date

30 June 1807 Letter V Recapitulation
30 June 1807

Letter V

Recapitulation

1. Malâ fide Appeal is produced[?] by the profit by delay.

2. Malâ fide defence in the first instance is made with a view to d o Appeal.

2. As to such causes in which there is malâ fides on one side, viz. the Defendant's side.

In regard to causes of this class in which there is malâ fides and the malâ fides is on this side, it has been shewn that they originate for the most part in factitious delay: in that delay which as to part though factitious as being made by the existing system has been rendered by it avoidable, as to other part is made by the defendant in virtue[?] of the power as well as the inducement in so doing which the system has put into his hands. So far as concerns[?] delay a sure, and at the same time the only, method of striking off such part of it as depends on the exertions of a malâ fide Defendant has been indicated in the preceding pages: viz. the ceasing to secure to him a neat profit from delay. But no such method is contained in or accompanies the plan for the proposed Chamber of Revision. On the contrary, by adding to the quantity of delay which he is enabled to make it adds to the profit.

If, should it happen to the proposed Chamber by means of the additional delay, and the profit derivable from it by the Defendant, it should happen to thus[?] be among the effects, the proposed Chamber to add to the number of malâ fide Appeals, the mass of mischief produced by it partly in the shape of factitious delay, expence and vexation, partly in the cause of undue profit to the defendant with the concomitant undue loss to the Plff. by means of the delay, will not be confined to that which takes place in consequence of and then subsequently to the Appeal: to this will be to be added the whole of the mischief produced in the same shapes in the same causes during the antecedent stage or stages to the Appeal.
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  • Title: [30 June 1807 Letter V Recapitulation]
    Description: 30 June 1807

    Letter V

    Recapitulation

    Moreover by the same cause, viz. the neat profit capable of being made in different cases as shewn above, by factitious delay made on the Defendant's side, by the same cause by which delay with its undue profit and its other mischiefs is produced in some instances by suits defended without Appeal, will be produced, in other instances other suits, to which it will not happen to run the length of appeal, as in the cases where the malâ fide defendant being of the insolvent class has succeeded in compleating his plan for the embezzlement or dissipation of the subject matter before that period.

    Here there is a large mass of mischief, to but a small part of which that the proposed Chamber of review aims at the prevention of, and that without prospect of success.

    Other arrangements there are efficient, simple and not unobvious, by which the whole of this mass of mischief would be done away: and, in the plan, of which the proposed Chamber of Review forms a part, none of these efficient arrangements are comprized.
  • Title: [30 June 1807 Letter V Recapitulation]
    Description: 30 June 1807

    Letter V

    Recapitulation

    3. As to such malâ fide causes in which the malâ fides is on the Plaintiff's side: and of which the mischief of which presents itself sometimes in the shape of extortion, sometimes in the shape of simple opposition.

    In regard to suits of this description it has been shewn that these owe their birth almost exclusively to the inordinate mass of factitious expence with its attendant vexation. For the prevention of this one of the three branches of undesirable litigation the nature of things admitts of but one remedy, and that is the removal of this factitious part of the mass of vexation and expence.

    In these instances the plan of the malâ fide plaintiff may frequently, probably most frequently, be carried into effect without the suits going the length of appeal: it will seldom happen that a proposed victim who in the character of defendant is capable of carrying on the cause beyond the assaye of appeal will not naturally be taken for the subject of such an experiment. i.e. to such a length as, by obtaining judgment in his (the defendant's) favour, to oblige the malâ fide plaintiff either to present an appeal without merits, or to abandon his enterprize.

    So far as this branch of litigation is concerned, the tendency of the Chamber of Review is purely mischievous. In general the Plff's wicked purpose will be accomplished without going the length of appeal. But where it is not, the effect of the Chamber of Review is to open to him another stage of appeal, in addition to whatever he had before.
  • Title: [[094-283v] 25 Dec r 1806 Scotch]
    Description: [094-283v]

    25 Dec r 1806

    Scotch Reform

    To L d Grenville

    Revelation the 60 th. That when any judgment shall have been pronounced in any Chamber of the Court of Session, it shall be subject to review in a Chamber of Review, in which none of the Judges shall sit who belonged to that Chamber whose judgment is to be reviewed; and that the cause shall, in that stage, be conducted by printed cases, and hearing of Counsel, in the manner and form observed in Appeal to the House of Lords; such Chamber of Review to constituted in such manner hereafter be appointed by act of Parliament.

    Here is delay, vexation, expence, with no proportion of professional profit, organized /manufactured/ without disguise. If the interests of the /people[?] in quality[?] of //the character/ suitors, if the interests of question[?] are to derive any benefit from it, I should be glad to know in what shape.

    Permitt me on this occasion once more, my Lord, to beg Your Lordship's attention to a distinction /division of causes/ which though not to be found in the Law Books, is not the less /but the more //has not the less claim/ avertions of the attention of a /the/ legislator - the distinction between bonâ fide and malâ fide causes. To the latter class belongs every cause in which either party is in malâ fide /that commonness of wrong exists on either side malâ fides/, and for obvious reasons, the party by [...?] the most apt to be in that case in the Defendant.