That the said Alexander Spiers, John Bowman, & Co. were, at that time, British subjects, merchants, residents in Glasgow, in the kingdom of Great Britain, and have never been resident within the limits of the then colony, now state of Virginia, and that James Hopkirk, the surviving partner, now is, and always has been from the time of his birth, a British subject, resident in the kingdom of Great Britain, and was never within the limits of the commonwealth of Virginia. That the company had a factor or factors resident in the commonwealth of Virginia on the 21st of August, 1775, when the note was given, and from that time to the commencement of the American war, viz. on or about the first of September, 1776. That the company had neither agent or factor in this country, authorised to collect their debts, from the commencement of the war in 1776, until the year 1784. That on or about the 10th of September, 1784, and ever since, an agent has resided in this commonwealth, authorised by power of attorney, generally to collect all debts due to the company in this commonwealth. That by the fourth article of the definitive treaty of peace, between the United States and his Britannic majesty, made on the third of September, 1782, "it is agreed, that creditors on either side, shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." And by the second article of the convention between his Britannic Majesty and the United States, made on the 8th of January, 1802, "the said fourth article," (of the treaty of peace) "so far as respects its future operation, is recognised, confirmed, and declared to be binding and obligatory," "and the same shall be accordingly observed with punctuality and good faith, and so as that the said creditors shall hereafter meet with no lawful impediment to the recovery of the full value in sterling money, of their bona fide debts." That by the acts of the Virginia assembly, passed on the and the practice of the courts, British creditors, their agents, and factors, were prevented from suing with effect for their debts. in the courts of this commonwealth, from the HOPKIRK V. BELL HOPKIRK V BELL. day of April, 1774, until the year 1790-and that this suitwas commenced on the 4th of Jan. 1803. By the fourth section of the Virginia act of limitations, p. p. 107, actions upon the case on accounts are to be brought within five years after cause of action. By the twelfth section there is a saving of persons beyond seas; but by the thirteenth section it is provided, "that all suits hereafter brought in the name or names of any person or persons residing beyond the seas, or out of this country, for the recovery of any debt due for goods actually sold and delivered here, by his or their factor or factors, shall be commenced and prosecuted within the time appointed and limited by this act for bringing the like suits, and not after, notwithstanding the saving herein before contained, to persons bevond the seas at the times their causes of action accrued." C. Lee, for the plaintiff. The question is, whether the act of limitations, which had once begun to run, was an impediment removed by the treaty? This raises another question; did the treaty of peace repeal the laws of the several states which operated as legal impediments to the recovery of British debts, or was an act of each state necessary for that purpose? It may be conceded without injury to this case, that the act of limitations began to run against this claim before the war-and that the war did not suspend its operation, but that it continued to run in the same manner as against a person who is in the country at the time the cause of action accrues, and who goes beyond seas before the limitation is complete-or against a woman who was sole when the cause of action accrued, and who married within the five years. The plea of limitations can defeat the remedy only. The debt remains. But if the bar had been complete, yet it was forever removed by the treaty. This was a bona fide debt, contracted before the treaty --and the act of limitations is a legal impediment which it is endeavoured to oppose to its recovery. But the ་ treaty says that the creditor shall meet with no legal impediment; and the constitution of the United States declares the treaty to be the supreme law of the land.— The act of limitations, therefore, must yield to the treaty. In the case of Ware v. Hylton, 3 Dal. 199, this court, upon very solemn argument decided, that the treaty not only repealed all the state laws which operated as imp diments, but nullified all acts done, and all rights acquired, under such laws, which tended to obstruct the creditor's right, of recovery. Similar adjudications were also made in the cases of Hamilton'v. Eaton, in 1796, by Ch. 7. Ellsworth and Judge Sitgreaves, in North Carolina. Page v. Pendleton, in 1793, by Chancellor Wythe, Wythe's Reports, 127; and by this court in The State of Georgia v. Brailsford, 3 Dal. 1. The second article of the convention of 1802, between the United States and Great Britain, Laws U. S. vol. 6, Appendix 49, was produced by the difference of opinion at the board of commissioners for carrying into effect the sixth article of the treaty of 1794. The ideas of the United States, as to the effect of the treaty in removing all impediments arising from legislative acts, are expressed in the answer to Cunningham's claim, in page 51 of the printed report of the proceedings of the board. A The basis of the convention was the American construction of the sixth article of the treaty of 1794. sum of 600,000l. sterling was stipulated to be paid by the United States for all losses under the sixth article of the treaty of 1794, and the creditors were to recover from their debtors whatever they could in the ordinary course of justice; all legislative impediments having been removed by the treaty of peace, which is recognised and confirmed by the convention. HOPKIRK V. BELL. BELL. The Court ordered the following opinion to be certified to the circuit court: Upon the question, in this case referred to this court : By this the court is not to be understood as giving an opinion on the construction of the note, as to the time of payment. WILLIAM MALEY. JARED SHATTUCK. MALEY V. SHATTUCK. ON the 20th of August, 1804, Jared Shattuck exhibited his libel in the district court of the United States, mander of a for the district of Pennsylvania, in the following form:* The com United States ship of war, if he seizes a vessel on the high seas, As there are so few forms of admiralty proceedings in print, it is hoped that a recital of a considerable part of the record in this case, will be acceptable to the profession; particularly as it is not bable cause is a libel in rem, but for restitution in value; for not bringing in the Ilable to make vessel and cargo for adjudication. without pro 2 the honourable Richard Peters, Esq. judge of the district court of the United States, in and for the district of Pennsylvania. restitution in The libel of Jared Shattuck, merchant, most respect- value, with fully sheweth, damages and costs, even a superior recaptor, but tor liable for A foreign sentence of condemnation is not conclu as good prize, sive evidence, that the legal title to the not in a subject of a neutral nation. property was although the That your libellant, being a subject of his majesty, the vessel is taken king of Denmark, sometime in or about the beginning out of his of the month of May, in the year of our Lord 1800, at possession by St. Thomas, one of his said majesty's West-India force; and islands, loaded a certain schooner or vessel called the Mer- the owner is cator, being an unarmed merchantman, fitted out at St. not bound to Thomas aforesaid, for trade only, and being then and resort to the there bona fide the property of your libellant, with a cargo may abandon, of merchandise, consisting of provisions, wines, and and hold the dry goods, for the sole and bona fide account of your li- original capbellant, said cargo amounting to 13,920 dollars, or there- the whole loss. abouts, on a voyage to Jacmel and Port-Republican,' in the island of St. Domingo, which he consigned to Toussaint Lucas, also a Danish subject, then and there master of the said schooner Mercator, who was instructed by your libellant to dispose of the said cargo at Jacmel or Port-Republican aforesaid, to the best advantage, for account of your libellant, invest the proceeds in coffee of good quality, and return therewith to the said island of St. Thomas. And your libellant further saith, that on or about the 6th day of the said-month of May, the said · Toussaint Lucas sailed in the said schooner from the said island of St. Thomas, upon the said voyage for Jacmel and Port-Republican, having on board the said cargo, and also a private adventure belonging to the said Toussaint Lucas, together with all such necessary papers and documents, for ascertaining the property and neutrality of the said vessel and her cargo, as are usually carried by vessels belonging to Danish subjects; and proceeded on his said voyage until on or about the 14th day of the said month of May, when, in endeavouring to enter the said port of Jacmel, the said schooner Mercator was met with by a certain schooner, called the Experiment, a public armed vessel belonging to the government of the United States of America, and commanded by William Maley, a lieutenant in the navy of the said United States, who unlawfully, and in violation of the law of nations, took possession of the said schooner Mercator, and put |