
    William Moore, Administrator, etc., et al. v. Eli Gray.
    1. The liability of a surviving surety is not discharged by mere delay on the part of the creditor to prosecute his action against the estate of the-principal debtor within the time prescribed in section XC or in section CIII of the administration act of March 23, 1840.
    2. In respect to the liability of the surety in such case, it is immaterial that the creditor’s claim arises on a joint contract.
    Motion for leave to file a petition in error to the District Court of Logan county.
    On the 1st of July, 1858, James Moore, Jr., as principal, and William E. Buckhart, as his surety, executed to Eli Gray their joint promissory note for the payment of $45, in one year after the date. In 1864, James Moore, Jr., died, and William Moore was appointed his administrator. In 1865, upon presentation of the note for payment, the administrator of James Moore, Jr., refused to allow it as a valid claim against the estate.
    On the 9th of January, 1874, Gray commenced suit ou tbe note, before a justice of tbe peace, against the estate, and Buckhart. Service of summons was only made upon Buckhart. On appeal from the judgment of the justice to the Court of Common Pleas, judgment was rendered against Buckhart for the amount of the note. On error in the District Court, the judgment of the Common Pleas was affirmed.
    Buckhart now seeks to reverse the judgments below, and assigns for ground of reversal that, the claim of Gray being barred by lapse of time as against the estate of the principal maker, it was therefore barred as against him.
    The provisions of sections XC and CIII of the act of March 28,1841, in relation to the settlement of the estates of deceased persons, are relied on, to wit: Neglect to sue the claim within six months from the date of its rejection by the administrator. Also, the lapse of four years between the date of the administrator’s bond and the commencement of the action.
    It is conceded on the part of the defendant in error that his right of action on the note was barred as against the estate of James Moore, Jr., under the provisions of each of those sections.
    
      Price $ Martin, for the motion,
    claimed that the debt being barred as against the principal, is also barred as against the surety; that it is of the essence of the contract of suretyship that there be a valid subsisting obligation against the principál; and that, by the extinction of the liability of the principal, the liability of the surety also becomes extinct. The State v. Blake, 2 Ohio St. 147; Bus-sell v. Bailor, 1. Ohio St. 329 ; 1 Parsons on Notes and Bills, 244; 2 Am. L. C. 361; 9 Yt. 143.
    The holder of the note failing to sue the administrator of the principal within the four years released the principal ; such release of a joint maker of the note, which was joint only, operated to also release the other joint maker. Such is the common law rule. Story on Prom. Notes, sec. 425; Clinton Bank of Columbus v. Hart, 19 Ohio St. 378.
    
      
      Kernan ‡ Kernan, contra:
    The surety was not discharged. Farmers’ Bank of Canton v. jReynolds, 13 Ohio 84; 2 McLean, 74; Johnson v. Planters’ Bank, 4 Smedes & M. 165; Theobald on Prin. and Surety, 67; Brown v. Carr, 7 Bing. 508; S. & S. 741; Dye v. Dye, 21 Ohio St. 86; Selby v. McAlister, 8 N. H. 389.
   By the Court.

The liability of a surviving surety is not discharged by mere delay on the part of the creditor to prosecute his suit against the estate of the principal debtor within the time prescribed in section SC or in section CIII of the administration act. Nor does it make any difference, in this respect, that the original undertaking of the parties was by a joint promise. By the rule of the common law, upon, the death of the principal, the surety becomes liable, as survivor, for the payment of the whole of the joint debt; and, as between the surety and the creditor, it is the duty of the former to pay the claim, without suit. So long, therefore, as the right of the surety to immediate reimbursement from the estate of his principal is not impaired by the act of the creditor, his obligation to pay the •debt is unimpaired by lapse of time, until the bar of the general statute of limitations becomes a defense to an action upon the undertaking of the surety. Camp v. Bostwick, 20 Ohio St. 337; 13 Ohio, 84.

Motion overruled.  