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At the trial before Lord Eldon at the last aflizes for the city of 1800. Exeter the plaintiffs recovered a verdict under his Lordship's direction, he being of opinion that no perfon having a lien on goods, can if he part with the poffeffion afterwards ftop them in tranfitu, and thereby revive his lien against the owner. But he gave the defendant's counsel leave to move this Court to enter a non-fuit, if they should be of a different opinion.

Gibbs now moved accordingly, on the ground that the captain having received the goods from the defendant, and not being accountable to any other perfon for the delivery of them, (for he had received no orders from Gard), it was the fame as if they had remained in the actual poffeffion of the defendant. That there could have been no doubt if the defendant had taken the bill of lading to his own order at firft; and his taking it afterwards before the goods got to the poffeffion of Gard was the fame thing. It was equally an acknowledgment by the captain that he held the cuftody of them on the defendant's account.

Lord KENYON C. J.The right of lien has never been carried further than while the goods continue in the poffeffion of the party claiming it. Here the goods were shipped by the order and on account of the bankrupt, and he was to pay the expence of the carriage of them to London: the cuftody therefore was changed by the delivery to the captain. In the cafe of Kinloch v. Craig (a) where I had the misfortune to differ with my brethren, it was ftrongly infifted that the right of lien extended beyond the time of actual poffeffion; but the contrary was ruled by this Court, and afterwards in the Houfe of Lords: though there the factor had accepted bills on the faith of the confignments, and had paid part of the freight after the goods arrived.

SWEET again

PYM

[5]

GROSE J.-I confider the delivery of the goods by Pym to the, [6] captain to be equivalent to a delivery to Gard. Per Curiam,

(a) 3 Term Rep. 119. afterwards in Dom. Proc. ib. 786.

Rule refused.

SMITH and Another against BUCHANAN and Another.

Tuesday, Nov. 11th.

miffion of

action for a

SSUMPSIT for goods fold and delivered, and upon the com- A discharge mon money counts. Pleas, 1. non-affumpfit, 2. for a further under acom plea in difcharge of the perfon's eftate and effects of the defen- bankrupt in dants, except any property, if any there be, after the date of a a foreign certain deed dated 23d of September 1799 after mentioned, ac- Country is quired or to be acquired by the defendants, by defcent devife be- no bar to an queft or in course of diftribution, they fay, that by a certain law debt a ifing of the state of Maryland made on the 10th of April 1787 intitled here againft "an act refpecting infolvent debtors," it was enacted that any debtor rupt by a for any fum above 300l. might apply by petition to the chancellor of creditor a the said state, and offer to deliver up all his property to his credi- fubject of tors, a schedule whereof with a lift of creditors fhould be exhibited. this country. therewith; and thereupon the chancellor might direct perfonal notice of fuch application to be given to the creditors or as many as could be ferved there with, or he might direct the notice to be pub

B 2

lifhed

the bank

[7]

1800. lished in the newspapers; and on the appearance of the creditors or their neglect to appear on due notice, the chancellor might SMITH adminifter an oath to the debtor binding himself to deliver up and again transfer to his creditors all his property, &c. in fuch manner as the BUCHANAN chancellor fhould direct; and that the chancellor fhould thereupon appoint a trustee on behalf of the creditors, and fhould direct fuch debtor to execute a deed to fuch truftee of all his property debts rights and claims in truft for the creditors; " and thereupon, and upon the execution of the faid deed, and after the delivery of the property books bonds and other evidences of debts to fuch truftee, and his certificate of fuch delivery, the chancellor might order that fuch debtor fhould for ever thereafter be acquitted and discharged from all debts by him owing or contracted at any time before the date of fuch deed;" and in virtue of fuch order fuch debtor fhould be for ever fo difcharged: provided that any property thereafter acquired by fuch debtor by defcent devife bequest or in course of distribution should be liable to the payment of his debts. The plea further stated that after the making of that law the defendants were joint debtors for more than 300%; that they petitioned the chancellor and offered to deliver up all their property to the ufe of their creditors with the fchedule and lift of creditors thereunto annexed; that thereupon the chancellor gave the due notice to the creditors, and administered the oath to the defendants; and appointed one S. Mcale trustee on behalf of the creditors; and directed the defendants to execute a deed to the faid S. M. for all their property debts rights and claims &c. in truft for their creditors. That thereupon the defendants did accordingly on the 23d Sept. 1799 execute fuch deed of that date, and did then deliver up to the faid S. M. as fuch trustee &c. all their property books &c. who thereupon certified such delivery to the faid chancellor; and thereupon the chancellor according to the said act ordered that the defendants fhould for ever thereafter be acquitted and difcharged from all debts by them orving or contracted before the date of the faid deed; except that any property afterwards acquired by them by defcent &c. 8 fhould be liable to the payment of their debts. The defendants then averred, that they, at the time when the feveral caufes of action in the declaration mentioned accrued, and until and at the time of the faid order of discharge, were inhabitants and residents in the faid State of Maryland, and that the said several caufes of action accrued and were owing before the date of the faid deed of truft executed by the defendants to S. M. wherefore they prayed judgment, and that their perfons, eftates and effects, fave and except any property, if any, acquired after the date of the faid deed by the defendants by defcent &c. may be difcharged &c. A third plea contained the fame facts together with an averment, that the defendants had not fince the date of the truft deed acquired any property by defcent &c. and concluded in bar of the action generally. Replication that the causes of action in the declaration mentioned feverally accrued to the plaintiffs within this kingdom of England: to which there was a general demurrer and joinder.

Giles in fupport of the demurrer. The order of difcharge obtained by the defendants under the law of the State of Maryland is analogous

1800.

analogous and equivalent to the certificate of a bankrupt here; and having been iffued by a competent jurifdiction in the cafe of fubjects of that State refident there at the time, though it has not the SMITH binding force of a law in this country, yet the courts here will take BUCHANAN cognizance of and give it effect by adoption and the curtesy of nations. Our courts recognize the laws of a foreign ftate in many inftances. The lex loci governs the construction of contracts (a): and the diftribution of inteftate's effects depends on his domicile [9] at the time of his death, though he had property in other countries. Even in the inftance in question of bankruptcy it is in every day's practice that actions are fuftained by affignees and trustees under foreign commiffions of bankrupt against debtors of the bankrupts refiding here; which fhews that the law recognizes the alteration of the property. But it would be inconfiftent and unjust to give effect to fo much of the law as divefts the property out of the bankrupt, and deny him the benefit of the condition on which it was fo divefted, namely, indemnity against antecedent claims. If it be true that our courts will give credence to the judicial acts of a foreign state in matters over which they had a competent jurifdiction by the laws of that ftate, it follows that neither the locality of the contract nor the country of the contracting parties can vary the cafe. It is clear that this order would have been a discharge of the defendants if the plaintiffs had inftituted their fuit in America; and it would have been no answer that the contract was made in England, or that the plaintiffs were fubjects of England and not bound by the law of Maryland in regard to bankrupts. It is alfo clear that after the proceedings which took place in America it would have been an answer to a fuit inftituted here by the bankrupts against a debtor that their property was divested by such proceedings. Then in juftice they are entitled to avail themselves of the fame law for their protection against the suit of a creditor: more especially as the order of discharge was grounded on a good confideration, namely, the furrender by the defendants of the whole of their property for the use of their creditors. It is true that it was holden in Folliott v. Ogden (b) that a man's having been deprived of all his property by an act of confifcation of a foreign ftate, which at the fame time provided a fund for the payment of his [ 10 ] debts there, was no answer at law to a suit by a creditor here. that went on the ground that no nation will take cognizance of the laws of forfeiture of another. And in Wright v. Nutt (c) those circumftances were holden to be fufficient grounds for a court of equity to interpofe by injunction against the fuit of the creditor. In the former cafe feveral cafes (d) in Chancery were cited and approved to fhew that our courts recognized the bankrupt laws of a foreign ftate, fo as to veft debts due in England to a bankrupt in his curators or affignees in the foreign country. The cafe however of Ballantine v. Golding (e) comes nearest to the prefent, where a certificate obtained under a commiffion of bankrupt in

But

(a) Vide Burrows v. Jemino, 2 Stra. 733. (b) H. Blac. 123. (c) 1 H. Blac.136. (a) Ib. 131. in notis, viz. Solomons. Rofs, 1764. before Bathurst J.; Follet v. Depon thien 1769 before Lord Camden: and Neal v. Cottingham in Ireland 1764. (e) M. 24 Geo. 3. B. R. Cooke's Bank. L. 347. 1st edit.

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Ireland

1800.

SMITH against BUCHANAN

Ireland was holden a bar to an action here against the bankrupt for a debt arifing prior to the bankruptcy. It is true that the debt there was contracted in Ireland; but Lord Mansfield recognized it as a general principle, that what is a difcharge by the law of one country will operate as a discharge in another. And he faid that he remembered a cafe in Chancery of a ceffio bonorum in Holland, which is a discharge there, having been allowed the fame effect here.

R. Smith contrà was stopped by the Court.

Lord KENYON, C. J. It is impoffible to say that a contract made in [11] one country is to be governed by the laws of another. It might as well be contended that if the State of Maryland had enacted that no debts due from its own fubjects to the fubjects of England fhould be paid, the plaintiff would have been bound by it. This is the cafe of a contract lawfully made by a fubject in this country, which he reforts to a court of justice to enforce; and the only answer given is that a law has been made in a foreign country to difcharge thefe defendants from their debts on condition of their having relinquished all their property to their creditors. But how is that an anfwer to a fubject of this country fuing on a lawful contract made here? how can it be pretended that he is bound by a condition to which he has given no affent either exprefs or implied? It is true that we fo far give effect to foreign laws of bankruptcy as that affignees of bankrupts deriving titles under foreign ordinances are permitted to fue here for debts due to the bankrupts' eftates: but that is, because the right to personal property must be governed by the laws - of that country where the owner is domiciled. That was recognized in the cafe of Hunter v. Potts (a). The Court there confidered the affignment of the bankrupt's effects in another country, although in fact made in invitum, as equivalent here to a voluntary conveyance by him (b). The cafe of Ballantine v. Golding is very diftinguishable from the prefent; for there the debt was contracted in Ireland where the commiffion iffued. But in the fame page of the book (c) from whence that was quoted is to be found an opinion of Lord Talbot's directly contrary to the conclufion we are 12 ] defired to draw in this cafe; for there he held that though the commiffion of bankrupt iffued here attached on the bankrupt's effects in the plantations, yet his certificate would not protect him from being fued there for a debt arifing therein. The fame rule then must prevail here.

[

LAWRENCE J. If the defendants had made a voluntary affignment of all their property to the ufe of their creditors, it is not pretended that that would have been a bar to the fuit of the plaintiffs; and yet the title of the affignee would have been as valid here as under the foreign commiffion; which thews that the validity of the title under fuch an affignment cannot make any difference in the prefent argument. Then it refts folely on the queftion, Whether the law of Maryland can take away the right of a fubject of this country to fue upon a contract made here, and (a) 4 Term Rep. 182. 192. (b) Cook. Bank. L. 347. c tes Bearwes Lex Merc. 499. (c) See the cafe of Waring v. Knight,eSittings at Guildhall after Hil. T. 5 Geo. 3. cor. Lord Mansfield, where the fame opinion was entertained. ib. addenda to first edit.

which is binding by our laws? This cannot be pretended: and 1800. therefore the plaintiffs are entitled to judgment. GROSE and LE BLANC, Juftices, concurring,

SMITH

BUCHANAN

Judgment for the plaintiffs (a). against (4) În Pedder v. M'Master, 8 T. Rep. 609. the Court refused to discharge a defendant out of cuftody who was arrested at the fuit of a creditor refident here, on an allegation that the debt was contracted at Hamburgh and that the defendant had bec me a bankrupt and ob. tained his certificate there, and that the plaintiff might have proved his debt under the commithon; for the Court faid that as the plaintiff was not refident in Hamburgh at the time of the bankruptcy, they would not decide the question in a fummary way, but put the defendant to plead his bankruptcy and discharge. The defendant accordingly filed fuch a plea, which the Court held to be informally pleaded; and the matter never came on again.

The KING against The Inhabitants of BILTON with [13] HARROWGATE.

Wednesday
Nov. 12th.

The exami

ON N an appeal to the quarter feffions for the West Riding of Yorkshire against an order of two Juftices, removing Grace nation of a Barber the wife of Henry Barber a private foldier in the fifth foldier battalion of Royal Artillery together with Ann and Henry their fettlem children, from the township of Leeds to the township of Bilton with which is Harrowgate, the feffions confirmed the order, subject to the opinion made eviof this Court on the following cafe.

fettlement,

dence by the

Musiny

On the hearing of the appeal, Mr. John Atkinson the attorney for Act, muft the refpondents produced a written paper, of which the following be authenti

is a copy:

cated before it can be

and does not

prove itself

paper appear

"Durham, to wit, The examination of Henry Barber a private received in foldier in the 5th battallion of Royal Artillery, taken and made evidence, before us two of his majefty's juftices of the peace for the faid county, the 5th of March 1800; who on his oath faith that fome primâ facie, time in the beginning of the year 1777 he bound himfelf by in- though the denture to Richard Smith, in the township of High Harrowgate, in to be in the the parish of Knaresborough in the county of York, to ferve him as a form prefhoe-maker for the term of seven years. That he ferved the whole fcribed by of fuch term, and flept all the time in his master's house in the township of High Harrowgate. And faith that he hath never fince gained any other fettlement. Taken and fworn the day and year aforefaid, before us

Richard Wallis,

Robert Green.

The mark of
X

Henry Barber."

the ftatute.

Which paper writing fo produced by the faid John Atkinson he [ 14 ] faid that he had received from Mufgrave the overfeer of the poor of Leeas; but the faid Mufgrave was not produced as a witness, nor was any evidence whatfoever offered either to prove that the faid Richard Wallis and Robert Green were magiftrates for the faid county of Durham; or that the fignatures fubfcribed to the said paper writing were the fignatures of the faid magiftrates, other than what appears upon the faid paper. The counsel for the appellants objected to the Court receiving this evidence, which, objection was over-ruled fubject to the opinion of this Court. Wood and Heywood, in fupport of the order of feffions contended that the written examination produced was primâ facie evidence

B 4

of

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