PRIVATE

22 June 1807

+ Contents p.8

Scotch Reform

1 o

Letter V

Letter V

II. Litigation

II. Def t

malâ fide

Be the Defendant in malâ, or in bonâ fide, the burthen he combats against may be either the restitution of a benefit most commonly a source of pecuniary burthen, most commonly a pecuniary profit, or the susception of a loss: and the defendant's obligation to take upon him the burthen, to which corresponds the plaintiff's right to have it cast upon him, may have been created by misconduct on the defendant's part, by misconduct on the part of a third person, or by mere accident, without misconduct on the part of any body.

Whatever be the judgment pronounced on the plaintiff's demand, if among the objects aimed at by it with a view to the individual case in hand the making compensation for any factitious delay created by the defendant, or with a view to future similar cases preventing the fabrication of like delay, the effects of the judgment on both sides of the cause, that is on the interests of the parties on both sides, will be taken alike into the account and due provision made in relation to them. Neither from an act productive of delay any more than by any other state of things or event in the production of which it is possible that the conduct of the defendant could have any share, should the defendant be permitted any clear benefit, whether in a pecuniary or any other shape for so often as he sees a preponderant probability of his deserving any such benefit from factitious delay, so often may he be expected to do what depends upon him towards causing it to be made. In like manner neither from delay, nor from any other such state of things or event as above, should the plaintiff be left to sustain any uncompensated burthen. Why? because where gratification of enmity constitutes, or enters into the composition of the object by which a wrongdoer has been engaged to take upon him the state and condition of defendant, the benefit reaped or expected by the defendant, being constituted by the correspondent burthen imposed on the Plff., increases along with it.