Higgins v. Bogan

4 Del. 330

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

Court.

—This paper is drawn up as a promissory note; but being sealed it is a bill obligatory, and should have been declared on as such, as the pleader is bound to state any paper in pleading according to its legal effect. The pleader here has undertaken to follow the terms of the paper, which unite the promissory note with a single bill, by declaring both in debt and case. We will look at the recent precedents; and for that purpose you may go on to the jury, and we-will take the verdict subject, if for plaintiff! The plaintiff to have a nonsuit if we hereafter set aside his .verdict.

A deed or other instrument, under seal, to which there is a subscribing witness, must be proved by such witness, if he can be produced or is capable of being examined. It is not absolutely necessary that the witness should see the party sign or seal the instrument. If he sees the party deliver the instrument already signed and sealed as his deed, it is sufficient.

The material ingredient in the execution of sealed instruments, is the delivery; but no particular form or ceremony is necessary. If the party who signs and seals the instrument, testifies in any manner, by word or action, his intention to deliver it or put it in the possession of the other party, it is sufficient.

Wales, for plaintiff. Rogers, for defendant.

Note admitted; and plaintiff closed.

The jury rendered as their verdict, “ that they find for the plaintiff; and that there is $109 67, due, &c., with six cents costs, besides the costs expended; subject, (fee.”

At a subsequent day the court, considering that the variance between the note offered and the declaration did not vitiate the verdict/ ordered it to stand absolute. Whereupon a motion was made in arrest of judgment; 1st. For a material variance between the declaration and the verdict; 2d. Because a verdict and judgment in debt cannot follow a declaration sounding in damages, and which is not for a sum certain; 3d. Because the verdict was inconsistent with the plaintiff’s complaint as stated in his narr.

After argument, motion in arrest of judgment refused, and judgment for plaitiff on the verdict. (See Gould’s Plead. 496, §§ 11, 12.)

It is an invariable rule, that no defect in the pleadings which would not have been fatal to them on general demurrer, can ever be a sufficient cause for arresting judgment; nor is it by any means true, that every defect in the pleadings which would have been fatal on general demurrer, is sufficient ground for arresting judgment after a general verdict.