date

22 April 1807 + A2 Letter V
22 April 1807

+ A2

Letter V

III Inadequate compensation[?]

1. Costs

1. Inadequacy

Such then is the worst of the remedy, in the case when the Appellant, being a Defendant in possession, is in solvent circumstances: in cases of minor importance presenting a [...?] of being efficacious; in cases of major importance, certain of not being inefficacious: and the more certain, the greater the importance of the cause.

In the other case, viz. where, the defendant being insolvent, the appeal has for its end in view the gaining leave for embezzling or despoiling[?] the property, that same remedy is altogether devoid of efficacy. In every instance whatsoever, either the subject matter in dispute is lost in

toto to the right owner, or if in any part preserved, preserved - not by the remedy but by some other means: say, for example, security found for eventual satisfaction ( payment, restitution & according to the subject matter of the injury) security, good or bad, given by some other person or persons in the character of bail or bondsmen. But of this further on, under another head.

In the case of the solvent customer to the delay-shop, the interest alone perishes; at least in the first instance: (see delay - Tables, Table I for the contingent mischiefs.) In the case of the insolvent customer, that which is exposed[?] to perish in the first instance, is the principal itself.
Similar Items
  • Title: [[094-467v] 17 Apr. 1807 51]
    Description: [094-467v]

    17 Apr. 1807

    51[?]

    Letter V

    II. Proper Remedies

    V. Remedies

    Conscious of the disease created by the industry of their predecessors and kept up by their own - intimately acquainted with the disease, intimately acquainted with its cause - it is equally impossible to those physicians of the body politic to avoid being equally acquainted with the remedy.

    I should have said the remedies; for the disease, according to its symptoms /to the circumstances/, requires two different ones.

    In the case of the solvent - the thrifty and calculating pupil of the partnership - do away his profit: force him to refund, and with an adequate addition whatsoever he has made -  Then shall[?] faciendisa[?] on appeal: stop not execution. This applicable to solvent & insolvent birth[?].

    In the case insolvent - the prodigal pupil of the partnership - at the very outset of the suit, let it be the care /duty/ of the Judge, at the instance of the plaintiff to arrest /stop dissipation[?]/ him[?] in in its course. /In a civil case/ This is a civil case is the use - thus the only use - of provisional arrestation: the prisoner conducted in the first instance /for examination unto/ before the person of the Judge: consigned from thence to a place of provisional

    confinement if necessary for securing to the plaintiff the benefit of the sequestration; beyond the necessity not to [...?].

    By providence thus displayed the purpose of the injured creditor would be served /the ends of justice in a word/ but the purpose of the partnership /Judge and C o/ the ends of judicature marred: accordingly care is taken never to see /face/ or hear the insolvent never either to compel[?] so much as admitt into the presence of the Judge him who is thus on the breach[?], floating or already in the /running down/ in the current of insolvency - near either to see his person or know any thing of his circumstances:

    Instead of this[?] arrangement thus dictated /common honesty[?] the suggestion of/ by common sense, the technical system provides the security afforded by bailing - holding to bail. But the inadequacy of this security will be shewn under the head appropriated to that subject.
  • 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: [8 July 1807 (3) 14 Letter V]
    Description: 8 July 1807

    (3) 14

    Letter V

    III. Litigation prevented

    Insolvent

    Where the Bail are insolvent, either the eventual burthen to which they have exposed themselves falls upon them, or it does not. If it does, the proposed remedy fails in every respect of answering its proposed purpose. Relief to no one: upon four persons at least, plaintiff, defendant, and two Bail, an additional and useless burthen, in the shape of expence and vexation, is imposed: three of them at least being in a state inadequate to the endurance of the burthens to which it found them already subjected. The substance that, as far as it would go, ought to have been applied in satisfaction of the respective sets of creditors, is devoured by lawyers.

    If the Bail being insolvent, the burthen to which they had exposed themselves, does not fall upon them, it is a proof that in that instance the imposition of exposing them to it was unnecessary. What they are made to undertake for - in the first instance at least and in ordinary cases, is not the payment of the debt, but the surrendering of the body of the defendant to be subjected to imprisonment.

    The Defendant thus surrendered, is he solvent or insolvent? If solvent, it is a proof that the collateral burthen imposed in the Bail was an unnecessary one. Bail, even if solvent, would have been of no use: much more these insolvent ones.

    If the defendant be insolvent, here again the whole procedure is of no use: {a person is not a gold mine /does not restore a man to solvency/:} by imprisonment, insolvency is aggravated, it can not be alleviated.

    For what purpose is the imprisonment supposed to be needed? for torture or for punishment? To either purpose it might have been applied to more advantage in the first instance, and without the mischief of plaguing third persons in the character of collateral sureties.