copy of the certificate on which the motion depends or with an agreed statement of what it contains. In fact, there is nothing on which we can act unless we go to the transcript. The further consideration of the motion is consequently postponed until the case is for hearing on its merits.

(115 U. S. 264)

HENDERSON, Executor, etc., v. WADSWORTH. (Four Cases.)1
MCCARTHY and another v. SAME.

Filed November 2, 1885.

1. ERROR-JURISDICTION - AMOUNT IN DISPUTE-ACTION AGAINST HEIRS TO ENFORCE PAYMENT OF ANCESTOR'S NOTE-CIVIL CODE LA.

Where suit is brought against heirs to enforce their liability for the payment of a note on which their ancestor was bound, and they plead neither counter-claim nor set-off, and ask no affirmative relief, and separate judgments are rendered against each for his proportionate share, this court has jurisdiction in error only over those judgments which exceed $5,000.

2. PARTNERSHIP-LIABILITY OF WIDOW OF PARTNER FOR PAYMENT OF FIRM NOTECIVIL CODE LA.

Under the Civil Code of Louisiana, a widow, even where she has accepted the succession of her husband without benefit of inventory, is not liable in solido with the surviving partners for the payment of a note made by the firm of which her husband was a member; and payments made on the note by the surviving partners cannot be given in evidence to show interruption of prescription running in her favor.

In Error to the Circuit Court of the United States for the District of Kentucky.

Mrs. H. Estelle Wadsworth, the defendant in error in these cases, was the plaintiff in the circuit court, where she brought a joint action at law against the several plaintiffs in error and John G. Gaines and Stephen Z. Relf. The facts shown by the record were as follows:

On and long before the eighth day of November, 1860, William Henderson and the defendants John G. Gaines and Stephen Z. Relf were engaged in business as commercial partners in the city of New Orleans under the name of Henderson & Gaines, and on the day above mentioned, for the consideration of $30,450, money lent to them by the plaintiff, they made and delivered to her their note, of which the following is a copy:

*"NEW ORLEANS, November 8, 1860.

"$30,450. On or before the fifth of May, 1867, we promise to pay, for value received, to the order of Mrs. H. Estelle Wadsworth, fifteen thousand dollars, and the further sum of fifteen thousand four hundred and fifty dollars on or before the twentieth day of the same month and year, (together thirty thousand four hundred and fifty dollars,) with interest at the rate of eight per cent. per annum, the interest to be paid semi-annually on the fifteenth day of May and November of each year.

"HENDERSON & GAINES."

On July 1, 1866, the firm of Henderson & Gaines was dissolved, Henderson retiring, and was succeeded by the firm of Gaines & Relf, composed of the other two members of the dissolved firm. The new firm, Gaines & Relf, bought all the personal property and assets of the old firm, assumed all its liabilities, including the note above mentioned, and agreed to exonerate Hender.

son.

The firm of Henderson & Gaines, while it continued, paid the interest as it fell due on the note above mentioned up to May 15, 1867, and Gaines & Relf thereafter up to May, 1877. William Henderson died on May 1, 1870, in the

18. C. 16 Fed. Rep. 447.

city of New Orleans, where he had been domiciled since the year 1860 and before. He left as his widow Eleanor Ann Henderson, and as his sole heirs at law the defendants William H. Henderson, Howard L. Henderson, Warren N. Henderson, and Victorine S. Henderson, the latter of whom had intermarried with the defendant M. C. McCarthy, all of full age, and all domiciled in the city of New Orleans. The widow and children subsequently removed to the state of Kentucky, where, on July 27, 1880, the widow died. Her son William H. Henderson was qualified as executor of her last will and testament. In June, 1877, the firm of Gaines & Relf was adjudicated bankrupt. On April 10, 1882, the present suit was brought by Mrs. H. Estelle Wadsworth, the payee on the note of Henderson & Gaines, against William H. Henderson individually and as the executor of the last will of the widow, Eleanor Ann Henderson, and against the other persons above mentioned, as the heirs of William Henderson, and against John G. Gaines and Stephen Z. Relf. M. C. McCarthy was joined as a defendant with his wife, Victorine S. McCarthy. The petition alleged that the widow and heirs of William Henderson had accepted his succession purely and simply, without the benefit of inventory, and had taken, and upon their own petition had been put in, possession of his estate, the said Eleanor Ann, as widow, in community of onehalf, and the heirs of the other undivided half of the community property subject to the usufruct of the same in favor of their mother, the said Eleanor Ann Henderson, whereby the said widow and heirs became personally liable for the payment of all the debts of said William Henderson, deceased, including the debt sued on, in the following proportions: the widow, Eleanor Ann Henderson, for one-half, and each of the above-mentioned heirs for one-fourth. The petition therefore prayed for judgment against Gaines and Relf for the whole amount due on the note; for judgment against William H. Henderson, as executor of Eleanor Ann Henderson, for one-half; and for judgment against each of the heirs of William Henderson for one-fourth of said amount.

2

The defendants, except Gaines and Relf, who never appeared or made any defense, filed a joint and several answer to the petition, in which they denied that they had accepted the succession of William Henderson purely and simply, without benefit of inventory; but as this issue was specially found against them by the verdict of the jury, it must be taken as a fact in the case that they did so accept the succession. They also, by way of defense, made the following averments: "(3) And for further answer these defendants say the pretended note sued on herein was made, and on its face made payable, in New Orleans and state of Louisiana, and by its terms matured and fell due not later than the eighth and twenty-third days of May, A. D. 1867, while said William Henderson and John G. Gaines and Stephen Z. Relf resided in said, city and state, and plaintiff's supposed cause of action, in her petition set out, accrued to her and against said William Henderson in*the said state, and not elsewhere, but did not accrue within five years next before the bringing of this suit, during all which time, as was and is well known to plaintiff, all these defendants and said Eleanor Henderson resided in said city of New Orleans and state of Louisiana, and by the law of said state, in force at the date of said pretended note and continuously since, and now in force therein, said pretended note was and is prescribed in five years next after the date of the maturity thereof, as aforesaid; and being so prescribed, no action thereon can be maintained in Kentucky under her laws. Wherefore these defendants plead and rely on the lapse of time and statute of limitation in bar of plaintiff's right of recovery herein against them."

The plaintiff replied to this defense that the prescription and limitation so pleaded in bar had been interrupted and prevented from running against her right of recovery, in each and every year from the maturity of said note up to the time of bringing the action, by frequent acknowledgments of said debt by the firm of Henderson & Gaines and its members, and by the firm of

275

*268

Gaines & Relf, and by defendants Gaines and Relf, debtors bound in solido with William Henderson for the payment of said debt.

The defendants rejoined, taking issue on the replication of the plaintiff. Upon the trial of the cause, the court, against the objection of the defendants, admitted evidence tending to show payments made upon the note by the firm of Gaines & Relf after the death of William Henderson, and by the assignee of Gaines & Relf after their bankruptcy; the purpose of such evidence being to show interruption of the prescription set up by the defendants against a recovery on the note. When the testimony was closed, the defendants moved the court to charge the jury as follows: "That any payments made on the paper sued on herein by the firm of Gaines & Relf, or the assignee or liquidator of said firm, after William Henderson's death, did not interrupt prescription as to said Henderson, nor would any acknowledgment of said paper by said firm after said Henderson's death have that effect;" but* the court overruled the motion, and refused to charge the jury as prayed for by the defendants; to which ruling of the court the defendants, and each of them, then excepted. The jury returned a verdict in favor of the plaintiff, and assessed separate and distinct damages against each of the defendants; and upon this verdict the court rendered separate judgments in favor of the plaintiff against William H. Henderson, as executor of Eleanor Ann Henderson, for $17,172.25, and against William H. Henderson individually, Howard L. Henderson, and Warren N. Henderson, each for $4,293.18; and against Victorine S. McCarthy and M. C. McCarthy, her husband, for a like sum. The parties defendant to these judgments prosecuted separate writs of error to each judgment, and each gave a separate bond to prosecute the writ of error to effect and answer all damages and costs on failure to make good the plea. But one record was brought to this court, to which all the writs of error had reference. In each of the cases, except the one in which William H. Henderson, executor, was plaintiff in error, the defendant in error filed a motion to dismiss the writ of error "for want of jurisdiction, because the amount in dispute did not exceed five thousand dollars, and was not sufficient to sustain a writ of error."

Walter Evans and Thomas L. Bayne, for plaintiffs in error. A. E. Wilson, Julius Aroni, Charles B. Wilby, and G. H. Wald, for defendant in error. WOODS, J. * 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, 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 bound only 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. Then 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 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 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. U. S., 4 Wall. 163; Merrill v. Petty, 16 Wall. 338; Troy v. Evans, 97 U. S. 1; Hilton v. Dickinson, 108 U. S. 165; S. C. 2 Sup. Ct. Rep. 424; Bradstreet Co. v. Higgins, 112 U. S. 227; S. C. 5 Sup. Ct. Rep. 880; First Nat. Bank of Omaha v. Redick, 110 U. S. 224; S. C. 3 Sup. Ct. Rep. 640.

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. Mulford, 100 U. S. 147; Russell v. Stansell, 105 U. S. 303; Ex parte Baltimore & 0. R. Co., 106 U. S. 5; S. C. 1 Sup. Ct. Rep. 35; Farmers' Loan & Trust Co. v. Waterman, 106 U. S. 265; S. C. 1 Sup. Ct. Rep. 131; Adams v. Crittenden, 106 U. S. 577; S. C. 1 Sup. Ct. Rep. 92; Hawley v. Fairbanks, 108 U. S. 543; S. C. 2 Sup. Ct. Rep. 846; New Jersey Zinc Co. v. Trotter, 108 U. S. 564; S. C. 2 Sup. Ct. Rep. 875; Tupper v. Wise, 110 U. S. 398; S. C. 4 Sup. Ct. Rep. 26; Fourth Nat. Bank v. Stout, 113 U.S. 684; S. C. 5 Sup. Ct. Rep. 695. The cases cited are conclusive of the question of jurisdiction. The authorities mentioned in the note,1 on which the plaintiffs in error rely, were discussed by the chief justice in Ex parte Baltimore & O. R. 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, S. C. 5 Sup. Ct. Rep. 696, also cited for the plaintiffs in error, clearly belongs to the same class. The motions to dismiss for want of jurisdiction are therefore sustained.

*

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 defense 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,

1 Shields v. Thomas, 17 How. 3; Market Co. v. Hoffman, 101 U. S. 112; The Conne mara, 103 U. S. 754; The Mamie, 105 U. S. 773.

and this was not disputed by counsel for the defendant in error. Gen. St. Ky. 1872, c. 71, art. 4, § 19. The suit against the executor of Mrs. Henderson was not brought until nearly 15 years after the maturity of the note of Henderson & Gaines, and nearly 12 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 the plaintiff in error, it must be shown that Mrs. Henderson, his testatrix, was bound in solido with Gaines & Relf to pay the debt evidenced by the note of Henderson & Gaines, or that she was the heir of her husband, William Henderson, who, at the time of his death, was bound in solido with Gaines and Relf, lately his partners. Counsel for the defendant in error concede, as well they may, that Mrs. Henderson did not become bound for the debt as the heir of her husband, William Henderson. Her liability was that of widow, in community, and it was so averred in the petition filed in this case in the circuit court. The only question for decision is, therefore, was Mrs. Henderson, as the widow of William Henderson, bound in solido with Gaines & Relf, by whom the alleged acknowledgments were made, for the payment of the note of Henderson & Gaines? This question must be settled by the law of Louisiana. If it shall turn out that Mrs. Henderson was not bound in solido with Gaines & Relf, then the prescription as to her was not interrupted by any acknowledgments made by Gaines & Relf, and such acknowledgments were improperly admitted in evidence against her. The articles of the Code bearing upon this question are as follows:

"Art. 2093. An obligation in solido is not presumed; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right, by virtue of some provision of law.”

Such a provision is found in article 2872, which declares that "commercial partners are bound in solido for the debts of the partnership."

"Art. 2082. When several persons obligate themselves to the obligee by the term in solido, or use any other expressions which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors."

"Art. 2091. There is an obligation in solido on the part of the debtors when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others towards the creditor.

"Art. 2092. The obligation may be in solido although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, while the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other."

These articles make it clear that it is an indispensable requisite to the obligation of debtors in solido that they should be bound to perform the same obligation and the whole of it. Applying this test, it is evident that Mrs.