#### Thomas D. Hance, Executor, *v.*Noble C. Hair et al.

A partial payment on a joint and several promissory note, by one of several makers, will not prevent the running of the statute of limitations as to - the other makers.

Error to the District Court of Morrow county.

This action came into the Court of Common Pleas of Morrow county, by appeal from the judgment of a justice of the • peace. The summons in the original action was issued on the 19th of October, 1869, and on the 21st of the same month was returned “ served,” as to the defendant, Noble C. Hair,. and “ not found,” as to the defendant, Hamilton Johnson.

The action was founded on a promissory note, of which ■ the following is a copy:

“ Bennington. Three months after date I promise to pay Thomas Hance, or bearer, thirty dollars, for value received,. ,at ten per cent, interest.

“Hamilton Johnson,

“ Noble C. Hair.

“ $80. September 6, 1853.”

*350The note is indorsed as follows:

“ Received, November, 1857, by Adam Hance, two dollars •and fifty cents on the within.”

“ Received, October 29, 1859, of Adam Hance, three dollars.”

To the petition filed by the plaintiff, in the Court of Common Pleas, to recover the amount due on the note, the defendant, Noble C. Hair, answered: That he signed the note -as surety for Hamilton Johnson, who was the principal •therein; that between the time of the maturity of the note ■and the commencement of the action, a period.of more than fifteen years had elapsed, and that the indorsements on the note were made without his knowledge or consent.

The plaintiff demurred generally, and on the hearing the court overruled the demurrer, and rendered judgment .against the plaintiff for costs.

The District Court afterward, on a petition in error filed •therein by the plaintiff', to reverse the judgment of the Court of Common Pleas, affirmed the same, and he now seeks, by his petition in error in this court, to reverse the judgment ■of affirmance of the District Court.

*A. K.*Dunn, for plaintiff in error,

cited *Whitcomb*v. *Whiting,*2 Doug. 652; *Burleigh’s Ex’rs*v. *Stott,*8 Barn. & Cress. 36; *Clark*v. *Hooper,*10 Bing. 480; *Pease*v. *Hirst,*10 Barn. & Cress. 122; *Perham*v. *Raynal,*2 Bing. 306; *Gitchell*v. *Head,*7 Greenl. 390; *Dinsmore*v. *Dinsmore,*21 Me. 433; *Butz*v. *Fuller,*1 McCord, 541; *Hunt*v. Bridgeman, 2 Pick. 581; *Sigourney*v. *Drury,*14 Pick. 387 ; *White*v. *Hale,*3 Pick. 391; *Sigourney*v. *Wetherell,*6 Met. 533.

*Olds $ Dickey,*for defendant in error.

On the question of release as surety: *United States*v. *Boyd,*15 Pet. 208; *Miller*v. *Stewart,*9 Wheat. 702; *Spriggs*v. *Bank of Mount Pleasant,*14 Pet. 208; *Evans*v. *Bradley,*17 Wend. 422; *Hunt*v. *Smith,*17 Wend. 180; *Bank of Steubenville*v. *Carroll’s Adm’rs,*5 Ohio, 214; 17 Ohio, 565; 2 Parsons on Con. 15; Williard’s Eq. Jur. 108, 109, 111; *State of Ohio*v. *Cutting,*2 Ohio St. *3511. Release as joint contractor: 3 Parsons on Con. 79, 80; 1 Pet. 351; *Hackley*v. *Patrick,*3 Johns. 536; *Palmer*v. *Dodge,*4 Ohio St. 21; 1 Smith’s Leading Cases, pt. 2, pp. 895-897; *Baker*v. *Stackpoole,*9 Cowen, 420; *Yale*v. *Evans,*1 Met. 486; *The National Bank*v. *Norton,*1 Hill, 582: *Mitchell*v. *Ostrom,*2 Ib. 220; *Schoneman*v. *Fegley,*7 Barr, 433; Byles on Bills, 3 Amer. ed. 404; *Daniel*v. *Nelson,*10 B. Mon. 319; *Hamilton*v. *Summers,*12 Ib. 11; *Hamilton*v. *Seaman,*1 Cart. 185; *The Exeter Bank*v. *Sullivan,*6 N. H. 124; *Stelle*v. *Jennings,*1 McMillen, 297; *Belole's Ex’rs*v. *Wynne,*7 Yerger, 534; *Muse*v. *Donelson,*2 Humph. 166; *Yandes*v. *Le Favor,*2 Blackf. 361; *Dickerson*v. Turner, 12 Ind. 223, 230; *Lowther*v. *Chappel,*8 Ala. 553; *Levy*v. *Cadet,*17 S. & R. 126; *Searight*v. *Craighead,*1 Penn. 135; Foote v. *Baron,*24 Miss. 156; *Briscoe*v. *Mitchell,*28 Ib. 361; *Coleman*v. *Fobes,*10 Harris, 156; 2 Comstock, 528; 39 Barb. 634; 10 Barb. 32; Ib. 566; 18 N. Y. 558; 1 Kern. 176; 5 Wend. 257; 5 Met. 168; 6 Cush. 360.

Rex, J.

Regarding the defendant Hair as a maker of the note, are the facts stated in the answer sufficient to .constitute a defense to the cause of action set out in the petition ? A period of more than fifteen years having elapsed between the time of the maturity of the note, and the bringing of the action to recover the amount due on it, the defense of the statute of limitations is valid, and bars the action, unless the payments indorsed on it avoids the bar as against the defendant Hair.

The note sued on is joint and several. The petition avers •the payments indorsed on it were made by Hamilton Johnson, one of its makers, and the demurrer, upon well-settled principles of pleading, admits that the payments were made without the knowledge or consent of the defendant Hair.

So far then, Hair has done nothing from which, under the construction given to the 24th section of the code, in *Marienthal et al.*v. *Mosler et al.,*16 Ohio St. 566, either an acknowledgment of the debt or a promise to pay it, by him, could even be inferred, if inferences were permissible. In the case *352cited, Judge Day, delivering the opinion of the court, sáys r “ By comparing section 24 of the code with the section of the limitation act of 1881, for which it is substituted, it is apparent that the general assembly did not intend to enlarge the facilities for taking cases out of the statutory bar. Before this can now be done, the acknowledgment of the existing debt, or the promise to pay the same, must be in writing, signed by the party to be charged thereby. No change is made as to the effect of a part payment of a debt,, but the same effect is given to such part payment as is given to the written promise signed by the party to be charged thereby. It would seem, therefore, from analogy, that the payment must be made by the party to be affected thereby. In the contemplation of the statute, the part payment of a debt is regarded as evidence of a willingness to pay the residue, as conclusive as would be a written promise to that, effect. It could not then have been intended to give this effect to payments other than those made by the party himself. Nothing short of this would warrant the assunrption of a willingness to pay equal to his written promise to that effect.”

This construction is, as we think, entirely consistent with the object and intent of this section of the code and of statutes of limitation generally. Following this construction, the conclusions are inevitable: that the defense interposed was a bar to the action, and that the District Court did not err, in affirming the judgment of the Court of Common Pleas. *Judgment affirmed.*

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.