Folliott v. Ogden

Folliott against Ogden.

IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER

Original Citation: (1789) 1 H Bl 123

English Reports Citation: 126 E.R. 75

Tuesday, Feb. 10th, 1789.

Affirmed, 3 T. R. 726; 100 E. R. 825; 4 Bro. P. C. 111; 2 E. R. 75. See Phillips v. Eyre, 1870, L. R. 6 Q. B. 27; Huntington v. Attrill, [1893] A. C. 156.

Folliott against Ogden. Tuesday, Feb. 10th, 1789.

A. and B. being inhabitants of the United States of America, while those States were colonies of Great Britain, and before the war broke out between the two countries, B. executes a bond to A. During the war, after the declaration of independence by the Congress, both parties are attainted, their property confiscated, and vested in the respective States, of which they were inhabitants, by the Legislative Acts of those States, and a fund provided for payment of the debts of B. A. may maintain an action on the bond against B. in England. The several Acts of Attainder and Confiscation, being passed by sovereign independent States, do not disable A. from suing, nor exempt B. from being sued in England. Neither is it a good plea in bar of an action at law, that an ample fund was provided out of the effects of B. for the payment of his debts, to which A. might and ought to have resorted, and been paid, though it may be a ground for relief in equity (a)3.

Debt on bond, dated New York, October 10, 1769, for 4000l. of current money of the province of New York in North America, being 2250l. of lawful money of Great Britain.

Plea, after oyer, (by which it appeared that the defendant, one Richard Morris, and Lewis Morris were jointly and severally bound,) 1st. Richard and Lewis Morris solverunt post diem. 2d. Defendant solvit post diem. 3.1. That at the time of making the said writing obligatory, the plaintiff, Richard Morris, Lewis Morris, and the defendant, were severally and respectively persons residing within the United States of America, and [*124] continued so, &c. till after the 22d of October 1779, that on

(a)1 [See Frampton v. Payne, ante, p. 65.]

(a)2 There were other days appointed for sittings in the term, after 3d of February. Quiore, whether the defendant would not have been entitled to judgment, as in case of a nonsuit, if he had waited till the end of the term before he made his motion 1

(a)3 [This judgment was affirmed by the Court of K. B. on a writ of error, Trin. 30 Geo. 3, 3 T. R. B. R. 726, but on grounds different from those on which the Court of C. P. had proceeded; the Court of K. B. holding that the Act of Confiscation passed in the several Slates of North America after the declaration of independence, and before the treaty of peace, by which this country acknowledged their independence, were to be considered as a nullity in the Courts of Law here. The judgment of the Court of K. B. was affirmed in Dom. Proc. 25 Feb. 1792. See 4 Parl. Cases (8vo.) Ill, and the note there; see also the case of Dudley v. Folliott, E. 30 Geo. 3, 3 T. R. B. R. 584, where the Court of K. B. having no doubt on the law, and thinking that it would lead to improper discussion, would not permit the question to be argued. See Doe d. Thomas v. Acklam, 2 B. & C. 779. Wolff v. Oxholm, 5 M. & S. 92, see also Quin v. Keefe, post, vol. ii. p. 553.]

76 FOLLIOTT V. OODEN 1H.B1.U5.

that day, the said sum of money, &c. being due and unpaid, &c. and the plaintiff then residing at New York, then being one of the United Slates of America, by a law of the State of New York, he was ipso facto attainted of the offence of adhering to the enemies of the said State of New York, and all and singular the estate, both real and personal, held or claimed by him, on the 22d October 1779 was forfeited to and vested in the people of New York, which said law of the said State of New York, from thenceforth hitherto hath been, and still is, in full force and effect, and that the said writing obligatory, and all the money due thereon, became and was, and from thenceforth hitherto hath remained and continued, and! still is forfeited to, and vested in the people of the said States of New York, &c.

4th. That at the time of the making the said writing obligatory, the above-mentioned parties were resident within the United States of America, that the defendant was bound only as a surety for the said Richard and Lewis Morris, that the defendant, at the said time, &c. was resident in the State of New Jersey, then being one of the United States of America, and in possession of real and personal property, more than sufficient to pay the said sum of 4000l. and his other debts, that on the 2d of January 1779, being so possessed, &c. he was attainted according to the laws and statutes of the said State of New Jersey, of adhering to the enemies of the said State, and thereby all his real and personal estate, within the said State of New Jersey, was forfeited to, and vested in, the said State of New Jersey for ever; that it was provided by the said State of New Jersey, that the property of the defendant so forfeited to, and vested in the said State, was in the first place made liable to the payment of all his debts, and demands against him; that in consequence of his attainder, all his property was seized, which at the time of the seizure was more than sufficient to pay the said sum of 4000l. and all his other debts; that after his attainder, the plaintiff was at liberty to make, and might have made demand of the State of New Jersey, of the said sum of money due to him upon the said writing obligatory, against the real and personal estates of the defendant so forfeited, &c. and might have been paid thereout.

5th, To the same effect as the 4th, but reciting more particularly the several Acts of Attainder, and Confiscation, passed by [*125] the State of New Jersey, against the defendant, and that the plaintiff might and ought to have demanded payment of the bond from that State, &c.

Replication.—Issue tendered on the 1st and 2d pleas. To the 3d plea, that at the time of making the said supposed law of the State of New York, in that plea mentioned, the said State was not one of the United States of America, but was one of His Majesty’s colonies in America, then in open rebellion against His Majesty, &c. General demurrer to the 4th and 5th pleas.

Rejoinder.-Issue joined on the 1st and 2d pleas. To the 3d replication, that before the making of the said law of the State of New York, in the 3d plea mentioned, to wit, on the 4th of July, 1776, the several colonies in America (mentioning them all by name, and among them New York and New Jersey) separated themselves from the Government and Crown of Great Britain, and united themselves together, and were by the people of the said respective colonies in congress, declared and made free and independent States, by the name and style of the United States of America, and to have full power to do all acts and things which independent States of right may do; that on the 3d of September, 1783, by the definitive treaty of peace and friendship, made and signed at Paris on that day, between His Majesty and the said United States of America, His Majesty acknowledged the said United States of America to be free, sovereign, and independent, States, and treated with them as such; and by that said treaty] the several laws which had been made, and passed by the legislatures of the said respective states, after their declaration of independence, for the confiscation of the property of persons within the said respective States, were recognized and admitted to be; valid; and that before the making of the said law of the State of New York, to wit, on the 4th of July, 1776, and from thence continually hitherto, the said United States: became, and were divided from His Majesty’s dominion and government, and absolutely independent thereof, and that long before, and at the time of making the said law of the said State of New York, and from thence hitherto, the people of the said State have exercised, and still do exercise, sovereignty, legislation, and government, within the said State of New York, separate and distinct from the legislation and government of Great Britain, and that the said law of the said State of

1 H. Bl 126. FOLLIOTT V. OGDEN 77

New [*126] York, from the time of the making thereof, hitherto hath been and still is in full force and effect, &c.

Joinder in demurrer to the 4th and 5th pleas, &c.

Surrejoinder.-That by the treaty of peace, the said several laws, &o. were not recognized and admitted to be valid, &c.

Rebutter.—That by the first article of the treaty, his Britannic Majesty acknowledges the said United States to be free, sovereign and independent States, and treats with them as such: that by the 5th article of the treaty, it was agreed between His Majesty, and the United States of America, that the Congress should earnestly recommend it to the Legislatures of the respective States, to provide for the restitution of all estates), rights, and properties, which had been confiscated, belonging to real British subjects, and also the estates, rights, and properties, of persons resident in districts in the possession of His Majesty’s arms, and who had not borne arms against the said United States; and that persons of any other description, should have free liberty to go to any part of any of the thirteen United States, and therein remain twelve months unmolested in their endeavours to obtain restitution of such of their estates, rights, and properties, as might have been confiscated; that Congress should also recommend to the several States a reconsideration and revision of Acts and laws, &c. and should also earnestly recommend to the States, that the several estates, rights, and properties, of such last-mentioned persons, should be restored to them, they refunding to any persons, who might be then, at the time of making the said treaty, in possession, the bona fide price (where any had been given) which such persons might have paid in purchasing the said estates, rights, or properties, since the confiscation, &e. and that no persons who then had any interest in confiscated lands, either by debts or otherwise, should meet with any impediment in the prosecution of their just rights, that the plaintiff, at the time of making the said law of the State of New York, and of the signing the definitive treaty, was resident in a district in the possession of His Majesty’s arms, within the State of New York, and had not borne arms against the said United States; and also that by the 6th article of the treaty, it was agreed, that there should be no future confiscations made, nor any prosecutions commenced against any person by reason of the part which he might have taken in the then war, and that no person should suffer any fu-[*127]-ture loss, either in his person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the treaty, should be immediately set at liberty, and the prosecutions so commenced should be discontinued, &c.

General demurrer to the rebutter, and joinder in demurrer.

This cause was argued in Easter Term 1788, by Watson, Serjt., for the plaintiff, and Le Blanc, Serjt., for the defendant, and a second time in the present term, by Lawrence, Serjt., for the plaintiff, and Adair, Serjt., for the defendant. The arguments on the part of the plaintiff, were in substance as follow:—

The two material questions which arise on these pleadings are, 1. Whether under the circumstances of this case the plaintiff had a right to sue; 2. Whether under those circumstances, the defendant was liable to be sued in England on a bond made in America 1

The first question may be resolved by considering the effect of the Act of Attainder and Confiscation passed against the plaintiff by the State of New York; the second, by considering the effect of the like Acts of the State of New Jersey, passed against the defendant. Now these Acts having been made by persons who, at the time of making them, were subjects in open rebellion, must have been at that time void. If they were allowed to be valid, it would follow that the Acts of rebels are binding, in proportion to the violence of their rebellion. Laws can only bind those who are subject to them; but no one can be legally subject to the Acts of rebels. Although in this country, the protectorship of Cromwell continued many years in possession of sovereign authority, yet it was necessary at the Restoration, to pass a law (12 Car. 2, c. 12) expressly to confirm such proceedings of the Commonwealth, as were thought proper to be confirmed, all others being void, having been made by rebels. An usurped power can make no valid laws, as long as efforts are made, to reduce those who usurp it, to obedience. Continued efforts were made by Great Britain to bring America to submission, long after the Acts in question were passed. Ibis laid down by Puffendorff (lib. 7, c. 7, a. 5), that ” If the constitution of a state be altered by an unjust rebellion, the liberty thus usurped, continues so long unlawful, as the rightful prince shall

78 FOLLIOTT V. OGDEN 1 H. Bl. 128.

labour to reduce [*128] the rebels to obedience, or at least, shall by solemn declaration protest, and preserve his right over them.” The defendant does not indeed, in his rejoinder, insist on the sovereign authority of the State of New York, at the time of passing the law against the plaintiff, but relies on the subsequent treaty of peace to confirm that, together with the others laws of attainder and confiscation. But the treaty could not have this effect. It could not mean to ratify those acts which were done by the Americans in a state of rebellion, and at a time when this country was labouring to reduce them to obedience; it takes notice of such acts, but does not imply a retrospective confirmation of them. But supposing the design of the treaty had been to confirm them, yet the King had no such power. The Crown cannot ratify acts of violence, without the consent of the subject, expressed by passing a law for that purpose. The Sovereign of a State may abandon such of his subjects as be is unable to protect or govern, but he cannot deprive them of the legal rights of that society into which they originally entered: he cannot force them to submit to the authority of another State. Vatel, liv. 1, c. 18, s. 195. Puffendorff, lib. 8, c, 5, s. 9. So in the present case, the King had no power to confirm the attainder of loyal subjects of his Government, made while they were under the protection of Great Britain, to vest their property in the American States by ratifying the confiscation of it, nor to deprive them of the benefit of their personal remedies and engagements. If this bond therefore had been actually seized by the people of New York, it could not have been contended that the plaintiff’s right of action was taken away by the seizure made, flagrante bello, and before any acknowledgment of the lawfulness of the power making it; but as the bond was not seized, as it was never divested out of him, and as he is still possessed of it, clearly no principle of law can prevent his suing upon it in England. He could not have brought an action in America, being there proscribed, and therefore had not his choice of a double remedy. But admitting the legality of the proceedings against the plaintiff, the defendant cannot take advantage of the criminal laws of a foreign country. A mere assignment of property might be acknowledged, but the vindictive Acts of one State cannot be enforced in another; it being a principle of the law of nations, that a criminal can only be punished by that Stats whose laws he has offended. [*129] Vatel, liv. 1, c. 19, s. 232. But if this plea were allowed, of the disability of the plaintiff to bring the action, offences committed by him in America would be punished in England.

The second question may be answered, by examining whether the defendant can avoid the plaintiff’s demand, by pleading his own attainder, and the confiscation of his property. At the time when the contract was made, the plaintiff had a right of action; this right was personal and transitory, it continued in him as long as the bond remained in his possession .unsatisfied, and was not divested by any situation, in which the property of the defendant was placed. The plaintiff is not stated, in this plea, to have been guilty of any offence; the defendant relies on his own treason against the State of New Jersey. Now admitting his attainder and the confiscation of his effects to be legal, the object of those Acts was punishment, not reward, to distress, rather than to favour. They did not mean to prevent a creditor from bringing a personal action, or to destroy any contract made by him with the defendant. Care was taken, in the first place, that his debts should be paid, but if he be suffered to avail himself of this defence, the design of these laws of New Jersey will be inverted; the debtor will receive the benefit of them by avoiding the payment of a just debt, and the creditor will be deprived of a provision, expressly made in his favour. A proscribed American is not entitled to greater privileges than any other British subject. There is no ground in the law of England to exempt an attainted person from his engagements; though he be legally dead to every other purpose, he is alive to that of being sued, and may he served with process for debt while in prison, though his whole estate be confiscated; otherwise he would have a privilege which the law never intended. Hawk. P. C. b. 2, c. 36, s. 5. A bankrupt forfeits the whole of his property, but would be liable to be sued, if it were not for the provisions of a positive statute. But the defendant farther insists, that his forfeited property was more than sufficient to discharge this, with his other debts, and to that fund, the plaintiff might, and ought to-have resorted. Supposing this to be true, it is not a bar to the present action; it shews only that the plaintiff had another remedy, but does not take away his right of choosing which remedy he would pursue: it can be no defence at law, whatever it may be in equity. Bannister v. Trussell, Cro. Eliz. 516. Hornby v.

1 H. Bl. 130. FOLLIOTT V. OGDEN 79

Houl-[*130]-ditch, Andr. 40. Houlditch v. Mist, 1 P. Wms. 695. Kempe v. Antill, 2 Browne, 11. Wright v. Nutt, in Canc. Jan. 23, 1788 (vide post. 136). But in fact, the fund set apart for the payment of the defendant’s debts, was not solvent to the plaintiff, who was proscribed. He brings his action here, to obtain that satisfaction of which he was deprived in America. All circumstances of hardship must be laid out of the case. Both parties have been unfortunate, neither delinquent. But if a question could be made, whether in a situation equally distressful, a person who had lent money should lose it, or one who had been a surety for the repayment, should recede from his engagement, it must clearly be decided in favour of the lender; every principle of justice requiring that the rights of contract should be preserved free from violation.

Lord Loughborough mentioned the case of Ramsey v. Macdonald, Foster’s Rep. 61, as having determined the point, that an attainted person is liable to be sued in a civil action.

On behalf of the defendant, it was contended, that the several Acts of Attainder and Confiscation passed in America, were the Acts of Sovereign, independent States, and ought to be esteemed valid when brought judicially before the Court. The argument drawn from the previous rebellion of those States, and the passage cited from Puffendorff on that head, is only applicable to that sort of rebellion, in which the people take arms against the Sovereign for a redress of grievances, but do not separate from the State, add cause a dissolution of Government. Admitting the authority of Vatel, that citizens of a free State may withdraw themselves, and of Puffendorff, that a Sovereign cannot bind his subjects by giving up part of his dominions, yet in this case the record expressly states, that both the plaintiff and defendant remained inhabitants of the respective States of New York, and New Jersey : by this they acquiesced in, and were amenable to the laws of those States. So when the native of any foreign country, owing allegiance to another Sovereign, resides in England, he acknowledges, by his residence, a submission to English laws. It is said by Vatel (liv. 3, c. 18, s. 295) that, “when a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the State is dissolved, and the war between the two parties in every respect is the aims with a public [*131] war between two nations.” By the Acts of this country, the Americans were de facto acknowledged to be independent, long before the treaty of peace. In the year 1776, commissioners were sent out to treat with them, and persons taken in arms were considered as prisoners of war. To put the matter beyond all doubt, the definitive treaty begins with an acknowledgment of antecedent independence. That independence most be dated from the declaration of the Congress; no other period can be fixed for its commencement. The State of America then being independent, had a right to affect by their laws, all persons resident within them. The States of New York exerted that right, by inflicting pains and penalties on the plaintiff, by which they deprived him of his civil capacity, and rendered him unable to bring any action. One effect, among others, of an Act of Attainder, is to create a personal disability to sue in Courts of Justice. But admitting that the plaintiff was under no personal incapacity to bring an action in England, by the penal laws of a foreign State, yet the subject-matter of this suit was divested out of him, and absolutely vested in the people of New York. All his property was taken from him by the Act of Confiscation. Mere possession of the bond without the right, is not sufficient to support an action. If a bankrupt possessed of a bond, brings an action upon it, possession is not sufficient evidence of right; it is a common plea in bar, that the right of action was divested. The system of bankrupt laws savours of a penal nature, and in no country more than in Holland; but the bankrupt laws of Holland are allowed to take effect hero, as divesting all property out of the bankrupt, and vesting debt* due to him in England in the curators or assignees in that country (a): they have been often admitted in the Court of the Mayor of London, in cases of foreign attachment, and, were recognized in Chancery, in the case of Solomons v. Ross, 1764 (b).

(a) [See Smith v. Buchanan, 1 East, 6. Sill v. Worswick, post. 665.]

(5) Solomons v. Ross, in Canc. 26 January, 1764, before Mr. Justice Bathurst, who sat for Lord Chancellor Northington.*

[Not applied, Galbraith v. Grimshaw, [1910] A. C. 511.]

Messrs. Deneufvilles merchants and partners at Amsterdam, corresponded with

*[See the comments on this case post, 691, vol. ii. p. 407.]

80 FOLLIOTT V. OGDEN 1 H. Bl. 132.

[*132] [Lord Loughborough said, in thi1/2 part of the argument, that he was counsel in the case of Solomons v. Ross, which was de-[133]-cided solely on the principle that the assignment of the bankrupts’ effects to the curators of desolate estates in Holland, was an assignment for a valuable consideration, and therefore acknowledged in this country, agreeable to Captain Wilson’s case in the House of Lords.]

But supposing the plaintiff not to be disabled from suing either in respect of his person or his property, yet the defendant is not liable to be sued in the present action.

Michael Solomons and Hugh Ross, merchants in London. On the 18th of December 1759, the Deneufvilles stopped payment; on the 1st of January 1760, the chamber of desolate estates in Amsterdam took cognizance thereof, and on the next day they were declared bankrupts, and curators or assignees appointed of their estates and effects. On the 20th of December 1759, Ross, who was a creditor of the bankrupts to the amount of near 3000l. made an affidavit of his debt in the Mayor’s Court of London, and attached their monies in the hands of Michael Solomons, who was their debtor to the amount of 1200l. On the 8th of March 1760, Ross obtained judgment by default on the attachment, and thereupon a writ of execution issued against Michael Solomons, who was taken in execution, but being unable to pay the 1200l. gave Ross his note payable in a month; on which Ross caused satisfaction to be entered on the record of the judgment.

A few days after, one Israel Solomons, who had a power of attorney from the curators to act for them in England, filed a bill, making himself and the curators plaintiffs, praying that the defendant Michael Solomons might account with them for the effects of the bankrupts which were in his hands, might pay and deliver the same over to Israel Solomons for the use of the curators, and be restrained from paying or delivering them over to Ross.

Michael Solomons then filed a bill by way of interpleader, praying an injunction, and that he might be at liberty to bring the 1200l. into Court. This money was accordingly paid into the bank, in the name of the accountant-general, pursuant to an order of the Court.

The decree directed, inter alia, “That the stock purchased with the money paid into the bank, should be transferred to Israel Solomons, for the benefit of the creditors of the bankrupts, and that Ross should deliver up the note given by Michael Solomons for 1200l. to be cancelled.”

Jollet and Reitveld v. Deponthieu and Baril, in Canc. November 23, 1769, before Lord Chancellor Camden.*

The Deneufvilles, merchants, at Amsterdam (but not the same as those mentioned in the preceding case), on the 30th of July 1763, stopped payment. On the 8th of October, the plaintiffs were appointed curators of their estate and effects. At the time when the Deneufvilles stopped, and were declared bankrupts, they were indebted to Messrs. Deponthieu and Co. merchants of London in 16001. and Messrs. Baril and Texier were indebted to the Deneufvilles in 2131l. 18s. lid. On the 5th of January 1764, the Deponthieus and Co. made an affidavit of their debt, and on the 12th of that month attached the monies of the Deneufvilles in the hands of Baril and Texier. Pending the attachment, the curators filed their bill against Deponthieu and Co. and Baril (Texier being absent) praying, ” that an account might be taken of all dealings and transactions between the bankrupts and Baril and Texier, that the balance might be liquidated, and paid to the plaintiffs, and that the other defendant might be restrained by injunction, from any further proceedings against Baril and Texier in respect of the foreign attachment, or any security given in consequence thereof.”

It was decreed, “that the plaintiffs were entitled to recover from Baril and Texiei1 the sum of 21311. 18s. lid. being the balance of an account current, transmitted to the Deneufvilles on the 24th of October 1764,” (which the plaintiffs consented to accept an the real balance due, and to waive all further account, and therefore) “that it should be referred to one of the masters to compute interest on the principal sum of 2131l, 18s. lid. at 4 per cent, from the 26th of October 1764, and that a perpetual injunction should issue against Deponthieu and Co. to restrain them from proceeding on the foreign attachment.”

It appeared from the proofs taken in the cause, that a bankrupt’s effects, by the

*[See the comments on this case post, 691, vol. ii. p. 407.]

1 H. Bl. 134 FOLLIOTT V. OGDEN 81

Both parties were resident citizens of America, the contract between them was made with a view to be executed in that country, not in this. By a subsisting law of the State, in which the contract was made, the whole property of the defendant was forfeited to that State, subject in the first place to the payment of his debts. An ample and solvent fund was provided for that purpose, to which the plaintiff might and ought to have resorted for satisfaction of his demand. This stands on the record admitted by the demurrer. The people of New Jersey were trustees for the plaintiff with other creditors; this was an equitable payment to him; in equity an assignment to trustees for payment of debts being quasi payment. The plaintiff having neglected to make use of the provision offered him in America, is precluded by his negligence from having an action in England. Besides, the co-obligors are resident in America and amenable to its laws; as they could not plead a recovery had, nor sue on [*134] an assignment made, in this country, neither could the defendant have any action over, against them. Though the plaintiff therefore should recover in this action, the defendant will be deprived of his remedy over. But as the contract was made in a foreign State, the laws of that State must be the measure of justice between the parties. The reason why a bankrupt would be liable to be sued, if not protected by a positive statute, is, that the fund arising from his effects is not sufficient for the payment of all his debts; it is not an ample, solvent fund, like that raised out of the forfeiture of the defendant’s property; if the creditors be satisfied in toto, the commission is set aside. In the case of Bannister v. Trussell it was holden that a mere attainder of felony was no bar to an action; neither is it contended to be in the present case. An attainder at common law does not prevent the attainted person from being served with civil process, because no fund is set apart for the payment of his debts; but where the attainder is by an Act of Parliament, a fund is usually provided for that purpose. In the case of Hornby v. Houlditch, the whole of the defendant’s property was not divested by the stat. 7 Geo. 1, c. 28; there was a remaining fund to which the plaintiff might have applied. So also in Houlditch v. Mist, the property was only partially taken away; the authority indeed of that case is shaken by the Lord Chancellor in Wright v. Nutt, where his Lordship also held, that this country was bound to take notice of the American laws, as Acts of inde-

laws of Holland vest in the curators only from the time of their being appointed, and not by relation to the time of the committing the act of bankruptcy.

Neale and Another, Assignees of Grattan v. Cottingham and in Canc, in Ireland, November 16, 1764.*

Grattan a merchant in London was indebted to Cottingham a merchant in Dublin in 862l. 4s. 1d., and the Houghtons were indebted to Grattan in 600l. On the 27th of October 1763, Cottingham made an affidavit of his debt, and commenced an action in the Tholsel Court of Dublin against Grattan, and on the 31st of that month attached the monies due to him from the Houghtons, in their hands. On the 2 1st of November, judgment was signed by default, and on the 9th of January 1764, the Houghtons were taken in execution on a ca. sa. who in order to procure their discharge, paid Cottingham 6001. the money due from them, and 1l. 1 9s. lid. costs.

On the 28th of October 1763, a commission of bankrupt issued against Grattan in England, who on that day was declared a bankrupt. On the 10th of November 1763, his effects were assigned to the plaintiffs’ assignees. On the 16th of November 1764, they filed a bill in the Court of Chancery in Ireland, against Cottingham and the Houghtons, praying, that an account might be taken of all such sums of money as had been received by Cottingham from the Houghtons, for any debt due by them to Grattan before his bankruptcy, and that interest might be computed thereon from the times when he received the same respectively, and that he might be decreed to pay what should be found due to the assignees.

As this was the first cause of this kind ever decided in Ireland, the Lord Chancellor called in the assistance of several of the Judges, and after great consideration, with the approbation of the Judges whom he consulted, pronounced a decree in favour of the plaintiffs, and ordered Cottingham to pay them the money which he had received of the Houghtons.

But see Coke’s Bankrupt Law, 243 and 244.

* [Vide post, vol. ii. p. 407.]

82 FOLLIOTT V. OGDEN 1 H. Bl. 135.

pendent States; that whore a sufficient fund was provided, and the creditor guilty of laches in not resorting to that fund, and having the means of possession, had not made use of those means, that he ought upon principles of justice arid equity, to be prevented from pursuing the debtor to harass him with another action. Here the means of possession are admitted on the record. The same answer may be given to the case of Kempe v. Antill, in which the Chancellor delivered a similar opinion. Upon the whole therefore, on the face of the pleadings, the plaintiff is reduced to this dilemma; he is either disabled to sue by the matters contained in the third plea, and there is an end of the action; or his capacity to sue remaining, it appears from the 4th and 5th pleas, that an ample fund was provided, to which he might, and ought to have resorted for payment of his debt, but to do which he of his own laches neglected. In either case, the Court will pronounce judgment for the defendant.

On this day, the following judgment of the Court was delivered by Lord Loughborough.

[*135] It is unnecessary for me to state the pleadings in this case at length, as the only two material questions arise on the third and 4th pleas. The third plea in sub¡stance is, that the plaintiff was attainted by the State of New York, that all his estate and effects were confiscated, and forfeited to the people of that State, and that in conse¡quence, the bond in question and all the money due upon it was forfeited to and vested in them. Now there is no occasion to enter into a discussion of the matters contained in the replication, rejoinder, sur-rejoinder, or rebutter, for admitting this Act of the State of New York, to be of as full validity as the Act of any independent State, which the defendant contends, and which it certainly was, still it cannot operate as a bar to the plaintiff’s demand in this action (a). If it were a bar, it must either be in respect of his person, as disabled to sue, or in respect of the subject-matter of the suit. It was admitted in the argument, that by the criminal sentence of attainder of one sovereign, independent State, no personal disability to sue in another was created; but it was contended, that the property of this bond was divested out of the plaintiff by Act of the law of that country, to which both he and his property were subject. But if the penal laws of a foreign country do not in themselves import a personal disability to sue in this, neither do they by divesting the property of a person in that country, take away his right of action in England. The subject-matter of this action being- a bond, it could only be sued for according to the laws of England relating to bonds; supposing therefore the right of the plaintiff to be gone, that could not be set up in bar of the action, which must be brought in the name of the present plaintiff, whoever might be in possession of the bond, since a chose in action is not assignable at law, and the defendant could not plead that the obligee had assigned it. I would even go farther, and say, a right to recover any other specific property, such as plate or jewels, in this country, would not be taken away by the criminal laws of another. The penal laws of foreign countries are strictly local, and affect nothing more than they can reach and can be seized by virtue of their authority; a fugitive who passes hither, comes with all his transitory rights; he may recover money held for his use, stock, obligations and the like; and cannot be affected in this country, by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend.

The other question arises on the 4th plea, which states, that [*136] the defendant was attainted by the State of New Jersey, that all his estate and effects were confiscated^ and vested in the people of that State, and in the first place made liable to the payment of all his debts; that a fund was raised more than sufficient to pay thorn, to which the plaintiff might and ought to have resorted. This plea has the same tendency with the 3d, to prevent the plaintiff from recovering; but the whole amount of it is a ground in equity for relief against a creditor, who would make an oppressive use of one security in preference to another; for I perfectly agree with the doctrine of the case of Wright v. Nutt, and think that if the plaintiff in this action might have recovered his debt out of the fund appropriated to that purpose in New Jersey, and has wilfully omitted so to do, there would be a good reason for equity to interfere: if he might have recovered the whole, this action might on equitable grounds be entirely stopped; if only a part, equity would relieve pro tanto. This is every thing except what it ought to be, and comes as near as it could to a plea of payment; but

(a) [See Lord Kenyan’s opinion, contra, on this part of the case, 3 T. R. 731.]

1 H. Bl. 137. WRIGHT V. NUTT 83

in a Court of Law nothing short of actual payment is good. Upon the whole therefore, as the case stands, there is nothing to prevent this Court from giving Judgment for the plaintiff.

[The reporter was favoured with the following case, cited in that preceding, of Folliott v. Ogden.]