Sergeant, J.
In this suit the plaintiff alleged, that Richard Davis was indebted to him in the sum of $151 62; for sea-stores furnished by the plaintiff in the years 1827 and 1828, 'to the schooner Emily Davis, of which Richard Davis was owner; and that the defendant Colin K. Davis, the son of Richard, promised in the year 1833, to pay this debt to the plaintiff .in consideration of a transfer by his father to him in the year 1832, of. his interest (being one-half,) in the schooner Virginia Trader, a vessel worth about $4000. The defendant’s promise was proved by depositions, but the defendant alleged that the promise was without consideration. The plaintiff contended, that the schooner was assigned as a fund, out of which the defendant was to pay certain of his father’s debts and this among others. The defendant insisted, that the transfer was for a valuable consideration paid.
In order to show the terms of the transfer of the Virginia Trader, the plaintiff proved, that the defendant had, after the transfer, paid certain claims against the Virginia' Trader, contracted by Richard Davis before the transfer. The plaintiff then called Armor Patton, who testified, that Captain Weeks, while Captain of the Virginia Trader under the defendant, after the transfer, paid Samuel Patton, his brother, a claim he had against Richard Davis, partly -for cash lent, and partly for stores to the Emily Davis. The witness was then asked by the plaintiff whether Captain Weeks told him, that he paid the money by the' authority of the defendant out of the earnings of the Virginia Trader. To this question the defendant objected. The Court sustained the objections, and the plaintiff excepted.
What Captain Weeks said in the absence of the defendant as to his authority to pay, and as to the fund from which the money arose, seems not admissible in evidence. It would be permitting the agency *to be proved by the agent’s own declarations, not on oath, and in the absence of the party to be affected, which would be of dangerous consequence and is contrary to all the decisions on the subject. Clarke v. Baker, (2 Wharton, 340.) It is however contended that Captain Weeks by his office of captain of the vessel,, (the Virginia Trader,) was the defendant’s agent, and had authority to apply the earnings of that vessel to the paym'ent of the defendant’s debts.
So far as' respected the management and concerns of that vessel, he. was agent: and may have had authority to pay bills and charges against the owner contracted on her account. But he ■ was not a general agent, nor agent for other purposes. He had [45]*45no right, by virtue of his situation, to apply the earnings of that vessel to pay other debts of the defendant, without his special authority; and no such special authority had been shown. It was requisite expressly to show that he was agent, quoad hoe, and then his declarations, if in the course, and during the time of his agency, would be evidence. The deposition of Captain Weeks, it appears, was taken in the cause; and this fact if it existed might have been proved by him.
2. The witness having stated that Captain Weeks at first refused to pay the bill, was asked by the plaintiff whether, when he so refused, he alleged he must first get the authority of the defendant to pay it out of the earnings of the Virginia Trader, and whether he did not, when he paid it, say, he had such an authority. To this question the defendant objected, and the Court overruled the question, and the plaintiff excepted.
The same remarks which have been made upon the first bill of exceptions, apply to the second, and it is not necessary to repeat them.
3. The witness then stated, that Richard Davis was present, and the defendant was not: and was asked by the plaintiff, what Richard Davis said, as to his son’s ownership of the Virginia Trader in answer to Captain Weeks’s objection to paying the bill. This was objected to, and overruled, and excepted to by the plaintiff.
Richard Davis was equally a third person with Captain Weeks, and his declarations could not bind the defendant or make him liable. They were therefore properly rejected.
4. To understand the remaining points, it is necessary to observe, that this suit was brought in the name of Asa W. Chambers, to the use of Robert Chambers. The store belonged to Robert Chambers, but he went to sea and the business was carried on by and in the name of his son Asa, and the books of entry were kept in Asa’s name. It was during Robert’s absence, that the debt from Richard Davis was contracted. The defendant alleged, that Edward Lafferty, (whom the plaintiff asserted to be a clerk in his store,) was really, at the time the debt was contracted, a partner of Robert Chambers, for whose use the suit was and to a with Robert Chambers and a^so a set-off against the plaintiff’s *demand, offered a Edward in from Richard Davis, of his note of hand for $50, on account of store bill of Lafferty and Chambers. The plaintiff objected to its admission, but the Court admitted it and the plaintiff excepted.
If Lafferty was a partner at the time the debt was contracted, his receipt of a note on account of part of the claim, would be evidence of payment to that amount. A payment by a promissory note, payable to bearer or endorsed in blank, and not pro[46]*46duced dishonoured and unpaid, is considered as a payment of cash. On these points no evidence was given; and the presumption would be, in the absence of all proof, that it was negotiable and that it was an available security, on which Richard Davis had been made responsible, If so he ought not to be obliged to pay it a second time, nor the defendant who is charged with this debt. If it be considered as a payment, then it was a fair discount against the person for whose use the suit was brought, and who is the actual plaintiff, though, his son be the nominal one. But it is said it was not evidence to prove the partnership — nor would it be alone. But evidence had previously been given by the defendant, that went to prove that Richard Davis had declared himself to be the partner of Lafferty; and after such evidence, the declaration of Lafferty to the same effect is admissible, and indeed if believed, the two together may completely establish it.
The plaintiff requested the Court to charge the jury, that if the jury believed from the evidence, that the defendant made the promise in consequence of his father’s interest in the Virginia Trader having been previously assigned to him, there is sufficient consideration for the promise to the plaintiff, and that the value of such interest, so assigned, is immaterial to the validity of the promise. The Court charged that the main point on which the plaintiff relied was, the assignment 'of the Virginia Trader. This was a year before. The conversation was in December, 1833, the transfer in September, 1832. The jury must be satisfied, that the defendant had the transfer in contemplation, when he made the promise. If he had not, and this had nothing to do with it, the defendant was not bound. The defendant must have had the transfer in- contemplation to bind him.
To this charge the plaintiff objects as erroneous,,contending that the assignment of the Virginia Trader was a sufficient consideration for the promise by the defendant, whether the defendant had it in contemplation or not. I am of opinion, however, that the Court below went quite as far in favour of the defendant as he was in law entitled to; for without showing more than was stated in the'plaintiff’s point, there was no consideration for the promise.
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Sergeant, J.
In this suit the plaintiff alleged, that Richard Davis was indebted to him in the sum of $151 62; for sea-stores furnished by the plaintiff in the years 1827 and 1828, 'to the schooner Emily Davis, of which Richard Davis was owner; and that the defendant Colin K. Davis, the son of Richard, promised in the year 1833, to pay this debt to the plaintiff .in consideration of a transfer by his father to him in the year 1832, of. his interest (being one-half,) in the schooner Virginia Trader, a vessel worth about $4000. The defendant’s promise was proved by depositions, but the defendant alleged that the promise was without consideration. The plaintiff contended, that the schooner was assigned as a fund, out of which the defendant was to pay certain of his father’s debts and this among others. The defendant insisted, that the transfer was for a valuable consideration paid.
In order to show the terms of the transfer of the Virginia Trader, the plaintiff proved, that the defendant had, after the transfer, paid certain claims against the Virginia' Trader, contracted by Richard Davis before the transfer. The plaintiff then called Armor Patton, who testified, that Captain Weeks, while Captain of the Virginia Trader under the defendant, after the transfer, paid Samuel Patton, his brother, a claim he had against Richard Davis, partly -for cash lent, and partly for stores to the Emily Davis. The witness was then asked by the plaintiff whether Captain Weeks told him, that he paid the money by the' authority of the defendant out of the earnings of the Virginia Trader. To this question the defendant objected. The Court sustained the objections, and the plaintiff excepted.
What Captain Weeks said in the absence of the defendant as to his authority to pay, and as to the fund from which the money arose, seems not admissible in evidence. It would be permitting the agency *to be proved by the agent’s own declarations, not on oath, and in the absence of the party to be affected, which would be of dangerous consequence and is contrary to all the decisions on the subject. Clarke v. Baker, (2 Wharton, 340.) It is however contended that Captain Weeks by his office of captain of the vessel,, (the Virginia Trader,) was the defendant’s agent, and had authority to apply the earnings of that vessel to the paym'ent of the defendant’s debts.
So far as' respected the management and concerns of that vessel, he. was agent: and may have had authority to pay bills and charges against the owner contracted on her account. But he ■ was not a general agent, nor agent for other purposes. He had [45]*45no right, by virtue of his situation, to apply the earnings of that vessel to pay other debts of the defendant, without his special authority; and no such special authority had been shown. It was requisite expressly to show that he was agent, quoad hoe, and then his declarations, if in the course, and during the time of his agency, would be evidence. The deposition of Captain Weeks, it appears, was taken in the cause; and this fact if it existed might have been proved by him.
2. The witness having stated that Captain Weeks at first refused to pay the bill, was asked by the plaintiff whether, when he so refused, he alleged he must first get the authority of the defendant to pay it out of the earnings of the Virginia Trader, and whether he did not, when he paid it, say, he had such an authority. To this question the defendant objected, and the Court overruled the question, and the plaintiff excepted.
The same remarks which have been made upon the first bill of exceptions, apply to the second, and it is not necessary to repeat them.
3. The witness then stated, that Richard Davis was present, and the defendant was not: and was asked by the plaintiff, what Richard Davis said, as to his son’s ownership of the Virginia Trader in answer to Captain Weeks’s objection to paying the bill. This was objected to, and overruled, and excepted to by the plaintiff.
Richard Davis was equally a third person with Captain Weeks, and his declarations could not bind the defendant or make him liable. They were therefore properly rejected.
4. To understand the remaining points, it is necessary to observe, that this suit was brought in the name of Asa W. Chambers, to the use of Robert Chambers. The store belonged to Robert Chambers, but he went to sea and the business was carried on by and in the name of his son Asa, and the books of entry were kept in Asa’s name. It was during Robert’s absence, that the debt from Richard Davis was contracted. The defendant alleged, that Edward Lafferty, (whom the plaintiff asserted to be a clerk in his store,) was really, at the time the debt was contracted, a partner of Robert Chambers, for whose use the suit was and to a with Robert Chambers and a^so a set-off against the plaintiff’s *demand, offered a Edward in from Richard Davis, of his note of hand for $50, on account of store bill of Lafferty and Chambers. The plaintiff objected to its admission, but the Court admitted it and the plaintiff excepted.
If Lafferty was a partner at the time the debt was contracted, his receipt of a note on account of part of the claim, would be evidence of payment to that amount. A payment by a promissory note, payable to bearer or endorsed in blank, and not pro[46]*46duced dishonoured and unpaid, is considered as a payment of cash. On these points no evidence was given; and the presumption would be, in the absence of all proof, that it was negotiable and that it was an available security, on which Richard Davis had been made responsible, If so he ought not to be obliged to pay it a second time, nor the defendant who is charged with this debt. If it be considered as a payment, then it was a fair discount against the person for whose use the suit was brought, and who is the actual plaintiff, though, his son be the nominal one. But it is said it was not evidence to prove the partnership — nor would it be alone. But evidence had previously been given by the defendant, that went to prove that Richard Davis had declared himself to be the partner of Lafferty; and after such evidence, the declaration of Lafferty to the same effect is admissible, and indeed if believed, the two together may completely establish it.
The plaintiff requested the Court to charge the jury, that if the jury believed from the evidence, that the defendant made the promise in consequence of his father’s interest in the Virginia Trader having been previously assigned to him, there is sufficient consideration for the promise to the plaintiff, and that the value of such interest, so assigned, is immaterial to the validity of the promise. The Court charged that the main point on which the plaintiff relied was, the assignment 'of the Virginia Trader. This was a year before. The conversation was in December, 1833, the transfer in September, 1832. The jury must be satisfied, that the defendant had the transfer in contemplation, when he made the promise. If he had not, and this had nothing to do with it, the defendant was not bound. The defendant must have had the transfer in- contemplation to bind him.
To this charge the plaintiff objects as erroneous,,contending that the assignment of the Virginia Trader was a sufficient consideration for the promise by the defendant, whether the defendant had it in contemplation or not. I am of opinion, however, that the Court below went quite as far in favour of the defendant as he was in law entitled to; for without showing more than was stated in the'plaintiff’s point, there was no consideration for the promise. If the assignment was made on condition that the defendant should pay this claim with others, or if the defendant on receiving the transfer agreed to do so, there might be a consideration. But if the was made without such condition or understanding, a subsequent *promise, a year after-wards, would be for a consideration executed — it would be gratuitous, and in law the promise would be nudum pactum. Where one person is attempted to be charged with the debt of another, a consideration must be shown — some benefit to the de[47]*47fendant or damage to the plaintiff, as forbearance or the like: but a mere voluntary promise, rests where it began. It may be binding in morals or honour, but is not the foundation of a suit at law; which looks to distributive justice, and demands an equivalent for a promise, before it enforces its performance.
The plaintiff also requested the. Court to instruct the jury, that even if the jury believed, that Lafferty and Chambers w.ere in partnership, yet by Lafferty’s death in 1831 or 1832, the right of action for all outstanding claims, survived to Robert Chambers, and that a promise by the defendant to him to pay the debt, (if made upon a legal consideration,) would enable the plaintiff to sue upon the breach of such promise. The Court charged, that if Lafferty were a partner of Robert Chambers, it made a question whether the suit was properly brought — whether it should not have been brought by the plaintiff as surviving partner of Chambers and Lafferty. This question could be settled hereafter, if the jury found for the ■ plaintiff on the merits. If the jury found for the plaintiff, he asked them to find specially for the government of the court hereafter, whether the goods were sold by Lafferty and Chambers, as partners, or by Chambers alone. And added, that he thought the defendant could take any advantage as to the suit being wrongly brought that Richard. Davis could.
'The plaintiff contends, that the Court in effect directed the jury to find a special verdict on certain points, which they had no right to do — the jury being at all times at liberty to judge for themselves whether they would find a general or special verdict. And the law is so; but I do not perceive any harm in the Court’s requesting the jury to find specially,- as to certain matters of fact in dispute, in order the better to determine the law of the case, on deliberate consultation. And that, it would seem, is all that the Court did. . We are not to presume that the jury were embarrassed and perplexed by this request. On the contrary, they found no cause of action whatever in the plaintiff in any point of view. Therefore the presumption is, they deemed it unnecessary to investigate the point. I believe this course has been taken more than once, by judges sitting at Nisi Pfius and in Courts of Common Pleas, and it may in some cases be convenient. The jury are not bound by a mere request to do so.
Independently of this, I am not able to perceive the relevancy of the point in this case. Supposing that by the death of Lafferty, the right of action for the claims of the partnership, survived to Robert Chambers, yet he is not the plaintiff in this suit. The suit is by Asa W. Chambers, and the promise is stated to [48]*48have been made to *him — Robert is but the cestui que use or and an omission to state the character of his claim as such, would not affect the right of Asa to maintain the action. If Robert’s right wás as surviving partner, and it was material to have that placed on the record, it might have been done, on motion to the court a,nd the fact have been recorded by them before or after verdict. The objection to the character of the party suing, in order to defeat the action, goes to the legal party, and not to the cestui que use for whom such party sues.
Judgment affirmed.
Note. See the case of the Mayor, ¿-c. of- Devizes v. Clark, (3 Adol. & Ellis, 506, 30 Eng. C. L. Rep. 135); as to the right of the Court to request the jury to find special points, and the duty of the jury.
Cited "by Counsel, 9 Watts, 23 ; 10 P. F. Smith, 171.
Cited by the Court, 4 Wharton, 368.