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HEPBURN'S CASE.
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120
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fore the resolution, gave it as Ms opinion, which has been virtually
sustained by adjudications subsequent thereto, that under the pro-
vincial government, and of course since, the property of British
merchants here has been, and is understood to be a depositum or
peculiar security for the payment of country creditors; to the
extent therefore of such property credit is given here without
inquiry into the circumstances of the merchant elsewhere; and on
these considerations our attachment act and practice have been
founded; thus intimating, as the fact is, that the proceeding by
attachment is founded as well upon the custom of the country as
upon legislative enactments, (r)
Hence it appears, that this creditor might have obtained satis-
faction from the property of the Mollisons in Maryland, by attach-
ment; that it was his only remedy; and one which had been most
emphatically framed to suit such cases as his, and was eminently
calculated to afford the most effectual relief to country creditors
against British debtors.
There can be no doubt, that Hepburn might have proceeded by
attachment at any time during peace; but it is said, that the revo-
lutionary war had commenced before this debt became due; and,
that, from the 4th of July, 1776, to the peace of 1783, the Molli-
sons were alien enemies. It is now, however, universally admitted,
that an alien enemy, resident in the country, may sue and be sued;
and further, that the remedies on private contracts for the recovery
of debts are not forever barred, but merely suspended by a war
between the nations of the creditor and debtor. The only reason
why a non-resident alien enemy is not allowed to sue is, that he
should not be permitted to recover property and take it out of the
country, so as thereby to strengthen the enemy, (s)
But this reason in no way applies to the case of a citizen credi-
tor, suing by attachment to obtain satisfaction from a non-resident
alien enemy debtor. In such case, our own citizen by making the
property so available to the satisfaction of his own debt, does so
far strengthen our own country at the expense of the enemy, (t)
The disability of an alien enemy to sue is so extended as to pre-
vent him from gaining any advantage for himself and his country;
and, therefore, he is not only disabled from suing for the purpose
(r) Burk v. M'Clain, 1 H. & McH. 236.-(s) Vattel, b 3, s. 77; Clarke v. Morey,
10 John. Rep. 70; Buchanan v. Curry, 19 John. Rep. 137,—(t) Willis v. Pearce, 6
H. & 1.191, note.
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