
    Edmund Seaman, Robert Seaman, Thomas, Tobias, and Billopp B. Seaman, Plaintiffs in Error, against Joshua Waddington, who is impleaded with Henry Waddington, Defendant in Error.
    
      Same points as last'case.™
    THE plaintiffs in error brought an action of assumpsit against the defendant in error, in the Supreme Court, to recover a balance of 18,359/. 8s. 3d. sterling, with the interest thereon from the 1st of January, 1814, as stated in an account current, signed by H. W. with the name of H. W. 8? Co. The plaintiffs in error were debited on the 8th of February, 1813, with cash, 1,847/. sterling, and credited in September, 1812, and the 1st of January, 1813, with bills amounting to near 19,000 pounds sterling, and with cash and interest to the 1st of January, 1814, making the whole amount 20,305/. 8s. 3d. sterling.
    The cause was tried at the New-York sittings, the 11th of December, 1816, before Mr. J. Van Ness, and the evidence, stated in the last case of Griszoolds against the same defendant, of the two cartels ivith letters for England; the' petition and affidavits of the defendant in the District Court; the purchase of bills in England, by the government of the United States, was introduced. The plaintiffs also gave in evidence an advertisement, inserted in the New-York Evening Post and New-York Gazette, the 15th of November, 1814, signed by the defendant, J. Waddington, and Robert S. Newby, stating that the copartnership heretofore existing at New-York, between the subscribers and Henry Wadding-ton, of London, under the firm of J. W. <£• Co. and that at London, between II. W. $• J. ,W. under the firm of H. W. Co. expired by their respective limitations, on the 1st of January, 1813.
    The defendant proved, by the answer of E. S., one of the plaintiffs, to a bill of discovery in Chancery, filed by the defendant, that between the 3d of August, 1812, and the 20lh of September, he and his copartners, trading in New-York, re-milled to H. W. §■ Co. of London, two British government bills, drawn on the Lords of the Treasury, amounting to 3,000/. sterling; one on the Commissioners of the Treasury, for 600/. sterling, and several bills on individuals, amounting, in the whole, to above 20,000 pounds; and that some of the bills were remitted from Lisbon.
    
    The defendant also proved, that a bill of exchange for 10,000/. sterling, dated New-York, December 8, 1814, and credited in the account current, as of the 1st of January, 1817, was procured by the proceeds of the ship Othello's cargo sold at Lisbon. That the ship sailed from the United States, during the war with Great Britain, and the supercargo had instructions from the owners of ship and cargo to sell the cargo, and invest the proceeds in bills of exchange on England, and to remit such bills to H. W. 8/ Co. of London, to be passed to the credit of the plaintiffs in error. The ship sailed on the voyage with a British license on board ; and was cleared for the voyage on the 4th of November, 1812. By an endorsement made on the license, dated the 24th of February, 1813, signed by the British ambassador at Lisbon, the ship was protected from British cruisers, while returning home to the United States with a cargo of salt. Another item in the account current, of 350/. sterling, was also procured and remitted to the plaintiffs in error, from the proceeds of the Othello's cargo. The Othello had made a previous voyage to Lisbon, with a similar license, after the declaration of war against Great Britain ; and two bills of exchange of 1,988/. 6s. Id. sterling, and 3,000/. sterling, were procured and remitted from the proceeds of the freight and cargo of the first voyage, under similar instructions given to the supercargo.
    It appeared, from an entry in the waste book of the plain» tiffs in error, in October, 1814, and from a letter addressed by them, under the firm of E. Seaman, Son, 8' Co. to Henry Waddington 8' Co., dated the 8th of October, 1814, that the plaintiffs had transferred their funds in the hands of II. W. 8~ Co. to Edmund Seaman, and they request H. W. 8r Co, to hold the same, subject to his orders, debiting their account with the amount and interest to the 1st of January, 1815, and placing the same to his credit.
    
      The jury, under the direction of Mr. Justice Van Ness¡ before whom the' cause was tried, found a verdict for the defendant. The plaintiffs in error tendered a bill of exceptions to the opinion and charge of the judge, which, pursuant to the statute, was brought before the court below, who gave judgment thereon in favour of the defendant in error. To reverse which judgment the present writ of error was brought.
    The plaintiffs in error alleged, that the judgment ought to be reversed:
    1. Because the partnership proved to have existed between J. fy H. W. in London, before the late war between the United States and Great Britain, was not dissolved or terminated by that war, or otherwise, previous to the accruing of the plaintiffs’ right of action.
    2. Because there was no illegality in the contract or transactions in which the action is founded; or, at least, none such as can defeat the right of recovery.
    3. Because that proper and legal evidence offered by the plaintiffs on that trial was rejected by the judge.
    4. Because, the judgment of the Supreme Court is contrary to law.
    The defendant in error insisted that the judgment of the Supreme Court ought to be affirmed :
    1. Because the declaration of war by the United States against the king of Great Britain worked a dissolution of the copartnership then existing between J. W. and H. ¡V.
    
    2. Because, if the declaration of war did not work an absolute and entire dissolution of the said copartnerships, it operated in law, at least, to suspend it, as to all commercial dealings and transactions carried on by either party, during the continuance of war.
    3. Because, the copartnership having expired by efflux of time, during the continuance of the war, and the defendant, J. Wbeing resident in the United States, no notice of the expiration of the partnership was necessary on his part.
    4. Because, the balance of account, claimed by the plaintiffs, has grown out of a trade and intercourse unlawfully carried on by them, with the enemy, during the existence of the late war; and no action can be lawfully sustained in the courts of this country to enforce a claim founded on such unlawful dealing, especially to charge an innocent party not concerned in the illegal traffick.
    5. That the balance of account having been assigned and transferred to the separate account and credit of Edmund ■Seaman, the plaintiffs in error have no right of action against the defendants; there being, what is termed in the civil law, a novation of the contract.
    
      Griffin and Henry, for the plaintiffs in error.
    
      Hoffman and Emmett, for the defendant in error.
    The different points raised in the cause were most ably argued by the counsel; but as the principal question, as to the illegality of the contract, on which the opinion of the court turned, has been already discussed and considered so much at large, in the case of Griswolds v. Waddington, it is unnecessary to state the arguments of the counsel.
    
      March 18.
   The Chancellor.

This case involves the same questions, as to the lawfulness of trading with an enemy in time of war, and as to the existence of commercial partnerships between the subjects of the two hostile states, as those already discussed and decided in the case of Griswolds v. Waddington. It would, therefore, be unnecéssary and useless to repeat the same arguments.

But in this case the trading with the enemy wTas more offensive, and more aggravated in its circumstances, and is liable to more severe animadversion.

In this case the plaintiffs admit, that within the first six months after the commencement of the war, they remitted to England, in private and in British government bills, to the amount of upwards of 20,0001. sterling. The object of this was to transfer so much of the capital of the plaintiffs, in time of war, from their own country, to be deposited on interest in a mercantile house in London; audit must have been done with the design, either of aiding and assisting the enemy, by a loan to that extent, or placing their funds under what they deemed better protection in the enemy’s country than in their own. The, house they selected having been concerned in extensive speculations during the war, and having probably employed those very funds in trade or enterprises subservient to the interest and views of the eneunfortunately became bankrupt just at the conclusion of the war> it now suits the convenience of the plaintiffs to call upon our courts to assist them to recover this money, and, consequently, to charge this loss upon a citizen of New-York, on the ground that the alien enemy had a right to bind him as a partner.

But this is not the whole view of the case. The principal part of the money was the proceeds of the two cargoes sent by the plaintiffs, in the ship Othello, to Lisbon, during the first year of the war, under a British license, and the same ship was protected during her return voyage, by a fresh British license, procured at Lisbon. The plaintiffs, by such conduct, whatever may have been their intention, laboured most faithfully and effectually, during the first year of the war, to impair the resources and to diminish the trade of the one country, and to increase the resources and promote the commerce of the other. If such a trading as this be lawful in war, then I should think, that any one or more of these United Stales might, by law, have ratified such a commerce with the enemy, in spite of the declaration of Congress. I cannot conceive of a more criminal and injurious breach of allegiance, short of the crime of treason ; and I think it is utterly inadmissible that these plaintiffs should come here and receive the aid of this court to sanction such dealings and enforce such contracts.

ilarchio.

On this single ground of the illegality of the trade, and of the void nature of -the contract, I am of opinion that the judgment of the Supreme Court ought to be affirmed.

This being the opinion of the whole court, (Livingston, Senator, dissenting,) It was thereupon or.ber.eb and adjudged, that the judgment of the Supreme Court be affirmed, &c.

Judgment of affirmance.  