Vandegrift v. Page

5 Del. 439

• Court: Supreme Court of Delaware
• Decided: June 5, 1854
• Status: Published

Opinion

The Court

decided to hear the case, ex parte. Two grounds were relied on for the reversal of the judgment.

1. That the form of action adopted in this case, namely, debt, was not the action given by the statute, which is case.

2. That the declaration was materially defective, for want of an averment that the plaintiff was a citizen of this State.

The statute provides for two cases, viz: the carrying out the slave of citizens, and the carrying out the slave of a citizen of another State, escaping from such State. The declaration did not state whether it was the one case or the other, and the court could not infer that it was the slave of a citizen any more than they can notice another fact outside the record, which the counsel stated to be so, viz: that the person taken out of the State was not only not a slave, but could not be a slave. He was an Indian; since given up by the claimant as such.

The distinction was stated to be between the defective statement of a title or cause of action; and the statement of a defective title or cause of action. (1 Wms. Saunders, 238, note n.; 2 Tidd Pr. 925; 1 M. & Selw., 234; Dougl., 679; Rushton vs. Aspinwall; 2 Term Rep., 141; 4 Ib., 472; 6 Ib., 528; 5 Barn. & Ald., 27; 27 Eng. Com. Law Rep., 24.)

The judgment was reversed on this ground.