text:
    URIE against JOHNSTON.
    IN ERROR.
    The child of a registered servant until twenty-eight years, who was registered as s¡ servant, and claimed as such, and sold for a full price, can not, after he has been discharged by habeas carpus from servitude, recover in an action of assumpsit upoa p-guantwm meruit from the person, who received his services, and who had paid that price, a compensation for his services. Haying paid such price for his servitude, he may in conscience, refuse to pay such servant for his services, and therefore, the servant can not recover compensation therefor.
    Error to the Court of Common-Pleas of Cumberland county,

      Sampson Johnston the plaintiff, below brought indebetatis assumpsit for work, labor and services against Urie, and recovered a verdict for three hundred and seventy dollars. Johnston was the son of a negro woman, who being the child of a slave, was registered and held to service until she arrived at the age of twenty-eight, under the act for the gradual abolition of slavery.
    ■’ Johnston himself was registered under the act, and claimed as a servant until twenty-eight. He was stated in the registry to have been born on the 8th of July, 1800, and on the 16th of September, 1816, his time as a registered servant was transfered to Urie the. defendant below, for five hundred and forty-two dollars. Proof was, given that from that period he worked for the defendant, who from time to time directed him in his labor, and evidence was also given of his industry, fidelity and the value of his services, and for the defendant of his being well taken care of, and taught to read, &c. On the 7th of January, 1827, he was discharged upon habeas corpus, from the custody of the defendant, and shortly after this suit wás brought. The plaintiff claimed for his work and labor, after he came of age, up to the time of his discharge, and the defendant who pleaded non assumpsit contended that he could not recover in this action.
    The Court of Common Pleas, Reed President, charged the jury as follows:
    “It appears from the evidence that Jane, a coloured woman, was, the mother ox the plaintiff, that she was the daughter of a slave, was regularly registered; and was held as a servant till twenty-eight, when she was liberated. Sampson was born before she wag free, and was registered conformably to the acts of assembly, with a view of securing his services, as a servant, till twenty-eight. He was transferred through two or three different hands; and finally, Thomas Urie, the defendant, bought his services from the executors of J Randolph, for the sum of five hundred and fo,rty-tw$ dollars. The bill of sale is dated the 16th of September, 1816. The boy was then probably about sixteen or eighteen years of age. It is very probable that Thomas Uvie believed^ when he made the purchase, that Sampson was legally bound to serve till he would arrive at the age of twenty-eight years: and it is not unlikely Sampson was under the same impression. By virtue of his purchase, he took Sampson into his employment, held him and directed his services up till the 7th of January, 1S27, when he set up a claim to his freedom, and was discharged under a writ of habeas cor-* pus.

    ' The first question made is, whether the plaintiff under these circumstances, is entitled in law, to recover.
    Whenever a freeman labors in the service of another man, at his request, the law awards a compensation for such services, without any actual promise, or agreement, to that effect. In this case, Sampson was a freeman, and rendered service for Thomas Ur is, no doubt at his request, and by his procurement: these facts would, of themselves, raise in law a promise to pay. They would cast the burden of proof upon the defendant to repel such presumption. We do not think the mistake, or misapprehension of the parties, or the illegal claim of the defendant to the plaintiff’s services would repel such implication, If the plaintiff can not recover in this form of suit, I do not see how he could in any other form. Trespass would not probably lie; for nq trespass is proved. The mere voluntary transition from one man to another, without fraud or constraint, would not constitute a trespass. The service of Sampson, rendered to Thomas Urie, so far as we can judge, was voluntarily rendered: at least there is no proof of force; and there is no allega tion that in the present form of suit, the points of inquiry are notfully and fairly presented: no surprise is alleged. Every opportunity was afforded; and when the replication to the statute of limitations was put in, it was with an express understanding, that the plaintiff should have any benefit that could be derived under any form of replication. It would be a reproach to the law, to say that in a case of this kind, there is no remedy. The law adapts itself lo circumstances; and no action is of a more liberal character th¿n the present. It is of simple, but of comprehensive form; and is well suited to meet the present claim. No doubt, where there is an express contract between parties, the law will not imply one. Where the parties fix their own designs and intentions, the law will not alter them, by any silent implication. But where an assent is given under a mistake, parties are not held to it. If money is paid voluntarily — paid and received by consent, under a mutual misapprehension of the party’s rights, and in a case where it cannot be conscientiously retained — in such case, an action for money had and revived by the defendant for the plaintiff’s use, will lie, on the implied assumpsit, to recover such money back again, although no such intention actually existed at the time. Now here, if services were voluntarily rendered by the plaintiff for the defendant, and at his special request, under a mutual mistake of the parties’ rights, and under circumstances that would render it unconscionable and unjust, for the defendant to request and have such services without rendering a compensation therefor, why should not the law raise a promise to pay in such case — as well as it would to refund money in the case before stated? A mistaken-intention, a mere misapprehension in parties, will not prevent the law from raising a promise so as to, effectuate justice, and to dó that, which the parties would no doubt have done, if they had acted under a proper knowledge of their rights. I cannot, therefore, see any thing in the facts stated to. bar the plaintiff’s action.
    If so, the next inquiry is as to the amount the plaintiff should recover. The plaintiff waives the question on the statute of limitations, by only asking a compensation for five years and six months before suit brought, and from the time, alleged by the defendant, that Sampson came of age. The amount of compensation must be regulated by the jury upon a fair consideration of all the circumstances. On one hand the plaintiff had a home, sick or well,, wet or dry, cold or warm. He was free from the care and trouble of looking after work; the risk of making bargains, loss of time in going from place to place, and the expenses incident to these inconveniences. He was found in clothing and in food.
    On the other hand, the defendant had the services of the plaintiff from time to time, and continually — a regular hand.
    The price paid to Randolph’s executors is not to be taken into the account as a payment to the plaintiff. Mr, Urie has his remedy over for it in another quarter.”
    Error was assigned in the charge of the court, that the plaintiff could recover.

      Alexander and Carothers for plaintiff in error were stopped by the court.

      Penrose for the defendant in error.
    Two questions are presented,
    1st. Is the plaintiff entitled to recover for the services rendered' by him for the defendant? and 2d. Is assumpsit the proper form of action for his case?
    It is a universal principle of law, as well as of natural equity, that every right has a remedy proper for its recovery, and every wrong an appropriate mode of redress. Here the evidence given established most abundantly the services rendered by the plaintiff for the defendant, and proved their value, and that value the verdict of the jury has fixed and ascertained, upon a consideration of all the circumstances; The plaintiff below, the court perceive, waived all right to recover any thing for his services before he came of age. He agreed, notwithstanding the proof ascertained their value to have been considerable, to permit them to go to the account of the care which the defendant had taken of him, while he was in his minority; although the evidence proved that those services were much more than a compensation for that care. Going, as the plaintiff did, for a compensation for his labor after he came of age, during a considerable proportion of the best part of his life, spent industriously in the service of the defendant, his case presented one of peculiar equity. It is in vain to conjecture, that if he had not worked during this period for the defendant, and had been employed by others, and received wages for his labor, he would not have been able to have accumulated a sum so considerable as that which the jury have awarded to him. It is equally out of place to bring into the argument the suggestion that he owed an obligation to the defendant for the mode in which he was reared, and the excellent character which he derived from the culture of the defendant. These speculations are illegitimate, after a verdict in the cause. They were topics for the consideration of the jury, and were urged before that tribunal with all the zeal, and ability which distinguish the gentlemen concerned for the defendant. No doubt they had their appropriate weight with the jury. The verdict of the jury has ascertained what the services of the plaintiff were worth, after making to the defendant a full allowance for every benefit which he had conferred upon the plaintiff.
    The plaintiff then has rendered to the defendant services, which after deducting eveiy thing which the defendant could fairly claim, and allowing him much more in the services of the plaintiff before he came of age, are worth the sum of three hundred and seventy dollars.
    Is he not bound to make compensation for those services? Does not every principle of equity and justice require that they should be compensated? It is suggested here that the services rendered were rended under a mistake mutual to both parties.
    Suppose this to be so; it in no degree diminishes the value of these services: the defendant received, and has enjoyed the benefit of them, and the plaintiff has parted with them. And it is settled that a benefit arising to the defendant, or a loss to the plaintiff, is a sufficient consideration to support an action on an implied assumpsit. Hamaker v. Eberly, 6 Binn. 509. There is no express contract in such cases, and perhaps in very many of them, a contract was not contemplated by the parties, and it might be urged, that to imply a contract, in such circumstances, would be to involve the party, to be affected by it, in a mistaken apprehension of his responsibilities, producing much, and unexpected inconvenience to him: but the law which requires of every man to render unto his fellow hi3 due, implies a contract upon the plainest principles of gospel morality. If I pay money to another by mistake, or if another ignorantly or tortiously appropriate my goods, I may recover back the money paid in mistake, or I may waive the tort; and recover in asshmpsit the value of those goods upon an implied contract; and yet my money or the value of my goods may have passed from the hands of the person who received them, and he may be put to much inconvenience to do me justice;
    Justice regards the rights of both parties, and does not give all to one: and it is more just that the defendant should suffer this inconvenience than that I should be wholly deprived of my property, to Which he has no right. In such cases it may be often proper to refer to a jury, the propriety of giving interest or not, on the claim of the plaintiff.
    1 Chit. Plea. 90. Arris Arris v. Stukly, 2 Modern, 260. Mathers v. Pearson, 13 Serg. fy Rawle, 258. Nee v. Gibbons, 14 Serg. 8? Rawle, 111. Hamaker v. Eberly, 2 Binn. 509. Ne-mine v. Dorr el-, 2 Lord Raymond, 1216. Bank of North America 'V. McCall-, 4 Binn. 374. Clinton v. Strong; 9 John. Rep. 870.-Jones v. Rees, 4 Yates, 109.
    The case at bar is much stronger for the plaintiff, than the case of money paid by mistake, which may be recovered back. In the case of money paid by mistake, the whole subject-matter of the implied contract passes from the defendant to the plaintiff, but in our case, we leave with him our services, the value of whieh he has received, and which is mingled with his estate; we only ask him to pay a compensation for that value. Is it right, is it just that he should retain both? Equality is equity. He has our services, let him pay their price, the laborer is worthy of his hire, and you establish that equality, you produce that equity.
    This action is certainly founded in contract, of which consent of agreement is the essense. But the existence of the contract, necessary to support the implied assumpsit, is a fiction of law devised to promote justice, and in many cases is not only inconsistent with the design of the parties, but is flatly contradicted by their acts and declarations, which put the negative upon all idea of the assent of the party to a contract. ■ As in case of money obtained by duress of the person, or goods, or by fraud or deceit. In point of fact no contract exists here, but the law to do justice implies an equitable fiction, a contract in the favor of the party injured.
    He may wave the tort, and go upon the contract.
    If Johnston had brought a homine replegeando, instead of a habeas corpus, there can be no question, but that he would have recovered a judgment, which would have restored him to liberty: but he would have recovered damages for his detention, and the Standard of these damages would have been measured by his services. Elson v. McColloch, 4 Yates; 115. Jones v. Reese, 4 Yates, 109. These cases establish beyond dispute the right of the plaintiff to recover for his detention and services.
    It is a legal right which the defendant could not gainsay, if this were a homine replegiando, by alleging a misapprehension on his part; and it is a right which, as it is in favor of liberty, should be cherished as sacred.
    The right to recover, in any form of action, being established; leaves the question, ás to the proper amount to be recovered, to the jury, who, in the present case have passed upon it, and cleares the plaintiff of the principal difficulties in the case.
    If the right exist in one form of action, it would be an anomaly to say, that in another form Of action, and that of the most equitable character, and considered always favorable to the defendant, that right could be defeated by any other argument but one which went to show that the form of action was misconceived.
    It is suggested that the defendant may, in equity and good conscience, after having received the value of the plaintiff’s services, retain that value, and refuse to pay for it; and this because there are some cases, to which this has been likened, where money paid by mistake can not be recovered back; because the defendant can, in good conscience retain the money so paid.
    It may be remarked, that although the reason of those eases which establish the general rule, that money paid by mistake may be recovered back by the payor, has been invoked to sustain the plaintiff’s claim, it is not conceded that his claim is not distinguishable from them, and supported upon far more favorable principles. He asks to take nothing from the defendant, for which he has not given the full value, while the defendant unjustly claims both the labor and its price. Suppose the plaintiff had placed in the possession of the defendant a specific chattel, which by mistake, both parties suppose to be the property of the defendant, but which was afterwards discovered to be the property of the plaintiff; should the defendant determine to retain that chattel, would any principle of equity protect him from the payment to the plaintiff of the value, or price of the article? To be sure if any circumstance had grown out of the mistake, which affected that value, it would be for the jury to consider of itj it certainly would not authorise the court to decide the question, much less to decide the whole against him, upon a conjecture of circumstances beside the merits of the cause, as they were disclosed by the evidence and weighed by the jury. But the cases in which the defendant has been permitted to retain money paid by mistake are exceptions to a general rule. They have struck me as being of doubtful equity, and it would seem to me, that it would be more consistent with justice in every case, where the defendant claimed to retain money so paid, to submit the circumstances to a jury, rather than to assume the decision of them as a question of law.
    But in such cases for the most part, it will be found, that the defendant was protected, owing to some peculiar or official advantage, which the plaintiff had to inform himself of the dircumstan* ces, before he made the payment.
    Such is the case of the Sheriff who by mistake pays money to a creditor whose judgment is not covered. But where money is received by an officer colore offici, to which he has no right, it maj; be recovered back in the action of indebitas assumpsit. Clinton v. Strong, 9 John. 370.
    Here the master claimed colore offici, by a colour of right, services from a person who Was a minor at the time he came into his servitude. The relation and its circumstances gave him peculiar" advantages in controlling the plaintiff, while his station in society j and his superior knowledge gave him opportunities of information which it is manifest the plaintiff had not; and which added force to the influence which the relation conferred upon the plaintiff, When this relation is considered, when it is considered that the defendant has the value of the services of- the plaintiff, I cannot perceive how it can be urged that in good conscience he may withhold payment for them. If that good conscience Consist in the; obsciwance of the golden rule, that we should do unto others that which we, in similar circumstances would wish that they should do unto us, it would certainly be grossly violated by suffering the-defendant to shelter himself with this defence.
    The anxiety which the law justly discovers to produce equality by suffering a jury to make compensation between parties, where value passes from one to the another, is exemplified by referring to some of those cases where the principal is conceded, that a voluntar); courtesy cannot be made the foundation of an action to recover compensation. Thus it is properly ruled, that where one renders services in expectation of a legacy, and no legacy is given, he cannot recover for those services, but if such services be performed at the request of the testator, no matter what his expectations were, assumpsit may well be supported to recover compensation, and in that case the Supreme Court said that the judges “very properly and fairly left the question ‘of request’ to the jury; under all the circumstances. In such a case very slender testimony would satisfy ingenuous minds. It was a case of great hardship;” and they sustained the verdict although the damages were said to be1 “liberal.” Roberts v. Kidd, I" Yeates, 209. It may me remarked that the court does not assume to decide the question as a question of law, upon the evidence, but it is submitted “to the ' ingenuous minds” of the jury, and they are left to infera “request” upon very slender testimony “under all the circumstances.” On the principles of,this case in some degree we relied. If in some sort, his services were voluntary, he proved that the defendant always directed him in the performance of those services. Here was evidence of a request upon more than “slender testimony,” which “under all the circumstances,” and in a “hard case,” the court “very properly and fairly” submitted to “the ingenuous minds of the jury,” who had no hesitation after hearing every argument which ingenuity could devise to evade the claim of the plaintiff, and after making every allowance which he could fairly ask, to find for the plaintiff. It is a case of mere justice, in which the court were justified in the exercise of legal astuteness if it were required, to give the plaintiff his demand. But it is said that TJrie paid-five hundred and fifty dollars to Randolph for the services of the plaintiff for which he should be allowed in this action. He purchased the servitude of the plaintiff when he was sixteen years of age. when his services were worth, as it was proved, far more than his keeping, and for those services until he was twenty-one the plaintiff has made no claim. A fair allowance for this period would have met his argument, had it been legitimate in this cause. But how could this payment made to a third person, who had no right, confer any equity upon the defendant as against the plaintiff who was a minor at the time and no party to the transaction. If my horse be stolen, and has passed into the hands of an innocent purchaser, for a valuable consideration, that person could not surely defend himself against my right to recover, by resting upon the full price he paid to the thief. But it is a sufficient answer to this argument to say that Mr. TJrie would be entitled to recover back the amount which he paid for the plaintiff to Randolph making all fair allowances. Jones v. Reese, 4 Yeates, 109.
    The very point which is raised in this case, is ruled by the Supreme Court in the case of negro Peter v. Steel, 6 Yeates, 250. The decision in that case is that indebitatus assumpsit on a quantum meruit, will lie by a free negro for work, #c. against a person who held him in his service, claiming him as a slave.
    The plaintiff then not only relies on reason and justice, but the stare decisis for the two positions which he assumes. '
    1. He is entitled to recover for the services rendered by him to the defendant. 2d. Assumpsit, the form of action selected, is the proper form of action for his case.
   The opinion of the court was delivered by

Kennedy, J.

The Defendant in error is a negro, and the son qf a negro woman who was born and regularly registered a Pennsylvania servant until the age of twenty-eight years; and she was the daughter of a regularly registered Pennsylvania slave for. life. The defendant in error was born on the 8th of July 1800, during the servitude of his mother, and registered by her master, in eight days after his birth. He was held and considered asa servant under the abolition act of the 1st of March 1780, and as such had been transferred and sold, two or three times, and in the last instance, on the 16th of September, 1816 to the plaintiff in error;for the price of five hundred and fifty dollars. He was held by the plaintiff in error as, a servant without any opposition, or. doubt, or question being made or entertained of his being legitimately so, until the 27th of July, 1829, when he was discharged from the service of the plaintiff in error upon a writ of habeas corpus. This was shortly after the Supreme Court of this state had decided in the case of Miller v. Dwilling, that the child of-one bound to serve to the age of twenty-eight years, was not bound to servitude for the same period; but was absolutely free. Until this decision, a directly opposite opinion was entertained, and prevailed not only with a great portion of the community, but with many of the most distinguished lawyers of the state. In confirmation of this I refer to the case of Stiles v. Nelly, 10 Serg. & Rawle, 366. Although it* appeared upon the. face of the record in the statement of that case, that Nelly was the child of one bound under, the act of the first of March, to servitude, until twenty-eight only, it never occurred to her counsel to claim her freedom upon that ground, no.r yet to any one of the learned judges of the court, whose duty it certainly was, if not in favorem vitos, in favor of liberty, a right much more highly estimated by many, to have pronounced her free, for that cause if-they had thought so, although it was not mentioned or contended for by her counsel. I have no doubt she would have been so declared at the time had the same opinion been entertained by the judges of the Supreme Court then, as at the time of the decision in Miller v. Dwilling. Indeed I know that the minds of-some of our most distinguished jurists in the state vacilated on this question. And although the language of the act of assembly was at all times the same, and underwent no change, yet I think it may be said, that it was doubtful what its construction would be until it was judicially declared. In short, that it was doubtful what the law was on this point until this court determined it.

Considering this state of uncertainty, as to what the law was when the plaintiff in error bought the defendant as a servant until twenty-eight, and the extravagant price of five hundred and fifty dollars, which he paid for him, it cannot be presumed that the plaintiff doubted that the defendant in error was a servant until tyrenty-eight. It must be presumed that the defendant ií¡i error knew his genealogy, at least as well, if not better than the plaintiff in error, and even after he attained the age of twenty-one, he continued to live with the plaintiff in error as his servant, without any the least objection until he was twenty-seven, years of age. During all this time, at least it may be said, that the defendant in error, was as much bound to know his condition and rights as the plaintiff. lie might certainly waive, or forbear to assert them as long as he pleased. It does not appear that the plaintiff ever endeavored or attempted to use any unfair- means in order to prevent the defendant in error from claiming, and obtaining his liberty if he chose. The counsel for the defendant in error, has contended that his claim may be likened to the case of money paid through mistake, which may be recovered back as he alleges.’ That the defendant in error performed the services for the plaintiff as his servant, under a mistake of his real condition, not knowing that he was a freeman, and that the plaintiff in error being greatly benefited by his services is bound by the ties of natural justice and equity to remunerate him. It is true that assumpsit will lie for money had and received, in all cases where by the ties of natural justice and equity the defendant ought to refund the money paid to him; except when he may with a good conscience receive it, and there was no deceit or unfair practice in obtaining it; in which case although the money could not be recovered by law, the action will not lie to enable the party who paid it voluntarily, to recover it back again. Morris v. Tarin, 1 Dall. 148. Bogart v. Nevins, 6. Serg. & Rawle, 369. Irvine v. Hanlin, 10 Serg. & Rawle, 219. Let the matter then be tested by this rule, and the question wiill be, did the plaintiff in error, under the circumstances of this case receive the labour and services of the defendant in error with a good conscience, in payment or satisfaction of the five hundred and -fifty dollars which he had advanced for him? It must be admitted that the plaintiff in error was entitled to have either the services of the defendant in error or to have his money repaid, that he had a just and conscientious claim to the one or the other: if so, surely he might very fairly and honestly receive his money, or the services in satisfaction of it from the defendant in error, or any other who was willing to pay or perform service for it. In such a case, it is not sufficient, as has been contended, to affect the conscience of the plaintiff in error, that the services although performed willingly by the defendant in error, were performed under mistake; be-; cause, in the case of a sheriff paying through mistake, money made by him, to a plaintiff in a junior execution, when he ought to have paid it on a senior, he cannot recover it back, although by doing so he made himself liable to the plaintiff in the senior execution, to -|)ay it again to him. The mistake of the sheriff in this case, has never been held to affect the conscience of the junior execution creditor, who had no right to demand the money. The amount of his execution wasjustly due to him, and he might therefore fairly receive it of the sheriff or of any other person who was willing to, pay it to him. It was the business of the sheriff to know what his duty was, and if he mistook it, he must be the sufferer. This: is certainly a much harder case than the one now before the court.. In the case of the sheriff, he is clearly the loser to, the whole a-. mountof the money paid by him, but in. the case under consideration the defendant was supported, and maintained entirely at the expense of the plaintiff in error, who furnished him with boarding lodging and clothing, as also every other necessary of life. If he would have made more than this for himself, had he put in the same time under the idea that he was free, and his own master, may be doubtful; at least it is not certain, that he has actually sustained any loss.

The defendant in error was at least bound in gratitude to make-compensation for the care, attention and expense bestowed, and incurred in raising and instructing him from his birth, until he became-able to take care of and provide for himself. And as his counsel allege that he is a man of considerable merit, it may be presumed that he owes this in part to his good, education, and the careful manner in which he was brought up. For all this he stood indebted to the plaintiff in error, who has either paid for, or furnished it himself, Beside it may be observed that the defendant in, error had been abandoned by the master of his mother in his earliest stage of infancy, he would perhaps have fallen into the hands of the overseers of the poor of the township in which, he was born, and I am inclined to think that they, under the fourth section of the abolition act of the first of March, 1781, might have bound him out as an apprentice until he would have arrived at the age of twenty-eight years; this they were clearly authorised to do in certain cases; so that the lot of the defendant in error may have been better than otherwise it would, had he been given up shortly afterhis birth by the master of his mother; for certainly he was not bound to maintain him beyond his pleasure, and if he did so, he ran the risk of getting nothing for it.

Upon the principle that is contended for, this action ought to be supported by every apprentice that is bound by an informal or void indenture. After he has served out his apprenticeship, he-might turn round and sue his master for his services. So Nelly, who served Mr. Stiles in the case already cited, might sustain a suit against him for her services notwithstanding she- waa adjudged by the decision of the Supreme Court tojje his servant,, because, according to the last decision on her condition, in the ease of Miller and Dwilling, she was free. Now such suits and. claims have never béen thought of, and I havfe no hesitation in saying that they cannot be supported.

The case of negro Peter v. Steel, 3 Yeates, 250, which has been cited and relied on by the counsel for the defendant in error) does not bear upon the merits 'of this case; it decides nothing more than that the merits, if the plaintiff has any, may be tried ih an action of assumpsit, which I think is perfectly correct. Again, it has been said, that in actions de homine replegiando, brought by those who have been held as slaves or servants; in which recoveries have been had, that damages have been uniformly given, and allowed, this is true, and in every such case damages follow a recovery of course; but then they may be nominal- only; and certainty ought to be no more in a case where the defendant in the action de homine replegiando, had the same ground for claiming and accepting of the service of the plaintiff; that the plaintiff in terror had to the service of the defendant in error in this Case. If the holding the plaintiff in the action de homine replegiando be decided to be unlawful, some damages must be given for that, at least nominal, but they are not necessarily given upon the ground of compensating for services; for the action, or issue joined in it, does not involve that question.

It is not pretended that there was any express contract in this case between the parties upon which the plaintiff below can sustain his claim against the defendant. As to an implied assumpsit, t think that none can be raised. The defendant below might have conscientiously received the services of the plaintiff until he attained the age of twenty-eight years, if he had continued to render them, and would have had a right to consider and apply them towards the satisfaction of the money which he paid for him. Suppose Johnston had continued to serve XJrie until he was twenty-eight, and Urie had brought a suit against his vendor of Johnston’s servitude, to recover the five hundred and fifty dollars, would not Johnston’s having served out the whole term for which he was sold have been a bar to the action? Most certainty it would. See Nickerson v. Howard, 19 John. Rep. 113. Although Johnston was not bound by law, and could not have been compelled to serve Urie, and in that way satisfy him for the money which he had paid, and was entitled to be compensated for, in some way; yet having done so, he cannot claim now to have his character changed into a hireling, and be paid for his labour contrary to the understanding that existed between them during the whole time of such labour or service.

The judgment of the court below is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    RIDDLE against POORMAN and Others, Executors of HOFMAN.
    IN ERROR.
    Where ah attorney gave the following receipt, “Lodged in my hands, a judgment bill granted By M. to H. for the silrti of twelve hundred dollars due, &.c. which is entered up in B. county which I am to llave recovered if that can be accomplish.ed.” Held: that he was bound to make good the collection of the judgment so far as it was practicable by the application of reasonable diligence, skill and attention, although he did not reside or practice in the County where the judgment was entered.
    Error to the Common Pleas of Franklin county.
    This was an action on the case against the plaintiff in error for negligencias an attorney brought by the defendants in error.
    The liability of the defendant below depended upon the construction of a receipt which he had given to the defendant’s testator, and the circumstances which occurred. The receipt was in these words:
    , “Lodged in my hands, a judgment bill granted by Henry F. Molwitz to Henry Hoffman, for the sum of twelve hundred dollars, due with interest since the'15th May, 1811, which is entered tip in Bedford county, which I am to have recovered if that can be accomplished.’’ On the 7th of June, 1816, when this receipt was given, the plaintiff in error, who resided in Chambersburg, Franklin county, did not practice in Bedford county. He had done so formerly, but had discontinued his practice there for some years.
    He committed the collection of the judgment, to his brother,

      Samuel Riddle Esquire, wbo then resided in Bedford county, practiced law there, possessed a large property, and enjoyed the confidence of the public both as an attorney, and a man. fie continued in good credit and circumstances until 1819 or 1830) he died in 1833.
    The real estate of Henry F. Molwitz was sold on an execution and on the 6th of August, 1816, S. Riddle as the attorney of Hoffman and Mr¿ M' Cullohthe attorney of a subsequent judgment-creditor took a rule on the sheriff to bring the money into court. The sheriff filedan appropriation applying the money to Hoffman's judgment, and the subsequent judgment creditor abondoned his claiim Hoffman died in the fall of that year. No suit was brought againstthé sheriff or his sureties. The sheriff became insolvent and was discharged as such on the 22nd day of November, 1819.
    A verdict passed for the plaintiff, and the cause was now argued on an exception to the charge of the court, which is. fully stated in the Opinion of this court.

      Chambers, for the plaintiff in error.

      M? Culloh, for the defendant in error.
   The opinion of the court was delivered by

Kennedy,J.

The errorsassigned in this case all relate to that part of the .charge of the' court below to the jury, in which they told them “that if they believed that the plaintiff in error appointed Samuel Riddle to attend to the business without consulting Hoffman, he, (the plaintiff in error) was bound by his undertaking of the 7th of June, 1816, to pay such attention to the business in the hands of the attorney, he should appoint, as a prudent man would bestow on such case of his own in the hands of such counsel at such a distance, to see that it was properly attended to.” .This is- the only part of the charge complained of by the plaintiff in error, and in-which he says there is error. It will therefore be considered as but one error.

The undertaking of the 7th of June, 1816, referred to by the court below, was a receipt in writing given by the plaintiff In error to Henry Hoffman the testator of the defendants in error. It was drawn up by the plaintiff in -error himself in the following terms, “Lodged in. my hands a judgment bill granted by Henry F. Molwitz to Henry'Eoffman for the sum of @1200 due with interest since the 15th of May 1811, which is entered up in Bed-ford county, which I am to have recovered if that can be accomplished.”

The plaintiff in error was, at the time of signing and giving this receipt a practicing attorney at law resident in Chambersburg, Franklin county, Pennsylvania, where he gave the receipt. He had some time previous to that practiced also in Bedford county, Where the judgment was entered, but had discontinued his practice there for some time. His brother, Samuel Riddle, however, re-' sided in Bedford at that time, and attended to the practice of the law, and to him the plaintiff in error committed the collection of the judgment mentioned in the receipt.

It is admitted as I understand, that if the plaintiff in'error had employed words in the receipt, shewing clearly that he intended to collect in person the amount of the judgment, and had afterwards employed another to do it for him, through whose negligence the money had been lost, that he would be liable for it to the testator, or his personal representatives; but it is contended as he has used wordsof a different import, shewing that he did not intend to collect the money himself, but to have it collected by another, he only made himself, by the tenor of his receipt, accountable for the professional skill of the attorney to be employed by him for that purpose, and for his ability to pay over the money to the testator or his representatives when collected.

I am not aware that it ought to make much difference in the extent of a-man’s liability under his éngagement, where he undertakes positively to have the thing done, whether it is to be performed by himself in person, or by another to be employed by him for that purpose. For although he should engage positively to do it himself, yet if he does it by another it will be a good performance of his engagement. In this case it appears to me from the terms of the receipt, that more was intended by the plaintiff in error, and that more was expected by the testator than is now contended for by the counsel of the plaintiff in error. Had it been his intention to have made himself accountable to the testator for putting the collection of the judgment into the hands of a skillful and responsible attorney at law only, he would have used a different form of words; and instead of saying “which I am to have recovered if that can be accomplished,” he would have said, “which I am to put into the hands of some competent person for collection,” or words of similar import. Had the receipt been couched in terms .like these last, no other expectation could well have been raised on the part of the testator, than that which it is now contended, the words contained in the receipt, ought to have produced. /

I believe it has often occurred that a gentleman of the bar, has, at the request of an acquaintance, performed professional services, sent a claim for collection to another distant member of the bar, within the circle of whose practice the debtor happened to reside, without intending to make himself responsible for the collection of it; but I can scarcely think where such was the understanding of the parties, that a receipt drawn up in' terms similar to the present was ever given. Indeed where- the engagement is merely that he will send the claim to some competent person for collection; and having done that and informed the creditor of the person to whom it has been sent, .there is no pretence for holding him to further liability.

I cannot persuade myself that this was all that was intended in the present case: If it were, why were these words “which I am to have recovered if itcan be accomplished” inserted in’ the receipt? They contain an express and positive undertaking fot the result, that is, for the collection of the money .if practicable, and not merely for the employment of a suitable person to accomplish that end; but that the end itself, if practicable, shall be accomplished. If the plaintiff in error had intended to make himself personally liable to the testator for the collection of the judgment, and the payment of it over to him, when collected, I do not know that he could have used terms, so concise that were better suited to raise that expectation in the testator, and to impose such obligation upon himself. The undertaking is very explicit, and general, without any restriction or qualification, other than the impossibility of accomplishing it. How then' can we by construction narrow and restrain the common and ordinary import of the terms contained in the receipt, and say that the plaintiff in error, thereby bound himself only to put the judgment of the testator into the care of a competent person for collection, and to inform the testator of the person to whom he had confided the trust: and that after having done this his further responsibility was at an end.

I repeat again that the plaintiff in error undertook expressly to have the amount of the judgment collected if it could be accomplished. In this undertaking there was also an implied undertaking that the money when collected should be paid over to the testator» or his personal representatives. The testator then had from the very terms of the undertaking every reason to believe, and expect that the plaintiff in error would at least cause his money to be collected if possible, and paid over to him or his representatives. It also appears to me that the plaintiff in error must have been conscious at the time of giving the receipt, that this was the expectation raised, on the. part of the testator by the terms used in it, and I therefore consider him bound by every principle «f moral and legal obligation to make good the collection of the judgment to the defendants in error, so far as it was practicable, by the application of reasonable diligence, skill and attentioq. The direction of the court below does not therefore appear toi have been more unfavorable to the plaintiff in error than from a fair interpretation of the terms of his receipt it ought to have been.

Judgment affirmed.


text:
    GRIFFETH against DOBSON.
    The quality of land in a tract, for which ejectment was brought, is not essential to the description contained in the writ, if the land be otherwise sufficiently described..
    A having recovered judgment in an action of ejectment against B, an Hab. Fas. Foss, was issued, and A was put into the possession of the land by the sheriff. B a few days afterwards, and before the return day of tire Hub. Fas. Foss., again got possession of the land by fraud or deceit, and retained it by force. In a second ejectment by A against B for the same land, proof of these circumstances alone, ■were held not to be sufficient to entitle the plaintiff to recover.
    Error to Cumberland county.
    This was an action of ejectment, in which John R. Dobson was plaintiff, and Thomas Griffeth was defendant, for a tract of land, thus described in the writ: “That the said Thomas Griffeth now is in the actual possession of a tract of land, situate, lying and being in Dickinson township, Cumberland county, bounded by lands of Peter Bge and the Jldams county line, the right of possession,” &c.
    To January term, 1825, an ejectment was brought for the same land, by the same plaintiff, against the same defendant; in which, at January term, 1827, a judgment by default was rendered for want of a plea by the defendant; upon this judgment, an Hab. Fas. Poss. was issued, and the plaintiff was put into possession of the land by the sheriff; — two days afterwards, the defendant obtained the possession from a tenant whom Dobson had put into possession to keep it for him, by fraud and deceit; and when in the possession thus obtained, he held it by force. Upon these facts the court below, at the instance of the plaintiff’s counsel, thus instructed the jury:
    “It seems that Griffeth, under his lease from Groop, got into possession in 1825. Ejectment was immediately brought against him by Dobson, and are covery was had; and upon a writ of Hab. Fas. Poss., the defendant was put put of possession on. Wednesday, and the plaintiff, by his agent Kennedy, was put in; but before the Friday following, Groop and Griffeth had again entered the house with Kennedy, and Dobson was then expelled. If they did it by fraud or force, it was in contempt of the law and the process of the court; and on application, before the return of the execution, the court would have awarded another writ of Hab. Fas. Poss. This is the well settled law and practice. Such fraudulent and illegal acts could not confer the right of possession on Groop and Griffeth, nor take it away from Dobson. Therefore, upon this ground, if the testimony as I have stated it is true, the plaintiff should recover.”
    There were various other facts in the cause, which gave rise to, other points; all of which were decided in favor of the plaintiff, for whom the jury found a verdict. But the alleged insufficiency of the description contained in the writ, and the eharge of the court in answer to the point mentioned, need only be here stated.
    In this court, the judgment was reversed, on the ground, alone, that the charge of the court below, in answer to the point put, was erroneous.

      Carothers for the plaintiff in error,

      F. Watts, contra.


author: Per Curiam.

text:
    LUSK against DAVIDSON.
    Jt is essential, in order to the continuance of the lien of a judgment upon land, which has been sold and conveyed, that the terre-tenant be made a party to the sc ire facias.

    Error to the Common Pleas of Cumberland county.
    In this case Alexander Davidson was plaintiff below, and Thomas Lusk with notice to A. Carothers, Esquire, was defendant. The following'were the facts of the case: on the 5th April, 1823, and to January term, Davidson obtained a judgment against Lusk, which was a lien upon a tract of land. On the 3d of Maroh, 1824, Lusk conveyed the land to A. Carothers, Esquire, who procured the deed to be recorded 11th of March, 1824: the land, from this period, was occupied by the tenant of A. Carothers, Esquire. Upon the 15th of March, 1828, within the five years, the original judgment of Davidson against Lusk was revived by amicable scire facias, and confession of judgment by Lusk. In this case the question was, whether, after the lapse of five years, the judgment would remain a lien upon the land, in the possession of the purchaser. The court below was of opinion that it would.

      Carothers for the plaintiff in error,

      S. Alexander, contra.

   Per Curiam.

By the third section of the act of 1798, it is ordered, that the scire facias shall be served on the terre-tenant, and on the defendant in the judgment, where he can be found. In the view of the legislature, then, the terre-tenant was the principal party, and the defendant, though ostensibly otherwise, but a party secondarily if at all concerned; and it is more reasonable to say that the provision for service of the defendant is but directory, and that the provision for service of the terre-tenant is peremptory. Every law that establishes a particular procedure, is, strictly speaking, directory; but it does not follow, that a part of the procedure, which is designed to protect one of the parties from collusion by the other, may be dispensed with. Every dictate of justice suggests, that the terre-tenant ought not to be bound by a judgment, whose operation is on the land exclusively, without having had a day in court; and we should strain a principle of construction already carried sufficiently far, were we to take for granted, that the legislature did not mean the provision for his protection to be enforced at all events. It is plain, therefore, that notwithstanding the judgment of revival confessed by the defendant, the lien is gone.

Judgment reversed, and judgment rendered for the terre-tenant.


author: Huston, J.

text:
    McCORMICK against MILLER.
    A constable having several executions against the same defendant in his hands at the same time, makes a levy, and endorses a schedule .of the goods levied on one of the executions, this is agood levy on all the executions.
    The property of an absconding debtor, against whom a domestic attachment had issued, by a Justice of the Peace, is not vested in the trustees, until after their appointment; there is no relation back to the time when the attachment issued.
    In an action against a constable, for money had and received, being the proceeds of a sale of personal property upon an execution, by the trustees under a domestic attachment, issued against the same defendant .whose property was sold by the constable, it is not competentfor the plaintiff to establish by'proof) that thejudgment upon which the execution issued, was obtained by the fraud of the plaintiff; although the constable had notice of the fraud, before he paid over the money to the plaintiff, and took an indemnity from him
    A domestic attachment may be executed by a deputy constable; and the proper direction to be given to process by a Justice of the Peace, is to the constable, although it may be known, that it will be executed by his deputy.
    Writ of error to the Common Pleas of Cumberland county.
    This was an action on the case for money had and received, which originated before a Justice of the Peace, from whose judgment the plaintiff appealed.
    The plaintiff, to support this action, gave in evidence the docket of'Justice Doyle, containing the record of the issuing of a domestic attachment at the suit of Alexander Barr against John Hamilton. The writ, directed to the constable of Carlisle, was issued on the 9th March, 1819, returnable on the 15th March, at 11 o’clock, A. M. This writ Was executed by Richard Miles, who on the 10th March, attached the personal property of John Hamilton, as per endorsement on writ.
    At the time the writ issued, Richard Miles was a general deputy of the constable of Carlisle, appointed with the approbation of the Court of Quarter Sessions, and so entered on the record of that court.
    On the 16th March, 1819, Henry Miller sold the personal property of John Hamilton, which had been attached, at public vendue, for one hundred and four dollars and ninety-seven cents.
    The defendant then gave in evidence, the docket of ’Squire Heap, containing the record of a suit of Isaiah Graham.v. John Hamilton, and four other suits against the same defendant, in which the writs of summons issued on the 5th March, 1819, and Were returnable on the 9th March: on that day the justice entered a judgment in each of the cases for the plaintiff: the judgment of • Isaiah Graham, was for nineteen dollars and ninety-nine cents and costs. Executions were immediately issued upon all the judgments, directed to Hemp Miller. And upon the execution of Isaiah Graham, there was a levy endorsed 9th March, 1819, of the personal property of John• Hamilton. No endorsement upon any other of the executions, except the name of the plaintiff. The property so levied was the same which Henry Miller sold on the 16th March.

      Richard Miles, sworn.

      Miller was there the same day, I served the attachment; at any. rate before the sale of the property, he Said he was indemnified. He said he had levied the property the day before. I was acting constable of the borough of Carlisle. The property was in West Fennsborough township, Cumberland county.
    The plaintiff requested the court to charge the jury on the following points:
    1. That upon the issuing of a domestic attachment it becomes a lien upon*all the personal property of the defendant in the county, and therefore the plaintiff is entitled to recover the whole amount of the sale, after deducting costs.
    2. That there being no levy upon any of the executions given in evidence, except that of Isaiah Graham, Esquire, at all events, the plaintiff is entitled to the balance of the proceeds of sale, after deducting that judgment and costs of sale.
    3. If the jury believe, that at the time the suits before the justice Were instituted, the plaintiffs therein knew that John Hamilton, had absconded, and at the time the judgments were rendered, that a domestic attachment had issued, and that they are now the real defendants in this suit, they cannot defend themselves by those judgments against the plaintiff’s claim.
    4. If the jury believe, that Henry Miller knew of the claim of the trustees Under the domestic attachment, before he applied the money to the judgments and executions, and declared, that he was indemnified fo'r thus paying over the money, it is a waiter of the necessity of a demand of a copy of the warrant, as required by the act of 1772, even if such demand is necessary, in a case of this kind.
    The court answered the first, second and third points in the negative; and said, that their answers to those points rendered the fourth unimportant. '
    Defendant’s points.
    1. If John Phillips continued to act as constable, the deputation of Richard Miles, was illegal and void; and he could not execute' the attachment in TVest Pennsborough township.
    2. The attachment Was not directed to the constable of Carlisle, nor to a person who was a constable: it is illegal, ánd can vest no title in the plaintiff
    3. The lien of constable Miller attached when he made his levy on the 9th of March, and neither the constable, nor any other person, could execute the attachment on the same property on the 10th, And any such executing, could not affect the first constable’s right.
    4* If all the executions were in the hands of constable Miller When he made the levy, he had a right to proceed upon them all, and to apply the proceeds to their satisfaction: — the fact of á levy being endorsed only on one, would not defeat the right: — the law considers that as being done, which ought to have been done: — this right was in full force, and unexpired when this suit was brought: —and it is a question for the jury to determine, from all the facts, whether the levy and sale was, or was not made in pursuance of them all.
    5. The suit of plaintiffs cannot be sustained, without having proved a demand on the constable, (the defendant,) for a copy of his warrant or warrants, before the suit was brought.
    6. The executions in the hands of the constable, when he made the levy and sale, are a complete bar to any recovery against him,
    7. The judgments before ’Squire Heap, áre conclusive, and riot open to investigation in this suit, — as to regularity or otherwise.
    8. Plaintiff’s have not proved any debt to be owing by Hamilton to Barr, and without such proof, the plaintiff can ndt recover.
    The court answered all these points in the affirmative, except the fifth and eighth, which were in the negative. An exception was taken to the opinion of the court, and was here assigned for error.

      F. Watts and Carothers for plaintiff in error.

      S. Alexander for defendant in error.
   The opinion of the court was delivered by

Huston, J.

The plaintiff gave in evidence the docket of Justice Boyle of Carlisle-, containing the record of a domestic attachment, at the suit of Alexander Barr against John Hamilton an absconding debtor. It was issued on the oath of Barr, stating that Hamilton had absconded, &c. &c. six days, on this affidavit, made 9 th March, 1819, the writ of attachment-issued the same day, directed to Richard Miles, deputy constable of Carlisle. Richard Miles was a general deputy of the constable of Carlisle, duly appointed and approved by the court — this writ was executed on the 10th of March, 1819, and goods in West Pennsborough township were attached.

The defendant gave in evidence the record of an-action before John Heap, Esquire, at the suit of Isaiah Graham against John Hamilton, and four other suits before the same justice against the Same- defendant, commenced the 5th of March, 1819, on all of which judgments were entered the 9th of March, 1819, and executions issued the same day and directed to the defendant, who levied, on the same 9th of March, on the goods which, on the next day, Miles, constable of Carlisle, laid the attachment. Constable Miller advertised and sold the goods on the 16th of March, and paid the amount of sales, (about one hundred and.four dollars,) towards satisfying the debt and costs due on the executions in his hands. Constable Miller, when -he made the levy, endorsed on the execution of Graham the schedule of the propei’ty levied on; he did not endorse it on the others; but it was in proof he had the others in his hand, and got them ail at the same time.

Many propositions of lav/, were submitted to the court by the counsel on each side, and answered by the court, ana every one was discussed here, with some zeal. I shall only notice such of them as are necessary to decide the cause,

It was contended, that because Miller had not endorsed a list of the goods levied on each execution, and in fact had not endorsed it on any but one, therefore, he could only retain for the amount of that one execution. The endorsement on the execution is not the levy, but one of the evidences of it. The schedule of property was levied on, if the articles are numerate, are seldom written, in th‘e first instance, on the execution. The sheriff tells the defendant, I levy on such articles, specifying them; and after this puts the list in writing, generally before leaving the ground.

A sheriff having two or more executions in his hands, seizes goods: this is the levy: he endorses a list of the goods on one of the executions, or, more generally, on a separate paper: this is good for all; he is not required to make a separate schedule for each: he seldom annexes the list'to any execution until he is making his re-' turn, and then annexes it to one and refers to it in the return to the others: — so he may make the list on one execution and refer to it in his' return on the others; and the return is never written on the others, until the return day. I do not say this is the most correct course for a sheriff, but it is so universal and without exception, that I can not say it is bad. The levy, however, all this time, is on all the executions, if St was so made, and so expressed to be at the time it was'made; add whether it is so or not, is a fact, and was so left by the court, who told the' jury, a levy was indispensable. But executions in the constable’s hands and a levy made before the attachment was executed, would bar the plaintiff’s recovery.

It was next contended, that the right to the goods was in' the trustees, as soon as they were appointed; dnd by relation, this right commenced at the time the attachment issued. This is so, expressly in the case of an attachment issued Out of the Court of Common Pleas, (unless in certain excepted cases,) but it is made so by express enactment: and I am not aware that, at present, we have any case in which any person has, by relation, a right to the property of goods before the act which vested them in him, took place, unless such right is given by express legislative enactment. In the act about attachments to be granted by Justices of the Peace, there is nothing vesting the property in the trustees, before their' appointment, which is to be after the return’ of the attachment pro-cess. But many things, in fact every thing in the law, indicates a contrary intention.

The executions, then, being levied before the attachment was executed, and the goods sold on the levy, the plaintiffs, who were not appointed trustees till several days after the levy, cannot take them.

But it was said these judgments were fraudulent, in this at least, that the several plaintiffs knew that John Hamilton had absconded, and that a summons taken out with such knowledge and served by leaving a copy with his wife at his house, was a fraud on other creditors: — that those plaintiffs who (hen got execution and obtained their debts, must give up the money when an attachment was subsequently taken out. In the.first place, there was no evidence that Hamilton had absconded when the several plaintiffs sued him, except the affidavit of Barr, filed with the justice,1 when he got his attachment: — .and although that was sufficient to obtain his writ, it is no evidence in this casé against this defendant. Our law expressly authorises process to appear and answer, to be served by leaving a copy at the defendant’s house with his family; and a judgment obtained on prpcess so served, is in all respects regular; at lgast, until something is proved which will avoid it. But however this might be the subject of inquiry, if this suit had been against the plaintiffs in those suits, it was not offered to be proved, that the defendant knew any thing of it. He was bound tp execute the executions put into his hands.. By the act of 21st March, 1772, no suit is to be instituted against a constable for any thing done in obedience to a warrant under the hand and seal of a justice, until demand in person or by written notice, &e. of a copy of his warrant, and refusal for' six days'to give such copy; and if suit is brought against such constable without joining the justice, or against thp constable and justice, the constable who produces at the trial and proves such warrant, under the hand and seal of a justice, shall have a verdict in his favour, whether the justice has jurisdiction or not. I am aware the protection given by this act, has been greatly curtailed by some decisions which would confine it to actions sounding in tort, or to suits brought by defendants, whose goods are taken under process; but in cases where the justice has jurisdiction, and his process is regular, even without the protection of this act, a constable would, I apprehend, be safe from the imputation arising from fraud in the plaintiff in the spit, If the goods taken were not the property of Hamilton, and the constable levied on goods of a third person, it might he one thing — if the constable were even bound tp look at the judgment, which he is not, and it appeared regular on the face of it, and the execution was regular^ I know of no authority which will justify a suit against a constable who executes an execution in such' case, bpeause the defendant alleges he can prove by something extrinsic the record, that the plaintiff ought not to recover — nor can I find any principle which would justify it — it would be subjecting one man to pay money, or costs at least, for the fault of another, and that, when he not only did not know of such fault, but might never have heard of it until too late.

By án act of assembly, the constable is liable to a suit and very summary'prppeedings, if he does not produce the plaintiff’s receipt, orthe money, or some other sufficient'return on the return day of his execution. The record of the justice, shews that the plaintiffs were paid, and satisfaction entered; but whether the constable paid the money to the plaintiffs or to the justice and he paid it to theplaintiffs does not appear; nor is there any evidence that the plaintiffs in this suit, gave him notice not to pay it. The only evidence at all referring to this subject, is that of Miles, who says,'that on the day he executed the attachment Miller told him he had l.evied on those goods, and that he was or would be indemnified. The court were right in directing the jury, that in this case, in this suit against Miller, they were not bound to fin'd against him, though they should believe the plaintiffs in the executions had obtained their judgment unfairly, as it was not alleged that Miller knew of such unfairness, if any existed.

Much was said about the authority of a constable and a deputy constable. I see no reason why a constable, who has according to law appointed a deputy, who has been approved by the court, should not still be constable, and capable to act and • execute process; — nor why a general deputy of a constable, when so appointed, cannot execute one kind of process as well as any other kind. As to the power of-a constable out of his district, or his liability for not executing process out of his district, except where there is no constable in the township, or the constable of the township is. the defendant, or the plaintiff, or a relation of the party or parties —I say nothing. Although it is expected that the process will he executed by a deputy constable, yet it ought to be directed to. the constable of the township.

Judgment affirmed.


text:
    COMMONWEALTH ex. rel. TAYLOR against HASSON.
    A citizen of Maryland, having- by deed, manumitted bis slave of sixteen years of age, “from and after the day on which he shall arrive to the age of twenty-eight years,” and by the same instrument sold and transferred his servitude to a citizen of Pennsylvania, it was held, that such slave so manumitted, was bound to serve in Pennsylvania, until be arrived at the age of twenty-eight years.
    Error to Cumberland county.

      The Commomoealth ex relatione James Taylor, against James Hassen. Homine replegiando.

      James Owens, a citizen of the state of Maryland, being the owner of a slave named James Taylor, the relator, executed the following deed:
    “To all whom it may concern, be it known, that I Jonas Owens, of Cecil county, in the State of Maryland, for divers good causes .and considerations, me thereunto moving, and also in consideration of the sum of five hundred dollars current money, to me in hand paid, have released from slavery, liberated, manumitted, and set free, and by these presents release from slavery, manumit and set free, my negro boy William Taylor, aged sixteen years, the 22nd October, last past, my negro girl named Harriet Wilson, aged 11 years, the third September, last past, and able to work and gain a sufficient livelihood and maintenance; and him, the said negro boy, William Taylor, and her, the said negro girl, named Harriet Wilson, I do declare to be free, manumitted and discharged from all mannerof servitude or service, to me, my heirs, executors, administrators or assigns, from and after the day on which they shall respectively arrive to the age of twenty-eight years. And whereas, the unexpired time or term of service of the aforesaid negros William Taylor and Harriet Wilson, have this day been by me sold to James Hasson, of Cumberland county, in the state of Pennsylvania. Therefore, know all men by these presents, that I the said Jonas Owens, for and in consideration of the sum of five hundred dollars, current money to me in hand paid, before the sealing and delivery hereof, the receipt whereof, is hereby acknowledged, have granted bargained and sold, and by these presents do grant bargain and sell unto tho said James Hasson the aforesaid negro boy, called William Tay-> lor, and the aforesaid negro girl, called Harriet Wilson, until they shall have respectively arrived at the age of twenty-eight years. To have and to hold the said William Taylor and Harriet Wilson for and during the time aforesaid, that is to say, from the day of the date hereof, until they shall respectively arrive at the age of twenty-eight years, unto him the said James Hasson, his heirs and assigns, and to and for no other use intent and purpose, whatsoever. In witness whereof, the said Jopas Owens hath hereunto subscribed his name, and affixed his seal, this seventh day of May, A. D. 1828.”

      James Hasson, the defendant, brought Taylor into Pennsylvania; and by .virtue of the deed of manumission and transfer claimed to have his services until he arrived at the age of twenty-eight years. Whether Taylor could be thus held in Pennsylvania, was the question upon which the court below (Peed, President,) delivered the following opinion:
    By the Court.
    It is supposed the case of Scott v. Waugh, 15 Serg. Pawle, 17, settles a principle, by which this case may be decided. If Taylor was not a slave in Maryland, but quasi a servant for years, there is no law to prohibit his being held in the same condition in Pennsylvania. If he had been bound by indenture to an apprenticeship in Maryland, he could not have been held here, unless the indenture provided for it, 6 Binn. 202. That case however arises from the nature of the contract, under which the service was claimed, but in tliis case, the service is not claimed; under any special contract, but under a general principle. Slaves manumitted with a portion of service reserved, is valid. Scott v. Wqygh. The transfer was not against the right and interest of Ta.ylpr but in favor of both; for after twenty-eight years of age he becomes free. As Owens had an interest in- the service of Taylor, by the general principle of our laws, and under the constitution; and as thp transportation of slaves only is prohibited, and he was not a slave, the same general principles of law, and the provisions of the constitution would justify a sale of such services, and if the interest and right of the person sold were not injured, but advanced, such sale would be valid.
    Judgment for the defendant.

      F. Watts and Williamson for plaintiff in error.

      Carolers, for the defendant in error.
   Jugdment affirmed.


author: Kennedy, J.

text:
    BOWERS against OYSTER.
    There can be r\o such thing asa valid, efficacious, parol mortgage.
    The interest which a tenant hath in lands which he holds by parol from the tenant in fee simple, as a- pledge or security for the payment of a debt, is divested by a sale made by order of the Orphans’ Court for the payment of the debts of the ibtestate debtor.
    Error to the Common Pleas of Cumberland county.
    This was an action of ejectment, in which, in the court below, Jacob Bower was defendant, and Abraham Oyster and George Oyster were plaintiffs. John Worrrtley, in his life time, was the owner 'Of the house and lot in Wó’rmley sburg, for which the ejectment was brought, and both plaintiff’s and defendants claimed title Under him. In 1820, Wormley ■ being indebted to Bower, they made a parol agreement, by which, the possession of the house and lot in controversy, was delivered to Bower, to hold as a security for the payment of his debt, and until it was paid. The proof was, that the annual value of the house was about equal to the interest of the debt. After 1820, Wormley became insolvent and died intestate. In 1825, William Line, Esquire, became the administrator of Wormley, and applied to the Orphans5 Court for an order to sell his real estate, for the payment of debts, and among other parcels of real estate, which he was ordered by the court to sell, was the house and lot for which this ejectment Was brought. Pie sold it to the plaintiffs, Abraham and George Oyster, and the question was, whether they were entitled to recover from Bower, without paying his debt due to him by Wormley.

    The following points were put to the court below, upon which they were requested to charge the jury:
    1. A parol mortgage Or pledge of real estate, accompanied by the actual loan of money, and delivery of possession to the niorgagee, is not within the statute of frauds, &c. and is good and available against the mortgagor, and all clalining under him, subsequent to the date of sU&h parol Contract.
    2. That a sale made by the administrator of such mortgagor Under an order of Orphans’ Court, for the payment of debts, would not defeat the mortgagee’s right of possession, until his debt was actually paid.
    3. That such sale by an administrator, would not have the same efiect as a sale Upon a judgment, prior in date to such parol mortgage.
    4. And if the jury find that the defendant, as early as April, 1830, entered into- a parol agreement with John Wormley, in his life-time, by which he agreed and actually loaned to said Wor?n~ ley four hundred and fifty -six dollars, and said Wormley, ,to secure. the payment thereof, then agreed, and actually delivered to the defendant, the possession of the house and lot of ground in dispute, to be held by him until the said money was repaid: and that defendant took possession, and still holds the same under the parol contract, and the money is yet unpaid: and that at the time of Wormley’s death, no judgment existed against his estate, prior in point of date, ánd lien to the date of said contract; add that when the plaintiffs purchased, they had notice of the defendant’s title and claim, and that he claimed to- hold possession, until his debt was paid: then the plaintiffs cannot disturb defendant’s possession, without payment be made of his debt.
    The court (Reed, President) answered the first point in the affirmative, and the second, third and fourth in the negative; and^was of opinion that the plaintiffs were entitled to recover: The jury found accordingly.

      Metzgar and Car others, for plaintiff in error.

      F. Watts, for defendant in error.
   The opinion of the court was delivered by

Kennedy, J.

In this case, although four points were submitted by the counsel for the plaintiff in error to the court below for their decision, yet they present but two questions, which will he Considered.

The first is, whether a pafol mortgage of land, accompanied by possession in the mortgagee, to secure the payment of a debt owing to him by the mortgagor, by specialty, is good against subsequent purchasers, for a valuable consideration, and entitled to preference in respect to alien, as against subsequent judgment creditors, or is sufficient to create a lien upon the land?

The second is,- whether a sale by order of the Orphans’ Court,to raise money to pay the debts of the mortgagor after his death, discharges the land firóm the effect of the lien, if any it has, of such a mortgage?

The first point, which involves the first question, was answered in the affirmative by the court below,' and of course, not excepted to by the plaintiff in error, who was the defendant claiming under the parol mortgage. If this point, however, had been correctly answered it would have removed the very foundation of the defence set up by the plaintiff in error, and have rendered the decision of the other points unnecessary.

There can be no such thing as a valid and efficacious parol mortgage. If it be considered as passing any estate of interest in the land, the 'statute against frauds and perjuries interposes^ and dé* telares that a parol contract shall not create or pass a greater interest or estate in the land than at will. It will also be found that the act ,of 1705, which directs the mode of proceeding upon mortgages by scire facias, after the debt has become payable, to enforce the payment of it by a sale of the mortgaged land, that the only mortgage recognized or mentioned is that by deed; that is, made in writing under the hand and seal of the party. Again the 8th section of the act of 1715, declares, that no deed, or mortgage or defeasible deed, thereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to’ grant any estate therein, for life or years, unless such deed be acknowledged or proved and recorded within six months after the date thereof. Also by the act of the 28th of March, 1820, it is declared, that “no mortgage or defeasible deed in the nature of a mortgage, shall be a lien until such mortgage or defeasible deed shall have been recorded or left for record,” as therein before directed, except such mortgage as shall be given for the purchase money of the mortgaged premises, when sixty days are allowed for the recording of them. It is also clearly manifest, that the acts of assembly just mentioned, which prescribe the' mode of proceeding to enforce payment of debts due upon mortgages, and direct the probate or acknowledgment and recording of them, are only applicable to such mortgages as are-in writing, and cannot, by ány possible construction, be extended to parol mortgages. ,If the legislature had ever dreamed of there being such a thing as parol mortgages, some notion or meniion would certainly have been made of them in some of these acts. If it could have been conceived that parol mortgages could have legitimately existed, after these various enactments with respect to written mortgages, there was quite as much reason for prescribing a-remedy for the recovery of money due upon them. But if there were the least shadow of doubt with respect to this matter, the act of. the 28th of March, 1820$, at once removes it; for it. declares in the most positive terms, that no mortgage shall be a- lien, until it shall have been recorded, or left in the proper office for that purpose, after having been first duly proved or acknowledged. Now it is obvious that these prerequisites can only be observed and complied with in the case of written mortgages, and therefore no others can be made to create a lien upon lands or real estate.

To say after all these provisions of the législatureon this subject, that a parol mortgage is good and effectual for -the purpose of passing any other interest ór estate inlands than at will, or to create alien upon theni, would not only be repugnant to the spirit and terms of the act of assembly referred to, but would give to parol mortgages of land, accompanied by a corresponding change of the possession* much more power and efficacy than is allowed to written mortgages, which are certainly entitled to much higher consideration and respect, because of the unchangeable certainty with which they may be made to appear, as well as the greater degree of deliberation and solemnity with which they are generally executed. This however cannot be, it is too unreasonable to be dmitted, and therefore is not the law.

As to the second question, I think that the court below was right. It is expressly provided by the 31st section of the act of the 19th of April, 1794, commonly called the intestate law, that no lands, tenements and hereditaments sold by order of the'Orphans’ Court, under that act “shall be liable in the hands of thepurchaser for the' debts of the intestate.” Now had the parol mortgage, which the> plaintiff in error claims to have been made by the intestate to him,-, been valid, so as to have given him a lien upon the house and lot of ground, f° récover the possession of which from him, this action was brought, still I apprehend, by the terms of the act last mentioned,. the lien would have been discharged by the sale under the order of the Orphans’Court, at. which the plaintiffs in error, under the greatest possible effect that could be ascribed to the mortgage, had no right to claim or hold possession of the property, but as a security for the payment of his debt. A mortgage has beeti' considered in Pennsy lvania merely a security for the payment of the debt, and as giving the mortgagee a specific lien upon the'land mortgaged for the payment of it. In this ease, the debt for which the plaintiff in error claimed to hold the possession of the house and lot, was one of the debts owing by the intestate at the time of his decease; and to raise money for the purpose of paying these debts, the house and lot was decreed by the Orphans’ Court to be' sold, and was sold accordingly. By the very terms,- then, of the' act last referred to, the property was not to be liable'for the debt of the plaintiff in error, or any other of the debts of the intestate, iff the hands of the purchasers. It can make no difference that the plaintiff in error’s debt, was claimed to be a mortgage debt upon this property, for the term <s‘d'ebts,” which is the word used in the act without qualification or restriction attending it, must be considered as embracing all debts, whether due upon mortgage, judgment, specialty, note or book account: and if so, then the property according to the direction of the act, would no longer be liable for his debt, after it had passed into the hands of the purchasers by the sale under the decree of the Orphans’ Court.

The case of Molier and Noe, 4 Dall. 450, has been mentioned by the counsel for the plaintiff in error. The principle established by this court in that case, is in favor of this construction, and against the plaintiff in error. It was decided there, that the sale under the order of the Orphans’ Court, discharged'the property sold. from the lien of judgments obtained against the intestate in his life-time, and remaining unsatisfied, and liens on the property at the time of his death; but that they ought tabe paid out of the money arising from the sale, according to their priority. The dictum of the late chief justice in that case, which has been relied on by the counsel of the plaintiff in error, was uncalled for by the case itself, and the question not involved in it. And although it was purely obiter, I admit that it is entitled to great respect, coming from so distinguished a source. But as the case did not present t.he question, we may well presume, that it was not argued by counsel, and that it did not occur to him that if there had been first, a judgment, next, a mortgage, and then a second judgment all liens against the property, at and before the decease of the intestate, and continuing to be so, up to the time of sale under the order of the Orphans’ Court, that what he said in regard to a mortgage debt, could not well be carried into effect. After delivering the opinion of the court, that the sale of the property under the decree of the Orphans’ Court discharged it from the liens of the judgments obtained against the intestate in his life-time, he says “I conceive them (mortgages) to stand on a different footing from judgments, because the mortgagee is strictly speaking, the owner of the •land and may recover it in ejectment. The mortgagor has no more than an equity of redemption; nor have the Orphans’ Court power to sella greater estatethanhe is lawfully possessed of.” Now suppose that the property had in the case last put, been worth the amount of the first judgment and lien, and the plaintiff in that judgment had bought it at the sale made under the decree of the Orphans’ Court,’at the price just equal, to the amount of his judgment, and it being the first lien according to the decision of the court in Molier v. Noe, would have entitled the purchaser to the money; so that it would have been sufficient for him to have given the administrator a reeipt for the amount of his judgment; and to have taken of the administrator, a receipt for the payment of the purchase money. But if the dictum of the late chief justice were correct, the mortgagee, although his mortgage was posterior in date to the lien of the judgment of the purchaser, would have a right to proceed on his mortgage, and sell the property over again, or to proceed by action of -ejectment and take the possession of it from the purchaser, because the sale made under the order of ihe Orphans’ Court, must be considered as selling mearly the equity of redemption, andmot the legal and absolute estate. It is manifest, however, that this could not be, because it would in effect be, to make a subsequent mortgage prevail over a prior judgment; and that too, without the least default on the part of the judgment creditor; or in other words, to postpone the lien of the judgment to that of the mortgage, .which was posterior in point of time. And according to this opinion of the late Chief Justice, if the property had been sold for more than the amount of the first judgment, the surplus would have been applicable to the payment of the second judgment, to the exclusion- of the mortgage, because it was money which arose from the sale of the equity of redemption, or perhaps for this reason, which would be still worse, the second judgment would be entitled to a preference over the first, which would be repugnant to the principle decided in Molier v. Noe, as also in many other cases decided since that: upon this subject, the.principies which he advance's in support of his opinion have been, as I conceive, repudiated by the subsequent decisions of this court, on, th,e subject of mortgages, in some of which he joined, because he delivered the opinion of the court himself.

In the first place, it has been decided, that a mortgage, in this state is considered merely a security for the debt. Schuylkill co. v. Hoburn, 7 Serg. & Rawle, 419. Simpson v. Ammons, 1 Binn. 177 Wentz v. Dehaven, 1 Serg. & Rawle, 317, and in this last cáse, that it may be released by parol; and in all of them, that as far as respects third persons, the Mortgagor is treated as the owner. of the land to all intents. So that I apprehend, a freeholder, who has mortgaged his freehold, would still remain a freeholder,, and would be qualified to serve as a road viewer, or appraiser of' goods distrained for- rents, or a juror, or member of an inquest, in the case of a proceeding by a landlord before two justices of' the peace, to recover possession of the leased premised, after the-lease had expired; in which several situations, none other than a freeholder, by our acts of assembly can serve. So a widow is entitled to a dower out of the land mortgaged, before the marriage;; and in which the husband had the equity of redemption, at the, time of his death. Reed v. Morrison, 12 Serg. & Rawle, 18.

In the next place, it has been decided, that land taken in execution under a-judgment of- later date than other judgments, and a mortgage.upon the same, and sold by the sheriff, shall be discharged from the liens of such, judgments and the mortgage, and that the money arising from the sale, shall be appropriated to the payment of' the respective judgments and mortgage according to the priority of their liens. Kawfelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, Ibid. 286. Norris v. Willard, 1 Penna. Rep. The Corporation of the Widow’s Fund v. J. B. Wallace, decided in Philadelphia, in January, 1831, and Hoover v. Shields, 2 Penna. Rep. 135.

Again, so far is the mortgagee from being considered the owner of the mortgaged land, that although the mortgage be of the fee simple, yet his interest is considered of a mere chattel character: and upon his death will pass to his executors or administrators, and not to his heirs, as it would do, were it considered his estate.

Hence his executors or administrators may assign or dispose of it, and the assigneemay maintain an action of- ejectment to recover-the possession, unless the debt be paid to him. So that here again the opinion of the Chief Justice which was, that because the mortgagee might maintain an action of ejectment to recover possession of the land, he was therefore the owner of it, is not sustained. He has merely a right to the possession of it, unless the debt be paid, and if not paid, to receive the rents and profits of the land until his debt be satisfied. Further, it has been decided by this court, that the interest of the mortgagee, whether the mortgage be legal or equitable, cannot be taken in execution, and for this reason, because the mortgage gives no title to the land and vests no, real estate in the mortgagee, but is to be considered as a mere chose in action or evidence of a debt. Reckard and others v. Madeira, 1 Rawle, 328.

judgment affirmed.