Hern v. Slubbers, 1 N.C. 208, 1 Mart. 208 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 208, 1 Mart. 208

Hern vs. Slubbers.

Trin. 3 Car.

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. The cause of the debt is not to be shewn, for it is only a matter of inducement, and it is not traversable. 5 H. 7. 1. 9 E. 4. 45. vel. 43. 39 E. 6. 12.

2.The custom is, if he swears that his debt is just, and here it is alledged quod jurat debitum, without saying esse verum.

Stone. This shall be understood.

3.It is not shewn that the infant was within the age at the time.

4. The custom is, that the sheriff shall return that the debtor has nothing, whereby he may be summoned, and cannot be found within the city; and that he be called at the next court, and if he does not appear, a foreign attachment may issue. But in this case it is not averred that any of these requisites were complied with.

Stone. It is true, and therefore the judgment is erroneous. But we could not take advantage of this. 21 E. 4. 3. A stranger cannot alledge a discontnuance in the rerecord. Dr. Druries’ case. 8 Rep. 142. A sheriff, charged with *an escape, shall not take advantage of an error in the record.

Also here the declaration is bad, for the rebailment is to be upon a request, which ought to be specially alledged. To which it was answered, that there is a difference between this and an action the case.

Doderidge, J.

I 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.

The 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.

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

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