Gale v. Myers

9 Del. 546

• Court: Superior Court of Delaware
• Decided: July 5, 1873
• Status: Published

Opinion

The Court,

Wootten and Wales, Associate Judges, Grid- pin, Chief Justice, absent. This is a grave question of law which has never been passed upon, or directly decided by this, or any other court in the State, and it is a fact of no little weight and effect, that it is the first time that such an action has been brought on a promissory note made by two or more persons, as common as they have been, in any court in this State within our knowledge. There is one marked peculiarity which distinguishes such an instrument from other written contracts in general, and that is their negotiability and convenient transfer and commercial circulation by indorsement and the conditional obligations which attach upon it, and how far their negotiability might be affected or impaired by the ruling now asked for, we are not prepared to say; but this much we, at least, are prepared to say, that we have grave and strong doubts as to the intended application of this statutory provision to such an instrument, and, as it is our uniform practice when we have a serious doubt as to the right of the plaintiff to judgment at the first term in this speedy and summary method, to refuse the application, we must decline to grant the motion for judgment in this case.