Wright v Simpson
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1802 |
| Date | 06 March 1802 |
| Court | High Court of Chancery |
English Reports Citation: 31 E.R. 1272
HIGH COURT OF CHANCERY
See Liverpool Marine Credit Company v. Hunter, 1867, L. R. 4 Eq. 68.
weight v. simpson. March 4-lh, 5th, and Glh, 1802. [See Liverpool Marine Credit Company v. Hunter, 1867, L. Jti. 4 Rq. 68. | The property of an American loyalist having been confiscated during the American war, subject to the claims of such of his creditors as wore friendly to American independence, to be made within, a limited time, and in. fact according to the evidence farther restrained to the inhabitants of the particular State, a bill to have bonds delivered up, or to compel the creditor to resort in the first instance to the fund arising from the confiscation, was dismissed ; on the ground, that it did. not appear, that the creditor had the clear means of making his demand effectual against that fund : the Lord Chancellor also expressing an. opinion, in favour of the right to sue personally oven, in that case, against the authority of Wright v. Nutt (3 Bro. C. 0. 326 ; 1 Hen. Black. 136). The object of this bill was the same as in the cause of Wright v. Nutt (3 Bro. C. C. 326 ; 1 .77. .Black. 13G), to compel creditors of the late Sir James Wright, who was Governor of the Province of Georgia in North America at the commencement of the American War, to deliver up their securities ; or at least in the first instance to resort to the American Government for satisfaction oxit of the fund arising from his confiscated property. The particular circumstances attending this debt wore these. Sir James Wright executed two bonds, dated the 21st of September 17(58, and the 8th of March 1.769, each for 5000 Carolina currency, borrowed, from the e VES. JtfN. 715. WRIGHT 1). SIMPSON 1273 obligee Benjamin Smith of Charlestown. In August 1770 Smith died, leaving his brother Thomas Smith and John Motte and others his executors. The Defendant John Simpson, of London, who was his limited administrator with the will annexed under a power of attorney from Motte, the surviving executor, as to sums due to him, brought an action in Trinity Term. 1791. [715] Upon the disturbances breaking out in America, Sir James Wright having fled, in March 1776 an Act of Assembly passed in the State of Georgia ; enacting, that he and several other persons should be attainted, and adjudged guilty of high, treason, and should be liable to severe penalties ; and all their estates and property, real and personal, were thereby confiscated, and declared to be in the actual possession of the State ; and a Board of Commissioners was appointed. ; who were to sell all the real and personal estates of the persons named in the Act ; and the monies arising by such, sales were to be paid into the Treasury of the State ; and all persons having any demand upon the forfeited estates wore to lay their claims before the Board ; and after liquidating all such claims on the forfeited estates the Board was to empower the Sheriff to sell the estates both, real and. personal by auction for the money of that State only, and to the inhabitants, being actually citizens of and resident within the same ; and the persons having any claims or demands on the estates of the attainted persons were to make the same before the expiration of sixty days after the passing of that Act, or to lose their claims. In 1778 the King's troops having taken possession of the Province of Georgia, Sir James Wright returned, and resumed his government : but upon the evacuation of the Province by the King's troops, he and the other persons, who had adhered to the British interest, were again compelled to .fly ; and by an Act passed by the House of Assembly on the 4th of May 1781, after the declaration of independence, reciting the former Act, it was enacted, that Sir James Wright and many other persons should be, and were thereby banished from that State for ever ; and, it they returned, should be guilty of felony without benefit of clergy ; and that all the estates both, real and personal of all the said persons, with all debts, dues and demands, whatsoever due to them, should be confiscated to the use and benefit of that State ; and the monies to arise from the sales, which should take place by virtue of that Act, should be applied to such uses as that Legislature should direct ; and that all debts, dues and demands, due to merchants or others residing in Great Britain, wore thereby sequestered ; and the Commissioners appointed by the said Act were thereby empowered to recover, receive, and deposit, the same in the Treasury of the State in the same .manner [716] as debts confiscated, there to remain for the use of the State ; and reciting, that there were several just claims and demands, which might be made by the good and faithful citizens of that State and others of the United. States of America against the estates confiscated by that Act, it was enacted, that any persons well affected to the independence of the United States, having debts owing them from the persons named in that Act, or, who had any just claim in law or equity against any of such confiscated estates, should bring his claim or enter his action within the space of twelve months from the passing of that Act ; and in default thereof every such, person should be for ever debarred from deriving any benefit from, the same. The Act then pointed out the mode of proceeding for such creditors ; either by claim before the Commissioners, or by action at law ; in which case the sum recovered was to be paid by a certificate, to be issued by the Governor or Commander in Chief ; which certificates were to be taken in payment for any purchase at the sales of the confiscated, estates. By other acts of the State of Georgia and of Congress Sir James Wright was rendered incapable of suing any in Georgia or any other of the United. States. The bill, which was filed in 1791 by the executors of Sir James Wright, stated, that upon his first flight from the province of Georgia he left there all his property to the amount of 90,000 ; and all his plantations and property were finally seised, and sold ; that Motte and the other executors were well affected to the Americans and therefore they have, or might have, obtained payment; that Sir James Wright's loss was under the commission for inquiring into the losses of loyalists ascertained at the sum of 30,000 : but the Commissioners took into their consideration the amount of the debts duo to persons friendly to America ; for the payment of whoso debts provision, was made by the American Government out of the confiscated 1274 WRIGHT V. SIMPSON 6 VE3. JUH. 717. property ; and that applications were made by Sir James Wright arid by his executors to Motte and the other executors to resort to the confiscated property in America under the Acts of Assembly. [717] The bill prayed, that the bonds may be delivered up ; or, if the Plaintiffs are liable in Equity, that the Defendants may in the first place seek, satisfaction out of the confiscated property ; and that the Plaintiffs may answer only the surplus beyond what might be so satisfied ; and for that purpose that'an account may be taken, of what th.e executors of Smith have or might have received without negligence or default. The answers of Simpson and Motle admitting the A.cts of Assembly, and the confiscation, &c., submitted, that they were not bound to resort to the confiscated property ; stating, that the Defendants believe, Sir James Wright in 1776 and 1778 carried away the whole or great part of his moveable property, particularly negroes and slaves ; and that he wrote to Thomas Smith, promising to pay the debt to his brother's estate. Simpson stated his belief, that Motte and the other executors wore inhabitants of Carolina, and might be friends to the state of Georgia. Motte stated, that he does not believe, Benjamin Smith had at any period the most distant wish for the independence of America ; having been at all tim.es a loyal subject, and having died several years before the war ; but admitted, that he (Motte) was at the time of passing the acts of confiscation a citizen and inhabitant of South Carolina, a friend to the United States, and an assertor of their independence, and inimical to the sovereignty of Great Britain : but with regard to Thomas Smith, the only co-executor then, living, is well convinced, he ardently wished for the tranquillity and happiness of his country; and yielded to all her laws due obedience; yet was no friend to independence ; nor wished for a separation. Ho stated, that no sum was ever claimed, or paid under the acts of confiscation. The Defendant upon the 21st of February 1783, transmitted to the Commissioners of forfeited estates a statement of his demand ; and petitioned th.e House of Representatives in. Georgia to provide for it : but that was wholly disregarded. He believes, the only payment made in satisfaction of any such claims by Georgia was by certificates payable in seven years : which were at a considerable discount in Carolina. He believes, no other provision, was made for them ; and no farther provision can. be made by that State for them ; and insists, that payment by such certificates cannot be considered a satisfaction within the fourth article of the Treaty of [718] Peace. He farther stated, that the bonds were the property of minors. By depositions it appeared, that Charles Pinkney, executor of a creditor of Sir James Wright, made application in September 1783, to the Board of Claims upon the forfeited estates in Georgia ; which was refused, on the ground, that Pinkney had taken part with, the British ; to whose laws they were referred for recovery. (See 3 Bro. G. C. 331.) There was also evidence, that by the laws of Georgia the paper money of the state was a legal tender ; that some creditors recovered out of the confiscated property ; arid that Sir James Wright took, away some property, but the amount was uncertain : General M'lntosh, the...
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