15 June 1805

Evidence

Introd

Ch. Procedure Technical

''.4. on the part of indigence

The mischief that can not be expressed can not be guarded against /averted/, at least by any exertion of legislative industry /wisdom/. Let the name employed for the designation /expression/ of the suits or proceedings planned or carried on on one side or other in the express view, and for the express purpose of oppression, be called /distinguished by the denomination/ malâ fide suits. or proceedings: and on the part of any person planning or carrying on any such suits or proceedings with any such views, let the act of carrying it on be called malâ fide litigation.

Malâ fide litigation will accordingly be distinguishable into mala fide demand and malâ fide defence: under which last denomination must be included malâ fide aggression out of court and previous to any suit, but in prosecution of an eventual design of malâ fide defence.

Mala fides again, when on the side of the defendant, may be the resource either of overbearing opulence, or of desperate or overweening[?] indigence. On the plaintiffs side, it can never be resource of indigence, except in expectation of finding still greater indigence on the other /defendants/ side: in which case on the side of the plaintiff, though there is no absolute, there exists, in opinion at least, relative opulence.

In general in a malâ fide suit, as thus described, the mala fides will be only on /confined to/ one side: that of the demandant and that of the defendant or eventual defendant as it may happen. The /an intentional[?]/ wrongdoer marks out an intended victim for his prey.

But the case of mala fides on both sides, though not the most natural and frequent case, requires to be mentioned as a possible one, the [...?] as it is by no means an unexampled one: two vultures, each thinking to encounter /strike/ a pigeon, encounter each other in the stead of it /its stead/.