
    Abraham Touro v. Patrick Cassin.
    The legality or illegality, as well as tlie construction of a contract, must depend on the lex loci, wliere executed, unless it appears from tlie contract itself, that it was the understanding of the parties, that it was to be executed elsewhere, 
    
    A note given in Massachusetts, as a premium, on a policy of insurance, on any vessel engaged id the African slave trade, or on any such slave shipped onboard of any vessel, is void by A. A. of that State.
    A broker is not liable for premium at all events, unless he act under a del credere commission; and to establish a particular custom, the evidence must be clear, certain and conclusive.
    The broker is amere “go-between,” and the insurers and insured are the immediate parties. 
    
    This was an action of assumpsit, tried before Mr. Justice Gantt, Charleston, May Term, 1817.
    The demand of the plaintiff, which was supported by the evidence, consisted of seventeen promissory *notes, amounting with the interest up to the year 1808, to $8028 05. And in an account current between them, in which the amount of these notes was charged to the defendant, the plaintiff had credited him with payment, on account of these notes, to the amount of §5588 29, leaving the sum oE $2439 76, due to the plaintiff, independent of some items of his account, which were not supported by evidence, and for which he claimed a verdict.
    The defence set up, was:
    1. Several of these promissory notes, to a much greater amount than the plaintiff claimed to be the balance due, were given by the defendant to the plaintiff, who was an insurance broker, as premiums on policies of insurance, effected in Boston, on slaving voyages from Africa to Charleston, or elsewhere, in 1803, which, by the laws of Massachusetts, were declared void, and that the said notes were therefore void, as against law.
    2. The defendant set up by way of discount, the payment made on account of the notes, for which he was credited in the plaintiff’s account current ; which after deducting the amount of the notes alleged to be illegal and void, from the plaintiff’s demand, left a balance of $2,950 86, due to the defendant.
    It was satisfactorily proven, that the notes alluded to in the first ground of defence, were given for premiums of insurance underwritten in Boston on slaving voyages.
    The jury found a verdict for the defendant on his discount, for the above balance of $2,950 86; thus supporting, to the fullest extent, the grounds of defence;
    The plaintiff now moved for a new trial, and the following grounds were urged in support of the motion.
    1. Because, as between the defendant and the plaintiff, who was the broker, (an uninterested agent, was, by the custom of Boston alone, liable to the underwriters for the premiums,) the notes alluded to in the first ground'of defence, were legal and valid.
    Because the Act of the Legislature of Massachusetts *declaring insurance on the slave trade void, only relates to trade in slaves, directly between this State and Africa.
    
      
      
        Male v. Roberts, 3 Esp. Ca. Day’s Ed. 164, and Day’s note; Melan v. Fitz-James, 1 Bos. & Pul. 142; Winthrop v. Pepoon, 1 Bay, 468; Ruggles v. Keeler, 3 John. Rep. 263; Thomson v. Ketcham, 8 John. Rep. 189; Woodbridge v. Austin, 2 Tyler’s Rep. 368. And see the learned decision of Judge Story, in Van Reimsdyk v. Oliver Kane, et al., 1 Gallison’s Rep. 371, and Hicks v. Brown, 12 John. Rep. 142.
    
    
      
      
        Jansen v. Green, 4 Burr. 2103. R.
    
   The opinion of the Court was delivered by.

Johnson, J.

The legality or illegality, as well as the construction of a contract, must depend on the lex loci, where they were executed unless it appear from the contract itself that it was the understanding of the parties that it was to be executed elsewhere. The policies of insurance, oil which the notes in question were given as premiums, were executed in Boston, by citizens of Boston, and there is nothing in them from which it was possible to infer that it was the intention of the parties that these conditions were to be performed elsewhere. We must, therefore, have recourse to the laws of Massachusetts to determine on their legality. An Act of the Legislature of Massachusetts, passed in 1788, in the first clause provides, “that no citizen of that commonwealth, or other person residing within the same, shall for himself, or any other person whatsoever, either as master, factor, supercargo, owner, or hirer, in whole or in part of any vessel, directly or indirectly, import, transfer, buy, or sell, or receive on board with intent to cause to be imported or transported, any of the inhabitants of any State or kingdom, in that part of the world called Africa, as slaves or servants for a term of years,” and imposes a penalty on those offending against its provisions ; and the second clause provides that all insurance made within the State, “on any vessel fitted out with intention as aforesaid, and having on board slave or slaves, in order to be transported from Africa as aforesaid, or upon any slave or slaves, so shipped on board of any vessel, shall be void and of no effect.” The importation of slaves into Massachusetts, and slavery itself, were abolished before the passing of this Act. We are not, therefore, left to resort to difficult and narrow windings of speculative construction, to come at the intention of the legislature* of Massachusetts. The intention of the Act is plain and obvious, and it speaks a language which can scarcely be misconceived. The citizens of that State, and the persons resident there, are prohibited, under severe peualties, from engaging in a traffic which almost the whole civilized world now unite in denouncing 'nefarious. And the clause declaring insurances on this traffic void, was doubtless intended to prohibit their indirect support and encouragement of that which the first clause wholly prohibited. Now it will not be denied that the State of Massachusetts has a right to prescribe laws for her owd citizens; and it is obvious that these policies were void, and that the defendant could not have recovered in an action brought there on them, if a loss had happened. It, therefore, follows, that the notes given for premiums were also illegal and void.

Bichardson, Attorney-General, for the motion. Simons and Prioleau, contra.

It is said, however, that the defendant is bound to the plaintiff, as he was personally and solely responsible to the underwriters for the premiums, under the particular custom of Boston ; and although the contract, as between the defendant and the underwriters, might be considered as illegal, yet, as between the plaintiff, who was an innocent agent, and who had subjected himself to this liability, at the request of the defendant, he was liable over to him.

A broker is not liable for premium at all events, unless he act under a del credere commission. Lex Mercatoria Americana, 4L9. And to establish a particular custom, the evidence must be clear, certain' aud conclusive. Edie, et al., v. East India Company, 2 Burrow, 1221. No such evidence has been adduced of the alleged custom. On the contrary, one of the plaintiff’s clerks swear, that although these premiums were in the first instance debited to the plaintiff in his account current with the underwriters, yet they were afterwards charged back to them as unpaid. The broker is a mere “ go-between;” and notwithstanding usage has rendered his agency usual, and in some measure necessary, yet the insurers and insured *are the immediate parties. I am, therefore, of opinion that the plaintiff was not entitled to recover for the notes given for premium on the slave voyage. But I am also of opinion that the jury were not warranted in finding a balance for the defendant. Where money has been paid voluntarily, on a contract merely illegal, it cannot be recovered back, unless a recovery is given by some express statute, and I am aware of none applicable to this case. Now the discounts set up, and supported by evidence, consisted solely of payments, directly and voluntarily made; he is not, therefore, entitled to recover them back, as they were paid on an illegal contract.

I am therefore of opinion, that the motion for a new trial ought to be granted.

All the judges present concurred. 
      
       3 Strob. 421.
     
      
       2 McC. 198; 4 McC. 392; 3 Hill, 26; 1 Rich. 256.
     
      
       Dud. 163; 10 Rich. 339; 1 Bay, 294; 1 Strob. 203; Post. 519, 2 vol. 9; Harp. 268; 3 McC. 121; 1 Mill’s C. R. 303, 308.
     
      
       2 vol. 581.
     