date

16 Apr 1807 Letter V When it
16 Apr 1807

Letter V

When it is from delay, mere delay, that the profit flows - the malâ fide appellant is found naturally and almost instantly, on the Defendant's side. A service of this or that description - like, for example, the sort of service most frequently in demand - the payment of a sum of money - is demanded of the Defendant below by the Plaintiff, through the medium of the Judge, the Judge of the Court below. Satisfaction apart, satisfaction on the score of damage by the delay - the greater the length of time that elapses before the defendant pays the money, the greater his advantage.

Such is the effect of the delay, thus stands the matter with regard to every individual placed in the station of defendant, whatsoever may be his condition in other respects.

In this same station the profit proffered to him by Judge and C o through the medium of delay, will be different according to the situation in which it finds him in a pecuniary point of view.

This situation is that of solvency or that of insolvency: and in case of solvency, non-commercial or commercial.

To a non-commercial man the profit by the delay will in ordinary cases be measured by the ordinary rate of interest, say at present 5 per cent: to which in an extraordinary emergency may be added extra profit to an indefinite amount, according to the nature of the emergency.

And so plaintiff's loss.
Similar Items
  • Title: [1 June 1807 Letter V II. Proper]
    Description: 1 June 1807

    Letter V

    II. Proper Remedies

    Applied to damage, the distinction between direct and consequential is not unknown to Technical Justice in our English dress, than it is to Natural Justice: consequential may be considered as corresponding so far as it extends, to extraordinary interest, as above described.

    Such being the position of the solvent knave, the line of necessary policy to be pursued by Judge and C o for converting him in the station of defendant into a malâ fide litigant, and at the stage of appeal into a malâ fide appellant was plain and obvious. So long as he can contrive to stave off judgment and execution on the appeal, suffer him to extract from the delay whatsoever profit his situation enables him to make, non-commercial or commercial, ordinary or extraordinary - and that without reimbursement - if according to his calculation the profit thus extractable from the delay be superior to the expence necessary to the purchase of it - superior to his share of the expence of litigation, his enlistment in the service of Judge and C o in the character of malâ fide appellant is a matter of course.

    Thus obvious being the policy of Judge and C o, the counter-policy of the legislator is little less so. 1. Take away from him all such profit by delay: and, in the particular case of malâ fide appeal, to effect this object by the surest as well as most simple means, when a man appeals from a judgment, suffer not the appeal to be productive of any such effect as that of stopping execution on the judgment appealed from: except in the particular sort of case that will be mentioned presently, cause execution to take place, as if no appeal had been made.
  • Title: [21 March 1807 Table II. Mischiefs]
    Description: 21 March 1807

    Table II. Mischiefs of Delay in Judicatory

    I. Mischiefs present, thence certain, and co-eval with the Delay -

    I. To the prejudice of the Plaintiff's side

    1. Denial of justice - thence In cases where the subject matter in demand is a determinate article of property, moveable or immoveable, loss of the use, together with the enjoyment and profit attached to it.

    2. In case of money

    loss of interest - in the case of a non-trader, ordinary interest; in case of a trader, / extra-interest;/ commercial interest: rate equal to that of profit in trade.

    3. Vexation; from the contemplation of the loss thus incurred.

    4. Expence, according to the costs, natural and factitious, attached, under the system in question, to the pursuit of justice.

    II. To the prejudice of the Defendant's side.

    1. Mischief on the score of Denial of justice, alone; but advantage. If the Defendant be in malâ fide, this advantage, though correspondent to the Plaintiff's disadvantage, is not equal to it; the absence of the article importing, to the Plaintiff, so much less: the presence, to the Defendant, so much gain: the enjoyment from which, the circumstances equal, is never equal to suffering from loss.+

    +(See Bentham par Dumont, Traité de legislation[?] et pen.[?] Paris 1802. Tom.II. p.27. also pp. 308 to 351, in which the subject of satisfaction (for injury) is considered in all its branches)

    2. As above, N o 1.

    3. Vexation; if the Defendant be malâ fide, none: if in bonâ fide, considerable: to wit from the apprehension of an unfavourable result.

    4. Expence, as on the Plaintiff's side.

    II. Mischiefs Contingent

    1. Final loss by misdecision, from deposition of evidence.

    2. On the score of testimonial, and in some instances real evidence, deposition of freshness, and thence of trustworthiness and persuasiveness on the part of the evidence.

    3. Deposition in the character of matter of satisfaction, in the hands of the Defendant, applicable to the purpose of satisfaction for the benefit of the Plaintiff.

    4. Death of the Plaintiff; to whom alone satisfaction can be rendered without losing the greater part of its virtue: thence deposition of satisfaction, pro tanto, even where it is not lost in toto, viz. by refusal of the law to afford it to his representatives: - a denial of justice, established under English jurisprudence to a deplorable extent.

    5. Death of the Defendant; by whom the satisfaction should have been rendered: thence deposition of satisfaction, either through inability on the part of representatives, or through established denial of justice, as above.

    6. Ulterior delay:- the necessity, or demand for which may have been produced by fresh incidents sprung up during the course of the [...?]; and so on, more and more delay, with out any certain limit.

    7. Expence: the necessity of it imposed by the fresh incidents; as above.

    8. Vexation, produced by the fresh delay and expence.

    1. Final loss by misdecision; to the prejudice of the malâ fidé

    Defendant, none:- to d 0 of the bonâ fide Defendant, the same as to the Plaintiff.

    2. As above. N o 1.

    3. Mischief by deposition of the matter of satisfaction in the hands of the defendant himself to the prejudice of the Malâ fide defendant, none. &[?] contra, advantage in different shapes, according to the nature of his circumstances, and situation: viz: by the faculty of dissipating, concealing, exporting for future use, or carrying off, the value in dispute.

    To the prejudice of the bonâ fide Defendant, deposition of the matter of satisfaction (viz: for his costs of suit) in the hands of the Plaintiff.

    4. Death of the Plaintiff. to the malâ fide Defendant, no disadvantage in the respect in question, but an advantage. To the bonâ fide Defendant, a disadvantage in respect of costs, as above.

    5. Death of the Defendant. To the malâ fide Defendant far[?] as concerns exemption from the painful sensation of loss matter of a consolation: to the bonâ fide Defendant, matter of increased regret: viz. on the score of loss of satisfaction for vexation and expence of suit, at the Plaintiff's charge.

    6. Ulterior Delay. to the malâ fide Defendant, so much advantage, to the bona fide Defendant, so much disadvantage as above.

    7. Ulterior Expence as on the Plffs side. To the malâ fide Defendant over-ballanced by the delay and consequent chances of misdecision in his favour:- to the bonâ fide Defendant, uncompensated.

    8. To the malâ fide Defendant, compensated, as above; to the bonâ fide Defendant, uncompensated.
  • Title: [22 June 1807 (6) Letter V]
    Description: 22 June 1807

    (6)

    Letter V

    II. Litigation

    II. Def t malâ fide

    The bonâ fides of the defendant standing clear of suspicion, and the question, how far this or that article of profit made by him may have owed its existence to the money or money's worth wrongfully retained by him, being exposed to doubt, a case will now and then present itself in which it may be proper, consideration had of pecuniary circumstances on both sides, for the Judge to forbear exacting from the defendant the utmost possible amount of the consequential benefit of which the delay that has taken place is suspected or even ascertained to have been the cause.

    But setting aside the latitude thus proper to be left to the discretion of the Judge, unless in the character of a general rule the force of the maxim be maintained, that no man shall profit by his own delay, just so often as it is departed from, just so often is a bounty given, given by the Judge, to injustice in this shape.

    To search out extra profit under its various modifications, non-commercial and commercial, ordinary and extraordinary, direct and consequential as above marked out - to drag it to light, and strip it of the various disguises under which it will so naturally seek to cloak itself, is a process that in some instances will be found to involve more or less of difficulty: but to the investigation of latent profit or loss no greater difficulties oppose themselves than what frequently oppose themselves (as per Letter 4 th) to the investigation of latent evidence: and cases will arise in which in both of these lines investigation is alike necessary to justice.

    By a chain of whatsoever length drawn up, and by whatsoever disguises masked, will profit, even in value, abate any thing of its influence in the hand or in the heart?