9 Rob. 240 | La. | 1844
The defendants are sued, in solido, on a note of $412 42, drawn on the 11th of December, 1837, by Marie B. Filhiol and Augustus Ludewig, whereby they, and each of them, promised to pay, on the 1st of January, 1838, to Holmes & Dabbs, the said sum, with ten per cent interest until paid. The petition avers, that, in April; 1838, the defendant, Hardy Holmes, being indebted to the plaintiff, as administratrix of her husband’s estate, transferred and delivered this note to her, in payment, for the amount specified on its face, and specially agreed to warrant the payment of the same. That, in March, 1840, the plaintiff brought suit, and obtained a judgment against Augustus Ludewig, but that he died some time after, leaving an insolvent succession, and that the claim has been demanded from the curators of his estate without effect. The petition further avers, that since the death of Augustus Ludewig, the defendant, his
After the case had been argued, and submitted"to the inferior judge for his decision, the plaintiff’s counsel asked leave to discontinue the suit as against Marie B. Ludewig. She objected to this being done, anS insisted upon a final judgment being rendered in the case, on the ground that the application came too late. The judge having allowed the discontinuance prayed for, she took a bill of exceptions. The court, in our opinion, did not err. However it may be with regard to jury trials, the Code of Practice authorizes a plaintiff to discontinue his suit at any stage of it, before judgment is rendered by the court. Art. 491. Applegate et al. v. Morgan et al. 5 Mart. N. S. 642.
On the trial, the testimony of R. F. McGuire was offered, to prove that he was the person who made the settlement between the parties; that the note sued upon was one of these mentioned in the receipt written at the foot/ of the account, as transferred to the plaintiff in settlement of the same ; and that it was expressly agreed and understood, before he consented to receive them for the plaintiff, that Holmes would warrant and guaranty their payment. The evidence was objected to on the ground that it
It has been urged that the testimony, if legal, is insufficient, as the agreement of guaranty which it is offered to prove, exceeds in value five hundred dollars, and the record exhibits no corroborating circumstances. We think otherwise. The fact
It has not been shown that' the plaintiff ever agreed to give timé to Augustus Ludewig or his widow, so as to preclude or suspend her right of suing either of them, to the prejudice of Holmes, A surety is not discharged by the creditor’s forbearance, or delay to sue the principal debtor. This result is produced only, when the creditor, by granting time to the debtor, deprives the surety of the means of insisting on immediate payment, in case he pays the debt, and is subrogated to the rights of the creditor. 4 Mart. 640. 3 Mart. N. S. 596. 8 Mart. N. S. 277. 3 La. 214. 5 La. 267.
Judgment affirmed.
The receipt appended to the account, is as follows : “ On settlement this day, received from Hardy Holmes, in endorsed notes, the balance due.”