Adams County MsArchives Court.....Minor, John June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

JOHN MINOR vs. ISBELLA MICHIE, Adm'x. of David Michie, deceased.


Where the contract is by deed, it is not necessary to set forth consideration 
upon which it is founded, as the law in that case implies a consideration 
where none is stated.

A consideration is also implied upon bills of exchange and promissory notes, 
but in all other cases, the consideration not being implied must be stated in 
the declaration.

A writing in these words, "Due Mr. David Michie nine hundred and ninety-one 
pounds clean cotton, on demand. Natchez, April 14, 1800. (Signed) John Minor," 
is neither a deed, bill of exchange, or promissory note, and in declaring upon 
it, a consideration must be stated, and the	omission to do so, is a fata1 
defect, not cured by a verdict.

In all cases, where the contract is to deliver any onerus property, on demand, 
and no time or place for the delivery is specified in the agreement, a special 
demand must be alleged and proved.

This was an action of trespass on the case, instituted in the year 1812, by 
the defendant in error, in the county court of Adams county, and transferred 
to the Superior Court of said county, under the act of January 20, 1814.

The declaration contained four counts. The first was in substance as follows, 
viz: "For that whereas the said John, on the fourteenth day of April, in the 
year of our Lord, one thousand eight hundred, at Natchez, in the county 
aforesaid, made his certain note or memorandum in writing, subscribed with his 
own proper hand and name, bearing date, the day and year last aforesaid, and 
then and there delivered the said note, to the said David, in his lifetime, 
and thereby acknowledged to be due to the said David Michie, nine hundred and 
ninety-one pounds of clean cotton, on demand. Yet the said John, when thereto 
requested, by the said David, in his lifetime, to wit: on the day and year 
last aforesaid, nor at any other time whatever, at the place, in the county 
aforesaid, did not pay to the said David Michie, the said nine hundred and 
ninety-one pounds of clean cotton, mentioned in the said note, according to 
the tenor and effect of the same, by reason whereof the said John, became 
liable to pay the said David, in his lifetime, so much money as the said 
cotton, mentioned in the said note was reasonably worth, on the day and year, 
at the place in the county aforesaid." It then avers, that the said cotton was 
worth four hundred dollars, of which the said John then and there had due 
notice, "and being so liable, he the said John afterwards, to wit: on the 
fourteenth day of April, in the year of our Lord, eighteen hundred and six, at 
the place in the county aforesaid, assumed upon himself, and to the said 
David, in his lifetime, promised to pay the said sum of money above mentioned, 
when thereto requested." The second count was for four hundred dollars money 
had and received; the third, for four hundred dollars worth of goods, wares 
and merchandise, sold and delivered; and the fourth, a quantum valebat, for 
other goods, sold and delivered, averred to be reasonably worth four hundred 
dollars. The declaration concludes with the usual assignment of 
breaches, "that the said several sums of money or any part thereof, the said 
defendant hath not paid to the said David, in his lifetime, or to the said 
Isabella, since his death (although often thereto requested.) to wit: on the 
day and year last aforesaid, at the county aforesaid, but hath hitherto 
refused &c. to the damage &c. 

To this declaration the defendant pleaded two several pleas, viz: 1. Payment 
of the cotton in the note mentioned, on the first day of January, 1810, upon 
which an issue was made up. 2. "Non assumpsit infra sex annos." To this plea 
the plaintiff replied, that after the cause of action accrued, to wit: on the 
first day of January, eighteen hundred and six, the defendant left the 
Mississippi territory, and went into the territory of Orleans, where he 
resided until the sixteenth day of December, eighteen hundred and eleven, when 
he returned into the county of Adams, in the Mississippi territory; and that 
the plaintiff thereupon, to wit: on the seventh day of December, 1811, sued 
out her writ of capias ad respondendum, against the defendant &c. and 
concluded with a verification.

The defendant in his rejoinder, denied his removal into the territory of 
Orleans, and his residence there, until the sixth day of December, eighteen 
hundred and eleven, and issue was taken upon said rejoinder. At the trial of 
this cause, upon the issues joined as aforesaid, the plaintiff gave in 
evidence, a note in writing, of the following tenor, to wit; Due Mr. David 
Michie nine hundred and ninety-one pounds clean cotton, on demand. Natchez, 
l4th April, 1800. (Signed,) John Minor. This was all the evidence offered by 
the plaintiff, to support the issues on her part. Whereupon the defendant by 
his counsel moved the court to instruct the jury, that the plaintiff could not 
recover on said note, unless she proved a demand, or an attempt to demand, of 
the defendant, the cotton in said note mentioned, before the commencement of 
the suit. The court refused to give the instruction prayed for, but instructed 
the jury, that no demand, of the cotton mentioned in said note was necessary 
to be made or proved, as cotton was the staple of the country. To the opinion 
of the court in refusing to give the instruction prayed for, and to the 
instruction as given, the defendant by his counsel, filed his bill of 
exceptions. The jury as to the first promise and undertaking in the 
declaration mentioned, found for the plaintiff; and assessed her damages, by 
reason of the non-performance of said first promise and undertaking, to thirty-
seven dollars and sixty-one cents, besides costs &c. And as to the second 
promise, and undertaking in the declaration mentioned, they found for the 
defendant; not noticing in their verdict the third and fourth promises and 
undertakings in the declaration alleged, nor the issue upon the plea of 
payment. Judgment was rendered according to the verdict, against the 
defendant, to reverse which judgment he sued out this writ in error. The 
errors assigned were the following, viz:

1. There is no consideration alleged or stated for the promise, in the first 
count of the plaintiff’s declaration.

2. The evidence offered and objected to was not sufficient to support a 
verdict.

3. The jury were misdirected in the charge given by the court and excepted to.

4. The jury have not found the issues joined.

5. The judgment ought to have been given for the plaintiff in error, instead 
of the defendant in error.

Harding for plaintiff in error - There is no evidence in this case to support 
any of the counts in the declaration, except the first. If therefore, the 
first count be defective, or the evidence be insufficient to support it, the 
judgment must be reversed. This is an attempt to charge the plaintiff in 
error, upon his alleged promise, to deliver a certain quantity of cotton. But 
it is not stated in the declaration, nor does it appear in proof, that there 
was any consideration for the promise. If there were no consideration, it was 
a void undertaking and the law will not lend its aid to enforce the 
performance. It is "nudum pactum unde non oritur actio." It is as necessary 
that the consideration should be stated in the declaration, as that there 
should be one; for the plaintiff, must shew every thing which is essential to 
his right of recovery. Hence in every declaration in indebitatus assumpsit, we 
state that the defendant was indebted in a certain sum, for money had and 
received, work and labor done, goods, wares and merchandise, sold and 
delivered, &c. and being so indebted, in consideration thereof, promised to 
pay, &c. No man will contend that a declaration would be good, which merely 
stated that the defendant being indebted, promised to pay, without shewing 
how, or for what he was indebted. It is not sufficient to allege that there 
was a valuable consideration for the undertaking. The particular consideration 
must be shown, that the court may judge of its sufficiency. 7 Term Rep. 350; 
Roberts on Frauds 8, 118 in notes; 1 Str. 680; see also 1 Bibb 182; 2 Bibb 
300, 585; 3 Bibb 76, 85, 102.

In this case, no right of action could accrue, until after a demand of the 
cotton was made. The promise here was to deliver a certain quantity of cotton, 
on demand. The request being parcel of the contract, ought to have been 
alleged and proved, with the time and place of making it. If the promise to 
pay money on demand, or deliver property at a certain day and place, the 
debtor must, at his peril, seek his creditor, wherever in the state he may be 
found, and pay him the money; and in the other, be careful to deliver the 
property, according to the agreement between the parties. But where the 
undertaking is to deliver goods, or other cumbrous property on demand, and no 
certain time or place is agreed upon for the delivery, it is the duty of the 
creditor, before the institution of his suit, to seek his debtor and demand 
payment. Most of the modern decisions require the demand to be made at the 
debtor’s residence. The reason of this distinction in the law, in regard to 
the obligation to pay money or property, is very obvious. Money is light and 
easy of transportation, but the onerous nature of goods, and other specific 
property, makes it very difficult, not to say impossible, for the debtor to 
carry them about with him. It is therefore reasonable that he should not be 
subjected to a suit, until the creditor informs him, that he is ready and 
willing to rreceive them. The averring a special request or notice, where by 
law they are necessary, is matter of substance, and may be taken advantage of 
upon special demurrer, and is not aided after verdict. In like manner, the 
failure to prove a demand, when by law it is necessary, is such a defect in 
the testimony, that a verdict cannot be supported on it. The evidence was 
therefore clearly insufficient to warrant the jury in finding such a verdict 
as they did, and the court below erred in their instructions to the jury, and 
in rendering judgment upon the verdict. 5 Com. Dig. 365; 1 Saunders 33; Tay. 
149; 1 Swift 404; 2 Do. 155; 1 Tid. 387; 1 Chit. 322; 5 Term R. 410; 7 Do. 
125; Bull. N. P. 151.

Rankin contra.—It is admitted that in most cases in indebitatus assumpsit, it 
is necessary to allege in the declaration a consideration for the promise. In 
assumpsit upon bills of exchange and promissory notes, a consideration is 
implied, and is not necessary to be alleged. In this case, the undertaking was 
in writing, formally and deliberately entered into, and it ought not to be 
presumed to have been made without consideration. The jury have found a 
verdict for the defendant in error, and after the finding of the jury, the 
court will presume a consideration, unless the contrary be shewn. Anthon's 
Dig. 385; Kirby 402; 1 Tidd 379.

If the contract be to pay a sum of money founded upon a precedent debt or 
duty, on demand, a special request is not necessary to be made or alleged, but 
the bringing of a suit is a sufficient demand. The request is as much part of 
the contract, in that case, as the one under consideration. The undertaking 
here is not collateral, it is direct. It seems to be difficult to assign any 
good reason, why a demand should be necessary in one case, and not in the 
other. There is no greater difficulty in tendering goods or specific property 
than money. In, either case, the debtor may discharge his obligation by a 
tender. Where the contract is for the delivery of specific property, and no 
time or place for the delivery is agreed upon between the parties, it is the 
duty of the debtor to enquire of the creditor, when and where he will receive 
it. This is believed to be the law in England. In Kentucky, the course of 
decision has probably been different. But in New York and South Carolina, a 
demand in a case like this would not be deemed necessary. 7 John 462; 1 Bay 
105.

Per Curiam.-Two questions only have been made by the counsel in the argument 
of this cause. 1. Whether it be necessary in a declaration in assumpsit, to 
set out the consideration of the undertaking or promise. 2. Whether a suit can 
be maintained upon a note for the delivery of property on demand, before a 
demand made. At common law, a valuable consideration is of the very essence of 
the contract.

Where the contract is by deed, it is not necessary to set forth the 
consideration upon which it is founded, as the law in that case implies a 
consideration where none is stated. 7 T. R. 457. A consideration is also 
implied upon bills of exchange, and promissory notes; but in all other cases, 
the consideration not being implied, must be stated in the declaration. 1 
Tidd. 379. The writing which constitutes the basis of the first count is 
neither a deed, nor a bill of exchange, nor a promissory note; a consideration 
ought therefore to be stated in the declaration. The omission to do it is a 
fatal defect not cured by the finding of the jury. The law has been long 
settled, that when the contract is founded upon a precedent debt or duty, as 
in the case of a bond, single bill, or for money lent &c. or is for the 
payment of a collateral sum, on a day certain, or otherwise than upon request, 
or the debt or duty arises immediately upon the performance of the 
consideration, then it is not necessary to allege a special request, but 
saepius requisitus, is sufficient; but, when the contract is to pay a 
collateral sum, upon request, then the request being parcel of the contract; 
and as it were a condition precedent, ought to be specially alleged, so where 
the contract is to deliver any onerous property, on demand, and no time or 
place for the delivery is specified, in the agreement, a special demand must 
be alleged. In all cases in which it is necessary to allege a special demand, 
it is equally neceassary, on the trial, to prove it. In this case a special 
demand was necessary; and as it was not proved, the evidence was not 
sufficient to support the verdict. Upon the fourth assignment of errors, we 
give no opinion, since upon the first the judgment must be reversed.

Judgment reversed.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 24-30.

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