WALKER, US. HARSHAW.

Some time after the execution of the bond, the plaintiff procured a surveyor, and in company with the defendant, went up. on the land and marked a line, laying out to the defendant two hundred acres of land, adjoining other lands owned by him; and both the parties appeared to acquiesce in the line so run. A few days after, the defendant became dissatisfied with the manner in which the line was run, and procured a surveyor and went again upon the land, in the absence of the plaintiff, and marked out another line, varying considerably from the former, reserving to himself, however, no more than 200 acres, and leaving to the plaintiff 167 acres, including the whole of his improvements.

The defendant then made and tendered to the plaintiff a title deed, according to the line last run, and this constituted his defence to the present action.

The jury, under the direction of the court, found a verdict for the defendant: and a motion was made, on the part of the plaintiff, for a new trial, on the following grounds:

1st. Misdirection of the presiding judge, in charging the jury, that the defendant had the power of fixing the location of the dividing line.

2d. Because the defendant was bound by the first line run. 3d. Because the second line was run without notice to the plaintiff.

The opinion of the Court was delivered by Mr. Justice Johnson.

It is not necessary to the determination of this case, to enter into a minute consideration of the several grounds taken in support of the present motion; they are all involved in a general view of the case itself; the conclusion from which appears to me to be irresistable. The condition of this bond requires nothing more of the defendant, than that he should make titles to the plaintiff for all the tract of land on which he lived, except two hundred acres; and that the land so to be conveyed, should include the plaintiff's improvements. Now, it will not be denied, that the plaintiff could not maintain an action on this contract, until the condition was broken. Has the defendant broken it? The answer is no: he has made, or, which is the same thing, offered to make the plaintiff a title to 167 acres of land,

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including the whole of his improvements; which is a literal compliance with the very letter of the condition. His bond therefore, has not been broken, and the plaintiff is not entitled to recover. It is not intended to advance the position, that there is no check on the power of the defendant to have located the land to be conveyed to the plaintiff, so capriciously, that it would have been of little or no value to him; on the contrary, I incline to think that in the partition of land, situated as this was, the same rules which apply to cases of joint tenancy and tenancy in common, ought to prevail; but a court of law possesses neither the power to make such a partition in this form of action, nor of compelling the defendant to carry it into execu tion. The court of equity alone, it appears to me, could give relief in such a case.

It may be necessary to remark on the 2d ground of the motion, that this action is founded solely on the bond; and even admitting that there was an express verbal agreement, that the line first run should be the dividing line between the parties, (if obligatory,) the defendant is only answerable on that agreement; and in addition to this view, I incline to think the defendant would be protected by the statute of frauds.

The motion is dismissed.-Richardson, Huger, Colcock and Gantt, Justices, concurred.

CHRISTIAN LONG, vs. JOHN KINARD.

After pleading to the merits, it is too late to take advantage of the omission to allege a day certain in the declaration, or of the omission to file a bill of particulars, by motion for a nonsuit, or in arrest of judgment.

THE declaration in this case contained two counts; one for money had and received, and another for a certain quantity of cotton, delivered to the defendant, on a contract that he should carry the same to Charleston, sell it, and pay over the proceeds to plaintiff, on his return; and the breach assigned, was, that defendant had not paid over the proceeds. The day was left blank in both the counts; nor was there any bill of particulars filed with the declaration. The defendant pleaded the general issue. When, the plaintiff had closed his evidence, the defendant's coun

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sel moved for a nonsuit, on the grounds, that the day was left blank in the declaration, and that a bill of particulars was not filed with the declaration. The court refused the motion, and the plaintiff had a verdict.

The defendant on appeal, moved for a nonsuit and in arrest of judgment; on the grounds taken in the court below. The opinion of the Court was delivered by Mr. Justice Johnson.

It is certainly true, that in declaring on a contract, it is incumbent on the plaintiff to set out a day; for the obvious purpose of pointing the defendant to the precise contract on which he sues; thereby enabling him to shape his defence so as to meet it fairly; and it is equally true, that a defendant could never be compelled to plead to a declaration in which the day was not stated. By pleading to the merits, the defendant has admitted that he was satisfied as to the identity of the contract, and all the rational purposes for which the allegation of a day is wanting, is attained. If it had been necessary, to enable the defendant to plead, he might have forced the plaintiff to it by special demurrer; and the objection comes too late at this stage of the

case.

The rule of court which requires that an account or bill of particulars should be filed with the declaration, has in view precisely the same object, which renders a day certain necessary; and the same rule will equally apply to this objection generally; but in this case, there are additional reasons why the motion, should not prevail on this ground. The second count, to which the evidence exclusively applied, sets out a contract, raised on the delivery of a specific quantity of cotton; and I am at a loss to know how any bill of particulars founded on it, could furnish the defendant with more information than is contained in the count itself. In any view of it, this objection, like the former, came too late: the defendant could only take advantage of it by special demurrer. The motion is dismissed.

The brief in this case, contained a ground for a new trial, but had no foundation in point of fact, and is not therefore noticed.-Nott, Richardson, Huger, Colcock, Gantt-Justi ces, concurred.

CHAPPELL & CURETON, vs. JOHN PROCTOR. Mistake in setting forth plaintiff's name in the declaration, can only be taken advantage of by plea in abatement: unless in case of variance between declaration and written contract of fered in evidence.

It is not necessary to prove a consideration, though the word “value received," be not contained in the note.

THIS was assumpsit on a note, drawn by the defendant, and payable to to the plaintiffs, by the name of " Chappell and Cureton," and the declaration was in the name of Chappell and Cureton, omitting their christian names. The defendant pleaded the general issue. The note was in the usual form of promissory notes, but the words "value received" were wanting. The plaintiffs had a verdict, and the defendant now moved for a new trial, or nonsuit, or in arrest of judgment, on the following grounds:

1st. Because the declaration does not set out the plaintiffs! christian names; or that they were partners.

2d. Because the words "value received," are not express ed in the note, and no consideration was proved.

The opinion of the Court was delivered by Mr. Justice Johnson.

There can be no doubt that the first ground of the present motion would have been a good objection, if the defendant had taken advantage of it at the proper time and in the proper way; for it is necessary that the parties to a suit should be as certainly designated as may be conveniently practicable: but it is equally clear that the objection, in this case, came too late; for it is a well settled rule of practice, that a mistake in the name of the plaintiff, can only be taken advantage of by plea in abatement; unless indeed, in cases where the contract given in evidence, differs from the name of the plaintiff, set forth in the declaration. But in this case, they correspond precisely: vide Chitty on pleading, 256.

In the case of "Ash and wife vs. executors of Smith," de. cided in Charleston, at Jan. term, 1823, it was determined, that since the statute, a note for the payment of money pre-supposes a good consideration, with or without the words "value re

ceived;" and if this be correct, the note itself was sufficient evidence of a consideration.

The motion is refused.-Johnson, Nott, Richardson, Huger, Colcock and Gantt, Justices, concurred.

ELIZABETH MOYER, US. JOHN A. FOLK and-FOLK. Note of hand given by defendant, charged as being the father of a bastard child, to plaintiff the mother; upon which, plaintiff's father entered into a recognizance to indemnify the district against the maintenance of the child. Soon after, the child died. Defence to the action on the note, failure of consideration. Decree for plaintiff, and new trial refused.

THE defendant, John A. Folk, was arrested under a warrant issued by a magistrate, on a charge of being the father of a bastard child, of which the plaintiff was delivered. When he was brought before the magistrate, the plaintiff's father and him self had a private conversation, and reported to the magistrate, that they had agreed to settle the prosecution; and the defendant gave the note on which this action was brought, which was or fifty dollars. The magistrate stated to them that he could not permit any accommodation, unless a recognizance, was entered into, to indemnify the district against the burthen of the support and maintenance of the child, as required by the act of assembly. The plaintiff's father accordingly entered into a recognizance, with sufficient security, in the manner prescribed. Shortly after, the child died, and on the trial in the court below, it was contended for the defendant, that it was obvious from the circumstances, that the support and maintenance of the child, was the consideration on which the note was founded; that its death had rendered this provision unnecessary; and that the note was therefore without consideration.

The presiding judge, being of a different opinion, gave a decree for the plaintiff; and this was a motion to reverse that decree, on the ground taken in the circuit court.

The opinion of the court was delivered by Mr. Justice Johnson.

The legality of the contract on which this action is founded, has not been called in question, and the only ground of objec