
    
      The Adm’rs of D. Belk vs. the Ex’rs of A. Perry.
    
    Defendant’s testator gave to plaintiff’s intestate a single* bill, the consideration of which was a bond to make titles to a lot of land. The land did not belong to the intestate, and before the bill was due it became out of his power to make titles thereto. All this was known to the testator, and yet, after the bill was due he made two payments thereon. Held, in an action on the bill, in which the bond was pleaded as a discount, that the plaintiffs were not entitled to recover.
    Where the consideration ofa specialty has failed, and by the agreement of the parties, a new consideration is substituted, such agreement should be clearly proved; and payments on the specialty, after the consideration has failed, will not, unexplained, be evidence of such agreement.
    
      Before Butler, J. at Lancaster, Spring Term, 1844.
    This was an action of debt on a single bill, dated in April, 1826, and payable in January, 1827. The consideration of the bill was the purchase of a lot of land in the village of Lancaster. Belk, the intestate, had no title to the land when he sold it to Perry, but gave him a bond, bearing the same date with the note, and conditioned to make titles to the land in the January succeeding. It was proved that the lot of land was re-sold, and title vested in another person, so that Belk never could make titles to his vendee. All this must have been known to both parties to this contract, as they were intimate friends and lived in the same village. Notwithstanding this, however, payments were made on the note by Perry, in his life time, which were indorsed by his clerk, S. Beckham, Esq. Mr. Beckham, who was sworn, said he could not recollect any of the circumstances under which these credits were made; but was confident they must have been made by the consent of defendant’s testator. From this, it was contended, in argument, that although the original consideration of the note had failed, still it was retained and used by the parties on 'another consideration. The presiding Judge was inclined to the opinion that the consideration of the note having failed altogether, and there being no evidence that there was any other consideration to support it, except that which was implied by the seal, the defendant should have a verdict. He said, however, that the jury were at liberty to take their own view of the matter, and they found a verdict for the plaintiffs.
    The defendants appealed, on the following grounds:
    1. Because it was clearly proved that the consideration of the note sued on was a lot of land to which plaintiff’s intestate never had a title, and of which defendant’s testator never had possession.
    2. Because defendants were entitled to a discount on the bond given for titles.
    3. Because the verdict was against the charge of the Judge, and clearly against the evidence.
    Hanna, for the motion,
    cited Riley’s Law Cases, 243. 1 Tread. 360. 1 McC. 93.
    Wright, contra,
    cited 3 McC. 340. 2 McC. 452.
   Curia, per

Frost, J.

The obligation, the subject of this suit, is dated in April, 1826, and payable the 1st of January, 1827. The intestate’s bond is dated the same day, and conditioned to make titles before the first of January succeeding. The failure of consideration of the obligation is clearly proved. To entitle the plaintiffs to recover, it'is necessary for them to prove an agreement by which a new consideration was substituted instead of the land contracted for, which was the original consideration. Such an agreement necessarily implies a rescission of the contract for the purchase of the land. No proof whatever was offered of any new agreement between the parties. If such an agreement had been made, it was very obvious and proper that the securities which the parties held should have been mutually surrendered, at least that the bond of the intestate should have been cancelled. The possession, by the parties, of the securities of the original contract^ raises a presumption against any new agreement. That they were retained by each and never demanded or enforced for many years, during their life time, may countenance the belief that the contract was rescinded by common and tacit consent. In such case the surrender of the securities was not material, since they afforded to each a security against any ■claim from the other. The only circumstance relied on. by the plaintiff, to sustain the conjecture of a new agreement is, that the defendant’s testator made a payment of fifty dollars on the fifth of February, 1827, and of eight dollars in April following. The witness, by whom these payments were made, had. forgotten all the circumstances except the receipt on the obligation, which he wrote. The payment •on the note more obviously implies the continuance of the old contract, than the existence of an agreement which had vacated it. The payments may have been made through ignorance that the land had been sold, and that the intestate could not make titles for it. The testator’s bond is claimed in discount; that can be discharged only by proof ■of a release or of satisfaction. No proof whatever has been produced on this subject, except the payments before mentioned. When parties have evidenced a contract by specialties, and a failure of consideration has been clearly established, the proof of any new agreement, by which the original bargain was rescinded and another adopted in substitution of it, should be as clear and satisfactory, at least, as of an original undertaking, and not left for support on very slight presumptions, if not mere conjecture. Such is the character of the proof to sustain the plaintiff’s action, and a new trial is therefore granted.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.

Richardson, J. dissenting.

I' am of opinion that the recovery on the note was legal. Independent of the payment on the note made by Perry, with a knowledge that Belk had no title to the lot, it is evident that the bond for titles was the true consideration for Perry’s note. The note and the bond stood as independent covenants. They were reciprocal considerations, the bond for the note and the note for the bond. Each party had, by the contract, his independent right of action. Under this view of the case, we see why Perry still made payments upon his note ; and why Belk made no titles. It was no part of his contract that he should; at least, at law. He simply laid himself under a penalty, in case he failed to do a certain named act, the consideration of which penalty was his receiving Perry’s note. A chose in action was given for a chose in action. Men may in this way exchange their own liabilities as well as exchange their outstanding demands, as bonds, notes or other debts; checks on banks and notes are often exchanged the one for the other. The credit system requires all these, and you may do the same by a bond with a penalty, or a note. The jury saw the true consideration, because they probably knew the fact, and carried out the true intent of the contract for exchanging liabilities.  