1804. POTTER et al.

versus

BROWN.

T. W. CARR, for the plaintiffs, contended that the bankruptcy here pleaded was not a discharge to the present action, and that the ground of action accrued, and the contract was made with a view to be performed in England. To establish which he made three points; 1st, that the action accrued immediately upon the refusal to accept, which was in London; 2dly, that the right of action followed the person of the creditor; 3dly, that this being a transferrable chose en action, drawn on a person in England, it transferred the whole cause of action hither, and became like an original contract to pay here, so that the whole cause of action arose out of America; and to shew that in such case the bankrupt laws of America would be no discharge, he cited Ballantine v. Goulding, which he distinguished from this case, upon the above principles, and also Smith v. Buchanan, † and Folliot v. Ogden. But the COURT appeared clearly against him.

Lord ELLENBOROUGH, C. J. "The declaration contains no averment that the defendant had notice thereof (of the protest) which is an essential averment. Can you attack the plea to shew that they have not brought themselves within the laws of America ?”

CARR. "The plea states that at the time of the drawing of the bill, the parties resided in America, but not at the time of the non-acceptance."

Lord ELLENBOROUGH, C. J." But it will be intended that they contracted, at the place where they are first stated to reside, unless it be shewn that they removed. The whole transaction arises in America solely. It is a contract made in America, and the non-performance is in America; the bill was given in America, in consideration of bills of exchange by the plaintiffs, and they not being accepted and paid, the original consideration is recurred to,

• Co. Bank. Law, 515. † 1 East. 6. 1 H. Blac. 123.

and it is an American transaction throughout. Lord Mansfield lays it down as a general principle of law, that what is a discharge by the law of one country, is a discharge by another, as to all contracts made in the former country. If so, there is an end of the whole argument; for this being a good discharge in America, it is so here. We recognize the laws of other countries, as far as respects transactions between their subjects as to all conveyances of property.

CARR then cited Robinson v. Bland, in which case the party had drawn a bill of exchange in France, for a gaming consideration, on himself here in London; and it was held, that where the contract is made with a view to be carried into execution in a foreign country, it should be governed by the law of that country; but if it is to be carried into execution here, it must be governed by our laws.

LAWRENCE, J. "Then the question comes to this point-whether or not the contract declared upon, is a contract to be performed in America. Now is it not a contract that if the drawee does not accept the bill in London, the drawer will pay the money in Amercia?"

JUDGMENT FOR THE DEFENDANT.

1804.

POTTER

et al.

versus

BROWN.

ANONYMOUS.-May 5th.

Semble. If a trial be over in the afternoon, and a witness stay in the town till eleven o'clock the next morning, his home being distant only twelve miles, his subpang is no protection to him from arrest in the

town.

ON motion to stay the proceedings against defendant, ANONYMOUS. he having been arrested while returning home, under

• 2 Burr. 1077.

1804

the protection of a subpœna; it appeared that he lived ANONYMOUS. only twelve miles from the place where the trial was had; that it was over in the afternoon; that on the next morning he continued in the town, and was preparing to go home; and at twelve o'clock he was arrested. On the 19th of April last, the attorney for the defendant wrote a letter, offering to give a cognovit.

Lord ELLEN BOROUGH, C. J. "Taking it at cleven o'clock, which is between ten and twelve, as there is some doubt as to the time of the arrest, I think that is high time for the defendant to go home. At least, the letter is an acknowledgment, that when it was written, the parties did not think there was sufficient ground for an application to the court.

N. G. CLARKE, for the plaintiff; HOVELL, for the defendant.

EASTLAND

versus

FORRESTER.

EASTLAND versus FORRESTER.-May 11.

In a case on the annuity act, the court enlarged a rule for the parties in the mean time to bring an action on the bond, and the defendant to take issue on the payment of the consideration in the very words of the act, in order to raise the question whether it is necessary to state in the memorial the actual hand by which the money is paid.

ON motion in an annuity case to shew cause why the judgment entered upon a warrant of attorney should not be delivered up to be cancelled, the objection was, that the payment of the consideration was stated in the memorial to be made by the plaintiff, whereas the defendant swore that" the said sum of 3001." the consideration of an annuity of 501. per annum, "was not paid by the said plaintiff, nor was she present at the time;" and "that the money was actually paid by Thomas Rountrell for her; and that all the parties were still living."

4.

1804.

versus

FORKESTER.

WOOD, for the plaintiffs, shewed cause, and stated the affidavit of Rountrell and one Hardy, who were agents EASTLAND in the transaction, but could not say whether the plaintiff was present or not. The annuity was granted in 1793. The money was paid regularly till July 1796, when there being some arrears due, affi. ffa. was issued, and execution had. He therefore contended that the defendant ought to have made his application to set aside the annuity sooner, and cited ex parte Maxwell,* in which Lord Kenyon says that there ought to be some rule laid down for such applications, analogous to the statute of limitations.

ABBOTT, contrà, contended that the cases in which it has been held that the party has applied too late, were only where the grantee of the annuity was dead, or the persons who managed the transaction were dead. But that the question here could only be, whether Mrs. Eastland, the grantee of the annuity, was present at the time of the granting of the annuity and executing the deeds, and under the present circumstances the length of time could be no ground for refusing the application. He added that Mrs. Eastland, the grantee, had made no affidavit.

GROSE, J.. "The presumption is that after so many years acquiescence the money was paid as stated."

Lord ELLENBOROUGH, C. J.-to Abbott-" Have you any objection to take an issue, on the fact of payment, in the words of the act of parliament (not as paid by advancement, for or on behalf of Mrs. Eastland, but in the very words of the act) and then you may have the question' properly raised as to the necessity of stating in the memorial the actual hand by whom the money is paid; in the mean time, this rule to be enlarged for the party to bring an action on the bond? This being assented to,

THE RULE WAS ENLARGED ACCORDINGLY.

ANONYMOUS.-May 12.

On motions to set aside awards where there is no cause pending, it is not necessary that the affidavits, en shewing cause, should be entitled with the christian and sur-names of the parties, although the rule is generally drawn up with the names of the parties, as if there was a cause pending.

ON

a rule to shew cause why an award should not be set aside, objection was taken that the affidavits were wrongly entitled, being only in the surnames of the parties without their christian names,

THE COURT held, that although in an action it would be necessary to state the christian names, yet, where there is no cause actually pending, it is not necessary; notwithstanding it is usual to make out the rule in the names of the parties to the bonds of arbitration, as if they were parties in a cause.*

REX

versus

DE MANNE

VILLE.

REX versus DE MANNEVILLE.-May 12.

Habeas Corpus. Application to take a child born in this country out of the custody of the father, on the ground that he was an alien, and liable to be sent out of the country under the provisions of the alien act. The court refused the application, on the ground that there was no evidence that the child was in danger of being ill treated, or that the father intended to take the child out of the country, and that he had primâ facie the legal right to the custody of the child.

THIS was an habeas corpus to bring up the body of the infant child of the defendant, in order to be delivered over to the mother, the wife of the defendant, living apart from him, at whose application the writ was obtained. The child was only eight months old, and when the writ

It seems they need not be entitled.