Cox v. Baldwin

1 La. 401 | La. | 1830

Porter, J.

delivered the opinion of the court. A. Eliot having obtained a judgment against Beale, proceeded against Hawkins, who was his bail. Hawkins procured an injunction, giving Cox, the present plaintiff, as . . . . ... , .. his surety. I he injunction being dissolved, and Hawkins dying insolvent, the plaintiff pajd Eliot the debt he had sued for. This is brought to recover from the defendant, who was partner of Beale, the debt due by the firm of Beale &. Baldwin, which debt the plaintiff alleges he discharged.

The general issue was pleaded; the plaintiff had judgment, and the defendant appealed.

The statement of facts show, that a commercial partnership existed between Beale and the defendant in Kentucky, and they contracted a debt to Andrew and George Eliot, for which George Eliot received judgment against Beale alone in Kentucky.

The partnership between Beale and the defendant was dissolved on the first day of December, 1818. Beale assumed the payment of all the debts of the • firm, and the defendant receiving 83287 in cash and notes, transferred all his rights in the concern to Beale.

In the same month, or soon after, the defendant was applied to for payment of the debt due to the Eliots, and he referred the applicant to Beale, saying that Beale had funds to pay the debt, but that he, the defendant, would accept Beale’s draft iherefor. A draft was accordingly obtained on the 20th February, 1820, payable to the order of George Eliot, who indorsed it to Andrew. The defendant refused to accept it, and suit was brought against Beale, on which Hawkins became bail.

On this, the plaintiff’s counsel contends, that his client, having as surety of Hawkins, the bail of Beale, paid to Eliot a debt, for which the defendant was bound in sólido with Beale; he has been subrogated to the rights of the creditors, who received his money, and consequently may exercise them against the defendant.

By the article 151 of the Old Code, under which this transaction arose, subrogation takes place of right, for the benefit of him who being bound with others, or for others, for the payment of the debt, had an interest in discharging it. C. Code.

Art. 152 provides, that the subrogation takes place as well against the securities, as against the debtors.

The plaintiff argues, in becoming bound for the partner of the defendant, I became bound for him. It was the same debt. I £,&<3 an jnteres¿ jn discharging it, and the moment X did so, I became subrogated to all the rights of the creditor. He could have sued the defendant, and I of cours e can. The legal subrogation stands in place of the conventional. It is the same thing as if I had obtained an express subrogation of all the creditors’ rights. There is no difference between a sale of the debt by the creditor, and a payment by one of the parties bound for it.

The defendant answers, you were never bound for me, nor with me. You became surety for the bail of my partner, which was a distinct engagement. Had I been sued on this debt, you could not have been sued with me as my surety. If an action had been brought against you, you could not have pleaded discussion of my property. W hen there are several debtors in solido, any one of them may give distinct sureties, and in such case they are not bound with, nor for the co-obligor. My partner is largely indebted to me: had he paid the debt I could have pleaded compensation to his demand: , t i • , , , , you cannot, by discharging a debt due by him, acquire greater rights than he could by making payment.

The ground assumed by the defendant is apparently supported by Pothier, “When (says he,) the surety is only bound for one, of the debtors in solido, and not for the other, the surety, after he pays the debt, has oply a direct action against him for whom he bound himself. He can only,, as exercising the rights of his debtor, put in forcé those which that debtor might exercise against his co-debtors, and in the same manner.

Pothier, on Obligations, 441.

At the time Pothier wrote, the co-debtor or surety, who paid the debt, might take a subrogation, but if he did not, there was no legal one. He was driven to the action man-dati contraria; if he paid by the consent express or implied, of the principal debtor, or the action contraria negotiorum gestorum, if he paid without. We apprehend it is in relation to the right acquired by payment, without subrogation, the author is treating in the passage above cited; for in No. 427, he expressly states, that the surety, when he pays, may require of the creditor to sub-rogate him to all his rights, actions and hy-pothecations, as well against the principal debtor, for whom he has become surety, as against all the other persons who are liable for the debt.

The legal sub-rogation which is created by payment made by a debtor, who being bound with or for another, has an interest in discharging the debt, is as extensive as any express subrogation.

The legal subrogation which is now created by payment made by a debtor, who being bound with, or for another, has an interest in discharging the debt, is as'extensive as any express subrogation could be. The enquiry then is, was the plaintiff bound with the defendant, or for the debt he owed ? We think he was. The obligation he came under, as surety on the bond given to obtain an injunction, gave him an interest in discharging the debt due by Beale &. Baldwin, and it appears the payment made by him, did discharge it.

As to the other ground of defence, that the debt was novated, we do not see any force in it. The bill was taken in a country where the common law is in force, and the debt was contracted under the same system. We understand it to be a very clear principle, in that jurisprudence, that the acceptance of a note or bill of exchange, does not extinguish the debt it is given to discharge.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.