date

13 June 1807 A6 5 Letter V
13 June 1807

A6 5

Letter V

II. Litigation

Note continued

Another case that, to prevent misconception and confusion, must not be passed over altogether without notice, is - that on one side or both sides of a cause, the plaintiff's and the defendant's, there may be divers parties: of whom on either side or on both sides, one or more may be in bonâ fide, one or more in malâ fide.

These diversifications are mentioned, lest for want of comprehensive attention, error should creep in any where.

But the division here about to be made of litigation into three branches as above - bonâ fide litigation, litigation malâ fide on the defendants side, litigation malâ fide on the plaintiff's side will not (it will be seen) be the less correct, nor the inferences grounded on it, less applicable to practice, or with less advantage.

Text resumed

Where the defendant is in the wrong, the wrong may be either of the positive kind, or of the negative kind: of the positive kind where, for example, some positive act has been committed by him to the plaintiff's prejudice, such as destruction, or deterioration of an article of property, or undue imposition of expence, or interception of profit: of the negative kind, where it consists in the omitting to render to the plaintiff by a positive act some service that is due to him, such as the payment of a sum of money, conveyance, in a physical or legal sense, the delivery of some article of property, moveable or immoveable, to him or to his use.

A description of cases there likewise is in which no wrong being committed or so much as supposed to be committed by the defendant, the only service demanded by the plaintiff is a service supposed to be due to him, on the part of the Judge - but there being an individual at whose charge such service if rendered would be rendered, he is constituted Defendant, to the end that in the event of his supposing that the rendering of it would be prejudicial to his right, would be a wrong done to him, the opportunity may be afforded him, of defending himself against such wrong if shewing that of such service, if rendered by the Judge, wrong, viz. to him (the defendant), would be the result.
Similar Items
  • 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.
  • Title: [12 June 1807 (3) 10 Letter]
    Description: 12 June 1807

    (3) 10

    Letter V

    II. Litigation

    3. Of expence, considered independently of the portion of lawyers' profit extractible from it, the principal use and application consists, in the encouragement it gives to such malâ fides causes, in which the suit being the instrument looked to and employed for the commission of the wrong, the malâ fides is on the plaintiff's side: his object being either to extort something from the defendant by means of his inability to bear the expence, or simply to oppress him by the burthen of the expence.

    In both these cases expence is not only the instrument most immediately applicable, but almost the only instrument applicable to the purpose with any certainty of success.

    But expence, the burthen of it being considered as attaching itself alike to both sides of the cause, operates accordingly as an encouragement to wrongs and to litigation on the defendant's side, in as far as it affords a prospect of inability on the plaintiff's part to obtain redress, viz. by his inability whether to begin, or to continue in the character of plaintiff. A striking enough instance of this inability, and of the advantage made of if may be seen in the Defence of Usury.

    4. Vexation is an inseparable concomitant of each of these three other evils: of uncertainty, or at least of the sense of it on the part of him, whose wish it is alike to avoid committing and suffering wrong, but who knows not how:- of delay, more particularly on the part of the plaintiff against whom, while it lasts, it operates as a denial of justice; but also on the part of a defendant whose, being in bonâ fide, objects in the suit naturally are to escape from the wrong he is ensnared with by the suit, and to effect such escape as soon as possible:- of expence of course in every case.
  • Title: [13[?] June 1807 (2) 11 Letter]
    Description: 13[?] June 1807

    (2) 11

    Letter V

    II. Litigation

    In one way or other these four instruments are, each of them, applicable and applied to the purpose of giving increase to wrongs and to litigation in those their several forms as above distinguished. But each species of litigation finds among these instruments that one which is more particularly well adapted to the production of it.

    1. Of uncertainty, the principal use and application consists in the encouragement it gives to bonâ fide suits.

    But it also serves, in regard of such suits in which the malâ fides is on the defendant's side, in diminishing in the eyes of the defendant or proposed defendant, the probability of the cost attached to the obligation of rendering that satisfaction which it is the object of the plaintiff to obtain the prospect of which evil constitutes the counter-discouragement the tendency of which is to restrain the proposed defendant from committing the positive injury in question, or the negative consisting in the withholding of the service justly due.

    To p.9

    From p.9[?]

    2. Of delay, the principal use and application consists in the encouragement it gives to such malâ fide suits in which the malâ fides is on the defendant's side: which it does principally in the case where the injury done by him is of the negative kind, as just described: viz. by giving him the advantage, so long as it lasts, of retaining the subject matter of contention in his hands.

    But delay is also in various ways (see Table II.) a frequent cause of misdecision; and thereby coinciding with uncertainty operates in diminution of the force operating in restraint of wrong considered as a source of litigation.

    Another particular and more direct use to Judge and C o themselves, belongs not to the present purpose. It breeds incidents, (such as death, birth, marriage, &c &c, incidents calling for operations that furnish occasions or produce for fresh fees.