Opinion
June 13, 1817.
Writ of error to the Justices of the Supreme Court, New Castle County. Citation issued returnable to August Term, 1815. Sheriff returned, cited, defendant never appeared in this court, and, errors being assigned, Mr. Rogers was directed by the Court to proceed, although the defendant has not appeared, and although there is no replication to the assignment of errors.
Assignment of errors:
1. That the said action being founded on a promissory note, the said defendant by his counsel pleaded to the said action the Act of Limitation, whereas in law no such plea could be pleaded to an action on a promissory note.
2. For that the said court gave judgment on the demurrer to said plea of Act of Limitation in favor of said defendant whereas the said court should [have] rendered judgment on said demurrer in favor of plaintiff.Rogers for plaintiff in error. Act of Assembly, 2 Del. Cas. Laws 1133, excepts from the Act of Limitation, 2 Del. Cas. Laws 1031 passed February 4, 1792, demands founded on mortgages, bonds, bills, promissory notes, or settlements under the hands of the parties concerned. By the declaration it appears that the note was made March 8, 1798. The suit was brought April 1, 1811. Defendant pleaded Act of Limitation. Plaintiff demurred November 2, 1813; after argument, judgment by the court below for the defendant in demurrer. The court below proceeded on the supposition that the Act of 1793 repealed the Act of February, 1792, and consequently that the old Act of Limitation was revived. There is nothing on promissory notes in previous laws. These the courts have said were barred, though not expressly embraced in the laws, because all actions on case were barred.
Judgment reversed. We are of opinion that a promissory note is, by the Act of 1793, 2 Del. Cas. Laws 1133, excepted and taken out of the Act of 1792, c. 248, 2 Del. Cas. Laws 1031, and that the Act of 1773, c. 216a, 1 Del. Laws 524, is not revived as to promissory notes. There is no clause respecting the Act of 1792, and it appears to have been the intention of the legislature to place mortgage bonds, bills, promissory notes and settlements under the hands of the parties concerned all on the same footing. If this was not the intention, it is not conceivable why mortgages, bonds and bills were introduced into this Act. They were not included in the former Acts; and here they are all excepted from the Act of 1792 and pleaded without limitation, though mortgages, etc.