Wally v. L. N. Dantzler Lumber Co.

Citations

• 119 Miss. 700
• 81 So. 489

Syllabus

<p>1. Limitation oír Actions. Statute of limitations-. Action on written instruments. Paid checks or drafts.</p> <p>An action cannot he brought upon a paid or cancelled draft in a way to characterize the suit as upon a written instrument and thus make the six years limitation provided for in Code 1906, section 3097, apply.</p> <p>2. Same.</p> <p>A declaration based upon a cancelled check alone, unaided by other material averments would be an insufficient declaration in law, since in an action between the drawer and payee of a can-celled check such paid or cancelled check on its face contains no promise to pay and carries no presumption of liability whatever.</p> <p>3. Limitation oe Actions. Statute of limitations. Action on written instruments.</p> <p>Where suit was brought in chancery by the drawer against the payee to recover advancements made by checks, the bill could not be supported by the mere presentation of the cancelled checks, but the real purpose of the checks must be shown by material averment and on the trial such averments would have to be sustained by testimony in addition to the cancelled checks and such a suit would not be upon a written instrument and the Six year statute of limitations would not apply.</p>