
    B. & O. & C. R. R. Co. v. Gibson.
    Error to the District Court of Seneca County.
    
      Henry Newbegin, for plaintiff in error.
    
      Lutes & Lutes, for defendant in error.
   By the Court.

On March 11, 1879, G., as surviving partner of G. & Co., sued a railroad company, averring that on February 5, 1874, the railroad companj'- was indebted to the firm for money paid to one F., for a right of way for said company at its request. On February 3, 1880, the petition was so amended as to charge that G. paid said money, and before suit assigned his claim to the firm. The answer denied all the facts stated in the amended petition, and also pleaded the sis years statute of limitations. At the trial the defense put in evidence showing that the money was paid in February, 1873. No evidence was offered tending to show that the firm paid the money, or that the claim had ever been transferred to the firm.. The verdict and judgment were for the plaintiff.

Meld: 1. Both petitions counted upon the same transaction, in favor of the same plaintiff; the amendment merely showed how the firm became entitled to the claim. Hence the computation of time under the statute ended with the filing of the original petition.

2. There being no evidence of a transfer to the firm, the defendant was entitled to the verdict. As, at the time of the trial, a suit by G. in his own right was barred by the statute, the error was prejudicial to the defendant, notwithstanding the judgment would estop G.

Judgment reversed, and new trial granted.  