JB_092_247.xml

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.

JB_092_145.xml

Title: [12 June 1807 (13) (1) Letter]

Description: 12 June 1807

(13) (1)

Letter V

II. Litigation

Concluding Observations?

After this the observation showing that Judge and C o could not have been safely corrupt to more advantage.

They are not [...?] /[...?] [...?]/ to the dishonest suitor[?] the certainty of [...?] for ever, as we[?] shall see them [...?] the certainty of doing so far on [...?] his years, in safety and therefore without remorse - without shame

The nature and mode of operation of the several instruments considered, it will be evident that it was not in every instance in the power of the conductors of the system to promote the design of it in one way without counter acting it in another.

1. In the case of bonâ fide causes, so far as the uncertainty respecting the disposition of the main body of the law, so far as it was rendered matter of doubt whether the plaintiff had or had not under the law a title to the service which in point of natural justice at least be looked upon as his due - this uncertainty which it might tend in the way of encouragment to engage the party at whose charge the service was demanded, to refuse it, and so become defendant, would tend on the other side, in virtue of the difference in point of apparent probability, to discourage and deter him who should have been plaintiff from taking upon him that function: and as in regard to delay, vexation and expence.

But in respect of the prospect of ultimate success in bonâ fide suits this is all that could safely be done for the promotion of unintentional wrongs and litigation: and again in such malâ fide suits in which the malâ fides is on the defendant's side, this is all that could with like safety be done for the promotion of dishonesty, intentional wrongs, and litigation malâ fide on that side: a certainty of ultimate success in every case in favour of every individual who, whether in the right or in the wrong, and indiscrimately in the station of plaintiff or that of defendant at pleasure, would at the price of the attendant expence and delay be content to purchase it, and that without exposing the Judge to danger in any shape whether in the shape of legal or moral censure, was found to exceed the power of the mot consummate astutia on the part of the Judge, even when seconded by the most consummate blindness or patience on the part of sovereign and people.

JB_092_138.xml

Title: [25 June 1807 + (1) Letter V]

Description: 25 June 1807

+ (1)

Letter V

II. Litigation

Concluding Observations

{Among the evils which constitute at one time the modifications of injustice, at another or the same time the instruments employed for the production of it, there is one, that is more particularly useful in the hand of the Defendant, another to that of the Plff., the party being in malâ fide in both cases.}

The instrument more particularly adapted to the Defendant's (the malâ fide Defendant's) use is delay.

The instrument more particularly adapted to the Plff.'s (the malâ fide Plff.'s) use is expence.

Of expence the most obvious effect in regard to expence litigation is that of restraining it, and rendering to number of suits less than it would be otherwise.

1. Such accordingly it is in fact in regard to those suits in which supposing them to take place the right would be matter of doubt, each party supposing it to be on his side. On the number of suits of this description there can be no doubt of its operating in the character of a restraint thereby producing in the mind of him who, could he have afforded, would have been Plaintiff, besides the damage

directly issuing from the wrong, the opinion and affliction of a denial of justice.

2. Very different is its effect upon the number of suits in which the matter of right is out of doubt. In the case where the Defendant, including him who should have been Defendant, is in malâ fide, if its tendency is on the one hand to lessen the number of suits, on the other hand its tendency is to encrease the number of suits, or if not the number of suits the number of unremedied wrongs, which is still worse.