JOHNSON

v.

RISK

Mr. Chief Justice Fuller,

after stating .the case as above reported, delivered the opinion of the court.

The defendants below demurred upon two general grounds, one of which involved the construction of the provisions of the bankrupt act of March 2, 1867, and the other, the bar of the statutes of limitation of the State of Tennessee. So far as we are advised, no opinion was given by the Supreme Court of that State, upon rendering the judgment of affirmance, and the record discloses no specific statement of the ground upon which the court proceeded. Inasmuch as one of the defences called for the construction and application of a State statute in a matter purely local, in respect to which great weight, if not conclusive effect, should be given to the decisions of the highest court of the State, (Gormley v. Clark, 134 U. S. 338, 348,) the plaintiff in error, if he wished to claim that this cause was disposed of by the decision of a federal question, should have obtained the certificate, of the Supreme Court to that effect, or the assertion in the judgment that such was the fact.

In De Saussure v. Gaillard, 127 U. S. 216, the general rule-is stated that to give this court jurisdiction of a writ of error to a State court, “ it must appear affirmatively, not only, that a federal question was presented for decision to the highest court of the State having jurisdiction, but that its decision was necessary to the determination of the cause,, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it.”

Where there is a federal question, but the case may have been disposed of on some other independent ground, and it does not appear on which of the two grounds the judgment was based, then if the independent ground was not a good and valid one, sufficient off itself to sustain the judgment, this court will take jurisdiction of the case, because, when put to inference as to what points the state court decided, we ought not ,to assume that it proceeded on grounds clearly untenable. Klinger v. Missouri, 13 Wall. 257. But where a defence is distinctly made, resting on local statutes, we should not, in order to reach a federal question, resort to critical conjecture as to the action of the court in the disposition of such defence.

Was the defence of the statute off limitations so palpably unfounded that we must presume that the state court overruled it?

The decisions of the Supreme Court of Tennessee seem to establish, as to the sections of the code of that' State given above, that section 3117 relates to demands arising against deceased persons in their lifetime, and applies alike to solvent and insolvent estates, Brown v. Porter, 7 Humphreys, 373; Miller v. Taylor, 6 Heiskell, 465; that under section 3481, where the estate is solvent, tne statute of limitations does not begin to run until the demand falls due or right of action accrues, Trott v. West, 9 Yerger, 433; Hearn v. Roberts, 9 Lea, 365; that the omission of the advertisement for claims prescribed by section 3087 does not prevent the running of the statute, Todd v. Wright, 12 Heiskell, 112; that under section 3151, construed with Section 3117, the resident creditor has two years and a half after qualification-of the personal representative, in which to sue on demands not barred by. the general statute; Maynard v. May, 2 Coldwell, 11; Todd v. Wright, 12 Heiskell, 442; and that when the general statute has-commenced to run in the debtor’s lifetime, death suspends its operation for not exceeding six months after that event, and prior bo the grant of letters testamentary or of administration, and suit cannot be commenced against the administrator for the six months following such grant. Bright v. Moore, 87 Tennessee, 186; Boyd v. Lee, 12 Lea, 77.

The bill counted upon the liability of E.

F. Bisk under the agreement attached as an exhibit; and not otherwise. B^ that agreement Bisk contracted to pay all the debts and liabilities of every kind of the firms, to assume the liabilities and to save Johnson harmless. This was broken by a failure do pay the parties to whom the firms were liable, and it was not necessary to a breach that Johnson should show that he had first paid those parties.' It was not an agreement merely to indemnify Johnson from damage, but to assume the indebtedness and discharge him from liability. Mills v. Dow's Administrator, 133 U. S. 123, 132; Wicker v. Hoppock, 6 Wall. 94; Locke v. Homer, 131 Mass.

93. In the latter case, Mr. Justice Gray, then Chief Justice of Massachusetts, reviews the authorities, and cites among Others, Robinson v. Robinson, 21 L.

T. Rep.

112. There by an indenture of dissolution of a partnership between the plaintiff and -defendant, the defendant to whom all the partnership property was transferred, covenanted .to pay and satisfy within eighteen months all the debts of the partnership, and also to indemnify arid sáve harmless the plaintiff against all costs, losses, charges, damages, claims, and demands which he might incur or become, liable to in respect to the partnership debts. In an action on -the defendant’s covenant to pay the debts of the partnership, Lord Campbell and Justices Wightman and Erie held that the measure of damages was the whole amount of the debts which he had not paid, whether they had been paid by the plaintiff, or he had given promissory notes for them or not. The ruling of the Supreme Court of Tennessee in Gray v. Williams, 9 Humphreys, 502, 505, is to the same effect. See also Atkins v. Scarborough, 9 Humphreys, 517.

This bill does not show when the debt to L. Tiff Risk became due, nor when suit for its recovery was commenced against Johnson, but it was of course prior to April 22, 1878, when judgment was recovered. The contract of E. E. Risk had therefore been broken prior to that time, and this action was commenced on the 28th of October, 1885, more than seven years and six months after the breach, and more than three years and four months after June 27, 1882, the date of the letters of administration to Thomas L. Risk.

Johnson was a resident of Tennessee, and should have exhibited his claim to the administrator and commenced his action within two and a half years after the letters were issued. Moreover, the cause of action on the agreement would have been barred as early as April 22, 1881, against E. F. Risk, if he had lived, and, so far as his death operated to give further time, that had also expired.

Inasmuch, therefore, as, if the Supreme Court of the State had sustained the defence of the statutes of limitation, we cannot perceive that such decision would have been erroneous, it does not appear that the judgment as rendered could not have been given without deciding the federal question, or that its decision was necessary to the determination of-the cause and that it was actually decided.

The writ of error must therefore be

Dismissed.