State Use of Herdman v. Houston , 1 Del. 230 ( 1833 )

The Court stopt Mr. Bayard.

The plff. has declared on this bond according to its legal effect, and does not profess to set it out according to its tenor. He has set it out substantially. A party need not set out the whole of a contract, but only so much as he founds his action upon, and if that part be set out substantially when he professes to do no more, it is sufficient. If there be any thing omitted which controls, or qualifies or restrains the part declared on it will be fatal, for then the substance and legal effect of the contract will not have been expressed. The objection here is, not that the plff. has not truly set forth that part of the bond on which he alledges a breach, nor that the same is in any degree restrained or affected by the part omitted, but that he has omitted to state a further obligation of the deft, that the officer for whom he was surety, should deliver over to his successor the books and papers of his office. With this part of the bond the plff. in this action has nothing to do. He has set out truly so much of the bond, as entitles him to his present action, and that is sufficient, where a party undertakes to set out an instrument by its tenor—in hsec ver ba—it becomes descriptive of the instrument itself, and any omission or a slight discrepancy, destroys the identity of the instruments pleaded and proved.

The plff. then made out his case by proof of the bond, the payment of money into court, and an order of court dated 11th December 1832, on the prothonotary, to pay the sum of @1,128 91 to the plff. Herdman.

Read, jr.—Remarks on the plea of the act of limitation. Digest 397. Ño action shall be brought upon the official obligation of any prothonotary, &c., after the expiration of three years from the accruing of the cause of such action. When did this cause of action arise? The money was brought into court on the 16th December 1828, more than three years before the bringing of this suit.

J. Jl, Bayard, for plaintiff. Read, jr. and Rogers, for defendant.

The Court decided that the cause of action in this case did not accrue until the money was directed to be paid out to the plff. on the 11th December 1832.

Verdict for plaintiff for $1,194 34.