date

20 Jan y 1808 Scotch Reform
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.
Similar Items
  • Title: [20 Jan y 1808 Scotch Reform]
    Description: 20 Jan y 1808

    Scotch Reform

    Letter V

    Ch 5. Malâ fide Appeals

    how prevented

    Loss to plaintiff, say, as before, 12 per cent: advantage to malâ fide defendant by keeping the money in his hands, say as before, 5 per cent: costs payable by him say, as before, 5 per cent: add[?] payable by him to the plaintiff in the score[?] of interest, 5 per cent. This leaves to the malâ fide defendant, disadvantage /pecuniary loss/ to the concupiscible appetite, 5 per cent. But his advantage by profit to the irascible appetite, is still 12 per cent: if then such be the state of his mind that for the 12 per cent advantage obtainable to the use of his irascible appetite, his concupiscible appetite is content to suffer a loss of 5 per cent, in other words, to pay at the rate of 5 per cent, an encouragement to imploy the hand of the law in doing wrong - an encouragement, and that an adequate and effectual one, is still[?] held not to him and given to him by the law.
  • 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.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

    Scotch Reform To L d Grenville

    (9

    Resolut. 14

    Costs

    To the case where the delay has been produced by a speculation of dishonest inquisitors economy the same remedy applies as far as it goes.

    But to this the remedy does act over[?] the whole extent of the mischief /disease/: it is a part only not the whole - the /an/ after part not the fore part of the unjust profit that the decision attached upon - the part only and not the whole of the loss /[...?]/ that it attaches upon, and compensates /[...?]/ for /makes satisfaction/.

    To take away the motive to injustice, the interest awarded should relate /go back/ to the point of time at which the compensation commenced - taking away then the profit of /by/ injustice if not always in case of mere temerity, at any rate always in case of malâ fides.

    Then again as to the rate of interest In a case like this - Would ordinary the greatest ordinary interest be sufficient? Shall it be in the power of a wrongdoer to borrow at ordinary interest of his adversary him whose money he has made himself - of the party whom he injures[?] /[...?]/? In a case like this extra interest therefore presents itself as an allowance as well which [...?] the case /situation/ of the wrong-doer is that of the party argued[?] - whether prevention by force[?] of the of punishment, or satisfaction in the want of the punishments having proved inefficient - be considered.

    As to the rate of interest it is a point which /in respect of which/ to be settled according to justice a considerable latitude of discretion must be left to the Judge. So much in default of specific reason for any higher or lower rate. But if cent per cent has been made of it by the defendant, he being conscious of his own wrong, cent per cent should be taken from, and given if not to the plaintiff, to some one - in a word to any one else. No man shall take advantage of his own wrong says the maxim under the technical system so frequently quoted under the technical system, like so many other /the rest/ of these maxims, so misleading - not to say so unfrequently observed.