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 Penn[220]*220sylvania 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 [221]*221error 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 [222]*222never 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.
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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 Penn[220]*220sylvania 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 [221]*221error 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 [222]*222never 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. [223]*223claims 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 con[224]*224trary to the understanding that existed between them during the whole time of such labour or service.
The judgment of the court below is reversed.