GOLDTHWAITE, J.
1. We are inclined to think that a demand against a garnishee can be subjected to process of attachment only when a debt is actually existing. Our statutes, when they speak of indebtedness to the defendant in attachment or judgment, refer to such indebtedness as would enable the creditor himself to maintain either debt or indebi-tatis assumpsit; but it is unnecessary now to determine this point here, as we consider the garnishee thus liable in this instance.
2. Although the case was not put to the jury on this point, yet it is certain we shall advance considerably towards a conclusion upon the merits, by ascertaining whether the contract proved, would warrant Falls in pursuing McGehee by either of these forms of action. Assuming that the written instrument cannot be considered as a written promise to pay a debt or perform a duty, within the terms of our statute, so as by itself to import a consideration, it becomes necessary to ascertain if one is proved. It appears, then, that Falls undertook on the trial of a named chancery suit, to produce evidence showing the consideration of certain notes had failed to a considerable amount. If this consideration was incorporated in the writing, its form would then be, that in consideration that Falls would produce, or had promised to produce such evidence, it was agreed by McGehee that the rents of the Fluker place were to be equally divided between them for the year 1843, and until the particular suit was determined. The contract in this form would be one by which McGehee undertook to divide the rents with Falls until the determination of the suit, and there would be no term in it from which the intention could be inferred that nothing was to be paid nrit.il the evidence was produced. It seems to differ in no respect from any other engagement in which one party promises to pay a sum of money on a day certain in consideration of a promise to him to perform some duty at a future day, *277The matter which McGehee undertook to perform was the dividing of the rents as soon as received, and as this was capable of being reduced to a sum in numero, it follows that indebitatis assumpsit might be maintained by Falls, if the rents were received in money. If in point of fact the land was not rented, but merely occupied by McGehee, it is possible a different question would arise.
3. Having ascertained, then, that Falls, the debtor, could maintain indebitatis assumpsit on this contract, we shall proceed to ascertain when the right to bring this action accrued, or might accrue. The circuit court considered the right dependent on the production of the evidence, but in our judgment, the contract is one which bound McGehee to divide ■the rents when received, and bound Falls to produce the evidence at the trial. In speaking of executory considerations, it is said the consideration, and the promise of the defendant, .are two distinct things, and in order to show that the plaintiff possesses a right of action, it is in general necessary to aver the performance of the consideration on his part: but in cases of mutual promises, it is not always necessary to aver performance of the thing stipulated to be done — the plaintiff ’s agreement to perform being a sufficient consideration— unless the performance of one act be the consideration of the performance of the other. [Chitty on Plead. 324-5.] If the rule was otherwise, it would be impossible to make a valid contract to pay money presently in consideration of, a duty to be afterwards performed.
It has been urged, is McGehee bound at all events to pay for services which cannot or may not hereafter be performed ? If it is entirely out of the power of Falls to prove what he undertook to show at the trial, as probably would be the case if the consideration had not failed, we perceive no greater difficulty in making the defence than there would be in any other case of false representation; and if he is not able to perform his contract from any other cause, it is no more than the ordinary case of default, which the party might have, but has not guarded against.
Taking the contract in connection with the circumstances and consideration which led to it, we think the intention of *278the parties is manifest, that the rents were divisible as soon as received, and in this view, the charge of the court below is erroneous.
Judgment reversed and cause remanded.