date

25 June 1807 + (1) Letter V
25 June 1807

+ (1)

Letter V

II. Litigation

Concluding Observations

{Among the evils which constitute at one time the modifications of injustice, at another or the same time the instruments employed for the production of it, there is one, that is more particularly useful in the hand of the Defendant, another to that of the Plff., the party being in malâ fide in both cases.}

The instrument more particularly adapted to the Defendant's (the malâ fide Defendant's) use is delay.

The instrument more particularly adapted to the Plff.'s (the malâ fide Plff.'s) use is expence.

Of expence the most obvious effect in regard to expence litigation is that of restraining it, and rendering to number of suits less than it would be otherwise.

1. Such accordingly it is in fact in regard to those suits in which supposing them to take place the right would be matter of doubt, each party supposing it to be on his side. On the number of suits of this description there can be no doubt of its operating in the character of a restraint thereby producing in the mind of him who, could he have afforded, would have been Plaintiff, besides the damage

directly issuing from the wrong, the opinion and affliction of a denial of justice.

2. Very different is its effect upon the number of suits in which the matter of right is out of doubt. In the case where the Defendant, including him who should have been Defendant, is in malâ fide, if its tendency is on the one hand to lessen the number of suits, on the other hand its tendency is to encrease the number of suits, or if not the number of suits the number of unremedied wrongs, which is still worse.
Similar Items
  • Title: [25 June 1807 (3) Letter V]
    Description: 25 June 1807

    (3)

    Letter V

    II. Litigation

    Concluding Observations

    3. In the case where the Plff. is in malâ fide (his reliance being on the engines of iniquity made for him by Judge and C o and not upon false evidence) the tendency of the factitious expence upon the number of suits acts purely on the side of increase.

    The intended wrongdoer is able to bear the expence of litigation, the intended sufferer by the intended wrong is seen or supposed to be unable, or so nearly unable as to be determinately unwilling to defend himself.

    Here then he commences the suit at any rate according to the nature of his object and the success that attends him in the pursuit of it, he suffers it to terminate at an earlier stage or carries it on to the farthest possible. If his object be extortion, and that will content him, as soon as the Defendant consents to yield up the object of the Plaintiff's concupiscence, a period is put to the suit. But if the object be simple oppression for gratification of enmity, the suit runs on its course till the gratification be consummated.
  • Title: [25 June 1807 (5) Letter]
    Description: 25 June 1807

    (5)

    Letter

    II. Litigation

    Concluding Observations

    Under the article of expence, there is one great head, that of taxes paid in the written instruments of procedure, out of which, as Judge and C o will be ready enough to observe no lawyer's profit ever is or can be extracted.

    Thus far may be allowed to them. But should they proceed so much further as to aver that the operation of these taxes is upon the whole to their disadvantage, there the admission must stop.

    If they lain[?] upon the bonâ fide suits they are losers, upon these malâ fide suits in which the malâ fides is on the plaintiff's side, they are gainers. If upon those malâ fide suita in which the malâ fides is on the defendant's side they are losers on the one hand, they are gainers on the other.
  • Title: [13[?] June 1807 (2) 11 Letter]
    Description: 13[?] June 1807

    (2) 11

    Letter V

    II. Litigation

    In one way or other these four instruments are, each of them, applicable and applied to the purpose of giving increase to wrongs and to litigation in those their several forms as above distinguished. But each species of litigation finds among these instruments that one which is more particularly well adapted to the production of it.

    1. Of uncertainty, the principal use and application consists in the encouragement it gives to bonâ fide suits.

    But it also serves, in regard of such suits in which the malâ fides is on the defendant's side, in diminishing in the eyes of the defendant or proposed defendant, the probability of the cost attached to the obligation of rendering that satisfaction which it is the object of the plaintiff to obtain the prospect of which evil constitutes the counter-discouragement the tendency of which is to restrain the proposed defendant from committing the positive injury in question, or the negative consisting in the withholding of the service justly due.

    To p.9

    From p.9[?]

    2. Of delay, the principal use and application consists in the encouragement it gives to such malâ fide suits in which the malâ fides is on the defendant's side: which it does principally in the case where the injury done by him is of the negative kind, as just described: viz. by giving him the advantage, so long as it lasts, of retaining the subject matter of contention in his hands.

    But delay is also in various ways (see Table II.) a frequent cause of misdecision; and thereby coinciding with uncertainty operates in diminution of the force operating in restraint of wrong considered as a source of litigation.

    Another particular and more direct use to Judge and C o themselves, belongs not to the present purpose. It breeds incidents, (such as death, birth, marriage, &c &c, incidents calling for operations that furnish occasions or produce for fresh fees.