sum, September, 1840. It is in evidence, that a former note had been given by the WESTERn Dist. same parties, in which they were bound in solido, for upwards of seven hundred dollars, due by the defendant to the payee of the note above stated; and the last mentioned note was believed, by the witness, to have been given in renewal of the former one, but of this he is not sure. 28. MARTIN ET AL. Where the plaintiff fails to It appears to us the court erred. The payment made by make out his Mouton, is stated to have been effected for the defendant, in must be noncase clearly, he the singular. But there were two defendants, and nothing suited. shows that Mouton was, at the time, the agent of the person So, where it for whom he has brought the present suit. We must, there- did not appear fore, consider the payment as made for both of the defendants. that the person The plaintiff has, in our opinion, not made out his case. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that there be judgment of non-suit against the plaintiff, with costs in both courts. suing as agent, was really such; and that there really was a vor of the plain- was BOUTTE, F. M. C. vs. MARTIN ET AL. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF The surety cannot require the creditor to sue the principal debtor, before re This is an action against Andre Martin and Alexander WESTERN DIST. vs. Martin admit The defendants severed in their answers. September, 1840. ted his signature, and pleaded a general denial. He averred BOUTTE, F M. C. that he signed as surety, not as principal, but is no longer MARTIN ET AL. bound, even as surety, because the plaintiff failed to institute suit against P. C. Arcineaux, the principal, at the maturity of the note, or to secure his claim by mortgage or otherwise, as he was expressly requested to do by this defendant, who was well aware of the drawer's embarrassment; that the plaintiff expressly agreed with the principal, to give him further delay or prolongation of payment, stating, also, that he never would bring suit in any court. That the principal is now insolvent, and for the reasons and grounds herein stated, this defendant is not liable, as security on the note. The other defendant's answer was the same in substance. The defendant, Martin, propounded interrogatories to the plaintiff, requesting him to state whether or not this defendant did not sign the note merely as surety, and whether he (plaintiff) had not agreed, with the principal in the note, to give him longer time in which to pay it; and if he had not declared he never would sue the principal? The plaintiff answered, that when Pierre C. Arcineaux bought his beeves, he offered the defendants as security, and he agreed, and did take them as such. He received the note in the manner in which it is signed. He considered A. Martin as security, and responsible for the debt. To the last and principal interrogatory the plaintiff answered, that he called on Martin, and the latter advised him to see the principal and get his money, or a new note with good security. Arcineaux returned with him to Martin, and proposed that he should wait three months for his money, as he was about mortgaging his property to the bank, to get money. Plaintiff asked a new note, with security. Arcineaux replied, that he could only give him his own note, which he, plaintiff, refused, preferring to keep the old note, but said he would give him three months, if he would give him a new note, with the same security. Never said he would not sue the principal, although it was not his intention to do so. The witnesses stated, Martin asked plaintiff, if he had not WESTERN Dist. given Arcineaux two months to pay the note in. The latter September, 1840. answered, he had given him two months, or time enough to BOUTTE, F. M. C. go to New-Orleans and mortgage his property to some bank MARTIN ET AL. for money. 2. Pierre C. Arcineaux, the debtor, [having surrendered his property, was made a witness,] says plaintiff came to him, and told him, Martin would not continue security for him any longer, that he wanted his money or a mortgage. Plaintiff then observed to witness, to go and do his business, que je m'entient a vous, and do not consider Martin any longer responsible. They started to town to have a mortgage executed, but it was agreed between them that no mortgage should be given; witness promising him that he was going to NewOrleans, and expected to make an arrangement with some of the banks. There was a verdict and judgment against the defendants. Martin alone appealed. Voorhies, for the plaintiff. Crow and T. H. Lewis, for the appellant. Martin, J., delivered the opinion of the court. This is an action against two sureties on a note. Judgment was given against both defendants, and Martin alone appealed. The defence of the appellant was, that the plaintiff had neglected to sue the principal in the note, although earnestly urged to do so; and that he had indulged him with a prolongation of the day of payment. The first plea was correctly disregarded. It is an idle one. The creditor generally requires security, to avoid suing the debtor; and the surety cannot require, before the creditor resorts to him for payment, that he should sue the principal. vs. WESTERN DIST If he wished the principal to be sued, he must pay the debt, 38. MARTIN ET AL. of the Louisiana Code, to be indemnified by the principal The surety debtor. cannot require the creditor to The prolongation of the time of payment, without the sue the principal debtor, before consent of the surety, discharges him. None appears to have resorting to him been given in the present case. The plaintiff had two subfor payment. His remedy is, to stantial sureties, on which, we believe, he implicitly relied; pay the debt, and exercise the for he frequently asserted, that it was not his intention to sue rights of the cre- the principal. His conscience was probed by the appellant, debtor, to which and he denied having granted any prolongation. It is, howhe is subrogated by the payment, ever, in evidence, that the principal having asked the plainor proceed un- tiff to wait until he went to New-Orleans to procure the of the La. Code. money, and return with it and pay him, the plaintiff consented. ditor against the der article 3026 The jury do not appear to have considered this as outweighing the plaintiff's denegation, in his answers to the interrogatories. He had never intimated an intention to sue A verbal agreement, to wait the principal. On the contrary, he had even denied it, and can go to a cer- every part of his conduct shows that he looked to the sureties tain place to pro- for payment. until the debtor cure money with which to pay the debt, is not such time, as will dis The judge's refusal to grant a new trial, shows he a prolongation of was satisfied that justice did not require his interference charge the sure- with the verdict. It does not, in our opinion, authorize ours. ty. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as far as it relates to the defendant Martin, be affirmed, with costs. LE BLANC vs. BROUSSARD'S HEIRS. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF LAFAYETTE. Either party may have the testimony offered in court, taken down by the clerk. The judge has no authority, even at the request of the parties, to do this when the court has a clerk, except in a case where the party intending to appeal, fails in getting the opposite party to make a statement of facts, then the testimoney taken down by him, in writing, will serve as a statement. A statement of facts must be procured, by the party intending to appeal, necessarily, before the appeal is granted. An appellant neglecting to have a statement of facts made out, when the testimony is not taken down by the clerk before the appeal is granted, cannot claim any relief from this court. This is an action to compel the heirs of Theophile Broussard, among whom his succession was partitioned, to contribute proportionally to make up the loss the plaintiff sustained, in being evicted from a piece of wood-land, which had been set apart as part of her share in the succession. She alleges she has sustained a loss of five hundred dollars thereby. The defendants pleaded a general denial, and deny that the wood-land, of which the plaintiff complains of being evicted, was sold or set off to her; and if so, she must claim her share of the community between her and her late husband, from the heirs of François Broussard, who caused all the property of Theophile Broussard's succession to be sold. The Probate Court decreed, that the plaintiff recover from the defendants, jointly and severally, the sum of three hundred dollars, with five per cent. interest, and they appealed. The case comes up on the pleadings, without any evidence, statement of facts, or bill of exceptions. The clerk of the Probate Court certifies that he did not attend the trial, and that the Parish Judge frequently takes up probate cases out of the regular term; tries them, and takes down the evidence himself. That this case was decided in December, and the judge died the beginning of June following. |