Executors of Dry v. Executors of Roper, 1 N.C. 311, 1 Cam. & Nor. 311 (1801)

June 1801 · North Carolina Court of Conference

1 N.C. 311, 1 Cam. & Nor. 311

The Executors of William Dry vs. the Executors of James Roper.

This was an action of debt brought in the Superior Court of Law for the district of Fayetteville, and came before the court on the following statement made by the counsel for the parties, viz.—“ On the 26th May, 1797, the executors of William Dry brought this suit on a bond with a penalty, conditioned for the payment of £. 100 procl. money, on the 1st of October, 1775, of which £.24 were paid by Roper in December, 1774, and that no other payments have been since made. It is admitted that Roper duly executed the bond, and that he departed this life some time in the year 1782, and also that his executors qualified in the same year.

The defendants pleaded Solvit addiem & solvit port diem, relying on the presumption created by the lapse of twenty years. They have also pleaded the act of the General Assembly, passed in 1715, concerning proving wills and granting letters of administration. And whether by either of these pleas the plaintiff is barred of a recovery, is submitted to the opinion of the court.

Edward Jones, Plff’s. Att’y.

Francis Locke, Def’ts. Att’y.

By the Court.—

We are of opinion that the plaintiff is barred by the act of 1715, referred to, more than seven years having elapsed from the death of the debtor before this suit was brought.

Judgment for defendant.

It is proper here to be remarked by the reporters, that in the case of Ogden, administrator, &c. Blackledge, executor, &c. which went to the Supreme Court of the United States, from the Circuit Court of North Carolina, it was determined that the act of 1715 was repealed by an act passed in 1789, and therefore no bar to a recovery in a case such as the foregoing.—It is much to be regretted that, on such an important question, such different decisions have been made, and that the right of recovery in such a case, should depend on the mere circumstance of the plaintiff being entitled or not to sue in the Court of the United States.