Coggeshall v. Coggeshall , 32 S.C.L. 43 ( 1846 )

Wardlaw, J.,

delivered the opinion of the Court.

By the paper, which in this case is called a note, the payments which are promised are made liable to be defeated by the death of Rebecca Coggeshall. There is not a promise to pay money absolutely and at all events, but a contingency is contemplated upon the happening of which the obligation to pay might have ceased. The paper is not then a promissory note under the Statute of Anne, but must be regarded as an agreement at common law. The declaration, (which was not brought to the view of the Judge on the Circuit,) being now examined, is found to contain no sufficient count alleging a consideration and a promise, as should be done in cases of common law agreements. The motion for non-suit might then have been granted: but as there was a misapprehension concerning the pleadings, and the plaintiff’s counsel with seeming confidence in the merits of her case, has moved for leave to amend. A new trial is ordered, with leave for the plaintiff at her own cost to amend her decía-ration by adding one or more counts, on or before the first monday of March next, and posting the usual rule to plead.