June 1807

+ 8

Letter V

II. Litigation prevet. & promot.

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III. Arrangements for preventing litigation, by preventing wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

1. By every particle of money the disbursement of which is exacted of a defendant in the first instance, wrong is due to him in case of his not being bound in law and justice to render up the subject matter in demand, and loss of time is in itself, in particular in the case of all those whose subsistence or income is in any part of it derived from the employment given to that time, equivalent to disbursement of money, taking effectual care that no such obligation to any amount shall be imposed on any person in quality of defendant, untill in some shape or other, real, corporal or extraneous be given by the plaintiff, according to his circumstances for the eventual reimbursement or other adequate satisfaction to be made for such disbursement or other loss.

and that by [...?] examination of the parties, or otherwise sufficient assurance shall be obtained by the Judge, that the defendant, having good means of defence, i.e. evidence competent to the proof of facts alledged by him in that view, shall never find himself compelled to render up any subject matter in dispute, by any such cause as that of the mere inability to defray the expence necessary to the production of such evidence.

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III. Devices for promoting litigation, by promoting wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

1. In the direct ratio of its own magnitude, and in the inverse ratio of a man's pecuniary sufficiency, a mass of forced expence with its attendant vexation operates at the same time upon his passive[?], and, upon his active faculties: upon his passive faculties, as an instrument of sufferance in all cases; upon his active faculties, as an instrument of restraint, causing or tending to cause him to abstain or desist from acting in the character of defendant, and thus to abandon to his adversary the plaintiff, the subject-matter of demand, whatever it may be.

The faculty or power of punishing his adversary, in the character of Defendant with a pecuniary punishment to the amount of the pecuniary expence thus capable of being imposed, with the vexation attached to it in other shapes, as also in case of any relative pecuniary unsufficiency on his part forcing him to abandon (viz. to his adversary) any object in the defendant's possession which to him the plaintiff may happen to be an object of desire, is the commodity which Judge and C o have to sell, and are constantly offering to sale to every man whom they find, or when by this temptation they can succeed in rendering dishonest: viz. such sort and to such a degree as to accept of it.