March 29, 1916. The opinion of the Court, after reciting the foregoing statement of facts, was delivered by The case of Patterson v. Baxley, 33 S.C. 354,11 S.E. 1065, is conclusive of this case against the appellant's contention, and, unless that case is overruled, it governs here. In that case (pages 357 and 358, of 33 S.C. page 1066 of 11 S.E.) it is said:
"`It is further ordered that the complainant be at liberty at any time thereafter, when any such deficiency shall have become due according to the bond, to apply to the Court for an execution against all the defendants to collect the amount which shall be due thereon.' This was done precisely as directed, and the unpaid balance collected without objection out of the property of the surety, J.C. Holley, who is now endeavoring to revive the judgment against the principal defendants in order to reimburse himself the amount paid by him as surety. See Freer v. Tupper, 21 S.C. 81."
It appears in writing from the record in the sheriff's office that "payments" were made to him officially on the judgment for the deficiency at three separate times, viz.: January *Page 163 20, 1870; October 3, 1870; and November 7, 1870. From this last payment to October 18, 1889, when the summons to renew was filed, was less than 20 years. We cannot doubt that the receipts in writing on the record are substantial compliance with the new rule of evidence created by the act of 1879, supra, which requires a note of some payment on account, or some written acknowledgment of the debt secured thereby, etc.
We think the summons to renew the execution was filed within time, within 20 years from the last "payment on account" in the record. This case decides the exact question before us and is conclusive of it.
The judgment is affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and GAGE concur in the opinion of the Court.
MR. JUSTICE WATTS dissents.