22 June 1807

(2)

Letter V

II. Litigation

II. Def t malâ fide

Even under that[?] system impossible always to prevent delay made at the instance of def t because impossible to ascertain beforehand whether the shape alledged by him as necessary, will or will not be so.

In cases of burthen and benefit direct and consequential is a distinction which neither the technical system in general, nor the English mode of it in particular has neglected altogether to take into account. For the application made of it, viz. to burthen under the name of damage, in the character of a ground of title to satisfaction at the expence of the defendant, and the demand in point of justice was too obvious and too pressing to be repelled altogether: the exceptions limitations and conditions by which in this case it has been narrowed ran too much into detail to be noticed here.

But this same distinction applies not with greater propriety to burthen than to benefit: and forasmuch as, lest the plaintiff be a sufferer by the defendant's wrong consequential damage, how remote soever must be taken into account, so lest the defendant be a gainer by his own wrong, and thus, in so far as the wrong consists in factitious delay behold in it a premium considerable enough to engage him in the commission of it, thus it is that consequential benefit can with no more propriety be left out [of] the account than consequential damage.