, either[?] money or money's worth be rendered by him, in the name of satisfaction more than equal to the sum of the advantage derived by him in all shapes from the intervening respite.

    11. Taking alike effecual care that in regard to whatsoever article or articles of value may be provided to be rendered by the defendant in the name of satisfaction, (of which in the case of when the subject-matter i.e. the principal subject-matter of the demand is a determinate thing or assemblage of things, moveable or immoveable, restitution or delivery thereof after litigation can never constitute more than a part, the value of what is so delivered shall in point of magnitude exceed rather than fall short of whatever was orignally due.

    12. So also in point of certainty: insomuch that the value of it in that respect shall not be diminished or suffered to be diminished by any defeasance or defeasances: i.e. that to no event or events, except the free consent of the Plaintiff or his representatives, shall be given any such effect as that of exonerating the defendant or his representatives from the obligation of rendering the satisfaction so due.

    13. Providing, in all cases, on the score of costs, reimbursement to the party in the right of all expences produced on his part by the wrongful complaint or defence of the party in the wrong: saving the care necessary to prevent him in the right from profiting by this arrangement to oppress his adversary by extending the obligation to unnecessary expences incurred temerariously or in malâ fide: and saving the regard due to the comparative pecuniary circumstances of each, in case of considerable and manifest disparity, where the conduct is alike pure from blame.

    [column 2]

    Mesne profit

    10. By means of delay, factitious delay, ready-made for his use, or which he is empowered to make, securing to him, and clear of the burthen of compensation such interest or profit, non-commercial, ordinary or extraordinary, as his circumstances enable him to make, on the capital equivalent to or representative of the subject-matter in dispute.

    11. In regard to whatsoever provision might be proper to be made (viz. in the main body of the law) on the score of satisfaction (or compensation for the wrong (viz. the wrong meant to be encouraged) keeping down the value of it in point of magnitude, lest the deficiency produced in it as above in respect of want of certainty and propinquity being made up for in quantity, it should deter the proposed wrongdoer from becoming the character of malâ fide defendant.

    12. So, in respect of certainty: viz. by defeasances, as numerous and unconsiderable as possible: producible by so many contingencies, of which how obvious soever in itself the physical event may be the legal effect thus given to it shall be as little as possible exposed to be desired[?] and anticipated by the light of reason and common sense. I. Ex.gr. 1. Death of the wrongdoer. 2. Death of the party injured.

    13. Keeping down in the same view the quantity, and thence the value, of any other pecuniary allowance which it may have not been possible to avoid making (viz. to the plaintiff) at the charge of the defendant, where the decision is in disfavour of the defendant's side. Ex.gr. under the name of costs: i.e. reimbursement of that share of the expence of litigation which in the first instance fell on the plaintiff's side.

    14. So, in regard to certainty:- viz. to the general rule for the allowance of costs, attaching exceptions as numerous, diversified, and irrational - and thence as [...?] and previously unascertainable as possible.