
    Hickman et al., Executors, v. Stafford et al.
    Acknowledgment of the debt by the maker of a note, does not interrupt prescription as to the endorser. The maker and endorser of a note are not debtors in spit do.
    
    Appeal the District. Court of Rapides, Boyce, J.
    
      JE-lgé'e and Hyams, for the plaintiffs.
    The maker and endorser of a' note1 are bOundim solido. The case of Attain v. Longer, 4 La. 152, is opposed' to' the decision in Jacobs v. Williams, 12 Rob. 183. The first question to be answered is, what is an obligation in solido? Art. 2086 et seq.- of the Civil Code,' says: “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' creditors.” 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,' whilst the en-" gagement of the other is pure and simple, or if the one is allowed a term which-is not granted towards the other. See also Pothier, Oblig.- 262, 263,- 264.
    It is impossible to make language clearer than that of art. 2087 is, to render' the endorsers of negotiable paper debtors in solido. The endorser, to use the' language of the Code, is “ conditionally bound,” “ whilst the engagement of” the maker “is pure and simple;” so that the reasoning of tlite court, in Jacobs-v. Williams,- that endorsers are'not to be considered solidary debtors, because their contract is conditional, is answered by the plain and unambiguous language of the Code. We treat of the obligation here as it affects creditors, not of the effects Of it amongst the Co-debtors themselves.-
    Pothier, in his “ Contrat de Change,” invariably characterises the obligations-of all the parties to a bill or letter of exchange, or other negó!iablo paper, as-being insólido. Nos. 115, 180, 212, 160, and notes, p. 237. See also Code de Commerce, art. 140. “ Tous ceux qui oat signé, aceeplé, ou endossé une lettre de change, sont tenus t'i la garantía solidaire envers le portear.”
    Pardessus, Cours de Droit Commerciale, vol. 1, nos. 190', 191 and 192, commenting on this article, says that solidarity exists in all commercial contracts, without express mention, by agreement or law; and this, he says, would have existed even if art. 140, cited above, had not been enacted. TouJlier, 6 vol., no. 720, cites on this point, with favor, the authority of Pardessus. The authority of art. 2099 of the Civil Code, so much relied upon by the counsel in the erase of Jacobs v. Williams, is completely answered by art. 2102.
    
      Edelen, for the defendants,
    relied on Jacobs v. Williams, 12 Rob. 183.
   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.  