Argument for Defendant in Error.

The seventh assignment of error relates to the local law of Louisiana relating to prescription, and to the effect of the payments on the notes.

There was a debt due the defendant in error by Wm. Henderson, Jno. G. Gaines and S. Z. Relf. All three were bound to her. The two last subsequently formed a partnership, and by agreement with the first named (Henderson) assumed the obligation in the new partnership name of Gaines & Relf. These two thereby became bound to Henderson to see this debt paid to Mrs. Wadsworth. But as to defendant in error, by this assumption, there was neither the substitution of a new debtor for the old debtors, nor of a new debt for the old debt.

Had she expressly declared that, in accepting the assumption of the debt by the new firm she intended to discharge Henderson from all liability to her, she would simply have, through an act of grace, released one of three debtors without obtaining a new or substituted debtor in his place; for in such case only John G. Gaines and S. Z. Relf would have been her debtors, and they were already bound to her under the orignal contract.

"Novation is a contract, consisting of two stipulations, one to extinguish an existing obligation, the other to substitute a new one in its place." Code, 2185 (2181). "Novation takes place in three ways: 2d. When a new debtor is substituted to the old one." Code, 2189 (2185). "The pre-existent obligation must be extinguished, otherwise there is no novation. If it be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no novation." Code, 2187 (2183). Baker v. Frellsen, 32 La. Ann. 822, 826. "Novation is not presumed. The intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt." Code, 2190 (2186); 13 La. Ann. 238. The obligation by which a debtor gives to the creditor another debtor, who obliges himself toward such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation. Code, 2192 (2187).

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Opinion of the Court.

Choppin v. Gobbold, 13 La. Ann. 238; Jackson v. Williams, 11 La. Ann. 93; Jacobs v. Calderwood, 4 La. Ann. 509.

Hence, no novation having taken place, the heirs of Henderson, by the fact alone of the simple acceptance of the succession, contracted the obligation to discharge all the debts of Wm. Henderson, including the note sued on, no matter what their amount and though they far exceed the effects composing it. And they became thereby bound to pay the note in suit out of their own property, as if they had themselves signed the note at the time of its execution, or as if they were Henderson himself. The heir represents the person of the deceased; he is of full right in his place, as well for his rights as his obligations. The liability was in solido with the other parties bound in solido with the ancestor Henderson; but they did not become debtors in solido with each other. It follows, as "a suit in Louisiana against one of the debtors in solido interrupts prescription with regard to all," that if the prescription was interrupted by citation on Gaines, or by citation on Relf, or by an acknowledgment of the debt by Gaines or by Relf, it was interrupted as to all the obligors in solido. There is nothing in the position taken on the other side that the firm of Gaines & Relf was a legal entity distinct from the individuals composing it, and that payments made by this firm, a third person, would not interrupt prescription. Cuculler v. Hernandez, 103 U. S. 105.

The counsel also argued the question of jurisdiction involved in the motions to dismiss those suits which did not involve an amount exceeding $5,000.

MR. JUSTICE WOODS delivered the opinion of the court. After stating the facts in the language above reported, he continued:

We think the motion to dismiss the writs of error must prevail.

The obligation upon which the suit against the heirs of William Henderson was founded was based, not on the note made by him, but upon the fact that they had, without inventory, taken possession of the property of the succession,

Opinion of the Court.

and had thereby subjected themselves each to pay his proportionate share of the debts of the succession.

This is evident from the following articles of the Revised Civil Code of Louisiana of 1870:

“ART. 1422. The personal action which the creditors of a succession can exercise against the heirs has for its basis the obligation which the heirs are under to discharge the debts of the deceased. This action is modified according as the deceased has left one or several heirs.

"ART. 1423. The heirs, by the fact alone of the simple acceptance of a succession left them, contract the obligation to discharge all the debts of such succession, to whatever sum they may amount, though they far exceed the value of the effects composing it. The only exception to this rule is when the heirs, before meddling with the succession, have caused a true and faithful inventory thereof to be made; . . . for in this case they are only bound for the debts to the value of the effects found in the succession."

"ART. 1425. But though the heirs and other universal successors who have not made an inventory as is before prescribed are bound for the payment of all the debts of the succession to which they are called, even when the debts exceed the value of the property left them, they are not bound in solido, and one for the other, for the payment of the debts."

"ART. 1427. If, on the contrary, the deceased has left two or more heirs, they are bound to contribute to the payment of those debts only in proportion to the part which each has in the succession. Thus the creditors of the succession must divide among the heirs the personal action which they have against them, and cannot sue one for the portion of the other, or one for the whole debt."

It is plain, from these provisions of the Civil Code, that the suit was brought to enforce against each of the plaintiffs in error a separate and distinct liability, which sprang from the acceptance of the succession of their ancestor, and that no joint. judgment could be rendered against them. The petition was framed on this theory, and separate judgments were accordingly rendered against each of the plaintiffs in error. The

Opinion of the Court.

note of Henderson & Gaines was introduced merely to prove the debt of the succession of Henderson.

The judgments against the four plaintiffs in error, whose writs of error we are asked to dismiss, are all less than the amount which authorizes a writ of error to this court. We have, therefore, no jurisdiction. For it is the settled rule that where a judgment or decree against a defendant, who pleads no counterclaim or set-off, and asks no affirmative relief, is brought by him to this court by writ of error or appeal, the amount in dispute on which the jurisdiction depends is the amount of the judgment or decree which is sought to be reversed. Gordon v. Ogden, 3 Pet. 33; Oliver v. Alexander, 6 Pet. 143; Knapp v. Banks, 2 How. 73; Rich v. Lambert, 12 How. 347; Walker v. United States, 4 Wall. 163; Merrill v. Petty, 16 Wall. 338; Troy v. Evans, 97 U. S. 1; Hilton v. Dickinson, 108 U. S. 165; Bradstreet Co. v. Higgins, 112 U. S. 227; First National Bank of Omaha v. Redick, 110 U. S. 224.

It is also settled that neither co-defendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction upon writ of error or appeal. Rich v. Lambert, ubi supra; Seaver v. Bigelows, 5 Wall. 208; Paving Co. v. Milford, 100 U. S. 147; Russell v. Stansell, 105 U. S. 303; Ex parte Baltimore & Ohio Railroad Co., 106 U. S. 5; Farmer's Loan & Trust Co. v. Waterman, 106 U. S. 265; Adams v. Crittenden, 106 U. S. 576; Hawley v. Fairbanks, 108 U. S. 543; New Jersey Zinc Co. v. Trotter, 108 U. S. 564; Tupper v. Wise, 110 U. S. 398; Fourth National Bank v. Stout, 113 U. S. 684. The cases cited are conclusive of the question of jurisdiction. The authorities, mentioned in the note,* on which the plaintiffs in error rely, were discussed by the Chief Justice in Ex parte Baltimore & Ohio Railroad Co., ubi supra, and were shown to have no application to cases like the present. The case of Davies v. Corbin, 112 U. S. 36, also cited for the plaintiffs in error, clearly belongs to the same class. The motions to dismiss for want of jurisdiction are, therefore, sustained.

*Shields v. Thomas, 17 How. 3; Market Company v. Hoffman, 101 U. S. 112; The Connemara, 103 U. S. 754; The Mamie, 105 U. S. 773.

Opinion of the Court.

It remains to consider, upon the merits, the writ of error of William H. Henderson, as executor of the last will of Eleanor Ann Henderson.

The plaintiff in error in this case relied for his defence upon Article 3540 of the Civil Code of Louisiana, which reads as follows: "Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from the day when the engagements were payable."

It was ruled by the Circuit Court that the prescription established by this article of the Code of Louisiana was by the law of Kentucky made the limitation in this case, and this was not disputed by counsel for the defendant in error. General Statutes of Kentucky, 1872, ch. 71, art. 4, § 19.

The suit against the executor of Mrs. Henderson was not brought until nearly fifteen years after the maturity of the note of Henderson & Gaines, and nearly twelve years after the death of William Henderson; the obligation on which the suit was based was, therefore, prescribed as against the executor of Mrs. Henderson's will, unless the prescription had been interrupted. But the defendant in error insisted, as already stated, that the prescription had been interrupted by acknowledgments of the debt made by the firm of Gaines & Relf, with which, as she claimed, William Henderson was bound in solido for the payment of the note of Henderson & Gaines. To prove these acknowledgments she introduced evidence tending to show payments made by Gaines & Relf, after the death of William Henderson, of interest on the note. The contention of the defendant in error was, that these acknowledgments were made competent to show an interruption of prescription, as against the present plaintiff in error, by article 3552 of the Civil Code of Louisiana, which provides as follows:

"A citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others, and even their heirs."

It is plain that, to make this article applicable to the case of