#### SMYTH *v.*SPROUT.

Error — consideration—import—verdict—objections after — should respond to issue, and to notice if in controversy.

A declaration in assumpsit stating the debt, and that the defendant promised to pay it, omitting the words in consideration thereof, is good after verdict.

A party cannot after verdict object that without proof of which the court could not have found as they did — such matters will be presumed.

If there be one issue and a notice, and the jury are sworn to try the issue, the verdict is good, though it do not respond to the notice.

*Quere:*If it appear that evidence was given under the notice, the jury should not respond to it. The judgment must respond to it, and it is good practice so to enter the verdict as to show the response.

Error to the Common Pleas. The declaration in the court below was in the common counts in assumpsit, united in one count. The indebtedness was described as follows: and the defendant ‘being indebted to said plaintiff, &c. afterwards, on &c. undertook and promised the plaintiff to pay him the said several sums of money, when, &c.’ (omitting the words *in consideration thereof.)*Plea non assumpsit with notice of setoff, jury sworn to try *the*issue, verdict that defendant did assume as in the declaration, &c. Motion in arrest that no consideration is laid for the promise, which was overruled and judgment given for the plaintiff.

*G.*Swan, for the plaintiff,

assigns for error, 1. That the judgment on the verdict should have been arrested: 2. That the jury did not respond to the setoff He insisted, 1. That no consideration was shown for the promise, -and cited 1 *Ch. PI.*263, 4, notes; 2 *Ch. PI.*s 37; *Com. on Con.*7; *Wile. Pr.*29.

2. That the jury were bound to answer all the *issues*— the statute makes the notice an issue, on which the defendant may have judgment, (29 *O. L.*121) — it forms an issue for both parties, and requires the court to ‘render judgment for the party, whether plaintiff or defendant, in whose favor the balance may be found.’

*758O. Parish, contra.

Wright, J.

1. As to the want of consideration. The declaration is, that the plaintiff lent the defendant money, and he was indebted to him other money for work and goods sold, and after-wards promised the plaintiff *to pay said money.*The pleader has omitted *to assert*that the promise was in consideration of the indebtedness, but is not the import of what is alleged the same? One owes another money, and says that, *in consideration of the*debt, he will pay the money — another owes money, *and promises to pay*it— is there any essential difference between the two promises? Would not either convey the idea that the debt was the matter which induced the promise, the cause of it? The last supposed case, to our understanding, as clearly shows the promise made on account of the debt, as the first. But whatever we might think, if this objection were shown on a special demurrer, it will not avail after verdict. The plaintiff’s title is a good one, though defectively set out, and that is good after verdict — that without proof of which the court and juiy could not be expected to find, will be presumed after verdict.

2. The jury were- sworn only on one issue, and the record does not show that any evidence was offered as to the setoff. The jury, therefore, found according to their obligation. The case was one, in which the parties had the right to submit other matters to the jury, which they did not choose to exercise — neither can assign his own neglect for error. Wc give no opinion as to the necessity of passing upon, a notice in the verdict. It is the best practice to enter the verdict to answer the notice, when in controversy.

Judgment affirmed.