Wilson’s Red Book, 190
Supreme Court of Delaware, Sussex County.
March 21, 1798.
Motion for a nonsuit under 2 Body Laws 110, because plaintiff had not made the probate required of the cause of action.
Answered. This plaintiff has been proved to reside in England and to have been there since 1784, before the death of her testator. That the Act lays down a rule, but not a more binding one than that a subscribing witness, if living, must prove the instrument, yet in Doug. 93 we find that if the witness is beyond sea, the handwriting may be proved. Every rule must have its exceptions. This Act only allows a nonsuit when the party refuses on the trial to make such probate, and in such case it is reasonable that no person should have a verdict for a debt he will not swear to according to the best of his knowledge.
READ, C. J.
This Act is the first I ever drew, and I think the not doing of it is the refusal. The Act allows it to be done at any time, even at the trial. A nonsuit must be entered.
Wilson for the plaintiff. D. Hall, W. Peery an Vining for defendant.
I desired a verdict might be taken subject to the opinion of the court on this point. Especially as a case from the Common Pleas was like to go to the Appeals on the same point. This the Court inclined to strongly, but the opposite counsel refused.
(N. B. I had obtained Colonel Hall’s consent not [to] require this probate upon giving him a continuance or some other favor, of which I then required some mention to be made on the record, but we thought it improper and did [not]; this the clerk has some recollection of. I wrote to the same effect to plaintiff’s agent by letter, dated March 13, 1795, a copy of which I still have, but the Colonel had no recollection of it at the trial, but said he thought
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he recollected he had promised not to require the proof [of] the execution of the bonds, but the pleas were payment and discount only.)
I applied to the Court to subjoin these words to the entry of the nonsuit which is given by the Act of Assembly, to wit, “for that Elizabeth Brown, the executrix etc., plaintiff, did not make oath or affidavit that to her knowledge, nor by any book, writing or other thing appearing to her, the testator, Jonathan Brown, in his lifetime, or the said executrix, after his decease, did not receive any part or parcel of the debts, or other security or satisfaction for the same, more than is mentioned and endorsed on the said writings, obligatory according to an Act of General Assembly of the State of Delaware in such case made etc.”