JB_092_429.xml

Title: [24 April 1807 A3 3 Letter V]

Description: 24 April 1807

A3 3

Letter V

Inadequate compensation

3. Appeal vice Advocation

2. Where a debt in the shape of a sum of money is the subject of the demand, the profit of the defendant, to be made by staving off payment, will encrease of course with the length of time during which it can be staved off - i.e. with the interest upon the principal sum constituting the debt: like profit, though perhaps not always equal profit, where the subject of the demand consists not in money, but in some specific thing or assemblage of things moveable. To countervail this profit to the defendant this loss to the plaintiff - is any satisfaction provided at the defendant's charge? Oh no:- upon the principle so fully above explained - the Magna Charta of learned Lords and Gentlemen the application of any such check to business is carefully and religiously avoided:- in the Court appealed from on entering the Appeal, a Bond to be given for debt and costs; yes: for debt and costs: but not for damages: not for the ademption of dishonest gain, not for the making up of undue loss, under any name, Scotch or English.

JB_092_128.xml

Title: [21 June 1807 (2) II. Litigation]

Description: 21 June 1807

(2)

II. Litigation

III. Def t malâ fide

In the case where the service demanded at the charge of the defendant consists in the making of satisfaction, by payment of money or otherwise for evil in the shape of loss, or any other shape, sustained or about to be sustained by the plaintiff under the notion of mesne profits may be comprised whatsoever advantage may be obtainable from the staving off the time of the rendering such service: and this whether the loss consisted in the absolute destruction of the subject matter or only in its transference into wrong hands, and whether having by misconduct on the part of the defendant, or on the part of a third person, or by pure accident for its cause: as where the matter in dispute is, by which of them the plaintiff or defendant, a loss occasioned by neither of them shall ultimately be sustained.

In both cases - viz. where the effect of delay is to continue a man in the possession of a growing gain, and where the effect of it is to preserve him, for so long from a loss, the delay is a source of intermediate advantage to him - of profit, if mesne profit be understood as synonymous to advantage: and supposing the same representation of the advantage to be the same in both cases, the advantage, by avoiding the obligation of disbursing it, is even greater than the advantage of receiving it: to a man who is worth £1000, it is more material to avoid payment of £500 out of it for a twelvemonth than it would be to have an additional £500 during that same time in his hands.

JB_094_413.xml

Title: [21 March 1807 Table II. Mischiefs]

Description: 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.