#### John Connolly, Appellant, v. Almond Cottle, Appellee.

APPEAL PROM JO DAVIESS.

In an action upon a note evidently given to pay the debt of a third person, if there is no consideration for the promise expressed in the note, one should be averred in the declaration, and the want of such averment is fatal.

A variance between the description of a note and the one produced in evidence is fatal.

This was an action of assumpsit, commenced in the Jo Daviess circuit court of the term of October, 1828, by Cottle against Connolly on the following instrument of writing :

“ St. Louis, 27th April, 1821.

We hereby obligate ourselves to pay or cause to be paid unto the creditors of Samuel B. Smith, the following sums, viz.:

To Almond Cottle, - - $350 or thereabouts,

“ Alexander Nash, - - 31 •

“ Abijali Hull, - 12

Signed, James Tierna n, by power of att’y. J. Connolly.”

To the delaration the defendant pleaded non assumpsit generally, and non assumpsit within five years. An issue was made up to the first plea, and to the second there was a dedemurrer and joinder. The demurrer being sustained to the second plea, it was by leave of court, withdrawn, and the cause submitted to the jury upon the plea of non assumpsit. A verdict was found for the plaintiff, the appellee, and judgment rendered thereon for three hundred and fifty dollars and costs. The only evidence on the part of the plaintiff was the writing above set out, on which the suit was instituted. The defendant, by his counsel, moved the court to exclude it from going as evidence to the jury, for the reason, as appears from the bill of exceptions, that it was variant from' the declaration, which motion the court overruled, to which opinion of the court in overruling said motion, the defendant, by his counsel, excepted, and has appealed to this court, and assigned for error, among others,

1. The refusal of the court below to exclude the writing declared on, on the ground of variance between it and the declaration; and

2. The want of an averment of a consideration for the defendant’s promise, in the declaration.

Opinion of the Court by

Justice Smith,

Various grounds *365of error have been assumed in this cause, and on which it is contended the judgment below ought to be reversed.

Semple, for appellant.

Strode and Ford, for appellee.

It will be unnecessary to notice more than two, which are deemed sufficient to require a reversal of the judgment.

The note declared on is evidently one given to pay the debt of a third person. As there is neither a consideration for the promise expressed on the face of the note, nor one averred in the declaration, the omission in the last instance is certainly fatal, whether the first be so or not.

It is deemed unnecessary to discuss the difference between our statute of frauds, which is said to be the same as that of Virginia, under which, it has been adjudged, that the difference between the use of the words “ promise ” and “ agreement,” which is required to be in writing, renders it unnecessary that the consideration for the promise shall be in writing, and the British statute; or whether the use of the word “ promise ” in the one statute, and that of “ agreement” in the other, be a mere legal subtilty, because the omission to aver in the declaration that there was a sufficient consideration for the promise, and the ground of the legal liability of the defendant, is such a substantial defect as can not be cured after verdict.

There also existed a fatal variance between the instrument declared on, and the one produced in evidence. This objection, it appears by the bill of exceptions, was taken on the trial and overruled. The note declared on, is described as a promise by the defendant to pay to the plaintiff the amount, by the name of Almond Cottle; the note produced in evidence promises to pay to the creditors of Samuel B. Smith, jointly, the sums enumerated and set opposite each of the names of said creditors, of whom the said Cottle is alleged to be one. The promise in the note produced in evidence is a joint, and not a several promise, and does not therefore support the declaration. It is made to all the creditors of Samuel B. Smith, and not to each separately. The variance, however, in the description of the note, and the one produced, is obviously fatal. Sheehy v. Mandeville, 7 Cranch, 208. Ferguson v. Harwood, 7 ibid, 40.

The judgment of the circuit court is, for these reasons, reversed with costs. (a)

Judgment reversed.

(a)

As to variance, vide Taylor and Parker v. Kennedy, ante, p. 91. Rust v. Frothingham and Fort, ante, p. 331. Prince v. Lamb, post.