A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay will be presumed. (j) But it is said not to be so semble per Beardsley, J., it is void although one of the parties is to perform every thing on his part within the year, if a longer time than a year is stipulated for the performance by the other. But in Cherry v. Heming, 4 Exch. 631, it was held (affirming Donnellan v. Read, 3 B. & Ad. 699), that in the 4th section of the statute of frauds the words "not to be performed within the space of one year," mean, " not to be performed on either tide'* and that the contract in question having been performed on one side within a year from the making thereof, the case was not within the statute. - So in Herrin v. Butters, 20 Me. 119, the law on this subject is thus laid down: where by the terms of a contract the time of its performance was to be extended beyond a year, it is within the statute of frauds, though a part of it was by the agreement to be performed within a year. To bring a case within the statute of frauds, it must have been expressly stipulated by the parties, or it must, upon a reasonable construction of their contract, appear to have been understood by them, that the contract was not to be performed within a year. A. G. B. contracted in writing with S. to clear eleven acres of land in three years from the date of the contract, one acre to be seeded down the (then) present spring, one acre the next spring, and one acre the spring following; as a compensation for which, he, A. G. B., was to have all the proceeds of said land three years, except the two acres first seeded down. A. G. B. assigned verbally his interest, to the extent of half the contract, to H., who verbally assigned said half to C. B.; said H. and C. B. respectively agreeing verbally to perform one-half of the contract. A. G. B. and C. B. commence the performance of the contract, but do not complete it. S. sues A. G. B., and recovers damages for non-performance, which are paid by A. G. B. H. being called upon by A. G. B. for half of the damages so recovered and paid, pays the same to him, and then commences a suit for the same against C. B. - It was held, that the contract between them (H. and C. B.) was void by the statute of frauds, and that he was not entitled to recover. - See also Roberta v. Tucker, 3 Exch. 639.

(j) Phillips v. Jones, 1 A. &E. 333, Lord Denman. See Peacock v. Peacock,

2 Camp. 46; Waterman v. Gilson, 5 La. An. 672. In Newel v. Keith, 11 Vt. 214, it is said, that if personal services are rendered by A to B at the request of the latter, an action will lie for them, unless it appears from the whole evidence that they were designed to be gratuitous; and this is a question of fact. - So where one person has by fraud induced another to labor for a third person, the latter may still be liable for the work. Lucas v. Godwin, where the service is rendered to the parent or uncle, or other near relative of the party, on the ground, that the law regards such services as acts of gratuitous kindness and affection. We find American authorities which recognize this distinction, and particularly where it grows out of the relation of parent * and child. (k) 1 But if a destitute person is received from

3 Bing. N. C. 737. In Peter v. Steel, 3 Yeates, 250, it was held, that assumpsit would lie in favor of a free negro, for work, labor, and service, against a person who held him in his service, claiming him as a slave. The court laid down the general principle that, where one by compulsion does work for another, whom he is under no legal or moral obligation to serve, the law will imply and raise a promise on the part of the person benefited thereby to make him a reasonable recompense. So in Higgins v. Breen, 9 Mo. 497, it was held, that when a married man represents himself to be a widower, and thus induces a woman to marry him, his wife being still alive, such woman may recover of him for her services during such time as she may live with him. -And generally where labor is performed for the benefit of another without his express request, yet if he knows of the work, and tacitly assents to it, an implied promise will arise to pay a reasonable compensation. James v. Bixby, 11 Mass. 34; Farmington Academy v. Allen, 14 Mass. 172. So where one employs the slave of another the law implies a promise to pay the master for the services of the slave. Cook v. Hasted, 12 Johns. 188. So of an apprentice. Bowes v. Tibbetts, 7 Greenl. 457. But labor and service voluntarily done by one for another without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, affords no grounds for an action. Bartholomew v. Jackson, 20 Johns. 28.

So if a workman be employed to do a particular job, and he choose to perform tome additional work without consulting hie employer, he cannot recover for such additional work. Hort v. Norton, 1 Mc-Cord, 22. See also ante, vol. i. p. *468, et seq. Even if it is agreed between the parties that certain work shall be done gratuitously, such contract is nudum pactum, and the party is not bound to perform it; although it is said that if he once enter upon the performance of such contract, he is bound to complete it. See Rutgers v. Lucet, 2 Johns. Gas. 92, n. (2d. ed.)

(k) In Andrus v. Foster, 17 Vt 556, it was held, that where a daughter continues to reside in the family of her father after the age of majority, the same as before, the law implies no obligation on the part of her father to pay for her services. And the same rule applies to cases where the person from whom the compensation for services is claimed took the plaintiff into his family when she was a child, to live with him till she should become of age, and she continues, after that time, to reside in his family, he standing in loco parentis to her. If she claim pay, it is incumbent on her to show that the services were performed under such circumstances as to justify an expectation on the part of both that pecuniary compensation would be required. The right to compensation for services in such cases must depend upon the circumstances of each particular case. See also Fitch v. Peckham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. 647; Alfred v. Fitzjames, 3 Esp. 3. In Guild v. Guild, 15 Pick. 130, the law on this point is thus summed up by Shaw, C. J.: "The point is, whether, where a daughter, after arriving at twenty-one years of age, being unmarried, continues to reside in her father's family, performing such useful services as it is customary for a daughter to perform, and receiving such protection, subsistence, and supplies of necessaries and comforts, as is usual for a daughter to receive in a father's family, the law raises any presumption that she is entitled to a pecuniary compensation for such services, and whether, after proving these facts, the burden of proof is on the defendant to show that the services were performed without any view to pecuniary compensation. Some of the court are of opinion that, as it is the ordinary presumption, between strangers, that, upon the performance of useful and valuable services in the family of another, it is upon an implied promise to pay as much as such services are reasonably worth, so, after the legal period of emancipation, the law raises a similar implied promise from a father to a daughter. Other members of the court are of opinion (confining the opinion to the case of daughters, and expressing no opinion as to the case of sons, laboring on the farm or otherwise in the service of a father) that the prolonged residence of a daughter in her father's family, after twenty-one, performing her share in the ordinary labors of the family, and receiving the protection and supplies contemplated in the supposed case, may well be accounted for, upon considerations of mutual kindness and good-will, and mutual comfort and convenience, without presuming that there was any understanding, or any expectation, that pecuniary compensation was to be made; that proof of these facts alone, therefore, does not raise an implied promise to make any pecuniary compensation for such services, or throw on the defendant the burden of proof to show, affirmatively, that the daughter performed the services gratuitously, and without any expectation of receiving wages or pecuniary compensation, but with a view to the share she might hope to receive in her father's estate or otherwise." The court were equally divided on this quescharity, provided with necessaries and set to work, he is under no obligation *to remain, nor has he any claim for wages, unless there be some express agreement, or one may be implied from the peculiar circumstances of the case.