ond count. The Circuit Court entered a judgment on the first plea for the amount found by the jury, fourteen thousand and thirteen dollars and sixty-seven cents; the judgment to bind

assets.

From this judgment the defendants prose cuted this writ of error

If two individuals were to conspire, in a foreign country, to obtain money from a third par ty, either by highway robbery or theft, or by cheating of any description, and under the conspiracy one of them were to obtain the money of the third party, it would scarcely be contended that under such an agreement the other On the trial of the cause in the Circuit Court, could claim from his associate in the conspiracy the defendants took a bill of exceptions to the a share of the plunder, through the instrumendecisions of the court on six different proposi-tality of a court of justice. It is contended tions or prayers, submitted by their counsel for that there is no difference between such a case the opinion of the court. The bill of excep- and a conspiracy to cheat the government, and tions contains the whole evidence in the cause. that such a conspiracy is essentially different as All the prayers of the counsel for the defend- it regards its validity in our courts, from conants were refused by the court. tracts made for the purpose of evading the revenue laws, or the mere commercial regulations of a foreign country; when to invali- [*285 date such a contract would be substantially to enforce such laws and regulations.

The opinion of the Supreme Court on the matters presented under the writ of error was given on two propositions, into which all those submitted in the Circuit Court were considered to be resolved.

"1. That the agreement between Captain 284*] De Valengin and John H. Duffy, under which De Valengin was to claim remuneration from the Brazilian government for the loss of the brig President Adams and her cargo, on the ground of its being neutral property, when, in truth, the cargo was the property of John H. Duffy, and therefore belligerent, and liable to capture by the laws of nations, was fraudulent and immoral, and that the courts of justice of the United States will not assist a party to recover money due on such agreement. "2. That if the money belonged to John H. Duffy, the action would not lie against Neale, as administrator, nor the money be assets in his hands of De Valengin's estate; that his return to the Orphan's Court cannot alter the character of the transaction, and that this suit ought to have been continued against Neale's administrator, and not against the representatives of De Valengin.

The case

was submitted to the court on printed arguments by Mr. M'Mahon and Mr. | Johnson for the plaintiffs in error, and by Mr. Williams for the defendant in error.

On the first proposition, as stated by the Circuit Court in its opinion, the counsel for the plaintiffs in error contended that the alleged agreement between John H. Duffy, the defendant in error, and Captain De Valengin, by which the latter was to prosecute the claim on the Brazilian government, for indemnity for the loss of the brig President Adams and her cargo, representing the whole property to belong to him, and, as such, not liable to capture; proposes nothing more or less than the case of two persons conspiring to cheat a third party out of his property.

The object of the agreement was merely to extract money from the third party, and this was to be accomplished by conspiring to make false and fraudulent representation of an injury done to one of them, who, in fact, had sustained no injury; and this falsely alleged injury is made the sole basis of the payment by the third party. The verdict of the jury admits that the payment was made only in consequence of the false and concerted misrepresentations, and would not have been made, if the truth had not been suppressed by the conspiracy.

It is contended that such an agreement will be held fraudulent everywhere; and that, in such a case, the fraud has no locality.

It is contended, also, that not only was such an agreement void, and that thereby the principal fact on which the court instructed the jury in favor of the plaintiff in the Circuit Court was removed from the case, but that the existence of such an agreement necessarily prevented a recovery from the plaintiffs in error; as it would have precluded a recovery against De Valengin, if he had obtained the money from the Brazilian government.

The case put on the whole of the proof of the defendant in error established this fraudulent agreement, and showed that the money had been obtained by false documents, furnished by John H. Duffy, or obtained by his aid and with his privity.

The property thus coming into the possession of the administrator, the effect of this action was and is to repudiate the plaintiff's own fraudulent documents, evidencing title in De Valengin, and to reclaim the property by force of the agreement to pay over the money to him when recovered. The action could only be maintained upon the agreement to pay over the money when received; he having parted with the title for the fraudulent purpose: this agreement to pay over was a part and parcel of the corrupt and fraudulent agreement, which could not be severed from the latter, nor established without proof of it. The case, therefore, fell within the scope of the well established principle "that when recovery cannot be had except by proof of the illegal or corrupt agreement, or through the medium of it, it cannot be had at all."

The counsel for the plaintiffs in error also contended that the proof of the fraudulent agreement showed conclusively that the defendant in error had no title to the money sought to be recovered; that by his own show. ing, the title to it was in the Brazilian government; that the money sought to be recovered was not, and never had been his property or the proceeds of his property, but was, on the contrary, a sum of money originally belonging to the Brazilian government, and obtained by fraud from it; and the proof of the fraud furnished by himself, and showed in the agree ment supposed by the prayer, established that the title was still in the said government, and not in the defendant in error.

Upon the second proposition as stated in the opinion of the court, that the action would not lie against Neale as administrator, nor the

be made the subject of a suit in a court of the claim upon the ground that the property was United States; the counsel for the defendant in De Valengin's, and at length succeeded in oberror said that it assumes that in a court of the taining compensation for it from the Brazilian United States, between citizens of the United government. The money was paid to Neale's 288*] *States, an agreement cannot be en-agent at Rio Janeiro, and invested in coffee, forced which seeks to guard bona fide American property from seizure by one belligerent power that is at war with another; both of them being at peace with the United States. The device practiced in this case, by placing the property in the name of the captain, is not forbidden either by the laws of nations, the laws of war, or the laws of morality.

The residence of Duffy in Buenos Ayres, which imposes upon him a temporary alle giance to one of the belligerent parties, may subject his property, if captured, to condemna tion in the courts of the other. But if the property is restored or indemnified for, either because the capturing power chooses to waive its right to condemn, or because the residence of its true owner is unknown, it ought clearly to inure to the benefit of the true owner against all the rest of the world. It would be monstrous, and against all law and justice, to allow the other contracting party, who has participated in the seizure, to claim that as his own which he admits to be another's, and which he has promised to account for when received. 1 Bos. & Pull. 3; 7 Wheat. 283; 8 Wheat. 294. The cases relied on by the defendants below, are irrelevant to the points in issue. They chiefly relate to controversies between a neutral and a belligerent, as 2 Dall. 34; 1 Kent's Com. 143; 7 Wheat. App. 27; Story's Confl. L. 214, or to cases of insurance, where there was a concealment of material facts, as 3 Wash. C. C. R. 391; 2 Phil. Ins. 130.

Mr. Chief Justice Taney delivered the opinion of the court:

This case comes here upon a writ of error to the Circuit Court for the District of Maryland. It appears from the record that John H. Duffy, an American citizen, being engaged in commerce and domiciled at Buenos Ayres, shipped a cargo of hides and lard to Gibraltar, on board the brig President Adams, in 1828. Buenos Ayres was then at war with Brazil. The President Adams was an American vessel, and De Valengin, her captain, was a citizen of the United States. He was also part owner of the

vessel.

In order to protect the cargo from capture by the Brazilians, it was shipped as the property of De Valengin; and the bill of lading and other papers in relation to it, were made out in his own name. The brig was, however, cap: tured on her voyage by a Brazilian cruiser, and was wrecked; and the vessel and cargo totally lost, near Monte Video, while in possession of the captors, who were endeavoring to carry her into port.

De Valengin being the ostensible owner of the cargo, he, with the consent of Duffy, prosecuted a claim for remuneration from the Brazilian government, insisting that the property belonged to him; that it was neutral property, and, therefore, unlawfully captured. De Valengin died before he recovered anything: and after his death, James Neale took out letters of 289*] administration on his estate, *in the city of Baltimore, and continued to prosecute the

and shipped to him at Baltimore; where he received and took possession of it as property belonging to De Valengin's estate, and as his administrator. It was duly appraised as the property of De Valengin, and returned as such by Neale to the Orphan's Court, in January, 1834; and afterwards was sold by him, and the money received. It does not appear from the evidence, whether Neale had or had not any knowledge of the interest of Duffy in the cargo, while he was prosecuting the claim against the Brazilian government, or when he received the compensation for it.

In March, 1834, Duffy brought suit against Neale for the money he had thus received. The suit was against Neale as administrator of De Valengin. In 1836, Neale died, the suit being still pending; and after his death, process was issued against the present plaintiffs in error, who are the administrators de bonis non of De Valengin, in order to make them defendants to the suit which he had instituted against Neale in his lifetime, as administrator as aforesaid.

The declaration was amended by the plaintiff after the appearance of the administrators de bonis non; and the only count applicable to the case, as it appears in the testimony, was that for money had and received by Neale, as administrator of De Valengin, to and for the use of the plaintiff. The defendants pleaded non assumpsit and plene administravit, upon which issues were joined; and the jury found for the plaintiff on the first issue, and for the defendants on the second; and the judgment was entered for the amount found due by the jury in the usual form, to bind assets when they shall arise.

At the trial, several instructions were asked for by the defendants, which were refused by the court. They may all, however, be resolved into two. 1. That the agreement between De Valengin and Duffy, to claim remuneration from the Brazilian government, upon the ground that it was neutral property, when in truth it was Duffy's and, therefore, belligerent, and liable to capture by the laws of nations, was fraudulent and immoral; and that the courts of justice of this country will not assist a party to recover money due on such an agreement.

2. That if the money belonged to Duffy, the action would not lie against Neale as adminis trator, nor the money be assets in his hands, of De Valengin's estate; that his retrun to the Orphan's Court cannot alter the character of the transaction; and that the suit ought to have been continued against Neale's administrator, and not against the representatives of De Valengin.

The first question may be disposed of in a few words. It has been frequently held that the device practiced in this case, of covering the property as neutral when in truth it was belligerent, is not contrary to the laws [*290 of war, or the laws of nations. And contracts made with underwriters in relation to property thus covered, have always been enforced in the courts of a neutral country, when the true character of the property and the means taken

We do not mean to say that the principal may not, in such cases, resort to the adminis trator in his personal character, and charge him, de bonis propriis, with the amount thus received. We think he may take either course, at his election; but that whenever an executor or administrator, in his representative character, lawfully received money or property, he may be compelled to respond to the party entitled in that character, and shall not be permitted to throw it off after he has received the money, in order to defeat the plaintiff's action.

to protect it from capture, have been fairly rep- | any sound principles of reason, or to find any resented to the insurer. The same doctrine has countenance for it in analogous cases. always been held where false papers were used to cover the property; provided the underwriter knew or was bound to know that such stratagems were always resorted to by persons engaged in that trade. And if such means may be used to prevent a capture, there can be no good reason for condemning with more severity, the continuation of the same disguise after capture, in order to prevent the condemnation of the property, or to procure compensation for it, when it has been lost by reason of the capture. It is true the courts of the capturing na tion would never enforce contracts of that description; but they have always been regarded as lawful in the courts of a neutral country. The second question is one of more nicety, and the cases are not entirely reconcilable to each other. There are, doubtless, decisions which countenance the doctrine that no action will lie against an executor or administrator, in his representative character, except upon some claim or demand which existed against the testator or intestate in his lifetime; and that if the claim or demand wholly accrued in the time of the executor or administrator, he is liable therefor, only in his personal character. But upon a full consideration of the nature, and of the various decisions on the subject, we are of opinion that whatever prop. erty or money is lawfully recovered or received by the executor or administrator, after the death of his testator or intestate in virtue of his representative character, he holds as assets of the estate; and he is liable therefor, in such representative character, to the party who has a good title thereto. In our judgment, this, upon principle, must be the true doctrine.

In the case of a factor who sells the goods of his principal in his own name, upon a credit, and dies before the money is received, if it is afterwards paid to the administrator in his representative character, would not the creditor be entitled to consider it as assets in his hands, and to charge him in the same character in which he received it? The want of knowledge, or the possession of knowledge on the part of the administrator, as to the rights or claims of other persons upon the money thus received, cannot alter the rights of the party to whom it is ultimately due. The debtor, that is to say, the party who purchased from the factor without any knowledge of the true owner, and who pays the money to the administrator under the belief that the goods belonged to the factor himself, is unquestionably discharged by this payment. Yet he cannot be discharged unless he pays it to one lawfully authorized to receive it; and the party to whom he pays cannot be lawfully authorized to receive, except only in his representative character. If he is 291] authorized to receive in that character, why should he not be liable in that character? Again, if a note had been taken by the factor, payable to himself, and after his death his administrator sued upon it in his representative capacity, and recovered the money; would he not be liable to the principal, in the same character in which he had, by the judgment of a court, recovered the money? It would be difficult to reconcile the contrary doctrine to

In this case, De Valengin was the bailee of the goods shipped by Duffy, and had a special property in them, and it was his duty to take all proper measures for their safety and preservation. He had a right to sell and transfer the goods in his own name, and as his own property. The Brazilian government, by agreeing to pay the money, admitted that the debt was justly due to him on account of the destruction of this cargo. Whether that government was deceived or not, is another question, and does not affect the point now to be decided. The admission of the debt as due to De Valengin, places this case upon the same principles with that of a factor before mentioned, who had sold the property of his principal in nis own name, and died before the receipt of the money. If the administrator is lawfully entitled to receive it in his representative character, and does so receive it, he is liable, in the same character, to the party entitled. Neale prosecuted the claim, and received the money, as the administrator of De Valengin. He must account for it in the same character.

If this transaction had taken place before the Act of Assembly of Maryland of 1820, ch. 174, the suit must unquestionably have been continued against Neale's representatives, and could not have been sustained against the administrators de bonis non of De Valengin. Because the property which Neale had received as administrator was converted into money in his lifetime, and must therefore have been accounted for by his administrator, and would not have passed to the administrator de bonis non of the former intestate. But by the 3d section of the Act of 1820, ch. 174, the administrator de bonis non is entitled to the bonds, notes, accounts, and evidences of debt, which the deceased executor or administrator may have taken, and to the money in his hands in his representative character, and he is authorized to recover them in the manner there pointed out. And the money now in controversy being, as we have already said, *lawfully in the hands [*292 of Neale, in his representative character, the administrators de bonis non are entitled to it; and as they are authorized to recover the fund out of which the money due to Duffy is to be paid, he had a right to make them parties to the suit which he had instituted against the them. They are not injured, or in any manner first administrator, and to continue it against placed in danger by this proceeding. For they are not liable, unless the money is recovered by Neale's representatives or securities, provided there is no negligence or breach of duty on their part.

The motion in arrest of judgment offered in

the Circuit Court, if it had not been objection- | thousand dollars. The action was founded on able upon other grounds, was evidently too late a promissory note, in the following terms: by the rules of the court; and, on that account, "$53,000. Warren, Pa., Sept. 6, '37. properly overruled. "Three months after date I promise to pay to the order of Guy C. Irvine, Esq., fifty-three thousand dollars, in office notes of the Lumberman's Bank at Warren, and payable at their banking house in Warren. N. A. Lowry."

The judgment of the Circuit Court is therefore affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.

Indorsed on side, "Guy C. Irvine."

The sheriff of Warren County attached certain real estate in the county, and also returned that he had attached the goods and chattels of Nathaniel A. Lowry, in the hands of certain persons named in the return. Among the gar. nishees was Guy C. Irvine.

*On the 24th of October, 1839, Na- [*294 thaniel A. Lowry, the defendant, presented a petition to the Court of Common Pleas of Warren County, stating that he was at the com

293*1 *GUY C. IRVINE, for the use of The mencement of the action, and at the time of Lumberman's Bank at Warren,

V.

NATHANIEL A. LOWRY.

Waiver of privilege-jurisdiction of Circuit Court-residence of parties-non-negotiable note or chose in action-assignor deemed plaintiff.

An action was brought by foreign attachment in the Court of Common Pleas of Warren County, Pennsylvania, in the name of a citizen of Pennsylvania, for the use of the Lumberman's Bank, at Warren, Pennsylvania, against a citizen of New York. The suit was on a note given by the defendant to the plaintiff, to be paid "in the office notes of the Lumberman's Bank at Warren." Some of the stockholders of the Lumberman's Bank at Warren were citizens of the State of New York. The defendant appeared to the action, by counsel, and having given bond with surety to the Court of Common Pleas, removed the cause to the Circuit Court of the United States for the Western

District of Pennsylvania. A motion was made in
the Circuit Court to remand the cause to the
Court of Common Pleas of Warren County, the
Circuit Court having no jurisdiction of the cause
on the ground that the real party in the sult was
the Lumberman's Bank at Warren, an aggregate
corporation, some of the stockholders of the bank
being citizens of the State of New York.
held that the Circuit Court had jurisdiction of the

case.

It was

The decisions of the Supreme Court have been uniform, and as declared at the present term in the case of The Commercial and Rail Road Bank of Vicksburg v. Slocomb et al., that the courts of the United States cannot exercise jurisdiction when some of the stockholders in a corporation established in one State are citizens of another State, of which the party sued by the corporation

la a citizen.

A note to be paid "In the office notes of a bank," is not negotiable, by the usage or custom of merchants. Not being a promissory note by the law merchant, the statute of Anne, or the kindred act of Assembly of Pennsylvania, it is not negotiable by indorsement; and not being under seal, it is not assignable by the act of Assembly of Pennsyl; vania on that subject relating to bonds. No suit could be brought upon it in the name of the indorser. The legal interest in the instrument continues in the person in whose favor it has been drawn, whatever equity another may have to claim the sum due on the same, and he only is the party to a suit at law on the instrument.

filing the petition, a resident and citizen of the State of New York, and that Guy C. Irvine, the plaintiff in the suit, is, and was at the commencement of the suit, a citizen of the State of the security offered for entering his appearance Pennsylvania, and asking the court to accept in the Circuit Court of the United States, and in all things complying with the acts of Congress in such cases made and provided; he prayed the court to proceed no further in the cause, and to allow the removal of the cause to the Circuit Court of the United States for the Western District of Pennsylvania.

The Court of Common Pleas granted leave for the removal of the cause to the Circuit Court, and the defendant gave a bond with security for the entry of the cause in the Circuit Court.

On the same day on which the petition of Nathaniel A. Lowry was presented to the Court of Common Pleas of Warren County, the affidavits of Robert Falconer, President of the Lumberman's Bank at Warren, and of Walter W. Hodges, were filed.

The affidavit of Mr. Falconer stated that at the date of the note on which the action was founded he was President of the bank, and the note was received from the defendant at the time it bears date, as a security for his previous indebtedness to the institution; and that Guy C. Irvine had not then, or at any time since, any interest in the said note, except as guarantor for the payment of the same, and the solvency and sufficiency of the drawer of the note.

The affidavit of Mr. Hodges stated that William Hall, Vine Elderken, Brown & Buckland, Starkweather & Brown, and sundry other persons, were stockholders in the Lumberman's Bank at Warren, and at the time of the institu tion of the suit were citizens of the State of New York, residing in that State.

The case being in the Circuit Court of the United States for the Western District of Pennsylvania, at the November sessions of the court,

Na certificate of division from the Circuit Mr. Biddle, for the plaintiff, moved to remand

District of Pennsylvania.

On the 6th of May, 1839, a writ of foreign attachment was issued out of the Court of Common Pleas of Warren County, Pennsylvania, in the name of Guy C. Irvine, for the use of the Lumberman's Bank at Warren, against Nathaniel A. Lowry, requiring bail in eighty

County, for want of jurisdiction.

On the hearing of this motion before the Circuit Court, Mr. M'Candless, the counsel for the Lumberman's Bank at Warren, produced to the court an Act of the Assembly of Pennsylvania passed the 28th of February, 1834, for chartering the bank; also an Act of Assembly