Jacob Snyder and Hannah his wife against Samuel Castor, administrator with the will annexed of George Castor, 4 Yeates 353

Tilgitman, C. J. after detailing the case and facts minutely, delivered the unanimous opinion of the court as follows: Several objections have been taken to the declaration. I do not conceive that those objections can properly be urged on this argument, because the question now before us is not, whether *the. declaration is good, but whether it is supported by the evidence. If it is fundamentally bad, the defendant 35/ may hereafter move in arrest of judgment. I very much doubt, however, whether any defect which has been pointed out is fatal. The act of limitations has been insisted on.

It does not appear that any point on the act of .limitations was reserved. But supposing there was, the promise made by George Castor in 1797, being within six years before the action brought, was sufficient to take the case out of the act of limitations. The only question is* was the declaration so unsupported by evidence that the judge who tried the cause, might properly have directed the plaintiff to be non grossed. The defendant’s counsel contend, that the promise proved was express and special, and that the- declaration should have contained a special count.

As to an express promise being proved, I can see nothing in that which is variant from the declaration ; it states an express promise. Now, though a promise raised by implication of law, supports such a declaration, yet certainly, it is equally well supported by an actual promise; and nothing is more common than to give actual promises in evidence, in declarations of this kind. There is another objection of more weight, which is, that the promise was of a particular kind, to pay after the death of George Castor.

Undoubtedly this promise is not exactly agreeable to the one stated, which is, to pay when request should be made by the plaintiffs. But objections of this kind, foreign to the merits of the dispute, are not to be favoured; we are not to yield to them unless founded on well established principles. If an action had been brought during the life of George Castor, the plaintiffs could not have supported it, because it would have been in direct opposition to the promise.

But the day of payment having arrived before the action was brought, the right of the plaintiff was complete ; and I think myself authorized to say, that in such case, according to the principle laid down in Brooke et al. v. White, the plaintiff may alledge in his declaration that the defendant promised to pay when required. 4 Bos. and Pul. 330. No injury is done to the defendant by this mode of declaring, because the plaintiff must fail, unless he proves that the money was due before the action brought. Followed in 2 Binn. 70.

Cited in 30 Pa. 300 to show that before the year 1807, exceptions to the merits either in fact or in law, of an auditor’s report in account-render, had been allowed in a very few cases ; but the Supreme Court then determined that thereafter such an innovation upon the rules of the action would not be tolerated. Cited in 71 Pa. 69 in support of the proposition that if a person serves another through the expectation of a legacy, in which he is disappointed, he cannot support an action.

The defendant’s counsel has painted in strong colours the mischiefs which may flow from a collusion between parent and child, when there is not an estate sufficient to answer the just demands of strangers.

There is no doubt but much mischief may happen, unless transactions of this kind are watched with a jealous eye; but in the present instance there is no interfer- * *ence with the claims of other creditors ; and whenever a 1 case shall arise, where, from the circumstances, there is reason to think that a parent promises wages to his child for past services, with a view of screening his estate from the just demands of other creditors, and where it was not originally agreed that the child should be paid for such services, • such promise will be adjudged fraudulent and void.

It has been urged by the defendant’s counsel, that if a person serves another through expectation of a legacy, in which he is disappointed, he cannot support an action. The law certainly is so, but cannot be applied to a case, where the person for whom the service was done promises to pay for it; and it is immaterial whether the promise be made before or after the service. Upon the whole, we are of opinion, that the court could with no propriety have ordered a nonsuit on the trial of this cause ; and the jury who heard the evidence, having found for the plaintiffs, their verdict must stand.

Judgment for the plaintiffs.