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SATURDAY, Augujl 14, 1790.)
THE AUGUSTA CHRONICLE
«
AND
-GAZETTE of the STATE ,
FREEDOM of the PRESS, and TRIAL by JURY, (hall remain inviolate. C»Hjlituiisn §f Gtorgia .
■ - — 1 •*'- ... t, r
AUGUSTA: Printed by JOHN E. SMITH, Printer to the State; Essays, A>tides of
Intelligence, Advertisements, (Ac. will be gratefully received, and every kind #/ Printing performed
Law Report.
WRIGHT a;. NUT T, and another.
Id Chancery—" January zs, 1788*
[Concluded from our lafi .]
I WISH to be understood clearly upon this
point, that thi* i* the utmost extenti to
which my judgment goes upon the fubjert.
When this fubjert was introduced into the
House of Lord*, l bad occasion to give ray
opinion upon it there, but more particularly
in private, te those who brought in the bill,
with the clearest motive* in the world, with
a great deal of public spirit and public wis
dom: Although other motive* aiofe, which
rendered that project indifcrect, nd impoli
tic, and consequently it was carried into
execution as a lagiflative ad, yet then and at
all times it hasconftantly ft t uck me # th won
der, that principles such a? I have just stated,
should not have been regarded, from the mo
ment the queflion arose a* fit to be tried in
courts of jufticc, for the purpose of biingiug
these demand* to what I think is their proper
test. lam therefore clearly of opinion, that
provided a case i* made, by which it appears,
that there is in the hands.of a creditor either
ju.fteffion of the eftatc in fart, or the clear
means of effertmg that pofieflion, he ought
to be called on so to do, or at least the court
Ihould interpose. When I have stated that to
be my opinion, I confefs that thinking much
of the case of Houldi'ch M.ft, Ido nut
know exartly how to reconcile the decihon of
that cale with the principle* 1 have now laid
down. The only way I have to deal with it
i* to avoid it. From the book nothing more
appears but that a bill was filed by the debtor,
Hating that he had been one of the duertora
of the South Sea company r th« b 7 a *
parliament, hi* whole fortune bad becn coa
fjfcated, and therefore an absolute dnabtl ty
of paying hi* debt* had been incurred; that
it wa* contrary to reason, and natural
that he Itfould be called on to pay debts,
tinder the circumftance* of such an ait ot par
liament. No more is stated upon the fub
jert, yet it i* clear, that the debts of these
dirertors were capable ot being paid out of
the fund : It also appears, by a memorandum
which is added to the bottom of that case,
that by cemproroife, the debt was direct d to
be paid, out of that part cf the tund, which
by some regulation of the art, appears 10 have
been given to the private petious of the di
vertor. tbemfelve*. If there were a doubt
about that, or if my opinion turned upon a,
it should be a little more into i but
I collert, that beyond the payment ot the
debt*, and the confifeation, there was a per
foual allowance made to those who Inhered.
Stating the case in that manuer, thus much
feeros fairly to be inferred », jj ame, 7>
that it did not occur at that time to m in, that
the debt fliould not be paid, out ot the fund,
» which was the personal fund ofabe delinquent,
and which, according to my principl**» oug t
to have been the last fund appropriated to the
payment of the debt*. I wonder rtmch at
that, and it bring* the c*f« lcf» to apply» be
ciufe under such mart parted in thi* country,
an art of pirtiel coufifcation, qualified in the
manner in which it w»i, Houiduch hid ii
GEORGIA
*: 4 V
good a right to infirt upon being relieved of
that debt, out of the fund, as any other man ;
he did not lose all his rights as a citizen; all
he loft, was the fund that was confil'cated.
There muff, .therefore, have been a great
deal more in that cause, than appears upon
the report; for it seems impossible to ima
gine, that the debt was not to be forthcoming
in some manner, or other, out of the fund,
and if there were allowances made, to fay
that the jufticc of the case was fatisfied, by
making those allowances liable to those debts.
Huulditch was not in the mil'crablc situation
in whieh these people are, deprived of all
their rights. 1 do cot therefore know, how
to apply that case to the present; but I letaio
the opinion! g« v c before, namely, that a cre
ditor will be bound by an application to thia
court, to use fair bona fide diiigeuce, in order
to make the most of hi* debtor’s eftatc, in the
place wheie the law of the couutty has ap
plied that eflate to the yayment oLhis uebt*.
I do not think that this law ot Georgia meant
any mercy to the debtors; the proviuon was
that of pure policy. But whatever the object
and intent of the law might be, tarn ucatiy of
opinion, that natural jufticc requires, we tliuuld
fee the utmott made, that can be made of
that matter. Now what doe* this case amount
to l This is a debt, as it comes bcioie us,
sued by the adininiftracor of Bttwtou, who
hat claimed and obtained letters ot adint
in drat ion, upon a double right. He hat hat
ed, and it is recorded in the leueis oi ad
ministration, that he is a creditor of brew
ton’s to the amount of 1400!- he has also
luted, to be the attorney ot the executor of
Brewton, and in that right intitled 10 the pro
bate i he could not gain the piobate as a cre
ditor, without the renunciation of the exe
cutor, he was tberefoie obliged to take it up,
as a temporary administration, lubjeCt to the
general right of the executor, to come in tor
a general reprelcntation ot all the effett* of
the tefta or. That executor tbeicfoie, is the
person who is generally mtereltcd 111, and
indued to all the tettator’a effetts; the aa
miniftrater is only L titled to the tcmpoiary
interest. In this situation, he brings Ins ac
tion at law. The hill ha* been filed againtt
him, and also against the executor hiniicli,
in whom the principal lepieieutation of the
testator’s estate i» vettta : (it cannot indeed
io be in our contcmplauo , till the probate
ot the will i* eflertuaily gianted to him, but
lubtauttally it refide* with him). 1 his bill
is therefore brought against them, isl, m re
fpert of the- formal title ot the pla.nutf at
law, 2diy, in icfpett of the lubliautui title
ot the executor, who ha* a right to nuke it
gvaiiable, whenever he thinks proper. In
the courle of ihisattion, all the pillages have
inteiveued which have bten mentioned, and
which, whether they aide from the uoceiuni
ty that belonged to a new case, iron* the dif
ficulty the parties had in ptocuriug aovite,
iu proceeding upon certain advice, or in their
choice of remedies which the (peculation* of
those they consulted, thought proper to oiTer
them, have been attended with thelepolitive
mitchicf*; that a man who ba* a cl at dc
maud, ha* been delayed tor thice or tour
year* together, by various%ift* in the couit*
of law; and at length a bill in equity 1* 6»sd,
to rest ram hi* proceeding* there at all. In
erder to make a goud and effectual b.*r iu
•quit/ it a demaud at law* it will be uewedai y \
to fliew, that the eflate of Sir Jame* Wright,
confifcated in America, was of a greater va
lue, not ouly than the sum now in quellion f >
but than all sums claimed up *n thkt eflate,'
confeqnently that there was a <fund futficient
to have paid the whole ; for if it Ihould turn
out to be a defective fund, and capable *>f
fatisfying the .debt but in part, it can onlf
operate as a discharge pro irnnto In the fe
cund place, it mud be (hewn, that bv the jwf
tice to be obtaiued in that country, this de
mand was competent I? made;-for let what
will be the faults of their judicature, I tan
hear no complatuts of them s I mud under
hand them to be deciding according to the
laws of that country, whatever my private
opinion may be ; and therefore, if a formal
and final decifian had been obtained, by which
it became impossible to have ohtained a th'.l
ling of the whole of that demand, that would
likewise be a fufficient aufwer ; for the hill
proceeds upon the idea, that the fund was
complete, and that it is flil! * vailah'e; o if
not so, that it has been owing to tha conduit
of the other party. I agree that as thin case
is circutnftanced, if you had come recently,
you might have dated all the atloal circum
ttances of Oir James Wright, all* that you
know of ,he proceedings that have obtained
in America, and the probable evtdencr of
them i Upon that, it would have been com
petent lor the court to have taken the dtp now
demanded, which is an injunction, till the
aufwer of Pinkney came in. Bur 1 confrfs,*
after making all allowances for the circum
stances that have been pleaded, I think it
tends to a dangerous example, to fay thit a
party who is sued 1111784., or 1785. Ihould'
come in 1788, to alk for the answer from the
party abroad, indead of applying for it before,.
which he ought to have done He ihould mvc
made a proper application by affidavit* *n<s
then the action would have been flopped* till
the answer of the party abroad came in. But
coufidenng he has staid so long before ans ap
plication wa-> made, I have great doubts about 4
Bopping this action upon any other term*'
than bringing the debt into court.
Matter of toe Koils, bir Llo\d Ayeven?—
Upon tbegeueial points or .he case, 1 cannot
hope to add to what my Lord Chancellor hae
faid » I can only exprefo my full concurrence
with every pari of what has fallen fom his 1
Loidlh'p. The gieat point willbe difeuflei,-
when the whole is before the court upon the
coining ih of Pinkney’s answer. It is in vain
1 to fay, the caule does not A*nd ptecifelv upon
the grounds, upon which it would do if
Pinkney were the plaintiff in the affion-at
law. borne argument has been used, t'>
that Nutt flands in his own, independent £•
matron, suing lor bis own debt, having a-
to teuia. it rccoveied, this money from
debtors of an inferior nature. He comes
he: e clothed inctely (in the view of this coart)
with the character of the agent of Pink"** - , *
in order that he may put in force the aettwri
sy with which Pinkney armed him. He b-s
obtaiued auothtr formal, legal, character,
namely, that of an adminidrator bete, be
caule otherwise, he could not have proceed-*
cd to recover the debt » bur in effict he is
If ill to be considered as the prfon l»tiga““ff
ou the part of Pinkney « When adet* gv f - n *
to his bauds, he will be considered *s h»v» f Hf.
ihtm, i u the thirstier, noi of the sdmmi
-1 Aietoy of Jfiemou, but of ike
[Voti IV. No. CdVfc
