Brown v. Hemphill , 9 Port. 206 ( 1839 )

GOLDTHWAITE, J.

We have not been aided by any argument on behalf of the defendant in error, and are entirely at a loss to conceive on what reasons the judgment of the County court was founded. •<

The second count must be admitted bad, as it states an endorsement, before the instrument declared on was made, but even this error is presumed to arise from a mistake in the transcription of the record.

We do not perceive any material defect in the other counts: it is true, that a delivery of the writing obligatory is not averred, but this, although essential to its validity, need not be stated in pleading — (1 Chit. Pi. 351; 1 Saund. 291, n. 1.)

It is possible, however, that the'judgment of the County court was predicated on the fact, that when the writ was issued, the statute of limitations, had already run against the writing obligatory declared on. If this idea influenced the court, the case was decided in opposition to the universal course of proceeding.

It is unnecessary, at this time, to go into an examination of cases to shew, that the statute of limitations must always be pleaded, to actions ex contractu, if that defence is intended to be relied on.

There was error in sustaining the demurrer to the first,, third and fourth counts, for which the judgment of the County court is reversed and remánded.