
    CURTIS vs. MARTIN.
    Appeal from the court of the sixth district.
    The surety may be sued, without the principal.
   Martin, J.

delivered the opinion of the court. The defendant is sued on a note which he subscribed as surety. He answers that the property of the principal has never been discussed and is sufficient, and he avers that the note has been paid by the principal.

West. District.

Sept. 1818.

There was judgment for the defendant, and the plaintiff appealed.

The statement of facts shews that a demand was made from the principal, but no suit was instituted against him before the bringing of the present suit-that, at the date of the note, the principal resided in the parish of Rapides, and before the suit was brought he removed to that of Avoyelles-that the plaintiff and defendant did and do still reside in Rapides.

As there is no proof of the alledged payment, it appears to this court that the district judge erred in giving judgment for the defendant. The plaintiff is not required by any law to sue the principal before he resorts to the surety. In many cases a suit against the principal would be productive of delay and expense only.

It is true, that if the surety requires a discussion of the principal’s property, it must be made, but "the surety who does require the discussion is bound to point out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried into effect.” Code Civil, 430, art. 9. As the defendant did not point out any property and furnished no money for the discussion, the plaintiff was not bound to discuss.

Wilson for the plaintiff, Scott for the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed ; and that the plaintiff do recover the sum of six hundred and thirty three dollars, sixty two and one half cents, the amount of the said note, with interest as therein promised, at the rate of ten per cent. a year, from the twen~ tieth of October, eighteen hundred and seventeen till paid, with costs of suit in the district court, and in this.  