
    John Williamson’s Administrator vs. The Administrator of David Rees and others.
    The co-signcrs of a note, joint and several in its terms, which fell due in 1807, and on which a suit was severally instituted in 1811, against another co-obligor, and judgment recovered, and afterwards suffered to lie dormant sixteen years, and then revived, and finally paid, thirty-eight years after it became payable, cannot be compelled to contribute.
    In such case, lapse oí time would be a bar to a recovery by the holder, and an indirect liability does not exist where the relation of co-sureties has ceased to exist.
    This is a Bill in Chancery, reserved in the County of Fairfield.
    The prayer of the bill is, that defendants may contribute their equitable proportions of $5,661.48, upon the following state of facts, gathered from the bill, answers, proofs and exhibits :
    
      In Bank.
    Dec. Term, 1846.
    On the 7th October, 1807, Elijah Friend, Jonathan Lynch, Charles Friend, James Hampson, David Rees, John Williamson and John Neil executed a joint and several note payable to Samuel Kratzer or his order, for $2,000, at the store of Benjamin Ives Oilman, in Marietta, and negotiable at the Bank of Marietta.
    This note was soon after negotiated by Kratzer to David Putnam, cashier of the bank, was discounted and the proceeds paid upon Kratzer’s check. The object of the parties was to enable Kratzer to make a loan of this sum, and the makers were his sureties.
    Upon this note, Putnam brought a several action, on the 1st October, 1810, in the Fairfield Common Pleas, against William son, upon which he obtained a judgment in the Supreme Court for $2,781 and costs of suit, on the 18th of July, 1814.
    On the 28th of January, 1817, Williamson paid $1,000, and on the 10th of April, in the same year, $200, upon this judgment.
    In November, 1836, Putnam revived the judgment against the complainants, who paid, on the 6th of September, 1845, the said sum of $5,664.48, in part satisfaction of the same.
    All the parties to the note were dead at the filing of the bill. Neil, Hampson, Lynch, Kratzer and Elijah Friend died insolvent. David Rees died solvent. Charles Friend died, leaving one hundred and twenty acres of land, which descended to his eleven children, who, in person or by their representatives, are made defendants, and was sold on proceedings in partition, and the proceeds, amounting to $2,244.21, equally divided between them, in August, 1831, which sum, added to the moneys received of the administrator on the final settlement of the estate, in 1831, makes the sum received by each of the eleven heirs to his estate amount to $204.42.
    The estates of all the other signers to the note were settled long prior to the filing of this bill, and were insufficient to pay' the claims presented against them. ■ No claim for contribution was ever presented to any of the obligors while living, nor ever made against their estates prior to 1845, about the time this suit was commenced.
    
      John T. Brazee, for Complainants.
    Assuming that Williamson and the six other signers of the note were accommodation makers for Kratzer, the payee, it cannot be seriously contended that he, being the principal, would, under existing circumstances, be protected by the statute of limitations or presumption of payment. Whenever a surety pays money for his principal, it is money paid for his use, and the surety has an immediate and present cause of action against his principal. Rodman v. Hedden, 10 Wend. Rep. 502.
    The principal, therefore, could not avail himself of the statute of limitations or presumption of payment, as against his surety.
    As to these co-contractors, the debt ought to be regarded as an entire thing, wholly indivisible, and if subsisting as to one, as to all, so that the compulsory payment by one would entitle him to contribution against the others. It has been long established as the law in England and the United States, thal where there are a plurality of contractors, sureties or principals, joint or several, that the act of one of the debtors, in acknowledging the validity of the debt, or in promising to pay the debt, or in making partial payments upon it, takes it out of the statute of limitations as to all the other parties to the liability. Coit v. Tracy, 8 Conn. Rep. 276 ; Wyatt v. Hudson, 8 Ring. Rep. 399; Whitcomb v. Whiting, Doug. Rep. 652 ; Jackson v. Fairbank, 2 Blk. Rep. 340; White v. Hale, 3 Pick. Rep. 291 ; Frye v. Barker, 4 Pick. Rep. 384; Sigourney v. Drury, 14 Pick. Rep. 387; Hunt v. Bridgernan, 2 Pick. Rep. 581; Johnson v. Beardslee, 15 Johns. Rep. 3; Smith v. Ludlow, 6 Johns. Rep. 267; 4 Conn. Rep. 236 ; 1 McCord’s Rep. 541; 2 Bing. Rep. 306; 7 Greenleaf’s Rep. 26; Dowl. & Ry. Rep. 7.
    
      In this case the debt, as against Williamson, was kept alive by operation of law, and, surely, this is as cogent in protecting the debt against the statute of limitations as any act of Williamson, or any other of the contracting parties could have been.
    But the statute of limitations would not apply, as against Putnam, under any circumstances. The cause of action accrued while the statute of 1804 was in force, and, under that statute, there was no limitation to the action of debt on simple contract. Tapper’s Ex’rs v. Tapper’s Ex’rs, 3 Ohio Rep. 387; Bigelow’s Ex’rs v. Bigelow’s Adm’rs, 6 Ohio Rep. 98; Hazlett et ad. v. Critchjield, 7 Ohio Rep. part II, 153.
    But, even on the ground that, as between Putnam and these defendants, the debt would be barred, it does not follow that the suit will not lie, at the instance of a co-surety who has been compelled to pay the money. As to him, the cause of action accrued when he paid the money, in 1845.' The liability of the others to contribute is founded in equity, and not upon contract. Story’s Eq. 471; Craythorne v. Sioinburne, 14 Yes. Rep. 160; Burleigh v. Stoll, 2 Man. &, Ry. Rep. 93 ; Theob. Pr. & Sur. 271.'
    
      II. Stanbery, (Attorney General,) T. Ewing, P. Van Trump and N. II. Swayne, submitted arguments for the various defendants, and contended —
    That, whether the action of debt could have been sustained by Putnam on this note, notwithstanding the statute of limitations, or not, was immaterial, inasmuch as chancery would, as well as courts of law, regard the statute as of binding force, and apply it to paper of this description after the lapse of fifteen years. This not being an action of debt, but a bill in. chancery, the defendants might protect themselves by the statute.
    They denied that the law was settled, that the voluntary acknowledgment, either with or without a proviso to pay, by one joint contractor, interrupted the running of the statute as to the other co-contractors, and referred -to the following authorities Kirby’s Rep. 2Ó3; I'.Root’s Rep. 502; 10 Johns. Rep. 216; Kirby’s Rep. 174; 8 Pick.,Rep. 122-; 10 Serg.- & Rawle’s Rep. 75, 81; 3 McCord’s. Rep. 340; 5 Har. .& Johns. Rep. 1; 6 Conn..Rep. 17.Ó, 174N>-; - 5 Har.. &.. Johns.'Rep. 51; 3 Cowen’s Rep. 623 ; 1 Esp. N.’ P., C,135; 3 Johns. Rep. 536; 10 Johns. Rep. 66; 3 Wénd. Rep. 397; 2 Wash. C.. C. Rep. 388; 16'.Serg. & Rawle’s Rep. 120 ; 6 Pick. Rep. 464; Poth. ón Obi. 257. ■" ■ ' '
    But, independent of the statute of limitations', the law, after such a lapse of time,, yvill presume payment.' 6. Munf. 532; 3 Day’s Rep. 289; 1 McCord’s Rep. 145; 8 Conn. Rep. 168;. 1 Bailey, 172; 5 Vér. Rep. 236; .3 McCord’s Rep. 340.
    ‘ And these defendants being thus discharged, from all liability as't,d -the-payee of’.the note, by operation, of law, that liability cannot be restored, by the' act of Williams'on, in paying the note. This presumption of. payment is a. presumption óf.law, and. . stands ever as a perfect barrier between the person seeking to enforce the remedy and him against whom it is sought to be enforced; in this case, as well against Williamson .as it would against "Putnam himself. ' It would be absurd to hold' them bound to pay a, debt indirectly, which' -they did not owe directly.. . " • ’ ; ’ .
    ■ Whatever discharges the''principal, will discharge the contingent collateral liability of the surety. When Kratzer/the principal, ceased to be liable, by operation of the statute, or presumption of payment ipso facto, his sureties were discharged, .and- that-discharge is as. binding, and operative upon all cdncerned-as though they had been discharged by the direct act of .the creditor himself; • Theob. on Pr.'& Surety,- 204'; 3 Dana’s Rep. 160.- ■'
   ■Birchard, J.

Several questions, growing out of the facts of this case, have been argued with much skill by counsel. ■ ■ In disposing of the' subject, we shall -notice only those which seenv . tb be conclusive of the merits of the case.' And, first, can .this bill be sustained on the ground that complainant has paid money for the use of the defendants, as co-surety, or otherwise ? This depends upon the’ question whether, at the time of payment, any claim for a portion, or the whole of the sum due,' could have been enforced by Putnam against either of them. For where there is no direct, there can be no indirect liability. It seems that Putnam, in 1842, made the attempt to collect of Rees and Hampson, and went so far as to ascertain that the plea of the statute of limitations, passed in 1804, Was not a bar, and, by a division of'this C.ourt,-that .the subsequent-statutes were not operative 'upon the claim; 12 Ohio Rep. 21. The cases progressed no further.

It remains for us to consider whether, ■ upon the facts now in proof, any recovery could have, been obtained, legally, against ány. of thé parties. ” The obligátion was due .the 7 th. of’ December, 1807, more’ than thirty-eight years ago.- .Putnam treated it as a sévéral contract, in 1810. .. The election .he then made was conclusive:-upo¡n him:. As to hind, and all claiming under him from that- time- forward, the' right which' he had against each signer, :.w’as .the'same .as-if .the name-of, each had been affixed to a separate note for the .same amount. It. was out of his power, having thus elected to treat-'the .contract as -several, to come into.-Court at any time thereafter and sue upon it as a joint -obligation. ' Without ■ the aid of any statute; it- seems to us . that either Rees, Rriend or Hampson,-.. might have, relied successfully upon"the great .lapse¡of:time,"a.S raising-the presumption that their obligation had been in some way discharged. At law,'twenty years was sufficient’ to raise the. presumption of payment.. These presumptions are of such' a-character as naturally to increase in force, in -proportion as the, years increase during which they have run. And in this case it would, without the aid of evidence sufficient to rebut it, have been a complete bar eighteen years ago.’ • Now, what is relied upon to do away the- force of the legal presumptions that- have, been thus long,increasing in strength? The fact, that Williamson alone was- sued,'and judgment recovered, in-1814,, and that this j.udgment against him was not .paid off till 1845? Besides-this there is substantially nothing. But he had paid $1200, in 1817, and, after that,' more than twenty years elapsed before any of these parties were called -on for payment. What caused such a delay ? Why was the claim left sleeping till all those who, when living, knew the whole and true history of the transaction were in their graves ? The papers furnish no satisfactory answer, and, for want of that, a court of law should have said, “ Let the claim sleep on forever;” that “ the inference is, that £ if it had been prosecuted in due time, some of its cotempora- £ ries would have been able to furnish evidence showing that it £ had been paid, discharged, released, or in some way arranged £ between the parties.”

It may be that Williamson, for a good consideration, assumed the payment of the entire debt prior to 1810. If so, it could not be expected that the administrators or heirs of his deceased coobligors, after thirty-six years, would be able to make it appear. It is contrary to all human experience to expect any proof from them, or to imagine that they could by any vigilance establish the fact. Yet the parties, while living, acted as we might expect them to act if such were the case. In this connection let us see how conclusive against the presumption, arising from lapse of time, would be the fact that the separate suit had been prosecuted against Williamson. From 1817, the time of the last payment by him, no movement was made towards a further collection. Had a separate suit been instituted as early as 1828, the judgment and proceedings upon it would not have tended to weaken the legal presumption of payment. On the contrary it would, in our opinion, have added to its strength, by showing a sufficient reason why Putnam suffered the residue of that judgment to become dormant. He permitted to happen precisely what would have happened on payment of the residue of the note by one of the other makers.

We hold, then, that in 1845, when the $5661 was paid to Putnam, it was not paid on the account of the co-sureties, or on a then subsisting joint obligation ; that all such relations between the parties had long before become extinct and ceased to exist; that the money paid was in discharge of complainant’s sole liability, and gave him no right to call upon respondents for contribution.

Bill dismissed, toith costs.  