OPINION. the plaintiff's demand, or of the defendant's counter claim, or setoff, exceeding five dollars, is disallowed (or defaulked) by the justice, such plaintiff or defendant may appeal," etc. Under the statute, the defendant had no right to take an appeal, unless his counter claim or set-off, or a part thereof exceeding five dollars, had been disallowed by the justice. It does not appear that there was any counter claim or set-off in the case. We therefore order the appeal dismissed. FALL SESSIONS, 1902. PHILIP REYBOLD vs. SAMUEL M. DENNY and JAMES A. DENNY, trading as DENNY BROS. Assumpsit-Affidavit of Demand - Account - Statute-Judgment Refused-Practice. In an affidavit of demand the plaintiff deposed that annexed thereto was " copy of the account sued upon in this action"; and it nowhere appeared that the cause of action sued upon was a "book account," or that the paper attached was a copy of a book entry. Judgment refused. (September 17, 1902.) LORE, C. J., and SPRUANCE and BOYCE, J. J., sitting. William T. Lynam for plaintiff. William 8. Hilles for the defendant. Superior Court, New Castle County, September Term, 1902. FACTS-DECISION. SUMS. CASE (No. 162, September Term, 1902). Motion that judgment be refused notwithstanding affidavit of demand. Attached to the affidavit of demand was the following copy of account: "Wilmington, Del., Sept. 15, 1902. "Samuel M. Denny and "James A. Denny, trading as "Denny Bros. "To Philip Reybold, Dr. "Jan. 1st, 1900.-To work and labor done and services rendered in sale of Steamer Endeavor, seven hundred dollars ($700.00) " The plaintiff in his affidavit of demand deposed that annexed thereto " is a copy of the account sued upon in this action." Hilles for defendant moved that judgment be refused, notwithstanding the affidavit of demand, because it nowhere appeared in the same that the cause of action sued upon was a "book account," and contended that the paper attached thereto was not a copy of a book entry," as required by Rev. Code (1893), Chap. 106, Sec. 4, p. 790. Judgment refused. SYLLABUS-FACTS. JOSEPH I. HIBBERT v8. THE GUARDIAN SAVINGS AND LOAN ASSOCIATION, a corporation existing under the laws of the State of Delaware. Debt - Affidavit of Demand Certificate of Indebtedness — Conditional Liability-Statute-Judgment Refused-Practice. 1. An affidavit of demand must show affirmatively upon its face that the plaintiff is entiled to judgment, otherwise judgment will be refused. 2. Judgment will be refused when it appears from such affidavit that defendant's liability is “subject to the rules, regulations and by-laws” of defendant association, and it is not known what the conditions are. (September 18, 1902.) LORE, C. J., and SPRUANCE and BOYCE, J. J., sitting. William S. Hilles for plaintiff. Thomas Davis for defendant. Superior Court, New Castle County, September Term, 1902. DEBT (No. 186 September Term, 1902). Motion that judgment be refused, notwithstanding affidavit of demand. In said affidavit the plaintiff deposed that annexed thereto "is a copy of the certificate of indebtedness sued upon in this action; that the sum demanded of the said defendant is the sum of two thousand dollars, with lawful interest thereon, from the fifteenth day of August, A. D., 1892," etc. The certificate was as follows: $2,000. "This certifies that there is due Joseph Hibbert from the Guardian Savings and Loan Association, subject to the rules, regulations and by-laws of said association, two thousand dollars, with OPINION. interest for the same at the rate of six per centum per annum, payable quarterly on the fifteenth day of February, May, August and November, respectively, at the office of the association, on presentation of this certificate. "Transferable only on the books of the association, in person or by attorney, on surrender of this certificate." The above certificate was signed by the President and the Secretary of the corporation (with the seal of the corporation), under date of June 15th, 1896. Mr. Davis:-I move that judgment be refused, notwithstanding the affidavit of demand. The certificate of indebtedness is for $2,000, due according to the rules, regulations and by-laws of the association, and there is no statement that the plaintiff has complied with said rules, regulations and by-laws, or that according to the same there was anything due upon the certificate; it not being an unconditional obligation for the payment of money, as contemplated by the statute-(Rev. Code 789, Chap. 106). Mr. Hilles :-If the rules, regulations and by-laws of the defendant have not been complied with by the plaintiff, that is something that ought to be set out in their affidavit of defense, and not a matter which should be set out by plaintiff. LORE, C. J.:-We have frequently passed upon these certificates. The rule is that it must appear upon the face of the affidavit of demand, affirmatively, that the plaintiff is entitled to judgment. It does not so appear here, for we do not know what the conditions are. Judgment is refused. |