
    H. W. Everston v. W. L. Buckham.
    Principal and Surety — Money Borrowed Used to Discharge Obligation of Surety —Statute of Limitation,
    Appellant and Winston were partners and upon the dissolution of the partnership Winston assumed the debts of the firm. Afterward Winston borrowed money from the appellee, with appellant as his surety, a part of which he used to discharge one of the partnership debts. The appellee sued appellant on the note executed to him as Winston’s surety, to which action the appellant pleaded and relied on statute of limitation as a bar. Held, that the payment of the partnership debt by Winston out of a part of the money borrowed from appellee did not change the true condition of appellant on the note.
    APPEAL FROM UNION CIRCUIT COURT.
    October 3, 1867.
   Opinion of the Court by

Judge Peters:

The note sued on matured the 15th of October 1854, and this atcion was not brought to enforce its colection until March 12, 1862. Appellant pleads that he was only surety of Winston the principel obligor in the note, and relies upon the statute of limitations as a bar to the action against him.

The evidence conduces to prove that Winston borrowed the money of appellee, and that appellant was in fact his surety and this fact was known to appellee. From this conclusion the testimony of Finnie and others, leaves no escape. Nor can the fact that a part of the money borrowed of appellee was applied to the satisfaction of a debt upon which appellant was bound, change the responsibility of the parties. By the terms of the dissolution of the partnership theretofore existing between appellant, and Winston, the latter was bound to pay that debt, and as between them it was the individual debt of Winston, and the payment of it by him, out of the money borrowed of appellee, could not change the true condition of appellant on the- note, any more than the payment of the money to any other creditor of Winston could do.

Nor does the act approved May 24, 1861 entitled “An Act to suspend the circuit, and other courts in this commonwealth and for oilier purposes ” have the effect to "suspend the running of the act of limitations for the benefit of sureties, as was held by this court. Rhodes v. Letcher's executors Mss. opinion, 1863.

D. H. Hughes, for appellant.

Huston, for appellee.

Wherefore the judgment is reversed, and the cause remanded with directions to award a new trial, and for further proceedings consistent with this opinion.  