¶1Opinion of the Court by
¶2Pettus sued Curie in the circuit court of St. Louis county in the statutory action called petition in debt. Judgment was given for Pettus on a demurrer filed by Curie to the petition.
¶3The bond on which the suit is brought is in these words-On or before the first day of January next we Richmond J. Curie and David R. Pitman promise to pay to William G. Pettus five hundred and sixty three dollars, being for the negroes &c- for one year> who are to be clothed, taxes paid, and returned to said Pettus on the first day of January next, dated 1st January 1838, and signed &c. by Par^es* ^ might- be well enough to close here by referring to what is said in the opinion delivered at this term case °f Curle against M’Nutt, as a reason for the disposition about to be made of this cause. But on referring 1° the case °f Coleman v Wright found in 4th Bibb p. 252, a case precisely similar to this now before us. In í ^ that case the court of appeals for the State of Kentucky say “we are °P™on that the objection is well founded.” viz: that the action was misconceived; for, continues that court, *499«The act of assembly •which gives the remedy by petition, confines it to cases for the direct payment of money. Á bond or note therefore upon which a petition will lie, must be such as may be correctly described to be a bond or note for the direct payment of money; and as the note in this case contains not only a stipulation for the payment of men-ey, but also for the clothing of the slaves, it is plain that it cannot be correctly described as a note for the payment of money only; for the whole note, and not a part only should come within the description, and the whole of its stipulations must therefore be taken into consideration, in determining the aptitude or correctness of the description.”
¶4Our statute giving the remedy by petition varies from that of Kentucky only as it confines the remedy to the cases of bonds or notes for the direct payment of money or “property,” and to use the language of the Kentucky court, the note sued on in this cause cannot be correctly described as a note for the direct payment either of money, or property, because it contains in addition to the promise for the direct payment of money, a stipulation for the clothing, paying taxes and return of the said slaves.
¶5The same disposition then, that was made of the case cited from the Kentucky reports, it seems to me ought to be made of this cause, that is to reverse the judgment of the circuit court, and remand the cause in order that the plaintiff in that court may have leave to discontinue his action. Judge Napton concurring in that opinion, the judgment is accordingly reversed, and the cause remanded for the purpose aforesaid.