#### Calch Houton *v.*William Holliday.

From Lenoir.

A. borrowed of Ii. £200, and to secure the payment thereof, pledged to him a negro slave, whose services were worth ¡560 per year. A. paid B. the money borrowed, and I?. delivered to him the slave. A. then demanded of B. satisfaction for the services of the slave during the time 8. had him in possession, and upon B’s refusal to paj% brought suit and declared, 1st, upon a *quantum memdl,*and 2d, for money had and received. He is entitled to recover; and the mea^ sure of damages is the excess of the value of the slave’s services above the interest of the sum borrowed.

"•Equity will always mate the mortgagee account for the rents and profits of an estate which he has in possession ; and to establish an opposite doctrine in the case of pledges, where the profits exceed the interest of the money lent, would furnish facilities to evade the statute against usury*.

Wherever a man receives money belonging 'to another, without any valuable Consideration given, the law implies that the person re- , ceiving, promised to account for it to the true owner; and for a breach of this promise, an action for money had and received, lies, *

Henry Taylor, by his will, dated 21st November, 1799, bequeathed to his daughter Lucy, a negro slave, named Harry, in March, 1800, Taylor borrowed ol! William Holliday’, the Defendant, one hundred pounds, and to secure the payment thereof, executed the follow • ing deed, viz.

*112«STATE OF NORTH-CAROI.INA,?

GllEEXE CoUSTT. >

*“*Know all men by these presents, that T, Henry Taylor, of the State and County aforesaid, hare, for and in consideration of the sura of two’ hundred dollar’s, to me in hand paid by William Holliday, of the said. State and County, the receipt whereof is hereby fully acknowledged, bargained, sold and delivered, and by these presents do bargain, sell and deliver, unto the said William Holliday, one negro man, named Harry, to him, the said Holliday, his heirs, and assigns, forever: and I, the said Henry Taylor, do, and will warrant the title of said negro, free and clear from myself my heirs, executors, administrators, or assigns. In witness whereof, I the said Taylor, have hereunto set my hand and seal, the 18th March, 1800.

“ The condition of the above *bill of*sale is such, that if the said Henry Taylor, his heirs, executors, or administrators, do and shall well and truly pay to the said William Holliday, or his heirs, on or before the 25th day,of December next, the sura of two hundred dollars, then the above bill of sale shall he null and void; otherwise remain in full force until the said Taylor do pay the sum of two hundred dollars Signed, sealed, and delivered, the day and year above written.

“ HENRY TAYLOR, (sbai.J

"Teste, Titus Caku.”

Taylor died in April, 1800 : his will was duly proved, and. Micajah Edwards, the executor therein named. ({ualiiied in the same month. The Plaintiff intermarried with the legatee, Lucy, in April, 1801 ; and upon the marriage, the executor of Taylor assented to the legacy ol‘ the negro Harry to the Plaintiff. The negro Harry remained in the possession of Defendant from March** 1800, until April, 1803 $ and it was proved that his services were worth sixty dollars per year.

In April, 1803, the Plaintiff' paid Holliday the sum for which the negro was pledged, (two hundred dollars,) and the negro was delivered to Mm. He then demand* ed satisfaction for the services of the negro, which Defendant refused to make: and therefore the Plaintiff brought ijis suit . «¡.ml declared, 1st, upon a *quantum, me-ruit,*for the services of the negro, from the death of Henry Taylor to the surrender by Defendant, in April, 1803; and 2dly, for money bad and received by Defendant to Plaintiff’s use, for the excess of what was *113paid to Defendant over tiie sum due of the , money lent, allowing- tiie wages of the negro annually to diminish the debt arid interest.

The Jury found a verdict for the Plaintiff, under the charge of the Court, for tiie sum of eighty-eight dollars, estimated as the wages of the negro from the time of Plaintiff’s marriage with Lucy, the legatee, until the delivery, in April, 1803, deducting the interest of the sum loanedjfor the same term. It was submitted to the Supreme Court, whether the verdict should stand, or a nonsuit be entered.

Tayxor, Chief-Justice,

delivered the opinion of. the Court:

It has been the uniform practice of the Courts of Equity in this State, to make a mortgagee in possession, account for the rents and profits upon a bill filed for redemption. This is a necessary consequence of the principles which prevail in those Courts relative to a mortgage, which is considered only as a security for money lent, and the mortgagee a trustee for the mortgagor. To sanction an opposite doctrine, even in the case of pledges, where the profits exceed the'interest of the money lent, would be to furnish facilities for the evasion of the statute against usury, almost amounting to a repeal of that salutary law. Nothing can come more completely within the legal notion of a pledge, than the slave held by Holliday in the present case $ for by the very terms of the contract, it was so to continue until the money should be paid ; no legal property vesting in Hol-liday, who had only a lien upon it to secure his debt. All the profits, therefore, exceeding the interest of his debt, he received to the Plaintiff’s use, and cannot conscientiously withhold. Wherever a man receives money belonging to another, without any valuable consideration given, the law implies that the person receiving, promised to account for it to the true owlier; and the breach *114of such implied undertaking is to be compensated for in tpe present form of action, which is, according to Mr. Jus-^ce j3]ac¡ÍStone, “ a very extensive and beneficial remedy, applicable to almost every case where a person has received money, which *ex cequo et bono,*he ought to refund.” Nor is its application to cases like the present, without authority from direct adjudication : the case of *Ashley*v. *Reynolds, (Strange*915,) furnishes an instance of a man being allowed to receive the surplus which he had paid beyond legal interest, in order to get possession of goods which he had pledged. In principle, the cases are the same : the only thing in which they differ, is, that in the case before us, the money was received by the Defendant from the labour of the pledge *•,*in the other, it was paid by the Sheriff. Let judgment be entered for the Plaintiff.