March, 1836. Shelton V Bruce. NASHVILLE, good without a similiter. And, therefore, much as we dislike such loose pleading, we are compelled to say, that inasmuch as the plaintiffs in error have elected to consider the word "rejoinder," as a rejoinder, instead of insisting upon one in form, they must submit to have it so construed as to sustain the verdict, and this, in order to prevent their taking advantage of their own wrong; therefore, let the judgment be affirmed. Judgment affirmed. SHELTON vs. BRUCE. A contract or note, by which A binds himself to pay a certain sum of money when a certain suit is decided, if it is decided in favor of the said A, is not negotiable. Where a contract is not negotiable, or founded upon a sealed instrument, the consideration upon which it was executed, must be averred in the declaration. A demurrer reaches the first defect in pleading, therefore, if the declaration is defective, and a plea be demurred to, it operates as a demurrer to the decla. ration. This is an action of debt brought by the defendant in error, against the plaintiff in error, on a contract in writing, for the sum of sixty-two dollars and fifty-six cents, to be paid when a certain suit was determined, pending between said William Shelton and John M'Neil. The contract, as stated in the declaration, is as follows: "That the said William Shelton, on the 17th March, 1828, made and executed his certain promissory note, or writing obligatory, by which he bound himself to pay to said Hardin Bruce the sum of sixty-two dollars and fifty-six cents, when a certain suit was determined, pending between the said Shelton and John M'Neil, if said Shelton should gain the suit." The declaration avers the determination of the suit, and that Shelton gained it, but it does not aver any consideration upon which the note was executed. The defendant pleaded the act of limitation of three years, which plea was demurred to. Judgment was rendered for the plaintiff below, from which, an appeal in the nature of a writ of error was prose- NASHVILLE, cuted to this court. J. S. Yerger & Chas. Scott, for plaintiff in error. 1. The declaration states the indebtedness by and upon a promissory note or writing obligatory; and the paper produced and objected to, was neither. It was a mere contract, or agreement, not sealed, and not a promissory note, or writing obligatory; and was misdescribed in the declaration. This was a mere promise to pay the sum mentioned upon the happening of a contingency, which distinguishes it from a promissory note. Chitty on Bills, 41, 42, 43, 44, 45, 46, 47, and notes: 6 Cowen's Rep. 108: 2 Yerg. Rep. 60: Bailey on Bills, 8, 9: Chitty on Bills, (ed. 1834) 30, 31: Chitty on Bills, (ed. 1834) 5, 6: 15 Mass. Rep. 387. 2. This being neither a promissory note, or writing obligatory, there was a variance between the allegation in the declaration, and the proof brought to support it, consequently, the paper should have been rejected because of this variance, and not having been done, the court erred. 1 Chitty on Plead. (6th American ed.) 326, 327: Smith vs. Barker, 3 Day's Rep. 312. 3. If there was no such variance in the description, and the proof offered, as to justify the court in rejecting it, yet there is error in the record, for which, the judgment should be reversed. The judgment on the demurrer should have been for the defendant, and not for the plaintiff. This not being a promissory note, or writing obligatory, a consideration was necessary to be stated in the declaration and proved; for, in all contracts, except specialties, or such as arise under the law merchant, a consideration must be averred and proved. Chit. on Con. 6: Chit. on Bills, 8, 9: Chit. Plead. (6 American ed.) 330, 321, to 326, and cases cited in notes: 7 John. R. 321: 11 Mass. Rep. 143: 3 M'Cord's Rep. 195: 4 Pickering's Report, 497. 4. When no consideration is stated in the declaration, the defendant may demur, move in arrest of judgment or support a writ of error. 1 Chit. on Plea. (6 Amer. from 5 L.) March, 1836. Shelton Bruce. NASHVILLE, 328, at top: 7 Term. R. 348: 4 Bar and Cross, 345: 10 Eng. Co. L. Rep. 351. March, 1836. Shelton Bruce. 5. Upon the demurrer, judgment will be given against him whose pleading was first defective in substance, though the plea demurred to be bad. 1 Chit. on Plea. (6 Amer. from 5 Lon. ed.) 706, 707: 4 Yer. R. Gov. &c. vs. Porter, 192. 6. A party is not allowed to amend his pleading upon a demurrer, after writ of error prosecuted to this court. Robertson vs Waters, 1 Yer. R. 200: Cain and others vs. Kerney & M'Mahon, 1 Yer. R. 443: Shugart vs. Orr, 5 Yer. R. 192. RM Burton, for defendant in error, cited act of 1801, c. 6, § 54, and Peck's Rep. 276. TURLEY J. delivered the opinion of the court. The instrument declared on, is called in the declaration a promissory note or writing obligatory, which, it is contended, is a fatal variance, as it is neither. It is true, this is not a promissory note or writing obligatory; but we think it makes no difference by what name a written contract may be called, if it be set forth correctly in the declaration; which is done in this case. But there is no consideration alleged in the declaration to support this contract, which is necessary in all cases, except those founded on negotiable paper or sealed instruments, which this is not. See Chitty on Bills, 8, 9: 7 John. Rep. 321: 7 Term Rep. 350, and many other cases. This is a fatal defect in the declaration, and may be taken advantage of by demurrer, motion in arrest of judgment, or a writ of error. 1 Chit. Pleadings, 329: 7 Term Rep. 348: 4 Bar and Cross, 34. Here the question arises upon a demurrer to a plea of the defendant below. It is well settled, that a demurrer filed by either party reaches the first defect in pleading. In this case, it is in the declaration, and the court below therefore erred in sustaining the demurrer. Let the judgment be reversed, and be entered for plaintiff in Judgment reversed. error. PLUMMER US. KEATON. A note under seal, to pay money, "which may be discharged in a good young horse, or by delivery of good cash notes," &c. is not a property contract within the meaning of the act of 1807, c. 95. The act of 1807, c. 95, was only intended to apply to cases where property was the direct and [immediate object of the contract, not to cases where money is the thing contracted for, and the payment of property collateral thereto. Where the contract is to pay money, but the payor has the privilege reserved in the contract to pay in property, if he permits the time stipulated to deliver the property to pass without paying or tendering it, his right to do so is gone forever, and he will be compelled to pay the money. If the time stipulated to discharge a money contract by delivery of property has passed, and the agent of the plaintiff, under a misapprehension of the nature of the contract, notifies the debtor to deliver the property, which is tendered, but refused: Held, that the misapprehension of the agent, and the consequent tender, did not alter the contract or the liability of the defendant, and that he was bound to pay the money, notwithstanding the notification and tender. This was an action commenced before a justice of the peace in Wayne county, upon the following obligation: "On or before the first day of October next, I promise to pay Seymour Plummer & Co. or order, the sum of forty-one dollars and ninety-two cents, which may be discharged in a good young horse beast, valued at cash price by two disinterested persons; or may be discharged in good cash notes, due the 26th day of December next, on good citizens of Wayne county, for value received. Witness my hand and seal, this 2d June, 1833, JACOB H. KEATON. [Seal.] The case was carried by appeal to the circuit court, where judgment was given in favor of defendant. To reverse which, this writ of error is prosecuted. The bill of exceptions shows, that on the 18th day of June, 1834, sometime after the debt secured by the covenant fell due, Whynes H. Ross, agent for the plaintiff, gave notice in writing to the defendant, to attend in Centreville within ten days from the date thereof, and comply with his contract with Seymour Plummer & Co. That on the day specified, defendant attended at Centreville, and tendered to the agent of the plaintiff, a horse, valued by two disinterested persons, at thirty-seven dollars and fifty cents, and the balance of the debt in money, all of NASHVILLE, Plummer Keaton. March, 1836. Plummer NASHVILLE, which, he refused to receive. The court charged the jury, that if the defendant tendered a horse of a value within a few dollars of the note, and the balance of the amount in money, that the plaintiffs were bound to receive it, and if they refused, the jury ought to find for the defendant. Keaton. T. Craighead, for plaintiff in error. Lindsley, for defendant in error. TURLEY J. delivered the opinion of the court. It is evident, that the agent of the plaintiff and the circuit court, have considered this to be a contract falling within the provisions of the act of 1807, c. 95, which says, "that in all contracts hereafter made for the payment or delivery of property, if the time and place, or either, be not ascertained in the contract, it shall be the duty of the payee to give the payor ten days notice of the time or place, or both, as the case may require, for the payment or delivery of such property; and that no action shall be maintained on any such contract, until such notice be given, or demand made at the usual residence of the payor." Had it been such a contract, the charge of the court would have been correct. But this is no contract for the payment or delivery of property; it is a contract for money, which, to be sure, the defendant reserved to himself the option of discharging either in a horse or cash notes; but he does not contract that he will do so, and the plaintiff had no right to demand either of them from him. The act of 1807, c. 95, was only intended to apply to cases where property was the direct and immediate object of the contract, not to cases like the present, where money is the thing contracted for, and the payment of property collateral thereto. On the day this covenant fell due, if the defendant had tendered the money, plaintiff could not have replied that he contracted for property, and not money, but would have been bound by the tender. But if it had been a contract for property, a tender of money in discharge thereof, would not have been good, because mo |