HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0721 and id is 1 raw text is: BOWES V. STRATHMORE (LORD)
that Colony; and cannot take it to be the same as the law of this country. [323] Lord
Cranstown v. Johnston was decided upon circumstances, that have no application
to this case. That was a contrivance by a creditor to get the estate at an under-
value. In this case the question has been decided by a Court of competent juris-
diction. The case of Foster v. Vassall (3 Atk. 587) does not prove, that the Defend-
ant in stating that defence, that the question has been decided by a Court of com-
petent jurisdiction, must state with great precision all the pleadings with particular
averments, that the suit related to the same matter, &c. That was the case of
Lis pendens, used by way of plea in bar of another suit ; and it was necessary to
shew by averment, that the cause related exactly to the same matter.
March 26th. The Lord Chancellor [Erskine]. If I had jurisdiction in this case,
which I have not, I should be disposed to consider this estate merely as a security,
until all the instalments should be paid up ; and that the intention was, not, that
upon a forfeiture of the first instalment the estate should become absolute in the
creditor ; but that he should have possession, and receive the rents and profits in
reduction of the debt. The covenant to keep 350 negroes upon the estate, has an
aspect to that ; being for the benefit of the mortgagor. The construction therefore
of the contract, if it had been necessary to decide upon it, would be, that the mortgage
was not absolute until the expiration of the period for payment of the last instalment,
at which time the right to foreclose would arise according to the law of this country.
But the circumstances of this case preclude me from exercising any [324] jurisdiction.
The suggestion of fraud by the bill is distinctly denied by the answer ; and also is
too general an averment of fraud ; which cannot be averred in such general terms :
but the facts, constituting the fraud, ought to be stated, so that issue can be taken.
I perfectly concur with the case of Lord Cranstown v. Johnston ; which was
decided upon the foundation of fraud : the creditor not being justified in bringing
the estate to sale under those circumstances: a sham sale, without competition,
contrived with a view to get the estate himself at an under-value. The principle,
upon which that decree was made, is, that a transaction of that nature may be over-
hauled for fraud. Upon that subject I will use the words of a great authority,
Lord Chief Justice De Grey; who, when delivering the answer of the Judges to a
question put to them in The Duchess of Kingston's Case, thus expresses himself :
Fraud is an extrinsic, collateral, act ; violating the most solemn proceedings of
Courts of Justice; as Lord Coke says, avoiding all judicial acts, ecclesiastical and
temporal. (The Duchess of Kingston's Case, Harg. State Trials, 602.)
The only question for me to consider upon this motion is, whether I have authority
to set aside a judicial sale, had under the process and judgment of a Court, having
a competent jurisdiction, not only intrinsically, but under the acts of the parties.
I have no such authority. I hope, however, means may be found to deliver this
estate from sale ; if the law of this colony is not peremptory, and essentially different
in that respect from the law of this country. The Lords of the [325] Council may,
perhaps, give some direction to prevent a sale, until an appeal ; or security may be
given. That is for their consideration ; but I am obliged to refuse this injunction.
BOWES v. Lord STRATHIMORE. March 28th, 1806.
After an Order upon a party in the cause for payment of money, the proper course is
an attachment ; and upon the return to that an Order for commitment.
The Plaintiff having obtained an order for taxation of his solicitor's bill of costs
in the usual manner, offering to pay what should be found due, an order was made
for payment of the money ; or, that the Plaintiff should stand committed.
Mr. Thomson, upon affidavit of service of that Order, and, that the Plaintiff,
who is a prisoner in the King's Bench Prison, said, he would not pay, but would go
to the Fleet Prison, moved for a Writ of Habeas Corpus, to bring him up, that he
may be committed to the Fleet Prison.
The Register, Mr. Walker, and Mr. Hollist (Amicus Curice), said, that in the
case of a party the first order should have been for payment of the money ; and
afterwards an attachment upon that ; and upon the return to the attachment, the
order would be made for the Writ of Habeas Corpus.
The Lord Chancellor [Erskine] held that course to be regular.
12 VES. JUN. 323.](ViewImageLocal?handle=hein.slavery/ssactsengr0721&div=1&collection=&method=preview&ext=.png&size=3)