Hern v. . Stubbers

1 N.C. 782

Opinions

1. Because the cause of the debt on which the attachment was is not shown; neither is it averred expressly that there was any debt.

Stone. The cause of the debt is not to be shown, 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 alleged quod jurat debitum, without saying esse verum.

Stone. This shall be understood.

3. It is not shown 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 allege a discontinuance in the record. 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 arequest, which ought to be specially alleged. To which it was answered that there is a difference between this and an action on the case. 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.