ALLEN v. o’DoNALo. 25
I am aware that in the opinion in Sutherlin v. Roberts, at page 387,
it is said that the payment must be made "before the limitation has
expired,"—bef0re the six years have run. This was not the question
before the court, and the expression is probably an inadvertence.
At common law the effect of a part payment never depended on the
time when it was made. Whenever made, it had the same probative
force as acknowledgment of the existence of the debt, from which
the law implied a new promise. In Sigoarncy v.Drur_y, 14 Pick.
387, it was held that a part payment by the maker of a note, after
the statute had run, revived it against himself, and his surety as well.
The language of the statute is: " Whenever any payment of principal
or interest has been or shall be made upon an existing contract,
* "‘ ’* after the same shall have become due," etc. But this is
not a material question here. As to the hrst note, it is clear that no V
period of six years ever elapsed between the time it became due and
. the bringing of the suit in which there was not a payment of interest.
As to the second one, the margin is small, but sufficient. By its
terms it was payable one year from date, which was January 23, 1873,
and to this the statute (Laws Or. 718, § 5) added three days, called
"days of grace." McMullen v. Abbott, 1 Or. 258. S0 the note was
really not due and payable until January the 26th; and, in default
of payment, the right of actionthereon accrued on the 27th, and was
barred within six years thereafter.
Fourth. The court has no jurisdiction of the suit.
V Under this head two points are made in the argument:
(1) The assignment is collusive, for the purpose of confirming
jurisdiction. The defendants in their answer admit that after the
presentation of these claims to the administrators of the estate of
Thomas Cross, and their rejection by them, Allen & Lewis, for a
valuable consideration, to them paid by the plaintiff, duly indorsed
and delivered to the plaintiffs the notes aforesaid, and at the same
time assigned to him the mortgages; and Mr. Lewis testifies that
he has no pecuniary interest in the mortgages, and that they were
transferred to plaintiff in good faith, and without collusion. Nothing
appearing to the contrary, this is satisfactory. But it may be well
to observe that the defendants, having substantially admitted in
their answer the bonajides and sufficiency of the transfer, are now in
no condition to question or gainsay it. Besides, this defense must
have been made by a plea in abatement, prior to answer to the
merits, alleging the collusive character of the transfer, and praying
judgment that the suit abate in consequence thereof. Rule 40.
(2) These notes were overdue when indorsed to the plaintiff, and
therefore were not “negotiable by the law-merchant/’ within the
meaning of the judiciary act of 1875, and as an action could not have
been maintained on them in this court by the indorsers, Allen & Lewis,
the latter of whom is a citizen of this state, no such action can be
maintained by their assignee, the plaintiff. The jurisdiction con-