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![handle is hein.slavery/ssactsengr0544 and id is 1 raw text is: 154 SNELL V. PHILLIPS PARE 972.
said coast were deterred and hindered from trading with the said T. Smith for the
benefit, &c. and plaintiffs lost their trade.
Erskine, in his opening for the plaintiffs, distinguished this case from that of
Ashley and Harrison (a)', where Lord Kenyon had held the injury [272] to be too
remote to be the foundation of an action ; that decision, he said, was founded on
principles recognised by the law of England from the earliest antiquity. So long
since as the days of Bracton it was held that to constitute a duress in law it must
not be suspicio cujuslibet vani & meticulosi hominis, sed talis qui possit cadere in
virum constantem ; talis enim debet esse metus, qui in se contineat vita. periculum, aut
corporis cruciatum (a)2. But in this case the plaintiff's loss was not occasioned by
the vain fears of the negroes, or even the fear of a battery being committed on
them, but a fear arising from the danger of life itself.
The plaintiffs called Thomas Smith, who proved the facts stated in the declara-
tion ; and further, that the defendant had declared the natives owed him a debt,
and that he would not suffer any ship to trade with them until that was paid; in
pursuance of which declaration he committed the act complained of by the plaintiffs.
On his cross-examination he admitted that by the custom of that coast no Europeans
can trade until a certain duty has been paid to the king of the country for his licence,
and that no such duty had been paid, or licence obtained by the captain of the
plaintiffs' vessel.
Law, for the defendant, contended that the plaintiffs being engaged in a trade
which by the law of that country was illicit, could not support an action for an
interruption of such illicit commerce, and compared this case to an action brought
[273] for interrupting a plaintiff in his endeavours to smuggle goods into this country,
or alarming the owner of a house which the plaintiff was about to break into. He
also objected that this act of the defendant amounted to a felony, and therefore
could not be made the ground of a civil action, but he did not lay much stress on
this objection.
Lord Kenyon.-This action is brought by the plaintiffs to recover a satisfaction for
a civil injury which they have sustained. The injury complained of is, that by the
improper conduct of the defendant the natives were prevented from trading with the
plaintiffs. The whole of the case is stated on the record, and if the parties desire it,
the opinion of the Court may hereafter be taken whether it will support an action.
I am of opinion it will. This case has been likened to cases which it does not at all
resemble. It has been said that a person engaged in a trade violating the law of
the country cannot support an action against another for hindering him in that
illegal traffick. That I entirely accede to, but it does not apply to this case. This
is a foreign law ; the act of trading is not itself immoral, and a jus positivum is not
binding on foreigners. The king of the country and not the defendant should have
executed that law. Had this been an accidental thing, no action could have been
maintained, but it is proved that the defendant had expressed an intention not to
permit any to trade, until a debt due from the natives to himself was satisfied. If
there was any Court in that country to which he could have applied for [274] justice
he might have done so, but he had no right to take the law into his own hands.
The plaintiffs had a verdict, and the parties agreed to refer the damages to
arbitration.
Note.-In the beginning of the cause the plaintiffs' counsel proposed asking the
witnesses whether some of the negroes did not assign their fear of the defendant as
a reason for not trading with the plaintiffs, but Lord Kenyon said that no declaration
of the negroes could be received in evidence (a)3.
[275] AFTER HILARY TERM, 34 GEORGE III. 1794.
Friday, February 14th. At Guildhall.
SNELL V. PHILLIPS ONE, &C.
(If a bill filed against an attorney in vacation be entitled of the preceding Term, and
the defendant plead the statute of Limitations, he may shew when it was in
fact filed.)
(a)' Ante, p. 256. (a)2 Brac. 1. 2, c. 5.
(a)3 Vide Carrington v. Taylor, 11 East, 571.](ViewImageLocal?handle=hein.slavery/ssactsengr0544&div=1&collection=&method=preview&ext=.png&size=3)