
    *Ellis v. Turner’s Administrator.
    Decided Nov. 1st, 1816.
    Assumpsit — Declaration — Counts — Allegations.- — In Assumpsit, if there be several Counts in the Declaration, the defendant should be charged, as having failed to pay the several sums of money aforesaid, and every part thereof. — If this be not done, but the breach charged at the end of the last Count be, that he hath not paid “the said sum of money,’’ and it appear, upon a demurrer to evidence, that all the evidence adduced by the plaintiff applies only to the first Count, judgment ought to be given for the defendant.
    This was an action of Assumpsit in behalf of Thomas Ellis against George Turner’s Administrator, in the County Court of Caroline.
    The Declaration contained throe Counts. The first alleged a mutual parol submission to arbitration of certain matters in controversy between the plaintiff and George Turner, with an agreement that the award should be binding upon both parties, and set forth an award, “of which the said Turner had notice,”  but did not set forth a promise, thereupon, that he would pay the money awarded:  the second and third Counts were for money had and received, and a balance stated to be due upon an in-simul computassent. The breach of promise averred was in the following words: “Nevertheless the said Intestate in his life time, and the said Reuben since his death, not regarding his several promises aforesaid, but contriving to defraud the said Thomas in this behalf, hath not paid the said sum of money, or any part thereof, but the same to pay the said Intestate in his life time, and the said Reuben since his death, hitherto hath refused, and the said Reuben still doth refuse to pay the same.”
    The defendant, having pleaded non as-sumpsit, and being afterwards permitted by the Court to plead the Act of Limitations, on both which pleas issues were joined, at a subsequent term a Jury was empanelled to try ‘‘the issue” joined, a verdict was found, and Judgment entered for the plaintiff, which was reversed by the District Court of Eredericksburg; because it did not appear that the issue, joined upon the plea of the Act of Limitations, had been tried. The cause, being '^remanded for a new trial, the defendant filed a Demurrer to plaintiff’s evidence, which was therefore spread on the record, and appeared applicable only to the first Count in the Declaration.
    The County Court was of opinion that, upon the Demurrer to evidence, the law was for the defendant, and gave judgment accordingly. Upon an appeal the Superior Court of law affirmed this judgment, upon the ground, “that though the evidence in the demurrer consisted substantially with the first Count of the Declaration, yet ihat Count was utterly insufficient to ground a judgment on in favour of the plaintiff.”
    To this Judgment a 'Wijit of Supersedeas was awarded by this Court.
    
      
       Sec generally, monographic note, on “Assumpsit” appended to Kennaird v. Jones. 9 Gratt. 183.
    
    
      
       Note. This averment was unnecessary: for one party is as much bound to take notice of the award, as the other, unless the stipulation be that the award shall be notified to the parties; in which case notice must be averred. 2 Sannd. 62 a. note (4). —Note in Original Edition.
    
    
      
       Note. In the form of the declaration, in 2 Ghitty, p. 30, mutual promises “to perform the award to be so made” are set forth; but, after stating the award, there is no farther “averment of a promise on the part of the defendant “to perform the award so made.” In 11 Mod. 170, Lupart v. Welson. it is said that the mutual submission implies mutual promises to observe the award. — Note in Original Edition. monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720; monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
   November 1st, 1816, the President pronounced the Court’s opinion :—

The Court, not deciding whether the Declaration in this case, in the first Count thereof, Is defective or not, in not averring a promise by the defendant George Turner to pay the sums, stated to have been awarded against him, is of opinion that the same is insufficient to maintain the action, in this; that, for any thing therein shewn, the said sums may have been paid by the defendant George Turner, there being no averment to the contrary. On this ground, and not on that, assigned by the County Court in rendering its last judgment, as the ground thereof, (on which the Court gives no opinion,) the judgment of the Superior Court, affirming that of the County Court with costs, is affirmed.  