
    Lowden vs. I. C. Moses & Co.
    Where a new remedy or a new canse of action is given by statute, the plaintiff who would avail himself of either, must bring himself within the statute.
    "Where a party brings an action against a vendue master to recover money for goods which he had sold, and sets fortlr in his declaration that the defendant was indebted as vendue master, to entitle the case to a preference on the docket, a demurrer, assigning for cause, that the declaration did not state whether the plaintiff proceeded at common law or under the statute, will be over-ruled. — 
    
    The proper time for contesting the right of'the defendant, a vendue master, to the benefit of the insolvent debtor’s act, is on his application for the same,
    if the defendant think proper to dispute tlic right of the plaintiff to a preference on the docket, in suits against vendue masters, he can always do so by his pleading. — (b.)
    JL HIS was an action brought against the defendants as Vendue Masters, for the proceeds of certain goods, wares and merchandise, sold by them for the plaintiff.
    By an act passed on the loth December, 1815, vendue masters are excluded the benefit of the insolvent debtor’s act, and a preference is directed to be given on the docket to all such cases.
    The declaration set forth that they were vendue masters; and then followed the usual counts for money had and re reived, <kc.
    
      The defendants demurred, and assigned fof cause of dfe-¿mrrer, that it did not appear from the declaration whether the plaintiff proceeded at common law or on the statute, &c.
    The demurrer was over-ruled on the circuit; and a motion was now made to reverse the decision of the circuit court.
    
      
      
         See Ante, 38, Missroon vs. Frean — R.
    
   ffifr. Justice Huger

'delivered the opinion bf the court.

When a new remedy or a new cause of action is given by a statute, the plaintiff who would avail himself of either must bring himself within the statute. The proceedings however in this case áre not under the act of 1815, but at common law. The declaration sets forth that the defendants are indebted as vendue masters, to entitle the case to preference on the docket: As in the Courts of the United States the pleadings must state, that the parties are aliens or citizens of different states to give jurisdiction. So far is the act óf Í815 from giving a remedy unknown to the common law, that it repeals in part the insolvent debtors act, which did limit the commoh law rights of the plaintiff. In the case of Roseblanch vs. Cleary Gieu, it was decided that the proper time for contesting'the right of the defendants to the benefits - qí the insolvent debtors act is on his application for the same.

Should the defendants think proper to contest the right of the plaintiff to a preference on the docket, he can always do so by his pleadings.

The motion in this case is refused.

Justices Colcock, Gantt and Richardson, concurred».  