
    Eaton vs. Gillet.
    Part payment of a note nothin six years before the commencement of an action upon it, takes the case out of the statute of limitations.
    Where the complaint showed such payment, a demurrer to it, taken before the decision of this court upon the same point in Cleodtmd m. Earrison, 15 Wis., 670, will not be treated as frivolous.
    ERROR to the Circuit Court for Fond du Lac County.
    The action in the circuit court was by Gillet against Eaton, on a promissory note. The complaint showed that the note was made more than six years before the action was commenced, but that a payment had been made upon it within six years. The defendant demurred, setting up the statute of limitations as a defense; and the court rendered judgment for the plaintiff, on the ground that the demurrer was frivolous; upon which Eaton sued out his writ of error.
    
      B. P. Eaton, in person.
    
      J. M. Gillet, in person.
   By the Court,

DfXON, C. J.

The complaint states a good cause of action. Part payment within the period prescribed takes a case out of the statute of limitations. This was determined in Cleveland vs. Harrison, 15 Wis., 670; but as this case arose before that was decided, and as we then listened to a lengthy and most elaborate argument of the question, we. cannot pronounce the demurrer to have been frivolous, though it might have been so had it been taken since that decision. The judgment must, therefore, be reversed, and cause remanded for further proceedings according to law.  