date

12 July 1807 10 Letter V
12 July 1807

10

Letter V

III. Litigat prevented 2 o

II. Directions for the prevention of malâ fide wrongs in general followed or not followed by demand of satisfaction and thence by malâ fide defence.

In substance as well as in expression study so to organize the body of your laws, that in the event of any transgression, whereby wrong with its correspondent damage may fall upon any other party, the party exposed to temptation to transgress, may behold a more than equivalent burthen as eventually about to fall upon him, in the shape of satisfaction - i.e. the obligation of rendering at his own charge satisfaction to the party specially wronged, where the case affords a party so circumstanced; and failing such satisfaction, in the shape of punishment: taking all possible care that no means of delay, nor chance of ultimate evasion may either exist, or present themselves to his view.

Whatsoever check, either in the shape of the burthen of satisfaction or in the shape of punishment, either under that name or any other (for example such as Costs), be provided for the purpose of restraining men from the commission of wrong, take care that no defeasances, no opportunities of evasion or delay, be open by which the real value of it or the influence of it in the imagination of a party under temptation can be decreased. Look carefully over the body of existing law, jurisprudential as well as statutory, for the purpose of putting an end to all such chances and expectations. Suffer not any such effect to be given by the Judge to intervening casualties at large. In regard to such casualties as when they take place are unavoidably productive of this effect, (such as casualties productive of deposition of evidence,) observe by the abolition of factitious delay, to render the chance of their intervention as small as possible.
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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: [9 July 1807 + D Scotch Reform]
    Description: 9 July 1807

    + D

    Scotch Reform

    18

    2 o

    Letter V

    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.
  • Title: [June 1807 (4) II. Lit.]
    Description: 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.