
    BRISTOW BUGG, plaintiff in error, v. WALTER TOWNER, defendant in error.
    (Atlanta,
    June Term, 1870.)
    ILLEGAL CONTRACTS—COURTS WILL REFUSE RELIEF— WHETHER ILLEGALITY SET UP BY PLAINTIFF OR DEFENDANT.—Where parties are engaged in illegal transactions, whether malum prohibitum, or malum in se, the Courts of this State will not interpose to grant any relief. In such cases the rule is, for the Court to leave the parties where it finds them, no matter whether_ the illegality of the contract appears from the plaintiff’s case, or is set up by way of defense. _
    _ SAME—CONVEYANCE TO SECURE EMANCIPATION OF SLAVE—SLAVE PLACED IN POSSESSION OF LAND—RE'FUSAL TO RECOVER 'POSSESSION.—Where a deed to land was executed to the legal owner of a slave, in accordance with a contract between the slave and his master for his emancipation in this State, while such emancipation was prohibited by law, and the land was paid for with the money of the slave who was placed in possession thereof and permitted to remain there, for his own use and benefit, in violation of law, till after the abolition of slavery, the Court will not entertain a suit by the former owner of the slave, to recover the land from the possession of his former slave. As the deed was void and the transaction in violation of the laws and the public policy of the State, the Court will help neither party, but will leave them where it finds them.
    *SAME—DEFENDANT MAY SET UP ILLEGALITY TO DEFEAT REOOVE'RY—EVIDENCE TO ESTABLISH ILLEGALITY.—In such case the defendant may set up the illegality of the transaction, to defeat the plaintiff’s recovery, and the Court will entertain the defense, not for the defendant’s sake, but upon grounds-of public policy. (And it was error in the Court in this case, to refuse to permit the defendant to introduce evidence to establish the illegality of the transaction, and the wilful, participation of the plaintiff in it, with intent to violate the public policy of the State.
    BILL O'F EXCEPTIONS—IMMATERIAL DEED NEED NOT BE COPIED.—A deed used as evidence, but not material (as both parties claimed under it,) to the points before this Court, need not be copied in the bill of exceptions. (R. See end of Report.)
    BRIEF OF EVIDENCE—SUFFICIENT APPROVAL.—“I believe this brief of evidence is correct in substance,” by the Judge below, held to be sufficient approval of brief of evidence. (R. See end of Report.)
    Illegal Contracts. Bill of Excéptions. Before Judge Gibson. Richmond Superior Court. January Term, 1869.
    Towner brought ejectment against Bugg. He showed by his deed and by his oath, that in 1855 he bought the lot, had been in possession from that date up to 1863, when he left the country, leaving Bugg, as his slave, in possession, with a promise to Bugg that no wages would be required from him if he would keep intruders off the place, keep it in good order and pay Towner’s taxes till his return; that Bugg did not pay the taxes, nor keep said place in good order, and when ■he returned, after emancipation, refused to give him possesr sion. It came out in evidence that Bugg furnished part of the, money which paid his price when Towner bought him. The defense offered to show by Bugg and by admissions of Towner, that Bugg’s former master was dead and Bugg was about to be sold and begged Towner to buy him, let him re^ pay the price and then be actually free, though nominally Towner’s slave; that Towner agreed to this, bought him and Bugg repaid the price, and that Towner agreed to buy this place for Bugg, let Bugg pay for it, and to hold the title for Bugg’s benefit, and that Bugg did so pay for it and had occupied it as his own. All this testimony was ruled out, upon the ground that while Bugg was a slave he could not make a contract. The plaintiff had a verdict for the premises in dispute. Bugg moved for a new trial, because of the rejection of said evidence. The *case hung fire, but finally a new trial was refused, and that it assigned as error. ■ The only description of Towner’s deed in the bill of exceptions, was this: “Plaintiff then offered deed from Zemula Walker, dated December, 1855, to Walker Towner, made by attorney-in-fact, Joseph Burch. The power and the deed both offered and admitted by the Court in evidence, the deed being to the land in dispute.” The certificate to the bill of exceptions was in the usual form. But the brief of evidence had never been agreed to by counsel, and the Judge had approved it in these words only: “I cannot be supposed to recollect the testimony (after a year’s time) given in before me on the trial, yet I believe .this brief is correct in substance. I know that all testimony going to prove a contract with a slave, as to freedom and purchasing land with proceeds of his labor, was ruled out by me on the trial.” Defendant’s counsel moved to dismiss the writ of error, because said deed was not copied in the bill of exceptions, and because the Judge had not certified that the evidence was correctly set forth. The motion was overruled.
    James S. Hook, for plaintiff in error.
    A. R. Wright, for defendant.
    Bugg has no right enforceable by Equity:
    Act 1818; Prince Dig., 705, 785, 788; Code, sec. 1875; 38th Ga. R., 655; 1 Eonb. Eq., Ch. 4, sec. 4; lb. book, 2 ch. 1, sec. 1; Story’s Eq. Juries., sec. 1201; (b). 5 Paige’s, Ch. R., 114; 3 Leigh’s R., 514.
    
      
      ILLEGAL CONTRACTS—COURTS WILL REFUSE-RELIEF— WHETHER ILLEGALITY SET UP BY PLAINTIFF OR DEFENDANT.—“Where parties engage in illegal transactions, the courts will not interpose to grant any relief. The principle of public policy is, that no court will lend its aid to a man upon an illegal or an immoral act, but will leave the parties where it finds them, no matter how the illegality of the contract may be brought before it, whether by direct suit or by way of set off. (Howell v. Fountain), 3 Ga. 182; (Carey v. Smith) 11 Ga. 547; (Alford v. Burke), 21 Ga. 46; (Bugg v. Towner), 41 Ga. 315.” Thompson v. Cummings, 68 Ga. 128.
      “It has been held that it makes no difference whether the illegality of the transaction is made to appear by the plaintiff, or by the defendant. See Howell v. Fountain, 3 Ga. 182, where the following language of Lord Mansfield, in Holman v. Johnson, Cowp. 343, is approved as a correct expression of the law on this subject. ‘If from the plaintiff’s own statement, or otherwise, the cause of action appears to arise ex turpi causa, or from the transgression of a positive law of this country, then the court says he has no right to be assisted.’ In this connection consult also: Bugg v. Towner, 41 Ga. 318; Heineman v. Newman, 55 Ga. 262; Tomkins v. Compton, 93 Ga. 525, 21 S. E. Rep. 79.” Garrison v. Burns, 98 Ga. 765, 26 S. E. Rep. 471.
    
    
      
      SAME—DEFENDANT MAY SET UP ILLEGALITY TO DEFEAT RECOVERY.—“There is no merit in the contention that the defendant cannot defend by setting up his own unlawful conduct. See Howell v. Fountain, 3 Ga. 182; Carey v. Smith, 11 Ga. 547; Bugg v. Towner, 41 Ga. 318; Harrison v. Hatcher, 44 Ga. 642; Heineman v. Newman, 55 Ga. 262.” Tompkins v. Compton, 93 Ga. 525, 21 S E. Rep. 79.
      SAME—'RECOVERY OF MONEY DEPOSITED TO BE USED IN ILLEGAL TRANSACTIONS.—Where a principal deposited money with his agents to be used in the purchase of futures in pork and grain he could recover from such agents the amount so deposited, in an action for money had and received. He could not set up the illegal contract to_ recover profits realized thereunder, nor could the agents set up the illegal contract for the purpose of defeating a recovery by the principal of the money deposited with them, and which was held by them. It did not matter whether the money sued for by the principal was the identical money furnished by him, or whether the agents_ deposited the money so furnished in bank with other deposits of theirs, and used such money for filling margins for futures and afterwards replaced them to the credit of the principal. The question is, whose money is it, the agent’s or the principal’s? Nor does this stand in the position of an executed contract in which both parties are in pari delicto. “Nor do (McDougald v. Barnard), 3 Ga. 171; (Bugg v. Towner), 41 Ga. 315; (Puckett v. Roquemore), 55 Ga. 235, (Heineman v. Newman), 55 Ga. 262, (Thompson v. Cummings), 68 Ga. 124; (Cunningham v. National Bank, 71 Ga. 400, and the same case decided January 12, 1886, (National Bank v. Cunningham, 75 Ga. 366), collide with this judgment. They are all reconcilable with this and stand upon facts that distinguish them from this case.” Clarke v. Brown, 77 Ga. 606.
    
   By the Court—

BROWN, C. J.,

delivering the opinion.

By the Act of 1818, Cobb’s New Digest, page 991, every will, deed, contract, agreement or stipulation, or other instrument in writing, or by way of parol, whether by way of trust or otherwise, made for the purpose of effecting or endeavoring to effect the manumission of any slave or slaves, either directly, by conferring or attempting to confer freedom on such slave or slaves, or indirectly, or virtually, by allowing and securing, or attempting to allow or secure to such *slave or slaves, the privilege of working for himself, free from the control of the owner, or enjoying the profits of his labor, are declared to be ■utterly null and void.

In this case, the defendant sought to attack the deed which was the foundation of plaintiff’s title, by showing that it was made in aid of a contract between plaintiff and defendant, by which plaintiff, for a consideration, undertook to emancipate the defendant, who was then his slave, in this State, and' to locate ■ him upon the tract of land in dispute, which defendant alleges was paid for with his money, and the deed taken in the name of the plaintiff for his use and benefit, in furtherance of this illegal design. If such was the fact, and the defendant was placed in possession of the land by the plaintiff, with intent to evade the law and carry out the illegal purpose, we hold that the Courts of this State, under the rule repeatedly announced by this Court, will not aid plaintiff to recover the possession of the land from the defendant. If the defendant’s version of the case is correct, the parties were engaged in an 'illegal transaction, in violation of the laws arid public .policy of this State, in existence at that time. And it makes not difference whether the illegal transaction is malum prohibitum or malum in se. In neither case will the Courts of this State interfere to grant relief to either party. But they will leave the parties where they find them, no matter whether the illegality of the contract appears from the plaintiff’s case, or is set up by way of defense. See Howell, administrator, v. Fountain et al., 3d Georgia, 182; Cary v. Smith, 11th Georgia, on page 547; and Alford v. Burke, 21st Georgia, 46.

It is objected that the defendant should not he heard, to set up the illegality of the transaction for his own benefit. The reply is, that Courts sustain such a defense, not for the sake of the defendant, but upon general principles of public policy. In Holman v. Johnson, Cowper 343, Lord Mansfield uses the following language, which has heretofore been approved and adopted by this Court, as a' correct statement of the rule on this subject:

“The objection that a contract is immoral or illegal, as *between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded on general principles of policy, which the defendant has the advantage of, contrary to real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this, ex dolo malo non oritur actio. No Court will lend its aid to a man upon an illegal or an immoral act. If from the plaintiff’s own statement, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the Courts say he has no right to be assisted. It is upon that ground the Court goes, not for the sake of the defendant, but because it will not lend its aid to-such a plaintiff. So if the plaintiff and defendant should change sides and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally at fault, potior est conditio defendentis.”

The object of the rule is to discourage discountenace all illegal and immoral transactions, which violate sound public policy, and not to aid or favor either party. And we see no good reason why the defendant should not be heard to set up this defense to defeat the plaintiff’s action. It matters not how the fact is brought to the attention of the Court; whenever it is ascertained, the law denies its aid to either party, it leaves them where it finds them, it closes its temples against them, and says, your “poluted hands shall not touch the pure fountains of justice.”

We hold that the Court erred in this case, in ruling out the evidence, offered by the defendant, to show that this purchase was in fact made for his benefit, while he was a slave, and that the land was paid for in whole, or in part, by his money, and that he was placed 'in possession by the plaintiff in furtherance of such illegal transaction. We do not know how far the evidence, if admitted, would have gone to establish these facts; but, if it had been sufficient, we hold that plaintiff had no right to the assistance of the Court to recover the possession of the premises from the defendant.

Judgment reversed.  