Hickman v. Stafford

The judgment of the court was pronounced by King, J. The defendants are sued as the endorsers of a promissory note, and plead the prescription of five years in defence. A judgment was rendered against them in the court below', from which they have appealed. The note upon which the action is founded matured on the 4th of January, 1838, and citations were served on the defendants on the 22d and 24th of April, 1844, more than six years after the note fell due. The prescription had therefore become complete before the inception of this suit, unless interrupted. To show such interruption the plaintiffs rely on an acknowledgment of the maker, resulting from a payment made, as they contend, within less than five years previous to the services of citation. If it be conceded that the pay'ment was made as contended for, its effect was not to interrupt the prescription as relates to the defendants. The obligations of the maker and endorsers grow out of separate and distinct contracts. There is no privity between the parties, and no such community of interest as confers upon one of them the authority to make acknowledgments binding upon the others. In the case of Jacobs v. Williams, 12 Rob. p. 183, it was held that prescription as to the endorser was not interrupted by acknowledgments of the maker. We recognised the correctness of this principle in the case of McCalop v. Newcomb, ante p. 332; and, after a careful reconsideration of the question, upon the further arguments and authorities adduced in the present case, we are satisfied with the conclusion at w'hich we then arrived. 6 Toullier, no. 723. Angell on Limitations, p. 277. The judgment of the District Court is therefore reversed, and a judgment rendered in favor of the defendants; the appellees paying the costs of both courts.