Detinue — Pleading. I am of opinion that, as to the first count in this declaration, the demurrer must be overruled. The defects pointed out by the special demurrer, and insisted on by the defendant in argument, are all such as come within the saving efficacy of Gen. Stats., ch. 207, secs. 8, 9. Berry v. Osborn, 28 N.H. 279.
The second count is, "That the defendant render and pay to the plaintiffs the sum of one hundred and seven dollars, which he owes to the plaintiffs and unjustly detains from them." It is said of the action of detinue, that "it lyeth where any man comes to goods, eyther by delivery or by finding. In this writ, the plaintiffe shall recover the thing detained, and therefore it must bee so certaine as it may be knowne, and for that cause it lyeth not for money out of a bagge or chest; and so of corne out of a sacke and the like, these cannot be knowne from other." Coke Litt. 286, b. On this excellent authority of my Lord Coke, I hold that as to the second count the demurrer must be sustained.
CUSHING, C. J., and SMITH, J., concurred.
Demurrer sustained as to second count. *Page 558