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About The Augusta chronicle and gazette of the state. (Augusta [Ga.]) 1789-1806 | View Entire Issue (Aug. 7, 1790)
SATURDAY, Aitguft 7,, 1790.] 1 \ THE AUGUSTA CHRONICLE AND GAZETTE of the STATE FREEDOM of the PR ES S, and TRIAL bf JURY, rtull remain inviolate. CoHjietmio* of Georgia. AUGUSTA: Printed JOH N E. SMITH, Printer to the State; tjfays v A tide* est Intelligence) Advertisements , &c. will be gratefully’ received* ana every kind of Printing performed: Law Report. ■ "■ c<3fcco)ccO> WRIG HTv.N UT T, and another. In Chancery—January 23, 1756. [Continued from our laft*] MANSFIELD and Scott contra. What ever may be the hardship of this* case, whatever may be the policy of permitting actions 6f this kind to be maintained, no ground ha# been (hewn for a court of equity to interfere. If there be any ground to pre vent this'artion from proceeding, it is of a legal, rather than 1 an equitable nature. If the effect of the ad of confifcation in Georgia be, as it is contended, to exempt persons whefe fortunes were confifcated from being lued in England, it is a'fubjert for the cognizance*of a court of law But in truth it is neither a defence at law or in equity. There is no analogy between this case and that of a certi ficated bankrupt, in which the law expressly declares that the bankrupt lhall be free ; the anere depriving h,m of all his property would npt of itfelf prevent him from being sued. The Hates of America have indeed confifcated property, but they have nor fatd that those perfonsto whom the property belonged (hould not be sued, nor is there any reason to fup pole that such was thtir meaning. It has been said that it would be haid to fus a person whole whole property is taken from him ; but the taking the property does not import an exemption from being sued: An attainted peifon, though all his property is confifcated, ie capable of being sued. Suppofmg the art of confifcation had expressly said that it (hould operate as a difcbarge of Englilh creditors, yet if Sir James Wright had gone to France, and been sued by a French creditor, there is no principle in the law of nations to prevent such creditor from recovering. Unless it can fee (hewn that the contrart was undone in America, it may be enforced in England. When the justice of this country required the A property of thtSouth Sea dirertors to be taken ‘ from them, it alio required that from that property their debts (hould be paid : a credi tor sued one of them, who applied to this court to interpose, on the ground that his pro perty was taken from hirer, and therefore he was difeharged ; but the court held that this was no difeharge, and refufed an injunrtion. Houldith v. Miff, IP. Wms. 695. The ar gument drawn from reciprocal benefit of exe cuting contrarts in one country which are made in another, is not applicable to the pre* sent case, which is not that of a general pro hibition of the fubjeds of Great-Britain tofue in America, but only of certain attainted per sons, and does not prevent the operation of the general principle, that personal contrarts may be sued in any country. The plaintiff ought to have (hewn, according to hi* own argument, that Srv J. Wright was in fart de prived of all his property, which hss not been done. Where there are many sureties for a debt, if one of them ilstnild lose all hie pro pel ty, it could be no reafuj to induce this court to prevent the creditor from having his choice, to which of them he would resort for payment t the futety who had been de prived of hiepropeity would Hill rema n It tbit. As to tin argument that tb*s debt GEOR GI A. might have been fatisfied in Georgia, it is not to be conceived, that for the fake of ra tifying private pique or malignity, Pinkney (hould purposely omit to receive payment of a large debt. Neither is it probable that the representative of Sir James Wright in this country is ignorant, or ar lead that he has not* had of knowing whether this debt has been really paid in America or not. There is no ground therefore inequity, to delay the creditor any longer, in refpert of Pinkney's answer, after the delays already putd|n prac tice in the courfc of the artion at law. What ever might be tbe case with Pinkney* Nutt fucs here in his own right, and in the usual way of compelling payment of a debt due to him. But if are injunrtion (hould be thought proper to be granted till Pinkney'* answer (heuld come in, it must be, in reason, on condition of bringing the money into court Lord Chancellor —l am glad this application happens to be made when I have his Honor's afflftance, because there are circumftauces iu the case somewhat particular, though I do not take the general principle upon which it mud be' decided, to be altogether new. Great part of the arguinen has (peut itfelf iu this question, whether the laws ot tbe country to which tbe creditor belongs, have or have not dilabied him from suing in this country ? I think the firft answer which was given to that was the (horteft and the bed, that is to fay, if he be diiabied from suing, this is not the court to fay so; but that it ought to have beea argued before the court in which the artion de pended, and there it would have been de cided. I likcwife lay out of the case all ob servations that relate to hardlhrp, either upon ! one fide or the other. It may be a question for private*fpecuiation, whether luch a law made in Georgia was a wife or an improvi dent one, whether a barbarous or a civilized inditution. But here we mud take it 2* the law of an independent country, and the la s of every country mud be equally legarded in tbe courts of juitice here whether they are wife or foolilh. Nor does it at all apply in my judgment, whether Sir James Wright was or was not-capable of paying* lor the case would have flood before me precisely in the fame situation if he had been worth 00, 0001. and had been sued in the way in which he is now sued; as a man I might feel diffe rently about it, and companion might inter pose ; but as a judge it would be impoflible for me to determine 011 that ground. Nor can I take into coufideration how very much 1 it bears with it an approach to| fraud. The circumstance of converting the chanty of this country to individuals ruined in its service, to the purpose of paying the creditor* of thole individuals in the other country, is a coulide ration which (h mid have belonged to those who thought proper to offer them that charity, ar.d the terms upon which it was ass .rued, (hould have been regulated accordhfiy. It is nothing to me, in ftiort, what *be fi liation ' of the parties is, but I mull confides the plain tiff ss competent to bring this artuso at law, and the defendant as coning here to (late, if he esn, fume equitable ground upon winch such artion ought not to be permitted 10 pro ceed. The equitable ground which he hat ftited differs frem ail others that I know <f, , that have yet come before the cum, unless there be mote fimifitude between (hi*, and the c-fe of iiould.tib v» Will* than the * t , • '[VoI.IV.Nb. CC.I slate of the latter case afford#: The c!fcurn-~- fiances upon which this cafe*comes bes 're tbo court, art these: that Sir James Wiight, a baniffied ' man, disabled to aft (or to ftie in' America, had all his property taken away* from him ; and the terms upon which it wis taken away were, that it Ihould be applicable in the hrfl place to the payment of his debts ' contrasted in that country ; -no doubt ha* been ! made on either fide, that the debt fuetl f«u t law hire, was of this dcfcnption, and cap bla of being made the fubjeft of a claim upon ms ellaie in that country : under that rircum (lance, indead of a claim being made there,* (as is fuggetted by the bill) an aft ton ia r brought here. There is no doubt m the ‘ world,* but that according to the getter :|- principles of a court of cqu ty, where a m n who has not aftual poifeffion of h<s debt, i f r if he had aftual poileffion Ifh -old conceiv . that it would be paymeut even available hi a > court of law, but if not fra at law, it wftnld it lead in a court of equity he coniPlered* aftual paymeut, and that a man was vest'd ‘ twice for the Tune demand upon fotue fo> nil difficulty of miking the la ft of payinebravj u able at law) but has the power of piyiocebe debt depending upon his own aft, whether he '• will resort to a particular fund 01 nor, it in* • Head of making use ot that power he pursue the debtor, it would be too nauHi for a court of equity to permit him to sue be person, and relinquish the exernfe of t t power, which he has at the ttme rn his own • hands. This case is attended with a cirrmn* - fiance Hill more peculiar, which is, tfiat rr is • totally impofftble for him to-assign over that right to'the party debtor htre, in order foe' him to make it available; it is dgarrH.it nei ther the hazard, the difficulty, nor til* "ex-* pence of making the demand, eight* to ot' thrown upon the cieditor:'in point of natural 4 justice they ought to be upon the debtor, j ro vided the creditor can put the debtor in ac tuation to make it effeftual<fur him, as it would be for the creditor himfelf. But here the cieditor cannot clothe the debtor w ; tb »he fame remedy, as he himfelf is in poiCedion of; and therefor* the question ic, Whether, while* he holds that remedy in his hinds, the court does not proceed from principles of nature! justice, (applied by fair analogy to other cases, or if iuch other cases hifd uot ekrf!ed,~ applied by the reason of the thinv, arid the force of thole principles of natural j fffice to this case) when it' favs to a creditor, who makes such a demand in a co-.rt as Yota'- “ (hall r.ot proceed upuirtbat ddmind tvH »m ■ “ have fatisfied me, that yot* hare taken <li* the pains you can to make t hat o her p-edfce “ you have thus in your hand*, (I call ir x' “ pledge by me-aphore, fhrl do nor mean r* “ Hate it effectual y is .1 c* etf'ft’.f’l “ and available to yeurfclf, as you poffib f <* can. w Under ctrctunHarices »<> ftaied, th<* court would proceed according to the oleireft notions of dirtributiw? inAicev aid the fairoft' i principles of natuulgcqnUf, if it ful 10 \ cre'iiitur so circumdanced, yon ihwll proceed to make that avail ibte, and you (It >U donnr- Arate to me, that you have {-weeded to mv*f * it available, LoucfiU % and that yeti hive « ther for the fra idultnt purp<*f« of o turn**," dou de fitiMaftiun, nor the mthg'unt prrp-oe vs plaguing jour debtor, iu*4a your iUm* ui* this ceuutry, (i t It
