Opinion of the Court.

creditors) of the debts of the community which proceed from her act that is to say, those which she herself has contracted, whether before or after the marriage, and those of successions which have fallen to her." [Page 369.]

He then adds:

"Par. 732. When the wife, during the marriage, has not contracted alone, but jointly with her husband, without expression of solidarity, though the husband be regarded as bound for the whole, the wife is not considered as being bound for anything but the half, and is only debtor as regards the creditors for half. [Page 370.]

“Par. 733. In regard to all other debts of the community which the wife has not herself contracted, and for which she is only bound in her character of member of the community, the wife, after the dissolution of the community which she has accepted, is only debtor for a moiety as towards the creditors." [Ib.]

So, in his Coutumes D'Orléans, Introduction to Title 10, the same author says;

"Par. 136. The husband is held in solido towards the creditor, not only when he has contracted alone, but even when he has bound himself with his wife without expression of solidarity, although it would be otherwise if he had so bound himself with another person." [1 Ib. 253.]

"Par. 138. The wife is held in solido towards the creditors for debts of the community which proceed from her act, that is to say, for those which she has herself contracted before the marriage, and for those which grow out of successions which have fallen to her. She is also held in solido for debts contracted by her husband when she has bound herself in solido with him. If she has bound herself for his debts, without solidarity having been expressed, she is held even towards the creditor only for half." [Ib. 254.]

See also Touillier's Commentary on the Code Napoléon, t. 13, pp. 310, 313; Duranton, t. 6, 296, par. 197, t. X., French ed., and t. 8, 222, par. 491, t. XIV., French ed.; Zachariæ, t. 3, pp. 503, 504, sec. 520, art. 1, par. 2.

In accord with these views of the text-writers, the Supreme

Opinion of the Court.

Court of Louisiana, in the case of Saulet v. Trepagnier, 11 Rob. 266, said: "The obligation which the widow incurs by her acceptance of the community is an additional security for the creditors; but they have the right to look to the heirs and direct representatives of the husband for the whole debt, because it is with him they treated, and it is he whom they trusted. Ejus solius fidem secuti sunt, says Touillier, vol. 13, No. 233, 2 Pothier Traité de la Communauté, No. 719. But, although the creditors have this option, the widow who has accepted the conjugal partnership or community becomes absolutely and personally bound to them for one-half its debts."

In the present case the debt which is sought to be enforced against the estate of Mrs. Henderson is not one which she contracted herself before the marriage, nor did it grow out of suc cessions which had fallen to her, nor did she bind herself in solido therefor with her husband, nor did the husband in contracting the debt use any words which bound his wife solidarily with him, if in his power to do so. It is, therefore, clear, upon the authorities cited, that she was not bound in solido with her husband, during the community, or after its dissolution, with his succession, for the debt evidenced by the note of Henderson & Gaines. In fact, the petition filed in this case, and the judgments rendered by the Circuit Court, are based on this view. She was, therefore, not bound in solido with Gaines and Relf, the co-debtors of her husband. The payments made on the note by them after the death of her husband should not, therefore, have been admitted in evidence to interrupt the prescription of five years, which began to run in her favor upon his death.

The only authority not already noticed to which we have been referred by counsel for defendant in error, to show that Mrs. Henderson was bound in solido with Gaines and Relf for the debt of Henderson & Gaines, is the case of Edwards v. Ricks, 30 La. Ann. 924, 928. In explanation of this case it may be stated that in Louisiana the succession of a deceased wrongdoer is liable for the actual damage resulting from his torts. Art. 25, Code of Practice. The suit was brought by Edwards to recover damages for a trespass upon his property

Opinion of the Court.

and an assault on his family, committed by Ricks and one Vernado. Before suit brought Vernado had died, and the action was against Ricks and the widow and the two children and heirs of Vernado, who, it was alleged, had taken possession of his property without inventory, and were, therefore, liable for the obligations of the deceased trespasser. The judgment of the lower court was against Ricks for $5,000, and against the widow of Vernado for $2,500, and against his two heirs for $1,250 each, "the judgment," as the report states, "being in solido."

Upon appeal the Supreme Court of Louisiana decided that, while Ricks might be held for exemplary damages, the widow as well as the heirs of Vernado were liable only for the actual damages, and accordingly affirmed the judgment against Ricks for $5,000, which included exemplary damages, and rendered judgment for the actual damages "against the widow and heirs of Vernado in the sum of three hundred dollars (in solido with the judgment against Ricks); said three hundred dollars to be paid" one-half by the widow, and one-half by the two heirs jointly. In delivering its opinion the court said: "Ricks and the estate of Vernado, represented by the widow and heirs, are sued as co-trespassers and solidary obligors. To the extent that the estate of Vernado is liable, the judgment against it would be solidary with that against Ricks, but would divide itself as follows: one-half against the widow, and one-half against the two heirs jointly."

It is to be observed that the case did not involve a construction of article 3552 of the Civil Code, which we now have under consideration, and is not authority to support the contention of the defendant in error that a payment by Gaines & Relf interrupted the prescription in favor of Mrs. Wadsworth. And whatever the court may have said about the estate of Vernado being liable in solido with Ricks was merely obiter, for no judgment was asked or rendered against the estate, and it is clear that under articles 1425 and 1427, heretofore cited, the obligation resting upon Ricks and the widow and heirs of Vernado was not a solidary obligation; and the court did not treat it as such, for it rendered a separate judgment against

Opinion of the Court.

Ricks for one amount, a joint judgment against the two heirs of Vernado for a different amount, and a third judgment against the widow for still another amount, and the judgment against Ricks was made up of $4,700 exemplary damages, and $300 actual damages; while the judgments against the widow and heirs were only for the actual damages.

It seems plain, therefore, that the court, by calling the obligation and the judgments solidary, merely meant that a payment made by one of the judgment debtors would pro tanto exonerate the others towards the creditor. But this quality, as we have shown, is not the only one necessary to an obligation in solido as defined by the Civil Code. The debtors must be "all obliged to the same thing, so that each may be compelled for the whole." These parties were not under the same obligation, either in character or amount, and were not all bound for the whole.

Nor do we think it is a reasonable construction of article 3552 of the Civil Code to hold that when two persons are jointly bound, one for the entire debt and one for only a part of it, the acknowledgment of the latter interrupts the prescription as to the former.

Therefore, as the Circuit Court admitted incompetent evidence upon a vital point of the case against the executor of Mrs. Henderson, and, when requested by him, refused, by its charge to the jury, to counteract the effect of the evidence thus admitted, the error is fatal to the judgment in favor of the defendant in error against the executor of Eleanor Ann Henderson.

The judgment against William H. Henderson, Executor, is

reversed, and the cause remanded to the Circuit Court, with directions to grant a new trial; and the motions to dismiss the writs of error in the cases of Howard L. Henderson, William H. Henderson, Warren N. Henderson, and Victorine S. and M. C. McCarthy are granted.

Argument against the Motion.

MOSES & Another v. WOOSTER.

ORIGINAL MOTION, ENTITLED IN A CAUSE PENDING ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Submitted October 19, 1885.-Decided November 2, 1885.

The plaintiff below obtained a decree in equity for damages and an injunction against three defendants who appealed. After docketing the appeal, one appellant died. The survivors suggested his death, and an order was issued under Rule 15, § 1, for notice to his representatives. This was duly published. The representatives not appearing, the surviving appellants moved that the action abate as to the deceased, and proceed at the suit of the survivors: Held, That the suit proceed at the suit of the survivors.

The suit below was in equity and brought by George H. Wooster, the appellee, against Solomon Moses, Gotcho Blum, and Solomon Weil, partners under the name of Moses, Blum & Weil, for an infringement of letters patent. A final decree for an injunction and damages was rendered against the defendants, May 23, 1883. From this decree all the defendants appealed, and the appeal was docketed here October 12, 1883. Blum died January 2, 1884. On the 11th of April, 1885, Wooster appeared in this court and suggested his death, whereupon the usual order under Rule 15, § 1, 108 U. S. 581, was entered, that, unless his representatives should become parties within the first ten days of this term, the appeal would be dismissed. Proof of the due publication of a copy of this order has been made, but the representatives of the deceased appellant have not appeared. The surviving appellants now move that the action abate as to the decedent, but that it proceed at their suit as survivors.

Mr. Horatio P. Allen for the motion.

Mr. Frederic H. Betts and Mr. J. E. Hindon Hyde opposing. I. Section 956 of the Revised Statutes does not apply to the present case. It is to be read in connection with § 955,