
    *James K. Redd, executor, plaintiff in error, vs. The Muscogee Railroad Company, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Sheriff’s Sale — Title—Estoppel.—Where one ■ bought a negro slave at sheriff’s sale, and permitted him to remain with the defendant to use as his own, and he was so used for years, persons dealing with the said defendant with no knowledge of who is the true owner, have a right to consider the slave as the property of the person thus “using him as his own.”
    2. Common Carrier — Illegal Transaction — Negligence—In Pari Delicto- — When, during the late war, a company of men organized as soldiers, though unarmed, were on their way from Columbus to Atlanta, with the open intent to offer themselves to Governor Brown for service as soldiers in the Confederate army, and a railroad company received them on its cars as soldiers, with their baggage, the transportation to be paid for by the State or Confederate authorities:
    Held, That both the company of .men and the railroad company were engaged in an illegal transaction, and the rule in pari delicto, etc., applies to a suit against the railroad company for negligence in its duty as a common carrier.
    3. Same — Same—Same.—rBut when it appeared by the proof that one of the soldiers having with him a negro slave, and the railroad company refused to carry the slave as a soldier, or as a part of or adjunct to the company, but demanded and received from the soldier fare for said slave as an ordinary passenger, the rule in pari delicto does not apply, and if the owner of the slave is injured by the negligence of the road, he can recover for the injury.
    Estoppel. 'Title. Confederate States. In pari delicto. Railroads. Before John Peabody, Esq., an attorney at law, presiding by consent. Muscogee Superior Court. May Term, 1872.
    James K. Redd, as executor upon the estate of Owen Thomas, deceased, brought case against the Muscogee Railroad Company, alleging- that the defendant had damaged him in the sum of $2,500 00; for that, on August 1st, 1861, plaintiff was possessed of a negro man named Floyd, of the value of $2,000 00, and the defendant was possessed of and had charge of the Muscogee Railroad, and not regarding its duty while the said negro man was on the cars of said defendant, but, through its carelessness and mismanagement, ran the cars and engine off its track, thereby killing the said negro man. The record fails to disclose any plea.
    *The evidence makes the following case: The negro .was raised by Micajah W. Thweatt, the brother-in-law of Owen Thomas, deceased, but was sold by the sheriff for his debts, and purchased by said Thomas, who permitted the boy to remain in Thweatt’s possession, as if he was his own property. The negro was thus under his control when he was killed. He was worth from $1,600 00 to $2,000 00. The negro embarked at Columbus, on defendant’s train, for Macon, on August 14th, 1861. He accompanied Thweatt-’s son, Robert, as a servant. Robert Thweatt was a member of a volunteer company, then going to Atlanta for the purpose of offering its services to Governor Brown, in the war then being waged between the United States and the Confederate States. Robert Thweatt paid the fare of the negro to the defendant, as it declined to transport him otherwise, alleging that he was not a soldier. There was a gap in the embankment of the railroad, about sixteen miles from Columbus, into which the engine and the front car were thrown, thereby causing the death of the negro. Robert Thweatt served with his company in the army of the Confederate States, in the war then going on. The defendant was never paid for transporting the troops on this occasion, though it expected compensation from the Confederate States or the State of Georgia. The defendant considered itself bound to transport the soldiers, though no force was used. It did not refuse to carry them. There were some guns among the men.
    The testimony in reference to the negligence of the defendant is omitted, as unnecessary to an understanding of the decision.
    The jury returned a verdict for the defendant. The plaintiff moved for a new trial, upon the following grounds, to-wit:
    1st. Because the Court erred in the following charge to the jury: “That, although the title to Floyd might have been in Owen Thomas, yet, if he was allowing: his brother-in-law, M. W. Thweatt, to have the general use and control of Floyd, as his own property, and the said Thweatt permitted his son, Robert, the member of a volunteer company, which was-going *by the train from Columbus to Atlanta, on the 14th of August, 1861, to offer itself to Governor Brown for • service in the war at that time existing, to take said Floyd with him on said train as his servant, then the defendant is not liable.”
    2d. Because the Court refused to charge the jury as follows: “That if Floyd belonged to Owen Thomas, and he had given to M. W. Thweatt permission to use and control Floyd as his own property, yet this was not a permission to put Floyd to any illegal use, and, although Thweatt might have put Floyd to an illegal use, still the defendant was liable, unless it was shown that Thomas knew that Thweatt was putting Floyd to such use, and consented to his doing so.” The Court refused to give this request in charge, but said, “that, as a general rulé, when one allows another the use of his property, the law implies it to be a lawful use only, but if the jury believes that this negro ever belonged to M. W. Thweatt and was sold at sheriff’s sale and bought by Owen Thomas, and Thomas allowed the negro to remain in the possession of Thweatt, and allowed Thweatt to use and control him as his own, then the defendant is not liable.”
    The motion was overruled, and the plaintiff excepted upon each of the grounds aforesaid.
    H. L. Benning ; M. H. Beandeord, for plaintiff in error.
    ,1st. The maxim in pari delicto, potior est conditio defendentis, does not apply: Broom’s Leg. Max., 325, 326, 327, 328; Holman vs. Johnson, Cowp., 343. “It is a presumptio juris, running through the whole law of England, that no person shall, in the absence of criminative proof, be supposed to have committed any violation of criminal law, whether malum in se, or malum prohibitum, or even done any act involving a civil penalty:” Best on Presumptions, see 53, 58; Williams vs. E. India Co., 3 East, 192; Rodwell vs. Redge, 1 Carr, and P., 220 (11 Eng. C. L-;) Ross vs. Hunter, 4 T. R., 33, 38; Printup vs. Johnson, 19 Ga., 75; Long vs. Lewis, 16 Ga., 162; Pool and wife vs. Morris et al., 29 Ga., 384; Shropshire & Hawkins vs. Stephenson, 17 Ga., 623. In facto quod habet *se in bonum et malum magis de bono quam de malo lex intendet. Coke, on Litt., 78 (b;) 10 Coke, 56 (a;) 1 Stark Ev., 686, (cited in Best on Prin. of Ev., sec. 295.)
    2d. Giving aid to the Confederate States in the war, if wrong, was a criminal act — treason. Cons. U.- S., (Irwin’s Code, sec. 5041.) Therefore, it shall not be presumed to have been given in the absence of criminative proof.
    3d. The buyers leaving the bought property in the possession of the seller, is a badge of fraud as against creditors and them only. The railroad was no creditor of Thweatt, the defendant in the fi. fa. under which Thomas bought the slave. Thweatt’s possession, therefore, was no evidence against the validity of Thomas’ title.
    
      4th. The delictum in this case was the wrongful killing of the' slave. The delictum of giving aid to the war, if it was a delictum, was another and distinct delictum. In the latter, both parties may have been participants; in the former, the plaintiff had no part whatever. , But to render the maxim applicable, the plaintiff ought-to have had equal part in it: Holman vs. Johnson, Cowp., 343; Broom’s Reg. Max. 325, 326, 327, 328.
    5th. The maxim, if it ever applied to physical injuries, has been repealed as to them. “A physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law:” Irwin’s Code, sec. 2917. So does any violent injury: Code, secs. 2917, 2920, 3020, 3021. Especially is this true of injuries done by railroads: Irwin’s Code, secs. 2979, 2980. But neither the owner nor the railroad' company, was guilty of any delictum. If of any, it could only have been of treason against the United States. “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the s^me overt act, or on confession in open Court:” Const. U. S., (Code, sec. 5041.) Neither of the parties was levying war against the United States, or was adhering to their enemies, *giving them aid and comfort. There was no proof by any witness of any overt act done. Much less was there proof by two witnesses of the same overt act, nor was there any confession in open Court. These two definitions of treason were taken from the Statute of Treasons of the 25th Edward III: Institutes, 6 vol. 1, 2. That statute, according to Coke, divides treason into six classes: 6 Inst., 1, 2, 3; according to Blackstone, into seven: 3 Black., 54, 60. Of these, the Constitution of the United States adopted only the third and.fourth. 3 Black., 82, 83. Therefore, the words in the Constitution must be taken to have the same meaning which they had in the statute.
    6th. Levying war in that statute means levying war in fact. “A compassing or conspiracy to levy war is no treason, for there must be a levying of war in fact:” 6 Inst., 9, 14;’3 Black., 81-2; l Hale P. C., 130-1. In the present case, there was no levying of war in fact: see evidence. Treason against the State “shall consist in levying war against the State,” etc.: Irwin’s Code, secs. 42-46-7-8. Here, if there was any levying of war, it was for, not against, the State.
    7th. Bnemies, in the statute, means foreign enemies. “Inimicus, in legal understanding is ■hostis for the subjects of the king, though they be in open war or rebellion against the king, yet are they not the king’s enemies, but traitors; for enemies be those that be out of the allegiance qf the king:” 6 Inst., 11. Even pirates are not traitors, though they make war on the whole human race: 6 Inst., 1Í3; 1 Hale; P. C., 164; East. Cr. Law.; Const. U. S.,, Art. I., sec. 8, clause 9. They are felons, “adhering to their enemies, giving them aid and comfort.” To constitute this, there must be some actual assistance, some overt act; a willingness to assist is not sufficient: 6 Inst., 10, 11; Hale’s P. C„ 159, 170, and note; 6 Hawk. P. C., chap. 17, sec. 28. In the present case, the willingness of the companies to assist was, itself, only on condition, namely, that the Governor of Georgia should accept their services. But as to Owen Thomas, himself the owner of the slave, there is no evidence at all that he was a member *of any company or that he knew that one of the company was carrying the slave to the war as a servant, much less that he consented to it. Whereas, there ought to have been the evidence of two witnesses to it or his own confession in open Court. The propositions that a State cannot commit treason, and that its citizens are bound to obey its regular enactments and the orders of its constituted authorities, and, therefore, in obeying them, are not guilty of treason, we shall not discuss, because we think that we have enough in the case without them. We may remark, however, that the action of the government authorizes the inference that it did not consider the soldiers engaged in the war against it to be traitors. It treated them as beligerents, and gave them all the rights of war. Not one was tried for treason. The punishment fell upon the States as States — emancipation, prohibition of the payment of the war debt, superseding the State governments by military provisional governments. Some citizens, it is true, were laid under disabilities to hold office, but this could only be done by an ex post facto amendment of the Constitution.
    8th. The-cases of Wallace vs. Cannon, 38 Georgia, 199, and Martin vs. Wallace, 40 Georgia, 493, are distinguishable from this: 1. Martin was .actually engaged in “levying war against the United States;” Cannon was adhering to their enemies, giving them aid and comfort. But Thomas was not even in service; was not shown to have even knowledge that his slave was going as servant of one of the members of a company. The company itself was not in service; only about to offer itself for service. No overt act done. 2. The claim for damages was put on the ground that the men killed were not guilty of any delictum, but were merely in the discharge of a duty they owed their State. Their argument admitted in effect, that if not thus justifiable they were in pari delicto. Here we argue that the owner of the slave killed might have been acting illegally, yet he was not in pari delicto, that there were two delictums; one, being engaged in the war; the other, the killing of a person engaged in the war, and that in the latter, Thomas had no part. 3. We read the Code which repeals *the maximum in pari delicto, as to physical injuries, especially if done by railroads supra.
    
    4. The case ought to be distinguished from those cases: Ram. on Leg. Judg’t, 134, 138, (Law Lib.) '
    R. J. Moses; L. T. Downing, for defendant.
    The maxim in pari delicto, etc., prevents a recovery in this case: 38 Ga. R., 199; 40 Ibid., 52. The fact that Floyd was accompanying Robert Thweatt as a servant was an act of treason: Greenleaf’s Ev., 242 et seq; 4 Cranch., 125; Ibid., 498.
    
      
      Estoppel. — See the principal case cited in Ency. Dig. Ga. Rep., voi. 5. p. 226.
    
    
      
      Illegal Transaction — Rule in Pari Delicto. — In Little v. Southern R. Co., 120 Ga. 352, the court adheres to the ruling in the second headnote, and distinguishes the principal case.
      In Western Union Telegraph Co. v. Blanchard, 68 Ga. 311, where the principal case is cited, the court said, “in granting the contract of selling futures in cotton is contrary to our law, if the same was to be here performed, still the agents in New York who bought and sold the cotton (and presumably were bound for it) could recover of the plaintiffs the amount of the loss for them they had paid. If so, on the plaintiff’s paying this loss, they have sustained a legal injury and the telegraph company who caused the injury are liable for it. The sending of the message was a legal act. Plaintiffs were bound to pay in law the toll on the same, and if so, when the company takes its benefits, why may it not be held liable for negligence in the performance of it?”
    
    
      
      Negligence of Carrier — In Pari Delicto. — See the principal case cited in note to Wallace v. Cannon, 38 Ga. 200.
    
   McCay, Judge.

Whatever may have been the truth as to the real ownership • of this slave, the conduct of Mr. Thomas in permitting Thweatt to “use him as his own,” justifies persons without notice of the truth, in recognizing Thweatt as the owner. We do not think, therefore, that the railroad company was guilty of a conversion in taking the boy away from Columbus under Thweatt’s consent or directions.

On the general question argued here, and decided by’ the Judge below, we think the Judge was right. If the war with the United States was illegal, the men who, in an organized capacity, started from Columbus at the expense of the Confederate authorities or at the expense of the State organization, then a part of the Confederate organization, were engaged in an unlawful act; we see no difference between going as accepted volunteers, and going with intent to volunteer.

But we think the men and this negro, or the owner of this negro, stand on a different footing. The plea of the company is: You cannot recover, because both of us were engaged in an illegal undertaking, and the law will not interfere to punish me for the neglect of my servants in the course of the prosecution of this undertaking. The'plaintiff replies: As to this boy, the undertaking on your pmd to carry him, was no part of the illegal undertaking. You refused to take him as a soldier or as part of the baggage or accompaniments of the company. You demanded and received pay for him as an ^ordinary passenger, without any reference to the purpose in which we were engaged and in which you participated. You, by your own words and acts at the time, specially repudiated any implication with me in carrying this boy, and you cannot now deny the grounds on which you got my money. True, the soldier who took this boy along was intending to make use of him, in the performance of his design to carry.on war. But the railroad company did not participate in that purpose, but expressly repudiated it.

It is not because the men were engaged in an illegal act, that the defense of the railroad exists. It is because of the participation of the railroad company in that illegal act. This participation brings them within the rule — often an arbitrary .and sometimes an unjust rule — that the Court will not interfere to settle the disputes and litigation growing out of this mutual illegality. As we have said, however, there is evidence here to justify the conclusion that this negro was carried under the express stipulation of the employees of the road as an ordinary passenger, not at all- connected .with the illegal enterprise, and the jury should have had that view of the law before them. The charge of the Judge, as given, excluded any consideration of that evidence, and a new trial should be granted on that ground.

Judgment reversed.  