
    Abraham Stone, plaintiff in error, v. Michael Furry.
    THIS case was argued, at July term, 1793, by Serjeant and Todd, for the plaintiff, and by Ingerfoll and Tilghman, for the defendant in error.
    The opinion of the court, delivered by the president, on the 17th of July, 1793, comprehended a state of the case and affirmed the judgment.
   Chew, President.

An action on the case, brought in the court of Common Pleas of Berks county, by Michael Furry against Abraham Stone, was removed by habeas corpus, into the Supreme court, of April term, 1784. The declaration had three counts.

1. The first count was special, and stated, That, whereas Furry and one Minich, on 21st February, 1775, had purchased a plantation from one Swan, and, in part payment, had given ten bonds, each in the penalty of tool, and, for the payment of 50l. in successive years, at and from 1st May, 1780 ; and whereas, on 10th February, 1777, in consideration that Michael Furry, at the request of Abraham Stone, had sold the said plantation to Abraham Stone, and taken, in part payment, ten bonds on Abraham Slone, and Peter Stone, in the same penalties, and conditioned for the same payments, at the same times, as specified in the bonds of Furry and Minich to Swan, the said Abraham Stone had assumed to the said Michael Furry, that he would pay the bonds of Furry and Minich to Swan, and deliver them up to Furry at his house in Tulpohaken ; and whereas, on 10th February, 1780, the money being; unpaid, Abraham Stone, in consideration, that Tarry would receive of him the sum of 500l. in continental bills of credit, then Current, in discharge of his and Peter Stone’s bonds, promised to pay to Furry all such damages and loss, as he should sustain, by accepting the continental bills, in lieu of delivering up to Furry the bonds given by Furry and Minich to Swan ; thereupon, Furry, trusting to this promise made by Abraham Stone, afterwards, on the same day received the continental bills in discharge of the obligations of Abraham Stone and Peter Stone, and in lieu of the obligations of Furry and Minich, which Abraham Stone had agreed to deliver up to Furry; and that afterwards, on the same day, Furry thereby sustained damage 400l. whereof Abraham Stone had notice.

2. The second count is on a general indebitatus assumsit, for 400l. had and received by Abraham Stone, for the use of Michael Furry.

3. The third count is on a general indebitatus assumsit, for 400l. laid out and expended, by Abrabam Stone, for the use of Michael Furry.

General damages are laid 500l.

This case was tried at Nisi Prius, 31st May, 1792, when a verdict was given for the plaintiff for 678l, 13s. 2d damages, and 6d. costs. Judgment nisi was entered on this verdict, on the 1st day of September term, 1792 And, in the same term, on. 14th September, 1792, a writ of error, regularly taken, according to law, out of this court, was presented to the Supreme court, in behalf of. the defendant in the Supreme, court. Afterwards, on motion in behalf of Furry, the plaintiff in the Supreme court, there was a rule made by the Supreme court, that the defendant in that court, who is the plaintiff here, should shew cause, why 178l. 13s. 2d. part of the verdict, being the damages found exceeding the sum laid in the declaration, should not be remitted, Furry, the plaintiff in the Supreme court, paying the costs of the writ of error, and of the rule. On argument of counsel on both sides, this rule was made absolute on 15th September, 1792, in the same term, and judgment rendered for 500l. damages, and expence costs, with 32l. 1s. 11d. costs of increase.

Persival v. Spencer, Yelv. 45. 2 Bac. abr. 4, 5

Tender laws. Acts of Assembly from Jan. 1771 to Jun. 1780. Esp.89. 92.

5 Vin. 175-9. 6 Vin. 44-6. Vin. 348-55 4 Bac. 14. 1 Esp. 134. 5 Com. Dig. 43-4.

Doug. 654.

Doug. 703. 4 Bac. 9.

Error has been assigned, that the jury had assessed damages 638l. 13s. 2d. when Furry had stated in his declaration, that he had suffered damages only to the amount of 500l. The general errors have been assigned, and, in nullo est erratum pleaded.

The counsel for the plaintiff in error have made the following objection.

1. After final judgment, writ of error, and security to prosecute, the Supreme court could not amend its records by entering a remittitur of the surplus damages, and giving judgment only for the sum laid in the declaration: though this might have been done before judgment, and writ of error.

2. The act of Assembly making paper-money a legal tender, render it illegal to bargain for a premium accepting a payment in such currency. No action will lie on a promise founded on an illegal consideration. The law made paper-money equivalent to coin ; and if coin had been paid nothing farther could have been demanded on these bonds. And supporting this action would open a door to a vast flood of law-suits, and countervail the tender laws.

3. This promise is to pay money due on a specialty, and no action of assumsit lies on such promise ; for it will not bar an action on the specialty itself.

4. The declaration has four counts, for that, which appears as the first count, is, in fact two ; and there are only three averments of breach. The breach of this promise is ill laid. Averring generally, that he has suffered damage is bad, without shewing how; for it might have been damnum fine injuria, arising by the default of Furry himself, and no fault in Stone. The promise was to make good the damage; and there is no averment, that this is not done, but only, that stone had notice.-True, this is after verdict; but in an action on a bill of exchange, after verdict, judgment was arrested, because no sufficient cause of action was stated. If this count be bad, the verdict being general on all, no judgment, can be given.

On these points we are of opinion:-

French v.Cornelys, 1 Bla. 453 Pickwood v. Wright. H. Bla. 643. 2 Bac. 5,

1. As to the first objection, the amendment being made during the term in which judgment was entered, there can be no doubt, but the Supreme court had full authority to make it. We think the amendment made on good grounds, necessary for expediting justice, and not to be controverted.

2. The second objection is sufficiently answered, by observing, that none of the debt was due, when the paper money was tendered. Furry was not then bound to accept it, and might, therefore, lawfully annex a condition to his acceptance; and this condition might be a good consideration for an assumsit, especially as it was only the fulfilment of a former promise, inconsideration of which there bonds were accepted as payment. As to opening a door to law suits, few, if any, such express promises were made, or if made, they will now be barred by the statute of limitations; or if honest and valid, like this, they ought to be performed. The bonds alone were not taken in payment of the plantation ; but the bonds and a promise. Payment of the bonds in specie, would not have discharged the promise also : relinquishment of performance of this was a good consideration of another promise.

3. This is not an action for the money due on the bonds, but an action on the promise to indemnify Furry, for accepting the paper money, instead of performance of a former promise, to discharge and deliver up the bonds in the hands of Swan, The bonds and promise might have both been sued on; and a suit on the one sought not to bar a suit on the other. If the one suit ought not to bar the other, the objection, that it will not, has no force.

4. No doubt, this declaration is very inartificial; and were a question on the first count before us, in the way of demurrer, we should have very little hesitation, to declare it bad, and give judgment for the defendant.—But a defendant, who, knowing that a declaration is bad, lies by, and pleads the general issue, takes his chance of a jury trial, and obtaining the advantage of the disclosure of the plaintiff’s testimony, comes forward, on grounds foreign to the merits, and of which he before had and omitted an opportunity of availing himself, and desires another chance with a jury, is surely not to be favoured. The defendant might have demured, or pleaded so as, to bring out good assignment of a breach, and averment of damage. Since he has not done this, we will make every possible construction, to sustain the verdict.

Collins versus Gibbs, 2 Burr. 899.

2 Wils. 261. 3 Wils. 275. Cowp. 826. 1 Wils. 172. 4 Burr. 2020. 2 Str. 1011-2. 1 T.Rep. 145. 1 Mod. 42,43.

In an action on the case on assumsit, the plaintiff’s did not aver performance of a condition precedent; and, therefore, after judgment by default, and writ of enquiry, defendant moved in arrest of judgment. Lord Mansfield, in delivering the resolution of the court, said, that a motion in arrest of judgment by the fault, came before the court exactly as if it had been on demurrer; and, is not like the cases of objections to judgments after verdict. The want of averment cannot be made good in this case ; and the true distinction, as to supplying such defects, is whether the objection be made after, verdict or not.

We say, therefore, that in this declaration, there are but three counts. The first count states a promise, on a complex consideration, and damages arising to the plaintiff, from his confidence in this promise. How these damages arose, ought to have been stated specially; but it is not, Averment of a failure to indemnify ought to have been made; but it is not, But as a verdict, though it will not cure a defect of title appearing in the declaration, will cure a title defectively set out; as a promise, and damage arising out of it to the promise, are here stated ; this lays, though imperfectly, a ground of action; and all necessary circumstances must have been proved at the trial.

As we think, therefore, that the first count, against which only there are objections, is aided by the verdict; the last objection falls to the ground.

Here then is a voluntary promise made by a debtor, in consideration, that a creditor would accept a payment of a debt not then due, in a currency depreciating, in a rapid progression, and, very soon afterwards, entirely extinguished. The damage of the receiver is manifest; for, if the payments had been delayed (and Furry might have delayed them) till the times when they became due ; no paper money could have been tendered, but to the first bond. This damage being stated and proved to have arisen from a binding promise made and broken, and not compensated, a good ground of action is stated on the declaration, and proved at the trial. We, therefore, hold, that the declaration, imperfect as it is, is now aided by the verdict; and we affirm the judgment given by the Supreme court.  