If the defendant had pleaded a release of the assumpsit: and the plaintiff had pleaded a request, which had been found for him; the declaration would have been well, by admission. Still the declaration is the ground of the suit, and if it is bad, no subsequent plea will make it well. But in debt a licet fœpius requisitus is sufficient, for it is not traversable: because the delivering of the declaration which is prœcipe, is a *sufficient demand. 30 El. rot. 464. Old and Eostgrew's case. Tr. 16. Jac. rot. 268. A special request ought to have been said. Jones 86. 3 Bulst. 297. Bendl. 157. 162. Poph. 160 Vin. 112. Hut. 73. Roll. 476. 3 Cr. 386, 3 Leon. 200.
Peck v. Cole, 1 N.C. 93, 1 Mart. 93 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 93, 1 Mart. 93
Peck vs. Cole.
Pasch, 1 Car.
ERROR on a judgment of the Common Bench, in an action on the case fur assumpsit on delivery of a bond on request (the money being paid) and non ass. pleaded. The error insisted upon was that the request is laid generally: licet fœpius requifitum fuisset, without shewing when, where, or by whom the request was made: and the question was whether this was not cured by the verdict? It *94was objected by the defendant that the shewing the place is only for the venue; and here the request comes in question, and the plea of non ass. denies the request; and there ought to be a request, inasmuch as it is part of the contract, and licet fœpius requisitus is not sufficient. But if the plaintiff in fact alledges a request, and omits the place where it was made, and issue is upon non ass. he waves the request; and when the defendant promises to deliver a thing on request; the plaintiff if he does not request, has no cause of action, for the request is the consideration; and by his own shewing, it appears that he has no cause of action. The judgment was reversed.