13 June 1807

A6 5

Letter V

II. Litigation

Note continued

Another case that, to prevent misconception and confusion, must not be passed over altogether without notice, is - that on one side or both sides of a cause, the plaintiff's and the defendant's, there may be divers parties: of whom on either side or on both sides, one or more may be in bonâ fide, one or more in malâ fide.

These diversifications are mentioned, lest for want of comprehensive attention, error should creep in any where.

But the division here about to be made of litigation into three branches as above - bonâ fide litigation, litigation malâ fide on the defendants side, litigation malâ fide on the plaintiff's side will not (it will be seen) be the less correct, nor the inferences grounded on it, less applicable to practice, or with less advantage.

Text resumed

Where the defendant is in the wrong, the wrong may be either of the positive kind, or of the negative kind: of the positive kind where, for example, some positive act has been committed by him to the plaintiff's prejudice, such as destruction, or deterioration of an article of property, or undue imposition of expence, or interception of profit: of the negative kind, where it consists in the omitting to render to the plaintiff by a positive act some service that is due to him, such as the payment of a sum of money, conveyance, in a physical or legal sense, the delivery of some article of property, moveable or immoveable, to him or to his use.

A description of cases there likewise is in which no wrong being committed or so much as supposed to be committed by the defendant, the only service demanded by the plaintiff is a service supposed to be due to him, on the part of the Judge - but there being an individual at whose charge such service if rendered would be rendered, he is constituted Defendant, to the end that in the event of his supposing that the rendering of it would be prejudicial to his right, would be a wrong done to him, the opportunity may be afforded him, of defending himself against such wrong if shewing that of such service, if rendered by the Judge, wrong, viz. to him (the defendant), would be the result.