I promise to pay John Stamps, for John W. Graves, the sum of $286.32 out of a bond, when it shall be collected, on James Daniel for the sum of $452, due 1 March, 1820.
30 December, 1819. A. GRAVES.
The declaration was as follows:
John Stamps complains of Azariah Graves, in custody, etc., for that whereas the said Azariah Graves heretofore, towit, on 30 December, 1819, towit, 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 $286.32 out of a bond, when it should be collected, on James Daniel, for the sum of $452, due 1 November, 1820; and the said John Stamps in fact saith that afterwards, towit, on, etc., at, etc., the said money wascollected on the bond aforesaid of the said James Daniel; by means whereof the said Azariah Graves became liable to pay, etc., and being so liable, in consideration thereof, promised, etc.
And whereas, also, afterwards, towit, on, etc., the said Azariah Graves at, etc., for value received, made his certain promissory note, bearing date, etc., and thereby then and there promised to pay to the said John Stamps, for John W. Graves, the further sum of, etc., out of a bond, when it should be collected, on James Daniel for the sum of, etc., and the said John Stamps in fact saith that afterwards, towit, on, etc., at, etc., the aforesaid bond on James Daniel was collected by the said John W. Graves, by means whereof the said Azariah Graves became liable to pay, etc., and being so liable, in consideration thereof, promised, etc.
And whereas, also, afterwards, towit, on, etc., the said Azariah Graves at, etc., for value received, made his certain promissory note, bearing date, etc., and thereby then and there promised to pay to the said John Stamps, for John W. Graves, the further sum of, etc., out (104) of a bond, when it should be collected, on James Daniel for the *Page 47 sum of, etc.; and the said John Stamps in fact saith that afterwards, towit, on, etc., at, etc., the aforesaid bond on James Daniel might have been collected, and that the collection of the said bond was prevented and defeated by the willful act of the said John W. Graves; by means whereof the said Azariah Graves then and there became liable to pay, etc., and being so liable, in consideration thereof, promised, etc.
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 Paxton, J., the plaintiff proved the execution of the instrument; that John W. Graves 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 costs, $236 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 be discharged from all further 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 John W. Graves, but the court rejected the testimony; defendant contended, also, that it was incumbent on the plaintiff to show a consideration for the instrument, but (105) the court held otherwise.
It was admitted that at the time Dixon and the Wilsons 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 the defendant.
The jury, under the 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. It is objected by the defendant that the writ is in debt, and the declaration is in case or assumpsit. *Page 48
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 ofoyer. In England the original issuing from a different court (the court of chancery) can only get on the records of another court but by obtainingoyer 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 (111) authorities are cited which also fully establish 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, nor 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 form, 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 be taken against him until he appears in court, not even to declare against him; and if he is surprised by the charge, he is entitled to time to plead. The process may, therefore, very properly be considered as functus officio, 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 regarding 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 (112) process, and that a declaration might be filed for any other cause of action, a defendant, who might have been arrested for some paltry sum which he disregarded, and therefore did not appear to defend it, *Page 49 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 of 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 Anne, or our act of 1762. Were it so, it might be declared on, for these statutes make notes which come 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 money before the statute was evidence (113) 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 having 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 sum for 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 is 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 *Page 50 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, towit, 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 submitting an issue to the jury (114) 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 facie evidence of the maker's having received an adequate value; it is, therefore, evidence of such consideration prima facie. 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 be 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 defense, 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. Blackstone 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 for 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, when an action *Page 51 is brought upon it, it is not to enforce the original contract, which, (115) being executory, would require a consideration, but to convert the symbolical performance into an actual one, as it were, to compel the obligor 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 requires 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 effected no change 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 indorsement for value.
PER CURIAM. New trial.
Approved as to first point: Glisson v. Herring, 13 N.C. 159.
Overruled as to second point: West v. Rutledge, 15 N.C. 39, 40, 41.
Cited: Hamilton v. Wright, post, 287.
(116)