
    Wm. N. Thompson v. Jacob Stevens.
    Where a plaintiff commenced an action against the defendant for money which he had paid as security, to which the defendant pleaded the statute of limitations, held, that the statute did not commence to run until the plaintiff paid the money for defendant.
    The plaintiff was sued as security to a note drawn by him and defendant, and separate judgments recovered against each; defendant paid up the judgment and his own costs, hut not those of the plaintiff; the plaintiff sued for them, and produced a certificate of the attorney, who died before the trial, who had recovered the judgment against them, “that it appeared” plaintiff had paid his own costs. Held, that this was sufficient evidence that plaintiff had paid the costs, and to entitle him to recover the amount.
    Whenever a specified sum of money has been paid by one man for another, and the amount and time can be ascertained by any memorandum in writing legally adduced to prove the transaction, interest can be recovered, ut semble.
    
    Tried before Mr. Justice Huger, at Colleton district, April Term, 1820.
    This was a summary process, brought to recover the amount of costs, say $26 59, incurred, as was alleged* by plaintiff, as the security of de- ._. fendant, to a joint note given to David Frier, of which the following is L a copy, viz., “ On or before the 25th December next, I promise to pay to Mr. Frier, or order, the sum of $110, being for value received, this 19th March, 1806.
    
      Witness, ■ Jacob Stevens.
    Daniel Walker, Wm. N. Thompson”
    Judgments were obtained by David Frier, the payee of the note, against both Stevens and Thompson. The defendant, in the process, pleaded the general issue, and the statute of limitations, and also filed a discount. At the trial, the plaintiff produced the following certificate, to prove the payment of money by plaintiff, to the use of the defendant, and to take the case out of the statute of limitations.
    “ David Frier v. Wm. N. Thompson.
    This was an action against Colonel Thompson as security for Jacob Stevens.
    Verdict,.- $127 55
    Costs, - - - - - - - 24 50
    Renewal, - -- -- - 2 09
    - $26 59
    - $154 14
    
      “ It appears that the debt and his own costs were paid by Mr. Stevens, but the costs against Colonel Thompson, as security, was paid by him.
    George Taylor,
    
      January 21sf, 1819. Plaintiff’s Attorney,
    
    
      The counsel for the defendant, objected to the adduction of this testimony, because, being a mere certificate of Mr. Taylor, he had no opportunity of cross-examination, and because the certificate being no receipt for the costs, but only an acknowledgment of the former payment of costs, to Mr. Taylor, was no such kacik-i ^'acknowledgment as should be admitted against the defendant, to take ■* the case out of the statute, and because the defendant could be bound by no acknowledgment of Mr. Taylor. The Court overruled the objections, and received the evidence. The plaintiff’s counsel then produced the said joint note of plaintiff and defendant, to David Frier, to prove that plaintiff was the security of defendant, and further contended that Frier’s judgment against Thompson, prevented the operation of the statute. The defendant’s counsel objected, that this evidence was insufficient to establish the securityship without other testimony ; and that Frier’s judgment against Thompson, could not prevent the operation of the statute as between Thompson v. Stevens. Mr. Taylor died a day or two before the trial of the cause.
    The Court decreed for the plaintiff, for the whole amount of the claim, with interest from the date of Mr. Taylor’s certificate.
    An appeal was made upon the following grounds :
    1. That Mr. Taylor’s certificate was inadmissible evidence ; but if admissible insufficient to take the case out of the statute of limitations.
    2. That there was no sufficient proof of plaintiff’s securityship to defendant, in their joint note to David Frier, and no other testimony was adduced to prove it.
    3. That interest could not be legally decreed upon plaintiff’s claim, it being in the nature of an open account.
    4. That the decree was, in other respects, contrary to law and evidence. it. jLnau tue uecree was, m otner respects, o
    
      
       3 Strob. 184.
    
   The opinion of the Court was delivered by

RjchaRdson, J.

Upon the first ground, I am of opinion that the statute of limitations did not commence running until the plaintiff had actually paid the money for which he was security. Until he had done so, what sum could he have recovered ? Not the whole amount of the Jadgment merely, because he might hereafter be ^required to dis- -* charge it, nor a part of it, for the same reason. At this stage, there was no more than a debt due by him for the defendant, as was the case when the note became due, but as yet he had paid nothing for his principal, and, of course, had no claim to remuneration. His danger had been increased by the judgment, but he was still unhurt, and what damages could be assessed for the risk he ran ? Any suit at law would then have been nugatory.

Whether Taylor’s certificate was competent testimony to prove money paid by defendant, depends upon the construction placed upon it. To me it appears, that inasmuch as Taylor had been the attorney on record of Frier, and entitled to receive the costs, that his certificate would constitute a bar to the further recovery of the costs so certified to have been paid by the attorney, or the certificate may be construed to be a receipt for the costs by Mr. Taylor, and therefore are not only legal evidence, but, like all receipts given by creditors or their proper agents to their debtors, the very highest evidence.

As to the third ground, I am of opinion that there was no proof that the plaintiff had not been a principal in the note. His name being subscribed after that of the defendant, is entirely too vague. The principal sum being paid by Stevens, is as unsatisfactory, and Taylor’s certificate is altogether incompetent to satisfy this inquiry. IJpon this ground, then, I am of opinion that a new trial should be granted; and the majority of the Court have come to the same conclusion, though perhaps not all upon the same grounds.

Upon the question of interest, I am of opinion that wherever a specific sum of money has been paid by one man for another, and the amount and time can be ascertained by any memorandum in writing, legally adduced to prove the transaction, interest may be allowed. Upon the modern decisions, I might go farther, and say, that wherever money has been laid out for the use of another, interest may be recovered. 1 Binn. 488. 1 Dali. 349. 1 Yes. 63. 2 Bur. 1077. *1 H. Blk. 305. The certificate or receipt being then considered competent to show the L 4y money paid, interest would follow from the date.

The motion is granted.

IsTott and Bay, JJ., concurred.

Johnson, J.,

dissenting, delivered the following opinion :

I differ from the opinion of the Court, on the first ground made in this ease. It is admitted, that the statute of limitations would bar the plaintiff, if it commenced to run at the time judgment was obtained against him. The judgment fixed his liability, and he was not obliged to wait until it was enforced against him, to have a recovery over against the defendant, but might have instantly brought his action. At that time, therefore, the action, in the language of the statute, accrued to him, and the statute necessarily began to run. I admit, that if they had been jointly sued, and a judgment entered up against them jointly, that the statute would not have commenced to run until the plaintiff had paid the money, but they were severally sued, and several judgments were entered up against them. 
      
       7 Rich. 66; 1 Sp. 53.
     
      
       5 Rich. 298; 1 N. & McC. 57 ; 2 McC. 125.
     