date

PRIVATE 17[?] June 1807 Scotch
PRIVATE

17[?] June 1807

Scotch Reform

(1)

1 o

Letter V

Letter V

II. Litigation

III. Plff. malâ fide

3. Def t quare[?] deft[?] malâ fide

One species of malâ fide defendant has been mentioned as bearing in several circumstances a resemblance to one species viz. the one here in question of the malâ fide Plaintiff: viz. in respect of the nature of the end he aims at, the nature of the means employed by him for the accomplishment of it, and the nature of the encouragement or rather the assistance he receives from Judge and C o for that purpose.

Thus was the species of malâ fide defendant who having before the suit put himself in possession of the sum of money, the article of moveable property, the estate, or whatsoever else may happen to be the subject and object of competition, to which he is conscious of having no just right, continues to act in the station of defendant, not merely for the temporary advantage, (in the nature of interest upon capital) obtainable from delay, nor for the hope of seeing misdecision in his favour produced by accident out of the delay, but for the more substantial assurance of remaining master of the field for ever, the adversary, the injured and bonâ fide plaintiff, being become bankrupt either in purse or perseverance.

From the malâ fide plaintiff whose encouragement and power sold to him by Judge and C o comes to him in the shape of the faculty of extortion, the species of malâ fide defendant here in question differs no otherwise than in respect of the circumstance of his being in possession of the subject matter in dispute.
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    Description: PRIVATE

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    II. Particular Directions concerning defendants combating for ultimate success through indigence on the other side - see below.

    VIII. Directions concerning malâ fide Plaintiffs. This species of defendant is the wrongdoer in possession: the species of Plaintiff that matches with him is the wrongdoer out of possession: the mode of breeding is the same.

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  • Title: [19 June 1807 (19) (2) Letter]
    Description: 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.
  • Title: [PRIVATE 1 June 1807 Letter]
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    1 June 1807

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    III. Proper Remedies

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    The stage here in question - the only stage directly in question - is that of appeal: the only state in which on the present occasion the malâ fide defendant comes directly under consideration, is that of malâ fide appellant.