The Sun.
London, England, 1809-06-24 00:00:00

O'MALY V. WILSON AND ANOTITER.

This was an action upon a scieri facial against the .
Defendants, who were the.bail of a person of the
name of Newell, against whom' ,the Plaintiff had'
brought his action, 'but had obtained no fruit from
it, lie being
.nonsuited upon plea, that he was then
resident and domiciled in Fiance, and therefore was
to:he deemed as an alien enemy, and could not main-
tain an aCtion in a Court of Justice.
Mr. Patti stated, that the. Plaintiff was a native
of Ireland, and, as such, a lit'ge subjeet of the
King; he bad resided -a long time in America, and
had, gone from thenCe to France; and
,as he was 'in
Brance.when the original action was brought for this
debt against Mr. Newell, which was, about 14001.
it was held that he could not maintain that aCtion ; •
he was therefore nonsuited, and, this anion was
against the bail, which Mr. Park maintained he' was
entitled to pursue y for, this. scieri facias was not
issued until after the Plaintiff had arrived in England,
and therefore the plea, that he was, now domiciled in
France, and an alien enemy, was not true at this
timer however it might apply to bitrt at the time of
the original action ; nor was the other part of the,
pleadings true, which, stated that he was,. and still
is, an alien enemy, for ha is now in this country,
The ATTOINEY-GENHBAL said;it was unpleasant
to-him, upon the presetit occasion, and he hoped
it •was, as much so to him as it could be to any.
one, to have to state in the presence or, a Gen-.
tleman such a defence as he must state to the 24:-
Opq,:now:btought by
_the. Plaintiff. Bum it was not
his decision that' the Plaintiff' should be present at
r •
the diseumiouipf Bach a case as this it was mat-
ter, or ,taste in the;plaintiff; fur be undeptuud the

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Plaintiff to be in Court at, the present moment.
•The Plaintiff' was 'a [leaver:if Ireland, as ,such,. a. t
st4ect of his Majesty the King of Great
tain to whom he owed allegiance of course, and
which ellegiaitee be never .could renounce ; but he
had chosen -to connect himself with the Rulera of
France, and to become a subject of'their Goyern-
ment, inateed of ours; and'therefore, although no
criminal proceeding was instituted against him, yet
he could not be allowed-to obtain judgment in a
Court of Justice for a sum of money, which mo-'
ney, when he shall have, received it, he will carry to
Franee, and there employ it, together with all his
skill 'and strength, in support of the enemies of this
country. That was, the defence to this action, a
delence which Was available in the original action
againstthe principal, and on 'which the Plaintiff' was
nonsuited, and *would. be available now, in the ac-
tion against the bail, rt .was true that the Plaintiff
was now in Court,' and being a British4torn sub-
jaCt, be owed allegiance to the King of England;
but the truth Was, that be was now domiciled in
France, and would return to it as soon as this trial
Was car,er, and the money paid' upon it. .He
leged that this Gentleman had been in' America.
for a while, Wentfrom thence to France, Where he:
had a' house of trade; had connected himself 'in'l
seine. Way' %kith the American Minister in • Paris,
Arid was the hearer 'of a message from that iVlinister
tai the American Minister in London, which was for
the perpoSe of ippearing here, to Support this atat.
tire) ; but it iLt was Colourable, And he Was really
and Luna jide domiciled in France, and was going
thither again as soon' as he shall have received this
money, his being here, hands and feet, for the
moment, would not answer the purpose, 'for he
must be really domiciled here, and not about to
return to France; "for it w:is not to be endured in
an English Court' of Justice, that' a man .-shbuld
obtain a stun of money by its jedgment, for 'the t
purpose of being, forthwith, carried to France, to 1-
he. employed to aid and assist the enemies of Great
Britain.
Gleriny, a Gentleman who acted as Agent'l
for the Plaintiff, was exa'niincd at considerable 1
length on. the subje& of the Plaintiff's residence' in
France; where the Plaintiff had certainly been for
manYyeers, and had returned in April last ; but cif I,
his 'mention to return to France, this gentleman
knew nothing, never having heard him express:any
such intention. If appeared further, that this
gentleman saw the
.Plairitiff In London within 48 ',
hours, after the itith of,April, consequently he must i
have been in England on the lath of, April, which
was the day on which the icierifaciai Issuedin this
case,. So . that supposing the. time of issuing the
scierifacias to be the time at which the etlion com-
menced, in construction of law, the Plaintiff would i
be entitled to recover, for he certainly hada right to
sue when he was in England. t 1
Lord ELLENDbItoUO4 held, that when the Plain-
tiff came to England, most clearly his allegiance
to the King' attached to him as a BrOsh subject ;
and, with his dutiea, all his' rights reverted to him
. also, and therefore he. could sue for a debt while
be remained in this country,, whatever blame
might attach to hint, without saying that any
blame attached him, or whatever intentions he
; „
havegmentt.o rTethueremtaemPriiniolicielt; aaniditsv, aistruecnktitlhedis
the plea of alien enemy and resident in France,
EntLooigris lultd t'iip at present, • was, that of "the application of
'svlietherit was to be applied to the commencement
of the; action ; if it did, all the rest of the
pleading, as it related to his being' alien resident
in France at the rime of issuing the stieri facias, or
of his being now an alien enemy resident in France,
would be surPhisage... However, the. Airy would
now find their verdia upon the tads as they appear-
ed in evidence; thatis, for the. Defendants, upon
the plea of the. Plaintiff being resident in France at
the commencement of the original attion ; for the
riaintiff was certainly in .France at Oataime ; hut.
for the- Plaintiff- :
.on the other two parts—rnareely,
that 'about the Plaintiff being an alien and resident
in France at the time of suing out the writ of scieri
facias and of' 'his being an alien resident in Prance,
now :for he certaiply was here on the .tatli of April
last, when that writ issued, and is here now, and as
such entitled to thetightaof t Rritish eubje.. The
Jury found their verdi&- accordingly.---'the case' is
hereafter te,he argued before the court, when tie
main question wilt be, " Whether the-plea of alien:
enemy resident id France, as applied try the
_coma
Mcncement 6f the criginal a&ion against the princi-
pal, governs this case or not

• • BULLS COURT,
COCKEREL V. BARBEE.
A Gentleman in India had,bequeathecl a legacy of
00,000 Sicca. Rupees tp Ji friend in. this cot -atty.
It had been referred to the Master to carry the will
into execution. But a .doubt arose in- his mind at
what rate the Rupee was to be calculated,.though he
rather inclined to prefer the rate of the value in but.
lion, which would, give 2s. Id. sterling. The Le- .
gatee,. however, objeCted to this, insisting upon the
rate used in mercantile prittlice, which is two Oil- •
Nis and six-pence. , The point was therefore
brought before the Court for a decision to guide the
Master.
Mr. LEACH contended for. tho higher rate, and
adopting a suggestion of the Court, put.the caw, that
instead of sicca rupees, -the legacy had, been current
rupees, a coin merely:nominal, a case in which it
would be inipos4ible to apply the rule of bullion, ,to
which the Maiter was inclined.'
Mr..ALEXANDER, on the other side, felt it easier
-to state objections to Mr. Leach's criterion, .than tp
suggest ,-any other. It was true, that sicca rupees
given-4n India for Bills, on England,, were calculated.
at 2s. 6d.. But then it was material to consider, that
these Bills weie payable at twelve months' sight ;
and taking into account the time spent in the pas.
sage home, were pot in general paid till I $ months
atter date, The high rate was therefore only a coin-.
pensition•for the loss of interest.
Mr. LeAcn replied, that, the loss of interest was
conneaed not with the rate, bat with the course 'of.
exchange. . • . ••
The MAsTekof the ROT,Lfldeciiired, that this was
a point, which, had it oowb; before him. in the first
instance„ he would be inclined to refer to the Mai.
ter, having no sufficient 'information, upon which to
'• found a, decision, lie rather thought that the rate