45 Cal. 294 | Cal. | 1873
In the action of Hathaway v. Brady, an attachment was issued and levied on certain real and personal property of said Brady. For the purpose, of releasing the personal property from the attachment, Brady deposited with the Sheriff five thousand dollars in gold coin, and such property was thereupon released. Hathaway recovered judgment, and Brady appealed therefrom to this Court. Pending the appeal, W. W. Crane, Hathaway’s attorney, and Patterson & •Stow, Brady’s attorneys, stipulated in writing that the money which Brady had deposited with the Sheriff, should be withdrawn and handed over to Patterson & Stow, and should be held by them in the same manner as the Sheriff held the same; and that the change of the custody of said sum should “not in any manner affect the rights of the parties, but on the contrary the rights of the parties in reference to said sum shall be in all things the same as though said sum had remained and continued to remain in the hands of said Edmuudson ” (the Sheriff.) The money was accordingly delivered to Patterson & Stow. Afterwards, and on the same day on which the stipulation ivas made, it was agreed between Crane and Patterson & Stow that Crane should receive one half of said sum, and that Patterson & Stow should retain the other half, and that for such sums each should give to the other a promissory note. This agreement was carried into effect. The two notes were in the same form. The-note in suit is as follows:
“ San Francisco, August 26th, 1863.
“ One day after the. entry of an order in the Supreme Court affirming judgment in the Third District Court, Alameda County, of Hathaway v. Brady, or if such judgment is not affirmed, one day after demand, without grace, we promise, for value received, to pay W. "W. Crane, at our*299 office in San Francisco, in United States gold coin, of the present standard of fineness and value, two thousand five hundred dollars, with interest, payable in like gold coin, atone and one fourth per cent per month.
“PATTERSOU & STOW.”
The judgment of Hathaway v. Brady was affirmed on the 23d day of October, 1863. In the following month an execution was issued, and Crane paid over to the Sheriff the money he had received, with the interest thereon at the rate mentioned in his note; but the payment was made without the knowledge or consent of Brady or Patterson & Stowu The note of Patterson & Stow wras assigned by Crane to the plaintiff, shortly before the commencement of the action. Patterson & Stow still hold Crane’s note.
The foregoing facts, together with some others, ivere before this Court in Hathaway v. Brady, 26 Cal. 581, in which the plaintiff attempted to reach the money for which the note in suit was given, by proceedings supplementary to execution, and it was there held that the proceedings were not sufficient to entitle the plaintiff to an order requiring Patterson & Stow to pay over the money due on their note.
The point now made is, that the action is barred by the Statute of Limitations. The judgment in Hathaway v. Brady was affirmed, as already mentioned, on the 23d day of October,-1863. The action was commenced on the 24th day of October, 1867. The note became due one day after the date of the affirmance of that judgment. The defendants had all of the twenty-fourth day of October in which to pay the money. Had an action been brought on the note on that day, it could not have been maintained, because it had not then accrued. The action, therefore, is not barred by the statute.
The defendants claim the right to set off against their note, the note of Crane, and also an amount due them from
Judgment and order affirmed.
Mr. Chief Justice Wallace did not participate in the decision of this cause.