
    Jesse Trammell v. Ezekiel J. Salmon, Administrator of David Forrester.
    An action cannot be maintained for services rendered in expectation of a legacy, although the party has been disappointed in his expectation of the legacy.
    Declarations to third persons by an intestate, in his life time, that he intended to remunerate the plaintiff for certain services by a legacy, are not sufficient to revive the legal demand for those services, after it had been barred by the statute of limitations.
    The jury are bound to conform to the rules of law; and if they do not, their verdict will be set aside.
    Tried before Mr. Justice Richardson, at Greenville, Spring Term, 1831.
    This was an action of assumpsit for boarding the wife of defendant’s intestate. Pleas, general issue, and statute of limitations. The wife of defendant’s intestate, having left the house of her husband, in consequence of unkind treatment from him, took up her abode with the plaintiff, who was her son-in-law; and with the exception of some occasional visits to the houses of other relatives, boarded with him for six or seven years, until the period of her death, which occurred ten years prior to the commencement of this action. The plaintiff had never made any demand of the intestate for the board of his wife; nor had the intestate ever promised him, personally, to make him any remuneration.: But he had frequently acknowledged, to third persons, his obligation to plaintiff for the attention and kindness shewn to his wife, and declared his intention to make him satisfaction by a legacy. There does not appear to have been any evidence, that such declarations were made, at any time within four years next after the death of the wife: they were, however, repeated on several occasions afterwards; and a short lime previous to his death, and within three years of the institution of this suit, the intestate stated, that he would leave his daughter, the plaintiff’s wife, a certain slave, and some articles of furniture, over and above her distributive share of his estate. No provision having been made by will, the plaintiff brought this action; and relied upon the intestate’s declarations, as well to shew that the services rendered were not intended to be gratuitous, as to take the demand out of the statute of limitations.
    The presiding^idge instructed the jury, that if the plaintiff did not intend, at the time the services were rendered, to charge or demand payment for them, they ought to find for the defendant ; but if he did not intend his services to be gratuitous, he was intitled to satisfaction, unless the demand was barred by the statute of limitations. On this point, his Honor charged, that if the intestate had acknowledged the debt, at any time within four years of the commencement of the suit, the plaintiff' was intitled to recover. That the distinction between an acknowledgment, and an express promise to pay,’ was one of evidence merely, and not in the principles of law. If there was an acknowledgment, the law implied a promise, which was equally valid as if it had been express; and it made no difference whether the acknowledgment was before or after the statute had run out; for if there was an acknowledgment, the law would in all cases imply a promise to pay.
    The jury found for the plaintiff; and the defendant now moved to set aside their verdict, and for a new trial, on the grounds: 1. That his Honor erred in charging that there was no distinction between an acknowledgment before, and after a debt, was barred by the statute of limitations; and, that in the latter case, the law would imply a promise from a bare acknowledgment. 2. That the services rendered by plaintiff, being originally gratuitous, or, at most, rendered in expectation merely of reward, without a promise, could not be made the foundation of a legal demand.
    Wardi,aw, for the motion,
    Thompson, contra.
    
   O’Neai.i,, J.

delivered the opinion of the Court.

In this case, two questions were made in the Court below, and are renewed on the appeal. 1st. Did the proof establish a contract to pay, on the part of the intestate, for the support and maintenance of his wife by the plaintiff? 2d. If so, was there sufficient evidence of a new promise to take the case out of the statute of limitations ?

The husband is liable for the maintenance of his wife, where he compels her by ill usage to leave his house; and if the plaintiff had been a stranger, and under the circumstances stated had afforded her maintenance, the law would have implied a promise-on the part of the husband to pay it. The relationship which the plaintiff bore to the intestate and his wife^^ough not enough in itself to negative the legal implication arising from the husband’s liability to pay for his wife’s maintenance, yet connected with the other facts, goes very far to shew, that the plaintiff never intended to charge for her board. She lived with the plaintiff, and others of her children, but resided longer with him than the rest. Ten years intervened between her death and the institution of this suit, during which time no demand of payment from the intestate, or any conversation between him and the plaintiff on this subject was proved. All the admissions of the deceased, given in evidence, were to persons other than the plaintiff, and these did not speak of it as a subsisting debt, but as a meritorious act, for which the intestate intended to compensate him, by giving to his daughter a larger portion of his estate, than his other children.

It is perfectly obvious from this statement, that neither the plaintiff or intestate ever supposed that this constituted a debt due by the latter to the former, but that it was regarded by the deceased as an act of kindness done by his son-in-law, for which he ought to make him some compensation in the distribution of his estate, and that the plaintiff was willing to rely, not upon the legal liability of the intestate, but upon his liberality in making him compensation by way of legacy at his death. This might in morality constitute a reason why the deceased should have fulfilled the plaintiff’s expectations, and have given him the legacy; but it certainly affords no evidence of a legal contract to pay money. The services were rendered without an intention to charge on the part of plaintiff; and without any expectation on the part of the intestate, that he was to be required to pay for them. No rule is better settled that that services, which were rendered gratuitously, cannot constitute a consideration, on which the law would raise an implied promise to pay for them.

The case of Young v. Monpoey, decided at Charleston, and several other succeeding cases, conforming to that decision, have established beyond all doubt the distinction between acknowlodgments made before, and after the statute had run out.g In the former, a slight acknowledgment will prevent the opera-1 tion of the statute *!Jn the latter, there must be either an express] promise to pay, or “ an unqualified and direct admission of a] subsisting debt, which the party is liable or willing to pay.”] Bell v. Morrison, 2 Peters, 362.

It is true, that whether this has been made out, is always matter of evidence: and upon it the jury are to pass: but it is the duty of the Court to instruct them, whether, in law, the case proved will be sufficient to prevent the statute of limitations from barring the plaintiff’s claim. ,It is the duty of the jury to conform to this instruction: they have no right to say, that although the evidence does not satisfy the rules of law, yet it satisfies us, and therefore we will find as we please. Their verdict must be both according to law and evidence. The motion for a new trial is granted. 
      
      
        Vide, ante, p. 278.
     