
    Shelton vs. Bruce.
    A contract or note, by which A binds himself to pay a certain sum of money when a certain suit is decided, it it is decided in favor of the said A, is not negotiable.
    Where a contract is not negotiable, or founded upon a sealed instrument, the consideration upon which it was executed, must be averred in 1he declaration.
    A demurrer reaches the first defect in pleading, therefore, if the declaration is defective, and a plea be demurred to, it operates as a demurrer to the decía, ration.
    This is an action of debt brought by the defendant in error, against the plaintiff in error, on a contract in writing, for the sum of sixty-two dollars and fifty-six cents, to he paid when a certain suit was determined, pending between said William Shelton and John M’Neil. The contract, as stated in the declaration, is as follows:
    “That the said William Shelton, on the 17th March, 1828, made and executed his certain promissory note, or writing ob-* ligatory, by which he bound himself to pay to said Hardin Bruce the sum of sixty-two dollars and fifty-six cents, when a certain suit was determined, pending between the said Shelton and John M’Neil, if said Shelton should gain the suit.”
    The declaration avers the determination of the suit, and that Shelton gained it, but it does not aver any consideration upon which the note was executed. The defendant pleaded the act of limitation of three years, which plea was demurred to. Judgment was rendered for the plaintiff below, from which, an appeal in the nature of a writ of error was prose- , . . r cuted to this court.
    
      J. S. Yerger $• Chas. Scott, for plaintiff in error.
    2.The declaration states the indebtedness by and upon a promissory note or-writing obligatory; and the paper produced and objected to, was neither. It was a mere contract, or agreement, not sealed, and not a promissory note, or writing obligatory; and was misdescribed in the declaration. This was a mere promise to pay the sum mentioned upon the happening of a contingency, which distinguishes it from a promissory note. Chitty on'Bills, 41,' 42, 43, 44, 45, 46, 47, and notes: 6 Cowen’s Rep. 108: 2 Yerg. Rep. 60: Bailey on Bills, 8, 9: Chitty on Bills, (ed. 1834) 30, 31: Chitty on Bills, (ed. 1834) 5, 6: 15 Mass. Rep. 387.
    2. This being neither a promissory note, or writing obligatory, there was .a variance between the allegation in the declaration, and the proof brought to .support it, consequently, the paper should have been rejected because of this variance, and not having been done, the court erred. 1 Chitty on Plead. (6th American ed.). 326, 327: Smith vs. Barker, 3 Day’s Rep. 312.
    3. If there was no such variance in. the description, and the proof offered, as to justify the court in rejecting it, yet there is error in the record, for which, the judgment should be reversed. The judgment on the demurrer should have been for the defendant, and not for the'plaintiff. This not being a.promissory note, or. writing obligatory, a consideration,was necessary to be stated in the declaration and proved; for, in all contracts, except specialties, of such as arise under the law. merchant, a consideration must be averred and proved. Chit, on Con. 6:.Chit, on Bills, 8, Ó: Chit. Plead. (6 American ed.) 330, 321, to 326, and cases cited in notes: 7 John. R. 321: 11 Mass. Rep. 143: 3 M.’Cord’s Rep. 195: 4 Pickering’s Report, 4.97.
    4. When no consideration is stated in the declaration, the defendant may demur, move in arrest of judgment or support a writ of error. 1 Chit, on Plea. (6 Amer. from 5 L.) 328, at top: 7 Term. R. 348: 4 Bar and Cross, 345: 10 Eng. Co. L. Rep. 351.
    5. Upon the demurrer, judgment will be given against him whose pleading was first defective in substance, though the plea demurred to be bad. 1 Chit, on Plea. (6 Amer. from 5 Lon. ed.) 706, 707 : 4 Yer. R. Gov. fyc.vs. Porter, 192.
    6. A party is not allowed to amend his pleading upon a demurrer, after writ of error prosecuted to this court. Robertson vs- Waters, 1 Yer. R. 200: Cain and others vs. Kernel] 4* M’Mahon, 1 Yer, R. 443: Shugart vs. Orr, 5 Yer. R. 192.
    
      R M Burton, for defendant in error,
    cited act of 1801, c. 6, §_54, and^Peck’s Rep. 276.
   Turley J.

delivered the opinion of the court.

The instrument declared on, is called in the declaration a promissory note or writing obligatory, which, it is contended, is a fatal variance, as it is neither. It ⅛ true, this is not a promissory note or writing obligatory; but we think it makes no difference by what name a written contract may be called, if it be set forth correctly in the declaration; which is done in this case. But there, is no consideration alleged in the declaration to support this contract, which is necessary in all cases, except those founded on negotiable paper or sealed instruments, which this is not. See Chitty on Bills, 8, 9: 7 John. Rep. 321: 7 Term Rep. 350,. and many other cases.

This is a fatal defect in the declaration, and may be taken advantage of by demurrer, motion in arrest of judgment, or a writ of error. 1 Chit. Pleadings, 329: 7 Term Rep. 348: 4 Bar and Cross, 34. Here the question arises upon a demurrer to a plea of the defendant below. It is well settled, that a demurrer filed by either party reaches the first defect in pleading. In this case, it is in the declaration, and the court below therefore erred in sustaining the demurrer. Let the judgment be reversed, and be entered for plaintiff in error.

Judgment reversed.  