
    *Brexton’s Administratrix v. Lipscomb.
    Wednesday, May 8th, 1811.
    Assigned Bond — Debt—Declaration—Necessary Allegations. — in debt upon an assigned bond, the declaration ought to charge a iailure to pay the money to the obligee, and to each of the assignees, as well as to the plaintiff; and if it only charge a failure to pay to the plaintiff, it is too defective to maintain the action; and the defect is not cured by verdict.
    The declaration in this action, (which was debt upon an assigned bond, on behalf of Thomas Lipscomb, assignee of Robert Blackwell, who was assignee of Thomas Littlepage, against Mary Braxton, ad-ministratrix with the will annexed of George Braxton, deceased,) after setting forth the several assignments, and that action had thereby accrued to the plaintiff, concluded as follows: “Yet the said George in his lifetime, or the said defendant since his death, although often required, the said sum of money to the said plaintiff have not paid,” &c. without stating that they had also failed to pay the same to the said Thomas Littlepage, the obligee, and to Blackwell, the intermediate assignee.
    On the plea of “payment by the testator,” a verdict was found and judgment entered for the plaintiff in the county court; from which the defendant appealed to the district court, where the judgment was affirmed, and a second appeal taken to this court.
    No counsel appeared for the appellant.
    
      The Attorney-General, for the appellee,
    argued the cause upon another point presented by a bill of exceptions filed in the county court, but concerning which no opinion was given here.
    
      
       Assigned Bond —Debt—Declaration—Necessary Allegations.— In debt on a bond in behalf ol the survivor of two joint assignees, a declaration, charging that the defendant has not paid the debt to the obligee or to the plaintiff, without averring, also, that he did not pay it to the other assignee in his lifetime, is bad on general demurrer. Nicholson v, Dixon. 5 Munf. 198, citing the principal case. To the same effect, the principal case was cited in Mitchell v. Thompson, 2 Pat. & H. 429. In this case (Mitchell v. Thompson) it. was held, that in debt on a bond by the administrator of the assignee of the obligee against the administrator oi the obligor, the declaration was essentially defective on general demurrer, because it did not aver nonpayment by the defendant to the assignor, before notice of the assignment, nor to the plaintiffs intestate in his lifetime afterwards.
      To the point that in a suit on an assigned bond, it must be alleged that the debt has not been paid to the obligee nor his assignee, the principal case is also cited in Douglass v. Central Land Co., 12 W. Va. 511; fisher v. City of Charleston, 17 W. Va. 615; Reynolds v. Burst, 18 W. Va. 651; foot-note to Strange v. Floyd, 9 Gratt. 474, quoting from Reynolds v. Hurst, 18 W. Va. 651. The principal case was distinguished in Dykes v. Woodhouse, 8 Rand. 314.
      See also, monographic note on "Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409; mono-graphic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   Saturday, May 11th. The following decision of this court was pronounced :

“The court is of opinion that the judgment of the district court is erroneous: therefore, it is considered that the same be reversed, &c. and this court, proceeding to give such judgment as the said district court ought to *have given, is of opinion that the declaration is too defective to maintain the action, in this, that it is not averred, that neither the defendant, nor her testator, in his lifetime, paid the debt to the obligee, or to either of the assignees of the said bond, but only that neither of them paid the same to the said plaintiff; and that the. judgment of the said county court is also erroneous; therefore, it is further considered that the said judgment be reversed, &c. and that the appellee take nothing,” &c.  