"The statute requires this. It declares that no act, promise, or acknowledgment is sufficient to remove the bar to a suit, or is evidence of a new and continuing contract, except the partial payment made upon the contract by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby.' Rev. Code, § 2914. In this case the plaintiff, to avoid the bar of the statute of limitations, relied on two alleged payments in dorsed on the note sued on, before the bar of the statute was complete. The suit was commenced in the name of Eliza Perry, who in the complaint is averred to be the owner of the note. The note is payable to one Zebulon Rudolph, Sen., or bearer. On her death, during the progress of the cause, the appellees, her executors, were made parties plaintiff.

"The note was made by one Alexander Reid, Jesse B. Knight (plaintiff's intestate), and one C. W. Knight, and all three were made defendants. The summons not being served on said Reid, the complaint was amended by striking out his name, Thereupon the death of Jesse B. Knight was suggested, and appellant, his administrator, was, at a subsequent term, made a defendant in his stead. It seems, in the meanwhile, and before the death of Eliza Perry, the original plaintiff, a trial was had between her and defendant, C. W. Knight, on pleas of the statute of limitations, filed by defendants before the death of said Jesse B. Knight, and there was a verdict and judgment for said C. W. Knight.

"Afterward, the cause was tried between the appellees, as the executors of the said Eliza Perry, and appellant, the administrator of said Jesse B. Knight, on the original pleas of the statute of limitations. These pleas were filed by each defendant separately, each for himself. The note, on its face, being barred by the statute, the complaint averred that two payments had been made on it after maturity, and before the bar of the statute was complete. On that trial, one of the plaintiffs was introduced as a witness, and it was offered to be proved by him that the indorsements

of the payments on the notes were in the handwriting of one R. B. Rudolph; that said Rudolph was the general agent of said Eliza Perry, and transacted all her business, but was then dead. The appellant objected to the competency of said witness to prove that said indorsements were in the handwriting of said Rudolph, and that he was the agent of Eliza Perry. The court overruled the objection, and appel, lant excepted. The witness was then examined, and stated that said indorsements were in the handwriting of said R. B. Rudolph; that he was the agent of said Eliza Perry, and was dead. On this evidence, the plaintiffs offered to read said indorsements to the jury. To this the appellant objected, his objection was overruled, and he excepted. Thereupon the court permitted the said indorsements to be read to the jury as evidence of said payments at the times stated in said indorsements. To this appellant objected, his objection was overruled, and he excepted. The plaintiffs then rested. The appellant then introduced a witness, who testified that said note was made by said Reid as principal, and the other two joint makers as his sureties. The appellant was then examined as a witness, and testified that said note was written by him and signed by said Reid, Jesse B. Knight and himself; that said Jesse B. Knight signed the note at the request of said Reid, saying, at the time, he would sign for but few men; that said note was made at the house of said Jesse B. Knight; that said Reid took the note, and he and witness went together to the house of the payee, said Zebulon Rudolph, Sen., and passed the note to him, and he gave the money for it to said Reid; that it was a loan of money on said note.

"This was all the evidence in the case, On this evidence the court gave two charges to the jury. The second was excepted to by the appellant, and is as follows, to wit: 'If the jury believe from the evidence that there was a payment made on the note sued on, on the twentysixth day of January, 1859, and that there is no evidence to show by which particular obligor the payment was made, you may, as a matter of law, presume it was made

by the parties jointly chargeable with the payment.' To this charge the appellant excepted.

"The appellant then asked the court to give the following charge, to wit: 'If the jury believe from the evidence that Jesse B. Knight and C. W. Knight were merely sureties for Alexander Reid on the note sued on, then the jury would not be authorized to presume, as a matter of law, that the payments indorsed on the note were made by Jesse B. Knight and C. W. Knight, or by either of them, without further proof.' This charge the court refused, and appellant excepted. The appellant then asked the court to give the following written charge, to wit: 'That the indorsed credits on the notes are no evidence against Jesse B. Knight, or his administrator, that any payment was made, or the time of such payment; and that unless the evidence showed that Jesse B. Knight, in his lifetime, made the payments indorsed on the note, then the jury must find for the defendant, the only issue being on such payments.' The court refused to give this charge as asked, and the defendant excepted. The court thereupon gave the said charge, but with the qualification that the charge No. 2 must be taken as a qualification thereof. And the appellant excepted to the charge thus given, with the qualification.

"1. The indorsements on the note, on the evidence of the plaintiffs, were utterly worthless to prove either that the alleged payments were made, or by whom made, or when made; and without this, they should not have been permitted to be read to the jury. If they had been proved to be in the handwriting of the appellees' testator, said Eliza Perry, without more evidence, to permit them to be read to the jury to defeat the bar of the statute, would have been to permit her to make evidence for herself. In the case of McGehee v. Greer, 7 Port. 537, the court say: 'A payment on a note is, we think, precisely equivalent to an admission that, at the time of the payment the debt is due; but it is necessary that the party relying upon such payment should prove the date of the payment. To permit that fact to be estab

lished by the credit entered on the note would be, manifestly, allowing the party relying on it to make evidence for himself.'

"Where a party relies on an indorsed payment on a note to stop the operation of the statute of limitations, such payment must be proved to have been made at the time it bears date.' Watson v. Dale, 1 Port. (Ala.) 247. So, too, an admission made by a principal maker of a note, coupled with a promise to pay, will not revive the debt so as to take it out of the bar of the statute of limitations, as against a comaker, who is a surety; nor will payments made by him have the effect to prevent the running of the statute. Lowther et al. v. Chappell, 7 Ala. 353; and in Myatts & Moore v. Bell, 41 id. 222, it is held that 'a payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt relied on to sustain the action.' The court below, therefore, clearly erred in permitting these indorsements of credits on the note to be read to the jury as evidence of payments made at the times stated in said indorsements, without further proof of the fact of the payments, and by whom, and when made.

"2. The second charge of the court, on the evidence in this case, to say the least of it, was inappropriate and inapplicable, if not abstract, and was well calculated to mislead the jury, and should not have been given.

"3. The first charge asked by appellant was a very proper charge, was warranted by the evidence, and should have been given. The evidence by no means authorized the jury to presume, as a matter of law, that the payments were made by Jesse B. Knight or C. W. Knight, or either of them, especially if they believed from the evidence they were the mere sureties of said Reid. In that case, the presumption was directly the other way.

"4. The second charge in writing should have been given or refused in the terms in which it was written (Rev. Code, § 2756); and in refusing to give it in the