Concurring entirely in the opinion just delivered, I have nothing to add but an explicit declaration, that I do not conceive it to be in opposition to the former decisions of t|ds Court. This is not like the case of Chichester v. Vass, where a fact, essential to the plaintiff’s right of action, was totally omitted. In this case, I think, all necessary facts are set forth; and, *268although some of them are so defectively stated that tiic declaration would have been bad on demurrer, yet, after ver(j5ctj that defective statement, (especially when aided by the admission in the plea,*) is, in my opinion, cured by the common law rule, engrafted into our statute of jeofails, that no judgment shall be stayed, or reversed, “ for omitting the averment of any matter; without proving which, the jury ought not to have given such verdict,”

Judge Roane. This is an action of covenant, brought by the appellant against the appellee, as executor of Thacher Washington, deceased. The declaration states, that a covenant was made between the appellant and the said testator, whereby, in consideration of certain specified services to be rendered by the former for the latter, in the year 1795, in the character of an overseer, it was, among other things, covenanted and agreed, on the pari of the said Washington, to put twenty-six working hands tinder him, to give him a certain specified allowance of provisions for tfye support of his family, “ and to pay him, at the close of the year, one twelfth part of the grain made on the plantation, after deducting the seed wheats oats excepted.”

The declaration states a further covenant, on the part of the said Washington, in the case of his failing to comply with hi? agreement to the appellant; that is, (as I understand it,) in the event of his not allowing the appellant to become his overseer.

The declaration then avers, that the plaintiff had well and truly performed all the covenants on his part to be performed, and charges a breach in this, “ that the said Washington did not, at the close of the year aforesaid, pay to the appellant one twelfth part of the grain made on the plantation, or any part thereof, as, according to the form and effect of the covenant aforesaid, he ought to have done.” On oyer, the agreement was set" out: it became thereby a part of the declaration 5 and, while it precisely *269corresponds with the statement in the declaration, as to the part of the grain, (the seed wheat and oats excepted,) to which the appellant should become entitled, it contains, also, still other covenants on the part of the said Washington ; such as, to give him one third of the fowls raised by him, and the privilege of keeping three of his own negroes on the plantation.

To the declaration, thus amplified by the agreement as set out on oyer, and which shows, (as, indeed, the original declaration itself does,) that there were other covenants to be performed on the part of the said Wash ■ington, over and above that stated in the breach aforesaid to have been violated, the defendant pleaded, that his testator had performed all the conditions expressed in the covenant in the declaration mentioned. To this plea the appellant replied generally; and, thereupon, issue was joined. The jury find, in general terms, “for the plaintiff,” and assess his damages to 285 dollars 25 cents.

Admitting, from the breach assigned in this cause, that the plaintiff went for damages, on the ground only of that covenant being broken, which stipulated for one twelfth part of the grain made on the plantation, and not on that of the breach of any other of the covenants j the first question is, whether there is not a material defect ha the declaration, in not averring that any grain, other than oats, was made thereupon, in the year in question; und more than was necessary for seed; and what was the quantity and quality thereof. These are facts resting within the knowledge of the plaintiff, and which, therefore, while they are material to the defence of the appellee, there is no hardship on the plaintiff in requiring him to discover. This (it appears to me; forms the very gist of the action. The covenant in itself gave no cause of action, but only laid the foundation of one, which, in the event of grain being made and withheld from the plaintiff, gave him a right to recover. In this respect, this case is precisely similar to that of Chichester v. Fass, in which it was adjudged, that the gist of the action was the *270g^ing to his other daughters more than the testator gave to the wife of the plaintiff: the promise to do that was not, alone, held to be that gist. It was also held, in that case, to be absolutely necessary that that fact should be averred in the declaration; our act of j ofails not extending to cure the defect of the averment of the^wi of the action. There is no difference between that case and the case before us. In that the plaintiff omitted to aver that the defendant had given to other daughters what he did not give to the wife of the plaintiff: in this there is no averment that any grain was made; without which, on this ground of complaint, the appellant was not entitled to recover.

I understand that it is not denied by the other judges, but that the averment of this fact is wanting in the case before us : but they consider the defect as cured by the breach, the pleadings, or the verdict. I will briefly examine the effect of each of these, in its order: And, first, of the breach.

This term, “ averment,” as applied to a declaration, is a technical term. It means a direct and positive allegation of a fact, made in a manner capable of being traversed. It excludes the idea of an affirmation to be made out by inference and induction only. When the parties go to issue, as to a point of fact, before a jury, and especially, one which makes the very gist of the action, it is necessary that there should be a positive affirmation on one hand, and negation on the other. Nothing less than this will suffice, under the decisions of this Court, as applied to the gist of the action. Among others, the cases of Winston’s executor v. Francisco (a) and Chichester v. Pass, are decisive to this effect. In neither of these cases was the averment, deducible from the breach, held to supply the defect of a positive averment of the cause of action. In the last case, it is true, the breach was merely general; but as there was only one ground of action set out, the allegation, that that had not been complied with, is the same thing as if that ground had been sped*271Jically stated to have been broken. That case is, in that view, a full authority in the case before us. All the judges concurred, in t: at case, that the breach did not supply die de1 ct of the averment of the cause of action. ■ -1f.il if i. breach should be held to have such eff;ct, it sh- "id ’■ a breach within the covenant; for, where the c< under the breach as assigned, may not have bt. - 'fen. the declaration is clearly defective. It is do- :i -e if the cause of action has been previously avt -'d in a proper manner ; and, a fortiori, where there-is a detect of that averment. As to this point, I refer to 1 Esp. 363., and the cases there cited. To apply this position to the case before us, it will be seen that the complaint made by the breach, is, that the testator did not give the appellant one twelfth part of the grain made on the plantation; whereas, by the covenant, as stated in the declaration, he was only bound to give one twelfth part, after the seed wheat and oats were deducted. According to the breach, the appellee is subjected to the' action, although he may have only made oats, (which is a species of grain,) or less wheat than was necessary for seed; whereas, under the covenant, as declared on, he may have refused to comply with the requisitions in the breach, and yet not have broken his covenant. He has not broken it, if he did not refuse to give him a twelfth part of what remained after the seed wheat and oats were deducted. So this word, “made” contained in the breach, (admitting that it amounted to an averment,) may be satisfied by any quantity, however small; it may be satisfied by a quantity less than the seed of the wheat; or by the oats; neither of which are demandable: the breach, therefore, does not necessarily import a case, in which the covenant declared on has been broken. That covenant has not been broken, although some grain was made ; unless more than the seed wheat and oats was m de, and the twelfth of the surplus was refused to be given to the appellant.

*272If, therefore, a breach should be held, in general, to supply a defective averment of the cause of action, it is not such a breach as would be inadequate to warrant a recovery, if that averment had in fact been made. It is not such a breach as, if true, does not necessarily show a cause of action. That is precisely the character of the breach before us.

As for the pleadings in this case; no,ne of the authors-* ties show that a plea, like the one before us, is competent to cure the omission of that which is the very gist of the action. If there be such cases, however, in the old books, they are in conflict with the decisions of this Court. To -omit others, I will refer to the case of Faulcon v. Harris, 2 H. & M. 550. That was an action of debt on a bond given in 1782, in the( penalty of 50,0001. (paper money,) conditioned for the payment of 1000/. specie, or such farther sum as should be equal to the said 1000/ in 1774: that is to say, to purchase as much land and negroes as that sum might have purchased at that time, to be settled by agreement of the parties, or their referees, in default of such agreement. The breach as-< signed was, that the defendant had not paid the said 1000/. specie, or such further sum as was equal thereto, in 1774 ; but there was no averment in the declaration of the amount of any further sum- to which the plaintiff was entitled, as arising either from the agreement of the parties, or as ascertained by their referees. Pleas, “conditions performed,” and “the statute of usury.” Verdict and judgment for the plaintiff. On appeal to this Court, it was decided, that, notwithstanding the breach, and plea of covenants performed, as aforesaid, the plaintiff was confined in his recovery to the 1000/, and could not go for an ulterior sum, for want of an averment in the declaration as to the amount of such sum, to which he was, in event, to be entitled. If neither the breach, nor the plea of “ covenants performed,” could, in that case, enlarge the ground of the plaintiff’s action beyond the averment in the declaration; *273;,aesi'tu;r can they create that ground altogether, in fte case before us. In principle, that case is a direct authority as to the present; it applies as well to the «reach as to the plea of “ conditions performed,” and shows that neither of them is competent to supply the want of an averment of the cause of action.

In that case it was also decided, that it was erroneous, m that declaration, to allow evidence to be exhibited tending to show the amount of such ulterior sum. It is, therefore, a direct authority, in the third place, as to the effect of the verdict in.the case before us. 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 averments in the declaration. This doctrine is explicitly stated by all the judges, in the case of Chichester v. Vass; and was admitted by the Court, in rejecting, as improper, the testimony as to the ulterior amount, in the case of Faulcon v. Harris. The Court, in the case of a general verdict, will not presume proof to have been given, which, so far from being called for by the declaration, ought to have been rejected, if ofiered: it will not, on such a ground, extend? the power of the verdict.

This doctrine applying, emphatically, to all cases in which an averment of the cause of action is omitted, (and as to which no proof can therefore be presumed to have been given, on that point, to the jury,) applies in an especial manner to the case before us. In this case, the appellee, not content to meet the appellant on the ground of the particular condition, the breach of which is supposed to be the ground of the present action., avers. *274in his plea, that his testator performed all the conditions in the covenant in the declaration expressed. To this appellant replied generally; and issue was taken thereupon. On that issue, the verdict of the jury will jf5 as t0 any 0f tije conditions in the covenant, the plea of the appellee has been falsified. St would be as well justified if it were proved to the jury that the intestate failed in any of the Other conditions contained in the covenant, as in that respecting the non-delivery of the grain. In addition, therefore, to the general doctrine, negativing the presumption of proof as to a point not stated in the declaration, the appellant has further estopped himself, in this instance, by meeting the appellee on the extended ground taken by his plea, and which leaves it entirely uncertain whether the verdict was found on proof applying to this, or another ground of action.

On these grounds, I am of opinion that the declaration ip question is radically defective; that it is not helped by the breach, pleadings, or verdict in the case; pnd that the judgment of the Court below, in favour oS the appellee, is correct, and ought to be affirmed. The pther judges, however, are of a different opinion; and qhat judgment must be reversed, and a judgment upa$ ■tbfi verdict entered for. the appellant.

This judges delivered their opinion ;seriatim; the Court consisting of Roane, Cabell and Coalter,

The only question in this case is, whether after verdict for the plaintiff, there appears a sufficient cause of action in his declaration to enable the Court to pronounce judgment for him.

The declaration is drawn on a covenant between the plaintiff, now appellant, and the testator of the appellee, in which the former engaged to attend carefully, as an overseer, on the plantation of the letter, for a year, and was to have the m magement of twenty six working hands : for these services the testator of the appellee, was to pay him Jit the close of the year, one twelfth part of all grain made on the plantation; (after deducting the seed;) oats qxcepted*

The plaintiff avers in his declaration, that, “ in pursuance of said agreement, he entered into the service of said Washington, and well and truly performed all the covenants and agreements in the said deed on his part to be performed, &c.; nevertheless, the said Washington did not, at the close of the year, pay to the plaintiff one twelfth, part of the grain made on the plantation; nor did he pay any part thereof, as, according to the terms and effect o£ the covenant aforesaid, he ought to have done,” &c.

*264The defendant takes oyer of the covenant, (whereby the wbole'of it is made part of the declaration,' and then pleads, “ that his testator hath performed all the condi» tions expressed in the covenant mentioned on his part to be performed, &c. ; to which the plaintiff replied generally. The jury first found a verdict for upwards of 400 dollars, which was set aside, and a new trial granted ; and the second jury found for the plaintiff 385 dollars 50 cents damages, on which the defendant’s attorney filed errors in arrest of judgment. The cause assigned is, that it does not appear, from the declaration or pleadings, that any grain was made upon the plantation the year the plaintiff was overseer.

The judgment of the District Court was for the defendant; and the question is, whether that judgment is cor» rect?

My opinion is that it is erroneous, and must he reversed, and judgment entered for the appellant on the verdict of the jury.

By the common law, if the issue joined be such as necessarily to require, on trial, proof of the facts, defective yy or imperfectly stated, or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given the verdict, such defect, impelfeciion, or omission is cured by the verdict.(a)

This common law rule is, in very definite and explicit terms, adopted by our statute, which enacts and declares, “ that no judgment, after verdict, shall he stayed, or arrested, for omitting the averment of any matter, •without proving which, the jury ought not to have given such verdict.” b)

These cases of defects or omissions are frequently helped too by the plea, in Buster's ext cutors v. Waillace,(c) the plea of “ covenants not broken,” was held to admit, that a breach was laid. In the case in 4 Bac. 3Í. taken from Rol, Rep. 382. the plaintiff declares that, “ in consideration, the plaintiff would deliver all the corn in *265a, certain barn, the defendant did assume/9 &c. ; and avers that he did deliver all the corn in the barn; but does not show that there was corn there. It was agreed by the Court, that had this been on demurrer, the declaration would not have been good; but, being after verdict, upon non assumpsit pleaded, (by which issue it is admitted there was corn there,) it was adjudged for the plaintiff.

So, also, in 3 Hue. 19f. iu trespass for taking goods, the plaintiff neither averred property, nor possession of the goods; (which would have been bad on demurrer, and indeed after verdict on “ not guilty /’) but the plea justified the taking the goods from the possession of the plaintiff; and so it cured the want of averment.

The fact, which is not averred, is admitted by the plea; and the defendant takes the affirmative on himself.(a)

in the present case, the plaintiff avers his performance of all the covenants on his part; that he tilled the earth, &c. j but dees not aver that God gave the increase, from which he was to be paid for his labour; or what those crops were, further than what is alleged in the assign-'" ment of the breach ; to wit, that the testator did not pay him one twelfth of the grain “ made,” ike. This is the only breach assigned, and for which damages are claimed. The defendant does not plead that no crops were made ; but to a declaration, charging the faithful management and labour of twenty-sis hands for the year, and. claiming a twelfth part of the grain made, according to contract, the defendant pleads that his testator performed the covenants; that is, paid the grain, &c. ; thereby talcing the affirmative on himself. Suppose, in the case of the corn in the barn, the parties to be reversed, and that the suit had been brought by the purchaser of all the corn in the barn, on an averment that he had paid, or was ready to pay, the price, &c. ; and that, instead of case, it had been covenant; and a breach laid for the non-delivery of the corn, in the barn; and to which the person *266selling had pleaded covenants performed; in other words, a delivery of the corn ; would judgment on a verdict for the plaintiff, in such a case, be arrested ?

But when we add to this the informal averment in the breach, that grain was made; (indeed, the averment that he laboured twenty-six hands On the farm for a year* may, perhaps, be considered an informal averment that grain was made ,) when the plaintiff claims nothing-, except for the non-delivery of the twelfth of the grain made, it seems to me impossible that the verdict in question, on the issue in this case, could have been found, without evidence of the quantity of grain made; and if so, it comes within the common law doctrine on this subject, as well as within the act of assembly aforesaid.

Neither the principles for which I contend, nor their application to this casé, I hope, will be found to conflict with any of the decisions of this Court. It is Certainly not intended by me that they should : on the contrary, I think the case of Smith v. Walker’s executors, 1 Wash. 135., confirms the doctrines I am now contending for. In that case, the plaintiff set out a promise by the testator, if he would marry his grand-daughter, to give him as much of his estate, &c., as he would give to any of his own children ; and averred that the'testator did not give him as much as he gavss to some of his children; without averring how much he gave to either of his own children; yet, the Court say, “ this might have been aided by verdict, if that had been rendered on the trial of a proper issue;” but one of the issues was immaterial, and so the verdict was set aside; and the declaration standing unaided by a verdict, it was not a sufficient foundation whereon to award a repleader. In other words, it would have been bad, on general demurrer.

In Chichester v. Vass, it was not averred that he failed, and refused to give him as much as he gave other children ; for if that had been so laid-, and also that it was convenient to make a like advancement to the plaintiff. *267‘Í presume the objections in these points, to that case, would not have availed.

The Court will strive to support a verdict, where it appears that what was necessary to sustain the action must have been proved to the jury; in other words, that '..he trial must have been on the merits, notwithstanding the imperfections or omissions in the pleadings, as will appear from a variety of cases; and, amongst others, in addition to those above, I will refer to the case in 1 Salk, 120., to Avery v. Hook, Cowp. 825., and to Frederick v. Lookup, 4 Burr. 2018.*

I think the trial, in this case, could not have been otherwise than on the merits; that all the valuable purposes of pleading have been answered; that the defendant eould not have been surprised ; on the contrary, that he knew that a portion of the grain made, was claimed according to the covenant; and that he came prepared, especially on the second trial, to prove payment, as far as it had been made ; that the plaintiff could not have recovered, except for the non-delivery of grain that was made during that year; and, finally, that the judgment in this case, if for the plaintiff, will be a bar to any future action he may bring for the non-delivery of a twelfth part of the. grain made, Skc. during that year.

I am, therefore, for affirming the judgment.