
    W. R. H. Treadway, vs. I. D. Nicks and I. A. Johnson.
    Where the defendant drew an order on another person in favor of the plaintiff, tliejplaintiff must allege and prove in a suit against the drawer that he presented the order, and that it was not accepted, or that it was accepted and not paid, and that the defendant had notice of the non acceptance or non payment. Merely stating that such third person, “ although often requested to pay to the plaintiff, had hitherto wholly neglected and re* fused,” is not a sufficient allegation.
    9b, where an order stated no consideration, the plaintiff cannot recover on a count stating it to have been giver, for “ value therein acknowledged:’
    
    
      Sil declaring on contracts not under seal, which do not contafn wíthífi themselves the acknowledgement of a consideration, or from which a Consideration is not implied by law, it is incumbent on plaintiff to set out and prove a consideration.
    Tried at Charleston, before Mr. Justice Bay.
    This was an action of assumpsit, brought on the following order;
    
      Charleston, June 13th, 1822.
    Me. P. Caer
    Please to pay Mr. W. R. Treadway out of the second quarter of the rent which may be due to the administrator of the estate of Richard Fair, fifty-five dollars; and fifty-six dollars out of the third quarter’s rent as aforesaid, and this order complied with confers- a favos1 fully acknowledged by
    Your most obedient servant,
    
      J. D. JYicks, Admir. & Guar-Accepted, dian to the estate of Rd. Fair, dea,
    
    June 22d, 1822. J. A. Johnson, Guardian to ¡[Signed] R. Carr. the children R. Fair4
    The defendants Attorney moved for a non-suit on the following grounds, viz:
    1st. That the second count in the declaration contained no averment of a presentment for an acceptance, or of an acceptance.
    2nd. That the third contained the words “ value received” which were not supported by the instrument itself.
    3rd. That the order not being within the statute, and no consideration being stated or proved, could not be given in evidence under the money counts.
    The motion was refused. The defendants counsel then offered to prove the real nature of the transaction. This also was overruled by the presiding judge, and he directed the jury to find a verdict for the plaintiff with interest. In addition to the above grounds of nonsuit the defendant offered the following for a new trial.
    
      1st. That the plaintiff was guilty of laches in not giving notice earlier to defendant Johnson.
    2nd. That the promise oí Johnson was void under the statute of frauds, there being no consideration stated or proved.
    3rd. That the presiding judge refused to hear evidence on the part of the defendants to prove want of consideration.
    
      M‘Creadi/, for the motion.
    No evidence has been given as to the first count. No consideration proved under the 2nd and 3rd. It is admitted not to be a bill of exchange. {'10 John. Rep. 418. 2 MiCord 218.)
    
    
      Clarke, contra,
    cited Kyd on Bills, 197. Bull JY. P, 137. 2 Phillips Ev. 40, 41. Bill may be given in evidence to support money counts. (Chitty on Bills 467. Last Ed.) It was an admission, at least, of a debt, and suppose witness to have proved an acknowledgement of defendant that he -owed so much, it would support the money counts; and why not this? (Chitty on Bills 471. 1 Henry Blacky Rep. 601.) The bill was not declared on; it was only offered in evidence? The case in 10 Johnsons Reports does not apply. Here was no subsequent acknowledgement and promise to pay. (2 John. Rep. 240.) Bills and notes are evidence. (Chitty 87. 3 Caines’ Rep. 286.J Subsequent acknowledgement is a proof of consideration. (1 Chitty Plead. 343, in Mar* gm, 254.) Admitted to prove account stated, &c. (1 Es~ pinasse’s Rep. 496. 13 East 249.)
    
    
      Boylston, in reply.
    There was no evidence of subsequent acknowledgement. As to the laches in not presenting and giving notice of non payment, he cited 5 Mass. Rep. 299..
   Johnson, J.

The declaration in this case, in addition to the usual money counts and a count on an account stated, contained two special counts, being the counts referred to in the 1st and 2nd grounds of the motion. The first of these charges that the defendant, “ being then and there indebted So the said plaintiff, iq another sum of one hundred apdt «leven dollars, in consideration thereof, then and there gave an order in writing,” Sic. After setting out the order drawn by defendants on Carr, concludes by avering, “ that the said R. Carr, although often requested to pay to the said plaintiff the aforesaid fifty-four dollars, 8ic. and fifty-six dollars, has hitherto altogether neglected and refused, whereby, Sic.” without alleging that the order had been accepted and not paid, or that he had not accepted, or that the defendant had notice.

The other count, referred to in the second ground, as a part of the description of the order, uses the words “ value therein acknowledged” Sic. It is a well settled rule, if the plaintiff declares on a special contract, he cannot give a different special contract in evidence on the money counts, because itis calculated to surprize the defendant. The plaintiff was not, therefore, entitled to recover on the money counts, nor on the account stated; for there was no evidence to support them: so that the case must turn upon the sufficiency or insufficiency of the special counts. In reference to the first ground, the rule is, that it is incumbent on the plaintiffs to state such a case on their record as will clearly show the defendant’s liability. Now to charge the defendant, it was indispensably necessary that the order should have been presented to Carr, and that he should have refused to have accepted or had accepted and not paid; and the defendants should have had notice of the non-acceptance or non-payment by Carr; and this count contains no such averments. The case of Saxton et. al. vs. Hutchinson, 10 Johnson R. 418. (see also 2 Cord 218, is conclusive as to the second ground. It is there laid, down that a note in which the words “ value received” were not inserted did not support a count in which, as apart of the description of it, those words were inserted; and the variance was held fatal. In declaring on contracts not under seal, which do not contain within themselves the acknowledgement of a consideration, or from which a com sideration is not implied-by law, itis incumbenton the plain-*Jiff to set out and prove a consideration. But the application of it to this case is not deemed neeessary, as the case must go off on the other grounds.

The motion for a nonsuit is granted

Boylston for the motion.

¿Qfarke, contra,  