
    N. B. Young vs. Calvin Green.
    
      Principal and Agent — Breach of Trust — Contract—Fraud— Jurisdiction.
    
    It is no ground for the Courts refusing to entertain jurisdiction of a bill to account by an agent residing in this State, and having possession of his principal’s property here, against his principal residing in Virginia, that the agent was under contract to take the property to Virginia — the filing of such bill being no breach of trust or fraud.
    This was a bill of account, filed 16th February, 1856, by the complainant, a citizen and resident of South Carolina. Complainant, inter alia, alleged that “ your orator entered into a contract and agreement with Calvin Green, a resident of the State of Virginia, then the owner of race horses, and engaged in the business of training horses for races and matches, and for sale, by which it was agreed that your orator should give his time and services to the said Calvin, in training his horses and taking care of and superintending them while being prepared for and engaged in races and otherwise, taking them from place to place and having the general charge, custody and control of them for that purpose.” After stating the claim at length and with particularity, the bill proceeds, “ and your orator further sheweth unto your Honors, that the said Calvin Green, is a resident of the State of Virginia, and is now without the limits of the State of South Corolina, but that he has certain property within the said State, that is, two negro slaves, named Henry and Dick, and three horses, one called Frankfort, and two others, which are young and have not yet received any appellation; all which property has been and still is in the possession and under the control of your orator, as superintending and interested in the business as aforesaid.” The bill further continues : “ In tender consideration whereof,” &c. &c. &c., “ and that in default thereof, the said property above specified, to which the said Calvin is entitled, now within the limits of this State, and in the possession and under the control of your orator, may be sold,” &c. &c.; and in the meantime that Green be restrained from removing the property. Bill prays an injunction to prevent defendant from transferring the property to any other' person, or from removing the same beyond the limits of the State; also for a subpcena. The injunction was granted by the Master.
    Green having subsequently come within the jurisdiction, complainant on the 20th March, 1856, filed his supplemental bill, praying a writ of Ne Exeat, and a Subpoena to answer both bills. The writ of Ne Exeat was granted by the Master.
    Defendant filed his answer on the 21st March, 1856, which, after admitting that complainant continued in defendant’s employment up to the filing of the bill, says inter alia, “ this defendant attended the Charleston Races in February, and left complainant here with his horses and two negroes of defendant, Henry and Dick, and gave him money to maintain them here and bring them to Virginia, and directed him to remain in Charleston, and exercise the colts in his keeping, till about the first day of March, and then 'to come on to Broad Rock, and this the complainant faithfully promised to do; but in violation of his agreement and of all duty as an agent, he has filed his bill, and converted his possession of this defendant’s property into an adverse possession, against the plainest principles of justice; which require an agent to give up his trust before he assumes the ground of an adversary; and this defendant, though willing at all times to settle fairly with complainant, yet in consideration of his treachery in endeavoring to withhold from him what he had received as his agent, and suing him in a foreign jurisdiction, instead of taking his property home as he was employed to do, submits to your Honors whether horse racing is a business which furnishes ground for the jurisdiction of Chancery; and whether the complainant, according to the principle of Chancery, can maintain a suit for performance of an agreement which he violates in the very act of suing, and whether he can found any title to relief, or to the process of this court on his own wrong.”
    The two following letters were introduced in evidence at the hearing:
    
      Charleston, February 16th, 1856.
    Mr. Calvin Green:
    Dear Sir: My circumstances have compelled me to take legal steps against you for money advanced: my own wages, William’s wages, and Thomas’ wages, (which I have done in as secret a manner as possible,) which amounts to something like two thousand dollars due me. I acknowledge my sincere thanks for your kindness towards me since I have been in your employment, and would take pleasure in training for you again this spring if you can so arrange as to pay me. The colts I have at the track, and have commenced to gallop them as you directed me. The filly I am galloping 3-4 of a mile in company with the colt, and they both seem to be doing well.
    Frankfort I am walking once a day. He is looking well, and I am preparing to give him medicine sometime the first of nest week. I shall leave here for Macon, as I promised you, on Sunday, the 24th, and I should like to see or hear from you before I leave. I shall return to Charleston from Macon about the 3d of March, and then, if you wish, I will go onto Virginia and train for you. Yours, respectfully,
    N. B. YOUNG.
    P. S. — I have not heard from Mr. Shaw yet in regard to Ellen Bateman.
    
      
      Charleston, March 1st, 1856.
    Mr. Calvin Green :
    Dear Sir : “ I received yours of the 22d, day before yesterday, and have seen Mr. Mitchell, and he will write to Mr. Johnson in regard to our business. Frankfort is looking quite well and is doing well.' I have him turned out in the race track every day, when the weather is good, in a place I have fixed for him. The bay colt I am galloping regularly, and so far I like him very much.
    The filly I have taken on the track with him for company, but do not work her regularly. She is not well yet, but is looking full as well as she did when you left, and I like her action very well. I have not left here since you left, but hear that Linda won mile heats at Macon, and was to run again yesterday. She beat Adelgiza. Your letter in regard to sending Henry and Dick home, I did not receive, or I should have done as you requested. Yours, respectfully, ’
    ’ N. B. YOUNG.
    
      Calvin Green, Esq.:
    
    P. S. — I have written to Mr. Shaw in regard to Ellen Bate-man, but have not heard from him yet. The Goodwin colt. I sold for $250. < N. B. Y.
    The defendant moved to dismiss the bill for want of jurisdiction, and to discharge the defendant.
    His Honor overruled the motion and ordered an account, from which the defendant appealed.
    
      Reasons for Granting the Rule to dismiss the Bill for want of Jurisdiction.
    
    The defendant is a resident of Virginia, and as such not amenable to this Court. The only claim of jurisdiction against him rests upon the allegation that he has property in this State. The property consists of two negroes and three horses. It ,is admitted that he is the owner of them, and at the time of suing out of process against him they were in the State. But they were in the 'possession of complainant himself as his agent, with orders to return to Virginia, and complainant, instead of obeying his instructions, staid- here, and got out process against his principal.
    , Appellant submitted these points :
    
    1. That the case discloses a breach of trust on the part of complainant.
    2. That for complainant to transfer this cause from the jurisdiction of Virginia to South Carolina, is to take advantage of his own wrong.
    3. That the Court owes it to its own dignity as well as to the comity of States, to refuse jurisdiction, when the claim of jurisdiction is founded on the fraud of him that claims it.
    
      Petigru, for appellant.
    If a man is wrongfully brought into a jurisdiction and there arrested, he ought to be discharged, for no lawful thing founded in an unlawful act can be supported. Per Holt, Ch. J. 11 Mod. 51.
    If the defendant be deprived of his liberty by any illegal contrivance on the part of the plaintiff, or of the Sheriff, or officer, the arrest will be void, and in the latter case all subsequent detainers will be void also. Lush’s Pr. 600. Therewith agrees Loveridge vs. Plaistow, 2 H. Bl. 29; Birch vs. Prodger, 1 N. R. 135 ; Barratt vs. Price. E. C. L. R. vol. 23; Holiday vs. Pitt, 2 Str. 985.
    A disposition has been shown to make a distinction between the arrest and the detainer. But equity has always rejected the distinction. Ex parte Hawkins, 4 Ves. 691; Ex parte King, 7 Ves. 312; Ex parte Donlevy, 7 Ves. 317; Ex parte Ross, 1 Rose, 260. If the first arrest is bad all the detainers are inoperative.
    
      “ Complainants had a right to the law of their own State. If the defendants intention to remove the slaves had been known, he might have been restrained by the process of this Court. It was in violation of law that they were removed, and can he retain an advantage gained by the violation of law?” per Harp. Ch. Dudley's Dq. Rep. 52.
    
      Mitchell, contra.
   The opinion of the Court was delivered by

Wardraw, Ch.

It is not disputed by the defendant that this case is within the jurisdiction of the Court, if the special objections made in the grounds of appeal do not prevail; and we confine our consideration to these objections.

It is said, in the first place, that the case disdoses a breach of trus.t on the part of plaintiif. The appeal is from the refusal of the Chancellor to dismiss the bill for want of jurisdiction in the Court, and upon such motion, perhaps in strict procedure, the statements of the bill must be taken as admitted, but it is unnecessary to discuss this point, as the only evidence before us, two letters of plaintiif to defendant, does not vary the contract between the parties as stated in the bill. That contract was, that plaintiif, for some compensation, should have the custody and management of certain horses belonging to defendant, for the purpose of fitting them for racing, and perhaps for sale. This constituted the relation of principal and agent, and not strictly that of trustee and beneficiary. In a loose sense, and for some purposes, every bailment is a trust, but an ordinary bailment creates no such fiduciary relation between the parties as to fix the bailee in possession with the responsibilities of a trustee. If every agent in possession of his principal’s property were treated as a trustee, 'then trusts which were the source of Equity jurisdiction would swell into a boundless sea. 1 Sto. Eq. 464. Then what is the breach of this supposed trust ? Simply that the agent has sued his principal. I suppose that a technical trustee entitled to call his beneficiaries to account, might avail himself of their estate in his possession, where they were beyond the jurisdiction, to found an application to the tribunals of his domicil.

It is said, secondly, that to allow the plaintiff to proceed in this jurisdiction, instead of Virginia, enables him' to take advantage of his own wrong. We are not informed where the contract between the parties was made, and we know nothing on the point except that the plaintiff resides in South Carolina, and the defendant in Virginia. The wrong imputed to the plaintiff is that he has selected a tribunal of his own State, instead of indulging the defendant with the more acceptable and less expensive course of a suit at home. Surely a plaintiff has the option on this point, and is not required at his own expense and inconvenience to pursue a defendant in a foreign court. It is urged, however, that plaintiff had the custody of defendants property here under an engagement to take it to Virginia, and for proof, his letter of March 1, 1856, is relied upon, in which he says: “your letter in regard to sending Dick and Henry home, I did not receive, or I should have done as you requested.” This is no proof of any previous promise of plaintiff to carry any of the property to Virginia, and if it were so construed, does not apply to all the property in plaintiffs possession; but, suppose the plaintiff had agreed to take all the property to Virginia, it by no means follows that he could not resort to this property for satisfaction of a debt due to him. A creditor in possession, by universal law, has some precedence over other creditors, and it is no fraud in him to avail himself of this advantage. In criminal cases, it is indifferent by what means an offender who has violated our law be brought within the jurisdiction, even if it be by lawless.violence in the territory of another State, and he is responsible for his crime, and not entitled to discharge or exemption from punishment. State vs. Smith, 1 Bail. 283 The rule is different in civil cases, and if one should be brought within our territory by force or fraud, for the purpose of arresting him, jurisdiction would not be acquired by this unlawful act; and perhaps the result would be the same if his property should be brought within our territory by force or fraud for the purpose of grounding suits here against him. But there is no reason for extending the doctrine further. In the present case, so far from the property of defendant having been introduced by any force or fraud of the plaintiff, it appears that the defendant himself brought the property hither, and left it in plaintiffs possession after the February races. If plaintiff has committed any wrong, or done any thing Which may be denominated fraud, it consists in not taking back to Virginia property brought into South Carolina with consent of the owner. But, at the utmost, that is asimple breach of contract, and not fraud in any legal sense, and not within any rule or doctrine which would oust the Court of jurisdiction.

Thirdly, it is said that the Court qwes it to its own dignity, as well as -to the comity of States, to refuse jurisdiction when the claim of jurisdiction is founded on the fraud of the claimant. The doctrine of this ground may be sound, but it has no application to the case. So far as we perceive, the whole fraud of the plaintiff is in preferring the judicial remedies of the State of his residence. Doubtless, it would have been more convenient to defendant to have this litigation at home, but the convenience of the plaintiff is to be preferably consulted. In hard times it may be inconvenient to debtors to pay their creditors any where; but we cannot acknowledge, with proper self-respect, that the rights of litigants can be more safely determined elsewhere than in South Carolina.

It is ordered and decreed that the appeal be dismissed.

' Dunkin and Dargan, CC., concurred.

•Appeal dismissed.  