Bickham v. Irwin

3 Yeates 66

Opinion

The court were clearly of opinion, that though the goods had been charged by the plaintiffs to the defendant, yet it was manifest, from all the circumstances of the case, and from what passed at the time of the delivery, 'that the defendant’s responsibility rested on his collateral undertaking as security for the goods, and not as principal in the contract; consequently the plaintiffs could not recover on a general indebitatus assumpsit, but should have declared in assumpsit, for the special undertaking.

It was at length agreed, that a juror should be withdrawn, and the plaintiffs be permitted to amend their declaration, on their consenting that the judgment entered in the Common Pleas as a security should be vacated.