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.