Bayard’s Notebook, 249
Court of Common Pleas of Delaware, Kent County.
December, 1797.
Page 473
This was a scire facias upon a mortgage given to the Trustee of the Loan Office dated 22nd June, 1747, payable by installments. The first payment was due in February, 1749, the last in February, 1758. There was a bond of the same date as the mortgage, taken as collateral security.
The defendant pleaded payment and relied solely upon length of time.
Case was argued by Ridgely for State, and Bayard for defendants.
BASSETT, C. J.
declined giving any opinion, having been concerned in the cause as counsel.
JOHNS, J. I shall deliver in a few words the opinion of the Court. The mortgage is in 1747. The last payment due, in 1758. The suit was brought in 1792, and of consequence the time relied on in support of the plea of payment is 34 years. A debt is clearly shown to have existed. No actual payments are shown, but it is contended that the law presumes a payment after the length of time which has elapsed in this case. The rule is certainly so as to bonds, but the question is whether it applies to mortgages. I think it does not, but my brother Rodney thinks it does. A great difference is made between mortgages and bonds by the former being recorded instruments.
There is another point on which my brother and myself differ. I think the same rule on this subject should not be applied to public and private bonds, but he conceives they are liable to the same presumption of payment. I agree that after a certain time payment of a public mortgage may be presumed. I can state no principle which should define the length of time. I will say that one hundred years would certainly be time enough for the presumption; and, on the other hand, I do not conceive twenty years sufficient without circumstances in themselves creating some presumption of payment. My brother, however, considers twenty years sufficient. It will, however, be remembered that four years one month and twelve days are, by Act of Assembly, to be deducted from the computation of time.
The jury will decide as the evidence of time and circumstances may incline them to form their opinions as to the payment of the debt.
The jury gave a verdict for defendants.
Page 474
[At this point, Bayard’s Notebook, 252, the reports of Delaware cases cease. A heading appears, “Points proposed by Aaron Burr to the Circuit Court of the Virginia District upon the charge of high treason against him upon a motion that the grand jury should be specially instructed as to the case to be sent before them,” and pp. 253-255 are taken up with a transcript of these points. This material is found verbatim in David Robertson’s account, printed as Trial of Aaron Burr for Treason (2 vols., Jersey City, 1879), at Vol. I, pp. 166-167.]Page 475
[EDITORS’ NOTE: THIS PAGE CONTAINED CLAYTON’S NOTEBOOK AND HEADNOTES, THEY ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 476
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