date

5 June 1807 (23) Letter V
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.

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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.
Similar Items
  • Title: [24 June 1807 (9) Letter V]
    Description: 24 June 1807

    (9)

    Letter V

    II. Litigation

    II. Def t malâ fide

    Directions unexplained savour of arrogance - and of imposture[?] yet cleare[?] and more[?] expression: and the above objections are obviated by this previous explanation:

    What remains is to adapt to the situation and character of such species of malâ fide defendant the general rule or maxim - viz. in the fabrication of the delay, enable him to be or what comes to the same thing to expect to find himself, upon the whole, a gainer by it: and of course to the greater amount the better.

    I. For the encouragment of the malâ fide defendant whose object [is] combating for intermediate profit by delay.

    1. Make the length of delay capable of being purchased by him, as great as possible.

    2. Keep down in value, as much as possible the value of every burthen, capable of tending in the character of a check to restrain him from committing the wrong, or if committed, from giving continuance and addition to it, by malâ fide defence: burthen for example of satisfaction of rendering satisfaction for the wrong: burthen of costs: so far at least as concerns the eventual obligation of reimbursing to the plaintiff the disbursements made by him on occasion of the suit.
  • Title: [23 June 1807 (8) Note continued]
    Description: 23 June 1807

    (8)

    Note continued

    Letter V

    II. Litigation

    II. Def t.

    malâ fide

    Under whatever name, satisfaction, costs, punishment or any other in case of judgment against the wrongdoer who in case of litigation ripens into a malâ fide defendant, a burthen has been made to fall on him, this burthen, as above observed will by its apparent value, operate as a check.

    Notwithstanding whatsoever diminution its value has experienced as above in the articles of certainty and proximity its real value, and thence to a certain if not equal degree its apparent value even in the eyes of the wrongdoer, whose appetites and passions dispose him to undervalue it, still if by any means such as the unrestrainable indignation of the legislator, it has happened to it in any instance to be raised in magnitude to a certain pitch, the addition made to the extent of its value in this dimension may still enable it to operate with success in the character of a check to the commission of the wrong, countervailing and overpowering the effect of the utmost defalcation that can have been made from the extent of its value in its two other dimensions, one or both of them.
  • Title: [June 1807 + 8 Letter V]
    Description: June 1807

    + 8

    Letter V

    II. Litigation prevet. & promot.

    [written in columns. column 1]

    Shorten this

    III. Arrangements for preventing litigation, by preventing wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

    1. By every particle of money the disbursement of which is exacted of a defendant in the first instance, wrong is due to him in case of his not being bound in law and justice to render up the subject matter in demand, and loss of time is in itself, in particular in the case of all those whose subsistence or income is in any part of it derived from the employment given to that time, equivalent to disbursement of money, taking effectual care that no such obligation to any amount shall be imposed on any person in quality of defendant, untill in some shape or other, real, corporal or extraneous be given by the plaintiff, according to his circumstances for the eventual reimbursement or other adequate satisfaction to be made for such disbursement or other loss.

    and that by [...?] examination of the parties, or otherwise sufficient assurance shall be obtained by the Judge, that the defendant, having good means of defence, i.e. evidence competent to the proof of facts alledged by him in that view, shall never find himself compelled to render up any subject matter in dispute, by any such cause as that of the mere inability to defray the expence necessary to the production of such evidence.

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    III. Devices for promoting litigation, by promoting wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

    1. In the direct ratio of its own magnitude, and in the inverse ratio of a man's pecuniary sufficiency, a mass of forced expence with its attendant vexation operates at the same time upon his passive[?], and, upon his active faculties: upon his passive faculties, as an instrument of sufferance in all cases; upon his active faculties, as an instrument of restraint, causing or tending to cause him to abstain or desist from acting in the character of defendant, and thus to abandon to his adversary the plaintiff, the subject-matter of demand, whatever it may be.

    The faculty or power of punishing his adversary, in the character of Defendant with a pecuniary punishment to the amount of the pecuniary expence thus capable of being imposed, with the vexation attached to it in other shapes, as also in case of any relative pecuniary unsufficiency on his part forcing him to abandon (viz. to his adversary) any object in the defendant's possession which to him the plaintiff may happen to be an object of desire, is the commodity which Judge and C o have to sell, and are constantly offering to sale to every man whom they find, or when by this temptation they can succeed in rendering dishonest: viz. such sort and to such a degree as to accept of it.