#### Oatfield *against*Waring.

NEW YORK,

May, 1817.

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THIS was an action of *assumpsit,*brought to recover a compensation for supporting the defendant’s slave. The cause was tr*e(l before Mr. Justice *Van Ness,*at the *Albany*circuit, in *Drfnhpr*Ifilfi VCCOOer, IblO.

It was proved on the part of the plaintiff, that the slave, for whose maintenance the action wasbrought, was the property of the defendant’s wife, at the time of her intermarriage with the defendant, in 1810, and had lived with the plaintiff, in the city f 1 5 *J*°* " *f'Oany,*and been supported by him from the time of the defen(^ant’s marriage until the 31st day of October, 1815, when he was demanded, and the day after received, ,by the defendant from the plaintiff. The defendant lived in the city of Albany, and knew that the slave was kept by the plaintiff; but no proof was given of any express request on the part of the defendant, to the plaintiff, to keep the slave, nor of any express notice . . T g'tven by the plaintiil that he expected any compensation, it was proved that the plaintiff was the grandfáther of the slave, and had himself been the slave of the father of the defendant’s 5 that the wife of the plaintiff was formerly a slave of the same family; that when the plaintiff moved from the house of his late master, in 1810, the slave went with him, and that about the same time the defendant and his wife removed to *Albany..*In October, 1815, the defendant brought an action against the plaintiff to recover the penalty for harbouring his _ 1 *c*. 1 . . ° slave, betore a justice ot the peace, in which judgment was given for the plaintiff in this suit, on the ground that the slave had gone and lived with the plaintiil with the defendant’s knowledge ; that the defendant had never directed the plaintiff to send the slave home, nor had forbidden the plaintiff to keep *189him in his family; and that no notice had been given by the defendant to give him up. The defendant, after the plaintiff had rested his cause, moved for a nonsuit, on the ground_ that there was no evidence of a contract; and, the motion being denied, produced the will of the father of the defendant’s wile, dated the 19th day of *May,*1794, by which he bequeathed all his property, of which the plaintiff was part, to his three children, and died in the month of *November*following; and the three legatees continued to live together until the marriage of the defendant, in 1810. The plaintiff, then, to prove his freedom, produced a writing dated the 1st day of *May,*1807, under the hands and seals of the two brothers of the defendant’s wife, by which they certify and agree that the defendant is a free man, and absolutely manumit and set him free, provided he continued to serve them and their representatives until the 1st day of *May,*1810; and it was proved that the plaintiff had performed the condition. The defendant again moved for a nonsuit, on the ground that the plaintiff, being his slave, could not maintain an action against him; and the plaintiff’s counsel contended that the manumission before mentioned entitled the plaintiff to his freedom, and that his slavery, if it existed, should have been pleaded in abatement.

The judge intimated his opinion to be, that the slavery of the plaintiff might be taken advantage of under the general issue; and without expressing a decided opinion as to the effect of the defendant’s having brought an action against the plaintiff, ruled that a manumission by two of the joint owners of the plaintiff amounted to a destruction of the entire interest, and gave him his freedom; or that the jury might infer from the evidence that the plaintiff was the sole property of the two brothers at the time they executed the manumission. The judge left it to the jury to determine from the evidence, whether" any request from the defendant to the plaintiff to support his slave could be inferred. The jury found a verdict for the plaintiff for 143 dollars.

A motion was made, on the part of the defendant, to set aside the verdict, and for a new trial.

*Tillotson,*for the defendant.

1. There was no express promise of the defendant to pay for the maintenance of his slave; zior have those circumstances been shown, which may be re*190garded as equivalent. A moral obligation may be a good consideration for an express promise; but it is not sufficient to raise an implied promise in law.* The rule laid down by Lord Kenyon, in *Scarman*v. Castell,† that a prior moral obligation was sufficient to support an assumpsit, was an innovation, and has been strongly questioned, if not overruled. In *Wennall v. Adney,*
      *‡*
      **the court of common pleas held that a master was not liable, on an implied *assumpsit,*to pay for the medical attendance on a servant who had broken his leg while in his service. Mr. Justice *Spencer,*in the case of *The overseers of Tioga*v. *The overseers of*Seneca,§ seems to doubt whether, admitting the legal settlement of the pauper in *T.,*and the maintenance of him in *S.,*without request, or any promise on the part of *T.*to pay, *assumpsit*would lie; and he evidently leans to the opinion of Lord Ellenborough, in *Atkins v. Banwell.*The *English*courts, in the cases cited,ǁ proceeded on the ground of the parish being under a *legal*obligation to support the *pauper.*Here the plaintiff proceeds on an implied *assumpsit,*arising from his keeping the defendant’s slave without any such obligation, or showing a request. This court held, in *Dunbar*v. *Williams,*
      ****
      **that no action would lie by a *physician*for medical attendance on a *slave,*without the request of his master; and that an implied *assumpsit*could not arise, unless under circumstances in which the master would be *legally*bound to provide medical assistance. In *Jacobson v. The executors of Le*Grange,†† the plaintiff performed the work tinder an expectation of compensation from the testator, who expressed his intention to reward him, by a provision in his will.

2. Next, as to the manumission of the slave.‡‡ Under the will of the father of the defendant’s wife, she and her two brothers were joint owners of the slave. The certificate of manumission by two of the joint owners was not sufficient for that purpose. The execution of the deed by two, would not destroy the joint interest of the three; but the wife of the defendant became the sole owner, by survivorship. The direction to the jury, that they might presume that the slave was the property of the two brothers, was authorizing an inference in contradiction to the will of the testator, by which the slave was given to the three. Presumptions are not to be admitted where the evidence of the fact is positive.

It will be said, that the suit brought by the defendant against *191the plaintiff, before a justice of the peace, is a virtual manumission of the plaintiff. But the rule of the *English*common law in relation to *villeins,*
      ***
      **is not applicable to the case of slaves in this country.†

Loucks, contra.

1. Whether there was sufficient evidence of an *assumpsit,*express or implied, was a matter for the jury to decide, and their verdict is conclusive as to the fact. Labour done, or services rendered, in expectation of a reward, will support an *assumpsit.*
      *‡*
      **A *gratuitous*service is not to be presumed. It lies on the defendant to show that it was gratuitous. The declaration is on the general *indebitatus assumpsit,*for services rendered at the request of the defendant. A request must be proved; but it may be either express or implied. The beneficial nature of the service is not denied ; and where it is a past consideration the request may be implied.§ In *Hicks*v. *Burhans,*
      *ǁ*
      **the court held that a promise to pay on a past consisideration was good, if the service was laid to be done on request ; and that if it was not so laid, a request might be infer red from the beneficial nature of the services, and the circumstances of the transaction. In *Jacobson v. The Executors of Le Grange,*
      ****
      *Van Ness,*J. says, “ the services having been per formed for the benefit of the testator, with his knowledge and approbation, the law implies a promise to pay for them.” The defendant knew that his slave was maintained by the plaintiff, and his silence is equivalent to his assent.

2. But it is objected, that the plaintiff is a slave, and cannot maintain an action. In *Wells*v. Lane,†† it was decided, that a slave might be manumitted by *parol;*and parol declarations of the owner of the slave, that he had purchased her to make her free, and that he meant her to be free, were held to be sufficient evidence of a manumission. There was sufficient evidence to authorize'’a jury to infer a parol manumission, prior to May, 1807. The plaintiff was absent from the house of his former master more than six years, and the principle of the statuteef limitations ought to be applied to bar any claim to him as a slave. The jury were warranted, also, in finding a manumission by deed from the three joint owners. The defendant’s wife was present when her two brothers executed the deed. In *Mackay*v. *Bloodgood,*
      *‡‡*
      **where one of two partners executed a bond, *192and the other was present, and expressed his assent to it, it was held to be the bond of both. t

Again ; the deed of manumission by two of the joint owners, was a destruction of their joint interest; and, in this respect, there is no distinction between a sale and a tortious conversion chattel, by one of the tenants in common.‡ The tenant, whose right has been violated by the sale, or conversion, will have his action against his co-tenant, for the conversion of his ■interest by the sale.

Again 5 the suit brought by the defendant against the plaintiff, was an admission that he was a free man, and ought to conclude the defendant.

*Atkins*v. Banwell, 2 *East. Rep.*505

**1 *Esp. N. P. Cases,*270.

3 *Bos and Pull*247. and see note p. 249, 250. *Newby*v. *Wiltshire, 2 Esp. N. P. Cases,*239.

13 *Johns. Rep.*382.

*Simmins*v. *Wilmot,*3 Esp. Cases, 91. 3 Bos, and Pull. 247.

10 Johns. Rep. 249.

3 *Johns. Rep.*199.

2 N. R. L. 201. Sess. 36. ch. 88.

*2 Bl*Com., 93. *Litt.*§ 208.

*Loft's Rep.*1—19.

*Strange's Rep.*728. 3 *Johns. Rep.*129.

1 *Sound*214. *(n.*1.) l *Chitty's Pl.*297. 1 *Caines*585. *Str.*933. *Burr.*1671. 3 *Bos and Pull.*294. *(n*4.) 7 Johns. *Rep*87. 5 *Johns. Re*p. 272*.*

10 *Johns.*Rep. 243.

3 *Johns. Rep.*199.

9 *Johns. Rep.*144.

9 *Johns. Rep.*285.

Spencer, J.,

delivered the opinion of the court. The defendant makes two objections to the verdict.

1st. That the facts proved do not justify an inference that the maintenance of the defendant’s slave was at his request,

2d. That the plaintiff is a slave, and is incompetent to maintain the action.

The judge submitted it to the jury, whether a request on the part of the defendant, that the plaintiff should keep, provide for, and maintain his slave, had not been- made out, and they find that there was a request.

A request may be inferred from the beneficial nature of the consideration, and the circumstances of the transaction; (10 *Johns. Rep.*244. 1 *Caines,*385, 386. 1 *Saund.*264. *n.*1.;) and, without going into the facts, I am decidedly of opinion, the circumstances well authorized the conclusion drawn by the jury.

As to the second point. The fact, that the defendant had himself sued the plaintiff for harbouring his slave, goes a great way in establishing that he was free; at all events, it is a very solemn concession of the defendant that he was so.

But the manumission of the plaintiff, by two of three joint owners, would, of itself, make him a free man. No person can be partly a slave and partly free, or a slave for one third of the time, and free for two-thirds; he must be the one or the other entirely. The manumission by the two may be considered a destruction of the tenancy in common, and a conversion of the slave, as it regards the proprietor of one ihird. But again; I have no doubt, that suffering the plaintiff to act as a free man, without any claim or pretence that he was a slave, until this suit was brought, would *193a~thorize the inference of a manumission by the other tenant in common; and all presumptiQns in favour of personal liberty and freedom ought to be made~

Motion denied»

Wilson v. Reid, 3 Johns. Rep 175. 14 Vin Abr. 515, 516 Pl. 10-16.