Gibson v. Gillespie

• Decision Date: 02 December 1927
• Citation: 143 A. 544,34 Del. 125
• Court: Delaware Superior Court
• Parties: ADDISON H. GIBSON, assignee of Compania Petrolera de Tepetate, S. A., (a corporation created by and existing under the laws of Mexico), v. E. NEAL GILLESPIE and JOSEPH F. GUFFEY

143 A. 544

34 Del. 125

ADDISON H. GIBSON, assignee of Compania Petrolera de Tepetate, S. A., (a corporation created by and existing under the laws of Mexico), v. E. NEAL GILLESPIE and JOSEPH F. GUFFEY

Superior Court of Delaware, New Castle County

December 2, 1927

Superior Court for New Castle County, No. 218, September Term, 1926.

Action of assumpsit on a promissory note.

Application to amend defendants' pleas after case was at issue and marked for trial by adding a plea of set-off.

Plaintiff's attorney objected to the filing of this plea on the ground that it was subject to demurrer and would, therefore necessarily result in a continuance of the case. He claimed that the plea, which the defendants asked leave to file, was defective because it appeared on the face of it that the alleged debt, on which it was based, was barred by the statute of limitations.

The defendants' attorneys contended that the filing of the plea of set-off could not result in any delay as the statute of limitations could only be taken advantage of by a replication to that plea, and not by demurrer.

The application of the defendants to amend is granted.

Caleb S. Layton (of Marvel, Layton & Morford) for plaintiff.

Aaron Finger and Charles F. Richards for defendants.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

Whatever the rule in equity may be, the statute of limitations must always be pleaded at law, and that defense cannot be raised by demurrer. 37 C. J. 1204; Woolley on Del Pr., § 513; Whitaker v. Barker, 2 Harr. 413, 416; State, Use of Parker, v. Whitaker, 4 W.W. Harr. 527, note.

In Woolley on Del. Prac., supra, Judge Woolley said:

"The defense of the statute of limitations is a personal privilege of which the party, in whose favor it operates, may take advantage, or not, as he desires, but to be of avail it must be pleaded."

The same principle has been applied to the Statute of Frauds. Schwartzman v. Wilmington Stores, 2 W. W. Harr. (32 Del.) 362, 123 A. 343.

Nor would a judgment be arrested or reversed for error, though the fact that the cause of action upon which it was based was barred by the act of limitations, appeared on the very face of the record. Woolley on Del. Prac., § 531; State, Use of Parker, v. Whitaker, 4 W.W. Harr. 527, note.

The same rule would, also, apply to a plea, and if the debt referred to in the plea of set-off in this case is barred by the statute of limitations,...