Caswell County NcArchives Court.....Stamps, V. Graves 1825
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 10:55 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

STAMPS v. GRAVES. 

From Caswell.

A variance between the writ and declaration, the former being in debt, the 
latter in assumpsit, is fatal even after verdict.

A note not assignable within the statute, cannot be declared on, the 
consideration must be stated and proved, the note can only be evidence to the 
jury.

Where a note is made payable on a contingency, and the contingency is of such 
kind as shows no benefit to the one or injury to the other party, the note of 
itself is no evidence of a consideration, but proof of a consideration must be 
given independent of the note.

This was an action of debt, brought on the following instrument:

I promise to pay John Stamps for John W. Graves, the sum of two hundred and 
eighty-six dollars and 32-100, out of a bond when it shall (103) be collected 
on James Daniel for the sum of four hundred and fifty-two dollars, due the 1st 
of March, 1820, eighteen hundred and twenty. 30th Dec. 1819.

(Signed) A. Graves.

The declaration was as follows:

John Stamps complains of Azariah Graves, in custody, &c., for that whereas the 
said Azariah Graves heretofore, to wit, on the thirtieth day of December, in 
the year of our Lord one thousand eight hundred and nineteen, to wit, at 
Caswell, aforesaid, for value received, made his certain promissory note, 
bearing date the day and year aforesaid; and thereby then and there promised 
to pay to the said John Stamps for John W. Graves, the sum of two hundred and 
eighty-six dollars and 32-100 out of a bond when it should be collected on 
James Daniel, for the sum of four hundred and fifty-two dollars, due the 1st 
of November, 1820; and the said John Stamps in fact saith that afterwards, to 
wit, on, etc., at, &c, the said money was collected on the bond aforesaid of 
the said James Daniel; by means whereof the said Azariah Graves became liable 
to pay, &c., and being so liable, in consideration thereof, promised, &c.

And whereas, also, afterwards, to wit, on, &c., the said Azariah Graves at, 
&c., for value received, made his certain promissory note, bearing date, &c., 
and thereby then and there promised to pay to the said John Stamps for John W. 
Graves, the farther sum of, &c., out of a bond when it should be collected on 
James Daniel for the sum of, &c.; and the said John Stamps in fact saith, that 
afterwards, to wit, on &c., at, &c., the aforesaid bond on James Daniel was 
collected by the said John W. Graves, by means whereof the said Azariah Graves 
became liable to pay, &c., and being so liable, in consideration thereof, 
promised, &c.

And whereas, also, afterwards, to wit, on, &c., the said Azariah Graves at, 
&c., for value received, made his certain promissory note, bearing date, &c., 
and thereby then and there promised to pay to the said John Stamps (104) for 
John W. Graves, the farther sum of, &c., out of a bond when it should be 
collected on James Daniel for the sum of, &c.; and the said John Stamps in 
fact saith, that afterwards, to wit, on, &c., at, &c., the aforesaid bond on 
James Daniel might have been collected, and that the collection of the said 
bond was prevented and defeated by the wilful act of the said John W. Graves; 
by means whereof the said Azariah Graves then and there became liable to pay, 
&c., and being so liable, in consideration thereof, promised, &c.

The fourth count was for money lent and advanced.

The fifth, for money had and received.

The defendant pleaded the general issue and payment, and on the trial before 
Paxton, Judge, the plaintiff proved the execution of the instrument; that John 
W. Graves brought suit against James Daniel on the bond mentioned in the 
declaration, and obtained judgment; that Daniel appealed to Caswell Superior 
Court, and gave as securities for his appeal Charles Wilson, John G. Wilson, 
Jeremiah Dixon and James Clay; that judgment was rendered in the Superior 
Court against Daniel and his securities, and execution issued thereon against 
them; that on this execution the sheriff returned that, exclusive of the 
costs, $236 had been paid by Jeremiah Dixon, and that no property could 

11—13

be found to satisfy the residue. Plaintiff also proved that James Daniel and 
James Clay were insolvent, and that Jeremiah Dixon made the payment above 
stated in behalf of himself, and Charles and John G. Wilson; that the payment 
was made under an agreement between Solomon Graves, as agent for John W. 
Graves, and Dixon and the Wilsons, that they, the securities to the appeal, 
should be discharged from all farther liability for the balance of the debt, 
and they were discharged accordingly.

The defendant offered to prove by parol, that the instrument was given by the 
defendant as agent for John W. Graves, but the Court rejected the testimony; 
de-(105)fendant contended, also, that it was incumbent on the plaintiff to 
show a consideration for the instrument, but the Court held otherwise.

It was admitted, that at the time Dixon and the Wilsons were discharged, the 
defendant was not the agent of John W. Graves in collecting the debt from 
Daniel; and also that no part of the money raised on the execution against 
Daniel and his sureties was ever received by the defendant.

The jury, under the charge of the Court, gave a general verdict for the 
plaintiff, and the case stood here by appeal of defendant, on a rule to show 
cause why a new trial should not be granted.

Seawell, for the appellant.

1. The writ is in debt, and the declaration in assumpsit. This is such a 
variance that the plaintiff cannot have judgment.

2. The first count of the declaration is defective; it does not show by whom 
the bond was collected. So is the second count, for it alleges a collection by 
Jno. W. Graves, and no receipt by the defendant is shown. The third count is 
plainly defective, for it shows no collection, but instead thereof that the 
collection was prevented by the wilful act of John W. Graves. He is a 
stranger, and his default is not equivalent to a collection; this is true only 
of the act of the party himself. As to the fourth and fifth counts, for money 
lent, and money had and received, there is no evidence to support them, as 
will be shown; but at present it is sufficient to say, that several of the 
counts being bad, and the verdict general, the plaintiff cannot have judgment.

3. It was incumbent upon the plaintiff to show an actual collection of the 
money due upon the bond, according to the terms of the contract on which the 
action is brought. 

But a collection by John W. Graves, even if proved, is not sufficient, for a 
collection by the defendant is to (106) be intended. But there was no 
collection of the bond; a part was received, and the residue released by J. W. 
Graves; and if a release or discharge by the party be equivalent to a 
collection, such act by a stranger will not be. Where the liability depends on 
the act of one got party to the contract, a performance must be shown, nothing 
is equivalent to it.

4. Even if the plaintiff was not bound, in the first instance, to show a 
consideration for the promise, yet here he is not entitled, for the case shows 
there was not a consideration. The very terms of the note rebut the idea of 
any consideration. The promise is made for John W. Braves; no benefit appears 
to the promissor, no injury to the promissee. The defendant was discharged 
from his agency for J. W. Graves before the collection of any part of the 
bond; no part of it was received by him; and the promise, which was nudum 
pactum at its making, never became binding by any subsequent benefit to him, 
or loss to the plaintiff.

But, fifthly, the Judge should have required proof of a consideration from the 
plaintiff. The promise being without seal, required a consideration, and its 
existence is not presumed. A case of the very highest authority shows, not 
only that a consideration is necessary and must be alleged, but that it must 
be proved. The contrary notion stated by Mr. Justice Blackstone as to 
promissory notes, is without foundation. Rann v. Hughes (7 Term, 346, n.; 1 
Fonb., 343).

Badger, for the appellee.—As to the variance. The capias ad resp. is not an 
original writ, and a variance between that and the declaration is not matter 
of any consequence. The capias is mere leading process, which presupposes an 
original; its whole object is to bring the defendant into Court, to receive a 
copy of the declaration which contains the cause of action, and to which the 
defendant pleads. As soon as the defendant is in Court, and (107) the 
declaration delivered, the process is at an end, its whole function being 
performed. It is no part of the record, and a defect in it, or a variance from 
the declaration, is no ground for plea in abatement, demurrer, or motion in 
arrest of judgment. No advantage can be taken of such defect or variance ex 
rigore justitioe, for the reason that the capias is no part of the record. The 
party may apply to the discretion of the Court to set aside the proceedings, 
which will be done only where the attainment of justice requires it. 

These positions are fully supported by the case of Hale v. Finch (2 Wilson, 
393); Drew & wife. v. Rose (2 Ld. Raym., 1398).

But if the writ in this case be considered an original, the objection cannot 
prevail. For the Courts never would, at any period, notice such a variance, 
but upon oyer of the original, unless the variance appeared upon the face of 
the declaration; and it has been long settled, that the defect even thus 
appearing upon the declaration, will not be noticed unless oyer has been had 
of the original. Ellery v. Hicks & wife (4 Mod., 246).

But since the case of Brats v. Edwards in the K. B. (Doug., 227), and that of 
Ford v. Burnham in C. B. (Barnes, 340) the Courts, by refusing oyer, have 
prevented all advantage for the want of or for a vicious original, or for a 
variance. (1 Saund., 318, a. n., 3.)

Rut this being an objection taken after verdict, it cannot prevail, in 
whatever character the writ may be considered, whether as an original or 
process. For the statute of 5 George, 1, ch. 13, enacts, "that after verdict, 
judgment shall not be arrested for any variance, whether in form or substance, 
in any writ original or judicial, from the declaration or other proceedings." 
If this statute is in force; here, it is of course decisive of the question.

Chief Justice.—It is in force. It has been so decided in this Court.

Badger.—The case being then freed of this technical objection, is to be 
considered upon the questions made (108) in the Court below and presented by 
the case: 1. Was it incumbent on the plaintiff, in the girst instance to prove 
a consideration? 2. Is the defendant personally liable on the note?

1. The rule laid down in Rann v. Hughes, is not denied. There must be a 
consideration to support every agreement not under seal; and where it appears 
to be without consideration, though in writing, it has no legal obligation. 
But the question here is, not whether a promise without consideration can be 
enforced, but what is prima facie proof of a consideration? Was the plaintiff 
bound to offer proof dehors the note in the first instance, or was the 
execution of the note sufficient proof of consideration until some evidence of 
the contrary was produced by the defendant?

It is admitted, the note on which this action is brought is not negotiable, 
and therefore derives no help from the statute of Ann. But without the aid of 
that statute we hold, that a written promise to pay is presumed to be founded 
upon sufficient consideration, and throws the onus of proof on the other side.

The case of Meredith, v. Chute (9. Ld. Raym., 759), was determined before the 
statute of Ann, and it was held by the Court clearly that the signing a note 
is evidence of a good consideration against the maker, although the note 
expresses none on its face, and none is alleged. This doctrine is demanded by 
the necessities of mankind, and founded on a knowledge of human conduct and 
motives. It is not to be presumed that a man will make a written promise to 
pay money (which shows deliberation) unless he is under a sufficient 
obligation to do it; for men are not prone to part with money without motive.

The distinction is clear between the necessity of a consideration and the 
obligation of proving it. Even in commercial instruments, a consideration is 
always material. It is true if a promissory note made without consideration be 
assigned for value, the want of consideration be-(109)tween the original 
parties cannot be objected against the assignee who has paid for it. Whether 
the consideration be prior to the making of the note, or arise afterwards upon 
an assignment, is immaterial; but a consideration there must be; for it is 
clear from a variety of cases, that a note made without consideration, and 
transferred by an assignment merely gratuitous, cannot be enforced by such 
assignee, either against the maker or the indorser. It is but a promise in 
writing, and cannot create a liability if the want of consideration appear. 
Yet what is the rule as to the burden of proof? Was it ever said that a 
plaintiff should be non-suited for not producing evidence of the 
consideration? The law and uniform practice is to the contrary. Proof of the 
bill, the note or the indorsement, is sufficient proof of consideration to 
entitle the plaintiff to recover, (l Selw. N. P., 241, 294; Chitty on Bills, 
part 1, ch. 3, p. 62.)

2. The defendant is personally liable upon the note, and the fact that he 
ceased to be the agent of the party for whom he contracted, cannot affect our 
right, or discharge him from his engagement. If one covenant for another, and 
execute the deed in his own name, he is personally liable. Appleton v. Binks 
(5 East, 148). So where the promise was "we as solicitors of A. B., &c., 
undertake," &c. Burrell v. Jones et. al (3 Barn. & Ald., 47). So where the 
note was in these words, "we, as executors of the late T. T. jointly and 
severally promise to pay." Childs v. Monins (2 Brod. & Bing., 460). Contracts 
by agents and servants of government are exceptions. (1 T. R., 172, 674, and 4 
Mass. R., 595.)

As to the declaration. The first count alleges the collection, and that is 
enough. It is immaterial by whom the collection was made; the promise to pay 
when the bond should be collected. As to the second count, a collection by W. 
Graves is of course sufficient, if the liability arise upon a collection 
merely, without regard to the person making it. The third count alleges, that 
the collection was prevented by the wilful act of J. W. (110) G. That is 
sufficient; the defendant has contracted for him, and he is not to be 
considered a stranger as to this contract, at least by the defendant.

But if any of these counts should be bad, the Court will allow us to enter up 
the verdict upon the counts for money had and for money lent. The note is 
evidence upon those counts, and they are good; and it appears from the case 
that no evidence was given but the note. If this cannot be done, the Court 
will permit us to amend by striking out the defective counts, in order to 
avoid a technical objection, and to attain the justice of the case. The 
objection does not concern the merits; the case was not brought here upon any 
such objection; and if the law is with us upon the questions presented by 
the "case," we hope we shall not now be prejudiced by the defects of the 
declaration, when there are counts which the evidence will support, on which 
we can have judgment.

Henderson, Judge, delivered the opinion of the Court as follows:

It is objected by the defendant, that the writ is in debt, and the declaration 
is in case or assumpsit.

The plaintiff answers, that this objection does not appear, oyer not being 
craved of the writ; and it is likened to the original in England, and English 
authorities are cited which fully support the answer. But the objection, as it 
exists here, is not answered; the writ issuing from the same Court is upon 
record without its being put there upon the prayer of oyer. In England, the 
original issuing from a different Court (the Court of Chancery) can only get 
on the records of another Court, but by obtaining oyer of it.

It is next answered by the defendant, that the writ being only process, a 
variance between it and the declaration is immaterial; that the defendant in 
Court is bound to plead to any declaration; and English authorities (111) are 
cited, which also fully establishes this position.

This answer requires some investigation. In England no possible injury can 
arise to any one by thus disregarding the process, neither the bail to the 
writ, bail to the action, or the defendant. In this country, both the bail and 
the defendant may be materially injured by it. In England, the bail to the 
writ are discharged by the defendant's appearance, the condition of the bail 
bond is fulfilled. The bail to the action cannot be injured, because they 
contract their obligation after appearance, and this obligation is evidenced 
by what is called the bail form, in which the particular action is specified 
in which they are bail, and they can be made answerable in no other. The party 
cannot be injured, because no steps can be taken against him until he appears 
in Court, not even to declare against him; and if he is surprised by the 
charge, he is entitled to time to plead. The process may, therefore, very 
properly be considered as functus officio, and be disregarded. But in this 
state the bail to the writ are also bail to the action; and if the process may 
be disregarded, they may be charged with a judgment in a different action from 
the one in which they became bail. But it is said, if the action is varied, 
the bail are discharged. Not so, I answer, if it is a matter of course to 
disregard the process; it is only by regarding it that such consequence 
follows, but above all, the heaviest consequences may fall on the defendant. 
In England, a default is for withdrawing after having been in Court; no steps 
can be taken by the plaintiff until he has got the defendant in Court; if 
after having been in Court he withdraws, it is an admission of the facts 
alleged against him. By the construction put upon our Court law of 1777, a 
default may as well be before appearance as after; and we are daily in the 
habit of taking judgments by default against a person who has not appeared in 
Court, some of them final, some interlocutory. If it were a matter of course 
to disregard the process, and that a declaration might be filed for any other 
cause of action, a de-(112)fendant, who might have been arrested for some 
paltry sum which he disregarded, and therefore did not appear to defend it, 
either because it was due or for any other cause, might have a final judgment 
entered against him by default for half or the whole of his estate; or he 
might be sued for one thing which he admitted himself culpable in, and charged 
in another which he would have denied. And it is no answer to say, that the 
same law requires a copy of the declaration to be served on the defendant 
three or five days before Court; this omission must be shown by plea of the 
defendant, and if he makes default, he is not there to plead. The Court will 
only see that the original declaration is filed in Court within the prescribed 
time. These inconveniences would result from adopting the English practice, 
which is admitted to be proper there, but combined with our other rules of 
practice would be ruinous here. Nor is it any reason why they should be 
adopted here, that upon application to a Judge a supersedeas might be 
obtained; it might, but it is best to prevent the mischief. A man might have 
his property sold, or his person imprisoned, before he could have an 
opportunity to redress himself. I, therefore, think that the variance is 
fatal. But as this is a new case, and the Court below may allow of an 
amendment upon equitable terms, and there are good grounds for granting a new 
trial, the Court will not arrest the judgment, but leave it to the discretion 
of the Court below to allow an amendment, if it should think proper.

The next objection is to the declaration. The counts upon the note are bad. 
This is not a note within the statute of Ann, or our act of 1762. Were it so, 
it might be declared on, for these statutes make notes which came within them 
evidence of a debt, and not barely evidence of a promise, as such notes were 
before the statute. But this note being payable only on a contingency, and not 
absolutely, is unaffected by the statute. 

A note for (118) money before the statute, was evidence of so much money lent, 
or had and received; it was given in evidence on counts like these, and the 
Courts instructed the jury that they were well warranted in drawing such 
conclusions; for, from the nature of man, it was not presumable that he would 
give this deliberate evidence of his promise, without he had in his hands so 
much money belonging to the payee. But this was only presumption of fact; the 
law raised no such presumption, until the statute raised it. This note being a 
conditional promise to pay, on a contingency which might never happen, no such 
presumption can arise; it does not afford evidence that the plaintiff had lent 
the sum expressed in the note, or that the defendant had received such a sum 
for the use of the plaintiff; for if such had been the case, the plaintiff 
would not have accepted a note payable only on a contingency in satisfaction 
thereof. 

But if it is said, that at least it is evidence of some sum having been 
received, or some sum lent, it may be asked how much? Such a sum as would make 
the bet, equal, whether Daniel's note would ever be collected? We have no 
means of ascertaining how much this would be. Besides, this would be a species 
of gambling; to make the most of it, it would, be left to mere conjecture what 
the consideration was; it might be good and it might be bad. There can be no 
harm in compelling the plaintiff to set out in his declaration what the 
consideration was. I am satisfied that the one stated in the declaration is 
not the true one, to wit, for so much money had and received by the defendant 
to the use 

ll-14

of the plaintiff, or so much money lent by the plaintiff to the defendant, and 
that the Judge ought to have so instructed the jury. If the real consideration 
had been stated, and the money on Daniel's bond collected either in fact or in 
law, the Court could have passed on the contract, and given the plaintiff a 
judgment, if in law he was entitled to one, if not, a judgment for the 
defendant. As it is, it is all conjecture. For this omission of the Judge on 
submitting an issue to the jury without any evidence (114) to support it, I 
think that a new trial should be granted.

I do not intend to be understood as conveying an idea that only such notes as 
are within the statute can be offered in evidence in support of the money 
counts, for the statute has no operation upon this question. A note for corn, 
cotton, or any other article, is certainly prima facie evidence of the maker's 
having received an adequate value; it is, therefore, evidence of such 
consideration prima facie. But I think these contingent notes, which may never 
become payable, do not raise such a presumption; in fact, the presumption 
which it raises is too uncertain. It requires proof of what the consideration 
was; and if proof must be made, the fact of the consideration must be stated 
in the declaration.

I should have thought that the statutes before mentioned had made notes which 
were within them conclusive evidence of a debt; for they declare, that when 
any person shall make any note for the payment of money payable to any other 
person, the money expressed to be payable therein, shall be considered to be 
due and payable to the person to whom the note is payable; thus making the 
note evidence of a debt by a conclusion of law, and therefore by the proof of 
the note, the debt is proved, and that the want of a consideration could be no 
defence, for a consideration is not required by the statute to make the note 
evidence of the debt; that notes within the statute by its operation stood 
upon the sanm grounds in this particular as specialties, which were good 
without a consideration; for I think that Mr. Blackstone is wrong when he says 
that a bond, from the solemnity of the sealing, carries with it an evidence of 
a good consideration; a voluntary bond is obligatory at law, and equity will 
not for that cause alone interfere, even if the want of a consideration 
appears upon its face, it is in the nature of an executed contract. The 
symbolical delivery of the obligor's seal, having the effect of executing the 
original contract, and when (115) an action is brought upon it, is not to 
enforce the original contract, which being executory would require a 
consideration, but to convert the symbolical performance into an actual one, 
as it were to compel the obligor to redeem the symbol. If a gift of a chattel 
is made and there is no delivery, such gift cannot be enforced for want of a 
consideration; the contract is voluntary and requires a consideration to 
support it; but if a delivery is made, the property passes without a 
consideration, it is then an executed contract, and the want of a 
consideration is immaterial. I mean to say, that a bond may be declared on 
without stating a consideration, and the defendant shall not impeach it by 
proof of the want of a consideration. A note within the statute has the same 
effect as a bond; it is evidence of debt, and is good without a consideration. 
To permit the defendant to impeach it for want of one, is, I think, in the 
teeth of the statute. But those who came immediately after the statute, said 
the statute affected no charge in them between the parties, and confined its 
operation to cases after assignment, so far as regarded a consideration; and I 
believe it is now the settled course of practice to permit the maker of a 
note, as well when the note is within as when it is without the statute, to 
impeach it for want of a consideration, in a suit with his payee, confining 
the operation of the statute to cases where there is an endorsement for value. 
Let a new trial be granted.

Judgment reversed. 

Approved as to first point. Glisson v. Herring, 13 N. C., 156. Overruled as to 
second point. West v. Rutledoe, 15 N. C., 31.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

File at: http://files.usgwarchives.net/nc/caswell/court/stamps1437gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 27.3 Kb