Burton's Adm'r v. Cannon

5 Del. 13

• Court: Superior Court of Delaware
• Decided: July 5, 1848
• Status: Published

Opinion

Charge to the Jury.—The judgment is twenty-eight years old. Ho evidence is offered to support any of the' pleas, except the plea of payment; and to sustain it, defendant relies on the rule of law, that the debt, from lapse of time, is presumed to have been satisfied. The rule is such in relation to a debt, whether due by bond or judgment, if more than twenty years old, and there has been no payment towards it, and no recognition or acknowledgment of it as a debt due, it is presumed to have been paid.

The presumption may be repelled by evidence of an express acknowledgment, recognition or admission on the part of the defendant, within twenty years, of the justness of the claim, and that it is still due; or by evidence of a payment on account of the principal or interest within twenty years; either of which is an implied recognition of the debt.

The acknowledgment or admission of the defendant is sufficient, whether made to the plaintiff or to a third person; but in either case, it ought to be an acknowledgment of the debt that is sued for, or ought expressly to refer to it.

Whether such acknowledgment has been made by the defendant is a question of fact, to be determined by the jury. But it is to be remarked, that where the plaintiff proves a general acknowledgment of indebtedness, the burden of proof lies on the defendant, to show that the acknowledgment related to a different demand from the one in controversy. It is for the jury to say, whether the acknowledgments of the defendant referred to this judgment. The jury cannot find a verdict for a larger sum than the p'enalty, $126.