The petition discloses that, in 1851, plaintiff in error as principal, and defendant in error as his surety, in the state of Alabama, where all parties resided, executed a certain instrument in writing, whereby they became bound to pay one Elmore some $2,000.
It is also alleged in the petition, that the instrument would not be affected by the statute of limitation in Ala*376bama until sixteen years had elapsed; that appellee has resided in Alabama since 1851 until the present time, and that appellant left that state for Texas in 1853, leaving said instrument unpaid in part; and that, by the laws of Alabama, appellee was liable to pay the same; and that it had been placed in the hands of certain attorneys-at-law in the state for collection, and appellee was compelled to pay, and actually did pay, on the 22d October, 1858, $442 43, as such surety for appellant.
The defendant pleaded the statute of limitation, and a general denial of plaintiff’s petition. Cause submitted to the judge without a jury. On the trial, the defendant admitted the facts stated in the petition to be true. Judgment for plaintiff for $390 29.
The errors assigned are to the effect, that the suit was barred by the act of limitation.
The statement of facts discloses, that defendant in error, by the laws of Alabama, was compelled to pay, as surety for plaintiff in error, the amount of the judgment. All the transactions took place in that state; and had not the plaintiff in error removed from said state he would have been compelled to pay the same.
As defendant in error became surety for plaintiff, it must be supposed this was at plaintiff’s request. It thence follows, that everything that defendant was compelled to do by the laws of the state in which he thus became surety, was done at plaintiff’s request. As soon as defendant paid the sum mentioned, he had an action of account against tire plaintiff) which would have been barred by two years. (Paschal’s Dig., Art. 4604.)
As defendant paid the sum- on the 22d October, 1858, two years would not have elapsed until 22d October, 1860; and, as this suit was instituted on the 11th March, 1859, it was not barred by statute.
Judgment affirmed.