case xxiii.

#### Andersons and Tilley *vs.*Moncrieff, Administrator of *W.*M’Leod.

[Tried before Chancellor Desaussure, Charleston,

Nov. 1810.]

THE complainants, who arc London Merchants, charge that on the 6th of October, 1799, they consign-*125edby the schooner Phoebe,, captain Walsh, forty-five Negroes from the Island of Bance, *on*the coast of Afri*ca, to*William M’Leod, to sell the said negroes at the Havanna to the best advantage, and remit the nett proceeds to- the said Andersoüs, at that time in London. That the said negroes were received and sold by the said William M’Leod, but when or for what price they are ignorant, never having received any accounts thereof from the said William M’Leod, in his life time, nor any part of the proceeds of the sales, excepting $>2571 43, remitted on account by M’Leod by a bill of exchange $ and the further sum of $>4154 10, paid by M’Leod to William Miller, of Charleston, a creditor of John Tilly, who had attached the monies of the said Tilley in the hands of William M’Leod, which two sums amount-in edto $>6715 43, so that the said M’Leod is a debtor for the difference between $>6715 63, and the amount sales of the forty-five negroes. That the complainants could never obtain from M’Leod any account of the nett *J*sales of the negroes. That he died on the A. D. 18, intestate, and letters of administration were granted to the defendant, John Moncrieff, who has been applied „ ■ to for an account of the said sales, and to pay over unto a the complainants, which he has refused, alleging that he has no books or papers that discover what they sold for. Whereas the complainants apprehended that if the prices cannot be fixed by any proof in the possession of the defendant, they are entitled to the highest average prices which similar negroes produced about the time when these were sold, which may bo easily ascertained* Complainants pray that defendant may be made to answer and to discover all the property of his intestate, and the appropriation thereof, unless he admits the sufficiency of assets to satisfy their demands, and praying subpoena, the bill concludes as usual.

An agent em-ceive and re-eyf shan^not plea that the brought^ the ^ds^¡£ violation o'-' jan1¿w oftheCourtwill 10 §>n-Ruction to the acts of a principal, as plbeSg beld, t(.> be legal m such a case.

Dkavtoiv, solicitor.

To this bill the defendant put in the following plea in bar-i

*126This defendant says that he is ignorant of every thing relative *to the*said consignment of negroes by the complainants to William M’Leod as alleged, excepting that he has found among the said M’Leod’s papers a letter from T. and F Anderson to M’Leod, dated 30th of August, 1800, a copy of which is as follows :

*“*Mr. Wm. M’Leod, Sir- — Annexed is a duplicate or our letter of the 18th of June, advising the receipt of remittance of 600Í. by direction of our friend, Mr. Johq-Tilley, of Bance Island, who gives us to understand in his letter of the 5th of October, 1799,. that you are to remit u$ the proceeds of 45 negroes, consigned you in the Phoebe. We have been expecting a further remittance on the same account, and we are rather surprised that you did not mention, how much more we had to ex-on the same account. We have used the freedom to inclose this letter to our brother, Mr. James Anderson and Mr. William Milligan requesting that they may ■wait upon you and desire the necessary remittances, as they come into your hands may be transmitted to us along with the accounts relating thereunto.

We are sir, your most obedient servants,

John- & Alexander Axdebb.sox.”

And he hath also found a receipt of William Milligan, which this defendant supposed to be the receipt alluded to in complainant’s bill, a copy of which is as follows *:*William Milligan *vs.*Augustin Beaudequin, survivor of Balthasar Beaudequin. — Judgment against William

M’Leod, as garnishee in attachment.

*“*Received from William M’Leod, Esq. his note at sixty days dated 25th inst. for one thousand one hundred and forty-four dollars, ten cents, which when paid will be in Ml of the judgment obtained by me against him as garnishee for Augustin Beaudequin, survivor of Balthasar Beaudequin. Charleston, Aug. 2,1802.”

*“*Wiixiam MiTjEigax,

*“*By his attorney Do ward Saxdersox.”

Also one or two receipts of the said Milligan prior to the above, which the defendant believes may relate to *127the same transaction. The defendant further says that he cannot find any entry in the books of William M’-Leod, or among his papers, or any other documents than above mentioned, in any wise appertaining to the above business. This defendant admits it to be true, that the said William M’Leod did depart this life about the time mentioned, and that the defendant did obtain letters of administration, and that application hath been made to him for an account of the sales of the negroes, and to pay over the same to the complainants, and that he declined complying, because he could not furnish an account, and because he thought he would not be justifiable without a decree of this Court to pay them any part of the said claims and how far the estate is competent to pay demands of the same order and degree with those of the said complainants if they should be judicially established will appear from the defendant’s general account of his administration therewith filed. And as to the complainants praying that this defendant might be compelled out of the assets to pay, if they are sufficient, this defendant hot confessing or acknowledging the things complained of by the bill to be true, pleads thereto that it appears by the complainant’s bill that the slaves were consigned by the complainants from Africa to the said William M’Leod in Charleston, to be there disposed of to the best advantage on their account. That by an act of the legislature prohibiting the importation of negroes until the 1st January, 1799, it was enacted *“*That the importation of negroes from Africa and other places beyond the seas, be and is hereby prohibited until the 1st of January, 1799 $” and it further declared that every slave so imported should be forfeit-e'd ; and in and by a certain other act of the legislature, passed 27th of December, 1798, the act of 1799 was extended to the 1st of January, 1801 *;*and that the complainant’s said claims being on account of negro slaves imported in contravention and violation of the said acts of the legislature, they are not entitled to the aid of the Court of Equity to substantiate or recover the same, *128and the defendant therefore pleads the said acts in bar thereto, and he prays to be dismissed as usual.

Priygie, defendant’s solicitor.

To this answer and plea the complainants have filed a general replication.

The cause came to a hearing on the plea in bar. It was argued by Mr. Draytow for the complainants, and by Mr. Parker and Mr. Privgee for defendants.

Mr. Parker, for defendant.

The contract was on 5th October, *1799,*for consignment of the negroes to Mr. M’Leod. This was contrary to law. .Courts are established to administer justice according to the laws of the country: they cannot act against the laws. The law of this state, and that of Congress, prevented the importation of negro slaves. The party intending to ship had proceeded to act, and to obtain a consignee, (M’Leod.) This was an efficient act.

Contracts on policies of insurance on a trade prohibited are void, and the money cannot be recovered on them. So of any other prohibited trade.

The letter enclosing the bill of lading was during the existence of the prohibition act of 19th Dec. 1796 : The statelawprohibited importation of negroes till 1st Jan’ry, 1799 : The act of 27th Dec. 1798, continued the above act to the 1st January, 1801. The contract was made with a direct view to a breach of the law of the land : not a long, antecedent contract, but recently, and with a view to the breach of the act.

Mr. Dkaytok, for complainant.

The question made by the pleadings, is, whether the defendant having received a sum of money for complainant, the latter can recover from him as the shipment and importation was contrary to law ?

Tilley was not probably acquainted, in October, 1799, with the act of December, 1798, continuing the prohibition to January, 1801. But his letter of October, 1799, directed M’Leod, «that i| it was necessary for Mr, *129M’Leod to send his negroes to the Havana, then to send his also.” This gave him a discretion. It may be said, M’Leod being his agent, and actually receiving them hei’e, it is his act. But this is not so, if the act was unlawful. It is alleged that the act of Congress (1794) prohibits any citizen, or resident of the United States, from carrying slaves even to foreign countries. But this only applies to the cases of Americans or residents in the United States. Tilley is a British subject, and not liable to the law. Mass. Term Reports, 436. See this case fully.

But even admit that the contract was in violation of the law of the country, has the agent any right to detain the money ? Surely not. Suppose the insurers on an illegal voyage had paid the money to an agent: the agent never could set up a defence that the transaction was an illegal one. 1 Bos. & Puller, p. 4, Tenne-nt & Elliott.

The agent receiving the money for his principal, on an illegal contract, cannot keep it and defend himself on the ground of the illegality of the contract, 3 Bos. & Puller, p. 298, Farmer vs. Russel. Same principle established. The distinction is, between a suit brought to enforce an illegal contract, and for the recovery of the money from the agent who has received the money, for his principal, on an illegal contract. ’Tis a most ungracious defence. Cases under stat. of Ann: though contracts are void suits may be'sustained at law for recovery of the money.

Mr. PRIjígxus, for def’t.

It is not ungracious on the part of the administrators, to set up this defence. They might feel it a duty to the «‘editors of M’Leod, who might have complained of his not setting up a legal de-fence, which would have defeated the claim and enlarged their funds 5 and he might have been liable to them for not setting it up. Some of the «‘editors did require the defence to be set up.

This is clearly an illegal contract. The direct destination of the port was to Charleston. The clause in the letter, speaking of the necessity of sending the negroes to the Havana, does not protect the party from the il~ *130lcSality ^10 voyage, and the importation of slaves. It could not be supposed to relate to the illegality of the voyage as the necessity, obliging them tobe sent to the Havana.

Bilemma.

Either Tilley knew of the law prohibiting, or not. If he did, the original destination was illegal: if ho did not, it cannot be supposed that his letter had reference to the illegality, and intended to give directions to avoid it by sending them to the Havana. The expression is too equivocal and uncertain to justify. the inference the counsel draws. He might mean only the necessity arising from the low state of the markets.

Here was a plain contract, by consignment, in direct violation of law : and the negroes were shipped and disposed of in the state, contrary to law; and the recovery from M’Leod would bein violation of the law. Suppose Tilley ignorant; yet ignorantialegis neminem excusat. There is strong presumption of knowledge. Tilley was in the trade, and if ignorant, he should shew it, by proving no intercourse.

Negroes were actually imported against law : the consequences must follow. Some instances occurred, of importations, by persons really ignorant; yet their property was confiscated. 1 Espin. Ni. Pri. 88, assumpsit. 5 Term Rep. 342. 2 Henry Ma. 6 Term Rep. 405,51. Powell on Contracts, 186,201.

The cases quoted by Mr. Drayton do not apply; for the party is obliged to come here for the assistance of the Court. Admit that complainants could have recovered at law; this Court is not obliged to aid them in recovering the money under such circumstances. It does not appear to the Court but that the negroes might be forfeited, or that the purchasers of the negroes might refuse to pay, and be protected by the law from doing so ; and so the consignee, M’Leod, might have nothing in his hands.

A party coming into Court, to ask equity, must come in with clean hands. He cannot ask the Court to set up ,an illegal contract. This is not a contract clearly exe*131cuted : it was executory,, and the Court will not b.e assistant. _ _

DECM,

_ _ Date of the act of Congress, 1794, which prohibited the citizens and residents in America fitting out ves-seis, for the African trade, to supply foreign ports or places, which would affect the shipment for the Havana.

The Court delivered the following decree :

The case made by the pleadings, in this cause, is an important one, and I have given it the best consideration in my power.

There can be no doubt where the justice of the case lies, whilst the distinctions of property, and of right and wrong in relation to it, subsist among men. The funds in the hands of the deceased Mr. M’Leod, wore unquestionably the property of the complainant, and came there by a high act of confidence. In justice he and his representatives were bound to pay it.

But it is alleged, by'the defendant, that whatever may have been the moral obligation, the complainants were not entitled to recover from the defendant; because the money in question arose from a shipment of negroes made in October, 1799, from the coast of Africa, to Mr. M’Leod,' in Charleston, at a time when the importation of negroes, into this state, was made illegal by the acts of Assembly then in force, prohibiting such importation, and confiscating the negroes ; and that courts of justice will not enforce illegal contracts, nor aid parties in recovering under them.

The position laid down by the defendant’s counsel is certainly true in general, that courts of justice will not enforce illegal contracts, nor. assist parties in recovering under them. The cases of insurance on illegal voyages, and other examples, have been cited and relied upon in support of this doctrine. But all the c,ases cited are where attempts are made to recover under the illegal contract itself, as in the instance of insurances, where the suit is brought to recover against the insurer on the illegal policy.

*132The counsel endeavored to give application to this set of cases, by insisting that this was a contract, whereby Mr. M’Leod undertook, by receiving the negroes, to sell them and be accountable for the proceeds ; and that this contract being, contrary to law, was, void and could not jje enforced in our courts.

I cannot, however, think that these decisions have any application to this case. This is a mere agency. It was so understood by the parties in the course of the trade whilst it w7as legal. But suppose it to be a contract, what is it ? That defendant would receive a cargo of ne-groes, and sell them, and receive the money for the complainant. All this he has done: it is completed. But the defendant says, I will not pay you the money which I have received on your account, because the whole transaction is illegal, as the law prohibited the importation of negroes. The complainant hies this bill to compel the payment. The suit is not bro’t to recover a cent, out'of the defendant’s pocket, of his own money j it is to make him pay money which he has received as the agent, and for the use, of the complainant. It would be monstrous that the defendant should be permitted to keep the money *;*and the decided cases, following the principles of abstract justice, shew that where an illegal transaction has taken place, the agent, who has received the money on the part of the principal, shall not shelter himself from the payment of it to his principal under the pretence of the illegality of the original transaction. I will not say that there may not be cases, where the transaction may involve so much moral guilt, that courts of justice would not suffer themselves to he polluted with them directly or indirectly. B ut I do not think that this is one of those cases *\*or that it differs from the decided cases on this point. The principal one is that of Ten-nent and Elliott, in 1 Bos. & Puller, p. 3. There it was solemnly decided, that Elliott, a broker, who had rcceiv-ed money to the use of Tennent, his employer, on an illegal .policy of insurance, which the • underwriters paid, ■’-t.’-'sis. 'wmsiring, shall not be allowed to set up the *133illegality of the contract as a defence in an action bro’t by Tennent, for money had and received. This was also decided in the case of Farmer vs. Russel and another, 1 Bos. & Puller, p. 298.

I think these cases were rightly decided, and are applicable to the case now under consideration, thinking*, as I do, that the defendant was a mere agent, and that this is not an attempt to enforce an illegal contract under the sanction of the *Court;*but a suit brought for the recovery of money received by defendant, for the corn-plainant, though founded on a transaction originally illegal.

If, however, the counsel for the defendant should he doubtful on this point, they would do well to carry it up to a higher tribunal, for it is a very important point, and one of some difficulty. It may not he considered as so distinct a case of mere and exclusive agency as the cases' referred to.

There is, however, another ground in this cause which I think is very conclusive for the complainant. In Til-ley’s letter of the 5th October, 1799, to Mr. M’Lcod, lie expressly states, « Should itbe necessary for your slaves to proceed to the Havana, you will picase act with mine as your own.”

Without speculating or conjecturing whether Tilley knew of the prohibition of the importation of negroes into this state, or was ignorant of it, these words are susceptible of a plain and reasonable interpretation, which will protect the complainant from the effects of tin; illegality attributed to the act of importation. The words arc “should it be necessary for your .slaves to proceed to the Havana, you will please act with mina as your own.” What necessity could exist, so strong, for the negroes sent by the Phoebe not being brought into Charleston, and for their proceeding to the Havana, as the prohibition of the importation by the law of Carolina ? It "was conclusive ; and upon the existence of any necessity, the negroes were to he sent to the Havana. Surely it is not straining the words to say, that the wri*134ter meant to leave it to the knowledge and judgment of Mr. M’Leod, residing on the spot and better informed, "co decide whether it was proper to introduce those ne-groes into Carolina, or not. Mr. M’Leod did decide to introduce them, though contrary to law. And shall he pe permitted to say my decision was contrary to the law of the land, and being so contrary, you shall not recover the money, though I have sold the negroes and received the money ? It is impossible ! Justice forbids it ; and as her humble minister I cannot sanction it.

But it is argued, that if this letter exempts the complainant from a participation of the guilt of violating the law of the state, that still the act of Congress, which was passed in 1794, prohibited citizens of the United States, or persons resident therein, from fitting out vessels for the African trade, to supply foreign countries j and that the shipment of those negroes on board an American vessel, fitted out at Charleston, with a view to the transportation of slaves to the Havana, would bring the case within that law.

It does not appear to me that foreigners, residing out of the United States, acting as this complainant has done, could come within the provisions and scope of that act. But if they did, still the original question recurs, can the defendant iprotect himself, under such a plea, from paying money he has received as an agent to the complainant ? and I adhere to the opinion already given on that point.

It was also contended by the defendant’s counsel, that oven if the complainant could have recovered at law in an action for money had and received, yet wanting the assistance of this Court for a discovery, this Court would not assist him in such a case.

I confess I cannot see the ground of this doctrine. It is but of late years that the action for money had and received has had the extent and operation given to it which it now has and it is likened to a bill in equity, from the introduction of equitable doctrines through that channel into the courts of law. If therefore the *135objection to the relief in such cases could he valid in this court it must have operated at law* We have seen/, that it does not; and I should be inclined to say, a for-j tiori not in this Court. *1*

It has been objected that it does not appear to the Court that the negroes were not seized and forfeited, or that the purchasers did not refuse to pay. In other words, that it does not appear that the defendant has received the money.

I consider this argument as not belonging to thiss part of the case. When the plea is overruled and the defendant ordered to account, then these topics will be open to defendant and he may avail himself of them as far as they may be founded on fact.

The complainant’s counsel dwelt with much severity on the ungracious nature of this defence ; knd if Mr. M’Leod had lived and had set up the defence, I should have certainly agreed with complainant’s counsel, that it was a very ungracious, not to say an atrocious one.__L_ But I agree with the counsel for the administrator that ho is far less censurable for resorting to it. Creditors and heirs might have blamed him, and might even have attempted to make him liable for not using what they might deem a legal defence.

It is ordered and decreed that the plea be overruled, and *that*the defendant do account for the nett amount sales of the negroes, taking credit for the sums already paid on account of complainant.

There was no appeal from this decree.