dissenting :
I might perhaps concur with the Court in all the points laid down in the syllabus to this cause., could I under the evidence adduced consider this an action brought by wards against a gurdian, or quasi guardian. But I cannot look upon the appellant (Linton) in any other light than as a wrong-cloer — that is to say, charged with keeping, using and working, for his own benefit, negroes of another, without any lawful authority and in no way claiming or pretending to act for said minors or for their benefit.
If it be good law, that said Minor Walker,' as guardian *159by nature, had no control over the property real or personal of his said children, and the payment to him on account of the children was no payment, and that the said Linton could not hold the negroes against a demand of the children properly made, then he has been declared a wrong-doer by this Court in wrongfully applying the labor and work of said negroes to his own use.
A parent cannot sue for the property of the child. Yet there cannot be a doubt but that these children, after the death of their mother, at any time,-while these negroes were in the possession of said Linton, could have brought (after demand and refusal,) trover for them, or could have brought replevin, alleging an unlawful detainer, and recover under our statute damages for their detention.
If then the plaintiffs could have, while the negroes were in possession of said Linton, waived their action of trover or replevin, and treated the said Linton as their agent, in receiving hires of said negroes, and brought action of assumpsit, why not now look upon him in the same way, and recover the hires in an action for money had and received, or in an action for the work and labor of said slaves ? Tugman v. Hopkins, Manning & Graves, p. 389.
The principles on which the action for money had and received may be maintained, are these :
1st. Whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by the ties of natural justice and equity to refund.
2nd. In the case of an agent, where such agentis not notoriously the mere carrier or instrument for transferring the fund, but has the power of retaining, and before he has-paid over, has received notice of the plaintiff’s claim and a warning not to part with the fund.
*1603rd. Where there exists a privity between the plaintiff and the defendant.
If the declaration in this cause contained a count for money had and received, there would be no difficulty under the evidence in bringing the claim of the plaintiffs within some or all of the above principles.
The question then is, whether assumpsit for work and labor of these negroes wrongfully held can be maintained ?
In Greenleaf on Evidence, vol. 2, §108, it is laid down : “ If one commit a tort on the goods of another, by which he gains a pecuniary benefit, as if he wrongfully takes the goods and sells them, or otherwise applies them to his own use, the owner may waive the tort, and charge him in assumpsit on the common counts.”
This rule has been further applied so as to entitle the plaintiff to recover for the beneficial use of the things ta-ken. — 1 N. Hamp. 451; 5 Greenleaf, 323; 2 Gill & Johnson, 326.
A master may sue a person who has enticed away or harbored his apprentices or slaves, in assumpsit, for the work and labor of said apprentices or slaves. 1 Chitty on Pleading, 91, 103 ; Lightly v. Clouston, 1 Taunton, 112; Foster v. Stewart, M. & S., 191; Miller v. Miller, 7 Pick. 133.
That the privity between the parties is established seems clear, else j>ayment to said Walker (the father,) would have been good.
Where the defendant, as in this case, retains in his possession slaves belonging to another, for whose use, hires, and labor he ought in justice to pay, and it appears that they did work for him, the law as I understand it presumes he promised to do so. Cook v. Husted, 12 Johnson, 188.
Again, why have not the plaintiffs a right to accept the *161promise for hire made with their said father, as having been made for their benefit, particularly when it appears that Mr. Linton, the appellant, knew the negroes were the property of the said plaintiffs ?
If there is no privity between the parties in this suit, then an action of account will not be maintained, because privity is essential to such an action. 2 Greenleaf on Evidence, § 35. Bill in equity will not lie for torts unless under peculiar circumstances.
Suppose there is beyond a doubt a jurisdiction in the Court of Chancery in this cause, it does not follow that a Court of law has not also jurisdiction.
Had the appellant filed a bill in Chancery, or were he now to file one, claiming and setting forth that the money arising from the hires of these negroes, in whole or in part, were and had been appropriated by the father for the benefit of these children, and asking to be subrogated to that claim of set-off, I have no doubt a Court of Chancery would grant the relief prayed. It certainly would present a strong case for such a remedy.
Eor these reasons, I differ with the Court in their judgment of reversal.