Worley v. Mourning

4 Ky. 254, 1 Bibb 254, 1808 Ky. LEXIS 208

• Court: Court of Appeals of Kentucky
• Decided: November 28, 1808
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Edwards.-

— The first error assigned is, that the plaintiff has misconceR ved his action; it should have been debt or covenant, and not case ; and this error to the court is apparent, and is deemed fatal ; for the plaintiff has declared upon, a writing obligatory, which ex vi termini implus a writing under saal, on which an action of trespass on the case cannot be supported.

The second error assigned, relates to the want of prosper averments in the declaration.

The declaration sets forth, that the plaintiff in error, by the writing obligatory in the declaration mentioned, obliged himself to get John Barnet to give his obligation to the defendant in error, or make him a general warranty deed, to two hundred and fifty acres of land, without specifying any time when the one, or the other, was to be done ; from which it is evident, that no cause of action could accrue, till the plaintiff was required to perform his covenant by request or demand. A de=. mand therefore being necessary to give cause of action, it should have been especially avered, according to the well known rule of law, that all material averments must be specially made, and cannot be supported under a seeps requisitus,

(a) which is all the averment contained in the declaration.-’Judgment reversed, &c.

Accord. Bull. N.P. 152 —Birks vs. Triplett, Saund. 32 — Wallis vs. Scott, Strange 88.