By the Court
Lumpkin, J.,delivering the opinion.
I do not think it altogether certain that Mr. Ingram either violated the Act of 1770, (Prince, 780), which inflicts a penalty of ¿6200 upon any one who conceals and carries off a slave accused of a capital crime, so that he cannot be brought “to trial and condign punishment,” or has committed an act against the public justice of the county. True, he directed Mitchell to convey the boy away secretly and to sell him; but he did not require him to be taken beyond the limits of the State. And in point of fact, he was sold in Dougherty county, not very remote from the place where the alleged offense was committed. The prosecution was quashed, ten or twelve days before the negro was sold, the woman herself and *550every body else being satisfied of his innocence; and then he was immediately repurchased and brought back by Ingram, where he has remained unmolested ever since.
I remark, that I assume, as the foundation of a portion of these remarks, that the facts were in, which the plaintiff offered to prove, but which he was not allowed to introduce by the Court, and, as we think, improperly.
I am fully sensible of the gross impropriety of endeavoring to screen a slave from merited punishment, especially for offenses committed against Avhite females. I am not insensible to the fact, however, that, prompted by humanity, and from no mercenary motives, masters are sometimes induced to put their slaves out of the way to prevent them from becoming the victims of popular excitement, until the tempest of passion is past and reason has resumed her SAvay. And while this motive even cannot justify the act, it goes far to mitigate its criminality.
I confess, that it is not Avithout doubt and some misgiving that I have come to a conclusion in this case. Chancellor Kent, in Vesicher vs. Zate, 11 Johnson’s Rep., 23, thought the Courts had gone quite far enough, Avhen they refuse to help either party, with respect to these illegal contracts; and he referred to the statute against gaming, which alloAved the loser to recover back of the owner his lost money, thereby inferring that the Courts had gone one step beyond the la\v-giver; and yet, the rule of lavv is stern and settled, that when the plaintiff comes into Court, he must recover on his own merits, and not upon the demerits of the defendant, unless where the statute has created an exception.
The rule hitherto applied by this Court, and perhaps by the English Courts, is this: that whenever the plaintiff can make out his case without invoking the illegal contract to his aid, he is entitled to recover. The Judge held in this case, that the plaintiff must recover upon Mitchell’s note or not at all. Concede this: What is to prevent Ingram from recovering on the note? True, it has a condition annexed to it to the effect that if the negro Avas not sold, and returned in good condition, the note Avas to be void. The boy A\'as not returned, but sold. Why should Mitchell not pay the note?
But apart from this, Ingram ratifies the sale and claims the purchase-money. Can Mitchell refuse to account for it ? Mitchell sets up the illegal contract to screen himself from *551liability. Will the Court allow Mm to protect himself under it ? He must abide by the contract or repudiate it. If he abides by it, he must pay; if he repudiates it, he holds in his hands the price of Ingram’s negro, and he must turn it over.
There is a class of cases which puts the right of the party to recover upon the ground of agency; and Tennant vs. Elliott, (1 Boss, and Pul., 3), is a strong authority upon that point. There, the defendant being a broker, effected an illegal insurance on a ship. The vessel being lost, the underwriters paid over the money to Elliott, who refused to pay it over to the plaintiff, on the ground of the illegality of the contract. But the Court said that he should not be allowed to set up the illegality of the contract as a defense in an action brought against him by Tennant, for money had and received for the plaintiff’s use. This case must be overruled, or else the complainant is entitled to maintain this bill.
Chief Justice Eyre said: “The question is, whether he who had received money to another’s use on an illegal contract can be allowed to retain it, and that not even at the desire of those who paid it to him? I think not.” And Mr. Justice Buller asked: “Can the defendant in conscience keep the money so paid ? For what purpose should he retain it? To whom is he to pay it over? Who is entitled to it but the plaintiff?”
In a note to this case it is said: If this money had been paid by the underwriters directly to Tennant, the insured, it is clear he could retain it against them, the contract being executed, and both of the parties being in pari delicto.” (Citing Douglas, 470; Cowper, 199, 200, 792; 1 Hen. Black.) The money would, in that case, in any sense, belong to Tennant; does it not equitably belong to him, when paid to his agent for him ?
And in Farmer vs. Russell, ibid, 296, it was held, that while a party in some cases would be allowed to retain money which was due to him ex equo et bono, but which he could not have recovered at law, yet he never can be allowed to retain money to which he has no claim whatever against the true owner.
We agree with Mr. Justice Booke, in the last case, that the distinction, as to the knowledge or ignorance of the agent, can make no difference, as it would produce this strange consequence: that if he be ignorant of the illegality of the con*552tract, he shall be answerable in this action • but if partieeps, he shall be free. His innocence should w< to him, while his guilt shall be an indemnity. guilty as >rk a loss
We hold, therefore, that the Court was wrong in the jury, that the defendant was not liable upon made by the pleadings and evidence. charging the case