JB_092_325.xml

Title: [30 June 1807 Letter V Recapitulation]

Description: 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.

JB_094_157v.xml

Title: [[094-157v] 16 Apr. 1807 To]

Description: [094-157v]

16 Apr. 1807

To L d Grenville

Letter V

Proper Procedure[?]

Permitt me once more, to beg your Lordship's attention to the distinction between malâ fides and bonâ fides. In this /On this/ as in so many other cases /as [...?] every thing turns upon it // on so many other occasions/, it is a cardinal one: the whole enquiry hinges on it.

In such instance, the Appeal Writ of Error or by whatever name the innovation made of the controling authority of the superordinate Court be diminuated, will be a malâ fide Appeal, or a bonâ fide: he by whom it is made will be conscious of his not having the right on his side, or his mind will be clear of that immoral consciousness.

In both instances the effect of the system will be to increase the number of appeals: and to come at once to the really material part of the question - will increase the aggregate mass of collateral inconvenience, in the shape of delay, vexation and expense, flowing from that source, and without producing any preponderant advantage in the shape of security against misdecision.

In the two cases its tendency runs /operates/ upon two widely different grounds. I consider it therefore upon each, beginning with the case of the malâ fide

appellant, whose existence Your Lordship's learned reformer has I hope brought himself by this time to [...?].

JB_092_197.xml

Title: [12 June 1807 (3) 10 Letter]

Description: 12 June 1807

(3) 10

Letter V

II. Litigation

3. Of expence, considered independently of the portion of lawyers' profit extractible from it, the principal use and application consists, in the encouragement it gives to such malâ fides causes, in which the suit being the instrument looked to and employed for the commission of the wrong, the malâ fides is on the plaintiff's side: his object being either to extort something from the defendant by means of his inability to bear the expence, or simply to oppress him by the burthen of the expence.

In both these cases expence is not only the instrument most immediately applicable, but almost the only instrument applicable to the purpose with any certainty of success.

But expence, the burthen of it being considered as attaching itself alike to both sides of the cause, operates accordingly as an encouragement to wrongs and to litigation on the defendant's side, in as far as it affords a prospect of inability on the plaintiff's part to obtain redress, viz. by his inability whether to begin, or to continue in the character of plaintiff. A striking enough instance of this inability, and of the advantage made of if may be seen in the Defence of Usury.

4. Vexation is an inseparable concomitant of each of these three other evils: of uncertainty, or at least of the sense of it on the part of him, whose wish it is alike to avoid committing and suffering wrong, but who knows not how:- of delay, more particularly on the part of the plaintiff against whom, while it lasts, it operates as a denial of justice; but also on the part of a defendant whose, being in bonâ fide, objects in the suit naturally are to escape from the wrong he is ensnared with by the suit, and to effect such escape as soon as possible:- of expence of course in every case.