date

21 March 1807 Table II. Mischiefs
21 March 1807

Table II. Mischiefs of Delay in Judicatory

I. Mischiefs present, thence certain, and co-eval with the Delay -

I. To the prejudice of the Plaintiff's side

1. Denial of justice - thence In cases where the subject matter in demand is a determinate article of property, moveable or immoveable, loss of the use, together with the enjoyment and profit attached to it.

2. In case of money

loss of interest - in the case of a non-trader, ordinary interest; in case of a trader, / extra-interest;/ commercial interest: rate equal to that of profit in trade.

3. Vexation; from the contemplation of the loss thus incurred.

4. Expence, according to the costs, natural and factitious, attached, under the system in question, to the pursuit of justice.

II. To the prejudice of the Defendant's side.

1. Mischief on the score of Denial of justice, alone; but advantage. If the Defendant be in malâ fide, this advantage, though correspondent to the Plaintiff's disadvantage, is not equal to it; the absence of the article importing, to the Plaintiff, so much less: the presence, to the Defendant, so much gain: the enjoyment from which, the circumstances equal, is never equal to suffering from loss.+

+(See Bentham par Dumont, Traité de legislation[?] et pen.[?] Paris 1802. Tom.II. p.27. also pp. 308 to 351, in which the subject of satisfaction (for injury) is considered in all its branches)

2. As above, N o 1.

3. Vexation; if the Defendant be malâ fide, none: if in bonâ fide, considerable: to wit from the apprehension of an unfavourable result.

4. Expence, as on the Plaintiff's side.

II. Mischiefs Contingent

1. Final loss by misdecision, from deposition of evidence.

2. On the score of testimonial, and in some instances real evidence, deposition of freshness, and thence of trustworthiness and persuasiveness on the part of the evidence.

3. Deposition in the character of matter of satisfaction, in the hands of the Defendant, applicable to the purpose of satisfaction for the benefit of the Plaintiff.

4. Death of the Plaintiff; to whom alone satisfaction can be rendered without losing the greater part of its virtue: thence deposition of satisfaction, pro tanto, even where it is not lost in toto, viz. by refusal of the law to afford it to his representatives: - a denial of justice, established under English jurisprudence to a deplorable extent.

5. Death of the Defendant; by whom the satisfaction should have been rendered: thence deposition of satisfaction, either through inability on the part of representatives, or through established denial of justice, as above.

6. Ulterior delay:- the necessity, or demand for which may have been produced by fresh incidents sprung up during the course of the [...?]; and so on, more and more delay, with out any certain limit.

7. Expence: the necessity of it imposed by the fresh incidents; as above.

8. Vexation, produced by the fresh delay and expence.

1. Final loss by misdecision; to the prejudice of the malâ fidé

Defendant, none:- to d 0 of the bonâ fide Defendant, the same as to the Plaintiff.

2. As above. N o 1.

3. Mischief by deposition of the matter of satisfaction in the hands of the defendant himself to the prejudice of the Malâ fide defendant, none. &[?] contra, advantage in different shapes, according to the nature of his circumstances, and situation: viz: by the faculty of dissipating, concealing, exporting for future use, or carrying off, the value in dispute.

To the prejudice of the bonâ fide Defendant, deposition of the matter of satisfaction (viz: for his costs of suit) in the hands of the Plaintiff.

4. Death of the Plaintiff. to the malâ fide Defendant, no disadvantage in the respect in question, but an advantage. To the bonâ fide Defendant, a disadvantage in respect of costs, as above.

5. Death of the Defendant. To the malâ fide Defendant far[?] as concerns exemption from the painful sensation of loss matter of a consolation: to the bonâ fide Defendant, matter of increased regret: viz. on the score of loss of satisfaction for vexation and expence of suit, at the Plaintiff's charge.

6. Ulterior Delay. to the malâ fide Defendant, so much advantage, to the bona fide Defendant, so much disadvantage as above.

7. Ulterior Expence as on the Plffs side. To the malâ fide Defendant over-ballanced by the delay and consequent chances of misdecision in his favour:- to the bonâ fide Defendant, uncompensated.

8. To the malâ fide Defendant, compensated, as above; to the bonâ fide Defendant, uncompensated.
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    2. Next comes the solvent malâ fide Defendant, combating for ultimate success, through intervening casualties; such as deposition of evidence, death of plaintiff, death of defendant himself in a word, in the view of taking the benefit of casualties, of whatever nature and in whatever number, to which the nature of things, as in the instance of deposition of evidence, as for this or any other purpose, Judge and C o, as in the instance of the death of the party injured, or of the wrongdoer himself, have found means to give the effect of destroying the title of the party injured.

    In this, as in the last preceding case, the main engine or instrument provided for the use of encouragement of the wrongdoer, and put into his hands, is the delay: and the quantity of delay being given, and the deleterious quality infused into the casualty in question as above, no such ulterior and all-comprehensive and unremitting case is necessary, as was necessary in the last preceding case, to preserve the wrongdoer from the obligation of yielding up or making satisfaction for mesne profits.

    In a word in the last preceding cases of malâ fide defendant was the malâ fide litigant taking in that quality the benefit of the certain mischiefs of delay; in the present case it is the malâ fide litigant taking the benefit of the contingent mischiefs of delay; as per Table II in both cases.
  • Title: [12 July 1807 (11) Letter V]
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    III. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for success through indigence on the other side.

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    IV. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for intermediate profit by delay.

    1. Do away all such factitious delays as you find already established under and by the existing system: to do this you must substitute in every Court of judicature the natural system to the existing modification of the technical.

    2. In regard to such facititious delays as even under the natural system it might be in the power of a defendant, malâ fide or even bonâ fide, to produce, be careful to take away, in every shape, all possible profit from the delay; and in particular so ordering matters, that whatsoever be the loss produced by the delay to the party on the other side, viz. on the plaintiff's, full satisfaction shall be made to him for it at the defendant's expence.
  • Title: [28 Dec r 1806 Scotch Reform To L d]
    Description: 28 Dec r 1806

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    Accidents apart Setting aside those factitious chances given to malâ fide in favour of injustice on the plaintiff's side given to malâ fide plaintiff by the technical system such as the chance of deterring him[?] (by factitious vexation and expence) or cheating him who should have been [...?] from defending himself, or by factitious delay keeping the cause in pendency[?] till his evidence has perished /is given/, a plaintiff can not have had any inducement /motive/ for commencing the cause /instituting his demand/ without a persuasion of its being well founded in point of justice. But to engage a man to resist the demand in the character of defendant - and resist it to the very utmost, no such persuasion is at all necessary. To be already in a state of insolvency? the longer he can stave off compliance with the demand, the longer he continues in the enjoyment of his [...?] affluence to feed[?] and falter upon the enemy. Is he solvent? he protects[?] at any rate (I mean under the advantage given him in that respect by the technical system) he protects at any rate the interest of the monet, and in the mean time takes the benefit of the chapter of accidents: death of the Plff deposition of the Plffs evidence, and so forth.

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