PRIVATE

22[?] June 1807

+ A

Scotch Reform

1 o

Letter V

II. Litigation

II. Defend t. malâ fide

II. Litigation in its second shape - litigation with malâ fides on the defendant's side.

Two cases viz. that of the solvent malâ fide Defendant, combating for ultimate success, and trusting to indigence and its concomitant helplessness on the plaintiff's side, and that of the malâ fide Defendant, solvent or insolvent combating for gratification of enmity, being dismissed as above to the next head, there remain three species of malâ fide Defendants whose cases, with the policy and counterpolicy respectively applying to them, came to receive explanation.

1. First comes the malâ fide Defendant, combating for mesne profits, and employing factitious delay for the creation and prolongation of them.

In the natural order of things this species of litigant has no existence: he is altogether the offspring and nurseling of the policy of Judge and C o. His element is of their creation: it consists of a portion of the property of the party injured, the grant whereof is offered to him who will accept of it, on condition of his committing a species of civil wrong, at his choice and thereupon in case of complaint, taking upon himself the state and quality of defendant

As to the expression mesne profits, i.e. intermediate, in the language of English jurisprudence from which it is borrowed, its import extends little if any beyond the produce or rent of an article of immoveable property recoverable by ejectment.

But in its original import it is applicable with no less propriety to advantage in any shape considered as flowing out of a subject matter of any kind in the course of a length of time lying between any two given points.

The faculty of educating and maintaining an infant, though it were at a man's own expence, would in this comprehensive sense be a taking of mean profits, viz. from the possession of the infant, as well as the faculty of taking a crop of corn from Black-acre[?].