We are of opinion that the instructions given to the jury were correct. But we are also of opinion that the finding by the jury did not warrant the entry of a general-verdict for the defendant. Though the father had not emancipated the plaintiff, yet if he had given him the time during which he worked for the defendant, or had waived his right to the plaintiff’s earnings while in the defendant’s service, then the plaintiff was entitled to recover in this action. And so the jury were instructed. But they did not pass upon either of the two latter questions. They merely found that there was “ no evidence that the plaintiff, during the time that he was in the employ of the defendant, was legally emancipated.” If the jury may be supposed to have meant, by this finding, to negative not only emancipation, in its proper sense, but also the giving to the plaintiff, by his father, of the time during which he labored for the defendant, still the question, whether the father had waived his claim to the plaintiff’s wages, was not decided by them. So that their finding did not necessarily disprove the plaintiff’s right to recover; because he had a right to recover, if his father had made such a waiver.
This case is not distinguishable in principle from Shapleigh v. Wentworth, 13 Met. 358. That was an action of trover, by a mortgagee of personal property, against an officer who had attached the property on a writ sued out.by a creditor of the mortgagor. The question for the jury was, whether the mortgage was valid, as against that creditor. And they were instructed, that if the mortgagee took actual possession of the mortgaged property, under the mortgage, before it was attached, and the attaching creditor knew of the mortgage, and that the mortgagee had possession of the property at the time of the attachment, they should find for the plaintiff. The jury found a verdict for the plaintiff, stating therein that they did so on the ground that the attaching creditor knew of the mortgage, before the attachment. But it was decided that a general verdict could not be entered for the plaintiff, on this finding; because the jury had not passed upon the question, whether the mortgagee took and retained possession of the mortgaged property, and because, if he did not, the mortgage was not *463valid as against the attaching creditor, though he had actual notice of it.
The verdict must be set aside, and a new trial had in the court of common pleas.