The negligent acts complained of include acts of the justice and the officers of the court in failing to keep their promise as to proper recesses for permitting the deceased to rest and in failing to have a carriage to relieve him of unnecessary exertion and exposure. Such carriage was not furnished. He was compelled to walk and on one occasion in a heavy downpour of rain. Short sessions were not had with opportunity to rest but long sessions were had lasting until late in the evening. Of course, this was a promise in the performance of a governmental function and the usual rule would exclude a recovery; but I cannot believe that the Legislature intended to hold any such string upon its offer to waive the State’s immunity. Such objection was too obvious and apparent at the time of the passage of the Enabling Act. The act itself recites that the injury arose out of service as a trial juror, plainly a governmental function. We cannot assume that the Legislature blindly waived immunity but that, in the performance of its duty, it carefully considered the nature and scope of the claim. The question resolves itself into an interpretation of the language of the Enabling Act. This act should be interpreted to exclude any *638question whether the justice and his court officers, who were acting under his directions, were performing a governmental function or were acting beyond the scope of authority to bind the State. I think the theory of the Legislature was to hold the State liable upon the claim if justice and equity would authorize a recovery against an individual or corporation in similar circumstances and that such claim could only be proved by such evidence as would .be available to a plaintiff in an ordinary action against such an individual or corporation. I think the Legislature referred to the quality of the evidence as such and not to the substantive law of the case. In section 2 of the act, reference is made to not waiving “ any defense thereto ” but I cannot believe this has universal application. If so, it would include the right to raise the defense of “ governmental function ” to which I have referred, in the performance of which the State would ordinarily be immune. Reading both sections together, I think the Legislature meant that the State should be able to raise any defense that a private individual or corporation could to the claim presented. The sole question then is the effect of a promise, unfulfilled, whereby the deceased was induced to perform an unremunerative service on Ms part, beneficial to the promissor and by the unfulfillment of wMeh the deceased was made ill without any fault on Ms part. Such “ unjust enrichment ” ought to be actionable in good morals in a case involving a private individual as the promisor. We must assume the truth of the allegations of the pleading and I think they spell liability justifying a recovery. There is a moral obligation on the part of the State, acting through its judges to treat jurors in a humane manner. It is important that we judges should consider that jurors are entitled to the consideration wMeh we would demand for ourselves under similar circumstances. If the allegations of tMs complaint are" true there was a gross injustice done to tMs conscientious juror wMeh could have been obviated by keeping the promise made by the court. The trial began in November and lasted into February and thus created a most unusual if not unprecedented situation, calling for tremendous sacrifice by the jury. By lengthening the sessions into the night instead of shortemng them as promised, and by the making of the other promises to provide proper care for tMs sick juror, upon wMeh he relied and continued to serve, but wMeh promises were unfulfilled, resulting in Ms permanent and fatal injury, a mistrial was obviated, and the trial was shortened and completed at a great saving of the State’s money but at the expense of tMs man’s health and life. The State can afford to pay its moral obligation. I believe the Legislature has recognized such an obligation, if these allegations are proved to be facts. The State is now providing compensation insurance for some of its employees in far less meritorious cases. I dissent.