Waples v. Layton — 3 Del. 508

Majority

p. 508

ISAAC WAPLES, defendant below, app’t. vs. LAYTON & SIPPLE plaintiffs below.

Headnote

The defendant may plead the act of limitation' on appeal from a justice’s judgment though he failed to plead it below. I

Admissions, to take a ease out of the act of limitation, must amount to an acknowledfl ment of a subsisting debt. I

Appeal from the judgment of a justice of the peace in an actiol of assumpsit. I

This was an action of assumpsit for goods sold and delivereil The plaintiffs proved their book of original entries charging the goocl to defendant under date of 22d November, 1836. They commence® action before justice Ewing on the 20th of March, 1841, and hsl

p. 509

judgment by default, from which the defendant appealed. Pro narr. in assumpsit. Pleas non-assumpsit and the act of limitation. Justice Ewing proved that the defendant called on him after the judgment below to take an appeal; and without denying or admitting the debt, merely remarked “there are other Isaac Waples’ in the county.” He said nothing about the act of limitation.

Cullen, for the defendant,

moved a nonsuit, on the plea of the act of limitation.

Ridgely, for plaintiffs,

made the point that the defendant having failed to plead the act of limitation at the earliest period, viz: before the justice, could not avail himself of it on the appeal. The court would not allow the plea by way of amendment. (2 Harr. Ref. 444; 5 Burr. 2630, Blansh. on him.; Dig. 344.)

Ridgely, for plaintiff.

Cullen, for defendant.

But the court said, the defendant has a right to plead the act of limitation on the appeal. The suit is precisely as'if it had originated here and the respondent cannot refer to the record of the proceedings below, except to state how this case came here; and the date of the proceeding commenced below, in reference to the plea of limitation.

As to the other point, there is no admission which we would leave to a jury to take the case out of the act of limitation. The old cases went to a ridiculous extent on this subject, which the modern deci-Isions are overruling. We cannot at least admit any thing to prevent the bar of the statute, which does not amount to an acknow-I ledgment of a subsisting debt; nor leave any thing to the jury, unless j such an acknowledgment can be fairly drawn from it.

The plaintiffs in this case must be nonsuited,