Kirkpatrick v. Goldsmith

Channell, B.,

in further concurring in the decision, says-: “The question strictly is one of law, and we are all agreed that the answer to an inquiry, whether the facts would have supported a plea of payment, is the test of whether they take the case out of the statute.” This rule has been approved in Matter of Thompson (5 Dem. 397).

I am unable to see under the facts proven here how a plea of payment could have been sustained' in an action brought by the plaintiff for this interest before the running of the statute. Here appears to have been a credit in the account of David E. Kirkpatrick. It does not appear that that credit was ever assented to by the plaintiff or Florence Kirkpatrick, or that it was ever known to them.' A credit to an account of a third person not shown to have been authorized by the creditor, or to have been acquiesced in by him, cannot be held to be a satisfaction of the claim for interest due. Under the authorities cited, it is not such a payment as can be held to bar the running of the Statute of Limitations.

The judgment must, therefore^ be affirmed.

Judgment unanimously affirmed, with costs.