
    
      Smith v. Walker Executor of Mickie.
    October Term, 1792.
    Pleading and Practice —Defective Pleadings — Effect of Verdict. — Declaration upon a marriage promise, by which the defendant agreed to give to the plaintiff. if he should marry the defendant’s grand daughter, as much of his estate, (land excepted,) as he should give to any of his own children. The declaration ought to aver the quantity and quality of the estate given by the defendant to his own children, and when the gifts were made. The omission to make such averments might be cured by verdict, if that be rendered upon a proper issue: but not so where all the pleadings are defective.
    Same — Statute of Limitations — To What Time Refers. —The plea of non assumpsit within five years, i f general, will refer to the time of the plea, plead ed; whereas, if onght to refer to the institution of the suit, and should conclude with an averment.
    Same — All Pleadings Faulty — Repleader.—If ail the pleadings, including the declaration, be faulty, the Court will dismiss the suit, and will not award a repleader.
    Appellate Practice — Judgment of Lower Court Reversed. —If the judgment of the inferior Court be reversed, the appellate Court ought to render the proper judgment.
    This was an action upon the case, brought by the appellant in the County Court of Albemarle, in the year 1787. The declaration states, that the plaintiff in 1773, being disposed to engage in matrimony with a grand-daughter of the testator of the defendant, the testator promised the plaintiff, that if he should marry the lady, he would give him as much of his estate, {except land), as he should give any one of his own children — avers that he did marry her, relying on the said promise, yet the said testator did not give the plaintiff as much of his estate, (land excepted) as he gave to some of his children, tho often required &c.
    Pleas — 1st, That the testator did not assume, &c. 2dly, that he did not assume within five years, concluding to the country.
    The jury found, that the testator did assume upon himself, in manner and form as set forth in the declaration, but that he did not assume within five years, and assess the plaintiff’s damages to ^240: 14, upon which the court gave judgment.
    The defendant filed exceptions, stating, that on the trial, the defendants offered as conclusive evidence, a decree of dismission in a suit in chancery brought by the plaintiff, against the defendant, for a specific performance of the contract laid in the declaration — That the plaintiff’s counsel, opposed the admission of this evidence as conclusive, to which opinion the defendant excepted. It is not stated that the court admitted the evidence.
    The judgment of the County Court, upon an appeal to the District Court, was reversed, because the evidence offered by the defendant, was rejected. — Prom this judgment, an appeal was prayed to this court.
    
      
      Pleading and Practice — Statute of Limitations — To What Time Refers. — The principal case holds that, the plea of nonassumpsit within five years, it general, will refer to the time of the plea pleaded: whereas, it ought to refer to the institution of the suit. On this question It Is cited in Austin v. Jones, Gilm. 354: Rice r. white, 4 Leigh 481; Backhouse v. Jones, 5 Call 463, and note-, Henderson v. Foote. 3 Call 252, and note. See monographic note on “Limitation of Actions’’ appended to Herrington v. Har-kins, 1 Rob. 591.
    
    
      
      Same — Repieader—When Awarded. — On the question as to when the court will or will not award a repleader, the principal case Is cited in Cabell v. Hardwick, 1 Call 355, 356; Shelton v. Pollock, 1 lien. &M. 427: Hite v. wilson, 2 Hen. & M. 285; fiord v, Dishman, 2 Hen. & M. 603; note (in original edition) to Hill v. Harvey, 2 Muni. 526: Laughlin v. Flood, 3 Munf. 258; Greeny. Bailey, 5 Munf. 251; Robertson y. Robertson. 3 Rand. 71; Baltimore & O. R. Co, y, , Gettle, 3 W. Va. 384.
    
   The PRESIDENT.

There appear to be many imperfections in this record, from the institution of the suit, to its final decision in the District Court. The declaration states a promise by the testator, to give the plaintiff as much, as he should give to any of his own children; and a breach of this promise is alledged, without avering, how much he gave to either of his own children, or to what the plaintiff’s claim amounted.

The plea is non-assumpsit within five years, without saying before the institution of the suit; so that strictly, it must refer to the time of the plea, which was in October 1787: and it concludes to the country, instead of the court; by which, the plaintiff is precluded, from bringing himself within the benefit of some of the exceptions from the act of limitations, by a replication. *The jury find one issue for the plaintiff, and the other for the de-1 fendant, and yet give damages to the plaintiff, upon which judgment is rendered by the court.

The bill of exceptions, (which is not sealed by the court,) states very imperfectly, the record offered in evidence, and does not state, that the court gave any-opinion upon the subject.

The District Court merely reverse the judgment, without dismissing the suit, directing a new trial, or awarding a repleader.

The latter, this court would have directed, if they had found in the record, any good pleading to begin at. But the declaration is too faulty to be sustained. The breach assigned, is not sufficient, as it does not aver the quantity, or quality of the gifts made by the testator to his own children, or at what time they were made, so as to reduce the demand to°some kind of certainty.

This might have been aided by verdict, if that had been rendered upon the trial of a proper issue; but when we are seeking for a g-ood foundation, upon which to erect future pleadings, and find all defective, including the declaration itself, the uncertainty cannot be cured. In giving the judgment therefore, which the District Court ought to have given, we must dismiss the suit with costs.  