
    Jackson v. Jackson.
    July, 1839,
    Lewisburg.
    (Absent Brooke, J.)
    Promissory Note -Assumpsit — Declaration -Averring Consideration — Quaere.—Question whether, in Virginia, assumpsit can be maintained, on a promissory note, without averring a consideration in the declaration. Per Tucker, P., and Parker, J., the action cannot be maintained. Stanard and Cabell, J., contra.
    The writing on which this action was founded was in these words:
    “I agree to settle with Thomas Bland sheriff of Lewis county, who has an execution in his hands against II. Jackson, in the name of Vandeventer and others, to the amount of 320 dollars, and then to pay unto H. Jackson the further sum of 2S5 dollars, and it is to be understood that the said Cummins Jackson is to have a credit for the above 2SS dollars, or what Hyer Jackson may agree to pay for four lots back of the courthouse in Weston and county of Lewis, this 15th jlay of September 1835. C. E. Jackson.”
    The action was assumpsit in the circuit court of Lewis, by Henry Jackson against Cummins E. Jackson; and the declaration contained seven counts.
    *The first count charged the defendant with being indebted to the plaintiff in the sum of 575 dollars (the aggregate of the two sums mentioned in the writing) for divers goods and chattels, slaves &c. before that time sold and delivered to the defendant, at his special instance and request.
    The second count was on the writing, setting out its terms, and laying a consideration in the sale of a slave. The failure of the defendant to convey to Hyer Jackson the son of Henry is alleged, and from that failure is deduced the defendant’s indebtedness for the 2SS dollars.
    The third count was also, on the writing, but omits any mention of the lots, and claims the 255 dollars absolutely. A consideration is likewise averred in this count.
    The fourth count was to the following effect: “And for that also the said defendant, heretofore, to wit, on the 15th day of September 1835, at &c. made, and executed his certain other agreement in writing, and then and there signed and subscribed his abbreviated name of C. E. Jackson thereto, and then and there delivered the same, so made and subscribed, to the said plaintiff, by which said writing he the said defendant then and there agreed to settle with Thomas Bland sheriff of Eewis county (meaning one Thomas Bland deputy for James M. Camp high sheriff of Lewis county) who had an execution in his hands against H. Jackson (to wit, the said plaintiff) in the name of Vandeventer (viz. one Rachel Vandeventer) and others, to the amount of 320 dollars, and then to pay unto the plaintiff, by the abbreviated name of-H. Jackson, the further sum of 255 dollars. By means whereof the said defendant then and there became liable, among other things, to pay to the said plaintiff the said sum of 255 dollars in this count specified, according to the tenour and effect of said agreement, and being so liable, he the said defendant, *in consideration thereof, then and there, to wit, on &c. at &c. undertook and then and there faithfully promised him the said plaintiff to pay him the last mentioned sum of 255 dollars,'when he should be thereunto after-wards requested.”
    The fifth count was substantially, and almost literally, the same as the fourth.
    The sixth count was precisely like the fourth and fifth, except that it, described the agreement as one by which the defendant agreed to pay to the plaintiff the further sum of 255 dollars &c. (saying nothing of that part of the agreement by which the defendant undertook to settle with Thomas Bland to the amount of 320 dollars).
    To the whole declaration, and to each count thereof, the defendant demurred; and the plaintiff joined in the demurrers.
    The court overruled the demurrers; and then a trial being had upon the general issue, a verdict was found for the plaintiff for 255 dollars damages, with interest from the 15th of September 1835 till paid, and judgment was rendered thereupon.
    On the petition of Cummins E- Jackson, a supersedeas was allowed.
    William A. Harrison, for the plaintiff in error,
    said that the 4th, 5th and 6th counts, stating an assumpsit in writing but laying no consideration, were defective, according to the decisions in Hall v. Smith, 3 Munf. 550; Beverleys v. Holmes, 4 Munf. 95, and Moseley v. Jones, 5 Munf. 23. error, insisted that a declaration in as-sumpsit on a promissory note for the payment of money may be sustained without averring a consideration. 1 Chitty’s PI. 320; Chitty on Bills 356; Grant v. Da Costa, 3 Mau. & Selw. 352; Coombs v. Ingram, 4 Dow. & Ry. 211; 16 Eng. Com. *Law Rep. 194. The cases cited on the other side were, upon instruments of a different character. Hall -v. Smith was upon an assignment of a bond or note. Beverleys v. Holmes was on a written promise to pay Augusta bonds. Moseley v. Jones was on a written contract to deliver corn and pay money, and the form of the declaration does not appear.
    George H. Lee, for the defendant in
    (Before Harrison replied, Stanard, J., observed, that in England there is no action of debt on the note per se. The note is only evidence of debt. Here, debt lies on the note itself. And the question arises, whether this may not authorize the declaration in assumpsit to be framed in Virginia differently from what would otherwise be requisite.)
    Harrison, ún reply.
    There is no distinction between a verbal promise and a promise in Writing. A consideration is equally necessary to both. In England, promissory notes are placed on the footing of bills of exchange. Not so here.
    
      
      Promissory Note — Assumpsit—Declaration. Averring Consideration. — The principal case was distinguished in Averett v. Booker, 15 Gratt. 164, 165. Judge Lee, in delivering the opinion oi the court, said : “The case of Jackson ». Jackson, above cited, so far as it is of any authority, having been decided by a court equally divided, shows that it is not necessary in such a case even to aver a consideration. For the declaration without averring such consideration was sustained by the court below, and that judgment was affirmed by the division of this court. But it is unnecessary to go into this question in this case, because whilst the declaration in all its counts sufficiently avers a consideration, it is not pretended that the paper offered in evidence contained any thing that conld by any construction be held to be an express promise to pay the sum of money mentioned in it. And not being a bill of exchange, no promise is raised by law in favor of the payee against the drawer from the failure of the drawee to accept or to pay.”
      See further, monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622 ; monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
   PARKER, J-

The only question in this case arises upon the 4th, 5th and 6th counts, and it is only necessary to analyze one of them, all being liable to the same objection, viz. that no consideration for the promise is alleged. The fourth count avers that the defendant, on the 15th of September 1835, at &c. executed his certain other agreement in writing, undertaking to settle with Thomas Bland &c. 320 dollars, and then to pay to the plaintiff the further sum of 255 dollars according to the tenour and effect of the said agreement, and being so liable, he the defendant, in consideration thereof, promised to pay to the plaintiff the last mentioned sum of 255 dollars. Whether this count is defective or not, depends altogether on the question how far, in an action of assumpsit on a writing of this character, the plaintiff is bound to allege and prove a consideration for the promises and undertakings set forth in it. I am clearly of opinion he must do both.

*That in general the plaintiff who brings an action of assumpsit must state a consideration, no one doubts. But in assumpsit on a promissory note, it is said that no consideration need be averred and proved, because our act of assembly allows an action of debt to be brought on the note itself, without laying or proving a consideration ; (see Peasley v. Boatwright, 2 Leigh 195; Crawford v. Daigh, 2 va. Cas. 521,) and it is supposed that this provision authorizes us to imply a consideration from the nature of the instrument, in the same manner that, in an action of assumpsit on a promissory note in England, a sufficient consideration is presumed. But there it is not owing to the form of the bill or note, nor to the circumstance of its being in writing, that the law gives it that effect, but because it is commercial paper. Chitty on Bills, p. 9, 10. Previous to the statute of 3 and 4 Ann. c. 9, an action of debt could not be maintained on a promissory note, as of itself importing a debt, but the plaintiff was obliged to declare on the contract as in assumpsit, stating and proving the real consideration at large. By that statute, and “to the intent to encourage trade and commerce,” (which, says the preamble, “will be much advanced if such notes shall have the same effect as inland bills of exchange,”) notes in writing promising to pay money were in all respects put upon the footing of inland bills; and after that, no question could arise concerning the necessity of alleging a consideration in any form of action upon them. It was a peculiar privilege conferred upon them by the force of the statute, that (as in bills of exchange) a sufficient consideration should be implied from the commercial nature of the instrument. But that does not seem to me to be the effect of our act of 1730, 4 Hen. Stat. at large, p. 275. It simply allowed an action of debt on the note, to the end that the recoverj' of the money “might be rendered more easy.” It did not change the nature of the instrument, nor give to it the character *of a bill of exchange; nor do I conceive it would have been impressed with the character, had the clause allowing discounts been omitted, unless it had been expressly assimilated to an inland bill, or other commercial paper. The only effect of the act seems to me to be, to allow a new form of action to be brought on the writing itself, namely, an action of debt, and, if that action is brought, to dispense with the averment or proof of consideration. If, however, debt is brought on the original contract, it is still necessary to shew a consideration to support it; and a fortiori if assumpsit is brought, which is always on the original contract, the same consequence must follow. In the case of Crawford v. Daigh, the judge delivering the opinion of the court declares expressly, that it was not intended to interfere with the action of assumpsit; and judge Carr, in Peasley v. Boatwright, carefully confines his observations to the action of debt: so that this case is one of the first impression in this court, although I am satisfied the general opinion of the profession has heretofore been, that in all actions of assumpsit brought in this state, except on bills of exchange and notes placed expressly on the same footing, it is necessary to aver and prove a consideration. The counsel for the appellee accounted for the omission in some of the counts in this declaration, by candidly avowing that it was because he feared no consideration could be proved; and the probability is that the verdict was obtained without such proof.

There is another consideration entitled to weight in this cause. The assumpsit is brought upon an instrument promising to settle with the sheriff a certain sum of money, and to pay another sum to the plaintiff by having a credit for it with Hyer Jackson in the sale of lots. I doubt much whether any action of debt could be maintained on it. Certainly it could not be brought on the promise to settle with another; and as the two *are joined in this fourth count, it would seem that the count could only be in assumpsit, unless two actions, one in assumpsit and the other in debt, could be brought on the same written agreement. In this respect it is very similar to the case of Moseley v. Jones, 5 Munf. 23, where the court decided that the judgment was erroneous, there being no consideration laid in the declaration. It is, however, useless to enlarge on this point, since, on the other, I am of opinion that the demurrer to the 4th, 5th and 6th counts ought to have been sustained, and that, for overruling it, the judgment should be reversed.

TUCKER, P., concurred. But STAN-ARD and CABELE, J., being of a different opinion, and the court being thereby equally divided, the judgment was affirmed.  