date

17 June 1807 (2) Letter V
17 June 1807

(2)

Letter V

II. Litigation

III. Plff. malâ fide

I. Def t malâ fide

Whatsoever in the individual instance in question happens to be meant by the word possession (for, familiar as is the term nothing can be more vague and diversified and frequently obscure than the idea it represents) various are the causes in which it may happen to it to have taken rise. It may have devolved[?] upon the wrongdoer, previous to the plan formed for the ultimate appropriation: as in the case where the possession falls to him is put into his hands in the character of representative (Executor or Administrator called by the law or by the individual) to an individual deceased or Trustee of any other among the numerous classes and descriptions of Trustee. It may have been acquired by him by a strategem: it may have been put into his hands, in the hands of one to whom he is become representative in the character of mortgagee[?] or holder in pledge, by the injured plaintiff or one whose representative he is. Immoveable it may have been put into his by a tenant of the right owner: moveable, by any person into whose hands it had come, no matter in what way, on the footing of a deposit.

Though his plan of operations is in its main features the same as that of the malâ fide plaintiff proceeding in the way and for the purpose of extortion, his situation is in divers very important respects much more advantagious. If it be an article of marketable value, his means for repelling and smothering the adversary (the injured plaintiff) are on average greater than those of the malâ fide plaintiff by the whole amount of the marketable value of the subject matter of his possession, the subject matter or object of the dispute: and this over and above the advantage which, in a case that admitts of doubt the circumstance of possession affords in respect of the prescription it affords of the rights being on the possessor's side.
Similar Items
  • Title: [PRIVATE 17[?] June 1807 Scotch]
    Description: 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.
  • 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: [June 1807 (4) II. Lit.]
    Description: June 1807

    (4)

    II. Lit.

    Def t. malâ fide

    2. Next comes the solvent malâ fide Defendant, combating for ultimate success, through intervening casualties; such as deposition of evidence, death of plaintiff, death of defendant himself in a word, in the view of taking the benefit of casualties, of whatever nature and in whatever number, to which the nature of things, as in the instance of deposition of evidence, as for this or any other purpose, Judge and C o, as in the instance of the death of the party injured, or of the wrongdoer himself, have found means to give the effect of destroying the title of the party injured.

    In this, as in the last preceding case, the main engine or instrument provided for the use of encouragement of the wrongdoer, and put into his hands, is the delay: and the quantity of delay being given, and the deleterious quality infused into the casualty in question as above, no such ulterior and all-comprehensive and unremitting case is necessary, as was necessary in the last preceding case, to preserve the wrongdoer from the obligation of yielding up or making satisfaction for mesne profits.

    In a word in the last preceding cases of malâ fide defendant was the malâ fide litigant taking in that quality the benefit of the certain mischiefs of delay; in the present case it is the malâ fide litigant taking the benefit of the contingent mischiefs of delay; as per Table II in both cases.