McDermott v. McCormick

4 Del. 543

• Court: Superior Court of Delaware
• Decided: July 5, 1847
• Status: Published

Opinion

By the Court.

—1st. As to the attestation by the word “witness,” and the signature of the witness; it is very different from the formal attestation of a will when all the requisitions of the statute of wills must be contained in the certificate of attestation, or proved otherwise. But the signature of the witness to this paper, can mean nothing else than an attestation of the signing. The word “ witness ” can have no other application.

2. As to the alterations or erasures on the back of the note; they are not of such a character as to exclude the paper, but will be left to the jury as a circumstance of suspicion, and with direction that, unless explained, the presumptions would be against the party holding the paper.

3. As to the replication of the writ issued, to the plea of limitation, though usual ,in the English practice, it is never done here. The production and date of the writ are always a sufficient answer to the plea.

Wales, for plaintiff. Bayard, for defendant.

4. As to the acknowledgment to take the case out of the act of limitation, it must be a distinct recognition of the claim, or acknowledgment of a subsisting demand.

5. On the last ground, whether the plaintiff is at liberty to give in evidence this due-bill on the pleadings in this case, we think there is no doubt on principle, but are somewhat embarrassed by the former practice. The action is assumpsit on the common money counts, with a count on an account stated. The plea is non-assumpsit, and the act of limitation; that is, that the plaintiff did not promise within three years next before the commencement of this action; to which there is a general replication, which is, that the defendant did promise within three years. Under this issue, the due-bill is offered in evidence and objected to; its date being more than five years before this action was brought.

Had the evidence been admitted without objection, as has frequently been done, the question which has been argued would have arisen, viz: whether the form of the acknowledgment, being under hand, would not prevent the bar by showing that the six year limitation, and not the three year, is applicable to the case. But the evidence is itself inadmissible under the present issue. Had the plaintiff, instead of a general replication to the plea of the statute, replied that the party, by an acknowledgment under his hand, had promised within six years before action brought, this evidence might have been admitted.

At present we cannot rule it in under the issues now trying, and must nonsuit the plaintiff. We shall give him leave, however, if he chooses, to take this nonsuit off, with a view of leaving the further-consideration of this question open.

A rule was laid to show cause why the nonsuit should not be taken off; which was afterwards discharged, but without argument.

Rule discharged.