Hern v. Slubbers

Decided July 1, 1793

IN detinue, the plaintiff declared that he had delivered the goods to be redelivered quando requisitus, and that the defendant did not deliver them, licet sæpius requisitus, &c. The defendant pleaded a custom of suing by attachment, and that thereby they were recovered of him. Whereupon the plaintiff demurred. 1. Because, the cause of the debt on which the attachment was, is not shewn; neither is it averred expressly that there was any debt. Stone.

Decided 1793-07-01

Doderidge, J.

¶1I am not satisfied as to this exception. The seizure is a request. But here the request ought to precede the suit, and is part of the contract.

Jones, J.

¶2The difference between an action upon the case, and this, is that here the action is a sufficient request; and this is no prejudice to the defendant, for he may come on the first day and excuse himself, and he shall not be damnified. This distinction has been taken in this court, between an action of debt and an action on the case.

¶3Doderidge, J. The request is no part of the debt; but here it is part of the contract.

¶4So the opinion of the court was against Stone, in all points. Sed adjournatur. Godb. 483.