Green v. Wilmington Trust Co.
Superior Court of Delaware
Summons Case Motion that judgment be refused notwithstanding affidavit of demand. The body of the affidavit was as follows: ‘ ‘ That annexed hereto is a true and correct copy of the moneys had and received by defendant in his lifetime and defendant’s acknowledgment of same under hand of Samuel D. Forbes, defendant deceased, sued upon in this action; that the sum demanded of the said defendant is the sum of one thousand dollars, principal and interest thereon from December…
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Summons Case Motion that judgment be refused notwithstanding affidavit of demand. The body of the affidavit was as follows: ‘ ‘ That annexed hereto is a true and correct copy of the moneys had and received by defendant in his lifetime and defendant’s acknowledgment of same under hand of Samuel D. Forbes, defendant deceased, sued upon in this action; that the sum demanded of the said defendant is the sum of one thousand dollars, principal and interest thereon from December 1st, 1903, and. said deponent further says, that he verily believes that the same is justly and truly due from the said…
1Opinion of the CourtWoolley, J.
delivering the opinion of the court:
Taking up the grounds for the motion in reverse order, it is apparent that the instrument sued upon is not such a one as is contemplated by the statute and therefore the matter of its probate does not require decision. In order to obtain judgment at the first term upon an affidavit of demand; the instrument of writing or claim sued upon must be for the unconditional payment of money and must contain a promise to pay that is unconditional in its nature. The instrument sued upon in this case is neither an unconditional promise nor a promise at all. It is a…
2Cited by1 opinion
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