Spruance v. Gray

Citations

• 30 Del. 117
• 7 Boyce 117
• 102 A. 529
• 1917 Del. LEXIS 46

Syllabus

<p>Judgment—Default Judgment—Necessity of Affidavit of Defense— “Instrument of Writing for the Payment of Money.”</p> <p>Rev. Code 1915, § 4169, provides that, in all actions on instruments of writing for the payment of money, judgment by default shall be entered on motion on the last day of the regular term to which the original process is returnable, notwithstanding defendant’s appearance, unless defendant shall have previously filed an affidavit setting forth that he verily believes there is a legal defense to the whole or part of the cause of action, and setting forth the nature and character thereof. Held that, where plaintiff advanced money to defendant by means of a check, the check was not an “instrument of writing for the payment of money” by defendant to plaintiff, within the statute, and, in an action on the check, plaintiff was not entitled to a default judgment, though no affidavit of defense was filed.</p>