Rossiter v. Marsh

Hosmer, Ch. J. The first count in the plaintiff’s declaration, is on a promissory note, executed by the defendant, and not averred to have been for value received. The note exhibited in evidence, purports to be for value received; and hence is materially variant from the one declared upon. It likewise appears to have been executed by George Marsh, without any addition or qualification, and obliges him personally, but is not the act and deed of the defendant. These variances are palpable and fatal. The second count in the plaintiff’s declaration, is equally unsupported by the note produced in evidence. The averment is upon an instrument, not expressed to be for value received, and executed for and in behalf of the defendant, by his agent George Marsh. In both these particulars, the note declared on is obviously and materially variant from the one exhibited. In his third count, the plaintiff declares, that one George Marsh was a minor, under the government of the defendant, as his guardian, and by him was authorized and allowed to contract and bargain; that for a valuable consideration, by the defendant’s permission and allowance, the said George Marsh made and executed to the plaintiff a note, promising to [203] pay him or order twenty-five dollars, on demand, and that, by means of the preceding facts, the defendant became liable, and in consideration thereof, assumed on himself to satisfy the aforesaid engagement. If the plaintiff founds his right of recovery, as I think he does, on the promissory note before-mentioned, the same misdescription still exists; and to this may be added another insuperable objection. A minor under a general allowance of his guardian to contract, is not authorized to bind him, by promissory note, nor does the law arising on the premises infer such an obligation. It would be a novel construction of the statute on this subject (tit. 107. s. 2. p. 487. ed. 1808.) and of equally unnecessary and pernicious tendency, to hold, that under the general authority of law, a minor may execute bills, bonds or notes, which shall be obligatory on his parent or guardian. But waiving this conclusive consideration, and viewing the note declared on as the evidence of a promise only, the insufficiency of the plaintiff’s declaration is still indisputably manifest. A consideration for such a promise must be legally set forth; but the indefinite phrase, “for a valuable consideration,” is not that specific averment, which the law requires, and which must be so alleged, as to show the nature of the consideration; that the court may judge of its sufficiency, and the defendant may come prepared to disprove it. The other Judges were of the same opinion. Judgment to be affirmed.