Anonymous, 3 N.C. 103, 2 Hayw. 103 (1799)

May 1799 · North Carolina Superior Court

3 N.C. 103, 2 Hayw. 103

Anonymous.

•y-OORE, Judge. This is an action brought by a British ere-ditor, under the treaty of peace, for a debt contracted in this state before the war, which debt was effectually confiscated by a sovereign power, having a right to make the confiscation_-A treaty has not the omnipotence attributed to it — that of taking a debt from the state which lawfully belongs to it; or that of re-charging a debcor who has actually paid into the treasury under the existing laws, and has procured a discharge agreeably to them before the treaty.- — Anti I would not now suffer such suitors to recover, but for the consideration that they may recover by suing in the Federal court. As to the interest I am very clear it ought not to be allowed, but from the time the debt was demanded after the treaty ; these .creditors did not return till long after the war, most of them kept the bonds iñ their possession beyond sea, so that the debtor could not pay.

Haywood, Judge.

I am of the same opinion now, I was of at the last term- — that these debts are recoverable by the law of the country, and for the reasons I then gave : as to the interest, I agree ; The debtor is not bound to seek his creditor beyond sea; but then it should be disclosed by plea that the creditor was beyond sea ; and further, that the debtor has always been ready, since the ratification of the treaty to pay, and is now ready 5 and be should pay the money into court in verification of the latter part of the plea : How else are we to know the creditor was beyond sea ? Or how has the creditor an Opportunity of shewing1 where he was and when he returned, unless by replying to the plea of the defendant 1 The omitting to make such plea, and give such opportunity, amounts as in all other cases, to an admission on the part of the defendant that no such fact exists. Interest is to be paid in all cases of bonds, unless where by a general law, or for some general reason it is suspended for a time j as during the time of our war, or unless the defendant by a plea of tender properly pleaded, will shew, that in justice he ought not to pay it.

So it was. adjourned, as also were several other cases in the same predicament.