19 June 1807

(19) (2)

Letter V

II. Litigation

II. Defend t malâ fide

Solvent malâ fide defendant combats for ultimate success and for [...?] profits [[...?] 3. for gratification of enmity]. In the first [and 3 d] comes[?] his plan of operation coincides with that of the malâ fide plff, and the counterpolicy for the rendering it [...?] in the same.

In the case where the malâ fide defendant is in solvent circumstances, the design which places him in that situation admitts of differences, by which though the policy of Judge and C o for the promotion of his views is not varied, the counterpolicy necessary on the part of legislator is rendered altogether different.

I. In the case of the malâ fide plaintiff the number of species which it will be necessary to distinguish is not so great, and his description is much more simple.

1. Malâ fide plaintiff, combating for the faculty of extortion; i.e. in general for ultimate success, through /trusting to/ the medium of indigence, and thence exhaustion of purse or perseverance on the defendants side.

2. Malâ fide plaintiff combating for the faculty of oppression, or say for the gratification of enmity: viz. by means of the expence and vexation imposed at his instance upon the Defendant by the Judge.

In regard to the case of the solvent malâ fide defendant combating for ultimate success, through indigence on the other side, the policy of the Judge and C o, the contrivances employed for his encouragement coincide pretty exactly with their policy in the case of the malâ fide plaintiff, combating for the faculty of extortion: so therefore does the counterpolicy of the legislator in the one case coincide with his counterpolicy in the other: the circumstances of the malâ fide litigants being in or out of possession of the subject matter in dispute making the only difference. The policy and counter policy applying to this species of malâ fide defendant will be placed in the clearer light by being postponed till after the policy and counterpolicy in the case of the corresponding species of malâ fide plaintiff has been brought to view. In like manner the policy and counterpolicy in the case of the species of malâ fide Defendant combating for gratification of enmity will be seen to coincide with the policy and counterpolicy in the case of the species of malâ fide plaintiff combating for the faculty of oppression: for the same reason will be postponed in like manner.