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Bradley v. Addicks

24 Del. 319 1 Boyce 319 Court Superior Court, New Castle County, Decision date 1910-04-12 English

Delivered by Boyce, J.,

Contents

Majority

p. 319
Sarah B. Bradley, Administratrix of Francis E. Bradley, deceased vs. John Edward Addicks.

Headnote

Assumpsit—Common Counts—Bill of Particulars—Plea—Act of Limitations—Replication; General; Special.
1. The plea of the Statute of Limitations, in an action of assumpsit on the common counts, amounts simply to an averment that the promise; was not made within three years; and a general replication to the plea is a_ reply that the promise was made within three years.
2. A special replication to the plea of the statute, in an action of assumpsit, on the common counts, averring that the cause of action accrued within six years next before the commencement of the action is sufficient.
Del. case cited:—McDermott vs. McCormick, 4 Harr. 543 and 1 Woolley, Del. Prac., Sec. 534.
(April 12, 1910.)
Judges Boyce and Hastings sitting.
H. H. Ward for plaintiff.
A. B. Cooper for defendant.
Superior Court, New Castle County,
March Term, 1910.
p. 320
Action of Assumpsit, on the common counts. A bill of particulars was required, and the plaintiff filed, in due form, as a bill of particulars, a copy of an instrument in writing, signed by the defendant, as follows:—
“June 3, 1903,
Due Francis S. Bradley, Two Thousand Dollars for money borrowed.
$2,000. ' J. Edward Addicks.”
The defendant pleaded the statute of limitations. There was a special replication to the plea, and the defendant demurred.

delivering the opinion of the Court:

This was an action of assumpsit on the common counts. A bill of particulars was required and filed.

After the bill of particulars had been filed the defendant pleaded the statute of limitations, among other pleas, without drawing the said plea out. The plaintiff did not file a general, but a special, replication to the plea of the statute, to the effect that the said several causes of action in the declaration mentioned and each of them did accrue within six years next before the said action was brought. The defendant demurred to the replication.

The plea of the statute in an action of assumpsit on the common counts amounts simply to an averment that the promise was not made within three years, and a general replication to it, as was contended, is a reply that the promise was made within three years, but that is not this case. The plaintiff has replied to the plea of the statute by a special replication, averring that the cause of action accrued within six years next before the commencement of the action. The special replication is, we think, proper and sufficient. (1 Woolley on Del. Prac., Sec. 534; McDermott vs. McCormick, 4 Harr. 543 .)

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