By the Court,
Marcy, J.This case differs widely from Trongott v. Byaes, 5 Cowen, 480. If a slave deserts his master and goes into the service of another, the master can recover for services performed by the slave before he gives notice of his claim; but this principle should not, I think, be applied to a case where the master never had possession of the slave, and was chargeable with concealing his claim from the defendant while the slave was performing the services.
There could scarcely be imagined a case where an implied waiver of right to the slave, if any valid right ever vested in the plaintiff, was more clearly made out. Though the bill of sale declares that delivery was made, yet such was not the fact. Mrs. Bemyer continued, after the pretended sale, to exercise the right of ownership over the slave for three or four years without the fact being known that there had been a sale. This alone was sufficient to render the sale void as against creditors, and perhaps bona fide purchasers. At her death the defendant took the slave under her will. This was done with the implied assent of the plaintiff. He knew that the defendant took possession of the slave as his own property, by virtue of a title which the defendant believed to be valid, and had good reason for so believing; he saw him exercise dominion over him as his own property until he gained his freedom, and did no act to undeceive the defendant for six or seven years. There were responsibilities attached to the ownership of the slave; and as the defendant, in his own judgment, and in the opinion of the public, was the owner, he stood the risk of those responsibilities; and the plain*438tiff’s conduct repels all inference of an implied promise by the defendant to pay for the services.
But it is said the judge erred in granting a nonsuit; and that he should have left it to the jury to determine whether the plaintiff had waived the fulfilment of the contract of sale, or whether, by his long acquiescence in the assumed right of the defendant, he had not forfeited his own. These, in ordinary cases, are questions which belong to the jury; but where the evidence in favor of the plaintiff’s right is so slight, and that which supports the defence so strong, that had the jury found for the plaintiff the court would have felt itself called on to set asid their verdict, it will not send the cause back to the jury because the judge ordered a nonsuit. There was not any contradictory testimony. The dispute is not about the facts, but about the legal effect of them. Taking them altogether they would not, viewed in the most favorable light, have warranted a verdict for the plaintiff.
New trial denied.