#### Glick *v.*Crist.

A payment by a principal debtor which will take a case out of the statute of limitations as to him, will have the same effect as to his surety, who is present for the purpose of seeing that the payment is made and credited, and makes no statement that any limitation shall be placed on the effect of such act.

Error to the District Court of Fairfield County.

On December 23, 1873, Manasseh Click, as administrator of Jacob W. Alspach, brought suit in the court of common picas of Fairfield county, against Samuel Crist. The action was upon a joint and several promissory note for $153.61, dated December 10, 1853, due one day after date, payable to the order of said Jacob *W.*Alspach, and executed by Peter Brown as principal debtor, and Charles Brown and said Samuel Crist *389as Ms sureties. Crist pleaded the statute of limitations of fifteen years, and the sole question in the case is whether the action is barred. The facts are as follows : There are two credits, one of $215, dated May 2, 1862, and the other of $10, dated September 2, 1871, indorsed on the note, and said sums were actually received by Alspach, on the days stated, and then credited on the note. As to the first credit, the proof is that Peter Brown, who was in the army, sent to said Challes Brown $215, and directed that it be paid to Alspach. Charles Brown took the money to Crist’s house, informing Crist that Peter Brown had sent it. They then went together to Alspach’s house, 'where Charles Brown informed Alspach that Peter Brown had sent the money, and thereupon Charles, in the presence of Crist, paid the money to Alspach, who credited it on the note. On a subsequent day Crist remarked to another person that they (Crist and Charles Brown) had paid to Alspach the money which Peter Brown had sent; and that Alspach was getting uneasy about the note, but that he (Crist) was good enough and would stand by it. The other payment was made by Peter Brown. At his request Crist accompanied him to make the payment, and was present when the money was handed to Alspach and credited on the note. Crist made no objection to either payment, nor did he make any statement to indicate any limitation as to the effect which should be given to the payments. The court of common pleas, to which the cause was submitted on the petition, answer, reply and testimony, held that the action was not barred by the statute of limitations, and rendered judgment in favor of the plaintiff for $731.92, but the judgment was reversed in the district court, and this petition in error was prosecuted by the administrator to obtain a reversal of the judgment of the district court.

*M. A. Daugherty*and *J. S.*Brasee, for plaintiff in error:

The action was not barred. Angell on Lim. 294; *Marienthal*v. *Mosler,*16 Ohio St. 566; *Courson*v. *Courson,*19 Ohio St. 151; *Hance*v. *Hair,*25 Ohio St. 319 ; *Vose*v. *Woodford,*29 Ohio St. 215; *Bevan*v. *Gelking,*3 Gale & D. 59; *Whipple*v. *Stevens,*2 Foster (N. H.) 219; *Huntington*v. *Ballou,*2 *390Lansing, 120; *First Nat. Bank*v. Ballou, 49 N. Y. 155. And see Leake on Con. 991-1000.

*Martin & McNeill,*for defendant in error.

By the Court.

By the statute (Civil Code, § 24; R. S. § 4992), when payment is made 'upon a demand founded on contract, an action may be brought thereon within the time limited, after such payment. In this case the limitation was fifteen years (Civil Code, § 13; R. S. § 4980), and each payment, as to Peter Brown, prevented the running of the statute for the period of fifteen years from the time of such payment. It is said, however, that the same result did not follow as to Crist. But we think otherwise. Crist, when the payments were made, stood by consenting, and there is no reason for saying that the payments had not the same effect as to him that they had as to Peter Brown. The views expressed by Crompton, J., in *Jackson*v. *Wooley,*8 Ell. & Bl. 778, and by Ross, J., in *Bailey*v. *Corliss,*51 Vt. 366, in apparent conflict with the conclusion at which wre have arrived, aré founded on statutes different in terms from that above cited. In holding that the judgment of the district court should be reversed, and that of the court of common pleas affirmed, our decision is not in conflict with any of the cases decided in this court, and referred to by counsel for plaintiff in error, but is supported by them.

*Judgment reversed.*