
    Lydia Whitehead vs. William M. Ducker, Administrator of Richard W. Webber, Deceased.
    L. W. made her covenant to W., in which she recites that “ she had employed W. as her counsel to claim for her ten slaves in the jail of Franklin county, levied on by attachment in the circuit court against James Hutchins. Now if the said W. shall succeed in said suit, I bind myself to transfer and convey to him my right, title and interest of, in, and to slave Peter, one of said slaves, but I am not to warrant the title of said slave, as his fee, in addition to a note I have this day given him.” In an action on this covenant by the administrator of W., it was held, that by the legal construction of the covenant, W. was retained in a trial of the right of property in the slaves in which L. W. was to be claimant, and was not retained in the attachment suit itself; and therefore instructions by the court below to the effect, that W. had been retained in the latter suit by the covenant, and referring to the conduct of that suit, were calculated to mislead the jury, and were erroneous.
    
      And therefore, when in the action on the covenant it appeared in proof that L. W. had but a mere legal title to the slaves attached, and that tainted with fraud, (Hutchins, the defendant in the attachment, having conveyed them to her to defraud his creditors ;) and had also failed to make her claim to the slaves, but had joined with Hutchins in a mortgage on them in favor of the attaching creditor, executed in pursuance of a compromise of the attachment suit made without the consent or approbation of W.; it was further held that the criterion of damages to which W. was entitled, was not the value of the slave, but the value of L. W.’s right, title and interest in him; which being but a naked legal title, W. could only recover nopninal damages, and a verdict for the full value of the slave would be erroneous.
    This was an action of covenant by William M. Ducker, as administrator of Richard W. Webber, deceased, upon a sealed writing, dated March 22, 1841, executed by Lydia Whitehead, whereby she recited', “ that she had employed Webber as her attorney at law and counsel to claim for her ten slaves, then in Franklin county jail, levied on under an attachment, returnable to the next May term of Franklin circuit court, issued against James W. B. Hutchins.” And she thereby agreed to convey to Webber? if he should succeed in said suit, her right and title to Peter, one of said ten slaves, as his fee, in addition to a note she had then given him, but refusing to warrant her title to the slaves. The agreement is set out in full in the opinion of the court.
    The first count averred, that Webber was ready and willing, at all times, to prosecute the defendant’s claim to the slaves in said attachment suit, and could have succeeded, but that the defendant prevented him, by her own voluntary acts, before the next May term of said Franklin court, by compromising said attachment suit and claim, without the consent or advice of Webber, and so placed it out of his power to prosecute the claim, &c.
    The second count was upon the same writing, and averred readiness and ability in Webber to succeed, but she prevented him.
    The third count averred readiness and ability of Webber, but that he^was prevented by her voluntary acts.
    All the counts aver a failure and refusal to convey Peter as agreed by the writing.
    
      The defendant below plead in substance as follows, viz :
    1. That she did not commit the breaches alleged. To this there was a similiter.
    
    
      2. That Webber in writing released and discharged her before action brought; to this there was a replication of denial, and a similiter.
    
    3. That Webber released her before suit; the replication of denial, and a similiter.
    
    4. A plea to the first count, that Webber could not have succeeded in the attachment suit, if it had not been compromised; with a similiter.
    
    5. Likewise a plea to the first count, that the suit was compromised with the knowledge and consent of Webber, and concludes to the country.
    6. A plea to the second count, that Webber was not prevented by her from claiming the slaves, and succeeding in the suit; with a similiter.
    
    
      7. A plea to the second count, that Webber was not able to succeed in the suit; to which was a similiter.
    
    8. A plea to the second and third counts, that the attachment was compromised with the knowledge and consent of Webber; to this was a replication of denial, and a similiter.
    
    9. That Webber, in his life, did not, nor did his administrator since his death, demand of defendant a conveyance of the slave, Peter.
    This plea was, on motion, stricken out, as tendering an immaterial issue.
    By leave of court, the following pleas were afterwards filed:
    1. That defendant did convey Peter by the conditional conveyance mentioned in plaintiff’s declaration (i. e. by'the writing sued on;) but the condition upon which the right of Webber was to “ arise and accrue/' had not yet been performed.
    To this was filed a demurrer; because it traversed matters not in the declaration ; was an immaterial issue; the defendant was estopped from setting up a different consideration than the-writing showed, and the plea set out a new consideration for the covenant sued on. The demurrer was sustained.
    
      2. That defendant did well and truly covenant to convey her interest in Peter on condition, as alleged; and that the condition has not been performed by Webber, nor by any one for him, and that she did not, by her act, prevent him from performing. To this there was a replication, that Webber was so prevented; with a similiter.
    
    3. That defendant did well and truly covenant to convey her interest in Peter to Webber, on the condition in the declaration mentioned. That the consideration of said covenant and intended conveyance was, the professional services of said Webber to be rendered in Franklin circuit court, in a trial of right of property to said ten slaves; and the proceedings for said trial could not be instituted unless the property was claimed on oath by her, which oath she could not take without committing perjury, whereby the condition became impossible, and consideration failed.
    A demurrer for the causes specified, as to the first plea above, was filed and sustained.
    On these pleas a trial was had, and verdict rendered for Web-ber, which was subsequently set aside, and a new trial granted below.
    On the next trial the plaintiff’s evidence was this :
    The writing sued on, duly proven; the proceedings on the attachment suit, to wit, the affidavit and bond and attachment.
    The affidavit was by George A. Peck, agent of John Watt, who swears that James W. B. Hutchins, is indebted to Burke, Watt & Co. in the sum of $4181-78. It avers that Hutchins so absconds and conceals himself that process cannot be served, &c. The bond is executed by John Watt, and John Cameron, his surety.
    The plaintiff also proved and read the order of defendant, directing the sheriff of Franklin county, to deliver the slaves to the agent of Burke, Watt & Co., after they were so attached. The order stating that the case had been compromised. The plaintiff also read in evidence a mortgage from defendant and Hutchins to Burke, Watt <fe Co., made after the compromise, and for the debt on which the attachment issued; the mortgage was upon slaves so attached.
    
      John P. Stewart, a witness for the plaintiff, proved that Web-ber was present at the court to which the attachment was returnable; expressed dissatisfaction with the compromise. He did not know whether Webber was present when the compromise was made or not. The attachment was never tried. The defendant made no affidavit of her title to the slaves.
    O. J. E. Stewart, for plaintiff, proved that Peter was worth, at the time he was so delivered on the compromise to Burke, Watt & Co., $1000. Witness saw Hutchins in Meadville a day or two before, and after the attachment was issued and levied.
    The coroner, who levied the attachment, proved that the slaves were found at defendant’s house, and Hutchins was there at the levy.
    Hutchins proved, that, a few days before the attachment, he delivered the slaves attached to the defendant as her own property; that he bought the slaves in New Orleans, Louisiana, a short time before he so delivered them to the defendant; she paid nothing for them, and he had the bill of sale made to her, in order to protect them from the debt due Burke, Watt & Co., and she knew it. He compromised the attachment suit, because Webber told him every body would disbelieve that the defendant had money to buy the slaves. That defendant refused to swear the slaves were her property, and he was about to remove the slaves to Louisiana when they were attached. Webber did not advise, but opposed, the compromise.
    On this state of proof, the following instructions in substance were asked and given for plaintiff:
    1. If the defendant employed Webber, and then prevented him from trying to succeed in the attachment suit, and had failed to convey her title in Peter to him, she was liable in damages.
    2. If the defendant prevented Webber by the compromise, or in any other way, from trying to succeed in the attachmefit case, she cannot take advantage of the non-performance of Web-ber so occasioned.
    3. If the defendant prevented Webber from fulfilling, or trying to perform his part of the contract, she thereby waived performance on his part.
    
      4. If the defendant waived performance by Webber, it is the same as if he had performed on his part.
    
      5. That after she so waived performance by Webber, she cannot require proof that he could have performed.
    6. If, when the attachment was levied, the ordinary process of law could have been served on Hutchins, then the attachment was illegal, and might have been abated.
    7. The attachment being so abated, the suit would be at an end, and the property released.
    8. No fact not in issue need be proven.
    9. If Hutchins conveyed Peter to defendant, to defraud his creditors, she had title as against him.
    Instructions given for defendant.
    1. The value of defendant’s title to Peter, and not his value, is the measure of damages.
    2. The value must be proven.
    This charge asked for defendant was refused. To sustain the claim of a third party to property attached, the claimant must make oath that the property is not the property of defendant in attachment, but the property of claimant, and must give bond for the forthcoming of the property.
    The jury found a verdict in favor of plaintiff for $400. The defendant moved for a new trial, because the verdict was contrary to law and evidence, and against the instructions of the court. The motion overruled, and the defendant excepted, embodied the evidence, and prosecuted this writ of error.
    
      Montgomery and Boyd, for plaintiff in error.
    1. The ninth plea was stricken out, as tendering an immaterial issue. As no performance was pretended on the part of plaintiff’s intestate, the defendant could not be put in default till an offer to perform on his part, or a demand of performance on her part. This error is palpable.
    
      2. The next error was, in sustaining demurrer to the first and third amended pleas. If the condition failed, certainly no objection rested on the defendant. So if the claim could not be made, which was the subject of the covenant, Webber could never entitle himself to the compensation.
    
      It was also irregular and erroneous to call a jury, till the defendant declined to plead over.
    We will not notice the first trial, as there was a new trial in our favor.
    3. The final error was in refusing a second new trial. The charges given by the court for complainant, were calculated to mislead the jury, and prejudice the defence.
    The covenant sued on was given to secure the services of Webber in making the claim of property, and there is no attempt to show that he ever took any step towards making the claim. Now the first part of the charges go on the ground, that the defendant was to make the claim; this is certainly not the reading of the covenant.
    The others relate to abating the attachment, which would have no effect, one way or other, on the claim of defendant to the slaves seized.
    In regard to the additional charge, that was clearly calculated to mislead. It might be true that the defendant could defend an action by Hutchins for the slave Peter, under the circumstances, and yet it might be equally true that she could not succeed in making good her claim to the slave, even against him. We suppose the court would assist neither party, and this would show conclusively that Webber never could have succeeded.
    4. It was error, also, to refuse the instruction asked by defendant on the second trial.
    The retainer of an attorney to bring a suit, is not like the hiring of a workman to do ordinary work; and when it turns out that no suit can or ought to be brought^ he ought not to be entitled to any thing more than a reasonablee fee for advice or services actually rendered. Any other rule would hold out an inducement for designing and unprincipled men to mislead the unwary, by advice calculated to stimulate a spirit of litigation without cause, and to promote useless strife.
    
      5. The whole tenor of the instructions was wrong; the title of the slave, so far as it rested in a claim to be pursued, was worth nothing; and Webber does not appear to have rendered any services, or offered to do so; or to have called on the defendant, requiring her to make her claim according to law; or to have required her to convey the slave to him before suit brought.
    Webber was retained by her to make good the claim on the property attached, against the creditors who had attached it, and not against Hutchins. He was not employed to attend to the attachment suit for either party to it. And the decision of the attachment either way, would not affect her claim.
    The facts show that there was no claim, as between Mrs. Whitehead and the creditors of Hutchins. The negroes were bought and paid for by the money of Hutchins, and no claim by Mrs. Whitehead could have succeeded against those creditors. This destroys all ground of action on the part of Webber, except on a quantum. meruit. And that is not the action here.
    
      George L. Potter, for defendant in error.
    1. This is a writ of error upon a motion for a new trial overruled. Of course, the inquiry here must be limited to the matters assigned as grounds for the new trial.
    2. A new trial was moved for, on the ground that the verdict was against law and evidence, and contrary to the instructions of the court. The motion being thus restricted, and not questioning the rulings of the court, the propriety of the instructions given and refused, cannot be discussed here.
    1st. The verdict was contrary to the instructions. The charges given for defendant related only to the measure of damages. The value of Peter was proved to be f 1000, and the verdict is for f>400; the proof showed that defendant had good title as against Hutchins, and all other persons but his creditors. The ten slaves were worth more than the only debt apparent. Defendant, by her covenant, admitted she had some title, and so plaintiff was entitled to recover something as the value of the title she was to convey. There is no complaint that the damages are excessive.
    2d. As defendant does not complain of the instructions asked for plaintiff, we must regard them as the law, and the verdict follows them.
    3d. The verdict was not contrary to the evidence. Defendant employed Webber under pretence that she had a claim to the slaves, and that she would take due steps to prosecute it. After-wards she voluntarily gave up her claim, and waived the assertion of her alleged rights to the slaves. She also conveyed away the slave Peter, that she was to convey to Webber. All this was done before the time arrived for Webber to act, he being ready to perform on his part. After thus conveying away her claim, and the slave she was to convey to Webber, thereby rendering performance on his part impossible, and precluding herself from conveying Peter to him, she is liable in damages, and cannot be heard to say Webber did not or could not perform.
    4th. But it seems clear that Webber could have defeated the attachment under the rule of law, as declared in sixth instruction for plaintiff, relative to an abatement of that proceeding, as Hutchins did not then abscond. It may be said this court has ruled otherwise, but that cannot affect this case. Defendant does not complain of that instruction, and this court cannot set it aside, or in any way put it out of the case; it was given as a' charge to the jury, and they were bound to regard it. How, then, can this court set aside a verdict on the ground that the jury followed an instruction, when you cannot set aside or annul that instruction'? We say, then, that under the law, upon which this case was tried, it is apparent that Webber could have defeated the attachment.
    6th. Again he could have defeated it, for this. Without due affidavit, such attachment is void. The oath must be made by plaintiffs or their agent. The record shows that Peck was not agent of Burke, Watt & Co., but of John Watt alone.
    So, if the bond was quashed, the attachment would be defeated. The plaintiffs must execute the bond, and none others can execute such bond as a substitute for theirs. The.bond on this attachment was not executed by Burke, Watt & Co., but by John Watt only, and his surety; it was quashable. And so Webber might, but for the compromise, have performed, on his part, in all things.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action of covenant upon the following instrument, “ Know all men by these presents, that I, Lydia Whitehead, have this day employed Richard W. Webber as my counsel and attorney at law, to claim for me ten slaves, now in the jail of Franklin county, levied on by virtue of an attachment issued, returnable to the next May term of the circuit court of said county, against James Hutchins. Now if the said Webber shall succeed in said suit, I bind myself to transfer and convey to said Webber, my right, title, and interest of, in and to slave Peter, one of said slaves, but I am not to warrant the title of said slave, as his fee, in addition to a note I have this day given him. As witness my hand and seal, this 22d day of March, 1841.

Lydia + Whitehead. [Seal.]”

The jury found a verdict for the plaintiff below, and assessed the damages to $400; whereupon there was a motion for a new trial, on the ground that the finding was contrary to the law, the evidence, and the instructions of the court. All the evidence and the instructions of the court are legitimately set forth in the record, and thus all the merits of the case, both of law and fact, are presented for the review of this court.

The circumstances, as they appeared upon the trial, were these: Burke, Watt & Co., at their suit against James W. B. Hutchins, issued an attachment and caused it to be executed upon certain slaves, among the rest the slave Peter, in the above instrument. At the time, the slaves were in the possession of Mrs. Whitehead. The said slave Peter had been purchased by the defendant in the attachment in the name of Mrs. Whitehead, but with his own funds, and had been delivered to her by Hutchins, as he admitted, with a view to screen the slave from subjection to the payment of the debt for which the attachment was sued out. Such was her title, and after the attachment was executed, she declined to take the necessary preliminary steps to enforce a trial of her claim to the slaves, but joined in a mortgage of the slaves to Burke, Watt & Co., which was executed in pursuance of a compromise of the attachment suit, but this compromise was entered into and completed without the consent or approbation of Webber.

In this state of things, the first, second, sixth, and seventh charges given by the circuit court upon the trial, were erroneous. They evidently misled the jury, because they related to a de-fence to be made by Webber to the attachment suit. The condition of the covenant was, that Webber should prosecute Mrs. Whitehead’s claim to the slaves, which can refer only to a prosecution of her claim by trial of the right of property under the statute. Besides, grant that a successful defence of the attachment suit would restore the slaves to Mrs. Whitehead’s possession, it would still be no vindication of her title, nor would it protect the slaves from another levy at the suit of the same or other creditors of Hutchins; and, again, Mrs. Whitehead had no authority to engage Webber’s services in the attachment suit, nor was' he employed by Hutchins. The attachment suit and the trial of the right of property are two separate suits, and the condition was to prosecute successfully the latter, and not to defend the former.

And some'of the charges, given to the defendant below, in view of the evidence, likewise were calculated to mislead the jury. The court in effect so charged the juryy that they evidently conceived that the value of the slave Peter should be the criterion of damages in the event of a finding for Webber. Now, it is not the value of the slave Peter, “ the object in controversy,” that is the proper criterion of damages, but the value of Mrs. Whitehead’s “right, title, and interest” in him. This was the true “object in controversy.” It was so much and no more, that she covenanted to convey to Webber, for she expressly declined to warrant even her own title to him. She had but a naked legal title, tainted with fraud, according to Hutchins’s testimony. The damages should, therefore, have been but nominal; whereas the jury found the probable value of the slave at the time of trial. The verdict was clearly illegal, and contrary to evidence.

Judgment reversed, and new trial awarded.  