Tupper's Executors v. Tupper's Executors ( 1828 )

By the Court:

The question presented by these demurrers has been long since considered as settled. The statute of limitations of 1804, and all subsequent statutes up to that of 1824, on the same subject, are silent as to the limitation of an action of debt founded on simple contract. And where the indebtedness was evidenced by any matter not properly a subject of book account, it has been considered as not within the statute. This construction has prevailed so Iona- that it ought not now to be disturbed; more especially as the act of 1824 Unust very soon operate so as to prevent all the mischiefs which it is supposed may result from the omission in the previous acts. The subjects of the present action do not appear to be matter of book account. The demurrers, therefore, are well taken, and must be sustained. Another objection was made in argument to the plaintiffs’ right of recovery. It is urged that an action of debt is not maintainable against executors and administrators on simple contract. The uniform practice of this state has been otherwise. It was not sustained in such cases, in England, for a technical reason; but that reason the wager of law never obtained with us.

Judgment that the demurrers be sustained and the pleas overruled. The cause remanded to be tried on the other pleas.