
    Daniel Frye versus Amos Barker and Elijah Jennings.
    The indorsement of a witnessed negotiable note more than six years after an action has accrued thereon, does not discharge the promisor from his liability, but the note is thereby placed upon a footing with notes not witnessed, as it respects the statute of limitations.
    An acknowledgment that a note is due, or a promise to pay it, made within six years, by the principal in the note, is sufficient to take it out of the statute of limitations as against the surety.
    If the holder of a promissory note neglects to sue the principal, upon the request of the surety, the surety is not thereby discharged.
    Assumpsit. The action was commenced on the 4th of June, 1825, on the following promissory note : —u Methuen, June 7, 1815. For value received, I, Amos Barker, as principal, and I, Elijah Jennings, as surety, promise to pay to Mr. James Frye, or to his order, one hundred dollars, on demand, with interest till paid; as witness our hands. Amos Barker. Elijah Jennings. Attest, Jesse Bodwell.” Plea, the statute of limitations. Replication, a new promise within six years.
    At the trial, before Putnam J., it was in evidence, that m October or November 1824, an action upon the note neing then pending in this Court between James Frye and the defendants, Barker told the agent of James Frye, that if he would take the note out of the law and pay the costs, they (using the word we) would pay the debt'. That action was discontinued and the costs paid accordingly. Jennings being told of this arrangement, said, “We were always willing to pay the debt, if Frye would take it out of court and pay the costs.”
    
      Nov. 8th.
    
    Between the end of October term 1824 of this Court and the commencement of this action, James Frye indorsed the note to Daniel Frye the plaintiff. In February 1825, Jennings told the plaintiff to sue the note at the next March court, or he (Jennings) would not pay it; he would not stand bound any longer than March court. On the 5th of March, 1825, the plaintiff called on Barker and asked him to pay the note, and told him what Jennings had said. Barker replied, that if the plaintiff would not put the note into the law, he would pay him within two months, or give him satisfactory security ; but that he would not pay it in the law, and would not pay any costs.
    The plaintiff was to be nonsuited or the defendants defaulted, according as the opinion of the Court should be in favor of one or the other, upon the foregoing facts.
    Spaulding, for the defendants,
    referred to St. 1786, c. 52, (of limitations,) the 5th section of which provides, that cc this act shall not extend to bar any action hereafter brought upon any note &c. attested by one or more witnesses, &c., but all actions upon such note &c. brought by the original promisee, his executor or administrator, shall and may be maintained as if this act had never been made.” The note in suit was made with reference to this provision, which puts it on the footing of specialties, and the indorsement of it after the expiration of six years absolved the defendants from their liability. They contracted to pay no one, after that period, except James Frye, the promisee.
    He also contended, that there was no proof of a new promise by the surety; that this was not the case of a joint note, and a new promise by the principal would not affect the surety; and that the plaintiff’s not suing the principal upon the request of the surety, hut, on the contrary, giving him a r'?w credit of two months, discharged the surety. He cited Bangs v. Hall, 2 Pick. 368; 2 Starkie on Ev. 48, 230, 239; Hunt v. Bridgham, 2 Pick. 581; Cope v. Smith, 8 Serg. & Rawle, 110; Whart. Penns. Dig. 572.
    
      Nov. 11th.
    
      Minot, for the plaintiff,
    cited Baxter v. Penniman, 8 Mass. R 133; Perry v. Jackson, 4 T. R. 519; Whitcomb v. Whiting, 2 Doug. 652; Jackson v. Fairbank, 2 H. Bl. 340; Smith v. Ludlow, 6 Johns. R. 269; Hunt v. Bridgham, 2 Pick. 583; Crane v. Newell, ibid. 614.
   Parker C. J.

delivered the opinion of the Court. We have thought in this case, that the only question which required much consideration, was, whether the construction of the 5th section of the statute of limitations contended for by the counsel for the défendants, had as much soundness in it as ingenuity. It had never occurred to us, nor do we recollect that it has been before suggested. But after due considera tian, we adopt the most natural construction as that which is most conformable to the spirit of the statute and the intention of the legislature. The section provides substantially, that promissory notes, attested by a witness, shall be recoverable, notwithstanding the statute, if the action is brought by the original promisee or his legal representative. We cannot think it was intended to prevent the negotiability or transfer of such notes, or that they ceased to be assignable after the expiration of six years. The only effect of the statute is to deprive such notes of the protection of this section against the statute of limitations, if they should be transferred. They are then upon the footing of notes not witnessed, and are liable to be barred by the statute.

We cannot doubt that the evidence reported is sufficient to warrant the verdict, upon the ground of an acknowledgment or new promise, within the principles of the case of Bangs v. Hall Certainly in regard to Barker, one of the defendants, there can be no question. The note was in suit; he admitted it was due, and was willing to pay it, if taken out of the law, and the suit was discontinued. This was not only a sufficient acknowledgment, but the forbearance formed a new considelation, if that were wanting.

With respect to Jennings, the other defendant, — our law does not recognise any distinction between principal and surety, as to their liability to the payee or holder of a note. If recoverable against one, it is against the other. The case of Hunt v. Bridgham is very strong to this point. We believe the law to be, that where there are two joint contractors for the payment of money, the admission of one binds the other. There is but one debt, and whatever establishes the debt, operates against both contractors. We never have adopted the law stated to be settled in the New York case of Pain v. Packard, that a surety may discharge himself, if upon request the creditor does not sue the principal. And indeed it is to be doubted, from the considerations suggested by this Court in ths case of Crane v. Newell, whether that is the law of New York.

The cases cited of a discharge to the surety, where the principal may still be holden, are chiefly cases of obligation to perform some duty other than the payment of money, where the terms of the contract are changed by the obligee without the consent of the surety; as in the case of Boston Hat Manufactory v. Messinger et al. 2 Pick. 223. There seems to be no reason, in the case of money contracts, for discharging the surety because the promisee neglects to sue the principal, for the surety may pay the debt and then bring an action himself.

Defendants defaulted. 
      
       See Revised Stat. c. 120, § 4; Smith v. Dunham, 8 Pick. 246.
     
      
       See the cases collected on this head, in 2 Pick. (2d ed.) 374, note ante 112, n. 1
     
      
       The correctness of this principle has been frequently doubted and denied. See the discussion of it in Exeter Bank v. Sullivan, 6 N. Hamp. R. 124; Bell v. Morrison, 1 Peters’s Sup. Ct. R. 363; Levy v. Cadet, 17 Serg. & Rawle, 126; Searight v. Craighead, 1 Rawle, Penrose & Watts, 135; Sigourney v. Drury, 14 Pick. 391. See the cases on this head collected in 2 Pick. (2d ed.) 583, n. 1.
      It is now enacted by statute in Massachusetts, that a new promise, even in writing, by one joint contractor, shall not bind any other. Revised Stat. c. 120, § 14. So in England. See 2 Stark. Ev. (5th Amer. ed.) 483.
     
      
       See Warner v. Beardsley, 8 Wendell, 199, Huffman v. Hulbert, 13 Wendell, 377.
      See the cases upon this point collected in 2 Pick. (2d ed.) 585, n. 3; 614, n. I; from which the weight of authority seems to be in favor of the decision in the text. See also ante, 340, n. 1.
     