
    Hall v. Smith, Young, and Hyde.
    Argued May 3d, 1811.
    1. Arrest of Judgment — When Errors May Be Piled. — It seems, that a party, to whom a new trial is granted, may, at the next term, without claiming such trial, file errors in arrest of judgment.
    
      2. Assumpsit — Assigned Bond — Declaration — Consideration.  — In assumpsit against the assignor of a bond a consideration for the assignment ought to he set forth in the declaration; and if it he omitted, judgment may he arrested.
    3. Same — Declaration—Sum Left Blank. — A count for money had and received, adjudged good after verdict; although the sum received was left blank. See ante, Darby v. Henderson and Duncan, administrators of Drummond.
    This was an action of. assumpsit, in the late district Court of Fredericksburg’, in behalf of the appellant, against the ap-pellees, who were merchants and partners.
    The declaration contained two counts. The first, being special, charged the defendants with having assigned a bond (the date, penalty, and condition,, particularly set forth) to the plaintiffs; (but without stating any consideration for the assign-, ment;) that suit was brought by the plain-tifE thereupon, and judgment obtained; which judgment was afterwards perpetually enjoined by a decree of the county Court of Spottsylvania, hy reason of equity which attached in taking the said bond; “in consequence whereof, the plaintiff was ever prevented from recovering the said debt from the said obligors; by reason -of all which premises, the said Smith, Young, and Hyde, became liable to pay to the said Elisha Hall, the said sum of 1641. 12s. lid., the condition of said bond, together with interest on the same, and the costs of the said suit; and the said defendants being so indebted, in consideration thereof, undertook and promised that they would pay to the plaintiff the said sum with interest and costs, when they should thereunto be afterwards required.”
    The second was a general count for money had and received, but blanks were left for the sum. The damages were laid at one thousand dollars.
    After a verdict for the plaintiff, on the general issue, the parties, by their attorneys, agreed that this suit should not abate by the death of any party; and a new trial was granted the defendants, on the payment of costs, and on condition that they should produce, at the next trial, the material evidence, or some of it, which was stated in a certain affidavit filed in the cause.
    At the next term the defendants moved in arrest of judgment, 1st. Because it appeared, from the face of the declaration, that the plaintiff, after the bond in the declaration mentioned was assigned to him, did not use due legal diligence in pursuing the original obligors; 2dly. Because it did not appear that there was any, or a sufficient consideration for the promise laid in the declaration; and, 3dly. For that the declaration was otherwise insufficient and erroneous.
    The district Court arrested the judgment; whereupon the plaintiff appealed to this Court.
    Botts, for the appellant.
    The judgment, in October, 1805, was final to every intent and purpose, except that *of a new trial on certain conditions. It stood final, unless the conditions were performed. The Court had no power over it, except upon performance of those conditions. If the judgment was not final, (the time allowed for performance not being limited,) yet the Court could not receive a motion in arrest of judgment at a subsequent term; for certainly that motion was, in itself, a waiver of the conditional right to a new trial; because a party cannot obtain a new trial after moving in arrest of judgment.
    
    But, admitting that the Court might go further back than the judgment in October, 1805, the errors alleged are not sufficient. The assignment being in writing, the plaintiff was not bound to set forth a consideration,  If there was none, the defendant should have made the Objection by plea, or by testimony, on the general issue, 
    
    At all events, however, the count is good after verdict; it being only a good case defectively set forth, and not a defective case, for the evidence of a consideration is set forth, if not the consideration itself.
    
    2. If the first count be defective, the second is sufficient to maintain the action ; and this notwithstanding the blank. The cases of Smith v. Walker, 1 Wash. 135, and Blane v. Sansum, 2 Call, 495, appear to be authorities against me ; but, in those cases, the defects in the declaration were much .greater than in this.
    Williams, for the appellees.
    The motion, ■in arrest of judgment, was properly made, though at the next term after the verdict; for a new trial was granted on certain conditions, to be performed at a future term, and this was enough to prevent the judgment from being entered. It is like the case of the Court’s continuing the cause after verdict found, thereby postponing the entry of the judgment. The party’s not taking the new trial, when he thought the judgment ought to be arrested, was correct.
    2. The declaration shows that due diligence was not used in bringing suit against the •obligors.
    In Mackie’s executor v. Davis,  Judge Carrington says, that whether due diligence has been used is a question of fact, not of law ; but this was a mere obiter dictum, not necessary for the decision of that case, in which the only point actually occurring, was, whether the assignor was liable on the ground of the privity of contract between him and the assignee. I am not precluded, then, from contending, that what constitutes due ■diligence is a question of law ; if it was not, great uncertainty would arise. In Tindal v. Brown, 1 Term Rep. 167, and other modern cases, it is expressly decided that such is the rule.
    If it be a question of law, it plainly appears, from this ^declaration, that the plaintiff had not made out a case of due diligence; and, therefore, a demurrer to the first count might have been sustained on that ground, as well as the other, that no consideration for the assignment is stated.
    3. The assignment’s being in writing does not imply a consideration. Hites, executors of Smith, v. Lewis's executors,  is a case in point to this effect. There is no consideration averred, and it cannot be intended that any was found by the jury. Rushton v. Aspinall, shows that such a defect is not cured by verdict; the very gist of the action being omitted in the declaration.
    4. The general count seems to me to have no ground to support it, being blank throughout. Ifitbegood, no consideration is requisite to the validity of a promise ; for it does not appear whether one penny, or one shilling, or what sum of money is alleged to have been received. There is no case in this Court in which a declaration, completely blank, has been supported.
    Botts, in reply.
    Mr. Williams’s observations concerning the case of Mackie’s execu-tory. Davis, (considering his usual accuracy,) surprises me. In that case Judge Roane observed, “that due diligence was used by the appellees to recover the money from the ■obligor, is admitted by the verdict, and, therefore, this circumstance will be considered as forming a part of the case.” How ■could this have been so, if due diligence was not matter of fact ? Due diligence, in this country, is very different from what is so considered in England. Here, a variety of circumstances always enter into the inquiry. How, when, and where have those circumstances been announced, as matter of law, to the people of this country? The case might have been satisfactorily made out to the jury : it should, therefore, be presumed that it was.
    The consideration of the assignment was not necessary *to be set forth. The uniform course of declaring, in England, is not to state the consideration. Hundreds of instances may be shown of promissory notes not expressing on their face any consideration, and which are declared upon in like manner. The signature of the drawer to the note is considered enough. In Mackie’s executor v. Davis, all the judges said, an assignment does, of itself, import a debt from assignor to assignee.
    The second count is not altogether blank. It charges, that “ the defendants, being indebted to the plaintiff in the sum of --, for so much money before that time received, &c., in consideration thereof, undertook and promised that they would pay to the plaintiff the sum of-, when they should after-wards be required.” It alleges that some money was received, though it does not specify how much. It is clearly, therefore, only a good case defectively set out; for we could not have obtained a verdict without proving to the jury the sum received.
    
      
      Arrest of Judgment — When Errors May Be Filed.— See monographic note on “Judgments” appended to Smith, v. Charlton. 7 Gratt. 425.
    
    
      
      Assumpsit — Declaration—Must Allege Consideration. —The plaintiff in assumpsit cannot recover without setting forth in his declaration, a consideration to support the promise. Beverleys v. Holmes, 4 Munf. 96. citing the principal case as its authority. To the same point, the principal case is cited in Goff v. Miller, 41 W. Va. 685, 24 S. E. Rep. 644. See further, monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
      Written Assignment — Does Not Necessarily Import Consideration. — The assignment of a chose in action, not assignable at common law, does not make the assignor liable without a valuable consideration for the assignment; and the assignment being in writing does not necessarily import that it was for valuable consideration. Hopkins v. Richardson, 9 Gratt. 493, citing the principal case. See further monographic note on “Assignments” appended to, Ragsdale v. Hagy, 9'Gratt. 409. The principal case is also cited in Bank v. Clarke, 4 Leigh 609.
    
    
      
      Note. It appeared, from the declaration, that the bond was assigned to the plaintiff March 17th, 1786; that, on the 14th of December, 1786, he assigned it to a certain John Lewis, who, on the Bth of May, 1787, assigned it to one John Reid; that it was afterwards returned by Reid to Lewis, and by Lewis to the plaintiff, who paid him the full value thereof, and afterwards put it in suit. — Note in Original Edition.
    
    
      
      Note. See Tidd’s Practice, p. 831; 3 Salk. 647; 1 Burr. 334. The case of diaries Smith’s executors against The executors of Fielding Lewis, was an action of assumpsit founded on a writing, signed by the testator of the defendants, but not under seal, in the following words: “I do hereby oblige myself, my heirs, executors, and administrators, to indemnify Mrs. Smith from any demand which Mr. Edward Dorsey, Mr. Hawkins, and Mr. Kirk, may have against the estate of Captain Charles Smith, deceased, for the said Charles Smith’s becoming security for my son, Fielding Lewis, for money due them, and for any other sum, or sums, the said Smith may be bound for my said son: provided the sum does not exceed two hundred pounds. Witness my hand, this 11th of September, 1779.” The declaration contained one count only, setting forth the said writing specially; a bond, in which the testator of the plaintiffs became bound as security for the said Fielding Lewis, the younger, and a judgment thereupon, the amount whereof, with interest, damages, and costs, had been paid by the plaintiffs’ executors as aforesaid: but stating no consideration for the undertaking of Fielding Lewis, the elder, except the aforesaid securityship of the said Charles Smith for Fielding Lewis, the younger. After a verdict for the plaintiffs, for 1811. 3s. damages, judgment was arrested by the district Court, and their judgment affirmed by the Court of appeals; three errors having been assigned by the counsel in the district Court; viz. 1st. That no sufficient consideration for the assumpsit laid in the declaration, was stated; 3d. That upon the face of the declaration, it did not appear that the said Fielding Lewis agreed to indemnify Mrs. Smith, against the bond and judgment in the said declaration mentioned; and, 3d. That the assumpsit laid in the declaration, and the note of Fielding Lewis, sen., was to Mrs. Smith, in her own right, and not as executrix. The second and third objections appear not to have been well founded; the judgment, therefore, was, probably, arrested, on the ground that the consideration for the assumpsit was not sufficient. — Note in Original Edition.
    
    
      
       Lilly’s Ent. 54, Pleader’s Assistant, 23, 24; Kyd on Bills of Exchange, 276.
    
    
      
       Doug. 2, 5, Walker v. Witter; 3 Wash. 230, 231, Mackie’s executor v. Davis; 3 Burr. 1669, 1670,1671, Pillans, &c. v. Van Microp and Hopkins.
    
    
      
       1 Call. 257, Fulgham v. Lightfoot; 2H. Bl. 261, Bolton v. The Bishop of Carlisle.
    
    
      
       Roe v. Crutchfield, 1 H. & M. 361.
    
    
      
       Craghill and others v. Page, 2 H. & M. 446, pi. 4; Stephens v. White, 2 Wash. 303; Digges v. Norris, 3 H. & M. 268.
    
    
      
       2 Wash. 231.
    
    
      
       M'S. Order Book, October 29th, 1804, No. 5, p. 105.
    
    
      
       2 Doug-. 679.
    
    
      
      Note. See Goodall v. Stuart, 2 H. & M. 105-116.
    
    
      
      Note. See Chitty on Bills, p. 8, and 185: also 246-249.
    
   January 27th, 1813, the president pronounced the opinion of the Court; “that the first count in the declaration was faulty, in not having averred a consideration on which the assumpsit was charged ; but that the second count was sufficient to support the action ; and, therefore, the errors filed in arrest of judgment were insufficient.”

Judgment for the appellant.  