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About The Augusta chronicle and gazette of the state. (Augusta [Ga.]) 1789-1806 | View Entire Issue (Aug. 14, 1790)
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
