date

[094-161v] 3 July 1807 Scotch
[094-161v]

3 July 1807

Scotch Reform

Letter V

Letter V

Litigant permitted[?]

Policy of Judge and C o in regard to wrongs /civil wrongs/ and litigation: increasing /promoting/ litigation for the sake of the profit: increasing /promoting/ wrongs for the purpose of increasing litigation: wrongs in general: but more especially the wwrongs called civil, as being bad[?] dangerous and most productive: the wrongs created into criminal wrongs, having mostly for their actors the indigent, out of whom little profit is to be made.

The Devices[?] mentioned in Letter 1 were therein[?] /no otherwise[?]/ considered then as employed in /having for their object the/ making the most of litigation when it takes place: but the same devices[?] have many of them been applied to the causes of litigation; be[?] not either immediately, or through exercise of wrongs

Litigation its three modes or branches 1. bonâ fide litigation: (it being such on both sides); 2. litigation malâ fide in the plaintiffs side; of litigation malâ fide on the defendants side.

I.Of Malâ fide Plaintiffs the same attentive observers could have discriminated three species:

1. Malâ fide Plaintiff, combating for faculty of extortion, through indigence, (relative and comparative) on the other side.

2. Malâ fide Plaintiff combating for the faculty of simple[?] oppressions through indigence on the other side; i.e. for gratification of enmity /the irrascible appetite/.

3. Malâ fide Plaintiff combating for the faculty of oppression /for profit by oppression/, for[?] gratification of the concupiscible appetite, i.e. for consequential advantage to be derived from the mine[?] of oppression of the other side.

4. When the malâ fide is on the plaintiffs side litigation is itself the instrument - the side instrument - of the wrong /wrong/: when the malâ fide is on the defendants side, the wrong comes first the litigation afterwards and in consequence: wrong, the seed; litigation the harvest: wrong, the flower; litigation, the fruit.
Similar Items
  • Title: [19 June 1807 (19) (2) Letter]
    Description: 19 June 1807

    (19) (2)

    Letter V

    II. Litigation

    II. Defend t malâ fide

    Solvent malâ fide defendant combats for ultimate success and for [...?] profits [[...?] 3. for gratification of enmity]. In the first [and 3 d] comes[?] his plan of operation coincides with that of the malâ fide plff, and the counterpolicy for the rendering it [...?] in the same.

    In the case where the malâ fide defendant is in solvent circumstances, the design which places him in that situation admitts of differences, by which though the policy of Judge and C o for the promotion of his views is not varied, the counterpolicy necessary on the part of legislator is rendered altogether different.

    I. In the case of the malâ fide plaintiff the number of species which it will be necessary to distinguish is not so great, and his description is much more simple.

    1. Malâ fide plaintiff, combating for the faculty of extortion; i.e. in general for ultimate success, through /trusting to/ the medium of indigence, and thence exhaustion of purse or perseverance on the defendants side.

    2. Malâ fide plaintiff combating for the faculty of oppression, or say for the gratification of enmity: viz. by means of the expence and vexation imposed at his instance upon the Defendant by the Judge.

    In regard to the case of the solvent malâ fide defendant combating for ultimate success, through indigence on the other side, the policy of the Judge and C o, the contrivances employed for his encouragement coincide pretty exactly with their policy in the case of the malâ fide plaintiff, combating for the faculty of extortion: so therefore does the counterpolicy of the legislator in the one case coincide with his counterpolicy in the other: the circumstances of the malâ fide litigants being in or out of possession of the subject matter in dispute making the only difference. The policy and counter policy applying to this species of malâ fide defendant will be placed in the clearer light by being postponed till after the policy and counterpolicy in the case of the corresponding species of malâ fide plaintiff has been brought to view. In like manner the policy and counterpolicy in the case of the species of malâ fide Defendant combating for gratification of enmity will be seen to coincide with the policy and counterpolicy in the case of the species of malâ fide plaintiff combating for the faculty of oppression: for the same reason will be postponed in like manner.
  • Title: [PRIVATE 9 July 1807 + C 15]
    Description: PRIVATE

    9 July 1807

    + C 15

    2 o

    Letter V

    4. Litigat. promot. 2 o

    §.6. 1. Pragreaves[?]

    2. Tenax

    §.6. How to breed divers species of Stellio. viz. 1.praegravis. 2. tenax. 3. dissipatorious. 4. fortinicola. 5. iratus.

    II. Particular Directions concerning defendants combating for ultimate success through indigence on the other side - see below.

    VIII. Directions concerning malâ fide Plaintiffs. This species of defendant is the wrongdoer in possession: the species of Plaintiff that matches with him is the wrongdoer out of possession: the mode of breeding is the same.

    III. Particular Directions concerning Defendants combating for intermediate profit through delay. See above Directions for the production of Delay, and the documents therein referred to.

    IV. Particular Directions, for the more effectual encouragement of malâ fide wrongdoers in the character of insolvent defendants, combating (viz. through delay) for the intermediate faculty of embezzlement, dissipation, or of destruction in gratification of enmity.
  • Title: [17 Feb y 1808 on L d Eldon's Bill]
    Description: 17 Feb y 1808

    on L d Eldon's Bill

    Letter VI

    Omissa & Facienda

    1. No reporting

    I. Directions for the encouragement of malâ fide wrongdoers against (good out-door parlance[?] and agents) in the character of malâ fide defendants of all six sorts.

    II. Directions for the more effectual encouragement of malâ fide wrongdoers in the character of solvent defendants combating for ultimate success through indigence on the other side - See below directions concerning malâ fide Plaintiffs.

    III. Directions for the encouragement of malâ fide wrongdoers in the character of solvent defendants combating for intermediate profit, arising out of delay, and proportioned to the length of it. or Particular directions concerning defendants combating for intermediate profit.

    IV. Directions for /Particular directions concerning/ the more special[?] encouragement of malâ fide wrongdoers in the character of insolvent defendants combating for the intermediate faculty of embezzlement or destitution or wilful damage in gratification of enmity.

    V. Directions for /Particular Directions concerning/ the more efficient encouragement of defendants solvent or insolvent combatting for ultimate success through casualties /delays by means of [...?] destructive[?]/.

    VI. Particular Directions concerning defendants combating for gratification of enmity - See below Directions concerning malâ fide Plaintiffs.

    VII. Particular Directions concerning solvent Defendants taking the benefit of an insolvency licence.

    In one instance /case/, and that a very exclusive one, composing the whole business of the Bill Chamber, extraordinary difficulty /difficulty/ is in a book of practice+ stated as the signal looked to by the Lord Ordinary for [...?] a cause out of his hands without decision instead of deciding in it, [...?] for reporting instead of advising. "All Bills are advised by the Lord Ordinary in the first instance, unless his Lordship thinks there is difficulty in which case he reports the same to the Court, verbally at the foot of the Table, and pronounces such interlocution[?] [...?], as is warranted by the opinions [...?] delivered[?]."

    The course they take for getting the better of /mastering/ extraordinary difficulties is truly curious. Where there is no difficulty, the case receives it decision from a single Judge, who has been keeping all the documents in his hands any number of months at pleasure, with the faculty of recurring to them any number of times and for any length of time at his leisure. When difficulty calls for proportionable examination and meditation[?], it is to be got rid of by a crowd of Judges huddled together each of them taking his conception of the case from what he can pack up from vivâ voce statement of the learned Reporter who stares[?] [...?] in [...?] in the station of a secture[?] rather than a Judge, expects in /looks[?] to/ the termination of the conference for the faculty of extracting himself from a situation thus irksome and incongruous.

    /To cover incapacity, and escaper from responsibility - yes: but is this the way to conquer difficulty, and do justice to the cause?/

    +Board 265, 279.