date

18 June 1807 (4) Letter V
18 June 1807

(4)

Letter V

II. Litigation

III. Plff. malâ fide

Def t. malâ fide

Another point of distinction between the situations of the two species of malâ fide litigants acting in the character of conquerors, is - on the part of the intended suitor, the difference in respect of the facility of obtaining supporters, and consequently in respect of the terms on which the assistance of those of the mercenary class, which is the surest dependence, their support may be obtainable.

Correspondent to the advantage which the ambitious malâ fide litigant in possession has over the ambitious malâ fide litigant out of possession - correspondent in possession, but still greater is the disadvantage which attaches to the situations of the individuals marked out for their respective victims: the disadvantage which the rightful owner out of possession, and whose station in the suit if there be one is on the plaintiff's side, labours under, in comparison with that which attaches upon the rightful owner who is as yet in possession and whose station in the suit is accordingly on the defendant's side.

In possession, so as the subject matter in dispute be convertible into money, or in any other way a source of money employable at the will of the possessor, the subject matter in dispute serves to the malâ fide possessor, in the character of a fund for the expences of defence: so is it in the hands of the rightful owner, the bonâ fide litigant.

Destitute of this resource, the disadvantage under which the rightful owner labours, presses with a aggravated force proportioned in magnitude and energy to its depravity of the system of procedure: to its depravity in every shape, uncertainty, dilatoriness, expensiveness and vexatiousness.
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  • Title: [30 May 1807 Letter V II. Proper]
    Description: 30 May 1807

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    To be the more thoroughly satisfied of the truth of this genealogy that, except in the cases above excepted, the malâ fide suitor owes his birth to the law partnership we have but to observe the advantage they draw from giving him into existence and the means they make use of for that purpose.

    The profit derivable from this branch of wayward industry encreasing cateris paribus with the multitude of suits, and with the expensiveness and thence with the dilatoriness and vexatiousness of each suit to the parties, hence that industry set before itself of course two main objects: 1. hence one main object of that industry came to be so to order matters as that the number of suits (being profit-yielding suits should be as great as possible: 2. and that in each suit the expence - viz. the profit yielding part and thence in general the whole of that expence - may be as great as possible.

    Both these objects were provided for by rendering the number of malâ fide suitors and thence of suits as great as possible.

    The former object manifestly. To the number of suits in which each party believes himself to be in the right, are added the number of those in each of which there is one party who being conscious of being in the wrong would not engage in the suit, being certain of being upon the whole a sufferer by it, were it not for some preponderant advantage which he sees held out to him by the Judge, or what to the malâ fide suitor is the same thing, by the state of the law, the work of former Judges, or legislators acting under the guidance of Judges or other lawyers.

    The other object, no less manifestly. - The n o of suits, each yielding a profit, being given, the aggregate mass of the profit extracted from the whole number will be the greater, the greater the quantity of profit-yielding expence arising out of each or any such suit.
  • Title: [PRIVATE 17[?] June 1807 Scotch]
    Description: PRIVATE

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    (1)

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    Letter V

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    One species of malâ fide defendant has been mentioned as bearing in several circumstances a resemblance to one species viz. the one here in question of the malâ fide Plaintiff: viz. in respect of the nature of the end he aims at, the nature of the means employed by him for the accomplishment of it, and the nature of the encouragement or rather the assistance he receives from Judge and C o for that purpose.

    Thus was the species of malâ fide defendant who having before the suit put himself in possession of the sum of money, the article of moveable property, the estate, or whatsoever else may happen to be the subject and object of competition, to which he is conscious of having no just right, continues to act in the station of defendant, not merely for the temporary advantage, (in the nature of interest upon capital) obtainable from delay, nor for the hope of seeing misdecision in his favour produced by accident out of the delay, but for the more substantial assurance of remaining master of the field for ever, the adversary, the injured and bonâ fide plaintiff, being become bankrupt either in purse or perseverance.

    From the malâ fide plaintiff whose encouragement and power sold to him by Judge and C o comes to him in the shape of the faculty of extortion, the species of malâ fide defendant here in question differs no otherwise than in respect of the circumstance of his being in possession of the subject matter in dispute.
  • 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.