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.