Brewer et al. v. Porch et al. an open one, and there was scarcely a point left for the decision of the jury. But if the state of the case be correct, the witness not only did not say anything about his not recollecting any particular agreement, but he said he paid no rent-took no lease, and considered himself as living under nobody. This evidence was most important as connected with the question of adverse possession, and should have been left to the jury. With these exceptions which apply more to the statement of facts, than the law of the charge, it appears to me, that the complaints of the defendants' counsel, are without grounds. 4. It was lastly argued that admitting the admission of illegal evidence, &c., the verdict is sustained by other legal evidence and by law. But of this I do not feel so well assured, as I could wish, in a case where I would deny a re-hearing notwithstanding manifest and important illegalities upon the trial. We are not in such cases to look nicely into the weight of evidence; to assume the province of the jury; and after rejecting that held by us illegal, go into a careful estimate of the amount which remains, and then substitute our judgment upon the facts, in place of that of the jury. The legal principle, is intended to apply to plain cases; not to burthen this court with the investigation of complex questions of fact, peculiarly within the province of another tribunal. In view of this whole case, I cannot help thinking, the purposes of justice will be best answered by a new trial. FORD, and NEVIUS, Justices, concurred. HORNBLOWER, C. J. I concur in setting aside the verdict and granting a new trial, not intending however, by such concurrence, to commit myself upon all the points, upon which my brethren have expressed opinions; especially so far as those opinions, affect the merits of the cause, and the ultimate rights of the parties. I am satisfied, several errors were committed at the Circuit amongst others, the minutes of the court were improperly admitted, for the purpose of letting in evidence of what sheriff Glover, deceased, had sworn to on a former trial between the same parties for the same trespass. In order to legalize such evidence, the record of the former cause, ought to have been pro Brewer et al. v. Porch et al. I am duced, since, by that only, could the court judicially know, the parties, the subject matter and the issue in that cause. further of opinion, that the Sheriff's docket, the evidence of Mrs. Brewer, and what was sworn to by John B. Harrison, Esq., ought to have been expressly overruled, before the cause was submitted to the jury. Becoming satisfied, while counsel were summing up, that the evidence had been improperly admitted, it was my intention, that the jury should understand me as overruling it, in my charge. But I can easily see, that the hypothetical manner, in which I expressed myself, may have misled the jury and as it is not clear, that justice has been done, between the parties, I think a new trial ought to be granted. : One ground, however, was much pressed upon the argument, by the defendants' counsel, which in my opinion is not tenable. It came out in the progress of the trial, that one of the defendants had died since the last preceding Circuit, and prior to the term of this court which had last been holden; so that the plaintiffs might have suggested the death of that defendant on the record, and brought down the cause for trial against the survivors. Upon this discovery being made, the counsel for the defendants, moved to arrest the trial, and discharge the jury. This, I refused to do; but permitted the plaintiffs, if they chose to do so, to proceed at their peril; subject to the opinion of this court, upon any proper motion to be made by either party, at bar, upon the return of the postea. Hence it has been insisted in the argument, that it was a mis-trial-that the jurors and witnesses were sworn in a cause that did not exist: and the case of Rex v. Cohen, 1 Stark. R. 511, was relied on as supporting the objection. It is true in that case, Lord Loughborough held that the witness could not be convicted of perjury; because the suit in which he had been sworn as a witness, had abated before the trial; and therefore it was not a trial in due course of law. Whether his Lordship was right or wrong in that decision, it is a sufficient answer, to say, that it was in an action of assumpsit; and the deceased party was not a defendant, but one of the plaintiffs on record. In actions, ex contractu, at the common law, the death of a party at any time before judgment, abated the suit; but not so in trespass. The marginal note, in 1 Petersd. Abr. 4, that in trespass, prior to 8 & 9 W. 3 c. 11, the death of one of several Brewer et al. v. Porch et al. defendants, before verdict, abated the suit, is mauifestly wrong; the very cases there cited, prove the reverse. In a case cited in 1 Vin. Abr. 54, in trespass against four, one died between the Nisi Prius, and day in Bank; Markham, justice, said, the plaintiff might have judgment against all: for none could have error, (on that account) but the executor of the deceased, for the writ abates only as against him, and not against the others. In this case, it is true, the death occurred after the verdict; but in Preston v. Mortlock, Sty. 299, cited in Vin. Abr. ut supra, one of four defendants in trespass, died before the trial; the jury found a verdict and assessed damages against all: upon a motion for judgment, Roll, C. J. said, that upon relinquishing damages as to the deceased defendant, the plaintiff could have judgment against the rest. So too, in another case, cited in 1 Vin. Abr. 54, in trespass against three, one died; distringas jurat. as against all, and verdict for plaintiff: motion in arrest of judgment, and that the writ should abate: sed non allocatur, for though ill, against the dead person, it was good against the others. In 1 Vin. Abr. tit. Abatement, 53, et seq. will be found a number of cases, establishing the position, that in trespass, the suit was not abated at the common law, by the death of one of several defendants; among others, there is a reference to the Sheriff of Nottingham's case, Noy, 77; Harris v. Phillips et al. Hardr. 161; and Spencer et al v. Rutland, Yelv. 208. In Newnham v. Law, 5 T. R. 577, one of two defendants died before interlocutory judgment; but the suit went on to final judgment and execution against both. Upon a motion to set aside the proceedings, Lord Kenyon said, "this objection should not have been taken by the defendant at all. Plaintiff might have made the suggestion as a matter of course:" and he was permitted to make it then, and without costs. Upon the precedents I have mentioned, and upon the authority of what was said by this court, in Freeborn v. Denman, 3 Halst. R. 116, and in Allen et al. adsm. Craig, 1 Green's R. 294, I am clearly of opinion, if there were no other objection to the verdict, the plaintiff would be at liberty as a matter of course, to make the suggestion now, of the death of one of the defendants, and take judgment against the rest. Force v. Haines. But for the reasons already assigned, the rule to show cause must be made absolute. WHITE, J., had been counsel in the cause, and gave no opinion. Rule absolute HENRY FORCE v. ELIZABETH HAINES. In Error to Middlesex Common Pleas. Action of indebitatus assumpsit, can never be maintained unless upon a contract expressly made between the parties, or implied in law. No action will lie for a mere voluntary courtesy. A master is not liable to a third person, for the support of his infirm and helpless slave, when he has not only not permitted, but has positively refused to do so. Per Ford, White and Dayton, Justices. Hornblower, C. J. and Nevius, J. dissenting. B. Williamson and S. Scudder, for plaintiff. Armstrong, for defendant. FORD, J. Henry Force sold the custody and services of his adult slave Minna, unto Elizabeth Haines, by deed, to be holden from September, 1822, till June, 1826, when the slave was to be returned to him. Elizabeth Haines, at the expiration of the time, accordingly tendered the slave to Mr. Force, and on his refusal either to receive the said Minna, or be accountable for her maintenance, she maintained the slave about two years herself, and then turned her out of doors. After being absent about six months, Minna returned again to Mrs. Haines, who received and maintained her about seven years more; and then, in an action of assumpsit, in Middlesex Pleas, declared against said Force, 1. That in consideration she had furnished board, VOL. II. 2 B Force v. Haines. clothing and necessaries for the slave of said Force, (not saying, at his request,) that he afterward promised to pay &c. 2. That being indebted to her in $2000, for board, clothing and necessaries furnished for his slave, at his request, in consideration thereof, he afterward promised to pay &c. The defendant pleaded non assumpsit, and the statute of limitations. At the trial, the plaintiff proved the tender of the slave, to Force, and his refusal to receive or be accountable for her maintenance; that the plaintiff then maintained the slave, as before stated; that she had a very bad temper; that she had lost the sight of one eye, by intemperance, and was partially and sometimes wholly blind of the other; that her services were of little or no value; and that her maintenance was worth a dollar and a half a week. There was no evidence of her being requested by Force, to maintain the slave, or that he ever promised to pay for it. When the plaintiff had given all the evidence she had to offer, the court refused a motion, made by the defendant, for a non-suit, as appears by the bill of exceptions. The defendant moved the court to charge the jury, that this action for the maintenance of his slave, could not be maintained against him, in law, unless they were satisfied, from the evidence, that the maintenance was furnished at his request, or that he subsequently promised to pay for it. But the court refused so to charge the jury; and thereupon they found a verdict for the plaintiff, and damages to the amount of $300. The errors assigned are two in substance.-1. That this action will not lie without proof that the maintenance was furnished at his request, or that he subsequently promised to pay for it. 2. That the court erred in not so charging the jury. The action of indebitatus assumpsit being founded in its very nature on a contract, can never be maintained, unless a contract has been expressly made between the parties, or implied in law; and as no express contract requesting the maintenance or promising to pay for it, is pretended in the face of notice that he would never pay it: the sole question is whether the law will imply a promise. Now the great and leading rule of law is, to deem an act done for the benefit of another, without his request, as a voluntary |