At the trial, the jury were instructed that they vould find for the plaintiff only upon one count; and, as the record stands, their verdict is to be considered as given upon the second count. It is therefore unnecessary to consider the propriety of any instructions which were applicable peculiarly to the first. In regard to the second, the instructions actually given were certainly much less favorable to the defendants than they had a right to ask. “ If the plaintiff’s act was voluntary, offi*450cions, unsolicited, unknown to the defendants at the time, and not necessarily beneficial, it created no debt or obligation upon the defendants to pay therefor.” If the defendants’ prajerfor instructions had stopped here, it would have been perfectly correct as a legal proposition, and well adapted to the case. An executed and past consideration is not sufficient to support a subsequent promise. It is not enough to show that a service has been rendered, and that it was beneficial to the party sought to be charged, unless it was rendered at his express request, or under such circumstances that the law would imply a request. A mere volunteer cannot make himself the creditor of another. Even an express promise, subsequently made and depending wholly on the past consideration, would not be sufficient to create a legal liability. Met. Con. 193. Dearborn v. Bowman, 3 Met. 155, 158. McGilvery v. Capen, 7 Gray, 523. Mills v. Wyman, 3 Pick. 207.
But the defendants did not choose to present the case in this aspect, as they certainly might have done. They requested the presiding judge to rule that the plaintiff was not entitled to recover for “ voluntary, officious, unsolicited” services, “ not necessarily beneficial,” without proof of a subsequent promise by the defendants to pay ; a proposition which plainly assumes that they would be liable if such subsequent promise were proved. The trial appears by the bill of exceptions to have turned principally upon the question whether these defendants had in fact made such a subsequent promise, and the verdict shows that on that point the plaintiff made out his case to the satisfaction of the jury. The defendants cannot now complain that the judge gave the precise instructions that they requested him to give; and after having had the question of fact, which they saw fit to raise, decided against them, they cannot now insist for the first time that the subsequent promise, upon which they went to the jury, was not sufficient in law to render them liable even if . proved. Exceptions overruled.