
    Doctor James against Doctor O’Driscoll.
    
      Charleston District,
    
    
      1797.
    
    Where serví-•ginaiiy ren-tenrards01' be All contracts must be good or valid at creation, J7nd upon6” contingencies.
    MOTION for a new trial.
    This was a case on a summary process which the defendant did not choose to .submit to the judges’ decision alone, but claimed his right of submitting it to a jury, under a clause of the ‘c act giving the judges a power to determine “ all causes under 20/. sterling, in a summary manner, s . . .7 “ without a jury; but with this reservation, that if either “ party chose to claim the right of a trial by jury, he should “ have that privilegethe cause accordingly went to a jury, when Doctor James produced his day. book to prove his original entries. Mr. Marshall, for the defendant, then contended, that these charges were originally intended to have been rendered gratuitously, and never to be converted into a charge against the defendant; that they were both physicians, who practised in the same parish, and had been upon very friendly and intimate terms with each other; but afterwards they quarrelled, and had a very serious differ-» ence; and it was during this social intercourse and good neighbourhood, that the services charged were performed in the defendant’s family, by his brother physician s and upon inspection of the plaintiff’s day book, the entries would appear, he said, to have been made upwards of two years after the time the services were rendered, which was not contradicted. That all the other entries in the- plaintiff’s day book, where charges were intended to have been originally made, were entered by th e plaintiff with a great degree of regularity, in regular successive order, day after day, as they occurred; but the entries of these charges, were more than fwo years after the performance of the services ; and that, too, after the breach had been made in their former friendship : which evinced beyond all doubt, that the plaintiffs’ attendance in the defendant’s family was intended by him as gratuitous, and that he had no idea of converting them into a charge, until after this quarrel; he said the law was very clear upon the point, and mentioned a case tried in Ireland,, where an attorney took an apprentice, and it was agreed that the apprentice should find himself diet and lodgings, but the master taking a fancy to the lad, had found him board and lodgings himself for the five years ; on a quarrel, however, afterwards, he made a charge of this board, &c. In this case, the Irish judge, who tried the cause, left it to the jury to determine, whether the master intended it as a charge or a favour, and the j ury found for the apprentice: also relied on 2 Sir. 728. where a man who was no broker, had acted as one, in hopes of a legacy; but here the court said, it had the appearance of acting as a friend, and as if he did nofc expect to be paid for it; in which case, he could not main? tain his action.
   The judge in the present case, in like manner, left it to the jury to determine, whether Doctor fames, at the time he performed the services in this case, intended it as q favour or a charge, and to return a verdict accordingly. The jury found for the plaintiff the amount of his demand tOl. sterling.

See 10 ¿Mod. 67. Vin. tit". Contract, vol° 5. p. 507-

After argument in favour of this motion for a new trial, the judges laid it down as correct law, that all contracts must be good or bad in their original creation, and must not depend on subsequent contingencies ; that is, whether the party chose to make it a gift, or a charge at a future day or not. That it will never permit a friendly act, or such as was intended to be an act of kindness or benevolence, to be afterwards converted into a pecuniary demand ; it would be doing violence to some of the kindest and best effusions of the heart, to suffer them afterwards to be perverted by sordid avarice. Whatever differences may arise afterwards among men, let these meritorious and generous acts remain lasting monuments of the good offices, intended in the days of good neighbourhood and friendship ; and let no after circumstances ever tarnish or obliterate them from the recollection of the parties. But as the party defendant himself had thought proper to take this case from the court, and to submit it to a jury, who in the summary and equitable jurisdiction of this court, were judges, jurors and chancellors of his own choosing, he must be bound by their decision or verdict, as. much as he would have been bound by an award of arbitrators, against whom no misconduct could be alleged.

Therefore the motion for a new trial was refused on the ■latter ground only.

■Present, Buíuce, Grimke, WatIes and Bat..  