installments, and nearly eight years elapsed between the last payment and the commencement by him of the present action to obtain indemnity. This lapse of time appeared on the face of the petition. The six years' statute of limitation was invoked by a demurrer to the petition, a practice recognized in 131 this state. The chief contention made by counsel was over this question. Our statute limiting the commencement of actions provides (Rev. Stats., sec. 4980): "An action upon a specialty or an agreement, contract, or promise in writing," shall be brought within fifteen years "after the cause of action accrues." Section 4981 of the Revised Statutes provides: "An action upon a contract not in writing, either expressed or implied," shall be brought within six years "after the cause of action accrues." The authorities are quite numerous in holding that a surety who has paid a debt for his principal may maintain an action on the implied promise of indemnity. The security having paid a debt which the principal ought to have paid, the law raises (or implies) a promise on the part of the principal to reimburse the surety, and the latter may maintain an action on the implied promise as for money paid for the use of the principal: Hill v. Wright, 23 Ark. 530; Appleton v. Bascom, 3 Met. 169; Holmes v. Weed, 19 Barb. 128; Tom v. Goodrich, 2 Johns. 213; 1 Brandt on Suretyship and Guaranty, 205-207; Huntley v. Sanderson, 1 Cromp. & M. 467; 2 Barn. 26.

Any further citation of authorities in support of a rule of law so firmly lodged in the jurisprudence of England and America is unnecessary, even if it had not been heretofore recognized by this court. It is, however, as firmly established here as in the other states of the Union: Williams v. Williams, 5 Ohio, 444; Neilson v. Fry, 16 Ohio St. 552, 91 Am. Dec. 110; Camp v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Oldham v. Broom, 28 Ohio St. 41.

The rule that the period of limitation fixed for beginning an action of this kind is the same that 132 applies generally to other actions upon implied and unwritten contracts, is also generally recognized: Bayless on Sureties and Guarantors, 335; Sherrod v. Woodard, 4 Dev. 360, 25 Am. Dec. 714; Thayer v. Daniels, 110 Mass. 345. This rule prevails in this state, and the period as fixed by statute above cited in six years: Neilson v. Fry, 16 Ohio St. 553, 91 Am. Dec. 110. Plaintiff in error, however, through his counsel, contends that he is not compelled to resort alone to an action as an implied promise, but

may maintain an action on the recital in the deed, and that the present action is so founded. This contention must be made good in order to avoid the bar of the six years' statute, which it is seen would otherwise apply.

The obligation of Mrs. Dixon, the principal in this case, was in writing; that is, it was embodied in the form of a recitation in the deed made to her for the premises on which the debts were secured by mortgage liens. The deed had not been recorded and was not produced at the trial, but, as near as can be ascertained from parol evidence of its contents, the recitation was substantially as follows: "The premises are subject to mortgages and notes to the amount of $ with interest

which the grantee assumes to pay." Pay to whom? To the creditors, or the persons who held the notes and the mortgages. It was not a promise to pay anything to the plaintiff in error. Doubtless, he might have taken from her a written undertaking to himself binding her to pay the creditors the debts involved, with a stipulation therein that if she did not, and he was compelled on that account to pay them, that she would repay him the amount thus paid. That, of course, would fix on her a written obligation to indemnify 133 him which we may concede would not be barred until fifteen years after it had accrued, as provided by section 4980 of the Revised Statutes, before quoted. This, however, he did not do, and must, therefore, rely on the recitation in the deed. This recitation, as already stated, contained no promise to pay anything to the plaintiff in error. It was a promise to pay a debt to the creditors. It inured to each of them severally, and each could have maintained for the recovery of his claim a separate action against Mrs. Dixon on the promise: Brewer v. Maurer, 38 Ohio St. 543, 43 Am. Rep. 436; Emmitt v. Brophy, 42 Ohio St. 82; Thompson v. Thompson, 4 Ohio St. 333.

But examine the promise in any way one may choose, and no promise to the plaintiff in error will be found. True, the relation of principal and surety was established between the plaintiff and the defendant from the time she assumed the payment of debts involved in the case. Her duty or obligation to indemnify him, in case he afterward paid the debts, arose at the moment the relation was established. It sprang from the assumption, for a valuable consideration, of those debts. It is a consequence that attaches to the relation of principal and surety in every instance, however that relation may have been created: 24 Am. & Eng. Ency. of Law, 774, 775; Rice v.

Southgate, 16 Gray, 142; Choteau v. Jones, 11 Ill. 300, 50 Am. Dec. 460; Barney v. Grover, 28 Vt. 391; Martin v. Ellerbe, 70 Ala. 327; Ward v. Henry, 5 Conn. 596, 13 Am. Dec. 119.

The authorities say that, under certain conditions, and at any time after the relation is established and the debt has become due, the plaintiff in error could have maintained in equity an action to compel her to pay these debts, and thus relieve 134 him from liability on their account: 24 Am. & Eng. Ency. of Law, 789, and note 1. This also is an incident that necessarily attaches to the relation, and the right of the plaintiff in error in this respect does not differ from what it would have been had he signed a promissory note or a bond as the surety of Mrs. Dixon. In such cases, as well as in the present case, the promise runs to the creditor, and in all three cases the relation of principal and surety arose when the promise to the creditors was made, and the obligation of the principal to indemnify the surety, if he afterward paid the debt, came into existence at the same instant. The circumstances that the promise was embodied in a deed is not material. It would have been equally binding on Mrs. Dixon, equally beneficial to the creditors, and equally potent to create between her and the plaintiff in error the relation of principal and surety if it had been accomplished by a separate instrument executed by Mrs. Dixon to the creditors in which the name of Mr. Poe did not appear. Mrs. Dixon did not sign the deed. It was a deed poll, executed by the grantors only, and the recitation involved here was binding on her only because she accepted and held under the deed that contained it. True, Mr. Poe had a deep interest in her fulfilling the promise, but it was no greater and no different from what that interest would have been if the promise had been embodied in a bond, note, or other writing which bound her directly to those creditors.

Whatever other rights may have accrued to the plaintiff in error on account of the transaction, or to whatever stage of such transaction his right to ultimate indemnity in case he paid the debt, had 185 its origin, it is obvious that his right to call upon Mrs. Dixon to refund what he had paid in her behalf did not accrue to him until he had paid the debt or some part of it, which, as between themselves, she ought to have paid. Such payment is a prerequisite to his right to be. reimbursed. Before he made it, he could not have maintained an action for reimbursement. As soon as it was made, his right of action was complete.

We are, therefore, constrained to hold that the cause of action being for reimbursement, and arising out of the implied contract to indemnify that inheres in or attaches to the relation of principal and surety accrued when the payments were made, and in six years thereafter was barred by section 4981 of the Revised Statutes.

Judgment affirmed.

OF MORT

VENDOR AND PURCHASER-ASSUMPTION GAGE GRANTEE AS PRINCIPAL.-A grantee who covenants with the grantor to pay off a mortgage on the premises becomes, in equity, the principal debtor with respect to the mortgage debt: Note to Enos v. Sanger, 65 Am. St. Rep. 40; Klapworth v. Dressler, 2 Beasl. 62, 78 Am. Dec. 69, and monographic note thereto treating the entire question of the assumption of a mortgage by a grantee and the rights and liabilities of the parties arising therefrom. See the extended note to Fiske v. Tolman, 26 Am. Rep. 660.

SURETYSHIP-REMEDY OF SURETY.-A surety who has paid a note or other security for his principal cannot sue upon it directly in an action at law. His remedy is upon the implied contract of indemnity: Zuellig v. Hemerlie, 60 Ohio St. 27, 71 Am. St. Rep. 707.

VENDOR AND PURCHASER-ASSUMPTION OF MORTGAGE.-RIGHT OF MORTGAGEE to sue a grantee upon a promise to pay the mortgage debt: Monographic notes to Baxter v. Camp, ante, p. 169; Klapworth v. Dressler, 78 Am. Dec. 73-78. That a mortgagee has no right of action against the grantee, see Meech v. Ensign, 49 Conn. 191, 44 Am. Rep. 225, and note. Contra, Dean v. Walker, 107 Ill. 540. 47 Am. Rep. 467.

VENDOR AND PURCHASER-ASSUMPTION OF MORTGAGE GRANTOR'S REMEDY AGAINST GRANTEE.-An agreement by a vendee that he will pay a mortgage existing on the land purchased is binding, if such mortgage forms a part of the price of the land; and, if the vendor subsequently pays the same, by virtue of his personal liability, assumpsit for money had and received lies: Kearney v. Tanner, 17 Serg. & R. 94, 17 Am. Dec. 648; Rice v. Sanders, 152 Mass. 108, 23 Am. St. Rep. 804. That the grantor may sue the grantee before he has paid the debt, see Furnas v. Durgin, 119 Mass. 500, 20 Am. Rep. 341.

EX PARTE JENNINGS.

160 OHIO STATE, 319.]

DEPOSITIONS-REFUSAL TO TESTIFY-CONTEMPT— HABEAS CORPUS.-A witness is entitled to be discharged on habeas corpus when he has been committed for contempt by a notary public or other officer for refusing to testify to facts for the purposes of a deposition that are incompetent and inadmissible in evidence, and detrimental to his business.

Malcom Jennings was committed for contempt, before a notary public, in the matter of a deposition while he was a wit ness, in refusing to furnish a list of papers, circulating in Ohio, with which he had contracts to print and furnish advertisements, and reading notices not to appear as advertisements, with the Buckeye Pipe Line Company. The witness refused, upon the ground that the facts sought were not pertinent to the case in which the deposition was taken, and that the disclosure would be detrimental to his business. He petitioned to be discharged from custody by writ of habeas corpus.

V. P. Kline and L. T. Neal, for the petitioner.

F. S. Monnett, attorney general, E. B. Kinkead and S. W. Bennett, for the relator.

328 SHAUCK, J. Authority to punish, as for a contempt, a witness who refuses to answer "when lawfully ordered" is conferred upon notaries public by sections 5252 and 5254 of the Revised Statutes: De Camp v. Archibald, 50 Ohio St. 618, 40 Am. St. Rep. 692. The denial here is not of the power of the officer, but of the lawfulness of the occasion for its exercise. The taking of testimony by depositions is authorized with much detail in the provisions of our statutes relating to civil procedure. The general provision is, that "the testimony of witnesses may be taken" in this mode. The purpose is to present to the court upon the trial of issues of fact the testimony of witnesses unavoidably absent as though they were present, and the power to punish those who refuse to appear or to testify is conferred to effectuate that purpose. The language of the section conferring authority upon the officer to punish a witness for refusing to answer "when lawfully ordered" implies that punishment cannot be imposed for every refusal.

It is familiar that an objection to the competency of the evidence to be elicited, when interposed by 329 a party to the action in which the deposition is taken, cannot be either sustained or overruled by the officer. In such case, the question