
    Rebecca Coggeshall, v. Anne S. Coggeshall, Executrix of P. C. Coggeshall, deceased.
    A paper, not promising to pay money absolutely and at all events, but in which a contingency is contemplated, the happening of which will defeat the payment, is not a promissory note under the Statute of 4th Anne, but must be regarded as an agreement at Common Law; to recover on which, the consideration and the promise must both be alleged and proved.
    Tried before Mr. Justice O’Neall, at Darlington, Fall Term, 1846.
    This was an action of assumpsit on the following paper; “I promise to pay, for value received, to Rebecca Coggeshall, one thousand five hundred and sixty dollars, in annual instalments of two hundred dollars, the first instalment payable 1st July, 1841; the balance every 1st July thereafter; but if, or when the said Rebecca Coggeshall shall die, and any balance of this notéis unpaid, it shall return to my estate, or me, my executors, or administrators. This note is intended as a provision of two hundred dollars a year annuity for my mother, during her life time, if the sum holds out, and during her life is to be kept by John M. Screven, to perform the trusts herein contained.
    Peter C. Coggeshall.”
    
      13th March, 1840.
    It was declared on as a promissory note. The defendant moved for a non-suit, on the grounds that it was not a promissory note within the Statute of Anne; and, if a note, that it was without consideration.
    Under the charge of his Honor, the presiding Judge, the jury found for the plaintiff.
    The defendant appealed and moved for a non-suit, on the same grounds taken below; and also for a new trial on the grounds taken for a non-suit, and on the additional ground, that since the trial she had discovered new and important testimony, material for her defence.
    Dargan, for the motion.
    Haklee, contra.
    
   Wardlaw, J.,

delivered the opinion of the Court.

By the paper, which in this case is called a note, the payments which are promised are made liable to be defeated by the death of Rebecca Coggeshall. There is not a promise to pay money absolutely and at all events, but a contingency is contemplated upon the happening of which the obligation to pay might have ceased. The paper is not then a promissory note under the Statute of Anne, but must be regarded as an agreement at common law. The declaration, (which was not brought to the view of the Judge on the Circuit,) being now examined, is found to contain no sufficient count alleging a consideration and a promise, as should be done in cases of common law agreements. The motion for non-suit might then have been granted: but as there was a misapprehension concerning the pleadings, and the plaintiff’s counsel with seeming confidence in the merits of her case, has moved for leave to amend. A new trial is ordered, with leave for the plaintiff at her own cost to amend her decía-ration by adding one or more counts, on or before the first monday of March next, and posting the usual rule to plead.  