date

20 June 1807 (5) Letter V
20 June 1807

(5)

Letter V

II. Litigation

II. Defend t. malâ fide

3. Lest, under the head of litigation in this its 2 d shape, comes the insolvent malâ fide defendant: combating for the faculty of embezzling or dissipating the subject matter in dispute.

The insolvent malâ fide defendant is he, who in respect either of local situation or mode of living, or both finds himself either unable or unwilling to keep his ground: if the subject matter in dispute be a debt, unable or unwilling to pay that debt, and so far as concerns unwillingness thence probably every other which it happens to him to owe.

Shall he embezzle the money or dissipate it? retain it for his own use or part with it? In the first case, go off with it, send it off, or secrete it? keep it or send it out of the reach of the hand, or out of the reach of the eye of justice? In the other case, give it away or spend it? In each individual instance the choice will depend partly upon the pecuniary circumstances of the individual, partly upon his connections in the way of interest and sympathy, partly upon his taste and turn of mind.

Whichever of these courses he pursues, to the party injured it makes no difference: unless it be in respect of the chance of recovery that, in contradiction to dissipation, embezzlement may afford, or among the modes of dissipation, donation in contradistinction to expenditure.
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  • Title: [[...?] June 1807 (22) (6) Letter]
    Description: [...?] June 1807

    (22) (6)

    Letter V

    Litigation - Prevent Promot.

    II. Def malâ fide

    [written in columns. column 1]

    II. Arrangements for preventing litigation, by preventing wrongs considered as sources of malâ fide litigation, the malâ fides being on the defendant's side.

    1.2.3.4.5.6.7. Obviating uncertainty, as above, Pt.[?] I[?]: and thereby giving to each individual considered as exposed to the temptation of doing wrong, the fullest assurance, that in case of transgression on his part, the ultimate and preponderant suffering will fall - not on the head of the party wronged, but upon his own.

    8. In case of insolvency on the part of the intended wrongdoer, having in contemplation the commencing malâ fide defendant, making points[?] and in other respects effectual provision, for preventing him from embezzling or dissipating the subject matter in dispute. For particulars respecting such provision, see further on.

    9. In particular, so ordering matters, that, whether the wrongdoer be insolvent or solvent, he shall never in any case, so in such suit[?], take advantage of his own wrong, as to withdraw from execution - either the subject matter in demand or any part of it, in species or in value, or any part of that property which by the judgment, in the character of the matter of satisfaction, is or ought to be, disposed of in reparation of the wrong, preserving thereby, as constantly as possible the public eye, from that spectacle, which to every honest eye is among the most afflictive that can be prescribed to it - the triumph of Jurisprudence over Justice.

    [column2]

    II. Devices for promoting litigation by promoting wrongs antecedent to and productive of litigation to be committed by a wrongdoer, who upon the injured party's seeking redress in the station of plaintiff, will thereupon become a defendant; viz. a malâ fide defendant.}

    1.2.3.4.5.6.7. Fostering uncertainty and uncognoscibility on the part of the law, as above: and thereby rendering it as uncertain as possible to the proposed malâ fide defendant, whether undeer the law the party injured possesses in point of actual law, the right in question, and if he does, whether he has any and what remedy.

    8. In case of insolvency on the part of the proposed malâ fide defendant, securing to him the faculty of embezzling or dissipating destroying or deteriorating, the subject matter in dispute.

    9: Providing a variety of shapes the more the better, in which the property of the defendant, including the subject matter in dispute if pecuniary, or equivalent to pecuniary, may in case of judgment given against him, be secured against execution: (a) viz. either to his own use, or to the use of his offspring and others connected with him by the ties of sympathy.

    (a) Note about Grant[?] &c.
  • Title: [19 June 1807 18 (1) Letter]
    Description: 19 June 1807

    18 (1)

    Letter V

    II. Litigation

    II. Def t malâ fide

    In the case of the malâ fide litigant, i.e. the dishonest individual considered as exposed to the temptation of becoming malâ fide litigant, to which side soever of the cause his lot has destined him, one rule will serve as above for the description to express the policy of Judge and C o for the encouragment of him, make it his interest to become so: one rule consequently to express the correspondent counterpolicy - make it his interest not to become so - or even negatively thus - to order matter that it shall not be his interest to become so.

    But in each situation a man's interest, meaning on this occasion, his own conception of his interest admitts of considerable diversification having its source partly in the nature of the advantage or gratification he has in view, partly in the nature of the means or opening to which he has in view as leading to the acquisition of it.

    I. To begin with the malâ fide litigant whose station is on the defendant's side.

    Here to bring to view the two systems of policy of Judge and C o and counterpolicy of the legislator we shall have occasion to distinguish the malâ fide defendant into five species -

    1. Solvent malâ fide defendant, combating for ultimate success trusting to the medium of indigence on the other side.

    2. Solvent malâ fide defendant combating for ultimate success through the medium of deposition of evidence on the other side.

    3. Solvent malâ fide Defendant combating for mesne profits.

    4. Insolvent malâ fide Defendant, combating for the faculty of embezzlement or dissipation.

    5. Solvent or insolvent malâ fide Defendant, combating for gratification of enmity.
  • Title: [15 Dec r 1807 Scotch Reform 2]
    Description: 15 Dec r 1807

    Scotch Reform 2

    2

    Letter V

    Ch.4.

    §.5.

    Of the genus Stellio[?] in the species hitherto discovered are -

    1. Stellio praegravis

    (d): Solvent malâ fide Defendant, having possession of the subject matter in dispute, and combating for ultimate success, through indigence and consequent inability on the other side.

    2. Stellio tenax

    (e): Solvent malâ fide Defendant, combating for intermediate profit, by intermediate use or possession of the matter in dispute.

    3. Stellio dissipatorius sivi laceratorius

    (f): Insolvent malâ fide Defendant, combating for the intermediate faculty of embezzlement or dissipation.

    4. Stellio fortinicola[?] (g): Solvent or Insolvent malâ fide Defendant, combating for ultimate success and intermediate profit, through intervening casualties; such as deposition of evidence, death of one or other party &c. +See Table. Mischiefs of Delay:

    5. Stellio iratus

    (h): Solvent or Insolvent malâ fide Defendant, combating for the gratification of the irascible appetite, by the intermediate destruction or deterioration of the matter in his possession or power, to the prejudice of the right owner.

    6. Stellio cuniculus / vulpes sive (i): Solvent malâ fide Defendant, taking the benefit of the Insolvency-licence, granted to him who, from a shape in which the Judge does not refuse, chooses to convert the matter in dispute the shape of landed or other property, in which the Judge does refuse to lay hands on it, for the purposes of justice.