This was an action on the case founded on a promissory note for the payment of 495 dollars, in cotton, at twelve cents per pound, at a future day, and at a particular place. The declaration contains, first, a count on the note, as a promissory note, and secondly, the usual money counts, but filed no account or bill of particulars. The defendant demurred to the first count, and plead the general issue to the others. The court overruled the demurrer, and the plaintiff took judgment by default final. The defendant below sued out this writ of error, and assigns for error, that the court erred in overruling the demurrer; that the declaration was insufficient; that the case should have been submitted to a jury either on the plea of non-assumpsit, or on a writ of inquiry.

The plaintiff in error contends that the instrument sued on is not a promissory note. It is not necessary, at this day, to enter at large on the investigation of this subject. The decisions have been imiform in this state, that a note of this description is a promissory note, and may be declared on as such. The maker promises to pay to the payee, a sum certain, to wit, 495 dollars at a day and place certain, in cotton, at a certain price. The promise is in the usual form of a promissory note; and the promise to pay in cotton at a particular time and place, is a privilege given to the maker, to make payment either in cash or cotton. If in cash, the sum was ascertained; if in cotton, that was capable of being made certain, by the most simple mode of calculation. But, if there was any doubt about this matter under the British statutes, there can be none under ours. Hut. and Howard, 373, sec. 12.

*59As to the other errors assigned, we think there is nothing in them. On overruling a demurrer to a declaration for a sum certain, the statute allows judgment final to be rendered, unless the defendant can show a meritorious defence, by affidavit. This was not done.

In the case of Gridley v. Briggs & Co., 2 Howard, 830, the law is well settled, that on a declaration on a promissory note, with the common counts, and no bill of particulars filed, it is not error to' dispense with a writ of inquiry, and verdict of a jmy. See also 3 Howard, 46. We consider that the plea of non-assumpsit to the common counts, does not alter the case. The plaintiff below claimed nothing and has obtained nothing under those counts, and a trial by jury would have been nugatory without a bill of particulars, or an account filed.

I refer to the very full and able briefs of the counsel on each side.

Judgment affirmed.