
    *James Crawford v. James Daigh.
    Pleading: and Practice —Debt on Note — Need Not Set Out Consideration. -An Action of Debt may be maintained on a Note in writing, for tile payment of money or tobacco, under our Statute, and the Declaration need not set out the consideration for which it was made, nor aver, that it was for value received.
    This was an adjourned Case from the Superior Court of Raw for Mason county.
    
      
      Pleading; and Practice — Debt on Note — Allegation of Consideration.—In Jackson v. Jackson, 10 Leigh 452, it is said in general the plaintiff who brings an action of assumpsit must state the consideration; but in assumpsit on the promissory note it is said that no consideration need be averred and proved, because the act of assembly allows an action of debt to be brought on the note itself, without laying or proving the consideration. Citing Peasley v. Boatwright, 3 Leigh 195; Crawford v. Daigh, 2 Va. Cas. 521. But in the case at bar the question whether assumpsit can be maintained on the promissory note, without averring a consideration on the declaration, was left an open question. But see § 2852. Code 1887.
      In Reynolds v. Hurst, 18 W. Va. 654, it is said at common law upon the death of co-obligor the legal effect of the obligation was an obligation of the survivor alone and in suing on such obligation and in pleading it according to its legal effect, It was unnecessary to alinde to the decedent parties in any part of the declaration or pleadings. Citing Minge v. Field, 2 Wash. 136; Elliott v. Lyell, 3 Call 268; Atwell v. Milton, 4 H. & M. 253; Roane, J., in Atwell v. Towles, 1 Munf. 181; Braxton v. Hilyard, 2 Munf 49; Crawford v. Daigh, 2 Va. Cas. 521; Backus v. Taylor, 6 Munf. 488; Lyons, J., in Macon v. Crump, 1 Call 587; Buster v. Wallace, 4 H. & M. 82.
      Same — Note Payable in Money or Its Equivalent - Debt. — When the obligation Is to pay a sum of money, or some other article, in the alternative, on or before a certain date; or to pay a sum of money, with a privilege to the obligor to pay it in some other article on or before some other day, the obligor has his election to deliver the other article on it or before that day, but if he fails to do so, he is liable absolutely for the money, and an action of debt will lie for its recovery. Butcher v. Carlile, 12 Gratt. 523, citing Crawford v. Daigh, 2 Va. Cas. 521. See also, citing the principal case, Dungan v. Henderlite, 21 Gratt. 151; Minnick v. Williams, 77 Va. 761. But see Beirne v. Dunlap, 8 Leigh 521, See mono-graphic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   BOURDIN, J.,

delivered the opinion of the Court:

This is an action of debt, brought in the County Court, on a note in writing for the payment of sixty-four dollars, in good State Bank paper, payable one day after date, for value received. The declaration states no consideration, nor does it aver that it was for value received, and in describing the note, says nothing of Bank paper. The declaration is demurred to, because no consideration is averred, and the demurrer being over-ruled, the Defendant objected to the note being given in evidence, on the ground of a variance; but the note was allowed to be given in evidence, and judgment rendered for the Plaintiff. A Supersedeas was rewarded by the Superior Court, and at the hearing, the Case was adjourned to this Court on six points; but all of them are included in the questions, whether the demurrer should have been over-ruled, and whether the note should have been received as evidence under the declaration.

The first question is decided by the Act of Assembly, which gives an action of debt on a note in writing for the payment of money or tobacco. The common form of declaring on this Act, as well on that which gives the action of debts on Bills of Exchange, is to state that the paper sued on was made or transferred for value received. But, under this Act, it is not needful to use those words, or others of like import: It sufficeth, if the note be in writing, and for the payment of money or tobacco. And though there be nothing in the Act which gives the note the other qualities of a deed, yet, as it regards the action given, the form of declaring is the same as on a single bill under seal, except that profert need not be made. The plea is different; nil debet is the plea, which calls for proof of the note, and allows ^'evidence to be given by the Defendant that the consideration is bad, or that it is without consideration.

The common averment, that the note was made for valuable consideration, or “for value received,” ought to produce no difficulty here, because there is no case where a consideration is needful to be laid, in which this general allegation is held sufficient.

The action is either founded on the note, or on the contract which caused it to be made. In the latter, debt lay at Common Law, and if it still is needful to state it in the declaration, the Act of Assembly, though it says so in so many words, does not give an action of debt on the note, and has no operation. The demurrer, therefore, was rightly over-ruled. This^decision is not in opposition to those Cases in the Court of Appeals, in which it has been decided, that in Assumpsit, a consideration must be averred and proved.

Whether the note is sufficiently described in the declaration, is more doubtful; but we think that it is. A note for the payment of so much money in a named commodity, on a certain day, is, after the day passed, a note for the payment of money. It is, therefore, here set out according to its legal effect at the time; and we think that State Bank paper was not here mentioned, as contradistinguished from money, but from other paper in circulation, then less valuable than money. In the whole, we are of opinion, that the judgment of the County Court should be affirmed, and that it should be so certified to the Superior Court of Mason.  