
    Willis Wiggins v. Joseph Vaught.
    “Promise to pay as soon as I am in possession of funds to do so, from the estate of B.,” is not a promissory note within the statute. (Bfft otherwise, it seems, if the promise had been unconditional, though a particular fund was designated.)
    
    Having be^n declared on as such, exception was properly taken by motion for a non-suit, after general issue pleaded.
    The expense, both of a full trial and of an appeal, having accrued from a nonsuit having been improperly refused below, the Court exercised the discretion of order, ing, instead of a nonsuit, a new trial, with leave to the plaintiff to amend.
    Before Gantt, J., at Conwayboro’, Fall Term, 1839.
    This was an action of assumpsit brought on the following instrument:
    “ Due Willis Wiggins, two hundred and forty-two dollars sixty-fonr cents, which I promise to pay as soon as I am in possession of funds to do so from the estate of Bellune.
    JOS. VAUGHT, Guardian,
    
    for John D. and-Bellune.
    
      December 14, 1837.”
    The declaration contained, besides the usual money counts, a special count, as follows: — “ For that whereas, the said defendant, See., did make his certain note or due bill in writing, commonly called a promissory note, with his own proper handwriting, &c., by which said note or duevbill, the said Joseph Vaught did promise to pay, or cause to be paid unto the said Willis Wiggins, the full and just sum of one hundred and forty-two dollars sixty-four cents, as soon as he was in possession of funds from the estate of Bellune, for value received. And the said time for the payment of the said sum of money mentioned in the said note ha's elapsed; as the said Joseph Vaught has been in funds of the estate of Bellune, or has had sufficient time and means to possess himself thereof.”
    The defendant pleaded the general issue, and, upon the trial, moved for a nonsuit on the ground: 1. That the instrument declared on was not a promissory note within the meaning of the statute; but, 2, was a special contract, the consideration of which should have been set out in the declaration and proved upon the trial.
    The Court refused the motion, and the defendant being proved to have been in possession of funds of the estate of Bellune, the jury found for the plaintiff.
    The defendant appealed, renewing his motion for nonsuit.
    
      
       1 Strob. 44. An.
      
    
   Curia, per O’Neall, J.

The only question necessary to be considered is, whether the note declared on is a promissory note. Chitty on Bills, 54, says that there are two principal qualities essential to the validity of a bill or note — first, that it he payable at all events, not dependent on any contingency, nor payable out of a particular fund — and secondly, that it be payable for money only.

The note in this case is payable “ as soon as I am in possession of funds to do so from the estate of Bellune.” If the maker had never received those funds, he never could have been made liable on the note. It was therefore payable on a contingency. It was to be paid, too, out of the funds of the estate of Bellune. Hill v. Halford, et al., (2 Bos. & Pul. 413,) is exactly parallel to the case before us. Halford and another sued Hill, as the maker of a note, thereby promising to pay them one hundred and ninety pounds on the sale or produce, immediately when sold, of the White Plart Inn, St. Alban’s, Herts, and the goods, &c., value received. The declaration averred a sale of the Inn and goods, before the commencement of the action. After judgment in K. B. by default, writ of inquiry executed and general damages recovered, Hill brought a writ of error in the Exchequer Chamber, and the Court held that this promise could not be declared on as a note, and therefore reversed the judgment. That case, it will be observed, is identical with this in two particulars; that it was dependant for payment on funds hereafter to be obtained, and that the declaration there, as in this case, averred that such funds had been obtained. So, in the case of Carlos v. Fancourt, (5 T. R. 482,) it was held that a note whereby Carlos promised to pay Fancourt’s wife the sum of ten pounds out of his money that should arise from his reversion of forty-three pounds when sold, was held not to be a note within the statute of 3 and 4 Ann, c. 9. That case, like this, was a promise to pay on an uncertain future event and out of a particular fund. Many other cases of a similar kind might be cited, but the authorities are so uniform and clear on the subject, that it would be a waste of time to state them further. The only cases which can be found, where notes payable out of a fund are held to be promissory notes, are where there is an unconditional promise to pay at a certain time, and the fund is designated as the means of payment: then, after the time has elapsed, the promise is absolute and the liability to pay perfect, without- any reference to the fund. As in the cases of McLeod v. Snee, (Str. 762,) and Burchell, admr., v. Slocock, (Ld. Ray’d. 1545.)

It was objected on the part of the plaintiff that the defect in this case was apparent on the face of the record, and ought to have been, taken advantage of by demurrer, and could not now be resorted to. But this is a mistake — defects of form are aided by verdict. This, however, is a defect of substance, both in the declaration and in the proof. If the note be not a promissory note within the statute, then it was necessary in the declaration to declare upon it as a common law instrument. In such a case the consideration must be stated and the agreement consequent thereupon; and the condition precedent to the liability must be averred to have happened. All these matters must be proved as laid. In the declaration before us, the note is stated as the promise, and the happening of the contingency or performance of the condition is averred. But nothing is said in the declaration, nor was there any proof given on the trial, about the consideration. The plaintiff was therefore, neither on his allegation nor proof entitled to recover. (Chitty on Bills, 7, 88, 89.) In addition to these authorities, it is only necessary to refer to the cases of Hill v. Halford, (2 Bos. & Pul. 413,) and Carlos v. Fancourt, (5 T. R. 482,) by which it will be seen that the objection that an instrument declared on as a promissory note which cannot in law be so regarded, may, even after a judgment by default and writ of inquiry executed and damages recovered, be taken advantage of and the judgment reversed. This shows the objection to be one of substance, which cannot be cured by pleading, and hence the party was entitled to move on the trial for a nonsuit, and is here entitled to renew it. It would have been proper on the trial below that the judge should have granted the motion for a nonsuit; but as he overruled it, and the parties have been put to the expense of a full trial, and of a motion in this Court, and as many precedents as Jamieson v. Lindsay, (4 McC. 93,) justify us in refusing here to nonsuit the plaintiff, but to order a new trial and give the plaintiff leave to amend, that course will now be pursued. A new trial is ordered, and the plaintiff has leave to amend his declaration by adding a count as on a common law instrument.

Munro, for the motion;

Harllee, contra.

Richardson", Earle and Butler, JJ. concurred. 
      
       1 Riley’s, C. R. 339. An.
      
     
      
       8 Rich. 446. An.
      
     