date

20 Jan y 1808 Scotch Reform
20 Jan y 1808

Scotch Reform

Letter V.

Ch 5 Malâ fide Appeal

how prevented

In speaking of the encouragement given to wrong in the last stage of jurisdiction - that of Appeal to the informal[?] judicatory, so far from being beside the purposes[?] the encouragement given to it and the profit official and professional, reaped from it is so far from being beside the purpose, that it is to the prospect of the [...?] profit to be made by the such at the last stage, viz by the delay that will be given to it in that stage, that the defendant is determined /malâ fide litigant comments[?] that[?]/ to do his part towards the giving birth to it at the first stage, and carrying it through the intermediate ones. Three years delay with the three years communal profit upon another man's money which he has in his hand say 14 per cent raised in expectation perhaps by particular circumstances or by the [...?] of adventure to 20 per cent after ,1000 three times ,200 equal to ,600 will if [...?] afford us inconsiderable payment for the expence of defending a cause without [...?] in the [...?] and intermediate judicatories.
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  • Title: [20 Jan y 1808 Scotch Reform]
    Description: 20 Jan y 1808

    Scotch Reform

    Letter V

    Ch.5. Malâ fide

    Appeal how prevented

    A good portion of delay with its profit extending over the stage of appeal will have[?] formed [?] a good deal of expence in the [...?] judicators. Appeal to the Lords in [...?] there. [...?] [...?] at [...?] [...?] whereby of a [...?] [...?]. [...?].

    This is not only the stage of Appeal: whether intermediate or ultimate, but at the very first stage - the stage of immediate judicature, and at /through/ every stage of each such stage - of those whose real duty[?] and supposed occupation has been to shut the door against wrong /extirpate wrong/ their real study and occupation has been, by every safe and practicable means in their power to give menace to wrong and the fruits of wrong, [...?] the share of the master husbandman being secured to himself by himself in the first instance.

    Thence (to mention it by way of corollary) then all those demonstrations of zeal and industry displaying themselves at every stage of the cause, demonstrations supported and animated at every stage by the assurance of their inefficacy: [...?], [...?], [...?] all exacted or rendered exigible under the notion of /in pretence/ of [...?] malâ fide litigation - all affording protection and encouragement to it by the care taken that the [...?] of the pretended encouragement[?] shall be in most cases comparatively /relatively/ minute, in all cases fixed or [...?], which the profit [...?] if being reaped from the delay thus granted is altogether without [...?]: all this [...?] [...?], but none of them for nought - all sitting sometimes at a higher sometimes at a lower, generally at an unscrutable[?] fence[?], the protection and encouragment thus afforded. Many for example [...?] into Court: and 5 per cent of it [...?] immediately by a Clash, to begin with.+

    +Baird[?]
  • 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: [[?] 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.