The opinion of the court was read at the following November term, as drawn up by
Mellen C. J.Notwithstanding the counsel have deemed it prudent to cite numerous authorities, we apprehend that the questions raised in the cause may be satisfactorily answered without any laboured investigation.
The first question is, whether the verdict ought to be set aside and a new trial granted, on account of any incorrect decisions or instructions of the judge, who presided at the trial.
The plaintiff, in order to shew that the defendant was the agent of his father, Daniel Lunt, offered to prove a series of facts from which it was contended the jury might fairly presume such agency ; such as the implied authority or subsequent assent and ratification of said Daniel. This was objected to ; but the very nature of the evidence offered was such as to render it improper* for the judge to exclude it ; and proper for him to admit it, subject to those limitations and instructions which accompanied the evidence. No other course could have been pursued, without at once depriving the plaintiff of the benefit of all presumptive proof; a species of proof peculiarly proper for the consideration of a jury. The objection to this admission under the instructions given, is overruled.
*507The next evidence objected to by the plaintiff, was that of the confessions or declarations of the defendant, since his father’s death, and since be assumed the character of executor of his will. Little reliance seems to have been placed on this objection, and with good reason ; the authorities seem clear on the point, that the confessions or declarations of a party on record are proper evidence for the jury. We therefore approve of the judge’s decision by which evidence was admitted of such confessions or declarations.
The remaining question is, whether the motion at common law,, to set aside the verdict on the ground that it is against the evi dence in the case, shall be sustained. This motion has refer-’ ence merely to the testimony respecting the time when the bargain for the land was completed, and the terms of that bargain. The jury have found, that it was not completed until the hay was delivered ; and that the hay, so delivered, was in itself the com - pletion of the contract,and of the payment of the purchase money. If the evidence on these points authorized them to draw this conclusion, then the verdict is right and the plaintiff is entitled lo judgment.
In examining this point, we must remember that tbe question of agency has been settled by the jury; so that whatever took place at the time the hay was delivered must be considered as done by the plaintiff and Daniel Lunt. Now there is no positive proof when the deed was delivered. Bishop, the justice, does not know, nor does it appear with certainty, when the note for $450 came into the hands of the plaintiff. The only evidence on this subject is, that in the conversation immediately preceding the delivery of the hay, it was stated by the plaintiff to the defendant that “-he had sold all he had there, and had got Daniel Lunt’s note for $450, and that Esquire Bishop, had been up, and done the business ; and that the fifty dollar’s worth of hay was to make up the price of the land.” It does not therefore appear from all this evidence, what was the exact amount of consideration. There' being no precise proof as to the time when the «leed was delivered, that point was a matter of inference, and consequently a proper subject for the consideration of the jury v; *508and we cannot pronounce their verdict on this head to be against the evidence in the cause. But admitting that the facts were such as that Cobb could not by law have recovered the fifty dollar’s worth of hay ; still, the proof is that Daniel Lmit. by the defendant, his authorised agent, actually delivered the hay to the plaintiff, as in part payment for the land ; and having voluntarily done this, he must not now be permitted to convert a payment into a charge, and a right of actibn. Though a man is not bound to pay a debt barred by the statute of limitations, or perform a promise made without legal consideration ; and though no action can be maintained on such promises ; yet if such debt has been voluntarily paid, or such promise voluntarily performed, no action will lie to recover the money back again ; volenti non fit injuries.
On these grounds our opinion is, that the motion at common law to set aside the verdict and grant a new trial cannot be sustained. Let there be
Judgment on the verdict.