
    Allen vs. Cockerill.
    
      December 6.
    Indenture gitfh en by a woman of color fo ferve A as a fervanc a number of years, A af~ ligned his right and title to faid wonun to C $ the fervant was difchargedtrom the fervice oí C by a babeas tarpus.
    
    An a&ion of aflumpfic will not lie in i'avor of C a-, gainft A, to re. cover damages, without proof of fraud or Warranty that the w. man was a fervant for a certain time.
    The count which contains neither a charge of fraud nor a njoarramy ihould be tiiiixvaided.
    The plaintiff alleges that de. fendant under, took by afiign. meat ia wri. ⅛ °f which ¿* "wo* man was a ⅛/. vant ¡'or years; 'he writing prof» taking.
   OPINION of the Court* by

Judge Gwsxey.-

This writ of error is prosecuted to a judgment recovered in the court below, by the defendant in error, in an action of assumpsit, brought by him in that court against the present plaintiff.

The declaration contains three counts, and the trie! was had oil the genera! issue; and the main question presented for the determination of this court, is whether a new trial should have been awarded on the grounds of the verdict being contrary to evidence ? We are of opinion it should.

In whatever point of view the evidence may he considered, it unquestionably shews no cause of action. From the evidence it appears that Allen, whilst he held an indenture given by a certain woman of color, containing covenants on her part to serve in the capacity of a servant a certain number of years, and whilst the woman was actually in his service, sold his right, and by an endorsment upon the writing, sealed and subscribed by him, actually assigned his right and title to the said woman to the plaintiff in error; and although it was also proven that after the sale, the negro was discharged from the service of the plaintiff under a writ of habeas corpus, there was no evidence conducing in the slightest degree to the proof of a fraud an the part of Allen, and instead of establishing a warranty that the woman was a servant for any time whatever, the proof is conclusive that Allen sold the interest which he held under the indenture only. Whether, therefore, the cause of action &? set forth in. the declaration-, isconsiderédaspreseñting the question of fraud in the sale, or a warranty that the woman was a servant for the number of years mentioned in the indenture, in either case the verdict is clearly contrary to the evidence, and should, on the motion of the plaintiff Allen for that purpose, have been set aside and a nCW trial awarded. '

. The count 1(⅛⅜⅛⅛>1{.0<1 maintain the a£tion.

We are also of opinion the court should, during the trial, upon the motion for that purpose, have instructed the jury to disregard the second count in the declaration, That count contains no allegation from which a fraud in the sale of the negro can be inferred, and although it charges án undertaking on the part of Allen that the woman was a servant for years, yet by the subsequent statements that charge is so explained as to evince clearly no such undertaking was entered into : for as Allen is alleged to have assigned his right to the woman, and that assignment under his hand and seal was proffered to the court, that alone must be looked to for the purpose Of ascertaining the extent of his undertaking; and as it contains no warranty, none can be implied, and consequently none can be admitted to have been made.

The judgment must therefore be reversed with costs, the cause remanded and such proceedings therein had as may he consistent with this opinion.  