May it please your Lordships,
In obedience to your Lordships commands, signified to me by Mr Pownall, in his letter of the 8th of May instant, desiring me to report my opinion upon the Propositions contained in an Inclosed Paper, so far as they relate to the Question of Attachments, and the extension of the jurisdiction of Inferior Courts, I have perused and taken
And have also perused and considered another Paper, inclosed in the said Letter, intitled the Memorial of Thomas Barker and Alexander Elmsly, on behalf of the Assembly of North Carolina.
And I am humbly of opinion, that no mischief can arise to any of His Majesty's Subjects by the passing a Bill enabling the Judges of North Carolina to issue Attachments in the manner described in the Bill inclosed, in all cases where the Debtor or Defendant shall abscond, or conceal himself to avoid being served with the Process of the Court, in which the suit shall be commenced, or where the Debtor or Defendant shall reside in any Clony next or near adjoining, because in the former ease the Defendant must necessarily know that such suit has been commenced against him, and it is to his own fault only that he can attribute any inconvenience such Attachment may subject him to, and in the latter case regulations may be easily framed for the purpose of preventing such a Suit being carried on, without reasonable Information to the Defendant of its commencement.
But I conceive that all Extension of Attachments as they are described in the Bill, beyond these Cases will be liable to great inconvenience, and is altogether inconsistent with the common Law of this Kingdom, and even with the Rules of Justice adopted by most of the States of Europe. It seldom happens that personal Actions can be properly defended by any Man but by the Defendant himself, or under his particular Instructions, and such Actions always require witnesses who are probably to be found where the Cause of Action arises, and not where the Effects of the Defendant happen to lye. For this reason the Rules of Legal Proceeding in most if not all the States of Europe require that a personal suit should be prosecuted only in that Country where the Defendant resides, unless where he has left that residence to avoid the submission he owes to Justice, or at least where the Cause of Action having arisen elsewhere, it may be deemed reasonable to presume that the Plaintiff can there best support his Demand as well as the Defendant Controvert it.
The indulgence therefore which your Lordships have been disposed to shew to the Inclination of the Assembly of North Carolina, in the case of the Defendants residing in Virginia or South Carolina
I will suppose the Cause of Action to arise in the Province of New York a case supposed probable by the Memorial. Is it therefore reasonable that the Plaintiff should bring such an Action to trial in North Carolina only because the Defendant happens to have sent a parcel of goods thither, having never been in that Province in his life and perhaps intending without compulsion to satisfy fair creditors with the produce of such goods?
It appears to me therefore with great submission to your Lordship's Wisdom, that it will be more suitable to the Ends of Justice that such a Question should be agitated in the Province of New York, where it is to be presumed that the Cause of Action arises, unless the Plaintiff will at least venture to swear that such Cause arises in North Carolina, in the latter Case it may not be improper to compel the Defendant to submit to a Trial in that Colony nor can it frequently be so, where he resides in an adjoining Province.
If it be proper to extend His Majestys Indulgence beyond the last Instructions, it seems to me that it would answer every end of Justice to permit such Attachments in Cases where the Plaintiff shall swear that the Defendant conceals himself, or absconds from the usual place of his abode, though in Great Britain or in any other Government this would provide for the only remaining Case in which the Plaintiff can be under any difficulty in the recovery of his just debts. It is impossible to deny that frequent injustice must necessarily be the result of an unlimited process by Attachment, besides the use that has been made of that process for the gaining a preference to other Creditors who have proved Debts under a Commission of Bankruptcy, but for the last use some apology may be made, founded on the consideration that should not the Creditors in the Plantations resort to such Attachments they must frequently loose their whole Debts for want of being able to prove them in time, and though there must be frequent instances of Injustice in other Cases, the number of such instances must be much better known to the Merchants trading to that Country than to me, and consequently the Expediency or Inexpediency of yielding to the Ernest request of a
I have more than once had the honor to state to your Lordships my sentiments on Inferior Jurisdiction in America in general, and must confess that I always see with concern all Laws for the excluding the jurisdiction of Superior Courts even in the first Instance. It is in the latter Courts only that a uniformity of decision can be expected, and consequently a conformity to the Laws of this Kingdom preserved.
The districts in North America are I believe little (if at all) larger than the largest counties in England, and were they less it is impossible to separate the expence and Inconvenience from Law Suits. Perhaps a County that should contrive to carry on suits without expence or Inconvenience would not have changed its situation for the better, and the worst that can happen from such expence and Inconvenience is the compelling Dealers to be cautious whom they trust, and buyers to restrain a Disposition to Extravagance when they can no longer indulge it on credit.
But after all, your Lordships will consider, whether the present situation of the Province may not require an Indulgence that will grow less necessary hereafter, the roads will become better, means may be devised under some future Law for enabling the Superior Court, or at least one of its Judges to sit once or twice a year in each County, and in the mean time it is certainly obvious that the Inhabitants of a country while it is advancing swiftly in Improvement require a Credit that the greatest frugality will not exmept them from the want of.