
    EDWARDS and al. vs. WIESTER and al.
    
      On an appeal from a judgment of the Logan circuit court.
    
    16 June, 1820
    If a declaration alleges a promise to pay, it should aver a consideration or it will be presumed the promise was by parol, and therefore voluntary; but if def’nt by oyer spreads the writing, on which the suit is really brought, on the record, the error is cured
   Judge Owsley

delivered the opinion of the court.

This was an action of debt, brought by the appellees, to recover $3,333 and 14 cents.

The declaration, without avering the promise to be in writing, alledges that the defendants, on the 15th of September, 1815, promised to pay the plaintiffs, nine months after date, $3,333 and 14 cents, &c.

To the declaration the defendants demurred, and craved oyer of the writing filed.

The demurrer was overruled, and judgment rendered for $3,337 and 14 cents.

If the writing had not been made part of the record by the defendants’ demurrer, there would be no doubt the demurrer should have been sustained. In the absence of the writing, the promise laid in the declaration would appear to be merely voluntary, and as such, could produce no liability on those making it. But from the writing, the defendants appear to have made the promise, alledged in the declaration, by a promissory note, duly signed by them; and although the writing is brought upon the record by the defendants, it must be taken as supplying the failure to alledge in the declaration the consideration upon which the promise was made.

Crittenden for appellants, Pope for appellees.

If the judgment is for a larger sum than that demanded in the declaration, it is erroneous.

The judgment, however, as it is for $3,337 and 14 cents, instead of $3,333 and 14 cents, alledged in the declaration, and contained in the note, must be reversed with cost, and the cause remanded, and judgment entered for the amount contained in the note, with interest and cost.  