Graves v. Delaplaine

Platt, J., delivered the opinion of the court. This is an action of assumpsit to recover a balance of account for moneys [159] paid by Worrall and Williamson, of Liverpool, for the use of'' the defendant. The defendant, under the general issue and notice of set-off, claimed a balance of account due to him from Worrall and Williamson. The statement of the accounts by the respective parties, taken in connexion with the other evidence in the cause, show clearly that every item of the account was founded upon, and arose out of, a charter-party dated the 17th of November, 1809, and made at New-York, by the agent of Worrall and Williamson with the defendant; whereby it was stipulated that the defendant should furnish the ship Columbia to carry a cargo of cotton and other articles, for Worrall and Williamson, from New-York to Fayal, where the cargo was, by the terms of the charter-party, to be re-shipped on board a vessel to be provided by Worrall and Williamson; and the defendant was expressly authorized to draw on them for the freight and demurrage. The defendant also reserved the privilege of sending, by the same ship, {Columbia,) some goods of his own to be consigned to Worrall and Williamson, and to be sold by them for his account and under that proviso in the charter-party, the defendant did ship on board the Columbia, on his own account, 200 tierces of flaxseed accordingly. The shipment and voyage expressly contemplated in that agreement, were, confessedly, in violation of a statute of the United States. The charty-parter forms the basis of all the conflicting claims of these parties, and that being an illegal contract, neither party can sustain an action for the violation of it. The bills were drawn and paid (if at all) pursuant to the express stipulations of that original contract: and as between the parties to that illegal transaction, melior est conditio possidentis. Although Worrall and Williamson owed no allegiance to the United States, yet, as they co-operated in the act of violating our municipal laws, they cannot have the aid of our courts to indemnify them for their losses in that speculation. This principle is sanctioned in the cases of Holman v. Johnson, (Cowp. 341.,) and Waymell v. Reed, (5 Term Rep. 596.) Hunt v. Knickerbacker, (5 Johns. Rep. 327.) Hanway v. Eve, (3 Cranch, 242.) For the'same reason, ex turpi causa, the defendant cannot be aided in recovering the balance which he claims. [160] This ground is decisive on the merits of the whole case, according to the evidence admitted at the trial: but the question, whether Worall and Williamson were competent witnesses for the plaintiffs, remains to be disposed of. I think their depositions were properly excluded. Their discharge under the bankrupt law in England, with their release of the surplus, does not exonerate them from their debts contracted here. The proceedings against them as absent debtors, are presumptive evidence that they owe debts to creditors residing here: and, besides, this defendant claims to have a balance certified in his favour in this very suit upon a contract made by Worrall and Williamson in this state. The object of this suit is to create a fund for the payment of the debts of Worrall and Williamson. They have, therefore, a direct and certain interest in the event of this suit, because the sequestration of their property, as absent debtors, does not exonerate them from their debts; and their release to the trustees of the surplus, cannot restore their competency ; non constat that there will be any surplus. If the plaintiffs recover in this suit, it will increase the fund for paymnent of debts, for which Worrall and Williamson are still personally liable in our courts ; and if the defendant prevails in his set-off, and recovers a balance against them, it will lessen that fund, and increase their personal responsibility. The defendant is, therefore, entitled to judgment. Judgment for the defendant.