Jeremy Bentham

The Collected Works of Jeremy Bentham: The Correspondence of Jeremy Bentham, Vol. 2: 1777–80

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pg 33Editor’s Note208To Samuel Bentham17 March 1777 (Aet 29)

Now I will tell you what I have been able to collect from W. concerning his affairs.2

The Tenements he was to buy with Mrs. Ackworth's money and which by the Instrument you shew'd me he was to give her a mortgage upon consist of two distinct Lots—1st The House. 2dly. a 4th. share in a piece of Land.

This 4th. share brings in £9 a year the whole letting for £36 but he says, it is worth more than that, and as neither he nor the people whose interest he bought joined in the Lease, he has in his power at any time to disallow it.

He said the whole together had some time ago been valued by his people at £1300 consequently this 4th. share would at that rate be worth £325. Some person (I think it was the owners of the ¾)—lately offer'd to buy his share at an appraisement—an appraiser to be appointed on each side. This he says he verbally agreed to: and on this he founds his hopes of paying off Mrs. Ackworth a part of the money (as Mrs. W. talked of.)

But now you shall hear how the writings are disposed of.

One Gilbert who is a Grocer at Lewes has the Title Deeds of the House as likewise the conveyance made to W. by the last Proprietor—
To him W. owes

£

s

d

250

-

-

One Martin who lives at Winchelsea and follows no business has the Title Deeds of the Land
To him W. owes

£

120

-

-

The man at Chatham I did not ask his name but you know it has the conveyance that was made to W. of the Mortgage which was subsisting upon the Land at the time he bought it, which Mortgage I suppose was then paid off, as W. got this conveyance of it. To this man there is owing

150

_______________________________

Total

520

pg 34This last sum (£150) W. told me a confused story about which I could make neither head nor tail of. But as I saw what was at the bottom of it viz: that he had received money from one man to pay over to another which he had not done, I could not bear to press him in such a manner as would have been necessary to get an explicit account of it. However he said with an air of ease and confidence as if the money were to come from and the delay had proceeded from another quarter, that notice had been given, and the money would be paid in April.

I dare say /I should rather say I fear/ not a farthing of interest has been paid upon any of these sums. I did not ask him: but I am apt to think if there had he would have mentioned. I think upon an average they must have been outstanding at least a year—this will probably make the 520 amount to 550.

At the same time W. gave me repeated assurances that there was no mortgage at all but Mrs. Ackworth's upon any part of the premises. If so the several parties concerned are compellable to deliver up the writings. So that /if this be true/ the deceit, if any, will fall upon them not upon Mrs. A.

There is another bad circumstance in the case. The Judgments upon which those executions were taken out which you mentioned might in case the goods should not prove sufficient be brought to affect the Lands so as to have the preference over a Mortgage executed since. They affect them in this way. A man who has a judgment in his favour for so much money may proceed in either of these manners: 1st he may have a writ called Fieri facias to take the debtors goods alone and have them sold: in that case if there is not enough to satisfy he may have another writ called a capias ad satisfaciendum to take the body. Or else 2dly. waiving both these remedies he may have a writ called an Elegit which entitles him to have the goods themselves deliver'd to him at an appraisement and if they do not amount to enough, then in virtue of the same writ to take half the Lands etc. and keep them till the profits have discharged the debt. This would leave the mortgage to take place only with respect to half. And another Elegit upon another Judgment would take in like manner half of that half.

This made it necessary for me to ask W. about the Judgments you mentioned: I did not tell him from whence I heard of them. He told me they were both settled. That in that in which Tilden was concerned there were mutual debts between him and the other party; that they came to an account and it was found that there was a ballance of £5 in favour of W. himself: and so that matter pg 35was made an end of. That with regard to the other debtor he was satisfied by W's getting another person to be bound for him—So that debt upon his own shewing is still subsisting.

For the effect of a Judgment to be entirely taken off, it is necessary that 'satisfaction be enter'd on the record.' He owned it was not, nor was it usual in their practise. This I believe: nor do I think there are many Country-Attornies who in his situation would on his account have made a point: nor probably are there many who if acting on behalf of Mrs. A. would have thought of exacting it. The performance of it you are to understand depends in the first instance upon the Atty. on the other side. However he said he did not make a doubt of his being able to get the proper authority from the persons concerned: which done he would come to town himself to make the entry. I told him I had a curiosity to see that point of practise and if he would let me know should be glad to go with him. He said he would. I had a reason for this. I find that notwithstanding Mrs. W. has been in town twice no Fine has been levied. However the Mortgage will be good I believe although the Fine be not levied till afterwards.3

You will ask me what is this last sum which upon his own shewing is still outstanding against him. My answer is I do not know. Upon the supposition that the parties in question were ready (as he assured me they were) to vacate the Judgment it wou'd not be material: and I had so catechized him already, that I could not bear to put a question to him which would seem I thought to betray my mistrust of him. The whole together was a part so disagreable and so new to me to act in that I stammer'd and looked foolish, I dare say, as if I had been the catechized instead of the catechizer.

I have got the Mortgage Deed such as it is. Now I will tell you in what respects it is defective.

1st. It does not comprize the Land: only the House. This shews he had a view of selling the Land without being obliged at all events to pay Mrs. A. with the money. I told him this was not a performance of the Agreement. He acknowledged it. But said he thought it not necessary to include the Land as it was to be sold so soon. I told him that if Mrs. A. chose to accept of so much of her money of which there could be no doubt, it would not be the less in his power to sell the Land by her having the Mortgage on it: that it remained at present a matter of uncertainty whether a purchaser pg 36would be found or no: and in the mean time it was highly proper that Mrs. A. should be secured at all events in pursuance of the agreement. All this he could not but acknowledge; and he promised it should be done accordingly.

2ly. the Deed was false dated. It was dated as if executed the same day with the Agreement. I observed to him this would not do: because if it should ever come into question in a Court of Justice, the execution of the deed must be proved; and then the true date would come out, unless the witnesses perjured themselves. I made it appear to him, that to speak the truth was not only the honestest way but the safest.

3dly. The Mortgage instead of being made to Mrs. A. and her Heirs and Assigns for ever, was made only to her her Exo͠rs and Assigns for 1000 years. You may would naturally imagine this would make no difference. But the truth is it may make a great deal. This mode of conveyance would not be so beneficial to Mrs. A. as the other. You must take my word for it for the reasons are too abstruse and technical for me to pretend to give you here. I asked him how he came to choose this method of conveyance. He told me to save expence: the truth is it does save a few shillings in the expence. He acknowledged that the other mode was the proper one if I thought it necessary.

4. He left blanks for the date only saying in general that it was the date of the agreement. He thought those blanks might be filled up at any time. I told him not without a fresh execution: for if it could be proved that such insertion tended to the prejudice of any body (which might be the case with respect to the judgment creditors) a man would run a risk of its being deemed a forgery.

All this makes it necessary to have a fresh deed; or rather set of Deeds. And it is for this purpose that you must get a copy taken of the agreement Mrs. A. has: in order that the substance of it may be executed. I did not let him know that I had seen it: I forgot to desire that Mrs. D. might copy it. This were best because it is with her that I am supposed to correspond on this occasion. Besides it is her business and she has less writing in her hands than you have.

He says, and I do believe he is right that the Mortgage will have relation back to the time of the agreement. But then to give it that effect, in case of a dispute it would be necessary I fear to go into a Court of Equity: which I have told you before now is much more expensive than a Court of Law. I mean upon supposition that the writing so often mentioned can operate only as an Agreement to pg 37execute a Mortgage; not as a Mortgage of itself. But I am very strongly inclined to think that as against any posterior incumbrances it would be good in the latter capacity. And in this case the Judgments if posterior as I think they must be to that time, could not hurt us: But the best way is to make sure.

I am sick to death of this business as you may well believe. It forces me partly to rummage up or partly to learn de novo such a quantity of that villainous grim gribber, which I hoped by leaving off business I had gotten rid of. It is a great load upon my weak shoulders, added to what I have got already. Yes indeed am I heartily sick of it. But when I think of 9 children and two women whom together with one at least of their husbands we both love and with whom you are so inextricably connected, I am still more sick at the thoughts of giving it up. Allons done, I see I must draw at last the deeds for W. to execute: and then shall I have to whip, spur, cut, slash to make him execute them and do the other etcs.

W.'s brother he said had promised him to let him have the £250 he wanted to pay off Gilbert with: this was to have been done the last time he was in town: and the Brother was to have sent up a draught for the money. But instead of the Draught came a letter of excuse. He says his Brothers wife was the cause of the disappointment: but he is not without hopes, by means of a friend that lives near his brother, of prevailing still. He thinks he says his Brother would advance him enough to extricate him out of all his difficulties if it were not for this wife.

He told me a good deal about his father, who according to his account is more faithless and forgetful of his promises a great deal than our's. Only he lays up money instead of running out as Q.S.P. does or at least is in a way of doing.

When the Mortgage business is finished, then will be the time to see what I can do with him about giving Mrs. A. a security upon his effects. If I were at Battle I could then take care for her of those effects that are hers already: I mean so as to prevent their being seized along with the rest in case of an execution. Mrs. W. I believe will not write this time to Mrs. D.—not till she goes home. She ask'd me, poor woman, this morning just at parting whether I had got the writings to send to her mother or something to that effect and whether every thing was done that was necessary to give her satisfaction. W. was by. I told her, there remained some few little things yet to be done, which I made no doubt Mr. W. would despatch as soon as he could. He seemed rather uneasy at the question; to which you see I could not return a more favourable pg 38answer. She seemed not very well satisfied, and I suppose she would have questioned me more particularly, but he took care she should not have an opportunity of speaking to me alone a moment. I am apt to think that was partly the reason of his being so long before he called upon me. I should have told you that I called on them at their quarters this morning and staid with them from 10 till ½ after 11.

Mrs. W. put me into rather an awkward situation. Her husband comes to town promising either to be back or write by a certain day: does neither. She writes to him: he takes no notice of her letter. She writes to me in an agony letter upon letter, begging me to make hue and cry after him.

Monday March 17th. 1777. Linc. Inn.

I had written thus far when I was interrupted. It is no matter. You can supply the rest. Your letter is come to hand. I can ⟨write⟩ no more at present.

There is a very short life of D. Hume come out, written by himself. I have just been reading it: it will do service to the cause.4

I have just been reading an authentic account of the trial of John the Painter with his confession which charges Silas Dean pointedly with the procurement: but nobody else. Only a Dr. Bancroft with a knowledge of the intention.5

Adieu my dear Sam, Love to Mrs. D. I shall write again probably e'er long.

The old Gentleman was with me this morning. He was asking after you and wondering he had not heard from you. He complains much of his Lungs; says they are sore: thinks it is the Gout is got there: says he is afraid he is going to be in the same way he was in last October: and that he is going to have an Asthma. He says he would go to Bath as he has been advised, were it not that his affairs are so involved at present.

I shall probably write about the Battle scheme in my next.

Notes Settings

Notes

Editor’s Note
208. 1 B.M. II: 104, 105, 108, 109. Autograph. Docketed: 'I.B. March 17th 1777. R.W.'s affairs.'
Addressed: 'To / Mr. Bentham / at his Majesty's Dock Yard / near Rochester / Two Sheets.' Postmark: '17 MR'.
Editor’s Note
2 A jotting here reads '120 MART WINCH' and presumably refers to the £120 mentioned below as being owed by Wise to one Martin of Winchelsea.
Editor’s Note
3 A fine was a fictitious judicial proceeding (abolished in 1833 by the Fines and Recoveries Act) commonly used in conveying land.
Editor’s Note
4 The Life of David Hume, Esq., written by himself had been published by Cadell on 11 March.
Editor’s Note
5 Cf. letter 205 and nn. 3 and 5. Edward Bancroft (1744–1821), born in Massachusetts, was a 'double agent' who won the confidence of Benjamin Franklin and Silas Deane while in receipt of British pay as a spy.
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