delivered the opinion of the Court:
The declaration is in assumpsit, and upon this a writing, “Rec’d April 11, 1832, of Richard C. Byrd, by credit of my accounts and by cash in hand paid, the sum of three hundred and fifty dollars, and which I bind myself to refund to said Byrd, or cause to be placed to his credit on a judgment when obtained against him as security for A. W. Cotton, in favor of Sarah Chandler. Wm. Cummins, attorney for Sarah Chandler.”
Cummins held the money subject to the order of Byrd, to be refunded to him if he demanded it, or appropriated to the payment of the judgment if obtained against him. It was for Byrd to determine whether he would wait for the happening of the contingency, or require it to be refunded to him; the latter he could have done at once. But until it shall appear that Cummins was requested to refund the amount received, or place it to Byrd’s credit, no right of action 6an accrue.
There is no averment in the declaration of a special request by Byrd of Cummins; such request is the gist of the action) and must be *594averred before any complete right of action can appear from the declaration. Com. Dig. Plead. C. 69, 73; 1 Saund. 33; 1 Str. 88; 5 T. R. 409; Com. Dig. Condition 10, 11. The general averment “ although often requested so to do,” being matter of form and not traversable, is not sufficient when actual request is necessary to be stated.
The' argument, that the defendant below could not avail himself of the oyer given, is untenable. It was granted by the plaintiff, and the defendant is entitled to take the whole instrument as part of the plaintiff's pleading. Doug. 476; 6 Com. Dig. 199. Whether there was a variance or not, between the instrument as set out on oyer and the declaration, is wholly immaterial in the decision of the case, as the omission of the averment of special request is fatal on demurrer.
The judgment of the Circuit Court must be affirmed with costs.