Hard v. Edgell ( 1863 )

Barrett, J.

The question in this case arises under the issue made upon the statute of limitations.

After making the assignment, set forth in the bill of exceptions, along up to June, 1852, the defendant gave sP'me voluntary assistance to Wires & Peck in collecting the assigned demands. On the 2nd day of June, 1852, he becamé a géneral clerk in the office of Wires & Peck, and so continued till October, 1858. As such clerk he performed service for them in and about the business of their office; a part of which business was that of making collections of said assigned demands. Of the money collected thereon the last remittance to Howes & Co. was made July 27th, 1852. The only transaction under, or in reference to, said assignment, that appears to have taken place within six years next prior to the bringing of this suit, was October 4th, 1853. Among the demands assigned was one against Varney, which had been entered in the office docket of Wires & Peck soon after the assignment. Upon the docket of this demand there is an entry in the defendant’s hand writing:

“ August 16th, 1853, defaulted, execution issued same day.”

This was made more than six years before the bringing of this suit. There is another entry in the defendant’s hand writing, upon the same docket entry of the demand :

“ Received, October 4th, 1858, of the defendant, $11.83, and credited damages to R. & H. assignment.”

Did the receiving of the payment on said execution, and the making of said entry upon the docket ’by the defendant, as the clerk of Wires & Peck, operate in law to remove the bars of the statute? We think not.

Did the receipt of that money by the assignees operate to remove the statute bar, as against the assignor ? We should not feel warranted in so holding, unless on the authority of some adjudged case. None has been adduced, and we think none now exists. The case of Burger v. Durvin, 22 Barb. 68, in which Ejimot, J., delivered the opinion, at most, has reference to a payment made by the assignees upon a debt secured by the assignment, and in no view purports to decide that the receipt pf money by the assignees from a debtor, upon an assigned demand, operates to remove the bar of the statute that has run upon a debt secured by the assignment.

In view of principles made familiar by a long course of judicial decisions, it would hardly seem warrantable to undertake, by discussion, to make the proper answer to be given to each of the above questions more palpable than it is upon the mere propounding of the questions themselves, in connection with the facts on which they are predicated.

The judgment is affirmed.