The opinion of the court was delivered by

Before the court below, two principal questions were made, which have been reviewed here.

Does the declaration contain a sufficient specification of a legal cause of action ?

Was it supported by proofs?

*267I am of the opinion that the second count in the declaration, is sufficient to support this action in a Justice’s court, although it does not show any disposition of the boy; which I shall presently notice further. But the most important question in the case is, whether a person in possession of a colored boy under fifteen years of age, and selling Mm as “ his boy,” is by the law of this State, held to an implied warranty, a right to dispose of him, until he attain the age of twenty-five years. It was once the doctrine of this court, that every colored person was presumed a slave till the contrary was shown. At that time, the seller of such a person, being in possession, would be under an implied warranty of title. And, although in the Over and Terminer, I have more than once expressed an opinion, that this presumption ought no longer to be admitted, both from the notorious fact, that the generality of persons of this description in this State, are not in truth held as slaves now, as well as from the natural consequence which must be supposed to follow our statute for the gradual abolition of slavery, yet it by no means would follow that a person in the actual possession of such a colored man, would not be affected by an implied warranty of title. For even at this day, such a property may exist in New Jersey; and the person in possession and selling as his own, must be subject to the same rule as the seller of any other chattel. Much more therefore may the seller of such a boy as the one in question, be held to an implied warranty of the right. Such a boy cannot be a slave here. But the presumption that he is subject to service till the age of twenty-five, is much stronger than that the aged man of color, is a slave. The possessor of such a boy, may have a qualified property in his services, with a right to dispose of the same with a control of his person. And selling him without a special disclosure of his right, he must from analogy to the law of chattels, be held under an implied warranty of such a right. It further appeared in evidence, that the boy was, in truth, an indented servant, bound to serve to the age of twenty-one years. But that would not authorize a sale in this manner. Besides, the presumption, and of course the implication is, not that he is *268such an indented servant, but as it were, a special apprentice under our act of assembly.

The only question remaining is, whether a breach is sufficiently alleged and proved ? It appeared on the trial that the defendant below, tendered an assignment of the indenture. The operation of such an assignment, I think may well be questioned in any case. But this is a point I do not mean to decide. It is enough that it is not what the plaintiff had contracted for, as I have endeavored to show, and therefore he was not bound to accept of it.

But it was insisted that this action could not be maintained, till the plaintiff had been lawfully dispossessed of the boy. If this were a valid objection, it would seem to extend to the count, as well as the proof. No such dispossession is alleged; and the evidence is, that on the discovering of the true situation of the boy, the plaintiff offered to restore and tendered him to the defendant, and demanded the wagon again. It was refused by the defendant, and the boy was abandoned by the plaintiff. I hold, that the plaintiff was not bound to expose himself to an action for false imprisonment, or other remedial proceeding, wherein the recovery could not be limited by matter of calculation, but might be extended in the discretion of a jury, to any amount, not giving strong presumptive evidence of undue feeling, passion or prejudice. The case is not within the reason of that rule of law, if it should extend at all to a mere chattel, which requires a plaintiff to rest contented with the possession of the thing in question, till his right was questioned and disproved; where the recovery against him would be limited by fixed and known rules of law. If it were undoubtedly true, that the assignment of the indenture would pass a valid right to the possession and services of the boy, till the age of twenty-one; the plaintiff even then, according to what the counsel insisted on, could not abandon, but must still await the trial of his right. That is, must actually sustain a prosecution, which might result in unknown damages, not the subject of calculation, before he could have an action for a breach of warranty, no matter in how strong terms the contract might *269have been made. This is a hazard to which the defendant has no right to expect the plaintiff to submit.

Upon the whole, I perceive no sufficient reason for disturbing the judgment of the court below, and it should, be affirmed.

Horkblower, C. J. and Ford, J. concurred.

Judgment affirmed.

Cited in Beninger v. Corwin, 4 Zab. 261.