5 June 1807

(23)

Letter V

Litigation - Prevent. Promot.

II. Def t malâ fide

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10. Taking alike effectual care that whatever interval of delay, natural or factitious, may intervene, between the time when the subject matter in dispute ought to have been delivered up by the defendant, and the time in which by execution of the judgment given against him he actually does render it, either[?] money or money's worth be rendered by him, in the name of satisfaction more than equal to the sum of the advantage derived by him in all shapes from the intervening respite.

11. Taking alike effecual care that in regard to whatsoever article or articles of value may be provided to be rendered by the defendant in the name of satisfaction, (of which in the case of when the subject-matter i.e. the principal subject-matter of the demand is a determinate thing or assemblage of things, moveable or immoveable, restitution or delivery thereof after litigation can never constitute more than a part, the value of what is so delivered shall in point of magnitude exceed rather than fall short of whatever was orignally due.

12. So also in point of certainty: insomuch that the value of it in that respect shall not be diminished or suffered to be diminished by any defeasance or defeasances: i.e. that to no event or events, except the free consent of the Plaintiff or his representatives, shall be given any such effect as that of exonerating the defendant or his representatives from the obligation of rendering the satisfaction so due.

13. Providing, in all cases, on the score of costs, reimbursement to the party in the right of all expences produced on his part by the wrongful complaint or defence of the party in the wrong: saving the care necessary to prevent him in the right from profiting by this arrangement to oppress his adversary by extending the obligation to unnecessary expences incurred temerariously or in malâ fide: and saving the regard due to the comparative pecuniary circumstances of each, in case of considerable and manifest disparity, where the conduct is alike pure from blame.

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Mesne profit

10. By means of delay, factitious delay, ready-made for his use, or which he is empowered to make, securing to him, and clear of the burthen of compensation such interest or profit, non-commercial, ordinary or extraordinary, as his circumstances enable him to make, on the capital equivalent to or representative of the subject-matter in dispute.

11. In regard to whatsoever provision might be proper to be made (viz. in the main body of the law) on the score of satisfaction (or compensation for the wrong (viz. the wrong meant to be encouraged) keeping down the value of it in point of magnitude, lest the deficiency produced in it as above in respect of want of certainty and propinquity being made up for in quantity, it should deter the proposed wrongdoer from becoming the character of malâ fide defendant.

12. So, in respect of certainty: viz. by defeasances, as numerous and unconsiderable as possible: producible by so many contingencies, of which how obvious soever in itself the physical event may be the legal effect thus given to it shall be as little as possible exposed to be desired[?] and anticipated by the light of reason and common sense. I. Ex.gr. 1. Death of the wrongdoer. 2. Death of the party injured.

13. Keeping down in the same view the quantity, and thence the value, of any other pecuniary allowance which it may have not been possible to avoid making (viz. to the plaintiff) at the charge of the defendant, where the decision is in disfavour of the defendant's side. Ex.gr. under the name of costs: i.e. reimbursement of that share of the expence of litigation which in the first instance fell on the plaintiff's side.

14. So, in regard to certainty:- viz. to the general rule for the allowance of costs, attaching exceptions as numerous, diversified, and irrational - and thence as [...?] and previously unascertainable as possible.