THIS was an action of trespass de bonis aspartatis directed by the Lord Chancellor for the purpose of trying a question of bankruptcy. The Defendant pleaded the general issue and two special, pleas, in the first justifying the taking under the statute 13 Eliz. c. 7, and in the second under the statute 1 Jac. 1. c. 15. To both the special pleas the Plaintiff replied De injuria sua pro pria absque tali causâ.

55 Coriolin towpartners B.

The cause was tried before Lord Alvanley Ch. J. at the Guild hall sittings after last Hilary term when a verdict was found for the Plaintiff, with liberty for the Defendant to move the Court to set that verdict aside, if, under the following circumstances they should think the commission of bankruptcy upon which the Defendant relied was valid. The commission issued on the pel tition of the Defendant who was resident in England upon a debt due to himself and his two partners Alexander Reid and James Hector subjects of this country, but resident and carrying on trade at that time at Flushing, a port belonging to the ene mies of this country, mantan baht ha

་

and C. also

"British sub

jects, but resi dent and carrying on trade in an enemy's country, cannot be sup ported."

Best Serjt, now moved for a rule to shew cause why the verdict should not be set aside, and a new trial be had, contending that though it was true that if the debt upon which the petition issued was such as could not be sued for at law it would not be sufficient to support the commission, yet as all the three joint creditors were British subjects, the mere circumstance of two of them being res sident and trading in an enemy's country would not bar their right to recover; for that in the plea of alien enemy it is neces-of sary to aver that the Plaintiff was born out of the King's allegi ance (4), and that he was adhering to the King's enemies, nei ther of which circumstances could have been alleged in this case t that, the right of a natural born subject of the King can neither be forfeited by time or place, but only by his own misbehaviour, 1 Bl. Com. 371, and that as there was no pretence for saying that the two persons who were resident at Flushing had so adhered to the King's enemies as to be guilty of treason, they had not

Birte of 2*1#596 21 75 R

(a)See the opinion of Eyre Ch. J. in the case of Sparrenburgh‹v. Bannetyne, ante, vol. 8. p. 167. from which it seems

1

that it is not necessary to state the birth
of the party in the plea of alien enemy.

And see Bromley v. Hesseltine, 1 Campb. 75. O'Mealey v. Wilson, 1 Campb. 482. Hagedorn v. Řeid, 1 M. & S. 567. Bell v. Reid, 1 M. & S. 726. › Roberts v. Hardy, 3 M. & S. 533. Fayle v. Bourdillon, 3 Taunt. 546. Williams v. Patteson,

7 Taunt. 439.

VOL. III.

I

forfeited

1802

forfeited their right to maintain an action for the debt upon which the commission was founded.

Lord ALVANLEY Ch. J. Most certainly every natural born subject of England has a right to the King's protection so long as he entitles himself to it by his conduct; but if he live in an enemy's country he forfeits that right. Though these persons may not have done that which would amount to treason, yet there is an hostile adherence and a commercial adherence; and I do not wish to hear it argued that a person who lives and carries on trade under the protection and for the benefit of an hostile state, and who is so far a merchant settled in that state that his goods would be liable to confiscation in a court of prize, is yet to be considered as entitled to sue as an English subject in an English court of justice. The question is, whether a man who resides under the allegiance and protection of an hostile state for all commercial purposes, is not to be considered to all civil purposes as much an alien enemy as if he were born there? If we were to hold that he was not, we must contradict all the modern authorities upon this subject. That an Englishman, from whom France derives all the benefit which can be derived from a natural born subject of France, should be entitled to more right than a native Frenchman would be a monstrous proposition. While the Englishman resides in the hostile country, he is a subject of that country, and it has been held that he is entitled to all the privileges of a neutral country while resident in a neutral country (a). I cannot therefore entertain sufficient doubt upon this subject to grant a rule to shew cause.

ROOKE J. I think we ought not to grant a rule to shew cause. It is well known that if an alien enemy be residing here under the King's protection he may sue; but if an Englishman be resident in an hostile country the King cannot enable him to sue. The reason of the disability of the person residing in an enemy's country, is, that the fruits of the action may not be remitted to an hostile country, and so furnish resources against this country. For that purpose the case of an Englishman residing abroad does not differ from any other person. I am of opinion therefore that the petitioning creditor could not have maintained an action in this country for that debt which is the foundation of the commission, and consequently that the commission cannot be supported.

(a) Marryatt v. Wilson, ante, vol. 1. p. 430.

CHAMBRE

CHAMBRE J. The plea of alien enemy is either in bar or abatement of the action. Though I do not controvert what is laid down in general terms in Blackstone's Commentaries, yet I think many distinctions arise out of that general proposition, and I have no idea that the present commission can be supported. Best took nothing by his motion.

1802.

McCONNELL

v.

HECTOR.

THIS was an action of assumpsit brought by the Plaintiff in his character of administrator on a special agreement for the delivery of tallow entered into by the Defendants with the intestate in his lifetime. On the trial of the cause a verdict having been found for the Defendants, a rule nisi was obtained, calling upon the Plaintiff and Robert Moate, Samuel Morgan, and Thomas Pickard, to shew cause why it should not be referred to the Prothonotary to tax the Defendant's costs in the cause, and why the costs so taxed should not be paid to the Defendants by the Plaintiff or by the said R. M., S. M., and T. P. This rule was obtained upon an affidavit stating that at the trial it was admitted that the said R. M., S. M., and T. P., were the persons for whose benefit the action was brought, and that when the contract upon which the action was founded was produced in evidence, it appeared by an indorsement thereon that it had been assigned by the Plaintiff to the said R. M., S. M., and T. P., who succeeded to the intestate's business and premises upon his death, and that it also appeared in evidence that the said contract, with the privity and consent of the said R. M., S. M., and T. P., or one of them (a), had been annulled.

Best Serjt. shewed cause, and insisted that according to the case of Tattersall v. Groote, ante, vol. 2. p. 253. (b), the Plaintiff having sued in his character of administrator on a contract made by the intestate in his lifetime, and which therefore could not be put in suit by the Plaintiff in any other character, could not be called upon to pay costs, and that the other persons upon whom the rule nisi was made in the alternative could not be affected by (a) It also appeared from Lord Alvanley's notes that the plaintiff himself had abandoned the contract. See the next

page.

(b) Cited and confirmed in Cooke v. Lucas, 2 East, 395.

And see Zachariah v. Page, 1 B, & A. 386. Barnard v. Higdon, 3 B. & A. 213.
Shaw v. Mansfield, 7 Price, 709-714.
I 2

any

May 10th.

Plaintiff sued tor upon a contract made with and assigned

as administra

his intestate

1802.

COMBER

v.

any order of the Court, for though they might in fact be the persons really interested in the suit, yet not being in any way before the Court as parties, the Court had no jurisdiction over HARDCASTLE. them for such a purpose. He urged, that if costs were awarded upon the record it would be error, and that the Court therefore would hardly do that by indirect means which they had no direct authority to do, and which might not when done be submitted to the revision of a court of error. He also observed that the privilege of the administrator to be exempt from the payment of costs where necessarily suing in that character was not affected by the circumstance of his suing for the benefit of others, since in Wilton v. Hamilton, ante, vol. 1. p. 445. an administratrix suing on a policy of insurance made in the lifetime of her husband, whose representative she was, had been held not liable to pay costs, though the policy had been effected in her husband's name for the joint benefit of himself and two others, who were living at the time when the action on the policy was commenced, and might have put the policy in suit in their own names.

Shepherd and Vaughan Serjts. contra were stopped by the Court.

Lord ALVANLEY Ch. J. So much has been said in this case respecting the right of the Court to make this order upon the Plaintiff (for upon him only and not upon the other persons who are not parties before the Court the order must be made) that I think it necessary to state the grounds upon which I feel myself bound as a Judge to accede to this application. The Plaintiff (a) is the administrator of a person who in his lifetime entered into a written agreement to accept a certain quantity of tallow at a particular time and price. After his death this contract being found among his papers, it was submitted to the opinion of his friends whether it would be for the benefit of his estate that this contract should be carried into effect; and it being determined that it was better for the estate not to run the risk arising from the speculation, an application was made to the Defendants to release the Plaintiff's from the agreement; which was acceded to by the Defendants, and the agreement put an end to. That fact the jury has found. From that time the agreement was mere waste paper, and who- ever put it in suit did so fraudulently. This paper however was not delivered up to the Defendants, and the price of tallow having

(a) These facts were not so fully stated in the affidavits, but the cause had been tried before his Lordship.

1802.

COMBER

risen, and Moate, Morgan, and Pickard having succeeded to the trade and premises of the intestate by purchase, have this paper assigned to them, the effect of which had been previously annulled. Though it does not appear upon the affidavits, yet it HARDCASTLE. was avowed at the trial that Moute, Morgan, and Pickard in fact brought the action and indemnified the Plaintiff. The question is, Whether under these circumstances we can oblige the Plaintiff to pay the costs of the action? I admit that an executor or administrator, necessarily suing as such, is not made liable to costs by the statute, and that no costs can be awarded against this Plaintiff on record. But we are to decide whether, as this Plaintiff has been guilty of an abuse of the process of the Court, we cannot order him to pay the costs for that contempt? The reason why an executor or administrator is excused from the payment of costs is, because he is not supposed to know the imbecility of his own suit; which reason by no means applies to the present Plaintiff. It has been suggested by my Brother Rooke, that where an executor or administrator introduces costs by his own neglect, as where he suffers himself to be nonprossed, he is liable to the payment of those costs. And certainly it does not follow from the statute not having given costs against executors or administrators, that where executors or administrators lend their names to other persons improperly, the Court has no authority to punish them.

ROOKE J, I am of the same opinion, It is clear upon the statute that where an executor or administrator necessarily sues as such he is not liable to costs. And yet it has been holden that where an executor or administrator is guilty of misbehaviour he shall pay costs. As where he suffers himself to be nonprossed (a); so where he has knowingly brought a wrong action, or otherwise been guilty of a wilful default, he shall pay costs upon a discontinuance (b), or for not proceeding to trial according to notice (c), Then if the Courts have so far got the better of the statute as to make executors and administrators pay costs in these cases, I see no reason why an administrator should not pay them where he brings an action contrary to his own agreement, I am therefore

(a) Lamley v. Nicholls, Co. Ca. Pr. 14. Hawes v. Saunders, 3 Burr. 1384. and Higgs v. Warry, 6 T. R. 654.

(b) Haydon v. Norton, Co. Ca. Pr. 79. Barnes, 169. ed. 3. S. C. Harris v. Jones, 3 Burr. 1451. 1 Bl. 451. S. C. Bennet v. Coke, and 4 Burr, 1927.

(c) Anon. 7 Mod. 98. 118. Elwes v. Mocata, 2 Ld. Ray. 865. 1 Salk. 314. S.C. But where the omission to proceed to trial does not arise from the Plaintiff's own default he shall not pay the costs. Ogle v. Moffat, Barnes, 133. ed. 3.

of