JB_094_183.xml

Title: [20 Jan y 1808 Scotch Reform]

Description: 20 Jan y 1808

Scotch Reform

Letter V

Ch 5. Malâ fide Appeals

how prevented

Rate of commercial profit, suppose it, for argument sake, in every instance 12 per cent, and no more. On this supposition, a defendant, busy in trade ought /should/ in every instance be made to pay at the rate of 12 per cent (viz per annum[?]) for so long as he has been found to have kept money that was /of the/ M r plaintiff in his hands.

Supposing this for argument sake to be too much for the plaintiff to receave, he being for instance not in trade, and his loss no more than 5 per cent, still rather than be [...?] less in the pocket of the Defendant, it ought to be otherwise disposed of: if too much to be given to the plaintiff in compensation for his [...?], it might at any rate go in compensation for the expence of the Judiciat establishment into the public purse.

If the plaintiff being [...?] in trade the receipt of the 12 per cent which, as before, the defendant ought to be made to pay is as more than a boon compensation for his /the plaintiff/ loss. the 12 per cent payable /to be found/ as when by the defendant so far from being too much is not enough: for without any pecuniary loss or expence to himself he has inflicted upon his adversary the /all/ vexation attached to the suit: and if the adversary have /has/ been the object of his enmity, so much vexation on the[?] one side of the suit, so much profit to the irascible appetite on the other.

JB_094_181.xml

Title: [20 Jan y 1808 Letter V Ch 5]

Description: 20 Jan y 1808

Letter V

Ch 5 malâ fide Appeal

how prevented

Note that though in cases of litigation the pecuniary shape is the shape in which the advantage to the litigant is most apt to take /be reaped/, and as being the most readily subjected to calculation, is the first adapted to the purpose of exemplification, yet according to the impression made by it /in proportion to the value put upon it by the litigant/ in his record, advantage in any other shape if to the same amount will in the occasion in question be producers of the same effect.

Though the [...?] of [...?] /pecuniary/ or exemplum from meaning[?] loss is on both sides of the suit the most frequent cause of litigation, yet the [...?] of gratifying enmity at the expence of the adversary is unhappily by no means an unfrequent one: and in this case, in so far as the suffering [...?] to be inflicted on the adversary assumes a pecuniary shape, the calculation /account/ is no less simple in this than in the one above mentioned /former instance/. In this case the the loss to the adversary viz as before the plaintiff, becomes to the malâ fide litigant, the defendant so much advantage: not necessarily indeed so much profit, meaning pecuniary profit, but shall so much advantage in smaller shapes, [...?] that a shape in which it rises and falls with the amount of the sum of money in question, exactly as in the other case.

Loss to plaintiff, by lying[?] not of his money, say 12 per cent: advantage to the malâ fidi defendant by keeping his money in hs hand, say 5 per cent: per contra loss which he will have to pay say 5 per cent: this gives profit indeed to the concupiscible appetite, 0: but real profit to the irasicible appetite, 2 per cent.

JB_094_180.xml

Title: [[?] Dec 1807 Scotch Reform]

Description: [?] Dec 1807

Scotch Reform

Letter V

[...?] [...?] [...?] Appeal

At this stage of Appeal, as at any other stage, for preventing malâ fide practice there is one course and but one, that brings with it a possibility of proving efficacious: and this is, to prevent being a gainer by it /a man's finding his advantage in it/ in the ballance: that is the maxim which though so seldom proved in practice is not without its place in the books - to prevent a man taking advantage of his own wrong: Advantage to the defendant by the use of the money in dispute, say 12 per cent: costs, (including his own and that portion of the advances which he is obliged to [...?]) say 5 per cent: real advantage by his own wrong, 7 per cent.

Advantage, by use of money, as before, 12 per cent: costs, as above, 5 per cent: interest allowed by the Court to the plaintiff at the expence of the defendant, other 5 per cent: neat[?] advantage to him by his own wrong, now[?] in this case 2 per cent.

Which thus /In every case in which // So many cases/ under the arrangements established by the law a man derives from his own wrong a neat[?] ballance on the side of advantage, though it be but a one per cent, though it be but a fraction per cent, so many cases in which the result is not justice bu a bounty upon injustice, an encouragement for committing injustice: and an encouragement which so far as depends upon the law, [...?] so far as a man understands his own interest, meaning his pecuniary interest, and is governed in his conduct by such his interest, is sure to be effectual.

In all these cases the effect really produced by the law in the direct course[?] of that which it professes /then effect the production/ and is supposed to earn[?] it.