
    Winston’s Executor v. Francisco.
    April Term, 1796.
    Assumpsit — Gist of Action — Jeofails.—In actions of assumpsit, the gist of the action is the promise to pay, a.nd if this be not averred, the omission is not cured by verdict.
    This was an action on the case brought by the appellant in the County Court of Buckingham. The declaration states, “that the defendant in the year 1783, was indebted to the testator of the plaintiff in the sum of ^50, for a riding chair and clock, and being so indebted, the defendant left in the hands of the testator, a bond given by Abraham Sandefier to Richard Fretwell for ^50, and gave directions to the testator to collect the money when it should become due on the said bond, and apply it to the payment of the said debt due from the defendant, and if the money mentioned in the said bond could not be collected, or the same prove bad, that he the defendant would make it good, or pay to the testator the said sum of ^50, whenever afterwards required,” and avers, “that the said bond was given for a gaming consideration, and that the obli-gor hath refused to pay, of which defendant had notice, who notwithstanding promising the said money to the plaintiff to pay in right of his testator, when required, he hath not paid, though thereto *often times required, to the damage of the plaintiff as executor aforesaid ^j300.
    Upon the plea of non assumpsit, the jury found a verdict for the appellant.
    A motion was made in arrest of judgment for the following causes.
    1. That there was no assignment of the bond by Fretwell to Francisco, nor by Francisco to the testator.
    2. That it did not appear in evidence that
    suit had been ever brought on the bond, or at what time application for payment had been made. ,
    3. That the declaration is uncertain, illegal and informal.
    The Court determined the errors to be sufficient, and arrested the judgment, from which the plaintiff in the County Court appealed to the District Court of Prince Edward, where the judgment was affirmed, “because it appeared to the court, that there was no assumpsit laid in the declaration.”
    From this 'judgment of affirmance, an appeal was granted to this court.
    
      
       Statute of Jeofails — Declaration—Gist of Action Omitted, — For the proposition that the statute of jeofails will not cure a declaration in which *the gist of the action is omitted to be charged, see the principal case cited and approved in Chichester v. Vass, 1 Call97; Moore v. Carney, a Hen. & M. 134; Kerr v. Dixon, 2 Call 382; Young v. Gregorie, 3 Call 454; Ballard v. Cea veil, 5 Call 534; Laughlin v. Flood, 3 Munf, 262; Syme v. Griffin, 4 Hen. & M.280; Spiker v. Bohrer, 37 W. Va. 262, 263, 16 S. E. Rep. 577; Wolf v. Spence, 39 W. Va. 495, 496, 20 S. E. Rep. 611, 612; Burton v. Hansford, 10 W. Va. 474.
      The principal case Is distinguished in Ballard v. Leavell, 5 Call 535; King v. M’Daniel, 4 Call 452. In this connection, see the principal case cited with approval in Quarrier v, Peabody Ins. CO..10W. Va. 509. See foot-note to Chichester v. Vass, 1 Call83; Baird v. Mattox, 1 Call 257; and monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 800.
    
   ROANE, J.

Altho’ an assumpsit is the very gist of this action, yet I would always incline to sustain a declaration where one is laid, however irregular the expressions to that effect may be, especially after a verdict. But it must be positively’ charged, otherwise the declaration does not set out a sufficient cause of action, to entitle the plaintiff to recover.

In this declaration it is no where averred, that the defendant promised to pay’ the money’, and in this respect, it is no way distinguishable from the case of Lee v. "Welch, 2 Stra. 793. In that case, the declaration ran thus, “that the defendant being indebted to the plaintiff for goods sold and delivered, would well and truly content and pay” leaving out the words and in consideration thereof assumed upon himself and then and there promised &c. After judgment by default, it was arrested, there being no promise actually laid.

In the present case there is a verdict, and the question is, whether this will cure the defect in the declaration? In the case of Avery v. Hoole, Cowp. Rep. 825, it is said, that altho’ a verdict will cure ambiguity, it will not aid where the gist of the action is not laid in the declaration. And the rule laid down by the English judges, that a verdict will supply whatever must of necessity have been proved to the jury, is supposed not to extend to cases where the gist of the action is omitted. *So too, that clause in our act of Jeofails which declares, “that a verdict shall cure the omission of the averment of any matter, without proving which, the jury ought not to have given such a verdict,” cannot be construed to cure the want of an averment of the cause of action, for in such a case, no judgment can be given.

But it was contended, that the following words in the latter part of the declaration, “who notwithstanding promising to pay said money &c. ” amount to an averment of a promise; but the promise ought to be directly averred, and not by way of inference. I think the judgment ought to be affirmed.

The COURT affirmed the judgment of the District Court.  