By the Court.
McDonald, J.
delivering the opinion.
We sustain the decision of the Court below in striking out the defendant’s pleas of set-off, with the exception of two-*89items in one of them, one of which is for the coffin, and the-other for the burial expenses of the slave.
[1.] It has been held, in effect, by this Court, in the case of Latimer vs. Alexander, (14 (Ga. Rep. 259, that if there be\ no special contract to the contrary, the hirer is bound to fur-, nish all necessary attendance and nursing to his sick hired-, slave. If this duty be implied in the contract of hiring, in the absence of any contrary express stipulation, the defendant can have no action against the plaintiff for this service,, and a set-off is in the nature of a cross action.
[2.] It is not necessary to decide here; indeed, we cannot-do it without going out of the record, whether the owner might not be liable to the physician for the amount of his bill-for medical services to George. The question is, was it the. subject of set-off, by this defendant, to the plaintiff’s action? If the defendant had sued plaintiff for the recovery of this bill or the amount of it, he must have alleged and proved that, he had paid it and paid it at the request of the plaintiff. The plea of set-off does not show that the defendant has paid the physician’s bill, and we are not called on to decide whether it is or not such a case, as the physician has an option to proceed against the owner or the hirer.
[8.] it appears by the plea, that at the time of the hiring, the plaintiff stated to the defendant that he had insured the life of the slave at $1150, two-thirds of which would be recovered if the negro died. There must have been a motive for making this declaration, but it does not appear in the plea — none-is assigned there. But the defendant insists in his¡ plea, that inasmuch as the plaintiff made the assertion and the negro died during the year, and the sum of $766, two-thirds of the amount of the insurance, was paid to him, that he should be allowed as a set-off, a sum bearing the same proportion for the time lost, ,to the hire of the entire year ; that the amount received from the insurance company did to the value of the negro set forth in the policy. The plea discloses no agreement that would sustain his right to the set-off The *90assertion does not entitle him .to a part of.the insurance-money, and it is that which he seeks to recover in his plea. .
[4.] Death put an end to the hirer’s special ownership of " the negro. • The hirer discharged all the duties which a. humane policy imposed on him, when he nursed him and called1 a physician to attend him in his sickness. The coffin and burial expenses were a proper charge against the owner, and * ought to have been allowed as a set-off. We reverse the judgment of the Court on that ground, and order a new-trial,, unless the defendant in error remit, on his judgment, the sum of eight dollars, that, being the amount pleaded as a set-off" for the coffin and burial expenses, with interest thereon, from the death of the negro; and that the defendant in error, in any event, pay the costs of prosecuting the case in this Court..