페이지 이미지
PDF
ePub

1799.

MARRYAT

W!lson,

who have a monopoly: he may say, the subjects of the United States may and ought to carry on this trade under the authority of the laws of this country; under the authority of the same laws which gave to the East India Company their monopoly. If the Company fuitain a lofs, it is damnum fine injuria. In fhort, it being once granted that natural-born subjects of the King of Great Britain may become subjects of the United States, there can be no breach of moral, political, or legal duties, no conflict of duties in claiming or exercising the privileges which belong to that character. The same train of reasoning, in my judgment, goes to prove that it is not yet sufficiently established to be now taken for clear law upon the ground of which we ought to declare these contracts void, that a natural-born subject of the King naturalized, or otherwise adopted as a subject by a foreign state, is not to be considered within our navigation laws as a fubject of that foreign state when acting in the character of the master of a vessel belonging to the subjects of that foreign state. Such a man is certainly to many purposes, “ of that country or place" which are the words of the Navigation Act, and “ a subject of the United States," which are the words of the Stat. 37 Geo. 3. C. 97. In point of title to this character of subject, he is fufficiently fo within our navigation laws. I mean that he is sufficiently adopted, according to the case in Comyns, to be considered a subject of that country within our navigation laws, fupposing his claim not to be repelled by his being a natural-born subject of Great Britain. I am not prepared to say, highly as I respect the authority of those who held that opinion, that this character of natural-born fubject will control or fufpend the legal operation of that of a subject of the United States. There is here no conflict of duties. Both characters may stand together; and if some political inconveniencies, such as those suggested in the argument before us, (though these seem very remote,) should follow, yet if these inconveniencies are not of consequence enough to prevent the practice of the adoption of subjects by Great Britain and every other state in Europe, we cannot satisfy ourselves that they ought to control the legal consequences of that adoption. We are of opinion that there is no error in this judgment, and that it ought to be affirmed.

Judgment affirmed.

Mr. Justice BULLER was absent from the 20th and Mr. Juftice Heath from the 24th of April to the end of the term, from indifpofition.

THE END OF EASTER TERM.

[blocks in formation]

In the Thirty-ninth Year of the Reign of George III.

May 6th. ,

2 Eafl, 396.

2 Bof. Pull. Wilton Executrix v. HAMILTON.

256.
3 Bof.& Pull.

116. This was an application to the Court to direct the prothono- A.fued as exe

cutrix of B. on tary to tax costs against the Plaintiff who had been non

a policy effected suited. The ground on which it was attempted to differ this by B. in his life

time, in which he from the common case of an executrix were as follow. The

was jointly inplaintiff declared as executrix of her husband on a policy of terested with C. assurance effected by him in his life-time, and in which he was ing, and was nonjointly interested with two others. The ist count stated, that suited, held that the teftator in his life-time, for the ufe of himself, S. L. and S. B., to the privilege effected the policy for himself, and as agent, &c.; that the testa- of an executrix tor, S. L. and S. B., were interested &c.; that afterwards, in the from colts. life-time of the teftator, the ship failed on her voyage, and that afterwards and during the voyage she was loft. The ad count only differed from the first in some circumstances which could not effect this motion. The 3d and 4th were money counts, ftating that the Defendant was indebted to the Plaintiff as executrix, for money paid by the teftator in his life-time to the use of the Defendant, and for money had and received by the Defendant in the life-time of the teftator to his ufe.

Heywood Serjt. moved this on the last day of Easter term, but was at that time refused a rule niß by the Court, who said they

would

WILTON

[ocr errors]

1799. would not stir the point unless upon further confideration of the

cafe he should think the motion well founded.

Accordingly on this day he again applied for a rule to fhew
Hamilton. cause and contended, that this case did not fall within the gene-

ral rule, that where an executor fues in right of his teftator for
a cause of action arising in the life-time of his teftator, and the
estate will be benefited by a recovery, he shall not pay

costs.
ist, Because it did not appear upon the pleadings that the cause
of action accrued in the life-time of the teftator, for though the
policy was stated in the two first counts to have been made by
him, yet it was not thewn that the loss happened before his
death, and the money counts were on promises made to the
Plaintiff. 2dly, Because the Damages if recovered would not
have been assets, but must have been carried to the partnership
fund and liable to the partnership debts; and 3dly, because it
was not necessary for the executrix to have brought this action,
as either of the surviving parties interested might have supported
it. He cited Jenkins and Wife v. Plombe, 6 Mod. 92. 181.
Modely and Wife v. York, 11 Mod. 135. Marsh v. Yellowley,
2 Str. 1106. Nicolas v. Killigrew, i Ld. Raym. 436. Harris et
Uz. v. Hanna, Caf. temp. Hardw. 204. and Bollard v. Spencer,
7 Term Rep. 358.

Le Blanc Serjt. shewed cause in the first instance, and infifted, that it might be inferred from the pleadings that the cause of action accrued during the life of the teftator.

EYRE Ch. J. On the two first counts we may infer, that the lofs happened in the life-time of the testator, and with regard to the money counts, the promise is an implication of law, fince the teftator is the person to whom the debt is fubftantially due. The Plaintiff was entitled to bring this action, and the could only bring it in right of her testator. The rule of law is clear, With regard to such causes as fall under the cognizance of the executrix herself, the sues at her peril; the privilege is given on account of the situation in which the stands as to those claims of the teftator which were executed in his life-time. It is her duty to convert those claims into assets, which she must do with ignorance and uncertainty, and on that account she is protected from cofts.

BULLER J. I am of the fame opinion. It makes no difference that the surviving parties for whose intereft this policy was 'made might have brought the action in their own names.

Heywood took nothing by his motion.

1799.

Sarah Legh v. Frances LEGH.

May 30th. ON N a former day Shepherd Serjt. shewed cause against a rule If the obligor of

nifi obtained by Le Blanc Serjt. for setting aside a plea of tice of its being release in an action on a bond, and ordering the release to be aligned, take a

release from the cancelled.

obligee, and The case as disclosed by the affidavits in support of the rule plead it to an appeared to be this: Frances Legh having giving a bond to by the alignee Sarah Legh to secure 751. Sarah afligned it to John Legh as a in the name of fecurity for the payment of a lesser fum, of which Frances had Court will ret notice: John having brought an action on the bond against the plea afide; Frances in the name of Sarah, Sarah gave a release to Frances der these cirby whom she had been fatisfied her debt, and this release was cumstances allow

the obligor to pleaded.

plead payment EYRE Ch.J. The conduct of this Defendant has been against of the bond. good faith, and the only question is, whether the Plaintiff

' must not seek relief in a Court of Equity ? The Defendant ought either to have paid the person to whom the bond was afligned, or have waited till an action was commenced against him, and then have applied to the Court. Most clearly it was in breach of good faith to pay the money to the asligner of the bond and take a release, and I rather think the Court ought not to allow the Defendant to avail himself of this plea, fince a Court of Equity would order the Defendant to pay the Plaintiff the amount of his lien on the bond, and probably all the costs of the application.

BULLER J. There are many cases in which the Court has set aside a release given to prejudice the real Plaintiff. All these cases depend on circumstances. If the release be fraudulent, the Court will attend to the application.

The Court recommended the parties to go before the prothonotary, in order to ascertain what fum was really due to the Plaintiff on the bond.

Shepherd on this day stated that the Defendant objected to going before the prothonotary, upon which the Court faid, that the rule muft be made absolute. He then applied for leave to plead payment of the bond, and contended that as this was not an application under the statute to plead several pleas, the Court had no discretion.

EYRE Ch. J. The Court has in many cases refused to allow party to take his legal advantage, where it has appeared to be

against

a

1799.

I.EGH

v. Legu.

against good faith. Thus we prevent a man from signing judgment who has a right by law to do so, if it would be in breach of his own agreement. In order to defeat the real Plaintiff, this Defendant has colluded with the nominal Plaintiff to obtain a release; and I think therefore the plea of release may be set aside confiftently with the general rules of the Court (a). And if so, the Defendant cannot be permitted to plead payment of the bond, as that would amount to the same thing.

BULLER J. The Court proceeds on the ground, that the Defendant has in effect agreed not to plead payment against the nominal obligee.

Upon this the Defendant consented to go before the prothonotary

657

(a) See allo Payne v. Rogers, Dougl. 407. lease the action he may be committed for where the tenant of a conimonable tene- a contempt. Laturence ). mentioning this ment, having been made nominal Plaintiff opinion in the cale of Buverman v. Ra. by bis landlord in an action on the cale for denius, 7 Term. Rep. 670. adds " but be did an incroachment on the common, gave a “ not lay that the release would not defeat

release to the Defendant pending the suit, « the action.” If it would neceffarily de2 Espin, N.P. G. the Court on motion ordered the release tó feat the action, an objection might have

be delivered up to be cancelled, and permit. been taken to the pleading in Craib end ted the action to proceed in the name of the Wife v. D'Acb, 7 Term Rep. 670. n. b., tenant, expressing great indignation at the where a releale having heen pleaded to an attempt made to prevent it.. Indeed in action on a bond by the assignee of the hond Salk. 260. Holt. Ch. J. says, that in ejecte in the name of the obligee, the special circumment where the Plaintiff is a mere nominal ttances under which the release wasgiven, and person and trustee for the leffor, if he re- that it was obtained by fraud, were replied.

[ocr errors]

May 30th.

DONNELLY V. Dunn. 2 Bof. & Pull. 45. If bail plead the DEBT

EBT on a recognizance against the Defendant as bail of one bankruptcy of their principal in

Robert Maclagan. Plea: That the said Robert Maclagan their own dil- after the entering into the recognizance in the declaration mencharge, they must tioned and before the return of any writ of capias ad fatifplead it circum. itantially, or it faciendum against the said Robert Maclagan upon the said judge will be bad on

ment in the said declaration also mentioned to wit on &c. at &c. special demurrer. Quære if it can became and was a bankrupt within the true intent and meaning be pleaded at all? of the several statutes made and then and now in force concern

ing bankrupts. And that the said Robert Maclagan having fo become and being such bankrupt as aforesaid afterwards and before the return of any writ of capias ad fatisfaciendum againft

« 이전계속 »