
    Austin v. Richardson.
    [Wednesday, May 5th, 1802.]
    Declaration — Averments.—what averments are sufficient in a declaration.
    Same — Same—Notice.— [In what cases special notice and reejuest need not be averred. 1
    Richardson, executor of Richardson, brought an action on the case against Austin, and declared, That whereas Winston was indebted to the plaintiff’s testator in the sum of-, and 'x’offe«:d to pay him in discharge of the said debt, a bond executed by Imlay to Rwing, and by him assigned to Read, who assigned it to Austin, and he to the said Winston; but the same was refused by the testal or; in consequence of which, there was after-wards a colloquium between the testator and the defendant, concerning the reception of the said bond, when it was agreed that the testator should receive the bond of Winston in payment of the debt aforesaid; should convey to the said Winston a tract of land, before that time sold by the testator to the said Winston; and, that the defendant should be answerable to the testator for the amount of the said bond, and see the money paid him: The declaration then avers, that the testator did perform the said agreement in all things on his part to be performed; that he conveyed the land to Winston, from whom he received the said bond in discharge of the debt which he owed the testator, as aforesaid; and had used all due means within his power, to obtain payment from the obligor, but had not been able to succeed. Yet, that the defendant, though often required, had not performed the agreement on his part, but had refused. Plea, non assumpsit, and issue. Upon the trial of the cause, the defendant filed a bill of exceptions, stating, that the plaintiff, having proved the as-sumpsit laid in the declaration, produced a deed of bargain and sale from the testator to Winston, for the land aforesaid, and a subsequent mortgage thereof from Winston to the defendant, to secure the payment of 2501. said therein to have been paid by the defendant to the testator; that he also proved by Winston, that the mortgage was discharged, and Imlay’s bond intended by the sum of money mentioned therein: It then states, that the defendant moved the Court to instruct the jury, that the said deed of bargain and sale was not such an one as the plaintiff ought to produce, under the agreement and averments stated in the declaration; but, that the Court refused to give such instruction, and informed the jury, that the said deed of bargain and sale was sufficient, in law, to satisfy the aver-ments.
    *Verdict and judgment for the plaintiff;
    and Austin appealed to this Court.
    Duval and Randolph, for the appellant.
    The plaintiff ought to have averred notice to Austin, that the money could not be obtained from Imlay; for, Austin was but a mere endorser, and, therefore, timely notice ought to have been stated in the declaration, and proved upon the trial of the cause. 2 Morg. Essays, 152; Chichester v. Vass, 1 Call 83. But, considering Austin merely as a security, as he certainly is, it was absolutely necessary for .the plaintiff to have laid a special notice; because the defendant was chargeable on a collateral matter, and not on a mere debt. 1 Esp. N. P. 130. Besides, by the agreement, Richardson was to convey a legal title, which could not be done, without shewing that the widow had married; and, therefore, as there was a precedent act to be done, it should have been shewn. 1 Esp. N. P. 132. The declaration counts upon a conveyance, by the plaintiff, in his own right, and the deed is in his capacity of executor; therefore, the evidence and declaration do not agree together. Again, the Court instructed the jury, that the deed supported the averments in the declaration, which, of itself, was error. Keel et al. v. Herbert, 1 Wash. 203.
    Wickham, contra.
    The case is properly stated in the declaration ; and there was no need of a further averment of notice. The case from Morg. Essays, has no influence on the subject; for, it is not necessary for the assignee to give immediate notice, in the case of assigned bond, or note, in this country, as there is in the case of notes of hand in England; because, there, notes are put upon the same footing with bills, by an express act of Parliament; but, that is not the case here. The assignee is indeed bound to use due diligence in pursuit of the debt, but not to give notice to the assignor. Eee v. Eove, 1 Call 497; Mackie v. Davis, *2 Wash. 219. Besides, there is an express averment, that the plaintiff had performed all things on his part to be performed, which includes notice, if it were necessary; so that, after verdict, it will be presumed to have been proved; which is a complete answer to the passages from Espinasse; all of which, except one, are taken from cases before the statute of Jeofails; and, in that one, it being necessary for the plaintiff to be at a certain place to receive his payment, he was not entitled, until he arrived there; and, consequently, it was necessary that the defendant should be informed of his coming; but, as before observed, it was not necessary that the defendant in this case should be informed, that the plaintiff had used due diligence.
    There is no variance between the evidence and declaration; for, although the declaration does not state the deed to have been made in his character of executor, yet it is, substantially, the same thing; for, he executed the deed, and it was his act; so' that the allegation in the declaration was verified. Thus, in the case of a bond payable to, or given by an executor, the declaration may treat it as the act of the party, without the addition of executor. Peter v. Cocke, 1 Wash. 257. The title in this case was conveyed; the grantee is satisfied; and the defendant has had the worth of the money; so that every precedent act, which could fairly be required, is shewn to have been actually performed. The instruction of the District Court was not upon the whole evidence, but merely that the deed corresponded with the aver-ments, in the declaration. It is, therefore, not like the case of Keel et al. v. Herbert, 1 Wash. 203, where there was a general instruction to the jury upon the weight of the whole evidence. For, it was wholly unimportant, whether the allegations concerning the deed, in the present case, were verified, or not.
    Randolph, in reply.
    This is not a demurrer to evidence, but a bill of exceptions; and, therefore, the arguments drawn from the justice of the case *are irrelevant. Eee v. Eove, is an express authority in favor of Mr. Duval’s argument; because, it shews that a suit ought to have been brought; and the report of Mackie v. Davis, probably, does not contain the whole declaration ; but, if it does, still there is nothing in the case which proves, that notice may be dispensed with; whereas, the passages, cited from Espinasse, prove that it is indispensably necessary, and that the soepius requisitus is not sufficient. Besides, there was a precedent act to be done here: for, a title was to be conveyed; and, therefore, an express performance should have been shewn.
    
      
      Averment of Notice — -When Necessary.•— when the obligation to perforin a promise is dependent on something else to be done, and when from the nature of the case the knowledge as to whether this preliminary act has been done lies within the knowledge of the plaintiff and could not reasonably be expected, to be known to the defendant. unless the information was given him by the plaintiff, such information must be given to the defendant, before he can be held bound to the performance of his promise: and therefore, in such case, notice must be alleged in the declaration. James v. Adams, 16 W. Va. 259, citing Austin v. Richardson, 3 Call 201; Lamb v. Harrison, 2 Leigh 525; Pasteur v. Parker, 3 Rand. 458.
    
   LYONS, Judge,

delivered the resolution of the Court, to the following effect:

The first exception taken by the counsel for the appellant is, that there is no averment of notice to the defendant, that due diligence had been used to obtain payment from Imlay. But, the Court is of opinion, that there was no necessity for such an averment; for, the defendant undertook to see the money paid; and, of course, it was his business to look to the performance himself, without any notice from the plaintiff. Eor, the difference is, where the party cannot perform the thing, without perceiving notice from the person to whom it is to be performed, and where he may perform it without such notice, from the other side. In the first case, a special notice and demand is necessary, but not in the other; and that is the whole amount of the cases cited from Espinasse, by the appellant’s counsel. But, in the present case, the defendant might have performed his undertaking without notice from the plaintiff; he might have consulted the records, and seen the deed; he might have ascertained whether the money had been paid by Imlay; and, if not, he might have had it done, without notice, or other act, on the part of the plaintiff. Of course, as he had entered into an express undertaking, if he failed to perform it, a general allegation of the demand and refusal was sufficient, without stating a ^special notice or particular request. The case of Chi-chester v. Vass, 1 Call 83, has no influence on the case, as was supposed by the appellant’s counsel; for, that case did not turn upon the notice, but upon the omission to aver a gift to the other daughters; which, being the very gist of the action, the Court thought there could be no recovery, without an express statement of the fact; but, here, notice was not the gist of the action; the plaintiff had only to convey the land, and the defendant was bound to see the money paid; therefore, notice that he should do so, was wholly unnecessary. With respect to the opinion, given by the District Court, relative to the deed, we think there is no just ground of exception on that account. Por, it was the defendant who moved for the instruction; and the Court, in effect, only gave their opinion that it was, in substance, conformable to the tenor of the declaration ; and not, that the plaintiff was entitled to recover, upon the evidence offered. So, that the opinion merely served as an inducement to the other evidence, de hors the deed; which was to form a component part of the plaintiff’s right to recover. It is, therefore, not like the case of Keel v. Herbert, where there was an express declaration to the jmy, upon the whole evidence; for, in the present case, it was a construction of papers, and the opinion confined to a single point, without any attempt to prescribe the verdict which the jury were to find. The Court is, therefore, unanimous^ of opinion, that there is no error in the judgment; and that it ought to be affirmed.

Judgment affirmed.  