dissenting. I am unable to concur in all the conclusions of my colleagues.
I adopt the statement of facts contained in the opinion of the Judge of the District Court in order to be better understood.
“ On the 27th July, 1836, Robert R. Barrow sold to Thomas if. Shields, a sugar and cotton plantation, both in the parish of Terrebonne, the former on Bayou Terrebonne, the latter on Baj'ou Caillou, with all the improvements, &c., &c., and seventy-five slaves. This sale was made for the sum of $227,000, for which Shields gave sixteen promissory notes, and accepted drafts payable at various dates : the notes were secured by mortgage on the property sold.
“ Immediately after the sale, Shields took possession of the property and paid some of the notes as they fell due, hut he was unable to pay a great part of them, and in 1842 there was still unpaid the sum of $119,906 36. The unpaid notes had been protested as they fell due, and suit had been brought on them against T. R. Shields and against Wm. Bisland, the last endorser on ail the notes.
In this state of things, Shields ahd his endorsers proposed to Barrow an amicable settlement of his entire claim. After some hesitation this proposition was accepted, and was fihally concluded by ah act "passed before Beufroy Barras, Parish Judge of the parish of Terrebonne, oil the 9th November, 1842, between B. B. Barrrnb of the first part, Thomas B. Shields of the seccnd part, and the six endorsers of Shields of the third part.
*61These were Mrs. Victoria Shields and Wm. Bisland, of Adams County, Miss., Wm. B. Shields, JR. G. Ellis and Van P. Winder, of Terrebonne, and Geo. S. Guión, of Lafourche Interior.
“ According to this act, Barrow agreed to release T. B. Shields and his six endorsers from all liability on their notes and to discontinue his suits against T. B. Shields and Bisland. Thos. B. Shields retroceded to Barrow the property purchased by the act of July 2'Tth, 1836, and the six endorsers gave .to Barrow their notes endorsed by each other, amounting to $82,000, to he delivered to Barrow when he gave up the unpaid notes, which had been given for the plantations, till then to remain in the hands of L. Barras, Parish Judge, &e.
“ After entering into this contract, Mr. Barrow alleged that the other parties had made misrepresentations to him to induce him to do so, and that they also complained of the contract; he therefore sent them a letter offering to rescind it, which they declined to do.
“ Alledging he was injured by the contract of 9th November, 1842, he filed a hill in equity in tho Circuit Court of the U. S. for the Eastern District of Louisiana, against Mrs. Victoria Shields and Wm. Bisland, the only parties to the act of 9th November, 1842, who were not citizens of Louisiana, praying for a rescission of the act upon a number of grounds .therein detailed at length.
“ This suit was afterwards converted into a suit for the specific performance of the contract of 9th November, 1842, and on the notes for $32,000, given in said contract. All the parties to which act were made parties to the action, and after lingering on a number of years was terminated in the lower court by a judgment rendered on the 13th December, 1852, condemning the defendants in the present suit to pay their notes under the act of 9th November, 3842, and also to do other acts to which they had obligated themselves in said contract of 9th November, 1842.
“ An appeal was taken, and the Supreme Court dismissed the case for want of jurisdiction. The plaintiff now brings these suits upon these notes, against those of their makers or endorsers, or their representatives, who reside in Louisiana.
“All the defendants are residents of the parish of Terrebonne, except Geo., S. Guión, who has consented however to be sued in that parish. It is also agreed that all the suits may he tried together, and that the property of the part of the endorsers who are dead, descended as set forth in the petition,
“ All the notes bore ten per cent, interest after maturity, and were payable at the Bank of Louisiana.”
The defendants in their answer set up (¡wo principal grounds of defence:
“1st. The notes signed and endorsed by the defendants in accordance with the terms-of the act of November 9th, 1842, were executed under the false and erroneous belief that they were still bound and liable for their original endorsements, when in fact'they were in no manner bound for their endorsements, their liabilities having been released by Barrow’s having released, without their knowledge or consent, certain of the mortgaged slaves from the mortgage given to secure the payment of said notes.”
“ 2d. They plead the prescription of five years. ”
The judgment of the lower court being adverse to tho defendants on both grounds, judgments were rendered against them and they have appealed.
*62I will consider these defences in their order.
I. The defendants roly in support of this first ground of defence, that ill April, 1837, Thomas JR. Shields sold two slaves, (runaways,) to Jacob Jacobs for $1050, and Barrow released his mortgage as to them: also, in February, 1840, Shields sold another of his slaves to Lydia WhitoJcerior $150, and Barrow in April following released his mortgage upon the last mentioned slave.
On this branch of the case the learned counsel for the defendants have contended, that the effect of these releases was to discharge the defendants, the endorsers, from the remaining notes of the sale of 1836, amounting' to, say $119,000 ; that being ignorant of their discharge, the contract of November 9th, 1842, was made in error, and void, and if the plaintiff would hold the defendants liable for the last mentioned notes the burden of proof is on him to show, and it must be shown that the endorsers were aware of their discharge at the time they entered into the contract of November 9th, 1842.
This contract was tripartite. Thomas JR. Shields was to reconvey the plantations and slaves to Barroio, Barrow was to surrender to Thomas JR. Shields all the notes then unpaid, release all parties therefrom and dismiss his suit against Thomas JR. Shields and William Bisland.
The defendants, the parties of the third part, obligated themselves to pay thirty-two thousand dollars, “ the consideration of the contract” secured by the notes now sued on.
It is evident that this was not a mere renewal for a former supposed obligation as in the case where an endorser promises to pay a note under the impression that it had been regularly protested, or where he has given a new promissory note for the same: for here on the part of the endorser his new obligation does not amount to one-third of the old.
Again, the maker of the old obligation is, by the agreement of the parties, discharged absolutely by the surrender of the property. The endorsers then assume his position and place, for the balance of Ms indebtedness after surrendering the property. If they are not bound, then the plaintiff loses thirty-two thousand dollars of his •claim, for, by the agreement, Thomas JR. Shields, (whose liability must on all sides be admitted,) was discharged, as just observed, from the remaining obligations which he had given as the price of the property.
The instrument of the 9th of November, 1842, must, therefore, be considered as a transaction, and subject to a rescission only for the same causes and inherent defects as other instruments of this kind. And so a part of these defendants considered it when they opposed Barrow's suit in chancery to set aside this agreement and reinstate the contract of 1836.
Have the defendants then established such facts as ought now to annul this contract which they were formerly so desirous of preserving in force ?
Transactions have, between the parties interested, a force equal to the authority of things adjudged. They cannot be attacked on account of error in law, or any lesion. C. C., 3045. They can only be rescinded where there is error in the person or the matter in dispute, where there is fraud or violence, or where made in the execution of a title which is null, unless the nullity be the subject of the compromise, or unless the compromise be made upon forged documents. C. C., 3046, 3048, 1822, 1825.
The only one of these grounds which can be seriously urged in this case, is that the compromise was made in the execution of a void title. Let us see *63to what extent the title was void. The title which was surrendered against Thomas R. Shields, as already observed, is admitted to have been valid. The use of that title as the consideration of the compromise, was not, for that reason, the execution of a void title.
But it is said that the release of the mortgage upon the three negroes specified, had the effect of discharging the endorser under Art. 3030 of the Civil Code, the creditor being unable to subrogate the endorsers to his mortgage, it being presumed that they would not have engaged themselves for their large amount, had they not thought they were bound as endorsers. A judicial construction has been put upon this Article of the Code, and it has been hold, that the partial release of any of the mortgages and privileges of the creditor releases the surety only pro tanto. This construction, whatever we might think were the question res nova must govern us, and be considered as the settled law. See cases, Saulet v. Trepagnier, 2 An. 429; Gosserand v. Lacour, 8 An. 75; and Provan v. Percy, 11 An. 179.
We must, therefore, conclude that the title, the subject of the compromise, was not void either as in regard to Thomas R. Shields or his endorsers. It is possible that the endorsers supposed themselves bound for $119,000, when they were only bound for $118,000, but this comparatively inconsiderable error in the amount of their indebtedness in the absence of all fraud, cannot invalidate a contract which our law declares shall have the force of a judgment. C. C. 1825, 3045. On this branch of the case, I think there is no difference of opinion among the members of the court.
II. Is the plea of prescription maintained ? More than five years elapsed between the maturity of the notes and the institution of the suit. Hence prescription has taken place unless interrupted. The plaintiff contends that certain proceedings in chancery had that effect, and I am of the same opinion, as to all of the defendants except one.
I attach no importance to the fact, that the proceedings were commenced before the maturity of the notes for the exception that the suit is premature, is only dilatory, and if waived by answer does not prevent a decision upon the merits. If the exception be not interposed the obligation becomes exigible, and the pendency of the suit must interrupt the prescription.
Neither is citation eo nomine essential to interrupt prescription. The Federal Court exercising chancery jurisdiction, commences its proceedings by a subpoena. We'must, where it has concurrent jurisdiction with our courts at least, consider the subpoena equivalent to a citation. Jackson v. Tiernan, 15 L. R. 485. So also where a citation is waived and the party voluntarily appears in court bjr answer or otherwise, the same effect must be given to the proceeding as would be given had the answer or plea been preceded by a citation. C. P. 177. A reconventional demand has the like effect, because no citation is required, the party being already in court. Driggs v. Morgan, 10 Rob. 119. Under the Roman law it was the contestatio litis which interrupted prescription. The joining of issue cannot have a less effect with us, for it either presupposes a citation or the waiver of citation. C. P. 359.
I will now consider the proceedings in the Circuit Court of the United States for the Eastern District of Louisiana, for it is only as to the effect of these proceedings with regard to a part of the defendants that there is a division of opinion among the members of the court.
In December, 1842, the plaintiff in this action, R. R. Barrow, filed his bill in *64chancery in the the Circuit Court of the United States, against Mrs. Vietoire Shields and William Bisland, alleging that Thomas B. Shields, Bichard G. Bilis, William B. Shields, George S. Guión and Van B. Winder, were citizens of Louisiana, and, therefore, could not be made parties to the bill, and praying that the contract of November 9, 1842, might be declared to have been improperly procured, and be annulled and set aside.
Mrs. Shields and William Bisland, by their answers, resist the demand of the plaintiff for a rescission of said contract, and aver it was entered into in good faith. Mrs. Shields denies that that there was “ anything in the conduct of said Thomas B. Shields, or that of any of the endorsers, to induce the complainant to believe any of them were preparing pretexts to justify their intended refusal of payment of their aforesaid notes, amounting to $32,000.”
Bisland averred that he and his coendorsers agreed to pay plaintiff $32,000-to induce him to take back the property; that he, Bislanid, although the last endorser, had consented to pay $10,000 as his portion of $32,000.
On the 4th day of March, 1848, William Bisland filed his cross-bill against Ban-row, setting up the contract of November 9th, 1842, and the promissory notes executed in pursuance of it, and praying a specific performance of said contract, and for an injunction against Barrow, restraining him from proceeding upon the suits in the First District Court and in the District Court of the parish of Terrebonne, and from commencing any other proceedings against him, said Bisland, on the notes under the contract of 1830. On the 18th of April, 1843, the six matured and protested notes were ordered, on the motion of Janin, of counsel for Barrow, to bo deposited in court by the notary having them in possession for the purpose of protest.
In 1844, (February 10) Ban-row filed his amended bill, and prayed that the promissory notes executed by the defendants under the Act of November 9, 1842, and deposited under that agreement with Bun-ras, the parish Judge, before whom the contract was passed, should be delivered to him, and prayed “ that the defendants may be decreed to pay to plaintiff the amount of such of the last mentioned notes as may have been drawn by them, and also such of said notes as may be endorsed by them, and which may be protested, and of the protest of which they may be notified before the final decree of this honorable court, the whole with interest from the day of protest.”
On the same day, Ban-row filed his answer to the cross-bill of Bislanid, in which the indebtedness of Bisland upon the protested notes is set up ; and it was further alleged, that on the 3d day of April he would be indebted on the notes which would then mature, in the further sum of $8,483 33, and costs of protest.
The prayer to this was, that the said contract of November 9, 1842, be specially performed according to the time, purport and tenor of said act, and he prays for such relief as'by the showing of his answer he is entitled, concluding with a prayer for general relief.
On the same day, the court ordered Brn-ras, the parish Judge, having the custody of the second series of notes, to deposit them with the Clerk of the Oircuit Court, to be by him deposited in bank for collection.
On the 24th day of April, 1844, the court ordered, that unless Mrs. Shields and William Bisland filed a cross-bill, setting up and praying an execution of said second contract, and make all the parties to said second contract defendants, that said Barrow should be at liberty to proceed upon his bill of com *65plaint for a specific performance of the original contract between the parties. The cross-bill was accordingly filed in July, 1844, wherein the said Mrs. Shields and Mr. Bisland made Richard G. ElUs, William B. Shields, Thomas R. Shields, George S. Guión, and Robert Barrow, defendants, praying for a specific performance of the contract of November 9, 1842, and for such damages for the non-execution thereof by Barrow, as shall be proven, and that all the promissory notes of Thomas R. Shields, upon which they were endorsers, be given up to be cancelled.
The defendants, Richard G. Ellis, Van P. Winder and George S. Guión, filed a plea to the cross-bill of Shields and Bisla/nd, in the nature of an exception to jurisdiction of the court, and also averring that no cause of action was alleged against them. Mrs. Shields and Bisland, at the same time demurred to the original bill.
The plea and demurrer were at the May term, 1845, overruled, and the parties making the same were directed to answer over. .
In pursuance of this order, Mrs. Shields and William Bisla/nd answered Borrow's original bill, and, among other things, averred: “ That no legal demand of payment could be made, and they deny that any legal protest for nonpayment or notice thereof was ever made, and they, therefore, say that they are fully discharged from all liability on account of said notes ; and they pray, if this court shall entertain jurisdiction of said complainant’s demand, it may order said notes, as well those signed as maker as those endorsed by your respondents, to be cancelled and given up to them.”
They further averred, that Barrow was responsible for the revenues of the plantation, and prayed, in the event their defences were held insufficient, “ that then the amount of revenues received by said complainant or the amount which he might, with proper management, have received, be imputed by this court to the payment and discharge of all you/' respondent's liabilities undes• said contract of November, 1842, and the notes given in pursuance thereof.”
Van P. Winder and George S. Guión appear, plead and answer the cross-bill of Mrs. Shields and William Bisland, and then they plead to the bill of complaint of Barroto, the want of jurisdiction, and in the event the court should be of the opinion that their pleas (to the cross-bill and original bill) ought not to be sustained; they set up, in substance, the same matters as a defence to the notes, as were set up by Mrs. Shields and William Bisland.
William B. Shields having, by his plea to the cross-bill of Mrs. Shields and Bisland, averred his residence to be in Mississippi, Barrow amended his bill in March, 1847, praying that ho be condemned to pay the notes endorsed by him and described in the bill of complaint, and also conclude by a prayer for general relief.
W. B. Shields thereupon answered the original and amended bills, and averred that he was discharged from the notes signed by him and those endorsed by him, by the release of the mortgage upon the slaves Prince and Joe, and the irregularity in the protest of the notes, &c.
Wiliam B. Shields further denied all liability on the four notes signed by him under the contract of 1842, on the further ground that they were delivered as escrows and were not to be delivered to complainant until he had first performed the stipulations on his part, and that he had neglected to perform the same. He further avers thatsaid notes have never been legally or properly pro" *66tested, and 11 as to the two upon which he is endorser, ho is wholly discharged for want of legal protest and notice,” and “as to those of which he is drawer, no legal demand was or could be made, because at the time they were presented and protested for non-payment, they were not the property of the Complainant nor had any person the right to demand or receive payment thereof.”
On the 3lst of January, 1852, Barrow filed his replication to the answers of William Bislamd, Mrs. Shields and W. B. Shields, and conditionally as to Guión, Winder and the executor and widow of Ellis.
Ellis, as has already been observed, pleaded to the jurisdiction of the court in reply to the cross-bills of Mrs. Shields and William Bistand. Of course, the cross-hill was no demand for the payment of the notes, and by that act, Ellis did not become a party to Bao'row's bill. It was not until January, 1852, that Richard E. Butler, testamentary executor, and the tutrix to the minor children, made their appearance and answered the original and cross-bills, setting up substantially the same defences as Winder and Guión had previously done.
By signing thojpromissory notes and delivering them to Barras, Ellis had complied with that'lpart of the contract and from that period until filing answer to. thej original and cross-hills, neither he nor his representatives appear to have done any act to prevent Barrow from receiving from Judge Barras the notes and enforcing them by suit.
A consideration of the facts here shown proves, that the contestatio litis was formed by all of the defendants, except Richm'd G. Ellis, within five years from the protest and'maturity of the notes given under the contract of Nov. 9th, 1842.
Upon the validity and obligatory force of said promissory notes, both as to the makers and endorser's, and their liability to pay the same, and upon a consideration of the issue thus formed, the Circuit Court rendered a decree in favor of Barrow for the amount of the notes, respectively against Victoria Shields, William B. Shields, Van P. Winder, George & Guión, William Bis-la/nd, and the executor,- widow and heirs of Richard G. Ellis, deceased. Code, Const. 1, Lib. 3, Tit. 9.
This decree of the Circuit Court was reversed by the Supreme Court of the United States in December, 1854, on the ground, that the defendants were not lawfully before the court, that the court never obtained jurisdiction over those of the parties who were citizens of Louisiana, and, that it did not have before it such parties as were indispensable for a specific performance of the contract of compromise, or the rescission thereof; and, lastly, that when the Circuit Court proceeded finally to make a decree condemning the defendants to pay the notes given under the compromise, it gave a relief for which there was a plain, adequate, and complete remedy at law.
Now, if the defendants had not prosecuted their appeal to the Supreme Court of the United States, and there caused the decree of the Circuit Court to be reversed, it would have had the force and effect of the thing adjudged, and would have been conclusive upon them as to their obligation to pay the notes. I am, therefore, inclined to think that the proceedings in the Circuit Court of the United States ought not to be treated as corram nonjudice with reference to the question of prescription, although it erroneously assumed jurisdiction over matters and persons not properly cognizable by that court.
*67The irregular manner in which the parties were brought into court cannot affect the case, for few defendants voluntarily appear in courts of justice.
The contestatio litis was formed, as I think_as to each defendant, either by an express claim in the bill on the part of the plaintiff upon the notes or an express denial upon the binding force of the notes and their liability thereon, by each of the defendants in the answer and a replication thereto hy the plaintiff, and in some of the cases there were both an affirmance by the one party and a denial by the other, followed by the replication, and this issue of fact thus formed was entertained by the Judge. Lis enim videtur cum judex per narrationem negotii causam audire coeperit.
This contestatio litis was formed, as already observed, as to each of the defendants within five years from the maturity of the notes, except as to B. G. Ellis. As to him, T do not think the proceedings can have the effect of interrupting prescription.
In 184J the court ordered the notes to be deposited in bank for collection, We see no reason why suit could not have been instituted upon the notes in the name of the bank, or any other receiver which the court might appoint. Perhaps also Barrow himself might have sued upon them as well then as now. At all events, neither Ellis nor his representatives appear to have done anything to prevent Barrow from suing upon the notes until they formed the contestatio litis by their answer in 1852. Up to this time they stood upon their rights as simple makers of the notes, In the meantime, the five years elapsed. i
The maxim: Gont/i'a non valentem agere non currit presm'iptAo does not apply to Barrow on his demand against ElUs. The latter did not stand in this respect in the same position as the other defendants, who, in their answers within the five years, contested the plaintiff’s right of recovery upon the notes sued upon, and the judgment as to B, E. Butler, executor, I think ought to be reversed.
I, therefore, concur in the decrees pronounced in the cases of R. R. Barrow v. R. E. Butler, executor, and same v. W. A. & J. R. Bisland, and dissent in the other consolidated cases.