
    James Kaufman as Administrator of Benjamin S. Brown, deceased v. G. N. Broughton.
    1. Section 93 of the justices’ code, as amended in 1869 (66 OhioL. 7), authorizes a bill of exceptions to be taken on a trial before a justice of the peace, to bring upon the record the fact that no evidence was offered on a point which it was necessary to establish to obtain the judgment.
    2. A credit upon an account after the cause of action on the same is barred by the statute of limitations, will not be treated as part payment thereof, unless shown to have been so intended by the parties.
    Motion for leave to file a petition in error to the -District Court of Logan county.
    On the 4th day of May, 1875, Kaufman, as administrator of Benjamin S. Brown, deceased, commenced an action against G. N. Broughton before a justice of the peace, to recover a judgment upon an account, of which the following is a copy :
    
      Gerdon N. Broughton,
    
      In account with B. S. Brown (deceased),
    
    Eor medicines and medical attendance, to-wit:
    1856—To amount brought from old books.......... $44.62*
    i860—Medicine and attendance from Nov. 1856 to March 16,1860.................................. 45.25
    1860—Brown & Williams’ account for medicine and attendance.................................. 25.00
    1863—Medicines and attendance from Feb. 6 to 15, 1863........................................... 3.00
    Credits—1856, Dec. 2, by Cash..............$10.00 $117.87*
    1870, by one Churn...... 4.00
    1870, July 5, by his acc’t rend’d 19.65 $33,63
    Balance due this date, July 5, 1870.......... $84.22*
    Interest at 6 per cent, from July 5, 1870 to May 6, 1875................................... 24.40
    $108.62*
    On the trial, a bill of exceptions was signed and sealed by the justice, from which it appears that Kaufman was sworn as a witness, identified the account book of the intestate, which contained said account, laid the necessary foundation for its introduction, and offered the same in evidence. This constituted all the evidence that was offered in the ease.
    Whereupon, the justice gave judgment for the plaintiff on the account in the sum of $108,62*. On error the common pleas reversed the judgment, and such judgment of reversal was affirmed by the district court. The plaintiff in error now seeks the reversal of these two judgments, and the affirmance of the judgment of the justice of the peace.
    
      Wm. Lawrence and Joseph H. Lawrence for the motion:
    I. A bill of exceptions can not be taken before a justice of the peace for the purpose of showing that his judgment on any question of fact is not sustained by evidence.
    This sufficiently appears from the statute of April 5, 1866 (63 OhioL. 148): Swan & Sayler, 415 ; Justices’ Code of March 14', 1853 ; sec. 203,1 S. & C. 804 ; 93 section Justices’ Code as amended Eeb. 11, 1869 (66 Ohio L. 7); Ohio■ v. Wood, 22 Ohio St. 537; Leonard v. Cincinnati, 26 Ohio St. 449; Bario v. Abbe, 16 Ohio, 408.
    No question was made as to the competency or admissibility of evidence, or as to the rejection of evidence.
    II. In support of the judgment of a justice of the peace, whatever must have been proved to make out a case will on error be presumed to have been proved. Christy v. Douglas, Wright S. C. 485; Mathis v. McCord, Wright, 647; Smyth v. Sproul, Wright, 757 ; Bethel v. Wood-worth, 11 Ohio St. 393-397; Taylor v. Fitch, 12 Ohio St. 169; Johnson v. Mullen, 12 Ohio, 10; Palmer v. Yarrvngton, 1 Ohio St. 253-261; Gettings v. Baker, 2 Ohio St. 21; Nott v. Johnson, 7 Ohio St. 270; Shroyer v. Richmond, 16 Ohio St. 455.
    On these authorities, if it was competent on the trial to prove that Broughton delivered the churn to Brown payment on the creditor’s claim, or that he, in writing, acknowledged his liability, or had promised within six years to pay; either or all of these may be presumed.
    
    III. In an action on a book account, which on its face is barred by the six years’ statute of limitations (Civil Code, sec. 14), it is competent for the plaintiff to prove:
    1. That the debtor made a payment to the creditor within six years prior to the time suit was commenced, although such payment was more than six years after the last item of the plaintiff’s account accrued, and,
    2. That within six years after the last item of the plaintiff’s claim accrued, and within each period of six 'years thereafter, the debtor acknowledged in writing his liability to the creditor for the payment of such account.
    Civil code of March 11, 1853, sees. 15-24, compared with Statute of Limitation of February 18, 1831, sec. 1, clause 4, and sec. 5. Courson v. Courson, 19 Ohio St. 454; Hill v. Henry, 17 Ohio, 914, 15, changed by civil code, see. 24; Bissel v. J andón, 16 Ohio St. 498; Turner v. Crisman, 20 Ohio, 889; Fxeiutors of Niemcewicz v. Bartlett, 13 Ohio, 271; Haymaker v. Haymaker, 4 Ohio St. 272 ; Marienthul v. Hosier, Í6 Ohio St. 566 ; Horsley v. Billings, 19 Ohio St. 413.
    As to part payment: 3 Parsons on Contracts, 73 ; Whipple y. Stevens, 2 Foster, 219; Stump v. Henry, 6 Md. 201; Baxter v. Penniman, 8 Mass. 134; Badger y. Ami, 10 Exch. 333, 28 Eng. Law and Eq. 464; Van Kensen v. Parmelee, 2 Comst. N. Y. 523 ; Dunham y. Dodge, 10 Barb.N. Y. 566 ; Shoemaker y. Benedict, 1 Kernan, N. Y. 176; Coleman y. Fobes, 22 Pa. 308.
    Part payment in goods or notes sufficient. Hart y. Nash, Cromp. M. & R. 337 ; Hooper y. Stevens, 4 A. & E. 71; Cot-tarn v. Partridge, 4 Scott N. R. 819; Ilsley v. Jewett, 2 Met. 168; Turney v. Dodwell, 3 Ellis & B. 136, 24 Eng. L. & Eq. 92 ; Irving v. Veitch, 3 M. & W. 90; Belshawv. Bush, 11 C. B. 191; Griffiths v. Owen, 13 M. & W. 58; James v. Wiiiiams, 13 M. & W. 833; Maíllard v. Nw/re Argyle, 6 Mau. & Gt. 40.
    So of part payment on account of interest: Parsonage Fund. v. Osgood, 21 Me. 176; Beaseley*v. Greensdale, 2 Tyrw. 121, 2 Cromp. & J. 61; Sanford y. Hayes, 19 Conn. 591; Bradfield v. Tapper, 7 Exch. 27, 7 Eng. L. & Eq. 541.
    If a balance be struck on mutual accounts, it is part payment. Ashby v. James, 11 M. & W. 542; Worthington v. Grensditch, 7 Q. B. 479.
    Part payment need not be evidenced in writing. Williams v. Gridley, 9 Met. 482; Sibley v. Humbert, 30 Maine, 253; Cleave v. Jones, 6 Exch. 573; AasA v. Hodgson, 6 DeG., M. & G. 474, 31 Eng. L. & Eq. 555.
    
      F. D. Hunt, contra:
    As to bills of exceptions taken to rulings of justices of the peace, see 66 Ohio Laws, 7, sec. 93; 26 Ohio St. 447.
    It is, I claim, proper to embody in the bill of exceptions taken to the rulings of a justice of the peace so much of the evidence offered on the trial, as may be necessary to show the relevancy and materiality of the question ruled upon, otherwise would be presented a mere abstract proposition of law.
    The account upon which suit was brought was barred by the statute of limitations. A claim once barred is barred for all time unless the debtor does some act that will take it out of the statutory bar. The creditor can not, by any act of his, do it.
    In this case, the credit on the account by “ his account rendered,” was not any act of the debtor’s, Broughton. The purchase of a churn by Brown, and the giving Broughton, without his knowledge or consent, credit therefor w'as no act of Broughton’s, and hence the running of the statute is not affected in any way. 7 Gray, 387; 16 Ohio St. 566; 19 Ohio St. 454.
   Boynton, J.

This case was brought here to determine the question whether a part payment of an account, after six years have elapsed from the time the cause of action thereon accrued, but within six years next prior to the commencement of the action to recover the same, withdraws the case, under § 24 of the code, from the operation of the statute of limitations. An examination of the record shows that the question does not arise. The only evidence given or offered at tbé trial, which is relied on as establishing part payment, consisted of two items of credit appearing upon the books of the plaintiff’s intestate. The items were as follows, to wit: “1870. By one churn, $4.” “1870, July 5. By his account rendered, $19.65.” Both of these items are dated long after the plaintiff’s cause of action was barred by the statute, and there was no evidence tending to show any understanding of the parties that either of them was to be applied or treated as part payment of the account thus barred. To be available to take the case out of the statute, it must appear that there was an agreement or understanding between the debtor and the owner of the account, that the credits given should be regarded and treated as part payment of the same. Hooper v. Stevens, 4 Ad. & El. 71; Bodger v. Arch, 10 Hurls. & Gord. 333.

In Waters v. Tompkins, 2 C. M. & R. 722, it was said, “ the meaning of part payment of the principal is not the naked fact of payment of a sum of money, but payment of a smaller on account of a greater sum due from the person making the payment to him to whom it is made, which part payment implies an admission of suéh greater sum being due.”

And in Waugh v. Cope, 6 M. & W. 824, by Abinger, C. B.: “ The payment must appear either by the declarations or acts of the party making it, or appropriation of the party in whose favor it is made, to be made in part payment of the debt in question. If it stands ambiguous, whether it be part payment of an existing debt, or payment generally, without the admission of any greater debt due to the party, . . . then it is not sufficient to bar the statute of limitations.” And in Blanchard v. Blanchard, 122 Mass. 562: Payment within the meaning of the statute must be the actual payment of money, or its equivalent, upon the principal or interest of the debt. ... It is the act of payment on account of the debt, that takes the case out of the statute.”

The items of credit in the account-book of the deceased, given after the statute had barred the action, constitute no evidence that it was the intention of the parties that the articles thus credited should be applied on the barred account as payment.

It is, however, contended that the court here can not know that evidence was not given, showing such understanding, because, it is said, there is no authority to bring such fact upon the record by a bill of exceptions. We can not agree to this. It is true, that the statute does not authorize an exception to the opinion of the justice on a question of fact, and his finding or judgment depending on the weight or sufficiency of the evidence, however slight the evidence may be, can not be examined or reviewed on error. Ohio v. Wood, 22 Ohio St. 537; Leonard v. The City of Cincinnati, 26 Ohio St. 447.

The question here presented, however, is one of law and not of fact; a,question not of the sufficiency, but of the existence, of evidence. Whether there is any testimony tending to establish a fact, or sustain an issue, is a question of law. Berry v. The State, ante 219.

The action brought before the justice upon the account was barred by the statute of limitations, unless by some circumstance it was withdrawn from its operation, and if not so withdrawn no judgment could properly be rendered. To render a judgment without any evidence of a fact necessary to be established, and with no presumption in its favor, is an error of law arising during the trial.” (66 Ohio L. 7). Such was the case here. It is as fatal to a judgment that there was no testimony tending to prove a necessary fact, as that no testimony at all was offered or received in the case.

Had the case been tried to a jury it would have been the duty-of the justice to direct a judgment for the defendant for want of testimony tending to establish a fact which was necessary to defeat the operation of the statute. And had he been requested so to do by the defendant, or requested to advise them that the plaintiff could not recover without such proof, and refused, such refusal would have been error for which the judgment would be reversed. It is no less fatal to thé judgment, and the error no less the subject of correction under the statute, that the case was tried by the justice without the intervention of a jury.

Motion overruled.  