The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-04-18
Supreme Court of louisiana.
Condensed Decisions-NEw ORLEANS. April is, l849

Persons parties note who put their upon it
as endorses pres umed to have done sueties
and liable in solido unless they demand division
The exception of division is a peremptory which
be specially pleaded cannot be supplied by the
Court. When the exception is pleaded by surety it
competent for the plaintiff prove the insolvency OF
the other surety.
ROBERT MCCAUsLAND Us. LYONS AND SMITH.
Appeal from the late Third judicial District Court,
of the Parish of West Feliciana. SLIDELL, j.
Per Curtain: Lyons and Smith are sued upon a
note of the following tenor:
Son the first of April, 1S43, we or either of us,
promise to pay to Robert McCausand, or order,
the sum of $1,000, payable and negotiable at the
Louisiana State Bank at St. Francisvle, bearing
ten per cent. per annum from maturity until paid
it being for value received this first day of April,
1872 (Signed) P.B. McKelvey."
On the back of this note are the signatures of
the defendants, " H. A. Lyons and " Ira Smith. -
The petitioner, who is the payee of this note,
alleges that Lyons and Smith signed before the de-
livery of the note to him. and thus incurred the La
bity of sureties in solido. Lyons and Smith an
swered, admitting their signatures only, and plead
ing the general issue. The Court below gave
judgement in favor of the plaintiff against the de-
PENDANTS each for his vrile share, and from this
judgepst the plaintiff has appealed and asks that
the juese ment be amended SO as to condemn the
defendants IN solidO
Our first inquiry is, under what class of contracts
does the obligation contracted by Smith and Lyons
fall This is answered by several decisions of our
predecessors and of this Court, which must be con-
sdered settling the point in this State. By this
irregula6 Endorsement Lyons and Smith bound
themselves as sureties. See Smith as Gorton, 10
l.. R. 376 Laurence d Hill as. Oakley. IA L. r.
3S9; Mcclure as. Bosworth, ! Annual, 24S. Such
being the character of the contract, our next in
quiry is these suretes liable each for the whole
debt, or is the liability merely joint!
BY the article 2OSS of our Civil Code (Which is
taken literally from the article 1902 of the Napoleon
Code) it is declared that an obligation in solido is
not presumed; it must be expressly stipulated"
The rule ceases to prevail only in cases where an
obligation in solido takes place by virtue of some
provisions of law, sou la solidarite lieu de plein
droit en- outre dune disposition de Ia loi." 1t is
therefore necessary to consider the nature of the
contract of suretyship, for the purpose of deter
mining whether il falls within the exception con<-
templated by that article.
The rule of the Roman Law was that if several
persons become sureties for and the same thing
every one of them is answerable for the whole
81 plures sint fdejussores. quotquot er,nt numero
singuH, IN Sodium tenentur. The benefit of d.
vision was not ipso jure, but might he demanded
by a surety when his cO-surety was solvent. Inter
fdejussores ipso jure diUduur obisatio er eps-
totd DiUi Hddridni; ct ideO si gus ante
actum a Sc parton sane herede decessut, ret dd
inopiam perUenerit, pars ejuS ad ceterorum onus
respicu VI autem Is qui cum altero fdejussH non
solus conuenidtur, sed diudatur actio inter eos qu
soluenda stunt, ante coNDEMNATIoNEM &c ordine
postulari soLET. See the text and notes OF Domat,
Surety, Book 3, tit 4, sec. 2: a
The French Code followed the Institutes and ting
Code of Justinian, not however without previous
opposition on the part of those jurisconsuts who
desired extend the rule of the article 1909 to the
contract of suretyship and require an express I'M
dertaking to impose liability in sotido. That
Code was thus made to harmonize with the Roman
Law and the opinions OF Vlnnius and Donneau
which were adopted by Pothier See the history
of the law on this subject as given by TroplOng,
Cantionement, sec. 2sl ct seq. Pothier, Obi, sec
4l6. The latter considers the principle of soida,
rty as inherent in and dervable from the nature OF
the contract. IL est de la nature du cauftonnement
de s'obhger tout ce que dot lie deb,teur pr.ncpat
ct par consequent chacun de ceur gu, te caut'onnent
est cense contractor Get engagement, mons quh ne
declare erpressement qu'a ne sothge que Poar pdre;