
    Nicholson v. Dixon’s Heir.
    Decided Nov. 9th, 1816.
    I. Assignees Bond — Debt — Declaration — Averments of Payment. — In Debt on a bond, in behalf of 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 life time, is bad on general demurrer.
    The Appellant John Nicholson, as surviving partner of John and Joshua Nicholson, who were assignees of Robert Matthews, brought an action of Debt against John Dixon, heir and devisee of John Dixon deceased. Upon a general Demurrer to the declaration, the Superior Court of .law entered judgment for the defendant, to which a Writ of Supersedeas was awarded.
    
      
       Action of Debt — Averment of Nonpayment. — In Virginia the cases are numerous and uniform, that, in an action of debt nonpayment of the debt must be averred. Reynolds v. Hurst, 18 W. Va. 651, citing principal case.
      In an action for a debt brought by a surviving partner, the allegation must be of nonpayment to the two partners during the life of the deceased partner as well as nonpayment to the surviving partner. Douglass v. Central Land Co., 12 W. Va. 511, citing principal case as authority.
      See also, monographic note on “Debt, The Action of" appended to Davis v. Mead, 13 Gratt. 118.
    
   November 9th 1816;

JUDGE ROANE

pronounced the following opinion of this Court : —

“The Court is of opinion, that the declaration in this case is insufficient to warrant a Judgment on behalf of the present Appellant, in this; that it only avers a non-payment of the debt sued for to Robert Matthews the obligee, and to the plaintiff, but does not aver a non-payment to John and Joshua Nicholson the immediate assignees of the said Matthews, or either of them, during the life of-the said Joshua, which Joshua, the Appellant, is stated to have survived: and although, in point of law, a payment to either of them, during the life of Joshua, may have been considered as a payment to the plaintiff, and so have satisfied the terms of the averment last mentioned, the Court is of opinion that an averment of this character is not sufficient, under several decisions of this Court, and particularly that in the case of Buckner v. Blair, June 1811. On this ground the Judgment is affirmed. 
      
       Note. See 2 Munf. 336: also Braxton’s adm'x. v. Lipscomb, Ibid. 282; Green v. Eulany, Ibid. 518; and Norvell v. Hudgins, 4 Munf. 496. — Note in Original Edition.
     