date

27 Feb y 1807 Judicial Justice
27 Feb y 1807

Judicial Justice

Letter V

To return to suitors.

Suitors, who finding it or supposing it to be their interest to create superabundant delay, betake themselves accordingly to the creation of it, are the malâ fide suitors so often mentioned.

To the malâ fide suitor, superabundant delay is an instrument of mischief in different shapes - an instrument of simple vexation and oppression, or of undue profit, and in different ways, according as his station is on this or that side of the cause.

Is he on the plaintiff's side? - if his object be the production of mere vexation without profit, it affords him the desired gratification partly by the expence which to a greater or less degree is inseparably attached to the condition of litigant on each side, partly by the anxiety, the vexation with which a course of litigation is infested throughout the whole of its length.

If his object be undue profit, it may have for its effect the putting him in possession of the subject matter of dispute, by any of the means so often mentioned - by the adversary's, being disabled, by the deperition of necessary evidence from continuing his defence with any prospect of success, by his being altogether disabled, by the absolute want of the means of defraying the necessary expence, by his being driven from his defence by the terror inspired by the compound mass of affliction in the shape of the vexation and expence.
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  • Title: [30 June 1807 Letter V Recapitulation]
    Description: 30 June 1807

    Letter V

    Recapitulation

    1. Malâ fide Appeal is produced[?] by the profit by delay.

    2. Malâ fide defence in the first instance is made with a view to d o Appeal.

    2. As to such causes in which there is malâ fides on one side, viz. the Defendant's side.

    In regard to causes of this class in which there is malâ fides and the malâ fides is on this side, it has been shewn that they originate for the most part in factitious delay: in that delay which as to part though factitious as being made by the existing system has been rendered by it avoidable, as to other part is made by the defendant in virtue[?] of the power as well as the inducement in so doing which the system has put into his hands. So far as concerns[?] delay a sure, and at the same time the only, method of striking off such part of it as depends on the exertions of a malâ fide Defendant has been indicated in the preceding pages: viz. the ceasing to secure to him a neat profit from delay. But no such method is contained in or accompanies the plan for the proposed Chamber of Revision. On the contrary, by adding to the quantity of delay which he is enabled to make it adds to the profit.

    If, should it happen to the proposed Chamber by means of the additional delay, and the profit derivable from it by the Defendant, it should happen to thus[?] be among the effects, the proposed Chamber to add to the number of malâ fide Appeals, the mass of mischief produced by it partly in the shape of factitious delay, expence and vexation, partly in the cause of undue profit to the defendant with the concomitant undue loss to the Plff. by means of the delay, will not be confined to that which takes place in consequence of and then subsequently to the Appeal: to this will be to be added the whole of the mischief produced in the same shapes in the same causes during the antecedent stage or stages to the Appeal.
  • Title: [12 July 1807 (11) Letter V]
    Description: 12 July 1807

    (11)

    Letter V

    III. Litigat. prevet.

    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.

    Take away all factitious expence and vexation: in case of necessity provide for the defraying of the necessary mass of expence at the charge of some fund other than of the purse of the indigent individual in each case. See below Directions concerning malâ fide Plaintiffs.

    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: [1 June 1807 Letter V III Devices]
    Description: 1 June 1807

    Letter V

    III Devices for promoting litigation by promoting wrongs of which litigation is /shall be/ itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming /rendering himself/ plaintiff: - viz. /and thereby/ malâ fide plaintiff.

    This purpose is answered by the various /divers/ mischiefs the production of which has more commonly some nearer or other /ulterior/ object: viz. /ex. gr./

    1. By the factitious expence attached to litigation, for the sale of the profit extractable from the offence.

    2. By the vexation inflicted on /produced to/ the defendant by the expence and trouble /2.3. By the expence and vexation/ of his defending himself /defence/:

    3. By the uncertainty of the law as above (II 1.2.3.4.5.6.7.) viz. the uncertainty whether even suppose functioning[?] sufficiency not wanting, he may be able, under the law, to defend himself with success: - by this uncertainty, and the vexation attached to it.

    4. By the factitious delay the manufacture of which has its main /principal and more immediate/ objects the profit-yielding expence, be the cause what /which/ it will a bonâ fide or malâ fide cause, and the encouragement it holds out for continuing defence[?], in /commencing and persevering in/ a malâ fide cause in which the malâ fides is on the defendant's side. (as per II.10.)