date

12 June 1807 5 12 Letter V
12 June 1807

5 12

Letter V

II. Litigation

General line of policy on the part of Judge and C o and of counterpolicies of the legislator and policy of Judge and C o in regard to the production of wrongs and litigation considered as producible by the operation of the above four[?]/five[?] instruments

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1. So far as concerns the production of bonâ fide suits, the policy of the legislator consists or ought to consist principally in the reduction of that uncertainty in which they take their rise.

2. So far as concerns the sum[?] production of malâ fide suits of both sorts considered together, in so ordering matters that it shall not be either for the interest or in the power, or at any rate that it shall not be at the same time for the interest and in the power of the individual in question to take a malâ fide part on the occasion in question, on either side of the cause.

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1. So far as concerns the production of bonâ fide suits, the policy of Judge and C o has consisted principally in the giving birth and encrease to that uncertainty in which they take their rise.

2. So far as concerns the production of malâ fide suits of both sorts considered together, the policy of Judge and C o has consisted principally in so ordering matters that it shall at once be for the interest and in the power - or at any rate that being already in the power, it shall be the interest, or being already the interest it shall be in the power of the individual in question to take a malâ fide part on the occasion in question, on one side or other of the cause.

In a malâ fide cause, in which, if instituted, the malâ fide will be on the defendant's side, the power existing already; what will be left to do on that side by Judge and C o will be the creation of interest; the interest in community or persevering in the unjust defence, and the instrument by which that interest could most effectually and with least danger to the reputation of Judge and C o be created to him was the delay.
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  • Title: [12 July 1807 (11) Letter V]
    Description: 12 July 1807

    (11)

    Letter V

    III. Litigat. prevet.

    III. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for success through indigence on the other side.

    Take away all factitious expence and vexation: in case of necessity provide for the defraying of the necessary mass of expence at the charge of some fund other than of the purse of the indigent individual in each case. See below Directions concerning malâ fide Plaintiffs.

    IV. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for intermediate profit by delay.

    1. Do away all such factitious delays as you find already established under and by the existing system: to do this you must substitute in every Court of judicature the natural system to the existing modification of the technical.

    2. In regard to such facititious delays as even under the natural system it might be in the power of a defendant, malâ fide or even bonâ fide, to produce, be careful to take away, in every shape, all possible profit from the delay; and in particular so ordering matters, that whatsoever be the loss produced by the delay to the party on the other side, viz. on the plaintiff's, full satisfaction shall be made to him for it at the defendant's expence.
  • 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: [25 June 1807 (5) Letter]
    Description: 25 June 1807

    (5)

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    II. Litigation

    Concluding Observations

    Under the article of expence, there is one great head, that of taxes paid in the written instruments of procedure, out of which, as Judge and C o will be ready enough to observe no lawyer's profit ever is or can be extracted.

    Thus far may be allowed to them. But should they proceed so much further as to aver that the operation of these taxes is upon the whole to their disadvantage, there the admission must stop.

    If they lain[?] upon the bonâ fide suits they are losers, upon these malâ fide suits in which the malâ fides is on the plaintiff's side, they are gainers. If upon those malâ fide suita in which the malâ fides is on the defendant's side they are losers on the one hand, they are gainers on the other.