
    WOODBURN vs. FRIEND ET AL.
    'Western Dist
    
      October, 1841.
    Afl’EAl EROM THE COURT OE THE SEVENTH DISTRICT POR THE PARISH OI! OUACHITA, THE JUDGE OP THE PIPTH PRESIDING,
    Sureties in Ronds taken in judicial proceeding's are bound ih solido; being entitled to neither division nor discussion; so several sureties in a 12 months bond are each bound for the whole sum.
    Where the creditor does not suspend his execution so as to put it out of his power, or the surety (if he should pay,) to pursue the debtor, it is no prolongation of the time of payment.
    When it appears in the progress of the trial, that a payment has been made ' of part of the debt; although the injunction may have to be dissolved for want of an allegation of payment, yet a new one for this amount should be granted and perpetuated.
    Where the party is entitled to a new injunction instanter for a part of the debt on the dissolution of the first, he will not he mulct in damages.
    This case commenced by injunction. The defendant; Friend, by his attorney took out execution on a 1^ months bond signed by P. G. Oliver, as principal, and by the plaintiff, and two others as sureties, under which plaintiff’s property has been seized by the sheriff to satisfy the entire bond. He avers he only sighed as surety and cannot he liable for more than his share, to at least one third. He further states that the defeiv dant held up his execution and gave a prolongation of time to the principal in the bond, until he gathered and disposed of his crop, and is now insolvent. He prays that Friend, and the sheriff he enjoined and prohibited from proceeding in said seizure, and that he be released from all liability on the bond, and the injunction be made perpetual.
    The defendant pleaded the general issue, and called on the plaintiff to prove his allegations in a summary manner, and that the injunction he dissolved with damages.
    The evidence showed that a quantity ■ of cotton had been shipped by Oliver, the principal in the bond, to the knowledge of Friend and his attorney, which should have been seized, as it was shipped long after the bond became due.
    There was judgment dissolving the injunction, with ten per cent, interest, and 50 dollars as special damages for attorney’s fee, against the principal and. surety hi solids-. The plaintiff appealed.
    bonds'fe&en in judicial pro-ceedmgjs are b'o.und itnoMo-being entitled to neither divi-áon^so^seyei ^al JSgr'e^lt]in bon'd ai-e each bound fpf th* -whole sum,
    
      Garrett, for the plaintiff.
    Copley, for the defendants.
   Bullürd, J.

delivered the opinion of the court.

The plaintiff having signed a twelve months bond, as surety /of Oliver, together with two other sureties, in favor of Friend, 'and execution having issued upon it, and levied upon the plaintiff’s property, he obtained an injunction to stay proceedings, on the allegation that he signed the same as joint surety ivith his co-sureties-, Robertson and Warfield, who became equally and jointly bound with him, and that he is in no event bound for more than one third; but that the sheriff has seized more property than is necessary to pay the whole bond. He further alleges that he 'is not liable for any part of the bond, because after it fell due on the 24th day of July, 1840, Friend, 'the obligee, granted a prolongation ef term of payment to Oliver, the principal, without the consent of the plaintiff his surety; and agreed and promised to wait with him until he should have gathered his cotton and corn crop, then growing on the land which was mortgaged to secure the payment of the twelve months bond; and that an execution which had issued upon the bond was returned into the clerk’s office, by 'order of Friend’s Counsel, that the crop was more than suffix Cient to pay the whole bond, and that in consquence of the laches of Friend he can no longer subrogate the surety in his action against the principal who has become insolvent-.

, The injunction was dissolved with damages, fend the plaintiff . , appealed.

The first ground upon which the injunction iftas granted, is /clearly untenable. Sureties upon bonds taken in judicial piyo-ceedings are bound in solido, being entitled neither to dis- . . ' cussion nor division.

Where the creditor does not suspend his execution so as hh^'powcíf or should'payf to pursue the debtor, it is no prolongation of paymenfc10 °

When it ap-peara m the progress ot the trial,, that a ibeen^made of although10 **'the liave to°be 'dhf solved fot-want of an allegation of.payment, yet this°1V amount granted and perpetuated,

Thai facts shown in relation to the second ground, 'to wit: , . „ , ... . ¡, , granting of prolongation of the term of payment to the principal debtor without the consent of the surety, are, that an execution was issuesd in August, not long after the bond fell due; that it was not served, and was finally returned in'November or December; and that in the meantime the crop of Oliver, the principal, amounting to about sixty bales, was disposed of, and that ten bales of it went into the hands of Mr. Copley, the attorney of Friend, who had ordered out the execution, and who afterwards personally took it to the office "after it had run out, and the deputy clerk swears, wished him to alter the dates, which witness declined. It appears that Friend agreed to suspend the execution .if Hempkin would agree to it, and that the execution was not levied. It is further shown .that Mr. Copley received two hundred dollars for Friend, which wap paid by order of Oliver by Mr. Bry, who bad. shipped the crop, .. .

^13 case ®-u^e YS- Radey, which was a much stronger one than this, we held, that.permitting the principal debtor to ’ -, . , go to Texas witliout the consent of the endorser, upon a promise to Pay on hi^ return, did not discharge the láifter. In all suc^ cases there must be a, suspension of the right to sue by a Valid contract, for if the surety might at' any moment pay and “ s .' . . . J .. pursue the debtor under the legal subrogation, h'e is not discharged by the delay accorded to the debtor. We cannot regard the two hundred dollars paid the attorney, as a consi-¿eration f0r suspending the execution, because this is not • r o proved. 16 La.Rep. 219.

The injunction was properly dissolved, hut as it appeared in the progress of the trial that $200 had been received by the counsel of Friend, for that amount the court ought in our opinion, at once to have granted a new injunction, and if it v . ... .... had .been made the subject of complaint m the petition,"would have authorized the court to perpetuate the injunction pro ^m^°i and ™ event no damages could have been given under the act of 1831. 11 La. Rep. 483.

Where the party is entitled to a new inter°fora^rto£ ^f he will notbe*mulct in* damages.

Equity forbids that under such circumstances the- party should be mulcted”in heavy, damages in obedienpg, to the literal • tenor of the statute; for it amounts to the same-thing I ■ ’ ... t ,. ° whether the first injunction be-partially sfisíainéd or a new one-allowed instanter. '

< It is therefore adjudged and decreed that the judgment of the District Court be avoided and reversed, and proceeding to .■reader such judgment as ought, in-our opinion* to have given below; it is further adjudged', and decreed that th.e . . . ,. ‘ junction be dissolved with costs, except for the sum of two hundred dollars for which it is rendered perpetual, reserving to the plaintiff the right, if! any he have, to be further credited1 for the ten bale£ of cotton alleged’to have beem delivered to. the attorney of .the defendant,. and¡ that the defendant pay the costs qf this appeal.  