
    Bradley vs. M’Clellan.
    The drawing of an order by A. in favor of B, is prima, facie evidence of indebtedness by A to B, and the acceptance of the order by the person on whom it is drawn, is likewise prima facie evidence of indebtedness by him to the drawer.
    A declaration upon such order, averring that it was drawn in consideration of a debt due by the drawer to the plaintiff, and accepted by the defendant, is good, without averring any other consideration.
    This was an action of assumpsit upon the following acceptance:
    “ ‡5,000. Huntsville, Alabama, January 15th, 1826. “ Five months after date, pay to Mr John Bradley, or or- “ der, five thousand dollars, value received, with all bal- “ anees and dues due us now and at the maturity of this “ draft, for value also received, and oblige yours,
    “ JOHN & JOS. ESTELL.
    “ Mr. John M’Clellan, Huntingdon, Tenn.”
    The first count of the declaration declared upon it as a bill of exchange; the second count was as follows: “For that whereas heretofore, to wit, on the 15th January 1826, at the county aforesaid, in consideration of certain large sums of money, to wit, the sum of $6,000 due and owing from John and Joseph Estell to the plaintiff, they, the said Estells, made and drew their certain draft or order in writing, upon and directed to the defendant which said order or writing is in the following words, &c. &c. Which said order or draft, was afterwards, to wit, on the 23rd January 1826, in the county aforesaid, accepted by the defendant in writing, and which is here to the court shown, and whereby the said defendant undertook, assumed and promised to pay to said plaintiff, said five thousand dollars, with all balances and dues, then due, or that might be due at the maturity of said order or draft to the said Estells, according to the tenor and effect thereof; and the plaintiff avers, that over and above the $5,000 mentioned in said draft or order, that the balance due at the maturity of said draft or order, was five hundred dollars, &c. &c.”
    There was also a count for money had and received.
    The defendant demurred to the two first counts, and pleaded non-assumpsit to the last. The circuit court sustained the demurrer to the first two counts, and the jury found a verdict for the defendant upon the last.
    
      Cook and Stoddart, for plaintiff in error.
    By the act of 1762, ch. 9, sec. 4, Haywood and Cobbs, page 234? this action can be brought.
    The act says, the money by virtue of the order drawn shall be due and payable to the person in whose favor drawn, against the drawer after protest, and acceptor after acceptance.
    The same construction will not apply as applies to a bill; a bill must be'drawn for money absolute, without condition or contingency; as the law merchant bears on it and gives the holder certain immunities, it must fall within the law. But orders under our act are only intended to b e prima facie evidence of consideration; the rules of negotiability do not apply. The party is let in to his defences, its only object being to make it prima facie evidence of a debt.
    2. The plaintiff is entitled to recover, because the count shows defendant promised in writing to pay the debt of the Estells, in five months after the date of the order. Here is a consideration substantially stated, of indulgence to the Estells, and delay of payment.
    Any suspension or forbearance is a good consideration, thouglino benefit result to the promissor. 3 Burrow, 1663. I Com. Dig. 298, in note. The smallest benefit will raise an assumpsit. 4 Dallas, 226. 1 Wash. 260. 5 Cranch, 142.
    There are a class of cases of a guaranty given simultaneously with the principal contract, where the consideration of the principal contract will support the collateral one. In this class the consideration to the principal supports the promise by the security; no other proof need be made. See 8 John. R. 33, in note: 9 East, 348: II John. Rep. 221: 5 Mass. 358: 12 Mass. 137,154: 5 Cranch, 151.
    There is another class of cases, where the consideration of a collateral undertaking is a subsisting debt due by another. In this class, the undertaking is subsequent to the existence of the debt, and we say good, though the consideration for the promise bé not in writing, provided the promise is in writing.
    We know the current of English authorities are against us; but our statute of frauds (act of 1801, 1 Scott, 712, ch. 25, sec. 1; Haywood and Cobbs, 128,) is worded so differently from the English statute, as to create a different construction. Our statute requires the promise to be in writing; theirs requires the agreement on which promise is made, to he in writing. ’ To support this distinction, see 5 Cranch, Violett vs. Patton, 151. The construction of the English statute is not satisfactory there, (14 Yes. 191. Chitty on Bills, 188, in note a); nor is it acquiesced in in the United States. See 10 Mass. 122: Comyn on Contracts, 196.
    Gillespie, for defendant in error.
    As to the first cause of demurrer, by the common law choses in action were not assignable, and admitting that the Estells owed Bradley, and that M’Clellan owed the Estells, the debt from one to the other could not be assigned or transferred, so as to give Bradley a right of action.
    So if there has been any assignment of this chose in action, it must have been by the operation of the law merchant, or express statute.
    The authorities before cited on the demurrer to the first count show conclusively, that this instrument is a nullity under the law merchant.
    If you go on the ground of an accepted order under the statute of 1762, ch. 9, sec. 4, the same certainty is required, as to the specific sum to be paid and transferred by said order, as there is in the first section authorizing the recovery of money due on promissory notes, as nearly the same words are used in both sections.
    Nothing more is meant than to provide for inland bills of exchange in the fourth section; and the provisions in the next section, requiring protest and notice for nonacceptance, before a suit shall be brought against the drawer of the order, prove that position conclusively.
    The word “accepted,” written on said writing by defendant, is a mercantile, technical phrase, and when applied to any other instrument than those known to the law merchant, can mean nothing. See Chitty on Bills, notes to page 44; Raymond, 1563; Chitty on Bills, 166, and note. To- sustain this position, I would also refer the court to a decision made by this court at Reynoldsburg, of Lawrence’s assignee against Dough-erty and Gwin, upon an unnegotiable instrument, with this endorsement: “for value received, I transfer the within note to W. P. L. waiving all demand and no-lice that may be necessary to bind me in law and equity.”
    Upon the second ground of demurrer, the want of a consideration for the promise moving from the plaintiff to defendant.
    If I should have been mistaken in the position assumed above, and the acceptance of the writing declared on by the plaintiff would bind the defendant in any way, it must be on account of his engagement to pay the debt of the Estells.
    Such an engagement would be void under the statute of frauds, unless the promise or agreement was reduced to writing.
    The English authorities fully sustain the doctrine, that the consideration of the promise, as well as the promise itself, should be in writing. See 5 Term Rep. Carlos vs. Fancourt,482: 7 Term, 350,note, Raine vs. Hughes: 3 Wilson, 207; and fully in 5 East’s Rep. in the case of Wain vs. Walters, page 16. If this is not a legal promise or agreement to pay the debt of another, is it a legal promise from the defendant to pay the plaintiff the sum mentioned in said writing?
    Place the most favorable construction on the word “accepted,” and it can mean nothing more than a mere promise to pay, which is void for want of a consideration. There is none expressed in the terms of his engagement, nor any averred in plaintiff’s declaration. In all simple contracts out of the law merchant, the consideration must be averred and proved. See 5 Comyn, 133, and notes: 5 Term. Rep. 482: 11 Mass. 143: 15 Mass. 387: 7 John. Rep. 321: Chitty on Bills, 166, and notes: 3 Caine, 286: 3 Term, 174: 2 Day, 22: Chitty B. 9, and notes: Powell on Contracts, 340 : 2 Bla. 782: 3 Burrow, 1516: 1 Bac. title Agreement, 112.
    There is one other ground though not assigned, would be fatal on general demurrer to the amended count.— This is a special action of assumpsit, and there is no sufficient breach of the promise or agreement. Lawes’ Pleading, 206. Comyn’s Digest, Pleader, ch. 44. 2 Saunders, 181, n. Croke Car. 186.
    The circuit court upon these grounds sustained the demurrer to the said amended count.
    The plaintiff then upon the trial of the issue on the second count, introduced said instrument as evidence before the jury, and upon a fair and impartial trial of all the plaintiff’s cause of action, and of every thing which he sought by Ms first count and amended count-being introduced in evidence, the jury found for the defendant, in which verdict plaintiff acquiesced, neither asked nor moved for a new trial, but brought his writ of error. That they were authorized to introduce said writing in evidence under that count, see 2 Johnson’s Cases, 438: 2 Johnson’s Rep. 235: 1 Church’s Digest, 145: 7 John. Rep. 321.
    "Where the court can see the merits of the case have been fully reached, although there may have been some misdirection as to the law, a new trial will not be granted. Edmonson vs. Machell, 2 Tenn. Rep. 4. 6 Bacon, Trial, 660-62. 3 East, 451. i Caine, 157,160. 2 Caine, 85, 90,129. 1 John. Rep. 222,302, 304. 9 Yes. Jr. 169. 11 Yes. 52. 8 East, 348.
    The revising court will not grant a new trial, unless application was made to the court below. 6 Bacon, Trial, 656.
    The court in looking into this cause, may reverse as to part, and affirm the residue. See 3 Comyn’s Digest, Error,567: 11 Mass. 206: 8 John. 86 and 435: 12 John. 340: 13 John. 460: 4 Burrow, 2021: 1 Salk. 312: 2 Str. 934.
    If this court should reverse the judgment of the circuit court on the demurrers, still here is the finding of the jury not complained of and unimpeached.
    P. M. Miller, argued on the same side.
   Peck, J.

delivered the opinion of the court.

The only question necessary for this court to determine, is that arising upon the demurrer.

It is argued at the har, that the paper declared on is not a hill of exchange, and that consequently the first count cannot be supported. Secondly, that it is not an order within the meaning of the act of 1762, ch> 9, sec. 4, and that if it were, no action can he maintained upon it, without averring the consideration of the acceptance.

Without giving any opinion upon the first count of the declaration, the second sets out a consideration moving the making of the order by the Estells in favor of the plaintiff, and a promise in writing on the part of the defendant to pay the $5000, and whatever might he due at the maturity of the draft or order.

This is declaring in legal form on a contract the parties could well make; it sets out a cause of action certainly good for the sum specified in the draft, and therefore, containing as it does, the usual causes of complaint in legal form to maintain an action, it should have been answered issuahly.

Our act of 1762, ch. 9, intended no more than to simplify the evidence to he offered. Where an order was drawn, it fixed the presumption of a debt; and an acceptance or promise to pay, like-every legal undertaking, must he enforced.

The drawing of the order in favor of the plaintiff is prima facie, evidence of a debt due from the drawers to the plaintiff; and the acceptance and promise to pay, is in like manner prima facie evidence of so much due from the acceptor to the drawer.

The judgment of the circuit court must he reversed, and the demurrer to the second count overruled; the cause must he remanded to the circuit court, and a writ of enquiry awarded, &c.

Judgment reversed.  