20 June 1807

(3)

II. Litigation

II. Defend t malâ fide

Expressed by the most general description it admitts of, the policy employed for the multiplication of this species of litigant consists in the giving to the wrongdoer in possession the assurance of his keeping in his hands, even after and notwithstanding a decision divesting him of the subject matter itself, the mesne profits of it, or as large a portion of them as possible, for as long a time as possible, and clear, to as great an amount as possible, of all burthen, in the shape of satisfaction to the party injured, or reimbursement of his costs of suit or, in a word, in any other shape.

It consists accordingly in avoiding as much as possible, to make any of those arrangements which in the view of preventing the wrongdoer to the greatest possible extent from profiting by his own wrong, would at the suggestion of common sense have been originally employed by the policy, and in consequence of the development of the sinister policy of the Judge would now be employed by the counterpolicy of the legislator.

This phrase - taking advantage of his own wrong, applies to malâ fide plff. as well as defendant, and should therefore be introduced earlier or not so early.

Now speak of the different modes and degrees of mesne profit - commercial, non-commercial, ordinary, extraordinary. Here, or under §.3. Proper Remedies?

See Proper Remedies Contents p.2. note 37 to Let[?].