13[?] June 1807

(2) 11

Letter V

II. Litigation

In one way or other these four instruments are, each of them, applicable and applied to the purpose of giving increase to wrongs and to litigation in those their several forms as above distinguished. But each species of litigation finds among these instruments that one which is more particularly well adapted to the production of it.

1. Of uncertainty, the principal use and application consists in the encouragement it gives to bonâ fide suits.

But it also serves, in regard of such suits in which the malâ fides is on the defendant's side, in diminishing in the eyes of the defendant or proposed defendant, the probability of the cost attached to the obligation of rendering that satisfaction which it is the object of the plaintiff to obtain the prospect of which evil constitutes the counter-discouragement the tendency of which is to restrain the proposed defendant from committing the positive injury in question, or the negative consisting in the withholding of the service justly due.

To p.9

From p.9[?]

2. Of delay, the principal use and application consists in the encouragement it gives to such malâ fide suits in which the malâ fides is on the defendant's side: which it does principally in the case where the injury done by him is of the negative kind, as just described: viz. by giving him the advantage, so long as it lasts, of retaining the subject matter of contention in his hands.

But delay is also in various ways (see Table II.) a frequent cause of misdecision; and thereby coinciding with uncertainty operates in diminution of the force operating in restraint of wrong considered as a source of litigation.

Another particular and more direct use to Judge and C o themselves, belongs not to the present purpose. It breeds incidents, (such as death, birth, marriage, &c &c, incidents calling for operations that furnish occasions or produce for fresh fees.