date

21 June 1807 (3) Letter V
21 June 1807

(3)

Letter V

II. Litigation

III. Def t. malâ fide

2. Even when already, before suit commenced, the Defendant has lodged his property in one of these asylums provided for the security of property against justice of safe and opulent swindlers, it will seldom be in the power of the plaintiff to succeed, nor will he frequently have any adequate inducement for so much as engaging in any such intricate and complicated research as that of the different proportions in which the defendant's property is invested in the different shapes of which it is susceptible, and the probability of his having at the same time the power and the determined will to take advantage of the protection afforded by swindling-licence thus annext to these several shapes.
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  • Title: [21 June 1807 (2) Letter V]
    Description: 21 June 1807

    (2)

    Letter V

    II. Litigation

    III. Def t.

    malâ fide

    To the three of the principal shapes which property can assume Estates called freehold estates in land, houses and other immoveables. Estates called copyhold estates, having also land houses and other immoveables for their subject matter - to these and to the recently created and unhappily increasing species of property called government annuities, not to mention others of inferior account, Judge and C o have succeeded in imparting this useful property.

    True it is that an investment or use transformation of this kind may have been effected, and no litigation, thence no lawyers-profit, be the consequence. But in this uncertainty there is nothing by which the contrivance in question is distinguished from the other devices having the promotion of litigation for their end in view: none but what produce chance of a few, if any, that can be said to produce a certainty of it.

    If before any litigation commenced, it be matter of notoriety to the plaintiff that the whole of the defendant's property has already been made to assume one or more of those shapes in which it is secured against justice, and if at the same time, from the badness of the defendant's character, it be clear to the plaintiff that the Defendant will in the event of a judgment in his favour be dishonest enought to profit by the invitation thus held out to him by the well paid guardian of the public morals, in such case the plaintiff, if well advised, will submitt to the denial of justice and not make affliction more afflicting by the expence and vexation of hopeless litigation.

    But there are two cases in each of which litigation may take place and the chance which Judge and C o have thus given themselves converted into certainty.

    1. Before litigation the swindler's property is not in any one of these shapes: but pending litigation he takes the opportunity of putting it into one or more of them. Here then comes the advantage of delay, factitious delay: the greater the quantity he can succeed in purchasing it of those who have it to sell, the more time he has for looking out for the most favourable opportunities, and going through the operations necessary in each case.
  • Title: [PRIVATE June 1807 (1)]
    Description: PRIVATE

    June 1807

    (1)

    Letter V

    II. Litigation

    II[?]. Def t. malâ fide

    The exertions of the Judge and C o technical system has succeeded in breeding a sort of mongrel or amphibious monster, a malâ fide Defendant, whom one knows not well under which of the two species to rank, the solvent or the insolvent. Solvent he is or may be to any amount, but by giving him a sort of licence for cheating, they have contrived to enable him to unite in his person the advantages of insolvency with those of Solvency.

    To him, the plaintiff, who has obtained a decision in his favour, the decision is of no use, any further than execution acording to the decision is the consequence. Execution can not be had any further than such persons and things as it regards are forthcoming, in readiness to be put, and when the time comes actually put into that state by the putting of them into which the execution of the judgment is performed.

    Suppose now among the variety of shapes of which property is susceptible, one is more pitched upon for the purpose, and a regulation established according to which, to whatsoever amount a Defendant may have been adjudged to make payment, on condition of giving to his property or whatsoever part of it he pleases into that shape, it shall stand exempted from execution, insomuch that the judgment shall, having no power over it, be defeated and set at nought. Among these shapes the more considerable in extent and number such of those to which this convenient property could be bestowed, the greater it is evident the premium afforded to dishonest men for engaging them to enter the lists of litigation, viz. on the Defendant's side.
  • Title: [22 June 1807 Scotch Reform]
    Description: 22 June 1807

    Scotch Reform

    Letter V

    II. Litigation

    II. Def t

    malâ fide

    This under Insolvent Def t or [...?] def t?

    Superseded?

    Subjected in time to examination vivâ voce by and in the presence of the Judge, whatever shapes a defendant's property happened to be in - whatever hands, whatever place it happened to be in, would be brought to light of course, and the property would be forthcoming to be disposed of in execution of the law.

    The corner-stone of the technical system - the grand principle, which, by excluding the parties from the presence of their Judge, serves in so many other ways for the exclusion of justice, is not on this occasion more sparing of its service. While the plaintiff, in the character of Sisyphus, is toiling with or without success to force the suit up the hill of litigation, the Defendant with that which ought to be the plaintiff's property in his hands has just so much time given him for stowing it, upon the most commodious terms, out of the reach of justice.