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12 July 1815 +
Introd. Introd.
Ch. Collect Incident & Delay
(1 §.2. Mischiefs
2*
Table of the Mischiefs
from delay in causes
penal, non penal and
mixt, on both sides the
causes
ing the Mischiefs or say Inconveniences or Injustices] certain
d contingent, produced and producible by Delay, in causes
of all kinds, purely penal, purely non-penal, and mixt, are to
the prejudice of each side of each (viz: the Plaintiff and the Defendants) of each
respective cause
1. Mischiefs produced by delay.
C. to the prejudice of the Plaintiff
side; to the advantage of the Defendant's;
the Delay therefore if granted
by allowance from the Judge (a) will
to the prejudice of the Plaintiff will
naturally have been granted at the
instance of the Defendant.
II Mischiefs produced by Delay to the prejudice
of the Defendant's side; to the
Advantage of the Plaintiff; the Delay
therefore; if granted by allowance from
the Judge (a) and to the prejudice of the Defendant will naturally have been
granted at the instances of the Plaintiff
Note
(a) of the considerations particular mischiefs
brought to view given in this Tables
as of the mischiefs resulting from delay,
a pPrincipal consequence
is that no delay at
all ought in any case
to be fixed by the legislator
none granted, but one
special reason, granted
on the individual circumstances
of the individual
suit, circumstances not
coming within the cognizance
of the legislator, but only
of the Judge.
1. In
1. In causes 1. Purely penal — whereof the Defendant
be guilty, of Impunity during the
continuance of the Delay.
2. Purely non penal. where Preservation
the of the right during
is confounded,
of the right
loss or of the consequence of the right
during the delay.
3. Mixt — Impunity and loss of
receipt satisfaction of rights together — of
vexation right
loss of enjoyment of the right
of satisfaction, during the
delay, as above (a).
(a) Thence in
purely non-penal,
and mixt
causes, in which
money is due
ultimate loss of
interest for the
whole time upon
the principal due,
unless interest be given by the Judge
II Contingent Mischiefs — in
the several sorts of causes.
1. Deposition of evidence,
Impunity, protection of rights, or
both together as above. To the causes
of such disposition.
2. Deposition of the matter of satisfaction
in the hands of the plaintiff Defendant
of a private person thence
loss of satisfaction,or injury at his hands
done by the preservation in the
event of the proving unjust this the claim proving well-founded
N.B. This applies only to causes purely
non-penal and mixt: not to
purely penal.
3. Vexation from fresh incidents, liable
to spring up in the course
of the delay, and the steps that
may require to be taken in consequence.
4. Expence
in the course of procedure
4. Expence from fresh incidents
as above.
5. Delay — ulterior delay, the
demand for which may come to be produced
by the incidents that
have sprung up in the course
of the former delay.
1. In causes 1. Purely penal, vexation from
the apprehension of the punishment:
against which is to be set
if the defendant be guilty, the
respite by benefit of the respite i.e. the postponement of the
actual punishment.
2. Purely non-penal, vexation
from the apprehension of the burthensome obligation
produced imposed by the collation
of the right : against per contra
sol suspension of the
obligation, during the same.
3. Mixt — vexation from the
two abovementioned sources together:
per contra respectively
suspension of the punishment
and non-penal but burthensome obligation, as
above.
in
the general sorts of causes.
1. Deposition of evidence; thence danger
of punishment, though undue; of non-penal
burthensome obligation though undue.
2. Deposition of the matter of satisfaction
in the hands of the plaintiff, if a private
person: thence loss of satisfaction at his in the of the prosecutions
hands for
vexation and expence proving unfounded and injurious, loss of satisfaction
by the prosecution at his
hands for the vexation and expences
3. 6 Vexation, from fresh incidents, as on
the other side. In case of provisional
Imprisonment, or Viennous engagement, for securing forthcomingness and
justicability, continuance of
the imprisonment, or vicarious
burthensome obligation.
4. 7 Expence, from fresh incidents, as
on the other side.
5. 8 Delay, from fresh incidents, as
on the other side.
6 2 Deposition of the freshness, thence of On case of the part of testimonial evidence and in
some cases of real evidence, deposition
of the freshness, thence of the trustworthiness
and instructiveness of the evidence.
7. 4 Death of the party injured:
to whom satisfaction
should have been rendered
proper satisfaction thus rendered
8. Death of the author of the
injury, by whom satisfaction
should have been
rendered, possible satisfaction thus rendered uncertain, even where no such justice in this shape it is not desired, as it is to under English law it is, to a great extent.
By distance inaccessibility and other
causes the demand for
it happens that the delivery of a necessary
article of evidence may
remain impracticable for any
number of years: the demand
for delay may therefore
continue all that time. But
this affords no reason no
favour of fixed terms for
anything: except in one single
case out of the infinite number
such fixed term will always
be either too long or too short.
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