Chauncy v. Yeaton

1 N.H. 151

Opinion

Woodbury, J.,

delivered the opinion of the court.

Footnotes

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It is obvious that the owner of property, which has been wrongfully converted, should possess a right to institute such a suit for the injury as will afford him an ample indemnification. If the wrong doer hath sold, or used and then sold the property, the owner may waive the tort, and in assump-sit recover the net proceeds received both for the use and by the sale. Cowp. 371, Hambly vs. Trott; 10 Mass. Rep, 436. The amount recoverable in assumpsit cannot, upon general principles, operate unfavorably to the trespasser.

in an action ex contractu, nothing can be obtained from him except what has in fact been received for the use and by sale of the property : while in one ex delicto, he may be subjected vindictively to pay much more than the real value of the article converted. Considering him, therefore, in the words of Jackson, J., in Cummings et al. vs. Noyes, 10 Mass. R. 436, as “ a purchaser, or agent, or a bailee,” gives him no just cause of complaint, because it visits on him no actual loss : the amount recovered being merely the amount obtained as the fruits of the trespass.

The form of action being in our opinion correct, it remains for us to decide what we have ever considered the principal question in the case, whether any portion of the receipts for the use of the plaintiffs’ property can here be recovered. That the plaintiffs are entitled to recover the amount for which the ship sold at St. Bartholomews, we have never doubted ; as that sale was to neutrals, and not in an enemy’s country. We should also doubt as little, the right of the plaintiffs to consider the defendants as their agents in freighting and navigating the ship to the West-Indies, and therefore liable for the net profits so received, had the voyage been of an unexceptionable character. Such as it was, however, the plaintiffs, in this part of their claim, adopt the voyage as performed by their direction. They treat Joshua Yeaton as their agent, and ratify his doings, and ask for the benefit of his acts. But it must be admitted, that a court of justice would pervert the design of its institution, were it to lend any aid to parties to recover the proceeds of voyages, performed in violation of good morals and wholesome statutes. The ship in this case proceeded, in point of fact, directly from this country to an enemy’s colony ; and this, too, by order of the agent, and supposed part owner. The whole interest in the ship and freight, notwithstanding the alteration of her name, &c,, continued American, and as such, under British license, was eventually protected at Barbadoes. This license, too, was not only obtained and used by those adventuring in the expedition, bub the cargo itself was selected, or at least was suitable for an enemy’s market, and was there sold to persons in open hostility with the United States. We entertain no doubt that a voyage, so commenced, prosecuted and completed, must, in a court of law as well as of admiralty, be considered as altogether illegal. 1 Com. c. 36. — -I Rob. ad. 196. — 8 D. f E. 548 — 1 Gal. 303. — 8 Crunch 181.

Nor is it material in this case, whether the illegality consisted in the voyage’s having been malum in se, or malum prohibitum. Courts are forbidden to aid in enforcing claims arising from acts of either character, ex dolo malo non oritur actio; and this suit, if regarded as a prosecution by the owners to collect from their employers compensation for a voyage thus unwarrantable, cannot for a moment be endured (1). But we are aware that this part of the claim may be vievmd under another aspect, apparently more favorable to a recovery, by supposing the action to have been instituted by the owners merely to obtain from their agent money, which he has already collected from those who freighted the vessel.

Its object will then be to compel a servant to pay over money received by him from the employers of his master, as compensation for the performance of an illegal act. Such a view better accords with the facts; although a recurrence to principles will disclose the insufficiency even of this view of the transaction to support the verdict. A recovery is forbidden in this class of cases, not because any favor is felt for the defendant ; but on account of the impurity of the subject matter of the claim, and the pollution which soils the plaintiffs in connecting themselves with that subject matter.

Public policy requires the absolute defeat and rejection of all such claims, in order that every legal obstacle may be interposed to put a stop to such transactions.

The following cases are, we apprehend, somewhat parallel, and decidedly against a recovery of the profits of the voyage, 3 Esp. C. 252, Norman vs. Cole. — 2 Caines 147, Belding vs. Pitkin. — 3 Cranch 242, Hannay vs. Eve. — 1 Bin.. 120. — 5 John. 434. — 6 D. & E. 405, Booth et al. vs. Hodgdon. — 2 Gal. 560, Fales et al. vs. Mayberry.

We are gratified to find, however, that the plaintiffs may still obtain the full value of their property converted, although we cannot aid them to participate in the illegal earnings of the vessel. The verdict must, therefore, be amended, by reducing the damages to the price of the ship found by the jury, deducting therefrom the money afterwards paid the plaintiffs, and adding interest on the whole to the time of that payment, and on the balance to the time of the former recovery. In a case circumstanced like the present, we consider the allowance of interest to be strictly conformable both to equity and law. Because, as observed in Elkins vs. The East India Company, Peere Williams, 396, “ if a man has money by way of loan, he ought-to answer interest ; but if he detains my money wrongfully, he ought a fortiori to answer interest : and it is still stronger when one by wrong takes from me my money or my goods, which I-am trading with, in order to turn them into money.” Vid., also, 1 Bin. 494. — 3 ditto 121. — 9 John. 71. — 11 Mass. Rep. 504.

On the verdict thus amended, let judgment be entered for the plaintiffs.

Richardson, C. J., having been of counsel, did not sit in this cause.

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Cow. 343. *555<í!i2&Wils 341-