date

1 June 1807 Letter V III. Proper
1 June 1807

Letter V

III. Proper Remedies

1. Solvent

What remains, is - to make application of this rule to the different positions in which in respect of interest, a malâ fide suitor - and in particular a malâ fide defendant - when arrived at the stage of appeal, is liable to find himself.

But, the interest by which at this stage a man's interest is governed, and in consequence his line of conduct may have commenced long before - may have existed antecedently to the suit, and given birth to the part he takes in it, the plan of operation on the part of the legislator must therefore commence at a stage equally early, so as to enable the legislator, by his instrument the Judge, to act upon a malâ fide defendant at the very commencement of the suit.

Calling the malâ fide litigant by the name of knave - (and this not for wit or malice, but as among mathematicians for abbreviation) let us for the present purpose divide the genus into two species - the solvent or frugal knave, and the insolvent, commonly the dissipating knave.

In the two characters corresponding to these two specific differences his interest is liable and apt to point different ways.

The invitation held out by Judge and C o accommodates itself to his interest in both characters.

Correspondant to these differences must be the course taken in dealing with him by the operations of the legislator.
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    The stage here in question - the only stage directly in question - is that of appeal: the only state in which on the present occasion the malâ fide defendant comes directly under consideration, is that of malâ fide appellant.
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    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.

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    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.

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    Applied to damage, the distinction between direct and consequential is not unknown to Technical Justice in our English dress, than it is to Natural Justice: consequential may be considered as corresponding so far as it extends, to extraordinary interest, as above described.

    Such being the position of the solvent knave, the line of necessary policy to be pursued by Judge and C o for converting him in the station of defendant into a malâ fide litigant, and at the stage of appeal into a malâ fide appellant was plain and obvious. So long as he can contrive to stave off judgment and execution on the appeal, suffer him to extract from the delay whatsoever profit his situation enables him to make, non-commercial or commercial, ordinary or extraordinary - and that without reimbursement - if according to his calculation the profit thus extractable from the delay be superior to the expence necessary to the purchase of it - superior to his share of the expence of litigation, his enlistment in the service of Judge and C o in the character of malâ fide appellant is a matter of course.

    Thus obvious being the policy of Judge and C o, the counter-policy of the legislator is little less so. 1. Take away from him all such profit by delay: and, in the particular case of malâ fide appeal, to effect this object by the surest as well as most simple means, when a man appeals from a judgment, suffer not the appeal to be productive of any such effect as that of stopping execution on the judgment appealed from: except in the particular sort of case that will be mentioned presently, cause execution to take place, as if no appeal had been made.