Clayton’s Notebook, 81
Supreme Court of Delaware.
March, 1817.
Present, JOHNS and DAVIS.
Action [of] assumpsit brought September 12, 1810. The question in this case was whether the will of Coe Gordon prevented the operation of the Statute of Limitations. Will of Coe Gordon dated November 16, 1787, “My will is that all my just debts be paid by my executors hereafter named.” Proved January 1, 1788.
Ridgely, for plaintiff, cited Prec.Ch. 385, 1 Eq.Cas.Abr. 305, pl. 15, [2] Cowp. 548, 1 Salk. 154, 2 Vern. 141, 2 Term 762, Peake 93, Wall.C.C. 66. Brown v. Andrews is in point — case of advertisement of an execution — debt exists though remedy taken away. The case of Wilds and Haughey in the Common Pleas, a case on a will like this.
Hall, contra. 1 Del. Laws 525, 526 and 229, [2 Del.Laws] 1032 [are] very guarded as to payment by executors. The judges in England have often regretted the length to which these cases have gone, 4 East 603, 604. Cowper is not an adequate case. Vernon was in equity. Term was an acknowledgment. 3 East 409. The pleadings are that no promise in six years; replication that it was, Bull.N.P. 148; Selw. 123. The will recognizes no particular debt. ([NOTE.] He takes an acknowledgment to be the only ground, but it is on the principle of a waiver that this clause is not within the Statute.) The clause is nine times out of ten inserted by a scrivener from some form. Case of an execution presents a strong one for the protection of the Statute. Prec.Ch., equity proceeds on different principles. When they get a fund in their hands, they will even disregard the privity of debts. And if it was a promise at the time, it cannot control the Statute more than six years after. Here have been twenty-two years and more. (Query. Is this sound principle?
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May the will be looked on as a sort of specialty? 1 Binn. 209, that such a clause does not save the Act.)
Curia advisare vult.
[Miscellaneous references in the manuscript are omitted here Clayton’s Notebook, 82-83.]