
    Brown vs. Parks.
    1. A declaration on an instrument of writing, which binds the maker to pay $440 in ginned cotton, and is not under seal, must aver a consideration.
    2. A declaration sets forth that plaintiff and defendant had accounted together, and upon the adjustment of their accounts, it was settled, that in consideration thereof the defendant was indebted to the plaintiff the sum of $440, contains a sufficient averment of a consideration after verdict.
    Assumpsit in the circuit court of' Giles county, by Brown against Parks. The declaration averred the execution of an instrument of writing, binding the defendant to pay $440 in good ginned cotton, at the gin of the defendant at eight cents per pound; and that this instrument was executed on consideration, that plaintiff and defendant had accounted to and with each other> and that it was settled that defendant was indebted to the plaintiff the sum mentioned. Verdict and judgment for plaintiff. No motion for new trial or in arrest. Appeal by defendant.
    
      A. Wright, for the plaintiff in error.
    In this case the defendant, Ira E. Brown contends' that the judgment of the court below is erroneous and must be reversed and arrested, because, the plaintiff’s declaration is fatally defective in setting forth no consideration for the promises on the part of th.e defendant therein, alleged. . The instruments sued on and referred to in the various counts are not promissory , notes, or bills of exchange, but simple contracts evidenced by writing for the payment and delivery of propelty. And it is well settled that in all suits founded upon simple contracts, except bills of exchange and promissory notes,. a consideration must be alleged and proved. Read, et als. vs. Wheeler, 2 Yer. Rep. 50; 5 Yer. Rep. 435; 5 Hump. Rep. 56; Jerome vs. Whitney, 7 Johns. Rep. 321. The case in 7 Johns. Rep., contrary to the decision of our own supreme court in Read et ux. vs. Wheeler, 2 Yer. Rep. 50, held, that though the instrument sued on, was not a bill of exchange, or promissory not.e, yet the words “value received” used 'in the contract, were prima facie evidence of a consideration and that the declaration need not aver, or proof show any other. But here Mr. Parks cannot claim the benefit of these words for they are not in the contract; nor is there any thing that will answer their place. The case in 7 Johns. Rep., as well as 2 Yer. Rep., is a conclusive authority for Mr. Brown. The authority of the case of Reed vs. Wheeler upon the necessity of avering and proving a consideration as to all simple contracts not embraced under the class of mercantile paper, is not shaken by the case of Cummings vs. Freeman, 2 Hump, Rep. 143. The instrument sued on in 2 Yer. Rep., though treated as a simple contract without the features of a note, and therefore the averment of a consideration necessary, is regarded and held in 2 Hump. Rep. to have been a promissory note; but the law of the case must stand when applied to property contracts not under seal.
    
      N. S. Brown, for the defendant in error.
    The declaration in this case if not good, is cured by the verdict. It does not aver especially, a demand of the cotton promised to bo delivered, but this was essentially matter of proof, the jury having found that, of course the defect cannot now be reached. See Stephens’ Plead, pages 160 and 167; 1st M. & S. 234; 1st Saund. 228, a.
    
    #2d. But no averment of demand or notice need be made in the declaration, as this court have decided. See 2d Tenn. 168. It belongs to the dependant to set up and aver in his pica such want of demand and notice, see id.
    
    The readiness of the defendant to comply, lay peculiarly within his own knowledge, and the onus of notice devolved on him.
    3d. The defendant chose to rely on his trial below upon his plea and offered no motion in arrest of judgment. Can he now avail himself of matter in arrest?
    4th. But it may be said, the declaration avers no consideration for the alledged promise by defendant. Is this necessary, where the instrument itself sued on, and which is made proferí of, imports on its face a consideration? And if the declaration is defective, in this particular, is it not such a defect as is cured after verdict? See Anderson vs. Read, 2d Tenn. Rep. 205.
    A consideration is always presumed where the promise is in writing and the burden is on the defendant. See Roper vs. Sione, Cook’s Rep. 397 — see also authorities above in Stephens on Plead, M. & S. and 1st Saunders Reports.
   GReen J.

delivered the opinion of the court.

Parks sued Brown upon an instrument of writing, in which the defendant acknowledged himself to be due to the plaintiff, on settlement $440 93 in good ginned cotton. A verdict and judgment were rendered for the plaintiff, and the defendant appealed in error to this court.

It is now insisted that as the writing sued on, is not a promissory note, and not being under seal, tbe declaration should have averred a consideration for the promises alleged; and in support of this position the cases of Read vs. Wheeler, 2 Yer. Rep. 50, 5 Yer. R. 435, 5 Hump. R. 56, Jerome vs. Whitney, 7 Jh. R. 321, are cited.

These authorities clearly establish the position for which they.are cited; and the case of Shelton vs. Bruce, 9 Yer. R. 94, is also a direct authority in support of the same proposition.^ The question therefore is, does this declaration allege a consideration? We think, that although the consideration is imperfectly and defectively set out, yet it is substantially al-ledge'd.

The first count in the declaration states, “that on the 5th day of November 1846, at, to wit, the state and county aforesaid, the said defendant made his certain promise in writing, bearing date the day and year last aforesaid, due at the time of making thereof, which promise in writing is now here to the court shown by which the sajxl defendant then and there acknowledged to be due to the said plaintiff on settlement four hundred and forty dollars, 93 cents in good ginned cotton, to be delivered at the gin of the said defendant in the said county of Giles, and State of Tennessee, at eight cents per pound, and then and there delivered the said promise in writing to him, the said plaintiff, by means,” &c.

Now, in this declaration, it is alleged, substantially, that the plaintiff and defendant had accounted together, and upon the adjustment of their accounts, it was settled that the defendant, in consideration thereof, was due the plaintiff the sum of $440 93, in ginned cotton, at 8 cents per pound.

This we think is such a statement of a consideration as if not good on demurrer, is cured by verdict, and cannot be taken advantage of in arrest. Anderson vs. Read 2 Tenn. R. 205, 1 Saunders. Affirm the judgment.  