date

June 1807 (4) II. Lit.
June 1807

(4)

II. Lit.

Def t. malâ fide

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.
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  • Title: [24 June 1807 (10) Letter V]
    Description: 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.
  • Title: [15 Dec r 1807 Scotch Reform 2]
    Description: 15 Dec r 1807

    Scotch Reform 2

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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: [9 July 1807 + D Scotch Reform]
    Description: 9 July 1807

    + D

    Scotch Reform

    18

    2 o

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    II. Litig. promot

    v. Particular Directions concerning the species of Stellio stiled fortunicola: composed of malâ fide defendants, solvent or insolvent, combating for ultimate success through delay, by means of title-destruction casualties.

    1. In regard to such casualties as naturally and of themselves possess this property, such as deposition of evidence, do what you can to favour their taking effect: concerning which see above, p. │ │.

    2. These not being of themselves sufficient, take any casualties whatever, the more numerous and diversified the better, and bestow upon them this force and virtue - for examples, see above p. │ │.

    3. To make room for casualties of both sorts to take place, as well as for so many other good purposes, remember to have ready for the market, in addition to the minimum which you provide and establish gratis, as large an assortment of delays, and in pieces of the greatest length, as possible: besides those which the customers on both sides are forced to buy, whether they will or no.

    VI. Particular Directions concerning solvent Defendants combating for gratification of enmity:

    Whether in the Station of defendant or plaintiff, wrongdoer before or without litigation, defendant upon and in consequence of litigation, i.e. of a demand made in the quality of plaintiff claiming satisfaction for the wrong, plaintiff not having sustained any wrong, but claiming satisfaction on that pretence, on the pretence of having ascertained it, the more mischief you put it in the power of a man to do to another, the more extensive and prosperous this branch of your trade. This faculty, the jus urandi[?], you will take care to put in every man's power to purchase, and to the largest amount possible, in either capacity, and so leave it to his choice. The best choice he can take is certainly to become suited, viz. Plaintiff in the first instance, because in this case your profit is if any thing more certain than his, though both go hand in hand: whereas in the other case viz. when he committs the wrong in the first instance, and without coming to your shop for tools, if the party wronged is to such a degree helpless or timorous or well informed and prudent as not to take any legal steps to right himself the wrongdoer gains his ends without you and robs you of your due: but as to this you must take your chances.