date

June 1807 + 8 Letter V
June 1807

+ 8

Letter V

II. Litigation prevet. & promot.

[written in columns. column 1]

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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.
Similar Items
  • Title: [1 June 1807 Letter V III Devices]
    Description: 1 June 1807

    Letter V

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

    This purpose is answered by the various /divers/ mischiefs the production of which has more commonly some nearer or other /ulterior/ object: viz. /ex. gr./

    1. By the factitious expence attached to litigation, for the sale of the profit extractable from the offence.

    2. By the vexation inflicted on /produced to/ the defendant by the expence and trouble /2.3. By the expence and vexation/ of his defending himself /defence/:

    3. By the uncertainty of the law as above (II 1.2.3.4.5.6.7.) viz. the uncertainty whether even suppose functioning[?] sufficiency not wanting, he may be able, under the law, to defend himself with success: - by this uncertainty, and the vexation attached to it.

    4. By the factitious delay the manufacture of which has its main /principal and more immediate/ objects the profit-yielding expence, be the cause what /which/ it will a bonâ fide or malâ fide cause, and the encouragement it holds out for continuing defence[?], in /commencing and persevering in/ a malâ fide cause in which the malâ fides is on the defendant's side. (as per II.10.)
  • Title: [[...?] June 1807 (22) (6) Letter]
    Description: [...?] June 1807

    (22) (6)

    Letter V

    Litigation - Prevent Promot.

    II. Def malâ fide

    [written in columns. column 1]

    II. Arrangements for preventing litigation, by preventing wrongs considered as sources of malâ fide litigation, the malâ fides being on the defendant's side.

    1.2.3.4.5.6.7. Obviating uncertainty, as above, Pt.[?] I[?]: and thereby giving to each individual considered as exposed to the temptation of doing wrong, the fullest assurance, that in case of transgression on his part, the ultimate and preponderant suffering will fall - not on the head of the party wronged, but upon his own.

    8. In case of insolvency on the part of the intended wrongdoer, having in contemplation the commencing malâ fide defendant, making points[?] and in other respects effectual provision, for preventing him from embezzling or dissipating the subject matter in dispute. For particulars respecting such provision, see further on.

    9. In particular, so ordering matters, that, whether the wrongdoer be insolvent or solvent, he shall never in any case, so in such suit[?], take advantage of his own wrong, as to withdraw from execution - either the subject matter in demand or any part of it, in species or in value, or any part of that property which by the judgment, in the character of the matter of satisfaction, is or ought to be, disposed of in reparation of the wrong, preserving thereby, as constantly as possible the public eye, from that spectacle, which to every honest eye is among the most afflictive that can be prescribed to it - the triumph of Jurisprudence over Justice.

    [column2]

    II. Devices for promoting litigation by promoting wrongs antecedent to and productive of litigation to be committed by a wrongdoer, who upon the injured party's seeking redress in the station of plaintiff, will thereupon become a defendant; viz. a malâ fide defendant.}

    1.2.3.4.5.6.7. Fostering uncertainty and uncognoscibility on the part of the law, as above: and thereby rendering it as uncertain as possible to the proposed malâ fide defendant, whether undeer the law the party injured possesses in point of actual law, the right in question, and if he does, whether he has any and what remedy.

    8. In case of insolvency on the part of the proposed malâ fide defendant, securing to him the faculty of embezzling or dissipating destroying or deteriorating, the subject matter in dispute.

    9: Providing a variety of shapes the more the better, in which the property of the defendant, including the subject matter in dispute if pecuniary, or equivalent to pecuniary, may in case of judgment given against him, be secured against execution: (a) viz. either to his own use, or to the use of his offspring and others connected with him by the ties of sympathy.

    (a) Note about Grant[?] &c.
  • Title: [5 June 1807 (23) Letter V]
    Description: 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.

    [column 2]

    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.