I concur in the result of the opinion, as delivered in this case by the Chief Justice ; but for reasons so far different, that they may become ihaterial on a future trial — hence I think it proper to express them.
I regard the note sued on, and which is expressed to- have been given for value received; as prima facie evidence of a legal and sufficient consideration. The additional words, that the value was so received, on account of Alsobrook's son Kindred, I think do not materially vary the case. . Why the consideration was expressed to-be on his account? how the demand was created, and whether it had a previous existence? no intimation was afforded by the note ; - nor did it appear whether the son, Kindred, had ever been legally responsible for the debt, or that it may not have b$en originally contracted by his father, for his use.— Therefore, in the absence of any other proof explanatory of these facts, I consider the effect of the note the same as if nothing had been expressed in it concerning the aocount of another.
The defendant-having impeached the considera-^ tion, it devolved upon him to prove its insufficiency; for this purpose, he introduced the certificate of the *272Southerlands, as stated in the record. Whether by this opposing testimony, the prima facie evidence of consideration "was destroyed — whether the presumption arising on the face of the note, had been paral-ized or overbalanced, was an enquiry within the legitimate province of the jury. I maintain, they should have been instructed to draw their own inferences respecting the facts connected with the consideration, from the evidence mentioned, and any other of a competent character, if offered, and to have governed-their verdict accordingly.
Instead of this course, the court appears to have charged the jury, that the certificate mentioned, proved, that time had been given to the debtor Kindred, and that this forbearance was a sufficient consideration to sustain the action.
In thus assuming the fact, of a consideration, instead of submitting it- to the jury, and in this only, I think the Circuit'court erred.
Taylor, J.On one point in this case, I am compelled by my convictions, to dissent from the opinions of my brethren. It is with regard to the effect of the instrument, set out in the first plea of the defendant below.
That instrument was executed by the original plaintiffs to the original defendant, and is in the following words: “This is to certify, we have received two notes of William 'Alsobrook, on account of his sou Kindred, for two hundred and forty-nine dollars and eighty-two cents — one payable first of March next, for one half, and the other payable first of March eighteen hundred and twenty-eight-, for the other *273half. Now, it is understood that said William Al-sobrodk agrees to pay for his son Kindred, at the rates of one hundred and fifty dollars per year from the first of March last, to his creditors, until his just debts are paid, and should the payments above be more 'than our proportion, then and in that case, we are to receive our proportion, and give proportionate time for the balance. Given under our hands, this 18th day of August, 1826. Signed, G. and J. Sou-therland.”
This instrument appears to have been the. evidence, and the only evidence, introduced by the defendant ; the one sued on was all that was offered by the plaintiffs. On this testimony the defendant’s counsel moved the court to instruct the jury, “ that if they believed from the evidence that such was the grounds and only consideration for the bond sued on, that then they should, under th’e law, find for the defendant. But the court charged, that from said paper or written testimony, it appeared that time was given to the debtor Kindred, which was a sufficient consideration to support the 'bond sued on in this case.”
Our statute,a declares, “that whensoever any suit depending in any of the courts of this state, founded on any writing, under the seal of the person to be charged therewith, it shall and may be lawful for the defendant or defendants therein, by a special plea, to impeach, or go into the consideration of such bond.”
Under this statute, the defendant is, by our decisions, permitted to plead that a sealed instrument, the foundation of the action, was given without consideration ; and this plea was filed in this case.
*274It is contended, that the instrument set out in the plea, shows that there was no consideration for the bond sued on; that the original plaintiffs retained the right to pursue their debtor Kindred, at any moment, and that they relinquished nothing when the bond of the defendant was given. But if this was not the case, the charge was too broad, as it deprived the jury of the right of judging of the weight of the testimony.
My own opinion is, that the instrument introduced by the defendant, was not intended to evidence the inducement to the defendant to become bound for his son’s debts ; that it was only taken to prevent his being required to pay more than one hundred and fifty dollars a year to all the creditors of his son, and to secure him against a demand, by the plaintiffs, of a greater amount than their proportion of that sum : the consideration of his agreement to pay might have been, and probably was, altogether distinct from that writing.
The introduction of the writing, then, could not affect the case: the bond, to the plaintiffs, afforded evidence of a consideration until it was rebutted, by proof that it was a nudum pactum; no such proof was offered, and a verdict against the defendant for its amount, was the necessary consequence. No injury was sustained by the defendant in consequence of the charge, and if the Judge’s construction of the instrument were -wrong, it could not have varied the result, if it had been different.
The objection, that the court invaded the rights of the jury in the instructions which were given,,can not be sustained for a moment. There was no evidence before the jury but written, and that of a kind, *275the construction of which is matter of pure law. In all cases where the meaning and intention of the parties is to be collected from the instrument itself, it is a matter of pure law.a Here the meaning and intention was to be collected from the instruments, both the one sued on, and the one pleaded. No testimony tending to contradict or vary the agreements expressed in them could have been received. So far as they spoke at all, they spoke conclusively for themselves. It is true, inferences of law, arising from them might, have been rebutted, as that there was a consideration, &c. but this does not conflict with the principle.
I think the judgment should be affirmed.
Toul. Dig 462.
1 Starkie, 429.