Hern v. Slubbers , 1 N.C. 208 ( 1793 )

Doderidge, J.

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.

Jones, J.

The difference between an action upon the case, and this, is that here the action is a sufficient request; and this is no prejudice to the defendant, for he may come on the first day and excuse himself, and he shall not be damnified. This distinction has been taken in this court, between an action of debt and an action on the case.

Doderidge, J. The request is no part of the debt; but here it is part of the contract.

So the opinion of the court was against Stone, in all points. Sed adjournatur. Godb. 483.