Rector v. Fornier

delivered the opinion of the Court.

This was an action on the case, brought on a note of hand, drawn by the plaintiffj in error, in favor of the defendants, for a sum oi money, payable eight months after date, for value received. To this declaration there was a general demurrer, which *145wa9 overruled by the Court below, and final judgment given for the amount of the note, with interest; to reverse which, this writ of error has been brought, and the general error assigned. The only question which presents itself forthe consideration ■of the Court, and indeed the only one raised by the plaintiffs in error, is, whether it is necessary to state in a declaration, the consideration for which the note was given ? The counsel for the plaintiffs in error, have cited several authorities for the purpose of shewing, that according to the course of the common law, prior to the statute of 3 and 4 Anne, no action could be sustained on a note, merely as such; but that, on a special count, in indebitatus assumpsit, such note might be given in evidence in support of the action. Whatever, however, may have been the decis’on in England prior to the passage of the above statute, which is not in force in this State, is not a question for this Court to decide on, as the law of 1807, is positive, that whenever any suit shall be commenced, founded on any writing, whether the same be under seal or not, the Court, before whom the same is depending, shall receive such writing In evidence of the debt or duty, for which it was given, unless the defendant shall, in the manner therein pointed out, deny the execution of such writing, by plea, supported by affidavit, filed at the time of putting in such plea.

The decisions of the late Superior Court of the Territory have been uniform, that it is not necessary for the plaintiff, in his declaration, to state the consideration for which the note declared on, was given, and such has been the practice under our statute; and were this Court, at this time, to make a contrary decision, it would, in ■effect, declare all the decisions heretofore given, to have been erroneous.

The judgment of the Circuit Court is, therefore, affirmed, with costs.