date

2 June 1807 Letter V III. Proper
2 June 1807

Letter V

III. Proper Remedies

II

In the case of the insolvent knave, if so it has happened, as in fact so it has happened, that Judge and C o have pursued that line of policy which in their position their interest and end in view prescribe, on the part of the legislator, the counter policy, which in the case of the solvent knave we have seen effectual, will not be so now. In the case of the solvent knave, suffering the judgment to receive a provisional execution as if no appeal had been presented was sufficient. But in the case of the insolvent knave supposing no sufficient preventive measures to have been taken at an antecedent period, before the time came for appeal, the property, if in his possession, will of course have been purloined or dissipated.

What then are these preventive measures? By knowing them, we shall know at once the policy naturally pursued, the policy actually pursued, by Judge and C o, the counter-policy proper to be pursued by the legislator. The policy of Judge and C o will consist in avoiding to take these preventive measures: the policy of the legislator will consist in forcing the Judge to take them.

So obvious are these remedies, that were it not for their having been put out of sight by the sham remedies that have been made to take their place, a man might be ashamed to mention them.

At the instance of the plaintiff, he affirming (under the same security against mendacity and temerarious falshood as is exacted in the case of an extraneous witness) not merely the subject, ground and supposed amount of his demand, but his persuasion that by reason of the apprehended insolvency, or meditated non-forthcomingness of the defendant this extraordinary remedy is necessary, take order for the arrestation of his person - to be conducted forthwith not to a Jail, or a Sponging-House, but for immediate examination into the presence of the Judge.
Similar Items
  • Title: [1 June 1807 Letter V II. Proper]
    Description: 1 June 1807

    Letter V

    II. Proper Remedies

    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.
  • Title: [1 June 1807 Letter V III. Proper]
    Description: 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.
  • Title: [/24[?] Dec r 1806/ 1 June 1807 Scotch]
    Description: /24[?] Dec r 1806/ 1 June 1807

    Scotch Reform To L d Grenville

    Letter V

    II. Proper Remedies

    1. By satisfaction beheld as flowing in the shape of gain into the purse of the party injured, and thence in the shape of loss, issuing out of the purse of the author of the injury - by satisfaction, as thus described, of the quantity of matter held out in that shape were to a certain degree ample, making up in quantity for whatsoever it might be seen to want in certainty and propinquity to be deficient on the score of uncertainty and remoteness, it might happen to the knave, if he were of the solvent species to be deterred. No injury, no demand on the score of satisfaction for injury: no demand, no litigation: no litigation, no fees.

    Hence one general line of policy on the part of Judge and C o in the spinning out of jurisprudential law, to keep down the quantity of satisfaction as for injury - to take care that in each instance it shall rather be deficient than, in the way above described, and with relation to their ends - the ends of judicature - excessive.

    On the side of deficiency, the danger to their purpose is less considerable. Without litigation, the injured party by the supposition will not get any thing, on the score of satisfaction or on any other score. Of him therefore Judge and C o are sure, so long as in his view whatsoever may be the truth of the case - less by expence of suit and vexation be not so heavy as to outweigh profit by satisfaction, vindictive as well as pecuniary included.