Ward's Case, 1 N.C. 5, 1 Mart. 5 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 5, 1 Mart. 5

Ward’s case.

Pasch. 1 Car.

IN debt, the plaintiff declared on a bill bearing date in paroch. Santæ Mariæ de arcubus in London; and upon oyer of the deed, it bore date at Hamburgh, and the writ was in the Detinet tantum.

Bridgman, Serj. objected that although it is usual to lay such action a certain place, as in Kent, London, &c. yet as this case is, it cannot be, because when any place is named, it shall be understood prima facie that it is a town and not a particular place, as a house, as appears by 3 E. 3. 68.and Breve 638. Then he said that Hamburgh shall be intended to be a town, which cannot bein London. Therefore the declaration is faulty for not having said Hamburgh in London.

But it was contra by Barnes.

I confess that a place named shall be understood to be a vill or town, as the Serjeant has said, but nevertheless the date of the deed, shall be understood to be of a particular place or house. And if there be an obligation bearing date at Antwerp or Callis-Sands, it shall be understood to be in some of the taverns in London that are so called, and not of places beyond the seas. 21 E. 4. 26. and in the case of Higin vs. Flower, 2 Jac. B. R. the date of an obligation was at Athlone in Ireland, therefore the action could not lie here, as England cannot be in Ireland, but if it had been at *Athlone simply, then it was agreed that it might have been sued here, because Athlone may be alledged to be in England. And in this case, if the date had been at Hamburgh in partibus transmarinis, it could not have been sued here as it could not be in London: but being at Hamburgh simply, it might be alledged to be in England.

Whitlock, J.

agreed to this. Brook Faits 9. 10 Jac. An obligation, given at Elvin, was sued upon in this court, and the action laid in Kent, although Elvin be in Poland.

Doderidge, J.

said, I agree also that if a deed bears date in Little Britain or in Scotland, it shall be understood to be in those places, although it should be said in London. We, the Judges, ought to maintain the jurisdiction of our court, if the case does not appear plainly and evidently to be without it, and therefore we ought to intend that Hamburgh is in London to maintain the action. For aliter it would be out of our jurisdiction. And if in truth we knew the date to be at Hamburgh, beyond the seas, we ought not to take notice of it as Judges. It has also been moved on the other part, that this action ought to be in the debet et detinet, and not in detinet only: but I conceive, it is well brought in the detinet only, being brought not for a certain sum of money, but for 6.li. Hamburgh money, which are in English coin 40s. therefore, in this case, the value of Hamburgh money, not being known here by common intendment, it ought to be demanded in the detinet only. As when one demands bullion, plate, or jewels (the value of which is not apparent) the action ought to be in the detinet only, and not in the debet et detinet.

Jones, J. concurred in both points.

Crew, C. J.

concurred on the last point, but doubted with respect to the first. He said that the demand being for Hamburgh money, it shall be intended that Hamburgh beyond the seas, is the place where the obligation was given. But as the other three Judges thought differently, he consented that judgment be entered for the plaintiff, according to their opinion, unless something further be said to the contrary, on the Monday following. Postea, 77 and 84. Jones 69. Bendl. 149. Palm, 407. 22 H. 6 57. 8 H. 6. 14. Highman vs. Flower. 2 Cr. 76.