
    JOHN MINOR vs. ISABELLA MICHIE, Adm'x. of David Michie, deceased.
    Where the contract is by deed, it is not necessary to sot forth the consideration upon which it is founded, as the law in that case implies á consideration where none is stated.
    A consideration is also implied upon bills of exchange and promissory notes, but in all other cases, the consideration not being implied must be stated in the declaration.
    A writing in these words, “Due Mr. David Michie nine hundred and ninety-one pounds clean cotton, on demand. Natchez, April 14, 1800. (Signed) John Minor,” is neither a deed, bill of exchange, or promissory note, and in declaring upon it, a consideration must be stated, and the omission to do so, is a fatal defect, not cured by a verdict.
    In all cases, where the contract is to deliver any onerous property, on demand, and no time or place for the delivery is specified in the agreement, a special demand must be alleged and proved.
    This was an action of trespass on the case, instituted in the year 1812, by the defendant in error, in the county court of Adams county, and transferred to the Superior Court of said county, under the act oí January 20, 1814.
    The declaration contained four counts. The first was in substance as follows, viz: “For that whereas the said John, on the fourteenth day of April, in the year of our Lord, one thousand eight hundred, at Natchez, in the county aforesaid, made his certain note or memorandum in writing, subscribed with his own proper hand and name, bearing date, the day and year last aforesaid, and then and there delivered the said note, to the said David, in his lifetime, and thereby acknowledged to be due to the said David Michie, nine hundred and ninety-one pounds of clean ^cotton, on demand. Yet the said John, when thereto requested, by the said David, in his lifetime, to wit: on the day and year last aforesaid, nor at any other time whatever, at the place, in the county aforesaid, did not pay to the said David Michie, the said nine hundred and ninety-one pounds of clean cotton, mentioned in the said note, according to the tenor and effect of the same, by reason whereof the said John, became liable to pay the said David, in his lifetime, so much money as the said cotton, mentioned in the said note was reasonably worth, on the day and .year, at the place in the county aforesaid.” It then avers, that the said cotton was worth four hundred dollars, of which the said John then and there had due notice, “and being so liable, he the said John afterwards, to wit: on the fourteenth day of April, in the year of our Lord, eighteen hundred and six, at the place in the county aforesaid, assumed upon himself, and to the said David, in his lifetime, promised to pay the said sum of money above mentioned, when thereto requested.” The second count was for four hundred dollars money had and received; the third, for four hundred dollars worth of goods, wares and merchandise, sold and delivered; and the fourth, a quantum valebat, for other goods, sold and delivered, averred to be reasonably worth four hundred dollars. The declaration concludes with the nsual assignment of breaches, “that the said several sums of money or any part thereof, the said defendant hath not paid to the said David, in his lifetime, or to the said Isabella, since his death, (although often thereto requested,) to wit: on the day and year last aforesaid, at the county aforesaid, but hath hitherto refused &c. to the damage &e.
    To this declaration the defendant pleaded two several pleas, viz: 1. Payment of the cotton in the note mentioned, on the. first day of January, 1810, upon which an issue was made up. 2. liNon assumpsit infra sex annos.” To this plea the plaintiff replied, that after the cause of action accrued, to wit: on the first day of January, eighteen hundred and six, the . defendant left the Mississippi territory, and went into the territory of Orleans, where he resided until the sixteenth day of December, eighteen hundred and eleven, when he returned into the county of Adams, in the Mississippi territory, and, that the plaintiff thereupon, to wit: on the seventh day of December, 1811, sued out her writ of capias ad respon-dendum, against the defendant &c. and concluded with a verification. The defendant in his rejoinder, denied his removal into the territory of Orleans, and his residence there, until the sixth day of December, eighteen hundred and eleven, and issue was taken upon said rejoinder. At the trial of this cause, upon the issues joined as aforesaid, the plaintiff gave in evidence, a note in writing, of the following tenor, to wit: Due Mr. David Michie'nine hundred and ninety-one pounds clean cotton, on demand. Natchez, 14th April, 1800. (Signed,) John Minor, This was all the evidence offered by the plaintiff, to support the issues on her part." Whereupon the defendant by his counsel moved the court to instruct the jury, that the plaintiff could not recover on said note, unless she proved a demand, or an attempt to demand, of the defendant, the cotton in said note mentioned, before the commencement of the suit. The court refused to give the instruction prayed for, but instructed the jury, that no demand, of the cotton mentioned in said note was necessary to be made or proved, as cotton was the staple of the country. To the opinion of the court in refusing to give the instruction prayed for, and to the instruction as given, the defendant by his counsel, filed his bill of exceptions. The jury as to the first promise and undertaking in the declaration mentioned, found for the plaintiff1, and assessed her damages, by reason of the non-performance of said first promise and undertaking, to thirty-seven dollars and sixty-one cents, besides costs &c. And as to the second promise, and undertaking in the declaration mentioned, they found for the defendant,- not noticing in their verdict the third and fourth promises and undertakings in the declaration alleged, nor the issue upon the plea of payment. Judgment was rendered according to the verdict, against the defendant, to reverse which judgment he sued out this writ of error. The errors assigned were the following, viz:
    1. There is no consideration alleged or stated for the promise, in the first count of the plaintiffis declaration.
    2. The evidence offered and objected to was not sufficient to support a verdict.
    3. The jury were misdirected in the charge given by the court and excepted to.
    4. The jury have not found the issues joined.
    
      5. The judgment ought to have been given for the plaintiff in error, instead of the defendant in error.
    
      Harding for plaintiff in error.
    There is no evidence in this case to support any of the counts in the declaration, except the first. If therefore, the first count be defective, or the evidence be insufficient to support it, the judgment must be reversed. This is an attempt to charge the plaintiff in error, upon his alleged promise, to deliver a eertainquantity of cotton. But it is not stated in the declaration, nor does it appear in proof, that there was any consideration for the promise. If there were no consideration, it was a void undertaking and the law will not lend its aid to enforce the performance. It is “nudum pactum, unde non oritur actio.” It is as necessary that the consideration should be stated in the declaration, as that there should be one; for the plaintiff, must shew every thing which is essential to his right of recovery. Hence in every declaration in indebitatus assumpsit, we state that the defendant was indebted ih a certain sum, for money had and received, work and labor done, goods, wares and merchandise, sold and delivered, &c. and being so indebted, in consideration thereof, promised to pay, &c. No man will contend that a declaration would be good, which merely stated that the defendant being indebted, promised to pay, without shewing how, or for what he was indebted. It is not sufficient to allege that there was a valuable consideration for the undertaking. The particular consideration must be shewn, that the court may judge of its sufficiency. 7 Term Rep. 350; Roberts cn Frauds8,118 in notes; 1 Str. 680; see also 1 Bibb 182; 2Bibb 300, 585; 3 Bibb 76, 85,102.
    In this case, no right of action could accrue, until after a demand of the ■cotton was made. The promise here was to deliver a certain quantity of cotton, on demand. The request being parcel of the contract, ought to have been alleged and proved, with the time and place of making it. If the promise be to pay money on demand, or to deliver property at a certain day and place, the debtor must, at his peril, seek his creditor, wherever in the state he maybe found, and pay him the money; and in the other, be careful to deliver the property, according to the agreement between the parties. But where the undertaking is to deliver goods, or other cumbrous property on demand, and no certain time or place is agreed upon for the delivery, it is the duty of the creditor, before the institution of hjs suit, to seek his debtor and demand payment. Most of the modem decisions require the demand to be made at the debtor’s residence. The.reason of' this distinction in the law, in regard to the obligation to pay money or property, is very obvious. Money is light and easy of transportation, but the onerous nature of goods, and other specific property, makes it very difficult, not to say impossible, for the debtor to carry them about with him. it is therefore reasonable that he should not be subjected to a suit, until the creditor informsjhim, that he. is ready and willing to receive them. The averring a special request or notice, where by law they are necessary, is matter of substance, and may be taken advantage of upon special demurrer,, and is not- aided after v.erdict. In like manner,, the failure to prove a demand, when by law if is necessary, is such a defect in the testimony,.that a verdict cannot be supported on it. The evidence was therefore clearly insufficient to warrant the jury in finding such a verdict as they did, and the court below erred in their instructions to the jury, and in rendering judgment upon the verdict, 5 Com. Dig. 365; 1 Saunders 33; Tay. 149;. 1 Swift 404 ; 2 Do. 155; 1 Tid. 387;. 1 Chit.. 322 ; 5 Term R.,410; 7 Do. 125; Bull.N. f>,151.
    
      Rankin contra.-
    
    It is. admitted that in most cases in indebitatus-assumpsit, it is necessary to allege in the declaration a consideration fertile promise. In assumpsit upon bills of exchange and promissory notes,, a consideration is implied, and is not necessary to he alleged. In, this case, the undertaking, was in writing, formally and deliberately entered into, and it ought not to be presumed to have been made without consideration. The jury have found a verdict for the defendant m error, and after the finding of the jury, the court will presume a consideration, unless the contrary be shewn. Anthon’s Dig. 385; Kirby 402; 1 Tidd 379.
    If the contract be to pay a sum of money founded upon a precedent debt or duly,-on demand, a special request is not necessary to be made or alleged, but the bringing of a suit is a sufficient demand. The request is as much part of the contract, in that case, as the one under consideration. The undertaking here is not collateral, it is direct. It seems to he difficult to assign any good reason, why a demand should be necessary in one case, and not in the other. There is no greater difficulty in tendering goods or specific property, than money. In either- case, the debtor may discharge his obligation by a tender. Where the contract is for the delivery of specific property, and no time or place for the delivery is agreed «pon between the parties, it is the duty of the debtor to enquire of the creditor, when and where he will receive it. This is believed to be the law in England. In Kentucky, the course of decision has probably been different. But in New York and South Carolina, a demand in a case like, this, would not be deemed necessary. 7 John. 462,- 1 Bay 105.
   Per Curiam.

Two questions only have been made by the counsel in the argument of this cause. 1. Whether it be necessary in a declara - tion in assumpsit, to set out the consideration of the undertaking or promise. 2. Whether a suit can be maintained upon a note for the delivery of property on demand, before a demand made. At common law, a valuable consideration is of the very essence of the contract.

Where the contract is by deed, it is not necessary to set forth the consideration upon which it is founded, as the law in that case implies a consideration where none is stated. 7 T. R. 457. A consideration is also; implied upon bills of exchange, and promissory notes; but in all other cases, the consideration not being implied, must be stated in the declara-, tion. 1 Tidd. 379. The writing which constitutes the basis of the first count is neither a deed, nor a bill of exchange, nor a promissory note; a-consideration ought therefore to be stated in the declaration. The omis-, sion to do it is a fatal defect not cured by the finding of the jury. The law has been long settled, that when the contract 'is founded upon a precedent debt or duty, as in the case of a bond, single bill, or for money lent &c. of is for the payment of a collateral sum, on a day certain, or; otherwise than upon request, or the debt or duty arises immediately upon tire performance of the consideration, then it is not necessary to allege- a special request, but scepius requisilus, is sufficient; but, when the con-, tract is to pay a collateral sum, upon request, then the request being parcel, of the contract, and as it were a condition precedent, ought to be specially, alleged, so where the contract is to deliver any onerous property, on. demand, and no time or place for the delivery is specified, in the agreement, a special demand must be alleged. In all cases in which it is necessary to allege a special demand, it is equally necessary, on the trial, to prove-it. la this caso a special demand was necessary; and as it was not proved, the evidence was not sufficient to support the verdict. Upon the fourth assignment of errors, we give no opinion, since upon the first the judgment must be reversed.

Judgment reversed.  