7 Del. 209 | Del. Super. Ct. | 1860
Lead Opinion
This was an action of assumpsit commenced by foreign attachment, on five several promissory notes dated respectively June 26, 1851, payable in four months for $500; July 17, 1851, payable in four months, for $500; August 11, 1851, payable in four months, for $500; August 28, 1851, payable in four months, for $500, and September 18, 1851, payable in four months, for $583.50, made and delivered by the defendants, Wells Sappington, to the firm of W. J. Sooy, or order, and by the latter endorsed in blank, entered on the back of each of the notes, July 28th, 1856; and which came to the hands of Shreve, the plaintiff's decedent, after their endorsement and maturity. The foreign attachment of the plaintiff was sued out more than six years after the maturity of the last, and of course, of all of the other notes; and at the term of the court to which it was returnable, the defendants appeared, gave special bail to the action and dissolved the attachment. Declaration was *211 thereupon filed by the plaintiff on the several promissory notes, to which the defendants pleaded among other pleas, the statute of limitations. To this plea, the plaintiff replied specially, that at the time when the said causes of action accrued against the said defendants in said declaration mentioned, they the said defendants, were and each of them was out of the State of Delaware, and that they, the said defendants, did both of them at the accruing of the said causes of action reside out of the said State of Delaware, and from thence until the present time, have each of them resided out of the said State and without the jurisdiction of said Court. And to this replication the defendants demurred generally. The case came on for argument upon this plea, replication and demurrer, at the last term; but the court reserved it for advisement until the present term, when the decision and judgment of the court was announced as is herein after stated.
Dissenting Opinion
and was of the opinion that the demurrer ought to be sustained on the ground that the replication of the plaintiff was not sufficient in substance to bring the case within the saving of the statute in question.
