Section 2365 of the Code is in tbe following words : “ If suit be brought on any moneyed demand, for a less amount than that of which the court has jurisdiction, the suit must be dismissed ; or, if suit be brought for such amount, and a less sum be recovered, unless the amount is reduced below that of which the court has jurisdiction, by a set-off successfully made by the defendant, the judgment must be set aside, and the suit dismissed, unless he, or some one for him, make affidavit, which must be filed in the cause, that the amount sued for is actually due, and that a recovery for the trq,e amount wTas prevented by failure of proof, the interposition of the statute of limitations, or some other sufficient cause, to be judged of by the court; and in that event, he must havejudgment for the reduced sum.”
The majority of the court are of opinion, that a demand which is sought to be enforced by an action of trover, is not a 4 moneyed demand,’ within the meaning of this section. They think, that it plainly appears from the context of which this term, ‘ moneyed demand,’ forms apart,. that as here employed, it embraces only those demands which arise out of contracts, express or implied, for the payment of money, and which, from their nature, enable the plaintiff to make affidavit that the amount sued for is actually due,” and that “a recovery for the true amount was prevented by a failure of proof, ” &c. The section, therefore, applies only to actions ex contractu, and not to actions ex delicto.
Judgment affirmed.
A. J. WALKER, C. J.Viewing section 2365, in connection with sections 628, 711, and 2503, I think, that the term “moneyed demand,” as it occurs in that section, includes a demand recoverable in trover; and I therefore' dissent from the.opinion of the majority of the court.