ON A RE-HEARING.
Merrick, O. J.The discussions which the re-hearing has given rise to in this case, have not occasioned any material change in my opinion.
I am still unable to see any safe ground upon which the succession of Ellis can be held responsible.
I can see nothing which in my opinion can be held to be equivalent to a citation or a demand injustice, until after prescription had been acquired.
It is said that the cross-bill filed by William Bisland and Victoria Shields, was a sufficient citation or “ demand in justice,” to interrupt the prescription as to ElUs, because William Bisland was the endorser of Ellis upon that series of notes, and, that, therefore, he was interested in bringing him into court, in order that judgment might be rendered against him as maker, if rendered against Bisland as endorser.
As Barrow did not undertake to make ETlis a party to his bill, and did not pray for a subpoena or judgment against him, the case as to Ellis’ Succession *68must rest upon the character of the cross hill alone. It must, therefore, be examined. What does it contain ? If it interrupts prescription, Bisland must have alleged that he was the agent of Ba/rrow, and that he demanded payment of the promissory notes in Barrow's name, or that Barrow had sued him as endorser, and he demanded judgment against ElUs, as his warrantor, in case he should be condemned. Because nothing short of this is a citation on account of the notes.
But on looking into the cross-bill, instead of finding such a demand, we only find that the contract of 1842 is recited at length, and a prayer for Us specific performance, and no demand in any shape for judgmentuponthe notes. The subpoena is not in the record, but it must have followed the cross bill as usual.
What is the meaning of the prayer for a specific performance is ascertained by the decree of the Supreme Court upon this very cross-bill. See 17 Howard, 146. Indeed, the complainants sufficiently explain themselves when they say, that they are ordered to bring in by their cross-bill, ElUs, Winder and Guión, with a view to the specific performance of the contract of 1842, and when, also, they pray that the notes given under the sale of 1836, on which they were endorsers, may be cancelled, and that they may recover damages against Ba/rrow for Ms non-execution of Ms contract. It is also known, that the cross-bill was filed to avoid the danger arising from the threat of the Circuit Court to allow Banrow to set up the sale of 1836.
In all this I do not discover any demand formed upon the promissory notes. There was no citation to Ellis, requiring him to pay them, and nothing that informed him that they were set up against him by any one. Moreover, such a demand in a cross-bill (in which Barrow himself was defendant) would have been most singular, as that court had no jurisdiction upon ordinary demands upon commercial paper, there being a remedy at law, and no pleadings between the several defendants to the cross-bill.
In my opinion it was by the answers of Winder and Guión to Barrow's bills and not to the cross-bill, which interrupted prescription as to them. As already remarked, neither Ba/rrow nor any one else on his behalf had as yet demanded judgment against them on account of the notes. But these defendants, in answering Barrow's original and amended bills, assumed that it was a demand, irregular it is true, but nevertheless a demand against them for the amount of the notes and in this sense they denied Barrow's right to recover against them upon the notes, and prayed that they might be declared extinguished. By the replication filed by Ban'row, the issue was formed which the parties and the Circuit Court understood as embracing Barrow's right to recover upon the notes, and the defendants’ defences against them.
But it is suggested, that this view substitutes the answer for that citation, and declares, what the law has not said, that an answer can interrupt prescription.
The reconvention which comes by way of answer, interrupts prescription without any citation. And I cannot see why the defendants in this irregular chancery suit, who chose to assume that the plaintiff had in said suit demanded payment of the notes when such demand was never in fact made as to all of the parties, should now, on account of the irregularity of such proceedings, deny the demand which they had undertaken to answer, and which they did answer when they prayed that the notes should be cancelled or, at least, com*69pensated by the fruits received from the plantation by Barrow. Although they never were actually cited on account of the notes, they admitted, by their defence, that they were cited equally with those defendants who were cited, and when the plaintiff filed his replication, the issue was formed which prevented the defendants who had so answered; from ever denying that they had been sued on account of the notes. What the parties and the court understood as embraced in the pleadings, is apparent from their management of the suit and the decree of the Circuit Court which affirmed the plaintiffs’ right to recover. And if there is nothing else in the record equivalent to a citation, the answers of these defendants virtually admit that a judicial demand was made of them for the payment of the notes, and from that time forth they are es-topped from asserting that they had not been cited.
But it is further urged, that Ellis’ plea was overruled, and that he was ordered to answer over to Barrow's bill, and, therefore, he was constructively in court as well as his succession from the.date of the overruling of his plea.
Whether such is the effect of a proceeding in chancery after the death of parties, it is not necessary to inquire; for it is clear, that the cross-bill was not Barroio’s bill, and no issue could bo formed on Baorow's bill until the parties were forced to answer by the machinery of the cross-bill.
The Circuit Court, in this curious proceeding, know that it could not compel Ellis, Winder and Guión, to answer Ba/rrow's bill, because they were, with him, residents of Louisiana. But it supposed that, by compelling Bisland and Mrs. Shields to file a cross-bill against them, it would then have jurisdiction over their persons in virtue of the cross-bill and could thus force them to answer Ban'row's bill for a specific performance. When, therefore, the plea of these defendants was overruled, the court decided one branch of a controversy between the parties to the cross-bill, and not a contest between themselves and Borrow. That issue could only bo formed when the court had exerted its power at the instance of William Bisland and W. Shields, to compel them to answer Bai'row's bill.
Ellis having died, his representative was not forced to answer, and did not answer Barrow’s bill until 1852, after prescription had extinguished the liability of Ellis' succession upon the notes.
But it is further objected, that Bisland is the accommodation endorser of Ellis and, therefore, the citation on him must interrupt prescription, because when Bisland pays the judgment, he will have his recourse over against Ellis' estate. Whether such will be the effect of payment or not, we are not called upon to decide. The question here is between Ellis' suecession and the plaintiff. On this point, the authorities leave no room to doubt that the citation against the endorser does not interrupt prescription as to the maker. 12 Rob. 185, Jacobs v. Williams; 2 An. 332, Jacobs v. Newcomb; Ibid 792, Hickman v. Stewart.
We all concur that the judgment heretofore pronounced by this court in the case of Robert R. Barrow v. W. A. & J. R. Bisland, remain undisturbed.
I concur with Justice Voorhies and Buchanan, that the decision heretofore pronounced by this court in the case of Robert R. Barrow v. Richard E. Butler, executor of R. G. Ellis, remain undisturbed. And I concur with Justices Spoeeord and Cole, that in the other three cases of this plaintiff against W. B. Shields, Van P. Winder and George S. Guión, that judgment of this court ought to be set aside, and the judgments of the lower court affirmed.
*70It is, therefore, ordered, adjudged and decreed by the court, that the judg' ment heretofore pronounced in said case of Robert R. Barrow v. W. A. & J. R. Bisland, and the judgment in the case of R. R. Barrow v. Richard E. Butler, executor of R. G. Ellis, heretofore pronounced by this court, remain urn disturbed; and that the judgments pronounced by this court in the cases oi Robert R. Barrow v. William B. Shields, Robert R. Barrow v. Van P. Winder, and Robert R. Barrow v. George S. Guion, be set aside and annulled. And it is now ordered, adjudged and decreed, that the judgments of the lower court in said cases, viz : Robert R. Barrow v. William B. Shields, Robert R. Barrow v. Van P. Winder, Robert R. Barrow v. W. A. & J. R. Bisland, and Robert R. Barrow v. George S. Guion, be affirmed, and that the defendants pay the costs of both courts,
Messrs. Justices VoonniES and Buchanan adhered to their former opinions pronounced in this case. Spofeobd, J.In the opinion heretofore pronounced in this cause by a majority of the court, it was stated that prescription was 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 as in the chancery proceedings, the creditor, Barrow, had not demanded a citation and judgment against Van P. Winder, R. G. Ellis and George S. Guión, nor prayed expressly for a judgment against W. B. Shields, upon the notes subscribed by him, prescription was held not to have been interrupted as to those parties.
In this, I have been satisfied by further examination, that too much prominence was given by a majority of the court to the fact, that Barrow himself did not directly cause tho parties above named to be summoned to take part in the litigation commenced by him in the federal courts and prosecuted so long, so irregularly, and so fruitlessly.
The Code puts stress upon the citation of the party, not upon the manner of the citation or the person at whose instance it may be ordered. “ A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the properly or of the possession ; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.” It would seem that the interruption takes place whenever the debtor is brought into court, no matter how irregularly or improperly, to answer on account of the debt, in a suit to which the creditor is also a party. Under a similar textual provision, it has been held in France, that the appearance of a warrantor in a cause cited only at the instance of the defendant, if he sets up a defence to the plaintiffs demand, will interrupt the prescription pleadable by the warrantor against the plaintiff. Dalloz, 32, 1, 164.
Upon the same principle it would seem that, when parties are called in by defendants with whom they are equally interested to defeat the plaintiff’s demand, and when they actually do contest his demand, prescription must be interrupted as between them and the plaintiff.
Van P. Winder, George S. Guión and William B. Shields, subpoenaed at the instance of the original defendants with whom they were equally interested to defeat the plaintiff, did, by their answers in the chancery suit, put at issue Barrow's right to recover an account of the notes now sued upon, and before prescription had accrued. It was thereby interrupted as to those parties with regard to all their liabilities upon the notes in question.
*71The case of R. G. Ellis differs only in the fact, that neither he nor his representatives answered to the merits of Barrow's hills, until after prescription had accrued. But Bisland, who prayed for a subpoena to bring him into court, that the contract with Barrow to which they were both parties, might be specifically executed, was the endorser of the notes given by Ellis. He had a direct interest, therefore, in bringing him before the court, that judgment might be given against the maker, if ho himself were liable as endorser. Ellis appeared and pleaded that that he was not hound to answer Barrow's bill of complaint; this was on the 8th of December, 1844. The plea was overruled, Ellis died, and his representatives were made parties, and answered to the merits in 1852. As they were constructively in court all this time upon a citation calling upon them to answer Barrow's hills, I think it must be held that prescription was interrupted as to them, unless it is the answer and not the citation which interrupts prescription.
Upon this point the Code is positive ; and the claims of Barrow, to which Ellis was cited to answer at the instance of a party in interest, involved an assertion of Ellis' liability upon the notes now in question, by necessary inference. And, under the prayer for general relief, the Circuit Court actually gave judgment in favor of Barrow against Ellis' representatives for the sums now claimed. Uno demam.de implícito est interruptíve de la prescription, atissi bien qu'une demande expresse. Sirey 6, 2, 696.
All the parties to the extraordinary litigation in the Circuit Court, evidently thought that the liability of each of the defendants in this suit upon the notes was there at issue. I, therefore, think our judgment heretofore rendered, should he set aside, and the judgment of the District Court in all these cases, be affirmed with costs.