ACTION of Scire Facias Sur Recognizance in the Orphans' Court for the one seventh share or part of $2043.09. Pleas, Nul tiel record, payment, set-off and accord and satisfaction.
Levin Connoway deceased, was one of the seven children and heirs at law of Noble Connoway deceased, who died intestate and whose real estate was accepted on appraisement in the Orphans' Court by Nathaniel Connoway, one of the heirs, who entered into recognizance with *Page 207 Levin D. Vaughan as surety, to pay the other heirs their respective shares of the appraisement. The only defence relied on was the plea or set-off. The evidence in the case was that Levin Connoway was an imbecile, and incapable of taking care of and maintaining himself, and had lived for several years with his brother Nathaniel Connoway, the defendant, whose counsel was proceeding to prove the subject matter of his plea of set-off for clothing, support and maintenance of the decedent during that time. charged the jury, that in an ordinary case the claim of set-off for board and clothing pleaded in this instance, would be a good defence to the action, to the extent of the value of them proved under the plea, and in that event, it would be material for the jury to consider what would be the value of the service, or work and labor performed by the decedent for the defendant during the time he lived with him. But Levin Connoway the decedent, and Nathaniel Connoway the defendant, or one of the defendants, the other being his surety simply in the recognizance, were proved to have *Page 209 been brothers, and as this court had repeatedly recognized the principle, that as between persons standing in that relation to each other, or as between near relations, the law will not imply a contract, or promise on the part of the former to pay the latter for his board and clothing, or on the part of the latter to pay the former for his work and labor, during the time the former had lived with the latter, and as no action of assumpsit could have been maintained for either demand by the one against the other, without proof of an express contract, or promise to pay for them, and no such evidence had been adduced in this case, the plea of set-off could not be allowed, or considered by the jury, and their verdict must therefore be for the plaintiff.