Lofland v. McDaniel

Citations

• 17 Del. 416
• 1 Penne. 416
• 41 A. 882
• 1898 Del. LEXIS 43

Syllabus

<p>Judgment—Burden of Proof—Opening and Closing— Tender—Evidence.</p> <p>1. When a petition is presented for a rule to show cause why a judgment should not be opened, &c., and the Court has ordered that the issue be tried by a jury, “What amount if any is due and unpaid on the judgment,” —in the trial of said issue the burden is on the petitioner to show that the amount of the judgment is not now due, and he is entitled to the opening and closing.</p> <p>2. The petitioner at such trial is permitted to show, if he can, acts of the parties subsequent to the judgment, from which the jury may infer that goods instead of money were delivered to the creditor as part payment of the judgment, but not acts or dealings prior to the judgment.</p> <p>3. The tender of goods is not a payment of a judgment, as you cannot make a man take goods instead of money, unless he is willing and agrees to accept the same as payment.</p>