V. Octouer, of a new trial on certain conditions. It stood final, un1811 less the conditions were performed. The Court had no Hall power over it, except upop performance of those condiSmith tions. If the judgment was not final, (the time allowed for performance not being limited,) yet the Court could not receive a motion in arrest of judgment at a subsequent term ; for certainly that motion was, in itself, a waiver of the conditional right to a new trial; because a party cannot obtain a new trial after moving in arrest of judgment.* But, admitting that the Court might go further back than the judgment in October, 1805, the errors alleged are not sufficient. The assignment being in writing, the plain(a) Lilly's tiff was not bound to set forth a consideration. If Ent. 54. Pieader's .is there was none, the defendant should have made the sistant, 23, 24. Kyd 036 Bills of Exe Noie See Tidd's Practice, p. 821. 2 Salk. 617. 1 Burr. 534. The change, 276. case of Charles Smith's executors against The executors of Fielding Lezh was an action of assumpsit founded on a writi' g. signed by the testator of the defendants, but not under seal, in the following words: " I do hereby oblige myself, my heirs, executors, and administrators, to indemnify Mrs. Sraith from any demand which Mr. Edward Dorsey, Mr. Hawkins, and Mr. Kirk, may have against the estate of Captain Churles Smith, deceasel, for the said Charles Smith's becoming security for my son, Fielding Lewis, for money due them, and for any other sum, or sums, the said Sm th may be bound for my said son; provided the sum does not exceed two hundred pounds I itness my hand, this 11th of September, 1779." the declaration contained one count only, setting forth the said writing spec ally; a bond, in which the teltator of the plaintiffs became bound as security for the said Fielding Lemid, the younger, and a judgment thereupon, the amount whereot, with interest, damages, and costs, had been paid by the plaintiffs' executors as afo essid; but staring no consideration for the undertaking of Fielling Lewis, the cider, except the aforesaid securityship of the said Charles Smith for Fieldags Lezvis, the younger. After a verdict for the plaintiff's, for i81l Sa damsci, judgment was arrested by the district Court, and their judgment afirnici by the Court of appeals; three errors having been assigned by the counsel in the district Court ; viz. 1st. That no sufficient consideration for the assumpet laid in the declaration, was stated ; 2d. That upon the face of the declaration, it did not appear that the said Fielding Lewis agreed to indemnily Mrs Sanith, agaiust the bond and judgment in the said declaration mentioned; and, sl. That the assumpsit laid in the declaration, and the note of Field. ing Le vis, sen., was to Mrs. Smith, in her own right, and not as executris The second and third objections appear not to have been well founded; the judgment, therefore, was, probably, arrested, on the ground that the colusideration for the assumpsit was not sufficient, ; Hall V. 2 3 1671. kins. objection by plea, or by testimony, on the general is- October, 1811. sue.(a) At all events, however, the count in good after verdict; it being only a good case defectively set forth, and Smith. not a defective case, for the evidence of a consideration (a) Doug... is set forth, if not the consideration itself.(6) 5. Walker y. Witter. 2. If the first count be defective, the second is suffi- w'ash, 230, 231. Mackie's cient to maintain the action ;(C) and this notwithstand- erecutor Davis, ing the blank.(d) The cases of Smith v. Walker, 1 IVash. Burr. 1669, 1670, 135., and Blane v. Sansum, 2 Call, 495., appear to be Pillans, &c. v. Van Mieauthorities against me ; but, in those cases, the defects rop and Hopin the declaration were much greater than in this. (6) 1 Call, 257. Fulgham v. Lightfoot. Williams, for the appellees. The motion, in arrest of 2 H. Bl. 261. Bolton v. The judgment, was properly made, though at the next term Bishop of Carlisle. after the verdict ; for a new trial was granted on certain (c) Roe conditions, to be performed at a future term, and this out Crutchfield, was enough to prevent the judgment from being entered. 361. (d) Craghill It is like the case of the Court's continuing the cause and others x; Page, 2 H. after verdict found, thereby postponing the entry of the M. 446. pl. Stephens judgment. The party's not taking the new trial, when IPhite, 2 he thought the judgment ought to be arrested, was cor- Digges v . Norris, 3 II. & M. 268. 2. The declaration shows that due diligence was not used in bringing suit against the obligors. In Mackie's executor v. Davis,(e) Judge CARRINGTON (e) 2 Mah. If it be a question of law, it plainly appears, from this 4. IV ash. 203. rect. 231. 1811. Hall V. Smith. OCTOBER, declaration, that the plaintiff had not made out a case of due diligence ; and, therefore, a demurrer to the first count might have been sustained on that ground, as well as the other, that no consideration for the assignment is stated. 3. The assignment's being in writing does not imply a consideration. Hites, executors of Smith, v. Lewis's (a) MS. Or- executors,(a) is a case in point to this effect. There is der Book, October 29th, no consideration averred, and it cannot be intended that 1804, No. 5. any was found by the jury. Rushton v. Aspinall,6) (6) 2 Doug. shows that such a defect is not cured by verdict; the very 679. gist of the action being omitted in the declaration. 4. The general count seems to me to have no ground to support it, being blank throughout. If it be good, no consideration is requisite to the validity of a promise ; for it does not appear whether one penny, or one shilling, or what sum of money is alleged to have been received. There is no case in this Court in which a declaration, completely blank, has been supporteda p. 105. Botts, in reply. Mr. Williams's observations concerning the case of Mackie's executor v. Davis, (considering his usual accuracy,) surprises me. In that case Judge ROANE observed, “ that due diligence was used by the appellees to recover the money from the obligor, is admitted by the verdict, and, therefore, this circumstance will be considered as forming a part of the case.” How could this have been so, if due diligence was not matter of fact ? Due diligence, in this country, is very different from what is so considered in England. Here, a variety of circumstances always enter into the inquiry. * How, when, and where have those circumstance's been announced, as matter of law, to the people of this country? The case might have been satisfactorily made out to the jury: it should, therefore, be presumed that it was. The consideration of the assignment was not necese *Note. See Goodall v. Stuart, 2 H. & M. 105 - 116. 1811. Hall v. sary to be set forth. The uniform course of declaring, in October, The second count is not altogether blank. It charges, when they should afterwards be required.” It alleges that some money was received, though it does not specify how much. It is clearly, therefore, only a good case defectively set out; for we could not have obtained a verdict without proving to the jury the sum received. January 27th, 1813, the president pronounced the opinion of the Court; “ that the first count in the declaration was faulty, in not having averred a consideration on which the assumpsit was charged; but that the second count was sufficient to support the action; and, therefore, the errors filed in arrest of judgment were insufficient." Judgment for the appellant. *Note. See Chitty on Bille, p. 9. and 185.; also 246–249. Argued Nov. 10th, 1811. M-Clenahan against Gwynn. to restore the ed to, or 1. A person THIS was an action of assumpsit, instituted in the assigning Jease, för va- late district Court, holden at Haymarket, by Humphrey , but without Gwynn against John U-Clenahan. any special a The declaration contained three counts. The first set greement to be responsible forth a general assignment to the plaintiff, by the defend. is not bound ant, (who was himself an assignee, the several assignpurchase-mo- ments being stated,) of an unexpired term of a lease ner, upon the eviction of the from Thomas Nelson, sen., to Richard Milton; which as. Assignee, in consequence signment was made to the plaintiff, on the 3d of Janua: of a detect in the lessons" ry, 1797, in consideration of the sum of 1,208 dollars, title; espe. then paid by him to the defendant, who was charged as cially wliere the lessor has having “sold the said lease, as one to which he had full not been previously resort- and complete title, and as one assuring a term then unshown to be expired, to which he, the said defendant, had right, and insolvent, and where the good authority to convey and assure ; yet the defendant's possibility of the eviction title to convey and assure the same lease and term then was in con; unexpired was feigned and imperfect;" for, by a decree templation of both the par. of the federal Court, foreclosing a mortgage given by a time of the ag- certain Lewis Burwell, of whom Thomas Nelson, the les. signment. sor, bought the land, (which suit was instituted before 2. Where a lease is assign the assignment to the plaintiff as aforesaid, and to which cd, and the as- decree neither the plaintiff nor defendant was a party.) signee is evieted, through a the plaintiff was evicted, and lost the benefit of the lease. defect in lessor's title, The second count was the same in effect, adding the he may sue the lessor for charge of a representation by the defendant that he was compensation. selling a good title. The third was for money had and received. On the general issue, a special verdict found the lease ; the several assignments thereof, including that to the plaintiff, which was in general terms, for value received; the sum given for it by the plaintiff; the value of so much of the term as was yet to run when the plaintiff ties at the |