
    *Chichester v. Vass.
    [Monday, November 13, 1797.]
    (1 Am. Dec. 509.)
    Verdict — What Will Be Presumed after — Jeoiails.— Nothing- will be presumed after verdict, but what must have been necessarily proved from the matter stated in the declaration, and therefore, the total want of an averment of a fact, which constitutes the gist of the action, will not be cured after verdict by our act of Jeofails.
    The declaration in this case, was as follows: “Alexander Vass complains of Richard Chichester in custody, &c. for this to wit, that whereas on the 12th day of April, in the year 1789, at the Parish of Friero, in the County aforesaid, the said Richard Chichester the defendant, well knowing the affections and love of the said Alexander Vass were fixed on a certain Millisent Chichester, daughter of him the defendant, and well knowing that the affections and love of his said daughter were fixed upon the said plaintiff, so that they the said plaintiff and the said Millisent were desirous of entering into the holy state of lawful matrimony, and the said defendant well knowing that before that time, to wit, the tenth day of April, in the year aforesaid, at the Parish and County aforesaid, the plaintiff had solicited his approbation and consent concerning the said intermarriage, and well knowing that the pecuniary circumstances of the plaintiff and his said daughter Millisent, would render it necessary for their comfort and well being, to be assisted by him the said defendant, at that time, and yet a wealthy man, by some portion or part of his wealth, if the said intended marriage should be carried into effect, he, the said defendant, on the said 12th day of April, in the year 1789, at the Parish and County aforesaid, did consent that the said intermarriage might take place, and furthering and promoting the same, did promise to the plaintiff in order that the plaintiff might be induced to intermarry with his said daughter Millisent, that he, the said defendant, would do equal justice to all his daughters, as it should be convenient to him, thereby meaning that the state, and provision and advancement to be made and distributed by him 84 among them should be *equal, so that one should not be better advanced or provided for from time to time than another; and the said Alexander Vass in fact saith, that relying upon the consent and promise aforesaid of the said defendant, and in consideration thereof, he, the plaintiff, afterwards, viz: on the 15th day of October, in the year aforesaid, at the Parish and County aforesaid, did lawfully intermarry with the said Millisent, whereof the said defendant, on the day and year last mentioned, at the Parish and County aforesaid, had notice. And whereas after-wards, to wit: on the said 12th day of April, in the year aforesaid, at the Parish and County aforesaid, it was mutually agreed between the said Alexander Vass and Richard Chichester, that he the said Alexander Vass should marry Millisent, the daughter of him the said Richard Chichester, the defendant, and that he the said Richard Chichester, would do equal justice to all his daughters as fast as his conveniences would permit him, in consideration that the said Alexander Vass performed the agreement aforesaid in all things on his part to be performed, he, the said defendant, then and there undertook, and faithfully promised to do and perform the agreement aforesaid in all things on his part to be performed, and the said plaintiff in fact saith, that he did perform all things in the said agreement on his part to be performed, whereof the said defendant afterwards, viz: on the 15th day of October, in the year aforesaid, at the Parish and County aforesaid, had notice. Nevertheless, the said defendant not regarding his several promises and undertakings aforesaid, but contriving to defraud and injure the plaintiff in these particulars, hath not kept or performed either of his undertakings and promises aforesaid, but hath altogether broken them and each of them, and though often requested, to wit: on the--day of ——■, in the year-, at the Parish and County aforesaid, to perform them and each of them, hath refused and still doth refuse to perform them and 85 each of them, wherefore the *plaintiff says he is damaged to the value of 2,0001. and therefore brings suit, &c.”
    The defendant pleaded non assumpsit, and the plaintiff took issue. The jury found a verdict for the plaintiff for 5001. damages.
    There was a bill of exceptions to the Court’s opinion, which set out a letter from the defendant to the plaintiff, dated the 12th of April, 1789, which acknowledges the receipt of one from the plaintiff, and consents to the marriage: Adding, after some observations upon competency and contented minds, “my circumstances are such, that my daughters cannot expect large fortunes, but I shall endeavor to do them equal justice as fast as it’s in my power with convenience.”
    The bill of exceptions also set out another letter from the defendant to Col. Gordon, dated the 24th of February, 1790; in which, after stating his own and the plaintiff Doctor Vass’s opinion, that the neighborhood of Lancaster Courthouse would 'be a good situation for a Physician, he asks Col. Gordon’s opinion about it, and if a small tract of two or three hundred acres of tolerable land, with a house, could be bought there on reasonable terms, as he does not know how it would suit the Doctor to build; and that it appeared to him, that a plantation, with a house, ready for their immediate possession, would answer best, he adds, “my engagements (previous to this plan) for a tract of land adjoining me, and late advancement to Mr. Hathways for their lands, for my daughter Lee, renders it out of my power to make immediate payment, for the lands above mentioned to be bought. I expect about fifty pounds could be paid in May next, which would probably be as soon as a title could be made, and the balance at two annual payments after. If it would be any material advantage in the purchase, perhaps the whole balance may be advanced in May or June, 1791.”
    *There was a N. .B., not to confirm the contract before the defendant’s approbation was had; and another, that if a plantation of 400 acres should offer, it might make no odds, provided the terms were suitable.
    The bill of exceptions prayed a non-suit, or that the Court would direct the jury, that the evidence did not support the declaration, or else to declare their opinion to the jury, whether the promise contained in the letters was not void for the uncertainty of it; but the Court gave it as their opinion, that it was not void for the uncertainty, but might be rendered sufficiently certain by averment, and refused to non-suit the plaintiff.
    The reasons in arrest of judgment assigned by the defendant, as stated in the record, were, 1st. Because the promise laid in the declaration is uncertain. 2d. Because the declaration is insufficient and informal.
    The following papers were inserted in the record, but not made part thereof, by any order of the Court, or in any other judicial manner:
    1. A letter, dated the 2d of February, 1788, from the defendant to Mr. Hooe, the father of a gentleman who had married another of his daughters: which letter stated, that the defendant had agreed to give this daughter, Hooe, 5001. Virginia currency, as soon as he could raise it with convenience out of his estate; and at his death, that he would make her proportion equal to that of his other daughters.
    2. A letter from the plaintiff to the defendant, dated the 10th of , 1789; in
    which, he asks his consent to marry his daughter.
    3. A letter, dated the 5th of January, 1790, from the defendant to the plaintiff, in which he says, there is nothing in his power to do, without distressing himself, which he will not do, to assist the plaintiff in settling himself to his satisfaction; that, if a plantation in the upper part of the country would be more agreeable to 87 the plaintiff than a settlement *in town, perhaps he could get off a contract with one Stewart for a tract of land in Shenandoah; that at the time he contracted with Stewart, he did not know that any of his own family would like that part of the world for a settlement, and that this was his reason for attempting to sell it; that if the plaintiff liked Colchester or Dumfries better, the defendant would endeavor to procure a lot, or would do any thing in his power in any place which the plaintiff might think most agreeable.
    4. Certificate from the Clerk of Fairfax County of a lease from the defendant to Hancock Lee, who married another of the defendant’s daughters for 1241 acres of land, being recorded.
    5. The deposition of a Mrs. Johnston, concerning some conversations between her husband and the plaintiff, relative to the plaintiff’s addressing Millisent Chichester; and, also, some declarations of Mrs. Chichester in the presence of the plaintiff, prior to his paying his addresses to the young lady, that she approved of settling daughters’ fortunes on themselves, and would persuade Mr. Chichester to do so.
    The District Court of Dumfries gave judgment for the plaintiff according to the verdict aforesaid; and from that judgment, Chichester appealed to this Court.
    Washington, for the appellant, made three points:
    
      1. That the plaintiff in the action could not recover on such a contract, as was stated by him. For, where a man promises to pay a sum of money when it is convenient for him to do it, if there be no prior duty, the promise is too uncertain to maintain an action: Because, if I promise to pay money in such a case when it is convenient, I reserve to myself the right of judging at what time it will be convenient, or whether it will be so at alt. But, if such a right be reserved, then the promise is too uncertain to ground an action on; for, the 88 payee *cannot make it certain, without taking away the reservation or right of judging from the payer, or person making the promise. Because, the plaintiff must make his declaration certain by averment, which he must prove; and that takes away the power of judging from the other side, and vests it in the jury contrary to the principle. In this case, Chichester said in effect, I can’t do any thing in certain, but what I do for the rest of my daughters, I will do for this, when convenient : I will not be coerced, however, but will reserve to myself the power of judging of that convenience. All that he promised was, if he gave any thing to the others, he would do the like for this daughter; but, if he gave nothing to the rest, this one had no right to complain. If a man owing a debt, promises to pay it in convenient time, there the promise relates to the time, and not the payment; and, consequently, the jury may judge of the time. But, when the promise goes to the payment, it is otherwise. In the one case, the convenience relates to the time; in the other, to the payment. If I owe a debt, and promise to pay when convenient, I shall not be allowed to judge of the convenience in this case. So if I have work done, or take up goods ; but, in those cases, the law creates the assumpsit on doing of the work or taking up the goods, independent of the particular promise. The rule which says, that is certain which can be rendered so, means, when the promise can be referred to some standard in the agreement itself. As if I promise to pay, when I receive such a debt, there the reception forms a standard, which ascertains the period when the promise is to be performed. So, if in this case Chichester had promised to pay so much, whenever he gave either of his other daughters any thing, then the gift to either, would be a standard from whence the obligation to pay would be deduced. In short, whenever the parties agree upon a standard, it is obligatory : but, otherwise, where there is no standard, and all is indefinite and incapable of being reduced to certainty, without violating the rights of the one or the other party.
    
      *2. If the promise stated was effectual, yet the declaration has not stated it with precision, but wants a sufficient averment to render the promise certain, and to shew the plaintiff’s title. It is a rule in pleading, that a plaintiff must always state a title to recover, or else he can have no judgment. 5 Bac. Abr. [332] [337] [Gwil. ed.] In this case, three things were necessary; 1. A promise; 2. Proof that Chichester had given portions to his other daughters; 3. That it was convenient for him to advance to this daughter: All of which were necessary to be proved, in order to entitle the plaintiff to a judgment. For, it was necessary to state them, and where-ever the plaintiff states a special agreement, he must prove it. The plaintiff then does not shew a title; he states the assumpsit and marriage, but he does not state the other parts of the agreement; which were in the nature of a condition precedent. If I promise to pay a man a sum of money when he does a certain thing, to entitle him to an action, he must shew that he has performed it; for, the performance is his title to recover. This case is the same in principle; because, Chichester was not bound to give any thing to the plaintiff, until he had given something to the others: and, therefore, such gift to the others should have been allege*.
    3. Whether the verdict cures this want of averment? The distinction is, between a declaration which states a defective title, and a declaration which states a good title defectively. A verdict will cure the last, but not the first; and the reason is, that in the case of a defective statement of title, the Court, after verdict, presumes every thing necessary to perfect the title to have been incidentally proved upon the trial; but, in the case of a defective title, however proved, it is a defective title still, and does not involve a right. The distinction applies to this case; for, the title stated is a defective title; because, the performance was to be on the happening of a certain event, and that happening was as necessary a part of his title as the promise itself.
    But, here the plaintiff has not shewn 90 that the event *has happened; therefore, it does not appear that his title has accrued: So that the title sued upon, is plainly defective. If I promise to pay a sum of money on the termination of a certain dispute, or a man’s going to a certain place, the plaintiff must shew, that the event has happened, before he can maintain an action. In this case, then, the merely stating the promise, without shewing the other matters necessary to constitute the plaintiff’s right to recover, is no defect of setting forth the title, but a defect of title itself. A general demurrer to this declaration might have been sustained; and if so, clearly a verdict will not cure. As to things to be intended after verdict, the rule is, that nothing is to be presumed but what is stated, or essentially grows out of the pleadings. If the plaintiff had attempted to set out a good title with the happening of the events, and had set them out defectively, then it would have been presumed, that the whole matter was incidentally proved upon the trial; but, here was no attempt to set out a good title, and to state the necessary facts; therefore, the presumption cannot take place; because, evidence of those facts would have been improper upon the trial of the cause. Spieres v. Parker, 1 T. R. 144; [Buxendin v. Sharp, and Acton v. Eels,] Salk. 662. These cases are an excellent illustration of what I contend for. In the first, it appears that the Court, after verdict, cannot intend one of the constituent parts of the plaintiff’s title to have been proved, if not alleged in the pleadings; whereas, in the other, the mere defective statement was cured by ' the verdict. So here, if the plaintiff had attempted to state a title and had failed, it would have been cured: but, he has not attempted it; he has not stated that Chichester had given any thing to the rest of his daughters; for, if he had, all formal parts would have been presumed to have been proved. Cro. Car. 186, is exactly like this case, and shews that the verdict has not helped the defect. Latch. 223, [7 Bac. Abr. [42 ] Gwil. ed.] are to the same effect; and prove that an uncertain averment will not do: which is stronger than our case; because, here is no averment at all. In short, all the cases shew, that where the promise is en-91 tire, and the *whole necessary to constitute the title, the whole must be stated, or the verdict will not aid.
    But, besides this, the bill of exceptions states the whole evidence; in which case there can be no presumption: for, it is impossible to presume against the record.
    Warden, contra.
    Chichester promised to make the portion of this daughter equal to that of the others, when it was convenient, which ought to be understood in a reasonable time: And his own interpretation of it was so. Por, in 1791, he writes to Col. Gordon on the subject of a purchase for the plaintiff; which shews, he thought he was then bound to provide for her. He was, therefore, liable to an action upon the promise, at the time the suit was brought. But, admit that he had a right to judge of the time of convenience; yet, still it was a matter of fact, and might have been proved. It is said, that there is a want of averment; but the declaration has stated a promise, and then assigns a general breach; which covers every thing in such a manner, as to let in the necessary evidence. Therefore, all material facts will be presumed to have been proved, after verdict, especially as the declarations states that Vass had done every thing on his part to be performed. As 'to the distinctions which have been taken on promises to pay in convenient time, they will not avail the appellants; because marriage is not merely a good, but a valuable consideration also; and, therefore, when entered into, it related back to the first communication, and was a precedent duty in the sense which Mr. Washington contended for. It was not a mere naked agreement, therefore, but an undertaking upon sufficient consideration. It is admitted that if the period is certain when the promise will begin to operate, that it will sustain an action; but convenience, in this case, was a fact capable of being ascertained, and, therefore, when actually shewn, was a sufficient foundation to support the action, according to the principle of that admission.
    *The 5 Bac. only proves, that the plaintiff should shew a title; and here the declaration shews a colloquium, a consequent promise, and an actual marriage; all which constitute a title, when the other events happened; and the jury having found for the plaintiff and assessed damages, have rendered every thing certain; and shewn, not only that the events had happened in fact, but that Chichester had broken his promise. This constituted a sufficient ground of action; and proves, that there is no error on the second point made by the appellant’s counsel.
    The marriage promise, and other things, are set forth in such a manner, as to afford an .opportunity of proving the title. So, that if the defendant had demurred, it would have come to this, that Chichester had made a promise upon a sufficient consideration, and that he had afterwards refused to perform, and had broken it altogether; which, unquestionably, would have been a good cause of action. But, I repeat it again, that the breach .went to all parts of the promise, and completely let in evidence with regard to the title. This is expressly warranted bjr our statute of Jeofails, which goes much further than the English statute. The words are, that “no. judgment after a verdict shall be stayed or reversed, for omitting the averment of any matter, without proving which, .the jury ought not to have given such a verdict.” [C. 28, § 1, 13 Stat. Larg. 36.] If, then, the declaration first states a good promise, and alleges a performance by the plaintiff, and a breach by the defendant, the rest was but a mere averment in the sense of the act; and, therefore, the omission is not fatal: Éor, the other matters were such, as without proving them, the jury ought not to have given such a verdict; since it is impossible to conceive, that without they had been proved, the jurj' would have found for the plaintiff.! Which expressly reduces it to the case of an averment, within the meaning of the Act of Assembly. If this reasoning wanted any illustration or support, it is abundantly confirmed by 93 Rushton v. *Aspinall, 2 Dougl. 679, and Scroggs v. Griffin, Cro. Eliz. 205. I conclude, therefore, that there is no error upon the third ground taken by the appellant’s counsel.
    Wickham, in reply.
    The promise stated is too uncertain to support an action. When the law says, that a promise is void for uncertainty, it means, that the person, to whom it is made, cannot recover upon the merits of the case. If a man should promise to the person who had done a piece of work for him, that he would pay him for it so much money as he could afford, a suit founded on the special promise could not be maintained ; ' although it might, on the implied promise which the law would raise. But, marriage is not a consideration on which the law would raise a promise; and, therefore, it differs from the other case: Because, the express promise must be pursued ; and failing in proof of that, the plaintiff cannot resort to an implied promise. Eor, the law raises none such ; and consequently the want of certainty therein is fatal. The promise, in this case, was a mere declaration on the part of the father, and not binding on him. If a father were to say, he would do as much as he could for a son, it would be uncertain and void; for, he promised nothing specifically. The letter to Gordon was only a reference to the others, which were written before the marriage, or else evidence of a parol promise, which would be void under the statute of frauds.
    
      
      Statute of Jeoiails — Distinction between Necessary Facts Being Not Stated at Ail, and Being Imperfectly Stated. — A verdict operates, under the act of jeofails, only where the case is defectively stated in the declaration, and not where no case or title is made. It cures on the ground that proof is presumed to have been given at the trial, without which the jury could not have found the verdict in question; but it does not cure in cases in which no such presumption can be made. The court presumes proof to have been given as to facts imperfectly laid, but not as to facts not laid; it only presumes such proof to have been given as is called for by the averment in the declaration. For this proposition the principal case is cited with approval in Laughlin v. Flood, 3 Munf. 273; Fulgham v. Lightfoot, 1 Call 256; Horrel v. M’Alexander, 3 Rand. 101; Taylor v. Stewart, 5 Call 526; Com. v. Peas, 2 Gratt. 640; Long v. Campbell, 37 W. Va. 671, 17 S. E. Rep. 199.
      Same — Gist of Action. — For if the gist of the action is not laid, a verdict will not cure the defect. For this proposition the principal case is cited approvingly in Young v. Gregorie, 3 Call 454; Moore v. Dawney, 3 Hen. & M. 134; Laughlin v. Flood, 3 Munf. 261, 262, opinion of Roane, J.; Fanlcon v. Harriss, 2 Hen. & M. 554; Kerr v. Dixon, 2 Call 382; Syme v. Griffin, 4 Hen. & M. 280; Ballard v. Leavell, 5 Call 535; Cabell v. Hardwick, 1 Call 356; B. & O. R. R. Co. v. Gettle, 3 W. Va. 384; Spiker v. Bohrer, 37 W. Va. 263, 16 S. E. Rep. 577. On this point the principal case is distinguished in Austin v. Richardson, 3 Call 206; Laughlin v. Flood, 3 Munf. 258, 259.
      Chichester v. Vass, 1 Munf. 98, is the sequel to the principal case. See generally, monographic note on ■‘Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   ROANE, Judge.

The bill of exceptions speaks of another letter.

Wickham. But no such is in the record. Warden. The Clerk has made a memorandum, that it was read.

Wickham. It must still be argued, as if no such letter existed, because it is not made part of the record. The promise was to do equal justice; and what was equal justice? Suppose one of his daughters was more needy than the others, then equal 94 *justice would consist in bestowing a larger portion on her, because the others could do with less. But, it is not only uncertain as to the sum, it is indefinite as to the kind of provision also; the promise is not to give lands, slaves, or money specifically; and if it had, it might have been given to the daughter and her children, in exclusion of the husband. The time too is uncertain; it is, as fast as convenient; but fathers generally provide for their daughters by will, which is considered as the most convenient period by them; yet, it cannot be referred to that more than to any other period, and therefore, is altogether uncertain as to time. The letters were written evidence; on which the party had a right to ask the opinion of the Court, and, therefore, the decision should be on the papers themselves, which do not disclose a sufficient cause of action.

There ought to have been an averment of gifts to the other daughters, and convenience to Chichester, without which the plaintiff could not recover: Eor, they constituted the very gist of the action. Suppose, the declaration had stated a provision for one daughter, and that it was convenient for the father to bestow the same on this daughter, if the defendant chose to plead the act of limitations, he must not say generally, that he did not assume within five years, but that the action accrued more than five years past; which proves, that the happening of those events is the gist of the action, and not the promise ; and therefore, those events should have been stated to have actually happened. The breach is relied upon by the counsel for the appellee; which is no more than the common breach in every declaration of indebitatus assumpsit, and if sufficient to support the present declaration, the plaintiff will be entitled to judgment in every case which can be conceived, although he shall have left out the whole gist of his cause. If there be an action on a covenant for doing divers things, some positively, and others on the happening of certain 95 events, and there is a general ^breach laid of nonperformance of the covenants, it would be bad for the want of certainty. But, it is said, that the verdict cures the defect, and the act of Jeofails was relied upon. That statute, though, did not change the law in this respect, and there was a case in this Court upon that subject. If, Mr. Warden is correct, then the plaintiff could never fail upon a general verdict; for, the statute clearly cures form, and according to him, title too; and therefore, there could be no failure after verdict.

The case in 2 Dougl. 679, proves, that this act only affirms the common law ; for, the rule laid down there is precisely like the act of Assembly: And in that case, the Court determined that the defect was not cured. The statute, indeed, aids the omission of the averment of a fact wnich must necessarily have been proved, in order to have entitled the plaintiff to a verdict; but what fact was necessarily proven in this case, is not apparent. The promise here was only an inducement to the fact, which was the nappening of the event, and therefore, the fact itself is entirely omitted. In trover, the finding is only inducement and the conversion the gist; but, if the conversion be entirely omitted, then, most clearly the plaintiff cannot have judgment, though the verdict be for him. In every case the gist of the action must be laid, or else the party might recover without a declaration altogether; for, if he can leave out the gist, he certainly may the formal parts, that is, the Court may dispense with a declaration altogether. The reason for requiring a precise statement is, to give the defendant an opportunity of defending himself; but in this case, the defendant could not tell how to-defend himself: for, no particular fact is stated, which he might come prepared to-contend against. So, that he was liable to-surprise and unexpected charges at the trial. Another reason why the law requires precision is, that there may be a final bario the claim; but, this case would not afford such a bar, and a new suit would still lie: for, he could not prove by the record 96 a prior recovery for the *same advancement, which was set up in this. case. The cases cited by Mr. Washington are perfectly apposite, and indeed stronger than this. Eor, in some of them the subsequent circumstances were attempted to be stated; but, because defectively done, it did not prevail. 7 Bac. Abr. 42, was so; and thus Mr. Warden’s doctrine leads to-this, that it will be better to omit them altogether than to state some. In [Bertie-v. Pickering et ux.] 4 Burr. 2455, there is a more modern case than some of those cited by Mr. Washington; but to the same effect; which proves that the doctrine has been uniform upon the subject. All the cases, therefore, where verdicts have been held to cure the defect in statement, have been, where there was a certain definite fact, necessariljr to be inferred, from those set forth, and which consequently must have been inevitably proved upon the trial of the cause. If, the doctrine contended for upon the other side should prevail, then the defendant will not only be liable to surprise, or to be twice sued for the same thing, but defective declarations will be drawn on purpose, in order to deceive the defendant, and let in multifarious and uncertain evidence upon the trial of the cause.

Randolph, on the same side. The act of Assembly only meant to adopt the British statute” upon the subject of amendment and Jeofails, and a contrary construction leads to absurdity. The promise here was not in consequence of any communication from Vass on the subject of fortune; and therefore, was not bottomed on the marriage, which was no inducement to it. Although, in most instances, the term convenient is convertible with the term reasonable, it would in this be perfect nonsense. How can the Court and jury decide upon the convenience of any man? If he has thousands in possession, he may owe tens of thousands. It would, therefore, require an inventory of his estate to be exhibited. Chichester does not bind himself to do any thing positively; but merely, that he will “endeavour” to do it. At all events, he had his whole lifetime to perform the prom-97 ise. The bill of *exceptions states, that the Court were requested to instruct the jury, that the evidence did not support the declaration: which the Court should have done, as it was written evidence. Macbeath v. Haldimand, 1 T. R. 172.

Warden.

The case in Burr, does not apply; the goods there were not specified; but in our case, the whole promise is first stated in all its parts, and then a general breach of that promise is alleged. Of course, the events must have been proved, or the promise could not have been broken. When, therefore, the verdict finds that the promise was broken, it essentially finds that the events had happened; because the promise could not be broken, unless the events had happened. It is a case, therefore, expressly within the words of the Act of Assembly. If the defendant thought the evidence did not support the declaration, he should have demurred; the only question on the bill of exceptions is, whether the evidence was properly admitted? And it clearly was, because not inconsistent with the declaration.

ROANE, Judge. At the former argument of this cause, as well as now, I felt a strong disposition to get over the objection of a want of a sufficient averment in the declaration; but am now satisfied, that we cannot do so, and that great inconveniences would result from supporting such a declaration as the present.

Under our act of Jeofails, according to the principles of construction adopted by the Courts of law in England, a verdict will cure ambiguities, but it will not cure a declaration where the gist of the action is omitted; for, no proof at the trial can make good a declaration, which contains no ground of action upon the face of it. This' is the distinction laid down in the case of Rushton v. Aspinall, Dougl. 679; and upon this distinction, this Court went in the case of Winston v. Francisco, 2 Wash. 187.

If such an omission as that could be tolerated, the very end and design of 98 pleadings would be frustrated; *and a writ of error could never be supported in any case after verdict.

The promise stated in the declaration, of itself, gave to the plaintiff no cause of action ; it was onl3T a foundation whereon a cause of action was to arise on some future event, viz: in the event of the defendant’s making advancements to his other daughters, which he did not equally make to the plaintiff. Till that event happened, the cause of action could not be said to accrue; the promise, itself, was merely inchoate. So, that non assumpsit, within five years, would not have been proper, but actio non accrevit. Gould v. Johnson, 2 Salk. 422. This is supposed to be decisive, that the right of the plaintiff was not complete at the time of the promise.

The happening of that event, then, was an essential link in constituting the plaintiff’s right; it was the consummation of it; and the question is, whether a direct averment of this, the very gist of the action, was not necessary?

In Rushton v. Aspinall, upon a general verdict, the judgment was reversed in an action against the endorser of a bill of exchange, because the declaration did not allege a demand on the acceptor, and his refusal; and because it did not state, that notice of that refusal had been given to the endorser. But these circumstances, although forming a part of the plaintiff’s title, are certainly not a more essential part of it, than the circumstances supposed necessary, to be set out in the declaration before the Court.

But, then, it is said, 1st, that the general breach, stated in this declaration, amounts to a sufficient averment, that the defendant had not done equal justice to the wife of the plaintiff; 2d, that at least it is good under our act; for, .without proof of that fact, the jury could not have found the present verdict.

As to the first, I answer, that a breach only refers to the title stated in the 99 declaration; and that, *as it is not the province of the assignment of breaches to set out the right, but to allege a violation of it, such an assignment, though general, cannot better the case stated in the declaration.

As to the second, although without such evidence, the jury could not have found such a verdict, yet that will not mend the matter, when, as before stated, the declaration does not in itself contain a sufficient cause of action.

But, if the general breach should be deemed equivalent to a general averment, I am inclined to think that such general averment is insufficient.

It is the very end and principal use of pleadings, that the charge and defence of the plaintiff and defendant, respectively, should be set out and particularized, so as that the opposite party may- know the very ground of discussion between them, and be prepared aceordingly; and that thereby, the very point in dispute being apparent on the record, all future litigation, for the same cause, may be prevented.

Those reasons have deservedly great weight; and this Court was under the influence of them in deciding the case of Overton et ux. v. Hudson, in April, 1796, 2 Wash. [172;] in which it was determined, that a general indebitatus assumpsit would not lie against a sheriff, for money illegally received b3r his deputy; but, that where he is to be charged for the act of his deputy, the act should be set out in the declaration.

In the present case, to shew in a very strong light the necessity of a particular averment, the plaintiff might have recovered on account of a supposed advancement to another daughter, when if the defendant could have known from the declaration, that that advancement could be relied on as the ground of action, he might have been prepared with testimony to have shewn it to have been a bona fide sale for a valuable consideration.

Ror these reasons, I think the declaration insufficient.

*There are several other points in the cause, which have been very ably argued, both on the present and former occasion ; but, it is unnecessary for me to go into them, as the declaration is in itself insufficient; and upon that, I think the judgment of the District Court ought to be reversed.

CARRINGTON, Judge. I am of the same opinion. The declaration contains two counts, but they are in effect the same. In both, it charges a general breach, without averring that he had given anything to his other daughters, or that it was convenient to make an advancement to this one. But, it was evidently important, at least, to have averred a prior gift to the other daughters, and that it was convenient to make an advancement to the plaintiff’s wife; because, they were part of the very gist of the action, as the letter only contained a promise of equal justice with his other daughters, when it should be convenient to him. So, that not only form, but substantial justice required, that it should be investigated, whether there had been prior gifts to the other daughters, and whether it was convenient to make an immediate advancement to this. But, if they were not stated in the declaration, then it was not made necessary to investigate them; and, therefore, essential points in the cause were never put in issue. So, that there is no room for the presumption, that all matters requisite to support the action were proved upon the trial; for, the declaration did not make it necessary to prove the prior gifts, or the convenience of a present advancement; although, upon no construction, could the plaintiff possibly be entitled without. I am not inclined to be over-rigorous in things of this kind; but, some degree of certainty is necessary; and the act of Assembly could never have been intended to cure such radical defects as exist in the present case. Otherwise, all would be uncertain ; the defendant would be constantly liable to surprise, and the very end of pleading would be frustrated.

*It is the business of the plaintiff to consider what facts will support his action before he brings it; and then to set them forth in such a manner, as that the Court may see, a cause of action has accrued. But, this has not been done in the present instance; and, therefore, I think the judgment must be reversed.

LYONS, Judge. At common law, he who would recover against another, was obliged to shew the cause of action explicitly in his declaration ; in order that the defendant might know how to defend the suit, and plead the judgment in bar to another action for the same thing. Regularly, there must be an affirmative and a negative to make an issue; and a party is not bound to prove what he does not aver, as it is not included in the issue. The plaintiff, therefore, must aver all material facts, in order that the jur3r may inquire into them. [Callonel v. Briggs,] 1 Salk. 112. A condition precedent must be averred, in order that the Court may decide whether the cause of action has accrued. The promise, here, was to give as much to this, as to the rest of his daughters; when convenient to him. To entitle the plaintiff, therefore, to an action for the breach of this promise, he should, at least, have stated, that the defendant had given something to the rest of his daughters, and that it was convenient for him to make an advancement to the plaintiff ; for, those were essential grounds of the action, and in the nature of conditions precedent. They, therefore, ought to have been averred; and the want of it was such a defect, as the verdict will not cure, according to the cases which have been cited; especially- those from Dougl. and 1 T. R., which clearly shew, that nothing is to be presumed, but what must have been necessarily proved tipon the averments contained in the declaration. But, as there is no averment of the facts necessary to support the action in the present case, there was no necessity for proving them upon the trial; and, therefore, no presumption, that such proof was offered, can be made.

*It was insisted, though, that our own act of Jeofails cured the defect; and, perhaps, at first sight, there does appear some color for the assertion. But, such a construction would introduce innumerable inconveniences. It would destroy all certainty, tend to surprise the defendant, and put it out of his power to plead the first judgment in bar to a subsequent action.

This proves the danger of introducing positive rules of practice into a statute: which, generally speaking, is not susceptible of the same modifications and exceptions, according to the exigency of the case, as the common law admits of. But, there are rules for construing statutes; and one is, that the best construction of the statute is, to construe it as near to the reason of the common law as may be, and by the course which that observes in cases of its own. But, we have already seen, that the reason and policy of the common law required an explicit statement of the plaintiff’s case in his declaration, in order that there might be a complete investigation of the merits of the question, and that the defendant might not be taken by surprise. Construing this act, therefore, according to the spirit of that doctrine, it will follow, that a verdict will in no case cure an omission to state a principal ground of the action, or an essential part of the plaintiff’s title. Because, in such a case, there would be no occasion for the plaintiff to prove what he had not averred, and the defendant could not foresee a charge which was not contained in the declaration. Both which, were required by the common law: and, then, construing the statute as near to that as may be, it results that it is still necessary for the plaintiff, in his declaration, to aver the essential grounds of his action, or the verdict will not aid the defect.

It is said, that it need not be averred, that it was convenient; for, it was to be done in a reasonable time. In cases of forfeiture, the party is generally to be allowed his life-time to perform the condition; and in agreements, the intention of the 103 parties *is principally to be attended to. This promise left it to the father’s own will and pleasure when he would make provision; for, he says he will do it, when it is convenient to him; that is, whenever his affairs would permit, without subjecting himself to distress and difficulty. But of that, he was to be the judge. This was clearly the intention of the writer throughout the whole letter; and as he was to be the giver, he might dispose of it upon what terms he pleased. He may be taken to have said, I will do her equal justice in the end; that is, as soon as I think my affairs will admit of it; for, it is not to be supposed, that he meant to be sued on each gift, but the time of doing it was to be left to himself; and he did not mean that Vass should have it in his power to bring an action against him, the moment it was understood that he had made an advancement to any other of his daughters. However, I decide nothing with regard to the merits, but shall be perfectly open to an argument on them, if the case should ever occur again. At present I think the declaration clearly bad; and, therefore, that the judgment should be reversed.

PENDEETON, President. I doubt, whether the plaintiff can maintain the action alone without joining his wife, since, though the promise was made to him, it would seem to import a donation to the daughter, which in its nature would admit of performance by a grant of lands to herself, and fixing the inheritance in her. If it were considered though, merely as a promise of a personalty, that right would vest as a joint interest in husband and wife until reduced into possession, and go to the survivor, if either died before that happened. On that ground, therefore, I am rather inclined to think the wife ought to have been joined, but do not decide upon it, as unnecessary at present.

I think the letter of April 12th, 1789, from the defendant to the plaintiff, proves the promise as laid in the declaration, and that the District Court were right in giving that direction to the jury; but, if I had doubted, I would have presumed, that the 104 *letter missing afforded additional weight of evidence. I think, however, that the Court erred in the opinion, that the declaration was sufficient to maintain the action.

The promise, as laid, does not, upon the marriage, give a right to the action, but other things are to happen to entitle ' the plaintiff, which may be considered as the gist of the action, and ought to have been averred; as, that the defendant had given to another daughter such a sum; for, on that, his right of action accrued upon the promise to do equal justice to his daughters : He should also have alleged, at least, that it was convenient to the defendant to pay, if he was not, in the promise, made the judge of that convenience: Neither of which is averred.

But, it is said, that this is supplied by the breach; and if that had stated, that the defendant, although he had given such a sum to another daughter, and been required to give a like sum to the plaintiff, had refused so to do, I would, especially after verdict, have considered it as a sufficient averment, though not put in the usual place or form.

But, the breach has not a word about it, and only says in general, that the defendant had broken his promise, without shewing how, so as to be defective in itself, instead of curing the omission in the want of an averment.

I concur in thinking this defect not cured by the verdict under the act of Assembly, presuming proof to have been given of facts imperfectly laid in the declaration, but not such as are not laid at all.

I am not fond of these exceptions, but every declaration ought to be drawn so as to answer two essential purposes; 1st, to convey sufficient notice to the defendant, upon what points he is to defend himself; 2d, to enable the defendant, if cast, to plead that recovery in bar to another action, for the same thing. Neither of which are answered by the present declara105 tion. The inuendo what the *'promise meant, namely, that when he gave a cow or a bed to one daughter, he was to have it valued, and give immediately as much to each of the others, does not accord with my idea of the promise: he did not mean to subject himself to so much trouble and to so many suits.

The time was fixed for his doing them equal justice.

It was left to his convenience, of which he was the judge; and he had all his lifetime to perform it in. When making his will, he might review his whole donations, and provide for any inequality among the daughters, including a recompense to those who had not been advanced equal to others, in point of time as well as value: for this event, the plaintiff should have waited and not brought his action too soon.

The judgment of the District Court must therefore be reversed.  