
    * Philip Bagley versus Peter Francis.
    A promise was to pay money, provided a certain seaman did not render himself on board a certain privateer, and proceed to sea, and perform his duty as a seaman on board the vessel; the seaman rendered himself on board, and proceeded to sea, but left the vessel in a foreign port; it was holden that the money was due.
    Assumpsit on the following note of memorandum: “Boston, November 7, 1814. For value received I promise to pay Mr. Philip Bagley, or order, on demand, one hundred dollars, provided John Baptist does not render himself on board the private-armed schooner M’Donough, in the harbor of Boston, and proceed to sea, and perform his duty as a seaman on board said vessel. Peter Francis.”
    The parties agreed that the said Baptist did render himself on board the said schooner M’Donough, and proceeded to sea in the same ; but left the said schooner in France, before the termination of her cruise. The parties also agreed that the following facts should be considered as part of the case, so far as they were material, and could be admitted as legal evidence in this action, viz. On the day of the date of said note, the plaintiff purchased of the said Baptist one half of his share of the prize-money of the said cruise of the said schooner, for which he paid the sum of fifty dollars ; and the said Baptist made him a bill of sale thereof. The agents of the said schooner refused to pay the plaintiff any part of the prize-money gained in said cruise, on account of the said Bap tist’s share thereof being forfeited by his leaving the said schooner in France. A seaman’s share in the said cruise amounted to the sum of one hundred and fifty dollars.
    Upon these facts judgment was to be entered by nonsuit or default, as in the opinion of the Court law and justice should require.
    
      Banister, for the plaintiff.
    The action of Bainbridge vs. Downie 
       was like this ; and although there the plaintiff failed of recovering, because the United' States were the party in interest, yet the Court expressed no doubt that the action lay for them.
    * Saltonstall, for the defendant,
    argued that the promise was void by the statute of frauds, and for this he cited the case of Wain vs. Warlters. 
       And he contended that, if the promise in thib case were valid, here was no breach of the condition. The defendant engaged only in case Baptist should not render himself on board the privateer, and proceed to sea, and perform his duty as a seaman. All this he did.
    
      
       6 Mass. Rep. 253.
    
    
      
       5 Eastt 10
    
   Parker, C. J.

The only point in this case is, what is the true construction of the condition upon the performance of which the defendant was to avoid his promise. The defendant contends that, as Baptist rendered himself on board the ship, and proceeded to sea, he did all which he stipulated for him; and that he should have been coerced to the performance of his duty by the discipline of the ship.

' But we think the engagement of the defendant was, that Baptist should so perform his duty during the cruise as to entitle himself to his share of the prize-money. Now, it appears that he deserted in France, before the cruise was finished, and has been adjudged, by a competent tribunal, to have forfeited his prize-money.

This seems to be the very act which the plaintiff undertook to secure himself against by this note.

We see no relation that this case has to the statute of frauds. If the promise be to pay the debt of another, it is in writing; and the consideration is legal and sufficient. The whole agreement seems also to have been in writing, and expresses the real consideration of the promise. These circumstances being the plaintiff’s case within the most rigorous construction of the statute.

Defendant defaulted.  