Stuart v. Foster — 18 Abb. Pr. 305

Majority

p. 305

STUART a. FOSTER.

Supreme Court, First District;

Circuit, February, 1865.

Headnote

Statute of Limitations.

An assignment by an insolvent, enumerating a debt among his liabilities is a sufficient acknowledgment of the debt, to take it out of the operation of the Statute of Limitations.

Part payment of a debt, by the assignee of an insolvent, is not evidence of a new promise, to take it out of the Statute of Limitations.

Action upon three promissory notes.

Solomon Kohnstamm, on the 17th day of November, 1863, commenced this action against Charles W. Foster and others upon three promissory notes made by Foster & Co., the first of which, for ten thousand dollars, matured October 14, 1857, and the others, for smaller amounts at a later date. On the 31st December, 1857, the firm of Foster & Co. had made a general assignment for the benefit of creditors, and among their liabili

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ties enumerated these three notes, and they participated in the subsequent dividends of the assignees. One of the defendants interposed the Statute of Limitations in this action as a defence to the first of these notes, but offered to allow judgment for the other two.

Pending the litigation, Joseph Stuart and Edgar S. Van Winkle were appointed trustees of the estate of the plaintiff, and the cause was revived and continued in their name.

The action was tried by the court without a jury, and judgment rendered for the plaintiffs, the following opinion being delivered.

F. B. Candler, for the plaintiffs.

Emerson & Prichard, for the defendants.

This action was tried before me without a jury. The only question of dispute arises upon the note dated July 11, 1857, for $10,000, payable at three months, which matured October 14,1857, the action not having been commenced until November 19,1863. To this note the defendants interposed the Statute of Limitations, and, to take it out of the statute, the plaintiffs proved that on the 31st day of December, 1857, the defendants made a general assignment of their property to one Howard, in trust for their creditors, and that said assignment, after providing for the payment of expenses, &c., provided for the appropriation of the fund realized therefrom to certain debts named in a schedule annexed, which said schedule contained this note of $10,000. Plaintiffs further show that said assignee, under said assignment, out of the proceeds thereof, paid on said note, December 28, 1858, $966.60, and October 4,1859, $966.61. Two questions are thus presented:

1st. Was the execution and delivery of the assignment a sufficient acknowledgment, in writing, within the Code of Procedure, to take the case out of the statutes ? and

2d, Did the payment made by the assignee, in pursuance of said assignment, bar the statute ?

I am not aware that the first question has ever been passed .upon by the courts.

The law now in force upon this subject is one enacted -by .'the Code, section 110, which declares that no acknowledgment

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or promise shall be sufficient evidence of a new or continuing! contract, whereby to take a case out of the. operation of thef Statute of Limitations, unless the same be contained in some! writing signed by the party to be charged thereby. It seems to me that this assignment contains all the elements required by this statute; it acknowledges the debt in writing, and is signed by the party to be charged. The Code does not define what the writing shall be; it merely requires the acknowledgment or promise to be contained in some writing, signed by the party charged, and, for aught I can see, it can as effectually be made in a general assignment for the benefit of creditors as in any other instrument.

The second question has been before the courts in Barger a. Durvin ( 22 Barb., 68 ), and Pickett a. King (34 Ib., 193). In the former, Justice Emott, at special term, held that payment by an assignee was the act of assignor by his agent duly authorized, and was evidence of a new promise. In the other case, the court, at general term, disapproved of Justice Emott’s decision, and held the other way. On this question, therefore, I am bound by the decision of the general term, however much I may doubt its correctness.

But upon the first question I have no doubt, and therefore dispose of this case, upon that point alone. I hold that the assignment was a sufficient acknowledgment to take the case out of the statute, and that the action having been brought within six years after such acknowledgment, the plaintiff is entitled to recover the balance due on said note.