Opinion
(1793.)
Error on a judgment of the Common Bench, in an action on the case sur assumpsit on delivery of a bond on request (the money being paid), and non ass. pleaded. The error insisted upon was that the request is laid generally: licet saepius requisitum fuisset, without showing when, where, or by whom the request was made; and the question was whether this was not cured by the verdict. It was objected by the defendant that the showing the place is only for the venue; and here the request comes in question, and the plea of non ass. denies the request; and there ought to be a request, inasmuch as it is part of the contract, and licet saepius requisitus is not sufficient. But if the plaintiff in fact alleges a request, and omits the place where it was made, and issue is upon non ass., he waives the request; and when the defendant promises to deliver a thing on request, the plaintiff, if he does not request, has no cause of action, for the request is the consideration; and by his own showing it appears that he has no cause of action. The judgment was reversed.
If the defendant had pleaded a release of the assumpsit, and the plaintiff had pleaded a request, which had been found for him, the declaration would have been well, by admission. Still the declaration is the ground of the suit, and if it is bad, no subsequent plea will make it well. But in debt a licet saepius requisitus is sufficient, for it is not traversable, because the delivering of the declaration, which is a proecipe, is a *sufficient demand. 30 El. rot., 464; Old and Eastgrew's case; Tr. 16 Jac. rot., 268. A special request ought to have been laid. Jones, 86; 3 Bulst., 297; Bendl., 157, 162; Poph., 160; Vin., 112; Hut., 73; Roll., 476; 3 Cr., 386; 3 Leon., 200.