date

PRIVATE 22[?] June 1807 +
PRIVATE

22[?] June 1807

+ A

Scotch Reform

1 o

Letter V

II. Litigation

II. Defend t. malâ fide

II. Litigation in its second shape - litigation with malâ fides on the defendant's side.

Two cases viz. that of the solvent malâ fide Defendant, combating for ultimate success, and trusting to indigence and its concomitant helplessness on the plaintiff's side, and that of the malâ fide Defendant, solvent or insolvent combating for gratification of enmity, being dismissed as above to the next head, there remain three species of malâ fide Defendants whose cases, with the policy and counterpolicy respectively applying to them, came to receive explanation.

1. First comes the malâ fide Defendant, combating for mesne profits, and employing factitious delay for the creation and prolongation of them.

In the natural order of things this species of litigant has no existence: he is altogether the offspring and nurseling of the policy of Judge and C o. His element is of their creation: it consists of a portion of the property of the party injured, the grant whereof is offered to him who will accept of it, on condition of his committing a species of civil wrong, at his choice and thereupon in case of complaint, taking upon himself the state and quality of defendant

As to the expression mesne profits, i.e. intermediate, in the language of English jurisprudence from which it is borrowed, its import extends little if any beyond the produce or rent of an article of immoveable property recoverable by ejectment.

But in its original import it is applicable with no less propriety to advantage in any shape considered as flowing out of a subject matter of any kind in the course of a length of time lying between any two given points.

The faculty of educating and maintaining an infant, though it were at a man's own expence, would in this comprehensive sense be a taking of mean profits, viz. from the possession of the infant, as well as the faculty of taking a crop of corn from Black-acre[?].
Similar Items
  • Title: [19 June 1807 18 (1) Letter]
    Description: 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.
  • 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: [24 June 1807 (7) Letter V]
    Description: 24 June 1807

    (7)

    Letter V

    II. Litigation

    II. Def t. malâ fide

    The two most regular customers whom Judge and C o have for their jus frandandi[?], and the two most distinct from one another on this side of the cause, are the malâ fide defendant combating for intermediate mesne profit by delay, and the malâ fide defendant combating for the intermediate faculty of embezzlement or dissipation. To each of these Judge and C o hold out in the character of a collateral and additional bonus, the chance of ultimate success, by means of intervening casualties.