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.