date

12 May 1808 I. Reasons Ch.V
12 May 1808

I. Reasons

Ch.V. Advantages

§.9. Malâ Fide demands ousted.

Ch.V.

§.9. Malâ fide demands excluded in great measure.

Such is among the effects the production of which in Ch.V. §.3. {Certainty} is stated as proper to be aimed at: aimed at, and by the means therein brought to view. viz. by the interest which under the proposed arrangements the plaintiff would have in rendering his statements as explicit and to the defendant as instructive as the nature of the case on each individual occasion happens to allow: by the proposed and not uncustomary oath or solemn declaration not of sincerity a general terms, for that would be but grimace and perjury, but of his belief as attached to the several particulars therein stated by him, and the inconvenience which would fall upon him of course, if for want of sufficient correctness - particularly on his side, the Defendant should at the hearing be obliged to apply for, and should accordingly obtain, an adjournment.

In England, if in that kingdom lay the scene, the title of this result to the character of an advantageous one would be in no small degree precarious.

In England the emoluments of many a man in high authority, and amongst others of the several dignitaries of the law, depend in no small degree upon the number of suits and consequently of demands. But a malâ fide demand is a demand: consequently by every malâ fide demand struck off, were such a thing endurable, a proportionable part of the reward allotted to exalted merit, in this and that exalted station, would be struck off. Without adequate compensation such a defalcation would scarcely not be endurable, in the eye either of prudence or of justice, with such compensation it would not be endurable in the eye of a man of finance, regarding as usual no injury to justice as a price too great to pay for personal case[?].
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  • Title: [12 May 1808 Ch.V. §.10 I. Reasons]
    Description: 12 May 1808

    Ch.V. §.10

    I. Reasons

    Ch.V. Advantages

    §.10. Malâ fide Defences ousted

    Ch.V.

    §.9. Malâ fide defences reduced in number.

    Correspondent to the defalcation made from the number of malâ fide demands, would be the defalcation made {by correspondent causes} from the number of malâ fide defences.

    Correspondent; but not equal: because ability to pay is not a necessary concomitant to the inability of averring with truth and safety the existence of a just man for not paying.

    In England the title of this effect to the character of an advantage would be still more precarious than that of the other which is so intimately stated to it.

    In England the emoluments of those exalted dignitaries, for whose sake men of inferior mould were created, depend in a still greater and more evident degree upon malâ fide defences than upon malâ fide demands.

    With the full knowledge of himself and all the other Judges, of the mass of emolument attached to the Office of Chief Justice of England, a portion amounting in the year 1798, to upwards of £1,400 a year was afforded by malâ fide defences in number between │ │ and │ │ in a year defences known to be malâ fide ones to the full knowledge of those venerable persons from whence a word properly addressed could have at any time been sufficient to put an end to this traffick if the abolition of it had been considered as entitled to the appellation of an advantage. In 1798 more than £1,400 a year: and now in 1807, £│ │
  • 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.

    But in each situation a man's interest, meaning on this occasion, his own conception of his interest admitts of considerable diversification having its source partly in the nature of the advantage or gratification he has in view, partly in the nature of the means or opening to which he has in view as leading to the acquisition of it.

    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.

    4. Insolvent malâ fide Defendant, combating for the faculty of embezzlement or dissipation.

    5. Solvent or insolvent malâ fide Defendant, combating for gratification of enmity.
  • Title: [18 June 1807 (3) Letter V]
    Description: 18 June 1807

    (3)

    Letter V

    II. Litigation

    III. Plff malâ fide

    Def t malâ fide

    In a word no malâ fide plaintiff, who, meditating a plan of conquest by the assistance of Judge and C o, fighting for him as mercenaries would not be eager to change his station in the war into that of defendant, malâ fide defendant: so that consequently if it depended upon the choice of the intended conqueror, there would be no such character as that of malâ fide plaintiff: not that in that state of things there would be more honesty than at present, on the part of non lawyers or lawyers.

    As the faculty of seizing a post of such importance is one advantage comparatively rare, depending sometimes upon sagacity and industry, sometimes upon good fortune, hence in the situation of malâ fide defendants the field of enterprize open to the ambitious man is circumscribed within limits comparatively narrow: whereas to he who is content to act from the open, unfortified post of plaintiff, sees the whole "world before him", and, though he had better not look to "providence" need be under no want of "guides".

    Yet, so great is the advantage attached to possession that, notwithstanding the boundlessness of the field of enterprize open to the malâ fide plaintiff, yet among the conquerors or invaders whose ambition has been kindled by the invitation held out to them by Judge and C o, if a muster could be made, there would probably be found many more malâ fide litigants on the defendant's than on the plaintiff's side.