LUDENHAM v. RICHARDS, 1 Del. Cas. 89 (1796)

Wilson’s Red Book, 101[*]

Court of Common Pleas of Delaware.
April, 1796.

Appeal from a justice. Non assumpsit and issue.

Wilson for plaintiff. Peery and Bayard for defendant.

Page 90

Plaintiff produced an account drawn up against defendant’s testator: and made oath it was the first entry of the charges, that a friend, he could not tell who, drew it up for him; that he could not write nor read writing, that it was just and true, and that he had received no satisfaction etc. That it was drawn up after testator’s death, for it was paid upon a note upon which he expected it had been credited but was not.

Bayard and Peery objected that the account was not within the Act [1 Del. Laws 328]; it was not the best evidence, for the clerk should be produced who wrote the account.

Wilson, contra. To require the person who wrote the account, would be denying every illiterate man the benefit of the Act. In England the plaintiff cannot prove his account, but only his clerk; here the plaintiff’s oath is received, and the clerk’s is not required; by the Act it is immaterial who made the entries.

BASSETT, C. J.

It is immaterial who reduced the account to writing; but this account was made too late, it would be a dangerous precedent to allow accounts to be made against people in their graves, and yet I acknowledge this is a hard case.

JOHNS, J. This is certainly not an account regularly and fairly kept within the Act of Assembly.

I then directed the clerk to call the jury, and, refusing to answer, suffered a nonsuit.