
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    ROPER v. STONE.
    >- Writ of Error.
    A consideration is necessary to be averred in pleading, and shown in proof, in relation to all contracts, either verbal or written, if not tinder seal. [Acc. 9 Y. 24, except negotiable paper.]
    Between verbal and unsealed written contracts, there is this distinction; in the first, the consideration is never presumed, and the onus probandi lies on the plaintiff; in the latter, the consideration is always presumed, and the onus lies on the defendant.
    The duty of the Court is to charge the law in the alternative, as the jury may find the fact to be one way or the other, and not to charge or give opinions on matters of fact, which the Constitution forbids.
    This suit was originally commenced by Stone against Roper, before a justice of the peace, where he recovered a judgment. Roper, by a writ of certiorari, took the case up to the Court of Pleas and Quarter Sessions for Davidson County, where a verdict and judgment was again pronounced in favor of Stone. A bill of exceptions was taken by Roper, which disclosed the following case: —
    The plaintiff, on liis part, introduced as evidence to support his suit an instrument of writing in the following words: “ Mr. William Stone, I will pay you the sum of forty-six dollars, which I received on account of William Gunn, &c. Beverly A. Meanly, for William Roper, 13 th June, 1813.” Meanly also swore that William Gunn was indebted both to the plaintiff and the defendant, and had given each of them orders to receive moneys collected for him from one Probart, which moneys the defendant had received; but not beyond the amount of his debt. The plaintiff complained, and thereupon, at the request of Gunn, who promised to pay the money to the defendant, the defendant directed the witness to execute an engagement to pay the above sum of money to the plaintiff; and the witness, in consequence of such instructions, executed the- instrument of writing before set forth. Whereupon the counsel for the defendant moved the Court to instruct the jury, that unless they were satisfied a consideration for the writing existed between the plaintiff and defendant, they ought to find a verdict for the defendant. But the Court refused so to instruct the jury, and gave it as their opinion that the defendant was bound to pay the money to the plaintiff, according to the tenor of the writing.
    A writ of error, to reverse this opinion, was taken by Roper, and the cause was thus removed to the Circuit Court.
    The Circuit Court having confirmed the judgment of the Court of Pleas and Quarter Sessions, a writ of error was again prosecuted by Roper, by which means the cause was brought into this Court.
    
      Dickinson, for the plaintiff.
    
      Deck, for the defendant.
   Overton, J.

In support of this action, the defendant’s counsel has relied on the case of Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. The case does not apply, because the question there was, whether a court could receive evidence to show that there was a different consideration than that expressed in writing; it was determined that it could not be received. The question in this case is, whether, in an action founded on an instrument not under seal, it is or is not necessary to aver and prove a consideration.

The opinion of the inferior court is certainly erroneous in this respect. fA consideration is necessary to be averred in pleading, and shown in proof, | in relation to all contracts, either verbal or written, if not under seal.

Between verbal and unsealed written contracts there is this distinction.

In the first a consideration is never presumed, and the onus probandi lies on the plaintiff; in the latter it is the reverse, — it is always presumed, but that' presumption, as usual with presumptions in fact, may be overthrown by the defendant, and hence the onus probandi lies on him.

There is error in the judgment on two grounds. First, the Court stated to the jury that Roper was bound to pay said sum of money to said plaintiff according to the tenor of said engagement.” Second, this direction disregards the question of fact made before them, viz. that the jury were to inquire into the consideration; it inculcates an idea that the jury had nothing to do with proof of consideration.

This charge or instruction to the jury is wrong, because it, in the first place, undertakes to assume as a fact the authority of Meanly to sign the instrument for Roper. The Constitution forbids courts to charge or give opinions to juries on matters of fact. This instruction goes further, and takes for granted expressly that a fact was ascertained. The duty of a court is to state the law alternately, supposing, in the opinion of a jury, the fact be one way or the other.

The opinion is wrong on the other ground, for the reasons previously advanced respecting the consideration of contracts.

The judgment should be reversed and the cause remanded to the Circuit Court, where it must be again tried, and not sent from thence to the County Court.

White, J. concurred.  