delivered the opinion of the court.
Armstrong brought his action before a justice of the peace against Harmon, and judgment being given there against Harmon, he appealed to the circuit court, where judgment being again given against him, he appeals to this court. ,
The suit was founded on an account as follows;
Zebulon Harmon to John Armstrong, Dr.
To amount of a deficiency found to exist in the amount of an article of agreement between Zebulon Harmon and A. O. Powell, which was assigned by said Harmon to John Armstrong on the 19th day of July, A.D. 1831, and which was not paid by said Powell to said Armstrong, because .it had be*en previously paid to said Harmon himself by said Powell, as appears by said agreement and the receipts herewith filed, $51 90
To interest on same up to this time, 31 24
Total, $83 14A. assigned to B. the balance due given by 0. on which there was aj? endorsement action by B. against A. for a obligation, ifwas proved tha’t A. aad given p• R.04 °lo^butr also for $ 51*90, which last receipt ^ weeks before the assignment, itwas ass1gneafto°r recover off the as-si.gnor the defi-shoulci’liave first sued the obligor; because such a face of the receipt, which was admit-*®as’ proof that the assignee ot any pay-^endorsed* and there was a very strong presnmp-as"
*276On the trial of this cause, the plaintiff read in evidence the following paper,.to wit: alease from said Har-mon to A. 0. Powell, and an endorseriient of a credit, and an assignment made on it by Harmon, the defendant, to Armstrong, the plaintiff; the following is a copy:
“The article of agreement between Zebulon Harmon of one part, and A. O. Powell of the other, both of the town of Augusta, and county of Bracken, witnesseth; that the said Harmon agrees to rent unto the said Powell his houses and lot on Water street, &c. and the said Powell agrees to pay to the said Harmon for the rent of the aforesaid premises, the sum of one hundred and fifty dollars per year, for the term of two yeai's,” &c.
The endorsement and assignment of this writing is inthesewords: “July 19th, 1831. Cr. the within obligation with sundry payments up to this date, one hundred and seventy-nine dollars and fifty cents. (Signed) Zebu-lon Harmon."
“For value received, I assign the balance of the within obligation to John Armstrong. Augusta, July 19th, 1831. (Signed) Zebulon Harmon.”
Armstrong, the plaintiff, then read in evidence two receipts of payments on said lease, from said Harmon to said Powell, which are as follows:
“Received of A. O. Powell, fifty-one dollars and ninety-one cents, amount paid John Colglass, for which he is entitled to a credit on his article for house rent. June 23d, 1831. (Signed) Zebulon Harmon.”
“Received, July 1st, 1831, of A. 0. Powell, one hundred and seventy-nine dollars and forty cents, which is to be credited on his article of house rent, for the house he now fives in. (Signed) Zebulon Harmon.”
The execution of both these receipts was admitted by Harmon. It was also admitted that Harmon has lived in this State for several years past, and that the contracts above were made in the.State of Kentucky.
This being all the evidence, the defendant moved the court to instruct the jury that the plaintiff having failed to show that he had used due diligence to get the money of Powell, they must find for the defendant. This instruction was refused, and Jfae opinion of the court excepted to. The verdict of the jury being found, a new trial was asked by the defendant, and refused by the court.
The question to be decided is, did the court commit error in refusing to-instruct the jury that Armstrong, plaintiff- had failed to show that he had used due diligence to get the money oj ifowell?
*277On the 19th July, 1831, Harmon assigned this instrument of writing to Armstrong, and on the same day he endorses this credit of one hundred and seventy-nine dollars and fifty cents on the writing. It may be reasonably supposed that he did it in the presence of the plaintiff Armstrong; forhe assigns (to use his own words) the balance of the within obligation to John Armstrong. It is reasonable to suppose, too, from the language used in the credit endorsed, that he had particularly summed up the credits, in order to show Armstrong how much was due. It is very improbable that, on the 19 th July, he should have failed to recollect, when he endorsed this credit and assigned this note, that he had made the two receipts, admitted on the trial by himself to be his own acts, and both of so late a date, the one being dated 1st July, and the other the 23d. June last past. It seems that if, in reality, the last receipt for one hundred and seventy-nine dollars and fifty cents was all that ever had been paid to him by Powell, he ought to suffer the consequences of his negligence in leaving the two ceipts outstanding in the hands of Powell, by which it appeared that fifty-one dollars and some cents had been paid on the lease more than he had credited. If Har-mon had proved that Armstrong had notice of these two receipts when he accepted the assignment, then it might have been necessary for Armstrong to sue. But taking the assigned lease, as it appears he did, without of Harmon’s receipt of 23d June, for the sum of fifty-one dollars and ninety cents, and Harmon’s endorsement ffieing made for one hundred and seventy-nine dollars and fifty cents only, for which another receipt was prodrn ced, Armstrong could expect, if he" had sued, after ing these two receipts, nothing but defeat. These things being all considered, make out so strong a case against Harmon, that in my opinion he well deserves to lose the amount of the receipt of 23d June, even if that sum were included in the amount credited on the lease by him.
It was objected, also, that Armstrong was barred by the statute of limitations. It does not appear on the record that the statute was insisted on before the circuit court, and that point not appearing to have been decided, then this court is precluded by the statute from deciding on it — Revised Code of 1835, p. 522, sec. 31.
For the reasons above given, the judgment of the circuit court ought, in my opinion, to be affirmed; and such being thPe opinion of the other judges, it is affirmed.