inquired whether the act of limitations was pleaded.
E. J. Lee contended that it might be given in evidence on the issue of nil debet, and cited Esp. N. P. 262.
THE COURT said they had decided at last term in Washington, in the case of Gardner v. Lindo [Case No. 5,231], — see that case in the supreme court of the United States, 1 Cranch [5 U. S.] 343, — that the statute of limitations could not be given in evidence on the plea of nil debet to an action of debt on a promissory note; and refused to overrule that decision, it having been made unanimously by a full court; and the court being now not full.
Upon the motion of E. J. Lee, for defendant THE COURT instructed the jury that the plaintiff [the assignee of E. C. Dick] must prove himself to be duly appointed as-signee, by producing the original commission, and proceedings thereon, or a certified copy thereof, and the original deed of assignment.
The plaintiff became nonsuit, and THE COURT, on his motion, reinstated the cause without costs, and refused the defendant leave to plead the statute of limitations, unless he could show by affidavits that the plea was necessary to the justice of the case.