
    Stewart et al. vs. M'Intosh.
    í) and IV had aft account rendered tota™ as thrown. wts and n^ tiÍs vessel and her ear-» mentioned in jj>e e*e“’"nt be* who were partner! ¡^'^'¿'Tawhe ftfer*tt(leinv<u*y)c,la** ca?go!%TdSS¡iiathe i,)“Ttl™origmiX loK^riecUhe™11 aeulfd«u-sjmVm ?he 'Vlls '■ te'e bee» bent to W at Jacquemel, to be under Ins dim* Cions. The vessel was prevented from arriving* at Jacquemel, and got into Aux Cayes, when E, acting íor W, loaded her with a cargo of coffee and sent h ¡ to St Thomas's consigned to N, which cargo is that m»nti.>ned m theaeemnit; and it was known to M and N that both vessel and cargo belonged joint'} and equally Co D and VV Evidence ivas offered by M in an action brought against him bj 1> and W, that before the account was rendered, D was indebted to M and N in ££5000, as stated in ihe account, and in considers*'ion thereof did vei bally direct M a> d N to retain in their hands, out of the proceed*) of the vessel and cargo, in discharge of ihe said d' bt, the sum of £5000 as charged in the account as retained by them; and to show that when thf* direction was given Co M and N by 1), W was indebted to 1) in a sum larger than the int emt ol W in the f£50OÓ, M offered in evidence certain ac*4 counts between D and W dgned by D-~Ba liimore county court refused to permit the evidence or accounts offered by M to go to th * jury.
    M gave in evidence by E, tnat he 13,by authority fiom W, on behalf of himself aud D, purchased, at Aux Cayes the cargo of coffee ment on« d in the fast above mmtiomd account, and slapped it for their account and risk, the cost and char# »> of which shipment ami cargi, he charged to them in an account which he 'aansmuud to W in 1800 soon after the shipment was made; and the fiist mentioned account wa*» reiuhned to E by M in 1&02,a copy or which he senr to YV soon afterwards. That W, both before and aftet the rendition of the account to E, a'wajs alleged against ihe account which E rendeied against D and VV, that, the voyage from Aux Cayes to St. Thomas's \\as and ought to be consul, red as on account of 11; ben E insisted on hi right to reeoverfrom D and W,and brought suit against them, and itcovert d judgment That M had not been in this state since 1800, until just before the tíme he was sued .n this action. B< fore the accnu.it was iendured by \19 VV inquired of E if lie had ever brought NT to a sett ement as to the business of the vessel — Baltimore county court refused »o direct th.- jurj ih.:t fiO;n this evidence they might find that VV asuena d to the application made by SI of the #5,00 to ihe j’a3 ment of the debt due to M from D.
    M then gave m evidence, that af er tin- acco* nt of 13 against D and W, charging them with (lie costs of the cargo shipped to St. Thomas's wa. rendered bj him to W, W did, on the part of the owners, object to me said charge, and refused to consider or accept the cargo as the property of D and W, and insisted that it was tin pi*"pert> of E. and refund to pay E fór it, and continued so to refuse until aitev a lecovery against D and W by R That D authoused and permuted M to apply the ££5000 to (he payment oí the debt due from I> to At hut ibis direction was without the authority of W. 5oJ¿i?¡20í*e county court ref used to direct the juiy. that if th«y beli.-ved all the tacts as givm in ’¿vidtnci by both parties, that then the conduct and refusal of VV op< rated in law to preclude D and "VV from recovering.
    A vessel with a cargo of flour on board belonging* to T) and VV, ein aens of the US. sailed from Baltimore to St, Thomas in the West Indies in the month of October 1799, with a view and for the purpose of theife assuming Danish colours and a Danish character, and undí v them of proceeding on n trading voyage for tin benefit ami account oí D and W Sin armed there in November 1799. and was them put under Danish co.ours as the pioptrty of J V, a Danish subject, and dispatch* d to Jacmel by directions of 1) a. (I VV, she still continuing to bo their pic. >rriy. In November 1799, she sailed from St, Thomas's and armed at dux Cayes in the island oí rlhjatilola, about the 1st ot December following*. Cayes about the 1st ot Apnl 3 800 E H, still acting for D and VV, then purchased ft new cargo of coil'. <•- at Aux Cayes íor D and W. aud put it on board the same vesse I, ami about the 20ih of Apnl N-00, dispatch* d 'lie vessel and caigo Jiom Aux Cayes back to St Thomas's, consigned to N of th»* home of M and N, as his own property apparently, but in iaet for D and VV. The vessel and caigo aimed ac St. ThomaAs in May li.CO, and were sold in August 1300, ami the proceeds ot sale paid to M as the piutuer of N for and on account oí 1") and W. For the proceeds so paid to M an action of assumpsit ... . . I . > . € • . . I.. t\ .... 11 l.r. »)...< «t... ......h ...... ( . /. í/» .O 'Í */lI'*rt fl«»v.n mvuo u< congress mteidieting c— - — ..» «•— - • . _ ,, , - , xepub.ie, or the dependencies therein, or with any place in (he West Indies^ or elsewhere under the acknowledged government of France} and that 1> and VV could not recover
    Atmal from Baltimore County Court. This was an action of assumpsit- The declaration contained six counts» The first and second for goods, &c. sold and delivered, and a quantum meruit, &e. Tiie third, fourth and fifth, ihe common money counts, and the sixth on an insimul computassent. The general issue was pleaded.
    i*»sy»/i \ t *i t* 1. The plamtifts, (the appellants.) at the trial, read in evidence the following account in the defendant’s hand writing, rendered to them as owners of she schooner Holstein, by the defendant, (the appellee,) and a certain Patrick Wood, trading under the firm of Duncan MiInlosh and Wood, viz. The Owners of Schooner Holstein, their account current with Duncan M'lntosh and Wood
    
    To amount of disbursements of schooner Hoi-stein, as per account rendered by Mr. John Jmlay, dated 25th of August 1800, gl,443 *77 “ 7 ?
    
      780 To amount of premium of insurance paid on schooner Holstein by Mr. John Imlay, as per his account furnished
    5,195 46 To this sum due by Messrs. David Stewart and Sons, as per their account furnished Mr. Edward Hull, and which we stop out of Holstein’s cargo,
    460 To this sum paid in St. Thomas’s on two bills of exchange drawn by us on David Stewart and Sons, and which they suffered to return protested
    8,677 13 To this sum accounted with Mr. Edward Hall for the balance of this account,
    Cr. SI6,555 59
    By nett proceeds of sales of the cargo of coffee from Jlux Cayes, as per sales rendered pr. Mr. John Imlay, dated 25th of August 1800 15,355 59
    By amount of schooner Holstein sold for, 1,200
    816,555 59
    Errors and omissions excepted.
    
      Jlvx Cayes, 9th May 1802.”
    The plaintiffs also gave in evidence, that the said schooner Holstein, and the cargo, in the said account mentioned,belonged jointly and in equal portions to the house of David Stewart and Sons, and to the house of Hiñen fy Williams, which two houses (and who are the plaintiffs in this cause,) had jointly purchased said vessel and cargo, and were partners in that transaction, but in no other. That in the original purchase of said vessel, and her outward cargo, on her original voyage from Baltimore to the Island of Saint Thomas’s, and in the transaction and management of the business relating to the original voyage, David Stewart and Sons were the agents of the owners, and as such consigned the vessel and outward cargo to the defendant and Wood, at the Island of St. Thomas, in the West Indies, from whence she was to have been sent to Williams, one of the plaintiff's, at Jacquemel, in the Island of Hispaniola, there to be under his direction and management. That the schooner was so dispatched by the defendant and Wood, but was prevented from arriving at Jacquemel, and got into the port of Jlux Cayes, in the same Island, where a certain Edward Hall, acting by the authority of Williams, loaded her with a cargo of coffee, and sent her to St. Thomas, consigned to Wood, which cargo is the one mentioned in the account current herein before set forth; and that at the time of receiving the vessel and cargo, and the proceeds thereof, as stated in the above mentioned account, it was known to the defendant and Wood that both vessel and cargo belonged jointly and equally, to the plaintiffs. Thede-jeiidattt then offered evidence to prove, that before the said account was made out and rendered as aforesaid David Stewart and Sons were indebted to the defendant and Wood, in the amount of S5655 46 as stated in said account, and In consideration thereof did expressly authorise and direct verbally the defendant and Wood to retain in their hands, out of the proceeds of the vessel and cargo, and in discharge of the said debt, the several sums charged by them in the said account, as having been by them so retained, and amounting together to the said sum of §5655 46. And further, to show that at the time when the said authority and direction were given to the defendant and Wood, by David Stewart & Sons, Hilien & Williams were indebted to David Stewart & Sons in a sum larger than the interest and proportion of Hilien & Williams in the said sura of $5635 46, and therefore that David Stewart it Sons had a just right to give the said authority and direction, the defendant produced and offered in evidence certain accounts between David Stewart & Sous, and Hilien & Williams, stated and signed by David Stewart, one of the plaintiffs. But the plaintiffs objected to the evidence so offered by (he defendant, and to the said accounts, as competent to prevent the recovery of the plaintiffs. This objection the Court [Nicholson, Ch. J. and Bland, A. J.] sustained, and refused to permit the evidence or accounts to go to the jury. The defendant excepted.
    S. The defendant then produced Edward Hall as a -witness, who gave evidence that he, by authority from the plaintiff’ Williams, acting on behalf of all the plaintiff’s, purchased at Jlux Cayes the cargo of coffee shipped by the schooner Holstein to St. Thomas, and mentioned in the account first slated in the first bill of exceptions, and shipped it as aforesaid for their account and risk, the cost and charges of which shipment and cargo he charged to them in his account against them; which account he transmitted to the plaintiff’, Williams, some time in the spring of 1800, very soon after the shipment was made; and that the account first exhibited in the first bill of exceptions, was rendered to him, the witness, by the defendant, about the time it bears date, a copy of which account he enclosed to Hilien <$• Williams, or Williams, some short time after he received the same from the defendant. That Williams, both before and after the rendition of said account to the witness, always alleged against the ac-crunt rendered against the schooner and her owners, that the voyage from Jlux Cayes to St. Thomas, ought not to be charged to the owners of the schooner, but was and ought to be considered as on account if the witness. But the witness insisted on his right to recover the same from said owners, and brought a suit against the plaintiff's, and did recover a verdict and judgment against them lor the whole amount of said claim, in Baltimore county court, at March term 1808. That the defendant has never been in Baltimore since the beginning of the year 1800, till just about (he time oí the institution of this suit. Thai some time before the said account was rendered by the defend,ant, Williams inquired of the witness if he had e-ver brought the defendant toa settlement about the Holstein’s business. The defendant then prayed the court to direct the jury, that from this evidence they might find that the plaintiff, Williams, assented to the application made by the defendant of the said sum of $5655 46, to the payment of the debt due to the defendant from Stewart and Sons. Which direction the court refused to give. The defendant excepted.
    3. The defendant then gave in evidence, that after the account of Hall against the plaintiffs, charging them with the cost of the cargo shipped by him to St. Thomas's, was rendered by him to the plaintiff ITU-Hams, the said plaintiff did, on the part of the owners, object to the said charge, and ipfused to consider or accept the said cargo as the property of the plaintiffs, but insisted that it was the property of Hall, and did refuse to pay foist to Hall, and continued so to act and refuse until after (ho recovery against him, and the other plaintiffs, by Hath He also gave in evidence, that David Stewart and Sons «au-thorised and permitted the defendant to apply the said sum of 85655 46 to the payment of the debt due as aforesaid from them to him, but this direction was without the authority of Hillen & Williams. The defendant then prayed the opinion of the court to the jury, that if they believed the facts so given in evidence by the defendant and plaintiffs, as stated in this exception, that then the said conduct and refusal by the plaintiff, Williams, operates in law to preclude the plaintiffs from recovering in this action. This opinion the court also refused to give. The defendant excepted.
    4. The defendant then gave in evidence, that the plaintiffs, in repeated conversations and correspondences, admitted that the schooner Holstein had been sent from Baltimore by David Stewart & Sons, by authority from Hillen & Williams, and for account of the plaintiffs, and belonging to them, under the name of The Speculation, to the Island of St. Thomas's, with a view and for the purpose of there assuming Banish colours and a Banish character, and under them of proceeding to the port of Jácmel, in the Island of Hispaniola, on a trading voyage, for the benefit and account of the plaintiffs. That the schooner, with a cargo of flour on board belonging also to the plaintiffs, accordingly sailed from Baltimore, for the purpose aforesaid, in the month of October, 1799, to St. Thomases, and arrived therein the month of November in the same year. That both vessel and cargo were consigned by Bavid Stewart &/■ Sons to the. defendant and Wood, by whom they were thére put under Banish colours as the property of Jeremiah Fernico, a Banish subject, and despatch-eJ to Jar. ms?, in pursuance of (he orders of tlie owneis, uná sb5] ««i,tinning to be their properly according to the origin¡,¡ intention and plan. That ‘the vc-owl and cargo actor-dingiy jailed from St. Thomas’s in the month of Novem-bo1- ;7Í?9, and arrived at Aux Coyes in flit island of IMj-fardóla, on or about the 1st of jjeccinber following, anti wore there placed under the direction of the said Edward Ju-’l by t’« plaintiff, William:-,. That the cargo was 5m-mediately sold at Aux Cayes by //tí//, for account of the gold owners, and a new cargo purchased with the proceeds thereof, which new cargo I/all, in the same month of December, sent ft ore Mux Cayes in tha schooner to the island of Carrricoct, for account of the -aid owners, from whence the schooner returned to Aux Coyes on or about lire 1st of April 1800. That Hall, still acting for the owners under the authority of the plaintiff Williams, did then purchase a new cargo of coffee at Avx Cayes, for and on account oí the said owners, and put it on boaui of the schooner; and on or about the 20th day of the same month, dispatched the schooner nod cargo from Avx Cayes back to St. Tha-tnes\ consigned to Patrick Hood, of the house of M'In-tosh and Wood, as his own property apparently, but in fact for the plaintiffs, or in case of his absence, to a certain John Im!ay, then the attorney in fact and agent of the said II ood, to be disposed of for and on account of the plaintiffs. That the said vessel, and the last mentioned cargo, prrivnd in Si. Thomas’s in the month of May 1800, and, Wood being then absent, were taken into possession and sold by Imlay as his attorney in fact, who in the month of August in the same year paid to the defendant ths nett proceeds of the said sales as a partner of said Wood, for and on account of the plaintiffs, as stated in the account: first herein before mentioned. He also gave in evidence, that at the time when the said schooner Speculation wan dispatched from Baltimore to the island of Saint Thomas’s, with the views and objects aforesaid, and during the seve - ral voyages of the said schooner as aforesaid, tha plaintiffs were ri1i7,ers of the United States, and residents therein. The defendant then prayed the direction of the court to the jury, that if they believed the said facts, then the voyage from Baltimore to St. Thomas’s, from St. Thomas’s to Av,x Cuyes, and from Aux Layes back to St. Thom-ns’s, were illegal, and that the plaintiffs could not therefore recover in this action. This direction the court gave. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court,
    The cause was argued on the last bill of exceptions, before Buchanan, Eaiiíe, Johnson and Martín, J.
    
      Martin, Winder and Mercer, for tha Appellants.
    Ths defence set up by the defendant in the court below was, that the voyages were illegal, and that although the amount io dispute was received by him as the agent of ths plaintiffs, yet that he had a right to retain it, because the plaintiffs could not recover the proceeds of an illegal transac-tiotl. They contended — 1. That the voyage, under which the proceeds arose, was not an illegal one under the acts of congress then in force. 2. That the money was received by the defendant at the island of St. Thomas, and that as he could not have objected ihere to the paying it over, he could not object here. 3. That the money was not received by the defendant in execution of the contract, as with that he had nothing to do, he being no party to it.
    On the first point. The act of congress of the 13th of June 1798, ch. 70, interdicted commerce with “any port or place within the territory of the French republic, or the dependencies thereof, or with any place in the West Indies, or elsewhere, under the acknowledged government of France.” This act was to continue in force until the end of the next session of congress, which terminated on the Sd of March 1799. By the act of the 9th of February 1799, ch. 108, there was a similar interdiction after the 3d of March 1799. This act was to continue in force until the 3d of March 1800, when it expired. By the act of the 27th of February 1800, ch. 164, (10,) “all commercial intercourse between any person or persons resident within the United States, or under their protection, and any person or persons resident, within the territories of the French republic, or any of the dependencies thereof, shall be, and from and after the second day of March next is hereby prohibited and further suspended,” &c. The seventh section declares, “that the whole of the island of Hispaniola shall, for the purposes of this act, be Considered as a dependency of the French republic.” This act was to continue in force, until the 3d of March 1801, “provided, however, the expiration thereof shall not prevent or defeat any seizure, or prosecution for a forfeiture,. incurred under this act, and during the continuance thereof.” The question arises under the act of 1799, which interdicted the trading to a place acknowledging the government of France. f he island of Hispaniola, did not acknowledge itself tobe under the government of France, and there is no proof that it was. It is not therefore embraced by the act of 1799. Be facto the island was independent. of course the people denied the jurisdiction of France. The island having been named and included by the act of 1800 for the purposes of that act, shows that it was not embraced by the act of 1799. If any one of the voyages was legal, tiie judgment must be reversed.
    On the second point. The money was received by the defendant at St. Thomas, and came within the laws of that island, and if he was bound to pay the money to the plaintiffs there, he' is bound to pay it to them here. If he had been sued there, he could not have defended himself upon the ground that the money received was the proceeds of an illegal traffic interdicted by the U. S. The law of the place where the obligation or cause of action arises, is the law that is to govern. Desobry vs. De Laistre, 2 Harr. Ik Johns. 191, Owins's & Cheston vs. Nicholson fy Williams, (ante &&.) /lives vs. Hodgson, 7 T. R. 241. Phelps vs. Kent, 4 Day’s Rep. 96.
    On the third point. If the voyage was illegal, yet the defendant cannot take advantage of it. He received the money as an agent, and he is bound to pay it over. He was nota citizen of the U. S. and could not be affected by the transaction, if it was illegal. They cited Cotton vs. Thurland, 5 T. R. 405. Jaques vs. Oolightly, 2 W Blk. Rep. 1073. 2 Corn, on Cont. 112, 123. Tenant vs. Elliott, 1 Bos. Sr Pull. 3. Farmer vs. Russell, Ibid 296. Faikney vs. Reynous, 4 Burr. 2069. Petrie vs. liannay, 3 T. R 418. W h ttingham vs. Thornborough, Prec.in Chan. HQ. Barjeauvs, Walmsey, 2 Sira 1249. Lacau-sude vs. White, 7 T. R. 531. Wilkinson vs Kitchin, 1 Ld. Raym. 89; and Aleinbrook vs. Hall, 2 Wils. 309.
    
      Harper, for the Appellee.
    The legal principles relied tipon for the appellants will not be contested; their application to this case however is denied. The laws might always be violated by the intervention of an agent, if the doc-tiine contended for on the other side was to prevail. The act of Congress of 1799, was further to suspend, &c. and it interdicted the trade I. With old France. 2. Her colonies; and 3. Places conquered or occupied by her, &c, 1- Any port or place within the territory of the French republic,. 2. Or, of the dependencies thereof. 3, Or, any place in the West Indies. The territory of France might include dependencies ami places conquered by the French arms, and remaining under the government of France. 1. The only question is, whether St. Domingo in 1799 came within either of the above descriptions? Was St. Domingo then a dependency of France? This cannot be denied. Our courts are bound to take notice of the political state of foreign countries. To do so they must resort, where the fact is doubtful, to what our government consider to be the particular situation of any country. As to the people, of St. Domingo attempting to become independent, it is not to be noticed by our government or our courts, as that island has never been acknowledged to be independent by France. If our government were to acknowledge the independence of St. Domingo, it would be involving the country'in a dispute with France. The public acts of governments are to betaken notice of by courts. If there is a treaty between Great Britain and France, and one of them cedes to the other an island, &e. then our courts are bound to notice such treaty, because our government takes notice of it. But where there is a contest between the mother country and its colony, our government stands neuter, and considers the colony as under the government of the mother country. 2. There is a great distinction between the appellee and the agents and stake-holders in the several cases cited by the counsel for the appellants. Here iiic appellee was (be agent of the parties, and was uppiN ed of the illegal voyage, ami he was privy to the ¡llega,, transaction, aiding and assisting in it; and as such agent, and with such knowledge, the motley now demanded of him carne jn^0 |,js hands. lie cited 2 Com. on Conti. 109; and Steers vs. Lashley, 6 7\ 11. 61.
   The Court concurred with the court below ia the opinion stated in the last bill of exceptions.

Buchanan, J. dissented.

JUDGMENT AlTIlOlEIi.:  