
    Hall v. Crandall.
    Erbob from a judgment of the Court of Common Pleas. The original action was assumpsit, in which the plaintiff declared — That at the defendant’s request, and promise to pay him the state’s bounty of £6 he entered and performed a tour of duty in the continental army: That the defendant informed him the bounty was in the hands of Ebenezer Backus, ready to be paid, and gave him an order, on or about the 30th day of August, 1780, as follows: — “Sir, pay Christopher Crandall his state bounty, and the blanket money you will account with me for. In so doing, you will 'oblige your humble servant,— Samuel Hall. To Ebenezer Backus, Windham.”— That the plaintiff “ soon after ” presented the order to said Backus, who refused to pay it, of which he “ soon after ” gave the ■ defendant notice; after which, viz. on the 80th day of June, 1787, the defendant, in consideration of bis being liable to pay tbe contents, of said order, assumed upon bimself, and promised to* pay tbe same, etc. t
    
    
      2$on-asswmpsit was pleaded, and issue closed to tbe court, wbo found for tbe plaintiff.
    Tbe only question in error respected tbe sufficiency of tbe declaration, there being no time specified wben tbe order was presented, nor wben tbe defendant was notified of tbe nonpayment, but only tbat it was soon after.
    Tbe judgment was affirmed.
   By the Court.

In a declaration against tbe drawer of a bill of exchange, it is doubtless necessary to set forth with precision tbe time when tbe bill was presented for payment, tbat it may appear tbat tbe payee has used due diligence; and upon a demurrer, it would be ill without it: So it would in every special assumpsit, without a consideration set forth; but tbe want of certainty in either case is curable by a verdict. — As there can be no promise in law without a consideration, it shall be intended, wben tbe jury have found tbe promise, tbat a consideration was proved. So, as there can be no promise raised against tbe drawer of a bill, unless tbe payee has used due diligence to obtain tbe money of tbe drawee, and has failed, it shall be intended, if tbe promise is found, tbat there was proof of due diligence used, and tbat tbe bill was presented in due season, though tbe averment in tbe declaration be only, as in this case, tbat it was presented soon after it was received.

Tbe order, however, in this case, does not appear to be in nature, or within tbe reason of a bill of exchange; it is not expressed for value received, nor averred to have been in extinguishment of an antecedent debt or duty; and was but a mere authority to receive the money of Backus.

And as the money has not in fact been paid, whether the order has ever been presented or not, the original promise of the defendant to pay the bounty, or see it paid, still remains in force, and, being set forth in this declaration, is sufficient to warrant the judgment, independent of any transactions relative to the order.

Dyer, J.,

dissenting. This action is not grounded on the original contract, but on an implied assumpsit, arising from the nonpayment of the order: — But, from the stating in the declaration, no such promise can arise, the order being but a bare authority to receive the money of Backus; and the finding of the jury cannot aid a declaration so materially defective. • ,  