17 June 1807

(2)

Letter V

II. Litigation

III. Plff. malâ fide

I. Def t malâ fide

Whatsoever in the individual instance in question happens to be meant by the word possession (for, familiar as is the term nothing can be more vague and diversified and frequently obscure than the idea it represents) various are the causes in which it may happen to it to have taken rise. It may have devolved[?] upon the wrongdoer, previous to the plan formed for the ultimate appropriation: as in the case where the possession falls to him is put into his hands in the character of representative (Executor or Administrator called by the law or by the individual) to an individual deceased or Trustee of any other among the numerous classes and descriptions of Trustee. It may have been acquired by him by a strategem: it may have been put into his hands, in the hands of one to whom he is become representative in the character of mortgagee[?] or holder in pledge, by the injured plaintiff or one whose representative he is. Immoveable it may have been put into his by a tenant of the right owner: moveable, by any person into whose hands it had come, no matter in what way, on the footing of a deposit.

Though his plan of operations is in its main features the same as that of the malâ fide plaintiff proceeding in the way and for the purpose of extortion, his situation is in divers very important respects much more advantagious. If it be an article of marketable value, his means for repelling and smothering the adversary (the injured plaintiff) are on average greater than those of the malâ fide plaintiff by the whole amount of the marketable value of the subject matter of his possession, the subject matter or object of the dispute: and this over and above the advantage which, in a case that admitts of doubt the circumstance of possession affords in respect of the prescription it affords of the rights being on the possessor's side.