delivered the opinion of the court, March 28th 1881.
A simple contract, oral or written, without consideration, is void, and no action can be maintained upon it. The law requires that the consideration should be valuable to support an action to enforce *364an executory contract; but some loss or inconvenience to the promisee upon his entering into the contract, or some benefit to the promisor, is deemed a valuable consideration. Where a benefit is done to a third person, at the request of the promisor, it is sufficient to support his promise. As where a person contemporaneously becomes surety for the debt, or for the performance of a duty, of a third person, he renders himself liable thereupon. The consideration is the favor the surety receives from a compliance with his express or implied request that credit should be given to the principal. But unless the promise be contemporaneous with the original debt and constitute the inducement thereto, it is not binding. A guaranty of a debt already contracted, or of a contract already made, without a new consideration, is void. Where there is a promise to pay the pre-existing debt of another person to his creditor, there must be a new consideration to support it; for the original consideration of the principal’s contract cannot be so extended as to support the new promise. Bills of exchange and promissory notes differ from other simple contracts in this, that in an action on a bill or note a consideration is to be presumed, until the contrary appear by evidence. The defendant may give proof of want of consideration, of failure of consideration, or that the consideration was illegal; and the only difference between a note or bill and any other contract, as between the immediate parties, is, that the burden of proof respecting consideration, in a certain- sense, is shifted. These elementary principles guide to a correct conclusion in the pending case.
The defence is, want of consideration for the note sued upon, and the burden, in the first instance, is on the defendant to rebut the prima facie case the plaintiff made by producing the note. But having given such rebutting testimony, consideration being the only fact in issue, it devolved on the plaintiff to satisfy the jury that it existed. To maintain an action on a simple contract the plaintiff must prove the consideration, and where the contract is a note the note itself is prima facie evidence of a consideration. Where a want of consideration is relied on in defence of an action on a promissory note, and evidence is given on the one side in the affirmative, and on the other side in the negative, the burden of proof is on the plaintiff' to satisfy the jury, upon the whole evidence, of that fact: Delano v. Bartlett et al., 6 Cush. 364. In that case it was said, that it was incumbent on the plaintiff to prove a consideration for the note, which she did by producing it and making a prima facie case. It was competent for the defendants to rebut this evidence, and they offered testimony for that purpose. The evidence on both sides applied to the affirmative or negative of the same issue or proposition of fact, a consideration for the note, and the plaintiff’s case requiring her to establish the fact, the burden of proof was all along on -her to satisfy the jury, *365upon the whole evidence in the case, of the fact of a consideration for the note. Want of consideration was distinguished from failure of consideration, the latter being a distinct proposition the burden would be on the defendant to make it out against the prima facie case of the plaintiff.
It follows that the defendant’s second point, to wit: “ That unless the jury find from the evidence that John Conmey has received a valuable consideration for said note, the plaintiff cannot recover,” should have been affirmed. '
Not only was said point denied, but the jury were instructed that the note itself purports a consideration, and if they found it was given by defendant to Overton to secure part payment of the money which Richard Conmey stole from him, without any threat or promise by Overton to have Richard’s sentence made heavier or lighter, the transaction was lawful, and'the note, if based upon it, was for a sufficient consideration, and the plaintiff may recover. This, we think, w'as grave error. The note does purport consideration, but not conclusively, and if there was evidence on both sides respecting that fact, the jury would weigh the evidence of the note with the other. It was unquestioned that the note was given by defendant to Mr. Overton to secure part payment of the money which Richard Conmey stole from him. And there is not a scintilla of evidence, outside the note, of any consideration for it. And if the jury found the fact just as stated in the answer to the second point, there was no consideration, and the plaintiff was not entitled to recover.
The defendant urges that the principle that a note, given by one person for a pre-existing debt owing by another is void unless there be a new consideration, has no application, because the note in this case was not given for a debt due or to become due, “but to ascertain, fix, determine and settle an unliquidated claim of damages in tort, and the consideration, so far as John Conmey was concerned, was that very fixing, determination, liquidation and settlement.” If given for damages arising from the tort of another person, the reason for requiring an immediate consideration for the note is quite as strong, if not stronger, than if given for a debt already contracted. John Conmey was under no obligation to pay the stolen money — there was no claim against him to be adjusted and settled. He gave his nude promise to pay a certain sum. There is no pretence that the evidence shows a settlement of Overton’s claim against Richard. He was not released. No time was given him. He could have been sued immediately, and Overton would have been entitled to full damages, deducting only the money actually paid by John Conmey.
If one person have been guilty of a wrongful act which would render him liable in damages to another, and he promise to pay the injured person a sum of money as compensation, this is a mere *366gratuitous promise, unless made in consideration of the injured person releasing his right of action for such damages: Smart v. Chell, 7 Dowl. 781. That action was against an attorney who had neglected his client’s cause, which neglect resulted in the' client’s compulsion to pay 14¿. for costs. Motion was made in arrest of judgment on the ground that the declaration failed to show a consideration for the alleged promise, and judgment was arrested. Among other things, the court remarked: “ The declaration goes on to state another promise, that in consideration of' the premises the defendant promised to pay half the amount of those costs, and alleged a breach by non-payment of the 11. Now, no rule is more clear in law than that the consideration for a promise must move from the plaintiff; then I must see what this plaintiff has done or suffered, or what the defendant has gained; the detriment to the plaintiff must be the immediate consideration for the promise alleged. Suppose a.n assault had been committed, and an action of assumpsit was brought for non-payment of a sum agreed to be given for the injury done, and the declaration did not state a release of action for the assault. It is.not, therefore, enough that there be a collateral consideration for the promise, but there must be an immediate consideration.”
Applying that doctrine to this case, it is clear that if the note was given merely to secure part payment of the money which Richard Oonmey stole, the plaintiff is not entitled to recover. If it was based on Richard’s crime, and there was no immediate consideration therefor, it was nudum pactum, as would have been Richard’s promise to pay Overton a sum of money for the injury’ done, without a release by Overton of his right of action for damages.
Judgment reversed, and venire facias de novo awarded.
Mercur, and Sterrett, JJ., dissent, as the facts proved do not justify the application of the law as stated.