in 2 Burr. 694. the property is never changed, so as to bar the original owner, in favour of a vendee, till there has been a sentence of condemnation. Therefore, the court of admiralty decreed restitution of a ship retaken by a priva teer, after she had been fourteen weeks in possession of an enemy, because she had not been condemned.

In the case, likewise, of v. Sands, a ship was taken in 1691, off Yarmouth, carried into North-Bergen, and then sold to A. A. sold to B. B. sold again, and she was sent to the East-Indies; then to France; from France to England, five years after her capture. She was then claimed by the original owner, and recovered; because there had been no condemnation. Lu. Cas. in 10 Mod. 79. The case of Sir George Rodney, (Doug. 592.) at St. Eustatia, where the principal part of the captures was made on land, was next relied on. He was an admiral entrusted with the command of a fleet, when he took that island; and general Vaughan, who was with him, commanded the land forces: and although they took upon them to fleece the unfortunate Jews of all the money and valuable effects they had, as well as others who traded to that island, and gave orders for the sale of the whole of their property; yet all Europe was exasperated at this conduct. It was considered as a most wanton abuse of power, a violation of the laws of nations, and nothing less than downright robbery and plunder. The court of admiralty in England was impressed with the same idea, for it gave no sanction to so unwarrantable a proceeding; and restitution was decreed as far as it was possible to identify the property of the sufferers.

Another ground taken on behalf of the plaintiff, was, that admitting, for the sake of further argument, the property was lawfully taken, and that it became a forfeiture by being brought within the limits of the United States; that in such a case, it was not a forfeiture to the individuals capturing, but to the state of which they are citizens.* That, there

* See the case determined July, 1786, in England, since the trial of this cause, of governor Johnstone and general Meadows, who made the captures

1785.

Turnbull

V.

Ross.

fore, in the present instance, as the state had admitted the plaintiff to the right of citizenship, and he had found his property unappropriated by the state, he became entitled to it; as much so, as any other citizen in the state, was to any property he possessed. That the act for the admission to citizenship or naturalization, had a retrospective energy, and made him a citizen to all intents and purposes, as effectually as if he had been born one ;(a) and consequently, (a) Co. Litt. if it had such a retrospective energy, it secured every right to him. Even children born before, shall inherit as if born after such act.

PENDLETON, J. charged the jury in favour of the plaintiff; and mentioned, that neither the laws of this state, the United States, or the laws of nations, authorised individuals to seize and plunder private property, though at the time within the territory of the enemy. That even in cases of captures made at sea, by ships or other vessels legally commissioned, a condemnation by a court of admiralty, of competent jurisdiction, was essentially necessary, before the original owner could be legally divested of his property. The plaintiff moreover, by becoming an American citizen, and so soon after the revolution, had every privilege secured to him, as much so, as if he had been born in the country. And certainly was entitled to his property wherever he found it.

The jury found for the plaintiff to the amount of the value of the wench and children.

on land, near the Cape of Good Hope; where it was determined that they belonged to the crown, which had a right to distribute them as it thought proper.

129.

October Term, 1785.

Where a note

is given for an old debt, recoverable by

MOUNIER against MEYREY.

UPON a motion to set aside a verdict, and to grant a

instalments, goods to

and after

wards negoti

ated as a cash

in payment, may return

against the

cash contract.

new trial. It appeared that the plaintiff Mounier, had sold the defendant, to the amount of about 281. sterling; for which the defendant gave in payment to note, the par- him, Francis Guerin's note to that amount, as and for ty taking it a cash note, not subject to the instalment law. After it, and have the note became due, an application was made to Guerin recourse over for the money, who produced affidavits and vouchers, person nego- to shew that this was not a cash transaction between tiating it, on his original him and the defendant, but given for an old debt, due from his father's estate; and of course, only recoverable by instalments, at one, two and three years. As soon as the plaintiff became acquainted with this, he tendered back the note to the defendant, and demanded payment for the amount of the goods sold him, which Meyrey refused to receive, alleging, that the note did not purport on the face of it, to have been given for an old debt, and that he ought to pursue his remedy against the drawer; whereupon the plaintiff brought his action for goods sold and delivered, and had a verdict.

Smith, for the motion, relied on the ground that this note, from the face of it, appeared to be a new note, and not one that was given for an old debt, before or during the war, and which came under the instalment law. It was in its nature negotiable, and being in the hands of an innocent indorsee for a valuable consideration, it could not be impeached on account of any prior transactions, which might have been between drawer and drawce. Though had it remained in the hands of the drawee, the consideration might have been gone into. It would, he said, be a great injury to trade and commerce, to call in question negotiable notes, in the hands of a fair indorsee; for which reason, the plaintiff ought to have gone on, and recovered against Guerin.

way

Bay, in reply, conceded that negotiable notes given in the of trade, or in common transactions between man and man, since the year 1784, ought, not to be impeached in the hands of innocent indorsees. But the note in question, was not one of that class, as appeared by Meyrey's receipts and vouchers, ready to be produced. From those, it was evident, that this note was given for an old debt due from Guerin's father's estate, before the war, upon a final settlement of account between the parties. And being such, it was no otherwise recoverable, than the old debt, for which it was given, would have been. The distresses occasioned by the ravages of the war, and the total inability of the citizens to pay their debts, immediately after the peace, had induced the legislature to pass the instalment law, making these old debts recoverable, in one, two, and three years. The fourth clause of that act, passed in 1784, expressly declares, “That all bonds and other securities, given since February, 1782, (which included the time when this note

was given,) for debts contracted previous to that day, except "bonds and notes given for interest, shall be no otherwise re"coverable, than the debts would have been for which such “securities were given." This of course altered the law, as it related to bonds and notes, given for old debts before 1782. It is very immaterial who is the holder, whether the payee or indorsee; for by the clause cited, the bond or note itself, is no otherwise recoverable, than as an old debt. This, then, being the case, and the defendant's contract being a cash contract, the court ought surely not to suffer such injustice to be done to the plaintiff, as to put him off with a note payable by instalments, for a cash payment.

Per Curiam. We are clearly of opinion, that the act of 1784, has altered the law with respect to those kind of securities, given for old debts, previous to the year 1782, and made them only recoverable, as the old debts would have been. This law does not restrain their negotiability, but merely prevents their recovery, otherwise than by instal

1785.

Mounier

Meyrey.

ments.

There is no doubt but that the plaintiff has been deceived, by the passing of the note to him by the defendant as a cash note. We do not say intentionally. But under these circumstances, it would be unjust to refuse him the benefit of his verdict. It would be permitting the defendant to take advantage of his own wrong. Therefore, Let the rule be discharged. All the judges present, at

the adjourned court.

N. B. Before the establishment of a court of appeals by the new constitution of South-Carolina, the judges were authorised, under an old act of assembly for the amendment of the law, after the jury trials were finished, to adjourn the courts not less than ten, nor more than twenty days, for the purpose of hearing and determining motions for new trials, and in arrest of judgment, &c. wherefore these sittings of the judges, for the purpose of hearing and determining law points, were called the adjourned courts.

Cheraw Court, April, 1786.

Length of

possession of

Lessee of ALLSTON against SAUnders.

EJECTMENT to try title to 640 acres of land. The lands, may be plaintiff relied on a grant for the premises in question, ungiven in evi- der the great seal of the state, in 1775. The defendant dence as pre

the existence

been lost, or

time or acci

a

sumptive of claimed under a clause in the will of his grandfather, one of a grant or Murphy, who devised the lands to him. He had no grant deed, which may have to produce, either from North-Carolina or this state, (the destroyed by premises lying between the old and lately established boundent, though dary between those states.) But he contended, it was younger highly presumable that there had been a grant from one or other of them. Even if he had never had one; yet, from great seal, be the length of time his grandfather and father possessed produced. This pre- and occupied it, and who died in the possession, it would sumption is proper for the give him a good title. He then stated, that he could prove an uninterrupted possession in his grandfather and father, for upwards of 47 years; during which time, they had

grant for the same land, under the

consideration

of the jury.