HOARE v. ALLEN
2 U.S. 102 (1789)

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U.S. Supreme Court

HOARE v. ALLEN, 2 U.S. 102 (1789)

2 U.S. 102 (Dall.)

Hoare
v.
Allen; and Tertenants

Supreme Court of Pennsylvania

April Term, 1789

This was a Scire Facias on a mortgage given on the 4th December, 1773, for securing the payment of L 16,000, sterling, with interest. It was tried at Chester, Nisi Prius, on the 4th May, 1789, before the Chief Justice, Atlee, and Bryan, Justice; when it appeared, that the plaintiff was a British subject, resident in London; that Amos Strettle was his attorney in fact, at the time of the execution of the mortgage, and after: but it did not appear, whether he continued to act, as such subsequent to the war. He resided in the state till his death, which was about The question that was made in this cause was, whether interest should run during the war?

The defendant, contended, that when two independent nations are at war, the debt is suspended, and no interest can be demanded. That all intercourse was at an end, and a remittance could not be made. All trading with enemies is illegal. Park. Ins. 270. 1. 2 Valins. 31. 2 Magens. 257. If not so at Common Law, the resolutions of Congress made it criminal. That a statute may repeal a covenant to do a thing that is lawful before: And, a war is equivalent to an act of Parliament in this case. That where the law prevented the payment of the principal, it never required payment of interest, as in the case of a garnishee. That whether the contracts be express, and in writing, or merely by parol, the construction must be the same: For equity will imply the exception, though not expressed. Thus in Pollard versus Shaffer, the war excused the non-performance of an express contract. Dall. Rep. 210. So in the case of the way going crop. Dougl. 190. So in case of a division of a risk in a policy. 3. Burr. 1240. They finally urged, that this point had been determined in the case of Osborne versus Miffin, which was the case of a bond; and there the Court determined, that no interest should be paid during the war.

The plaintiff urged, that though debts might be suspended during the war, yet they revived on the peace, and were not extinguished. That, although the Court determined the case of Osbourne versus Miffin; yet they distinguished that case from the present, by urging that the case went on the principle of the

Page 2 U.S. 102, 103

plaintiff's being in England, and having no attorney here: And that while he had an agent here, which was until 1778, the interest run, and only 3 1- 2 years interest was struck off from the plaintiff's demand.* That in the present case Strettle was the attorney: That a tender or payment to him would have been good; and that such payment did not in any manner contravene the resolution of Congress. That payment in bills of exchange would be lawful at any time, and could not in any manner aid the arms of the enemy. That this case was different from that of a bond: For the very land mortgaged, was the consideration of the debt; and the defendants were actually in the enjoyment of the profits of the land during the whole war.

The defendant, in reply, contended that the war was a revocation of Strettle's authority; and that which another cannot do by himself, he cannot do by attorney: That even his power to sue during the war was gone.

By the Court: This action is brought on a mortgage for L 16,000, payable on 4th December, 1774. No suit could be brought on the mortgage before the 4th December, 1775. Before that period the war commenced, and on the 10th September, 1775, the Congress prohibited the exportation of commodities, &c. to Great Britain, or any of her dominions. This was obligatory on their constituents, and it became unlawful to make any remittances after this to the enemy. During a war all civil actions between enemies are suspended; debts are suspended also, but restored by the peace. For the term of 7 1-2 years, viz. from the 10th September, 1775, to the 10th March, 1783, the defendant could not have paid this money to the plaintiff, who was an alien enemy, without a violation of the positive laws of this country, and of the laws of nations. They ought not, therefore, to suffer for their moral conduct, and their submission to the laws.

Interest is paid for the use or forbearance of money. But in the case before us, there could be no forbearance; because the plaintiff could not enforce the payment of the principal; nor could the defendants pay him, consistent with law; nor could they pay it without going into the enemy's country, where the plaintiff was. Where a person is prevented by law, from paying the principal, he shall not be compelled to pay interest during the prohibition, as in the case of a Garnishee, in a foreign attachment.

It is urged, that a remittance in bills of exchange furnished the enemy with no money. Yet, it is clear, that it would furnish the enemy with the means of carrying on the war, within the [2 U.S. 102, 104]


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