[094-149v]

28 Jan y 1807

Omitt for the present or for ever

Not to be inserted in Scotch Reform

Letter V

What makes /gives to/ the history of this species of vermin its great importance, is the unlimited multtitude to which in a favourable sort and with the benefit of good nursing the number of them is capable of swelling.

The number of bonâ fide suits is a limited number, uniform in its magnitude capable of being swelled indeed by imperfections in the substantive branch of the law, but so far from being [...?] /[...?]/, restrained and diminished by delay vexation and expence. And by the adjective branch of the law, when ever it has been so wronged as to give /afford harbour/ reception to the malâ fide suitor the number of malâ fide suits that may thus be bred passes all calculation. In the single article of the Exchequer Chamber, Your Lordship has seen a hundred malâ fide suits for one bonâ fide one: or rather, to speak correctly 100 in which it was certain /matter of certainty/ that the defnedant was in ,alâ fode, for one in which his being in bonâ fide was not imposible.
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    Description: 13 June 1807

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    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.

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    (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: [2 May 1807 D2 (2) 11]
    Description: 2 May 1807

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    Letter V

    VIII. Appeal list mutilated

    III. Uses malâ fide properly indicated

    This explanation premised, in the three English existing Chambers of Review, taken together for and during the three-years period abovementioned, in numbers and proportions, as concerning malâ fide and bonâ fide Appeals, the account stands thus: not argued, i.e. all malâ fide Appeals, 1,780: argued, i.e. most of them probably all of them possibly bonâ fide Appeals, 20: malâ to bonâ fide, exactly as 89 to 1.
  • Title: [12 May 1808 I. Reasons Ch.V]
    Description: 12 May 1808

    I. Reasons

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    §.10. Malâ fide defences ousted

    The malâ fide defences by the nursing of which it has been so difficult, hitherto so impracticable to convince those on whom relief depends that any undesirable effect has been produced, are in that instance malâ fide. Appeals of that description which have received the appellative of Writt of Error.

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