
    King v. M’Daniel.
    [April, 1799.]
    Assumpsit — Ground ot Action — Tort.—Tort may be the ground of assumpsit, and -will support an action founded on the promise.
    Amendment— Misjoinder of Action — Assumpsit—Plea of Not Guilty. — If to a declaration charging a tort, with an assumpsit upon it, the defendant pleads not guilty, it will be good after verdict, notwithstanding the double aspect of the declaration, and the irrelevancy of the issue to the assumpsit.
    The declaration in this case was very unusual, and jumbled a variety of things together, the whole amount of which was, that the defendant had taken away a hogshead of tobacco belonging to the plaintiff. After which, it charged, that the '^defendant, in consideration of the injury done the plaintiff, “promised to pay him whatsoever the same would reasonably amount to:” which it averred was £ — —. an(j that the defendant had notice of it; but refused to pay, to the plaintiff’s damage ¡£500. Plea, not guilty; and issue. Verdict and judgment for the plaintiff in the district court.
    The defendant appealed to the court of appeals.
    The appellant’s counsel objected, that this was an attempt to join trespass and assumpsit in the same action; which the law would not permit. That the declaration was not precise enough to constitute any specific charge; or, if any, it was of a double aspect, and might be taken, indefinitely, upon the tort, or the assumpsit. That, if it was the first, the action was misconceived, as it should have been trespass ; and, if it was assumpsit, then the issue was immaterial, as it did not apply to the charge in the declaration, and consequently did not decide the question in controversy.
    PENDEBTON, President. May not tort be a sufficient ground whereon to found assumpsit?
    By the appellant’s counsel. The court did not appear to admit it in Winston v. Eran cisco, 2 Wash. 187.
    BYONS, Judge. That case was decided upon the want of an averment of a promise.
    CARRINGTON, Judge. Winston v. Eran-cisco was determined expressly upon the ground that no assumpsit was alleged.
    
      
      See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
       Amendment — Plea of Not Guilty in Covenant. — A plea of not guilty to an action of covenant is cured by a verdict. Hunnicutt v. Carsley, 1 Hen. & M. 153.
      The principal case Is cited in Gray v. Kemp, 88 Va. 203, 16 S. E. Rep. 225.
      See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   PER CUR.

Affirm the judgment.  