date

18 May 1805 Evidence Introd
18 May 1805

Evidence

Introd.

It is evident that when the suit is thus ill-grounded, whether its groundlessness be or not present to the demandant's mind - in other words whether it be or not on his part a mala fide suit, makes, with reference to the vexation and expence inflicted by it on the defendant, little or no difference. The mischief of the first order is therefore not encreased, not affected, by the absence or presence of this mala fides - of this criminal consciousness, of mala fides. Nor to the mischief of the 2d order: the danger and the alarm liable to issue from that source. That suits accompanied with this circumstance should exist in multitudes is a state of things, which it will be seen can not take place without some flagrant and radical defect in the texture of the law to wit /more especially if not exclusively/ in the system of procedure. In the constitution /-----/ of this system there is a somewhat or other /exists by the supposition --- --------/ which affords to the wrongdoer an assurance of success, even to him who in his own mind is conscious of being so. This is as much as to say which affords to him who has an interest in so doing a means, in appearance at least sufficiently assured, of contravening for his own advantage - of contravening in an indefinite number of instances one or other of the ends /the principal ends/ of justice: the demandant, where the mala fides is on his side, the defendant, where it is /exists/ on the side and part of the defendant.
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  • Title: [15 June 1805 Evidence Introd]
    Description: 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/.
  • Title: [3 June 1804 Procedure. B2 Evidence]
    Description: 3 June 1804

    Procedure. B2 Evidence

    Basis

    6. To cause the defendant to receive a decision on the spot, in favour of him the plaintiff; or, if not, to join for his own benefit, in the fixation of some other term or terms for the personage of the enquiry for the continuation or determination of the suit.

    7.

    8.

    6. That, if necessary, he may cause /having the opportunity of causing/ the defendant, upon oath, and under the check of cross-examination, to purge himself of all / mala fides - that is of/ evil intention and evil consciousness, in respect of collateral injustice, in the shape of unnecessary vexation, expence or delay, considered as producible by his plan /mode/ of defence:- declaring not only in general terms but in respect of each particular point, whether of fact or law, his own persuasion in regard to the question[?] of the /his/ cause: declaring for example his persuasion in respect of the trustworthiness /relevancy and conclusiveness/, of whatever extraneous evidence, personal, real or written he may have produced or have in comtemplation to produce.

    (a) This arrangement, with its counterpart mentioned below on the other side of the cause, is but the Roman Oath of calumny made reciprocal and in its application, extended to all cases present[?] uses of the higher classes perhaps excepted. Bail also, converted from nugatory into efficient: for /soon[?]/, for want of particularization, confrontation viz: with his adversary and cross-examination, the effect of it was rather to increase mala fides /to encourage hypocricy/, and if it were not regarded as nugatory, produce false confidence. Insincerity .. popular habits of insincerity - can not so effectually be promoted, as by the multiplication of declarations, solemnly [...?], but in case of falsity, exempt from consultation. See. Mendacity[?] causes.
  • Title: [27 May 1805 Evidence Introd]
    Description: 27 May 1805

    Evidence

    Introd.

    ch. Evils causes - non demand

    (1

    Considering litigation as an evil, wherein does the evil consist? Indubitably, either in judicial vexation, judicial expence, or in both together.

    But how But in what case is there anything in it of pure evil? Where being necessary to the fulfilment of the more important ends it is not /the evil if/ in quantity and proportion /-- ----/ preponderant over the good consisting in the fulfilment of those ends? No certainly.

    When upon the whole it is an evil, it is so no otherwise than because and where the vexation of which it consists (the expence included) as either necessary or preponderant.

    Under this limitation and not otherwise it becomes the legislator to use his endeavours to suppress it altogether. But in all cases it is also the duty of the legislator to use employ/ his endeavours to reduce the quantum of it to its minimum: to the least quantity to which it can be reduced, consistently with the regard due to the other ends of justice.

    To use /employ/ his endeavours to this end, is to apply /employ/ such arrangements as promise to be effectual in the character of remedies: but to know /determine/ what are the proper remedies to the mischief a preliminary step is to ---- what are its real causes. The causes are

    1. On the part of the law the uncertainty of the law. By this circumstance litigants of both descriptions blameable and unblamable, are engaged as will be seen in the branch of vexatious litigation /procedure/. Remedy giving to the law the utmost degree of certainty of which it is susceptible.

    2. On the part of either party, mala fides, or the party grounding his hopes of success on false or fallacious evidence, the falsehood or fallaciousness of which he is himself ------ed. Remedies the several remedies proper to be applied by the law against unforthcomingness and fallaciousness on the part of the evidence.

    3. On the part of either party, mala fides, the party grounding his hopes of success on the detaining or -------ing by means of vexation and expense the adverse party from commencing or continuing his demand or defence. Remedies 1. negative, forbearing altogether to make any ---- addition to the naturally necessary quantity either of vexation or expence: 2. Arrangements for defraying the naturally necessary expence, in favour of such suitors (including would-be) suitors as possess not the means of defraying it for themselves.