#### Stamps *v*. Graves.

From Caswell.

A Variance between the writ and declaration, the former being in debt, the latter in assumpsit, is fatal even *after verdict.*

A note not assignable within the statute, cannot be declared on, the consideration must be stated and proved, the note can only be evidence to the jury.

Where a note is made payable on a contingency, and the contingency is of such kind as shows no benefit to the one or injury to the other party, the note of itself is uo evidence of a consideration, but proof of a consideration must be given independent of the note.

This was an action of *debt,*brought on the following instrument:

I promise to pay John Stamps for John W. Graves, the sum of two hundred and eighty-six dollars and 32-100, out of a bond when it shall *103be collected on James Daniel for the sum of four hundred and fifty-two dollars, due the 1st of March, 1820, eighteen hundred and twenty. 30th Dec. 1819.

(Signed) «4. *Graves.*

The declaration was as follows:

*John Stamps*complains of *Jlxariah Graves,*in custody, &c. for that whereas the said *Jl-xariah Graves*heretofore, to wit, on the thirtieth day of December, in the year of our Lord one thousand eight hundred and nineteen, to wit, at Caswell aforesaid, for value received, made his certain promissory note, bearing date the day and year aforesaid] and thereby then and there promised to pay to the said *John Stamps*for *John W. Graves,*the sum of two hundred and eighty-six dollars and 32-100 out of a bond when it should be collected on *James Daniel,*for the sum of four hundred and fifty-two dollars, due the 1st of November, 1-820; and the said *John Stamps*in fact saith that afterwards, to wit, on, &c. at, &c., the said money was *collected*on the bond aforesaid of the said *James Daniel;*by means whereof the said *Jl&ariah Graves*became liable to pay, &c., and being so liable, in consideration thereof, promised, &c.

And whereas, also, afterwards, to wit, on, &c. the said *Jlaariah Graves*at, &c. for value received, made his certain promissory note, bearing date, &c. and thereby then and there promised to pay to the said *John Stamps*for *John W. Graves,*the farther sum of, &c. out of a bond when it should be collected on *James Daniel*for the sum of, &c.; and the said *John Stamps*in fact saith, that af-terwards, to wit, on &c., at, &c., the aforesaid bond on *James Daniel was collected faj the said John W. Graves,*by means whereof the said *&%ariah Graves*became liable to pay, &c. and being so liable, in consideration thereof, promised, *See.*

And whereas, also, afterwards, to wit, on, &c. the said *Jbeariah Graves*at, &c. for value received, made liis certain promissory note, bearing date, &c. and thereby then ar>d there promised to pay to the said *John Stamps*fop *104*John W. Graves,*tbe farther sum of, &c. out of a bond when it should be collected on *James Daniel*for the sum of, &c.; and the said *John Stamps*in fact saith, that- af-terwanls, to wit, on, &c. at, &c. the aforesaid bond on *James Daniel might have been collected,*and that the collection of the said bond was prevented and *defeated by*the wilful act of the said *John W. Graves;*by means-whereof the said *A%ariah Graves*then and there became-liable to pay, &c. and being so liable, in consideration, thereof, promised, &c.

The fourth count was for money lent and advanced.

The fifth, for money had and received.

The defendant pleaded the general issue and payment, and on the trial before Piston, Judge, the plaintiff proved the execution of the instrument; that *John W.*•Growls, brought suit against *James Daniel*on the bond mentioned in the declaration, and obtained judgment; that *Daniel*appealed to Caswell Superior Court, and gave as securities for his appeal *Charles Wilson, John G. Wilson, Jeremiah Dixon*and *James*Clay; that judgment was rendered in the Superior Court against *Daniel*and his securities, and execution issued thereon against them;' that on this execution the sheriff returned that, exclusive of the costs, g236 had been paid by *Jeremiah Dixon,*and that no property could be found to satisfy the residue. Plaintiff also proved that *James Daniel and James Clay*were insolvent, and that *Jeremiah Dixon*made the payment above stated in behalf of himself, and *Charles*and *John G. Wilson;*that the payment was made under an agreement between *Solomon, Graves,*as agent for *John W. Graves,*and *Dixon*and the *Wilsons,*that they, the securities to the appeal, should he discharged from all farther liability for the balance of the debt, and they were discharged accordingly.

The defendant offered to prove by parol, that the instrument was given by the defendant as agent for *Joha Ifi Graves,*hut the Court rejected the testimony: defend*105ant contended, also, that it was incumbent on tbe plaintiff to show a consideration for tbe instrument, but tbe Court held otherwise.

It was admitted, that at the time *Dixon*and tbe *Wil-sons*were discharged, the defendant was not the agent of *John W. Graves*in collecting the debt from *Daniel;*and also that no part of the money raised on the execution against *Daniel*and his sureties was ever received by tbe defendant.

The jury, under tbe charge of the Court, gave a general verdict for the plaintiff, and the case stood here by appeal of defendant, on a rule to show cause why a new trial should not be granted.

*Seawell,*for the appellant.

1. The writ is in debt, and the declaration in assump-sit. This is such a variance that the plaintiff cannot have judgment.

2. The first count of the declaration is defective; it does not show by whom the bond was collected. So is the second count, lor it alleges a collection by *Jno. TV. Graves,*and no receipt by the defendant is shown. The third count is plainly defective, for it shows no collection, but instead thereof that the collection was prevented by the wilful act of *John TV. Graves.*He is a stranger, and his default is not equivalent to a collection; this is true only of the act of the party himself. As to the fourth and fifth counts, for money lent, and money had and received, there is no evidence to support them, as will be shown; but at present it is sufficient to say, that several of the counts being bad, and the verdict general, the plaintiff cannot have judgment.

3. It was incumbent upon the plaintiff to show an actual collection of the money due upon the bond, according to the terms of the contract on which the action is brought. But a collection by *John W. Graves,*even if proved, is not sufficient, for a collection by the defendant *106is to be intended. But there was no collection of the bond; a part was received, and the residue released by *J. W. Qraves.*an(j if a release or discharge by the party be equivalent to a collection, such act by a stranger will not be. Where the liability depends on the act of one not party to the contract, a performance must be shown, nothing is equivalent to it.

4. Even if the plaintiff was not bound, in the first instance, to show a consideration for the promise, yet here he is not entitled, for the case shows there was not a consideration. The very terms of the note rebut the idea of any consideration. The promise is made for *John W. Graves;*no. benefit appears to the promissor, no injury to the promissee. The defendant was discharged from his agency for *J. W. Graves*before the collection of any part of the bond; no part of it was received by him; and the promise, which was *nudum pactum*at its making, never became binding by any subsequent benefit to him, or loss to the plaintiff.

But, fifthly, the Judge should have required proof of a consideration from the plaintiff. The promise being without seal, required a consideration, and its existence is not presumed. A case of the very highest authority shows, not only that a consideration is necessary and must be alleged, but that it must be proved. The contrary notion stated by Mr. Justice *Blachstone*as to promissory notes, is without foundation. *Rann*v. *Hughes,*(7 *Term*346. 1 *Fonb.*343.)

*Badger,*for the appellee. —

As to the variance. The *ca-pias ad resp.*is not an original writ, and a variance between that and the declaration is not matter of any consequence. The *capias*is mere leading process, which presupposes an original; its whole object is to bring the defendant into Court, to receive a copy of the declaration which contains the cause of action, and to which the defendant pleads. As soon as the defendant is in Court, and *107the declaration delivered, the process is at an end, its whole function being performed. It is no part of the record, and a defect in it, or a variance from the declaration, is no ground for plea in abatement, demurrer, or motion in arrest of judgment No advantage can be taken of such defector variance *ex vigore justitise,*for the reason that the *capias*is no part of the record. The party may apply to the discretion of the Court to set aside the proceedings, which will be done only where the attainment of justice requires it. These positions are fully supported by the case of *Hale*v. *Finch,*(2 *Wilson*393.) *Drew wife*v. *Rose,*(2 *Ld. Raym.*1398.)

But if the writ in this case be considered an original, the objection cannot prevail. For the Courts never would, at any period, notice such a variance, but upon *oyer*of the original, unless the variance appeared upon the face of the declaration; and it has been long settled, that the defect even thus appearing upon the declaration, will not be noticed unless *oyer*has been had of the original. *Elle-ry*v. *Hicks $ wife,*(4 *Mod.*246.)

But since the case of *Brats*v. *Edwards*in the *TC. B. (Dotig. 9.9,7.)*and that of *Ford*v. *Burnham*in *C. B. (Barnes*340.) the Courts, by refusing *oyer,*have prevented all advantage for the want of or for a vicious original, or for a variance. (1 *Saund.*318 *a. n.*3.)

But this being an objection taken *after verdict,*it cannot prevail, in whatever character the writ may be considered, whether as an original or process. For the statute of 5 *George*1. *ch.*13. enacts, “that after verdict, judgment shall not be arrested for any variance, whether in form or substance, in any writ original or *judicial,*from the declaration or other proceedings.” If this statute is in force here, it is of course decisive of the question.

Chiee Justice. — It is in force. It has been so decided in this Court.

*Badger.*— The case being then freed of this technical objection, is to be considered upon the questions made in *108the Court below and presented by the case: 1. Was it in-* cumbent on the plaintiff, *in the first instance,*to prove a consideration? 2. Is the defendant personally liable on ^hc note?

1. The rule laid down in *Mann*v. *Hughes,*is not denied. There must be a consideration to support every agreement not under seal; and where it appears to be without consideration, though in writing, it has no legal obligation. But the question here is, not whether a promise without consideration can be enforced, but what is *prima facie*proof of a consideration? Was the plaintiff bound to offer proof *dehors*the note in the first instance, or was the execution of the note sufficient proof of consideration until some evidence of the contrary was produced by the defendant?

It is admitted, the note on which this action is brought is not negotiable, and therefore derives no help from the statute of *Jinn.*But without the aid of that statute we hold, that a written promise to pay is presumed to be founded upon sufficient consideration, and throws the *onvs*of proof on the other side.

The case of *Meredith*v. *Chute,*(2 *Ld. Iiaym. 759.)*was determined before the statute of *Jinn,*and it was held by the Court clearly that the signing a note is evidence of a good consideration against the maker, although the note expresses none on its face, and none is alleged. This doctrine is demanded by the necessities of mankind, and founded on a knowledge of human conduct and motives. It is not to be presumed that a man will make a written promise to pay money (which shows deliberation,) unless he is under a sufficient obligation to do it; for men are not prone to part with money without motive.

The distinction is clear between the necessity of a consideration and the obligation of proving it. Even in commercial instruments, a consideration is always material. It is true if a promissory note made without consideration be assigned for value, the want of consideration between *109the original parties cannot be objected against the as-signee who has paid for it. Whether the consideration be prior to the making of the note, or arise afterwards upon an assignment, is immaterial; but a consideration there must be; for it is clear from a variety of cases, that a note made without consideration, and transferred by an assignment merely gratuitous, cannot be enforced by such assignee, either against the maker or the indorser. It is but a promise in writing, and cannot create a liability if the wmnt of consideration appear. Yet what is the rule as to the burden of proof? Was it ever said that a plaintiff should be nonsuited for not producing evidence of the consideration? 'The law7 and uniform practice is to the contrary. Proof of the bill, the note or the indorsement, is sufficient proof of consideration to entitle the plaintiff to recover. (1 *Schv.*JV*. *T.*241.294. *Chitty on Bills, part*J. *eh. 3. p.*62.)

2. The defendant is personally liable upon the note, and the fact that he ceased to be the agent of the party for whom he contracted, cannot affect .our right, or discharge him from bis engagement.

If one covenant for another, and execute the deed in liis own name, he is personally liable. *Appleton v. Binks,*(5 *East*148.) So where the promise was *“*we as solicitors of A. B. &c. undertake,” &c. *Burrell*v. *Jones et. al.*(3 *Barn. Sf Aid.*47.) So whore the note was in these words, << we, as executors of the late T. T. jointly and severally promise to pay.” *Childs*v. *Monins,*(2 *Brod.*Bing, 460.) Contracts by agents and servants of government are exceptions. (1 T. *R.*172. 674. and 4 *Mass. li. 595.y*

As to the declaration. The first count alleges the collection, and that is enough. It is immaterial by whom the, collection was made: tlie promise is to pay when the bond should be collected. As to the second count, a collection by *J. W. Graves*is of course sufficient, if the liability arise upon a collection merely, without regard to the person making it. The third count alleges, "that the collection *110Was prevented by the wilful act of *J. W.*6?. That is suf-picjen^.. (jefendant has contracted for him, and he is not to be considered a stranger as to this contract, at least by the defendant.

But if any of these counts should be bad, the Court will allow us to enter up the verdict upon the counts for money had and for money lent. The note is evidence upon those counts,'and they are good; and it appears from the case that no evidence was given but the note. If this cannot be done, the Court will permit us to amend by striking out the defective counts', in order to avoid a technical objection, and to attain the justice of the case. The objection does not concern the merits; the case was not brought here upon any such objection; and if the law is with us upon the questions presented by the “ case,” wo hope we shall not now be prejudiced by the defects of the declaration, when there are* counts which the evidence will support, on which we can have judgment.

Henderson, Judge,

delivered the opinion of the Court as follows:

It is objpcted by the defendant, that the writ is in debt, and the declaration is in case or assumpsit.

The plaintiff answers, that this objection does not appear, *oyer*not being craved of the writ; and it is likened to the original in England, and English authorities are cited which fully support the answer. But the objection, as it exists here, is not answered; the writ issuing from the same Court is upon record without its being put there upon the prayer of *oyer.*In England, the original issuing from a different Court, (the Court of Chancery,) can only get on the records of another Court, but by obtaining *oyer*of it.

It is next answered by the defendant, that the writ being only process, a variance between it and the declaration is immaterial; that the defendant in Court is bound 'to plead to any declaration; and English authorities are *111cited, which also fully establishes this position. This answer requires some investigation. In England no possible injury can arise to any one by thus disregarding the process, neither the bail to the writ, bail to the action, or the defendant. In this country, both the bail and the defendant may be materially injured by it. In England, the bail to the writ are discharged by the defendant’s appearance, the condition of the bail bond is fulfilled. The bail to the action cannot be injured, because they contract their obligation after appearance, and this obligation is evidenced by what is called the bail fbrm, in which the particular action is specified in which they are bail, and they can be made answerable in no other. The party cannot be injured, because no steps can betaken against him until he appears in Court, not even to declare against him; and if lie is surprised by the charge, he is entitled to time to plead. The process may, therefore, very properly be considered as *functus ofjiáo,*and be disregarded. But in this state the bail to the writ are also bail to the action; and if the process may be disregarded, they may be charged with a judgment in a different action from the one in which they became bail. But it is said, if the action is varied, the bail are discharged. Not so, I answer, if it is a matter of course to disregard the process; it is only by i'egarding it that such consequence follows, but above all, the heaviest consequences may fall on the defendant. In England, a default is for withdrawing after-having been in Court; no steps can be taken by the plaintiff until he has got the defendant in Court; if after having been in Court he withdraws, it is an admission of the facts alleged against him. By the construction put upon our Court law of 1777, a default may as well be before appearance as after; and we are daily in the habit of taking judgments by default against a person who has not: appeared in Court, some of them final, some interlocutory. If it were a matter of course to disregard the process, and that a declaration might.be filed for any other *112cause of action, a defendant, who might have been arrested for some paltry sum which he disregarded, and therefore did not appear to defend it, either because it was due or for any other cause, might have a final judgment entered against him by default for half or the whole of his estate,* or he might be sued for one thing which he admitted himself culpable in, and charged in another which he would have denied. And it is no answer to say, that the same law requires a copy ot' the declaration to be served on the defendant three or five days before Court; this omission must be shown by *plea*of the defendant; and if he makes default, he is not there to plead. The Court will only see that the original declaration is filed in Court within the prescribed time. These inconveniences would result from adopting the English practice; which is admitted to be proper there, but combined with our other rules of practice would be ruinous here. Nor is it any reason why they should be adopted here, that upon application to a Judge a *supersedeas*might be obtained; it might, but it is best to prevent the mischief. A man might have his property sold, or his person imprisoned, before he could have an opportunity to redress himself. I, therefore, think that the variance is fatal. But as this is a new case, and the Court below may allow of an amendment upon equitable terms, and there are good grounds for granting a new trial, the Court will not arrest the judgment, but leave it to the discretion of the Court below to allow an amendment, if it should think proper.

The next objection is to the declaration. The counts upon the note are bad. This is not a note within the statute of *Ann,*or our act of 1762. Were it so, it might be declared on, for these statutes make notes which came within them evidence of a debt, and not barely evidence of a promise, as such notes were before the statute. But this note being payable only on a contingency, and not absolutely, is unaffected by the statute. A note for mo*113ney before the statute, was evidence of so much money lent, or had and received; it was given in evidence on counts like these, and the Courts instructed the jury that they were well warranted in drawing such conclusions; for, from the nature of man, it was not presumable that he would give this deliberate evidence of his promise, without he had in his hands so much money belonging to the payee. But this was only presumption of fact; the law raised no such presumption, until the statute raised it. This note being a conditional promise to pay, on a contingency .which might never happen, no such presumption can arise; it does not afford evidence that the plaintiff had lent the sum expressed in the note, or that the defendant had received such a sumJbr the use of the plaintiff; for if such had been the case, the plaintiff would not have accepted a note payable only on a contingency in satisfaction thereof. But if it is said, that at least it i» evidence of some sum having been received, or some sum lent, it may be asked how much? Such a sum as would make the bet equal, whether *Daniel’s*note would ever be collected? We have no means of ascertaining how much this would be. Besides, this would be a species of gambling; to make the most of it, it would be left to mere conjecture what the consideration was; it might be good and it might be bad. There can be no harm in compelling the plaintiff to set out in his declaration, what the consideration was. I am satisfied that the one stated in the declaration is not the true one, to wit, for so much money had and received by the defendant to the use of the plaintiff, or so much money lent by the plaintiff to the defendant, and that the Judge ought to have so instructed the jury. If the real consideration had been stated, and the money on *Daniel’s*bond collected either in fact or in law, the Court could have passed on the contract, and given the plaintiff a judgment, if in law he was entitled to one, if not, a judgment for the defendant. As it is, it is all conjecture. For this omission of the Judge on sub*114mitting an issue to the jury without any evidence to support it, I think that a new trial should be granted.

I do not intend to be understood as conveying an idea that only such notes as are within the statute can be.offered in evidence in support of the money counts, for the statute has no operation upon this question. A note for corn, cotton, or any other article, is certainly *prima fade*evidence of the maker’s having received an adequate value; it is, therefore, evidence of such consideration *pri-ma fade.*But I think these contingent notes, which may never become payable, do not raise such a presumption; in fact, the presumption which it raises is too uncertain. It requires proof of what the consideration was; and if proof must be made, the fact of the consideration must bo stated in the declaration.

I should have thought that the statutes before mentioned had made notes which were within them conclusive evidence of a debt; for they declare, that when any person shall make any note for the payment of money payable to any other person, the money expressed to be payable therein, shall be considered to be due and payable to the person to whom the note is payable; thus making the note evidence of a debt by a conclusion of law, and therefore, by the proof of the note, the debt is proved, and that the want of a consideration could be no defence, for a consideration is not required by the statute to make the note evidence of the debt; that notes within the statute by its operation stood upon the same grounds in this-particular as specialties, which were good without a consideration; for I think that Mr. *Black stone*is wrong when he says, that a bond, from the solemnity of the sealing, carries with it an evidence of a good consideration; a voluntary bond is obligatory at law, and equity will not foT that cause alone interfere, even if the want of a consideration appears upon its face, it is in the nature of an executed contract. The symbolical delivery of the obligor’s seal, having the effect of executing the original contract, *115and when an action is brought upon it, is not to enforce the original contract, which being executory would require a consideration, but to convert the symbolical perform anee into an actual one, as it were to compel the ob-ligor to redeem the symbol. If a gift of a chattel is made and there is no delivery, such gift cannot be enforced for want of a consideration; the contract is voluntary and repuires a consideration to support it; but if a delivery is made, the property passes without a consideration, it is then an executed contract, and the want of a consideration is immaterial. I mean to say, that a bond may be declared on without stating a consideration, and the defendant shall not impeach it by proof of the want of a consideration. A note within the statute has the same effect as a bond; it is evidence of debt, and is good without a consideration. To permit the defendant to impeach it for want of one, is, I think, in the teeth of the statute. But those who came immediately after the statute, said the statute affected no charge in them between the parties, and confined its operation to cases after assignment, so far as regarded a consideration; and I believe it is now the settled course of practice to permit the maker of a note, as well when the note is within, as when it is without the statute, to impeach it for want of a consideration, in a suit with his payee, confining the operation of the statute to cases where there is an endorsement for value. Let a new trial be granted.

Judgment reversed;