OPINION THE COURT — by the

The demurrer to the declaration was properly sustained. The instrument upon which the suit is brought shows on its face an insufficient consideration. The defendants bound themsqlves in the pena I sum of $500; *489and the condition recites that, whereas the plaintiff had purchased of Darius Cameron a negro man named Jack, if any claims should come against said slave, so as to take him out of the hands of plaintiff, agreeobly to law, obligation was to remain in full force.

The purchase had been made and completed with Darius Cameron; agreeably to the statement of the obligation, before it was entered into.— There was no new consideration moving defendants to enter into this obligation, and, without this, it is a nudum pactum.

If it were true, as plaintiff’s counsel contend, that the court should, in all cases, on sustaining a demurrer, give leave to amend, whether the leave be asked or not; yet this would appear to be a case in which no amendment will help. The consideration upon which the instrument was given, is expressed, and no other andjdifferent consideration inconsistent with that mentioned, can be alleged or proved.