date

15 June 1805 Evidence Introd
15 June 1805

Evidence

Introd

Ch. Procedure Technical

''.4. on the part of indigence

The mischief that can not be expressed can not be guarded against /averted/, at least by any exertion of legislative industry /wisdom/. Let the name employed for the designation /expression/ of the suits or proceedings planned or carried on on one side or other in the express view, and for the express purpose of oppression, be called /distinguished by the denomination/ malâ fide suits. or proceedings: and on the part of any person planning or carrying on any such suits or proceedings with any such views, let the act of carrying it on be called malâ fide litigation.

Malâ fide litigation will accordingly be distinguishable into mala fide demand and malâ fide defence: under which last denomination must be included malâ fide aggression out of court and previous to any suit, but in prosecution of an eventual design of malâ fide defence.

Mala fides again, when on the side of the defendant, may be the resource either of overbearing opulence, or of desperate or overweening[?] indigence. On the plaintiffs side, it can never be resource of indigence, except in expectation of finding still greater indigence on the other /defendants/ side: in which case on the side of the plaintiff, though there is no absolute, there exists, in opinion at least, relative opulence.

In general in a malâ fide suit, as thus described, the mala fides will be only on /confined to/ one side: that of the demandant and that of the defendant or eventual defendant as it may happen. The /an intentional[?]/ wrongdoer marks out an intended victim for his prey.

But the case of mala fides on both sides, though not the most natural and frequent case, requires to be mentioned as a possible one, the [...?] as it is by no means an unexampled one: two vultures, each thinking to encounter /strike/ a pigeon, encounter each other in the stead of it /its stead/.
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  • Title: [13 June 1807 A5 4 Letter V]
    Description: 13 June 1807

    A5 4

    Letter V

    II. Litigation

    Where the defendant is in the wrong, litigation is the result of wrong: where the plaintiff is in the wrong, litigation is the instrument of wrong.

    When litigation is either on the one part the result, on the other the instrument of wrong committed bonâ fide - in pure ignorance, the suit may be termed a bonâ fide suit: on each side of the cause, plaintiff's as well as defendant there is nothing but bonâ fides: plaintiff and defendant, are both of them bonâ fide suitors.

    Where both parties are in bonâ fide, the suit or cause may be termed a bonâ fide suit or cause: and here we see in the first class of suits, the first branch of litigation - the litigation as in the first case.

    Where either party is in malâ fide, the suit may be termed a malâ fide suit, or to avoid ambiguity the cause a malâ fide cause.

    Where the malâ fides is on the defendant's side, here we have a second class of suits, a second branch of litigation: the litigation is in the second case. Where the malâ fides is on the plaintiff's side, here we have the third class of suits, the third branch of litigation: the litigation is in the third case.

    Note

    (a) A possible case is - that both parties shall be in malâ fides: the one who is really in the right, not being conscious of his being so, but thinking himself in the wrong. But in a practical point of view this distinction can not often be of use. Whoever supposes a man to be in the right, will seldom see any reason for believing the man not to have supposed himself to be so.

    But a case that too frequently happens, is - that a man who at once is and believes himself to be legally speaking in the right, is and is conscious of being, morally speaking, in the wrong.
  • Title: [19 June 1807 18 (1) Letter]
    Description: 19 June 1807

    18 (1)

    Letter V

    II. Litigation

    II. Def t malâ fide

    In the case of the malâ fide litigant, i.e. the dishonest individual considered as exposed to the temptation of becoming malâ fide litigant, to which side soever of the cause his lot has destined him, one rule will serve as above for the description to express the policy of Judge and C o for the encouragment of him, make it his interest to become so: one rule consequently to express the correspondent counterpolicy - make it his interest not to become so - or even negatively thus - to order matter that it shall not be his interest to become so.

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    I. To begin with the malâ fide litigant whose station is on the defendant's side.

    Here to bring to view the two systems of policy of Judge and C o and counterpolicy of the legislator we shall have occasion to distinguish the malâ fide defendant into five species -

    1. Solvent malâ fide defendant, combating for ultimate success trusting to the medium of indigence on the other side.

    2. Solvent malâ fide defendant combating for ultimate success through the medium of deposition of evidence on the other side.

    3. Solvent malâ fide Defendant combating for mesne profits.

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  • Title: [21 Apr 1808 Letter V [...?]
    Description: 21 Apr 1808

    Letter V

    [...?] Appeals

    2 male fide

    +Into[?] the case if male fides underlining[?] prospect of ultimate success

    II. Remains for the proper object of prevention, in the stage of appeal, as in all proceding stages, malâ fide suits: male fide litigation, in both sides of the suit[?] most especially in the defendants as being the most natural suit of malâ fides the side on which malâ fides is most apt to attach itself. defence accompanied with neither[?] fides, that is unaccompanied with any prospect of ultimate success+, is not entered upon preserved in or entered[?] upon without prospect of some advantage. Ultimate success being by the supposition hopeless, remarks for the [...?] object, the advantages by delay. Take away this advantage altogether, defence /as/, whether at the stage of appeal, it will at any anterior stage as at the stage of appeal, cease of course. Leave any part of that advantage unremoved, malâ fide /so surely[?] [...?],/ defence will then at the stage of appeal, or at any other /[...?]/ stage, [...?] place or courtroom: To an eye which is not unwilling to see, nothing can be more [...?] [...?]: to unwilling eyes nothing is perceptible.

    To a defendant /In the course/ of whom to the [...?] it is certain that he will turn subject to the [...?] of justice wherewithal to satisfy the demands of justice, if it be certain /matter of certainty/ that the whole of the advantage [...?] of being [...?] in any shape from delay will ultimately be taken from him, this certainly added to the expence and vexation in all other shapes attached to such unprofitable defence will according to the point of time at which the [...?] commences, is sufficient to prevent him from [...?] or [...?] in defence.