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![handle is hein.slavery/ssactsengr0165 and id is 1 raw text is: BAKER V. NEWMAN
[123] BAKER against NEWMAN. Tuesday, Feb. 10th, 1789.
The plaintiff has the whole of the term, next to that in which issue is joined,
to try his cause in (a)'.
On the third of February in this term, Lawrence, Serjt., moved for a rule to shew
cause why judgment, as in case of a nonsuit, should not be entered, on an affidavit
stating that issue was joined in Michaelmas term last, and that the plaintiff had not
proceeded to trial. On a subsequent day, Adair, Serjt., shewed for cause an affidavit
on the part of the plaintiff, stating, that issue was in fact joined on the 7th of
December, in Michaelmas vacation, and that a note dated the 25th of January had
been sent to the defendant's attorney, purporting that the plaintiff could not proceed
to trial, on account of the absence of some of his witnesses. On this day the Court
said the application was premature (a)2, as the plaintiff had the whole of the term, next
after that in which issue was joined, to proceed to trial in, and therefore
Discharged the rule with costs.
FOLLIOTT against OGDEN. 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. Attritl, [1893] A. C. 156.]
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)'.
Debt on bond, dated Now York, October 10, 1769, for 40001. of current money of
the province of New York in North America, being 22501. 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,) lst. Richard and Lewis Morris
solverunt postdiem. 2d. Defendant solvit post diem. 3d. 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)' [See Frampton v. Payne, ante, p. 65.]
(a)2 There were other days appointed for sittings in the term, after 3d of February.
Quere, 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 I
(a)' [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 States 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.) 111,
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.]
I H. BL 123.](ViewImageLocal?handle=hein.slavery/ssactsengr0165&div=1&collection=&method=preview&ext=.png&size=3)