Catharine Cutlar, under the will of her husband, John Cutlar, was the owner, for her life, of a slave, by the name of Caswell, with a remainder over to one Bryan Cutlar, and for several years she was in the enjoyment of the use and benefit of the said slave. In 1851, a charge of homicide was preferred against the slave, and either at the instance of the said Catharine, or of the slave's own motion, or both, he eluded a caption and was secreted. While thus concealed, she employed the defendant, Caleb Cutlar, to assist her in selling him, so that he might not fall into the hands of the law. The said Caleb, at the request of Mrs. Cutlar, secured the services of one Henry Hodges, who effected a sale of the negro to one Hill, a trader, at the price of $500, and she took the money. The sale was of the entire property in the slave, and the purpose and understanding of the parties was, that Caswell should be carried beyond the limits of the State, secretly, in order to avoid the risk of a prosecution. The suit is carried on by the plaintiff, as administrator of Bryan Cutlar, against N.W. North, the administrator of Catharine Cutlar, who died after the first bill was filed, and against Caleb Cutlar, for the proportional share of Bryan Cutlar in the $500, which was received by Mrs. Cutlar; and it is sought to subject the defendant, Caleb Cutlar, for aiding and assisting the other defendant in selling and removing the slave. The defendants answered and depositions were taken, from which this state *Page 382 of facts is made out. The cause being set down for hearing, was sent to this Court. We are satisfied that Catharine Cutlar sold the slave "out and out," with the intention that he should be run off, and taken to parts unknown; and that she received $500, as the price. Having only a life-estate, it was against conscience for her to sell the absolute interest, except upon the footing, that as the charge of a criminal offence, which was made against the slave, rendered it expedient for the remainderman, as well as for herself, to sell him, she would do so, and hold the price for their mutual benefit, in the place of the slave. This is a clear equity, which the plaintiff has a right to enforce, against the personal representative of Mrs. Cutlar, to the extent of the assets; as to which there will be a reference. If the assets are sufficient, the plaintiff will take a decree for the $500, with interest from the death of Mrs. Cutlar, she being entitled to the interest during her life, in lieu of her life-estate;Cheshire v. Cheshire, 2 Ire. Eq. 573; Haughton v. Benbury, 2 Jones' Eq. 337. The defendant, Caleb Cutlar, acted merely as the agent of Mrs. Cutlar in effecting the sale, and did not receive any part of the price. We see no ground, on which the plaintiff can raise an equity against him; for this Court does not act, on the idea of giving damages for a tort, but on that of making compensation, by requiring a party to hold a fund, which he has acquired against conscience, in trust for the party, whose property was used for the purpose of acquiring it — a substitution of the one for the other. This defendant may have subjected himself to an indictment as accessory after the fact, and to a special action on the case; but the bill must be dismissed as to him.
PER CURIAM, Decree accordingly. *Page 383