Lestapies v. Ingraham , 1846 Pa. LEXIS 286 ( 1846 )

Gibson, C. J.

It appears, that in the year 1809, Mr. Laussat, a citizen of the United States, shipped, in his own name, for the port of St. Sebastian, certain sugars and bags of coffee, a part of which belonged.io the plaintiff, a citizen of France; and that the property was seized and confiscated at that place by the authority of the French government. This action is brought to recover the plaintiff’s share of the compensation received for the spoliation, under the treaty of 1881, by the defendant’s predecessor in the trust created by Mr. Laussat for the benefit of his creditors. The treaty gave the right of reclamation to citizens of the United States; and we would find it a question not free from difficulty, were we bound to decide it, whether a foreign merchant, domiciliated here for purposes of trade, is such a citizen. It is^ well settled, that a subject or citizen of one country may become a subject or citizen of another, by a change of his domicil, in time of peace, and acquire the commercial character and rights of a native. But is the title to extra-territorial protection a commercial or a political right ? He is doubtless entitled to the civil right of protection within the country of his domicil; but there is no dictum of a judge or a text-writer for the position that the government is bound to follow and watch over his property, whithersoever he may choose to send it. It may be legitimately captured in time of war, even by the cruisers of his own nation, because it adds to the wealth of its enemy; and hence an argument, that as it is exposed to the perils incident to its national, character, it is entitled to the correlative right of protection. But that conclusion seems not to follow where, as was the case here, the act of aggression has been done by the government to which" the owner of the property owed his political allegiance; for a government would scarce be bound to retaliate for the execution of a captured deserter to its ranks, though it had lawfully enlisted him. It might, perhaps, be bound to protect the merchandise qf a resident from an aggression, on the high seas, of a third power; but it would assume a doubtful position, did it place itself between him and his legitimate sovereign. ■ Now, at the time of this shipment, the plaintiff was, and perhaps still is, a citizen of France, by whose authority the property was seized; and it will scarce be thought the United States would have been hound to declare war in order to compel France to release it. If that be so, it settles the question; for .a government is not at liberty to demand any thing for its subjects which it is not bound, to the extent of its power, to enforce. Like any other instrument, the treaty is to be interpreted according to the actual intent of the parties to it; and we can scarce suppose that a government would stoop to the indignity of redressing a wrong to one of its own citizens at the demand of a foreign power, or that the government of the United States felt itself bound to make such a demand. But, as a decision of the point is not at present indispensable, these suggestions are thrown out as first impressions, destitute of all pretence to judicial authority.

But take it, for the sake of the argument, that the plaintiff was not entitled to compensation for his part of the invoice by the treaty; yet the assignee of Mr. Laussat, who had shipped the property in his own name, received compensation for -it; and why should the creditors or their trustee be allowed to retain it ? The award of the commissioners is conclusive that it was properly allowed to some one; and though it may not be conclusive between the present parties, the creditors of Mr. Laussat would have the benefit of an entire fund, to a part of which they have no other title ihan the wrongful receipt of it by his assignee. The objection to a recovery is, not that the plaintiff assisted in committing a fraud on the French government or the British cruisers, in covering the property as neutral, but that he committed a fraud on the American claimants by throwing himself on their fund and reducing the rate of their compensation. He certainly does not appear to have been a party to the proceeding, at least in the first instance; for the application was made by the assignee of Mr. Laussat, as the owner of the invoice, and there is no evidence that it was made with the plaintiff’s privity and approbation. If he took no part in it, there is no illegality in his way to preclude him from following the gratuitous compensation of hi£ loss into the hands of one who had received it for his use. But suppose he connived at the application to the commissioners, yet the transaction would not be so corrupt that no valid contract would grow out of it. True it is, that an illegal contract will not be executed; but when it has been executed by the parties themselves, and the - illegal object of it has been accomplished, the money or thing which was the price of it may be a legal consideration between the parties, for a promise, express or implied; and the court will not unravel the transaction to discover its origin. In Ex parte Bulmer, 13 Ves. 316, Lord Erskine denied that if a plaintiff cannot open his case without showing that he had broken the law, the court will not assist him, whatever the justice of his claim may be; or that Ms case may be so intimately connected with illegal transactions as to be inseparable from them; and he said that if the illegality be only malum prohibitum, (a distinction that has since been abolished,) the plaintiff may recover, unless the action be expressly on the contract precluded. Faikney v. Reynous, 4 Burr. 2069, on which he relied, though doubted by high authority, was justly said by him to have stood its ground. The action in that case was on a bond given by a partner to his co-partner for differences paid in a stock-jobbing transaction prohibited by act of parliament; and the plaintiff was allowed to recover because the bond was evidence, not of legal consideration, but of the defendant’s assent to the voluntary payment of a debt which could not have been recovered from the firm. In what does that case differ from this ? Merely in the circumstance that a subsequent security was given, but which was allowed to show no more than that the defendant had become a party to a payment which could not have been enforced against him. The solemnity of the security would not have precluded an inquiry into the consideration of it, had it been illegal; for as to that, a specialty stands in equity on a level with a parol contract at law. In the case before us, the assumpsit is implied from the receipt of the money, and if the consideration of it will not support a promise, it would not support a bond. Faikney v. Reynous, therefore, is in point; and it is sustained by Petrie v. Hannay, 3 Term Rep. 419, the circumstances of which were the same, except that the partner plaintiff had paid the differences by a bill on which there was a recovery against him; and his action against his co-partner was held to be maintainable by all the judges except Lord Kenyon, who vainly attempted to distinguish the case from Faikney v. Reynous, for the alleged conclusiveness of the bond at law; for it was shown by Ms brethren that the stock-jobbing act had been pleaded. In the last case, too, it is to be noticed that the action was, as here, on an implied assumpsit, and not on a subsequent security. Notwithstanding, therefore, that the plaintiff may have assented to the application to the commissioners, these cases have established a principle which entitles him to recover.

Judgment reversed, and venire facias de novo awarded.