date

PRIVATE 13[?] July 1807 +
PRIVATE

13[?] July 1807

+ D

Scotch Reform 17

2 o

Letter V

III. Litigat. Prevented

VI. iracundus

VI. Particular Directions concerning Solvent Defendants combating for gratification of enmity.

This species of malâ fide Defendant is more manifestly than most others indebted for its existence to the technical system, and thence to the improbity of its creators and preservers.

According to the foregoing directions you are supposed to have laid down for a general rule that no man shall ever profit by his own wrong, and to have subjoined to it such particular rules and instructions as may be necessary in the several cases for giving effect to it. If by the adversary or by the Judge the defendant be suspected of malâ fides, this general rule being declared to him by the Judge in the judicial meeting of the parties at the outset of the cause, with such particular modifications as apply to the case, this done, and (under the same obligation to speak as attaches upon an extraneous witness) the defendant making answer on the spot to all proper questions put to him, there seems little danger of the warnings proving ineffectual.

Where the passion of enmity has swollen to a certain pitch the solvency and consequent forthcomingness of the defendant in respect of property as well as person for the purpose of satisfaction and eventual punishment, will not always ot itself afford a sufficient surety for his forbearing to work irreparable mischief for the gratification of that passion, though to his own ultimate affliction. In this case the same prompt remedies that were necessary in the case of the insolvent defendant may be equally necessary in the case of this spcies of solvent defendant.
Similar Items
  • Title: [PRIVATE 9 July 1807 + C 15]
    Description: PRIVATE

    9 July 1807

    + C 15

    2 o

    Letter V

    4. Litigat. promot. 2 o

    §.6. 1. Pragreaves[?]

    2. Tenax

    §.6. How to breed divers species of Stellio. viz. 1.praegravis. 2. tenax. 3. dissipatorious. 4. fortinicola. 5. iratus.

    II. Particular Directions concerning defendants combating for ultimate success through indigence on the other side - see below.

    VIII. Directions concerning malâ fide Plaintiffs. This species of defendant is the wrongdoer in possession: the species of Plaintiff that matches with him is the wrongdoer out of possession: the mode of breeding is the same.

    III. Particular Directions concerning Defendants combating for intermediate profit through delay. See above Directions for the production of Delay, and the documents therein referred to.

    IV. Particular Directions, for the more effectual encouragement of malâ fide wrongdoers in the character of insolvent defendants, combating (viz. through delay) for the intermediate faculty of embezzlement, dissipation, or of destruction in gratification of enmity.
  • Title: [17 Feb y 1808 on L d Eldon's Bill]
    Description: 17 Feb y 1808

    on L d Eldon's Bill

    Letter VI

    Omissa & Facienda

    1. No reporting

    I. Directions for the encouragement of malâ fide wrongdoers against (good out-door parlance[?] and agents) in the character of malâ fide defendants of all six sorts.

    II. Directions for the more effectual encouragement of malâ fide wrongdoers in the character of solvent defendants combating for ultimate success through indigence on the other side - See below directions concerning malâ fide Plaintiffs.

    III. Directions for the encouragement of malâ fide wrongdoers in the character of solvent defendants combating for intermediate profit, arising out of delay, and proportioned to the length of it. or Particular directions concerning defendants combating for intermediate profit.

    IV. Directions for /Particular directions concerning/ the more special[?] encouragement of malâ fide wrongdoers in the character of insolvent defendants combating for the intermediate faculty of embezzlement or destitution or wilful damage in gratification of enmity.

    V. Directions for /Particular Directions concerning/ the more efficient encouragement of defendants solvent or insolvent combatting for ultimate success through casualties /delays by means of [...?] destructive[?]/.

    VI. Particular Directions concerning defendants combating for gratification of enmity - See below Directions concerning malâ fide Plaintiffs.

    VII. Particular Directions concerning solvent Defendants taking the benefit of an insolvency licence.

    In one instance /case/, and that a very exclusive one, composing the whole business of the Bill Chamber, extraordinary difficulty /difficulty/ is in a book of practice+ stated as the signal looked to by the Lord Ordinary for [...?] a cause out of his hands without decision instead of deciding in it, [...?] for reporting instead of advising. "All Bills are advised by the Lord Ordinary in the first instance, unless his Lordship thinks there is difficulty in which case he reports the same to the Court, verbally at the foot of the Table, and pronounces such interlocution[?] [...?], as is warranted by the opinions [...?] delivered[?]."

    The course they take for getting the better of /mastering/ extraordinary difficulties is truly curious. Where there is no difficulty, the case receives it decision from a single Judge, who has been keeping all the documents in his hands any number of months at pleasure, with the faculty of recurring to them any number of times and for any length of time at his leisure. When difficulty calls for proportionable examination and meditation[?], it is to be got rid of by a crowd of Judges huddled together each of them taking his conception of the case from what he can pack up from vivâ voce statement of the learned Reporter who stares[?] [...?] in [...?] in the station of a secture[?] rather than a Judge, expects in /looks[?] to/ the termination of the conference for the faculty of extracting himself from a situation thus irksome and incongruous.

    /To cover incapacity, and escaper from responsibility - yes: but is this the way to conquer difficulty, and do justice to the cause?/

    +Board 265, 279.
  • 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.