Ware v. Hylton

• Decision Date: 29 February 1796
• Citation: 1 L.Ed. 568,3 Dall. 199,3 U.S. 199
• Parties: Ware, Administrator of Jones, Plaintiff in Error v. Hylton et al.
• Court: U.S. Supreme Court

3 Dall. 199

1 L.Ed. 568

3 U.S. 199

Ware, Administrator of Jones, Plaintiff in Error v. Hylton et al.

Supreme Court of the United States

February Term, 1796

Error from the Circuit Court for the District of Virginia. The action was brought by William Jones, (but as he died, pendente lite, his Administrator was duly substituted as Plaintiff in the cause) surviving partner of Farrel and Jones, subjects of the king of Great Britain, against Daniel Hylton & Co. and Francis Eppes, citizens of Virginia, on a bond, for the penal sum of 2976 11s. 6d. sterling, dated the 7th July, 1774.

The Defendants pleaded, 1st, Payment; and, also, by leave of the court, the following additional pleas in bar of the action.

2nd. That the Plaintiff ought not to have and maintain his action, aforesaid, against them, for three thousand one hundred and eleven and one ninth dollars, equal to nine hundred and thirty three pounds fourteen shillings, part of the debt in the declaration mentioned, because they say, that, on the fourth day of July, in the year one thousand seven hundred and seventy six, they, the said Defendants, became citizens of the state of Virginia, and have ever since remained citizens thereof, and residents therein; and, that the Plaintiff, on the said fourth day of July, in the year 1776, and the said Joseph Farrel were, and from the time of their nativity ever had been, and always since have been, and the Plaintiff still is a British subject, owing, yielding and paying allegiance to the King of Great Britain; which said King of Great Britain, and all his subjects, as well the Plaintiff as others, were, on the said fourth day of July, in the year 1776, and so continued until the third of September, in the year 1783, enemies of, and at open war with, the state of Virginia, and the United States of America: and, that being so enemies, and at open war as aforesaid, the legislature of the state of Virginia did, at their session begun and held in the city of Williamsburgh, on Monday the twentieth day of October, in the year 1777, pass an act, entitled 'an act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties, ' whereby it was enacted, 'that it may and shall be lawful for any citizen of this Commonwealth, owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same, in the name of the creditor, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, and shall deliver such certificate to the Governor and council, whose receipt shall discharge him from so much of the said debt.' And the Defendants say, that the said Daniel L. Hylton and Co. did, on the 26th day of April, in the year 1780, in the county of Henrico, and in the state of Virginia, while the said recited act continued in full force, in pursuance thereof, pay into the loan office of this Commonwealth, on account of the debt in the declaration mentioned, the sum of 3111-1-9 dollars, equal to 933:14, and did take out a certificate for the same, in the name of Farell and Jones, in the declaration mentioned, as creditors, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, which certificate they, the Defendants, then delivered to the Governor and Council, who gave a receipt therefor, in conformity to the directions of the said act, in the words and figures following, to wit: 'Received into the Councils' office, a certificate bearing date the twenty sixth day of April, 1780, under the hand of the treasurer, that Daniel L. Hylton and Co. have paid to him thirty one hundred eleven and one ninth dollars, to be applied to the credit of their accounts with Farrell and Jones, British subjects. Given under my hand, at Richmond, this 30th May, 1780.'

T. JEFFERSON.

Whereby the Defendants, by virtue of the said act of Assembly, are discharged from so much of the debt in the declaration mentioned, as the said receipt specifies and amounts to, and this they are ready to verify. Wherefore, they pray the judgment of the court, whether the said Plaintiff ought to have or maintain his action, aforesaid, against them for the 933:14, part of the debt in the declaration mentioned.

3rd. That the Plaintiff ought not to have or maintain his action, aforesaid, against them, because they say that, on the 4th day of July, in the year 1776, the said Defendants became citizens of the state of Virginia, and have ever since remained citizens thereof, and residents therein, and that the said Plaintiff, and the said Joseph Farrell, on the said fourth day of July, in the year 1776, and from the time of their nativity, had ever been, and always since have been, British subjects,and the Plaintiff still is a British subject, yielding and paying allegiance to the King of Great Britain, which said King of Great Britain, and all his subjects, as well the Plaintiff and the said Joseph Farell, as others, were on the said 4th day of July, 1776, and so continued till the 3rd day of September, in the year 1783, enemies of, and at open war with, the state of Virginia, and the United States of America; and that, being so enemies and at open war, as aforesaid, the legislature of the state of Virginia did, at their session commenced and held in the city of Williamsburg, on the third day of May, in the year 1779, pass an act entitled 'An act concerning escheats and forfeitures from British subjects,' whereby it was, among other things enacted, 'That all the property, real and personal, within this Commonwealth, belonging at this time to any British subject, or which did belong to any British subject at the time when such escheat or forfeiture may have taken place, shall be deemed to be vested in the Commonwealth; the lands, slaves, and other real estate, by way of escheat, and the personal estate by forfeiture.' And the legislature of the state of Virginia did, in their session begun and held in the town of Richmond, on Monday the sixth day of May, in the year 1782, pass an act, entitled 'An act to repeal so much of a former act, as suspends the issuing of executions upon certain judgments until December, 1783,' whereby it is enacted, that no demand whatsoever, originally due to a subject of Great Britain, shall be recoverable in any court in this commonwealth, although the same may be transferred to a citizen of this state, or to any other person capable of maintaining such an action, unless the assignment hath been, or may be, made for a valuable consideration, bona fide, paid before the first day May 1777, which said acts are unrepealed, and still in force. And the Defendants, in fact, say, that the debt in the declaration mentioned, was personal property, within this commonwealth, belonging to a British subject, at the time of the passing of the said act, entitled 'An act concerning escheats and forfeitures from British subjects;' and the Defendants, in fact, also say, that the debt in the declaration mentioned, is a demand originally due to a subject of the King of Great Britain, not transferred to any person whatsoever. And these things they are ready to verify: Wherefore they pray the judgment of the court, whether the said Plaintiff ought to have, or maintain his action aforesaid, against them.

4th. That the Plaintiff, his action aforesaid, against them, ought not to have or maintain, because they say that a definitive treaty of peace between the United States of America and his Britannic Majesty, was done at Paris, on the third day of September, in the year 1783, and that, by a part of the seventharticle of the said treaty, it was expressly agreed, on the part of his Britannic Majesty, with the United States, among other things, 'That his said Britannic Majesty should, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons and fleets, from the said United States, and from every port, place and harbour within the same, ' which may more fully appear, reference being had to the said treaty: And the said Defendants aver, that on the said 3rd day of September, 1783, and from their birth to this day, they have been citizens of these United States, and of the State of Virginia, and that the Plaintiff has ever been a British subject, and that the Plaintiff ought not to maintain an action, because his Britannic Majesty hath wilfully broken and violated the said treaty in this, that his Britannic Majesty hath, from the day of the said treaty and ever since, continued to carry off the negroes in his possession, the property of the American inhabitants of the United States, and hath, and still doth refuse to deliver them, or permit the owners of the said negroes to take them. And the Defendants aver, that his Britannic Majesty hath refused, and still doth refuse to withdraw his armies and garrisons from every port and harbour within the United States, which his said Britannic Majesty was bound to do by the said treaty: and the Defendants aver, that from the day of the treaty his Britannic Majesty, by force and violence, and with his army, retains possession of the forts Detroit and Niagara, and a large territory adjoining the said forts, and within the bounds and limits of the United States of America, and the Defendants say, that in further violation of the said treaty of peace, concluded as aforesaid, certain nations, or tribes of Indians, known by the names of Shawanese, Tawas, Twightces, Powtawatemies, Quiapoees, Wiandots, Mingoes, Piankaskaws and Naiadonepes, and others, being at open, public and known wars with the inhabitants of the United States, and living within the limits thereof, and for the purpose of aiding the said Indians in such war and...