The question has been elaborately argued at the bar, whether an attachment will lie in this State, where the cause of action is not a debt, unless the instrument, or contract, on which the attachment issues, ascertains the amount of the damages. This question has never been distinctly presented to this court before, and we decline its examination now, because it is not presented on the record.
It is not raised by the motion to quash the attachment, because the attachment is regular, and were it otherwise, the refusal to quash is not revisable on error. For the same reason, it could not be made by plea in abatement, as the affidavit for suing out the attachment, describes a debt due from the defendant. The demurrer to the declaration, only brings to view the declaration itself, and does not authorize the court to examine the attachment. [Cain v. Mather, 3 Porter, 224.] And if it did, it would avail nothing in this esse, as the affidavit discloses a good cause for suing out an attachment.
It is obvious that some mode must exist, by which a defendant whose goods have been attached, for a cause not warranted by the attachment law, can reach the defect; and we think the mode adopted in Pennsylvania, by a rule on the plaintiff to show cause why his attachment should not be dissolved, judicious and proper. [Serg. on At. 43; Fisher v. Consqua, 2 Wash. C. C. R. 382.]
*227The only question presented by the demurrer, is the sufficiency of the declaration. The liability of the defendant is deduced in the declaration by the averment, that a contract was made betwen the parties, by which, for a reasouable reward, the defendant undertook to take due and proper care of a quantity of iron, and transport it safely in his vessel, from New Orleans to Providence, Rhode Island. The breach al-ledged is, that he did not so transport and convey it, but that by his carelessness and negligence, the iron was lost.
It isa clear proposition, that the defendant could not become liable npon this contract, to transport the iron from New Orleans to Providence, Rhode Island, unless it was delivered to him for that purpose ; and so are all the precedents, which distinctly alledge, the receipt of the goods by the carrier. [2 Chitty’s P. 148, 157.] Possession of the thing, is indeed of the essence of every bailment. It frequently happens, that goods intended to be shipped are lost, without being actually put on board the vessel, and there is a doubt, whether the wharfinger or master of the ship is responsible. [Cobban v. Downe, 5 Espinasse R. 42; Platt v. Hubbard, 7 Cow. 503; Packard v. Gilman, 6 Id. 757.] In either case the question of liability depends upon the possession, and must be alledg-ed in the declaration.
This declaration contains only an averment of the contract to carry the iron, and the breach assigned is, that by the negligence and carelessness of the defendant and his servants, it was lost. There is no averment that it was delivered to, or came to the possession of the defendant, and the declaration is therefore bad, on general demurrer, as it does not state a cause of action.
The objection to the reading of the deposition of Clarke, was correctly overruled. The commissioner is presumed to know the witness whom he examines, and has affirmed that this is the witness named in the commission, who bears the same name, except that his middle name is S. instead of P. If a witness of a different Christian or sirname had been examined, the question would be different, qut a variance of the middle name has never been considered essential. The case cited is not an authority the other way. Barham and Barn-ham are entirely different names.
*228The deposition of Stafford was improperly received. The notice of the time of taking the deposition was, that it would be taken on the 20th and 21st February. This, upon the authority of Ulmer and Austill, was not sufficient to authorize the taking of the deposition on any other day than the 20th, and having been taken on the 21st, it should have been rejected.
The court also erred, in our opinion-, in rejecting the deposition of Bucklin. The supposed error was, that in stating the case in the commission, the plaintiff was called Robert G. instead of Rowland G. Hazard. This was evidently a clerical misprision, which was amended by other parts of the record. The deposition is conclusive proof that it was taken in this cause, and should have been admitted unless some other valid objection existed to it-. ,
The questions arising out of the charges of the court, have hot been considered, as they may not again arise.
Let the judgment be reversed and the cause remanded.