Mickle v. Baker ( 1822 )

Mr. Justice Richardson

delivered the opinion of the court:

In order to hold a defendant to hail, without a special order, under the act of 1769, (P. L. 273,) it is requisite that the affidavit should state a. specific sum due, for or upon what due, and that it had arisen from a contract express or implied, as the claim must be in the nature of a debt.

The affidavit in question states $ 57 due, being the price of the horse, returned and accepted by tlie defendant ; which acceptance raised an implied contract to return the price.

Supposing then the facts true as sworn to, the former contract for the sale of the horse had been rescinded, and the price remained in the hands of the defendant, as holder of money to the use of the plaintiff. It became a debt. The affidavit was therefore sufficient without a special order, and the motion is therefore granted.

Justices Huger, Noil and Johnson, concurred-