Is the word “ promise ” in the English statute ? •The words used in the Act of Assembly are, “ promise or agreement.”
Mr. E. J. Lee. There must be a good and valuable consideration moving from the plaintiff to the defendant. There must be a *505benefit to the defendant, or the plaintiff must have parted with some right or property on the credit of the defendant. 2 Bl. Com. 445 ; 1 Fonb. 331, 332; Rann v. Hughes, 7 T. R. 350.
Evidence was offered by the plaintiff to prove that upon bargaining with Henderson & Company for his tobacco, they offered him their note, payable to himself, without an indorser; that he refused to accept it; when they brought the note again with the defendant’s name indorsed upon it.
The Court instructed the jury, that if they should be satisfied by the evidence that the note was indorsed by the defendant under the circumstances stated, and for the purpose of giving a credit to Henderson & Company, and to induce the plaintiff to sell his tobacco to Henderson & Company, the defendant is liable to the plaintiff upon such indorsement; but that it was necessary for the plaintiff to prove that the payment of the note was demanded from Henderson & Company, when due, and that reasonable notice of the non-payment was given to the defendant.
Mr. E. J. Lee then prayed, but the Court refused to instruct the jury that if, when the note became due, viz., 18th January, 1804, Henderson & Company had property sufficient to pay this note, and did pay debts to the amount of $14,375.95, and continued to pay their debts until the month of March, 1804, the plaintiff cannot sustain this action.
Bill of exceptions taken by the defendant.
On prayer of Mr. Lee, the Court instructed the jury that if they should be satisfied by the evidence that the note would have been paid by Henderson & Company, if it had been regularly demanded, and that it was not so demanded, they ought to find for the defendant.
The jury could not agree. But there was a verdict for the plaintiff at November term, 1808, on the three first counts, and for the defendant on the fourth count, and the defendant moved in arrest of judgment. See post.