
    Buckner and Wife v. Blair, Surviving Executor of Mitchell.
    Wednesday, June 26th, 1811.
    1. Debt — By Surviving Executor — Declaration—Necessary Allegations. — In an action by a surviving executor for a debt due to the testator in his lifetime, if the declaration charge that the debt was not paid to the plaintiff, without charging, also, that it was not paid to the testator, nor to either of the co-executors, the defect is fatal, and not cured by verdict. 
    
    2. Court of Appeals — Practice—Revivor.—Process of revivor is not necessary in the court of appeals, if the appellee died between verdict and judgment.
    The appellee, as surviving executor of Henry Mitchell, obtained a judgment in the district court of Fredericksburgh, *against the appellants, for a debt charged as due to the testator in his lifetime.
    “This Court, (not deciding upon certain ■questions made by bills of exceptions) was ■of opinion that the declaration was defective in this, that it was not averred that the ■debt in the declaration mentioned was not paid to the testator of the plaintiff, or to either of his co-executors, but only that the same was not paid to the plaintiff.” The judgment was therefore reversed, and it was considered that the appellee take nothing, &c.
    
      
       Debt — By Surviving Executor — Declaration—Necessary Allegations. — A long train of Virginia Decisions has settled beyond controversy that in this state and in West Virginia, in an action for the recovery of a debt whether it be assumpsit or debt, the plaintiff in his declaration must not only allege the nonpayment of his debt but this allegation of nonpayment must be general and not confined to the time-when it became due, and must therefore be extended to every person who had a right to receive the payment either at the time it fell due or at any subsequent time. Thus if the action is brought by a surviving executor for a debt due from the testator, the declaration must aver nonpayment to the testator or to the deceased executor or to the surviving executor. Douglass v. Central Land Co., 12 W. Va. 511, citing the principal case.
      So, in Nicholson v. Dixon, 5 Munf. 198, the court, basing its decision particularly on the authority of the principal case, held, that, 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 lifetime, is bad on general dem nrrer. To the saíne effect, the principal case is cited in Mitchell v. Thompson, 2 Pat. & H. 429.
      As to the necessary allegations of the declaration in an action of debt on an assigned bond, see footnote to Braxton v. Lipscomb, 2 Munf. 282.
      To the point that, in an action to recover a debt, whether debt or assumpsit, nonpayment of the debt demanded must be averred, the principal case is also cited in Fisher v. City of Charleston, 17 W. Va. 615: Reynolds v. Hurst, 18 W. Va. 651; .foot-note to Strange v. Floyd, 9 Gratt. 474, quoting from Reynolds v. Hurst. 18 W. Va. 651. See also, monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
       Note. See Braxton’s Administratrix v. Lipscomb, ante.
    
   Blair being dead, a question was raised whether there should not be process of.re-vivor ; but, as he died between the verdict •and judgment, and no alteration in the parties had taken place since the appeal, the court considered process of revivor unnecessary.  