Barrow v. Shields

Buchanan, J. The present appeal is a consolidation of five distinct suits instituted by the same creditor, in May, 1855, against two distinct debtors, and the representatives of three other debtors, deceased, upon the following twelve distinct evidences of debt: 1.A note signed by William Bislcmd, matured in all March, 1843. 2.A note signed by William Bisland, matured in all March, 1844. 3.A note signed by Richard G. Ellis, and endorsed by William Bislcmd, matured in all March, 1843. 4.A note signed by Richard G. Ellis, and endorsed by WiVAcmrc Bislcmd, matured in all March, 1844. 5.A note signed by George 8. Guión, and endorsed by Ycm, P. Winder, matured in all March, 1843. [58] 6. A note signed by George S. Guión, and endorsed by Van P. Winder, matured in all March, 3844. 7. A note signed by Van P. Winder, and endorsed by George 8. Guión, matured in all March, 1843. 8. A note signed by Van P. Winder, and endorsed by George 8. Guión, matured in all March, 1844. 9. A note signed by William B. Shields, matured in all March, 1843. 10. A note signed by William B. Shields, matured in all March, 1844. 11. Anote endorsed by Willimn B. Shields, matured in all March, 1843. 12. A note endorsed by William B. Shields, matured in all March, 1844. The defendants plead the prescription of five years; but it is argued by plaintiff that proscription was interrupted as to all the defendants, and all the obligations above detailed, by a suit instituted by him in the Circuit Court of the United States for the Eastern District of Louisiana, on the 19th of December, 1842, and finally decided, on appeal, in the Supreme Court of the United States, 'at the December term of 1854, reported in 17th Howard, page 130. Before examining the facts in relation to this interruption of prescription, it is proper to ascertain the principles of the law of Louisiana on the subject of the interruption of the prescription, operating a release from debt. By Article 3516, taken in connection with Article 3484, it will be seen that prescription is interrupted by a citation to the debtor to appear before a court of justice, upon the demand of the creditor for a judgment for his debt. And it is immaterial, for the purpose of the interruption of prescription, whether the debtor be cited before a court of competent jurisdiction or not. Neither does any error in the form of the action, nor the rejection of the creditor’s demand by the final judgment thereupon, have the effect of avoiding the interruption of the prescription resulting from the citation; for those clauses of the 2247th Article of the Code Napoleon which declare that the interruption of prescription is considered as 11 non amenue ” if the suit be informal, or if the demand be rejected, have not been copied into our Code. The only portion of that Article adopted by our Legislature is the clause “si le demandeur se désiste de sa demande.” See Louisiana Code, Article 3485. Again, it is clear that prescription cannot be interrupted, until it has begun to run. If, however, a* suit bo instituted upon a note before it is due, and pending the suit the note matures and is protested for non payment, prescription of that note is interrupted so long as the suit lasts, after maturity, even if the suit be ultimately dismissed upon an exception of prematurity. The rule is “ aeUones gum tempore pereunt, semel inclusa judieio, salvce perma/nenl." Marcadé, Prescription, .Art. 2248. Keeping these principles in view, we find that prescription is not interrupted as to any of the debts or any of the debtors included in the present consolidated action, by the original bill in Chancery filed by plaintiff on the 19th of December, 1842. Of all the present defendants, only one, William Bisland, was party defendant to that bill, and the prayer of that bill was not for judgment upon any of the notes included in this action. On the contrary, the prayer was for the annulling and avoidance of the 'contract which was the consideration of all these notes; which contract was set forth in detail in the bill. On the 10th of Eebi’uary, 1844, plaintiff amended his bill in Chancery, with leave of the court, by discontinuing and abandoning his original demand in [59] nullity and rescission of the contract of the 9th Noyember, 1842, and praying' for the specific performance of the said contract, and that William Bislcmd might be decreed to pay plaintiff the amount of such of the notes signed and endorsed by said Bisland under the said contract (being the notes aboye described as Nos. 1, 2, 3 and 4), as may have been protested, and the protest notified to said Bisland, before the final decree in the suit. It will bo remarked, that when this amended bill was filed, two of Bisland's notes (Nos. 1 and 3) were past due, and two (Nos. 2 and 4) were not yet due. This amended bill of plaintiff was unquestionably an abandonment of his original demand, and a substitution in its place of an entirely new and directly opposite demand. As such it was held to be irregular and inadmissible by the Supreme Court of the United States in its reasons for judgment upon the appeal in that case. See 17th Howard, pp. 143 and 144. But it is not on that account the less effective under our law, for interrupting prescription, so far as concerns William Bislcmd, the only one of the present defondants against whom judgment is prayed for the amount of his notes and endorsements in the amended bill in question. Although informal, this amended bill interrupted prescription upon those notes, as to Bisland. It must be observed that the amended bill in question was served upon Bisland who appeared and moved to quash the same. The next phase in this Chancery suit is a bill filed by the defendants in that suit, William Bisland and Viatoire Shields, on the 8th of July, 1844, praying that the agreement or contract of the 9th of November, 1842, above referred to, might be specifically performed, and that plaintiff might be decreed to deliver up to be cancelled and annulled, all the promissory notes of Thomas R. Shields, on which said William Bisland and Viatoire Sields were endorsers; and that said William Bisland and Viatoire Shields might recover such damages from the plaintiff for his non-execution of the contract of the 9th of November, 1842, as should be proven. And the bill further prays for writs of sitbpama to Richwrcl G. Bilis, Wm. B. Shields, Thomas R. Shields, George S. Guión, and Robert R. Barrow, commanding them, to appear and answer the premises and abide the judgment of the court upon said bill; which subpcenas were issued accordingly, and the parties named made appearance. This bill cannot be considered as an interruption of prescription upon the notes now in suit in favor of plaintiff. In the first place, the parties Bisland and Mrs. Shields, who file the bill, claim no judgment of Wm. B. Shields, Winder, Bilis or Guión, upon the notes signed or endorsed by them ; and as for R. R. Bacrrow, the holder of those notes, and the present plaintiff, he was so far from claiming anything in that bill, that he is actually sued therein for damages. See 17th Howard, 145,146. Afterwards, on the 5th of March, 1847, plaintiff, with leave of court, filed another amended bill, in which he set forth that William B. Shields was a citizen of Mississippi, and prayed that he might be cited and condemned to pay him the notes in principal and interest which are endorsed by said William B. Shields, (being the notes above described as Nos. 11 and 12). To this amended bill, William B. Shields appeared and answered. Prescription is therefore interrupted as to the defendant, William B. Shields, upon the two notes endorsed by him and matured in March, 1843, and March, 1844. Upon the other ground of defence pleaded by the defendants in these consolidated suits, namely, that the release by plaintiff of his mortgage on certain of [60] the slaves sold by him to Thomas R. Shields, had the legal effect of discharging the other parties to the contract of the 9th of November, 1842, from their obligations under that contract, it has been fully examined by the Chief Justice, With whose opinion upon that point the court unanimously concurs. A difference of opinion upon the effect of the plea of prescription, as to the defendants, William B. Shields, Van P. Winder, and George S. Guión, has thrown upon me the duty of pronouncing the judgment of the court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court in the case of Robert B. Barrow v. William B. Shields, be reversed, and that Bobert B. Barrow recover of William B. Shields four thousand seven hundred and sixty-six dollars and sixty- six cents, with interest at the rate of ten per cent, per annum on $2,383 33 from the 3d of April, 1843, and on $2,383 33 from the 3d of April, 1844, and costs of the suit of R. R. Barrow v. William B. Shields in the District Court, the costs of appeal in said suit to be" paid by if. B. Barrow. And it is further adjudged and decreed, that the judgment of the District Court in the case of R. R. Barrow v. Van P. Winder be reversed, and that there be judgment against R. R. Barrow and in favor of the widow and heirs of Van P. Winder, made parties defendant therein, with costs of said suit in both courts. And it is further adjudged and decreed, that the judgment of the District Court in the suit of R. R. Barrow v. W. A. and J. R. Bisland, be affirmed, with costs. And it is further adjudged and decreed, that the judgment of the District Court in the suit of B. if. Ba/i'row v. B. E. Butler, testamentary executor of Bichard G. Ellis, be reversed, and that there be judgment in said suit in favor of defendant and against the plaintiff, with costs in both courts. And it is further adjudged and decreed, that the judgment of the District Court in the case of R. R. Barrow v. George S. Guion, be reversed, and that there be judgment in said suit in favor oí defendant, and against plaintiff, with costs in both courts. Mr. Justice Cole took no part in this decision.