October 20, 2012

Wilmot's Ex'r v. Hayden, et al, Wayne, 1880

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James R. Wilmot's Ex'r v. J. S. Hayden, et al.

COURT OF APPEALS OF KENTUCKY

10 Ky. Op. 534; 1880 Ky. LEXIS 202

March 9, 1880, Decided

PRIOR HISTORY:   [*1]  APPEAL FROM WAYNE CIRCUIT COURT. 

DISPOSITION: Judgment affirmed. 

COUNSEL: Morrow & Newell, for appellant.

M. C. Saufley, for appellees. 

JUDGES: Judge Pryor. 

OPINION BY: Pryor 

OPINION
Opinion by Judge Pryor:

The appellees have exhausted all the means afforded them by law to collect the debt upon which the assignor has been made liable. He instituted his action and recovered a judgment as soon as a judgment could have been obtained, and, the administrator of Worden having been removed before an execution could issue, it was the duty of the assignor to take steps to save himself from liability, and not incumbent upon the appellees to administer or cause some one else to do so. As soon as a public administrator was appointed the appellees took steps to make their debt, and was prevented by an injunction from proceeding at law or equity until Worden's estate was settled. This settlement did not occur until a few years prior to the institution of the present action, and, the appellees having used all the diligence required in the prosecution of their action, the statute did not commence running until the extent of the liability of the assignor was ascertained. It is alleged that a final distribution of the assets [*2]  of Worden's estate has been made, and this is not denied by the reply of the appellant. From the date of this final payment to Worden's creditors, the statute began to run against the appellees, and not at an earlier date, so the statute presented no obstacle to the recovery on the set-off pleaded.

Judgment affirmed.



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