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SATURDAY, Aitguft 7,, 1790.] 1
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THE AUGUSTA CHRONICLE
AND
GAZETTE of the STATE
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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
