
    Squire W. McClure and another, Executors, v. George W. Copley and another.
    The purchaser of a slave who has given his note for the price, and afterwards sold to a third person who binds himself to pay the note due to the original vendor, when sued by the latter will be entitled to a delay to cite such third person in warranty.
    Appeal from the District Court of the parish of Ouachita, King, J. McClure and one James D. Fenner sue as executors of the will of Samuel D.Brown, deceased, for the amount of a promissory note of George W. Copley and George Jessup.
    
      McGuire, for the plaintiffs,
    contended that arts. 379 — 882, of the Code of Practice, give the defendant no right to time to call his vendee in warranty; that he would be entitled to such delay only in case of privity between the plaintiff and such second vendee. 1 La., 37. 8 lb., 37. Merlin Rep., verbo Garantie simple.
    
      Copley, propria persona, for the appellants.
    Where a third person has assumed to pay a debt due by defendant to plaintiff, the former is entitled to the necessary delay to cite such third person in warranty. Code of Pr., 378, 379, 423. 6 Martin, N. S., 391, 458. 7 lb., 331. 14 La., 498.
   Garland, J.

The defendants are appellants from a judgment rendered'against them for the price of a slave purchased by Copley at the probate sale of the estate of Samuel D. Brown, deceased, for which he and his co-defendant gave their promissory note. Sometime after, Copley sold the slave to one Peck, who expressly covenanted and agreed to pay the note of defendants to Brown’s estate, and in all things in relation to said note to save them harmless. In the court below, the defendants in their answer set forth all the facts, and attach to it a copy of the sale to Peck, and call upon him to defend them, and asked the legal delay to have their warrantor cited. This was objected to by the plaintiff’s counsel, and the court overruled the motion, and the defendants excepted. This is the only point in the case, and we think the court erred in not granting the delay. The articles 379, 380, 381 of the Code of Practice seem too clear and imperative to admit of doubt as to their construction. In the case of Anselm v. Wilson, 8 La., 37, it was held that as there was no privity between the plaintiffs and Erwin, who was to reimburse the note to defendant, that delay would not be accorded to call him in. The agreement in that case was not that Erwin would pay the plaintiff the defendant’s debt, but that in case she had to pay it, he (Erwin) would reimburse her. The contingency was not to operate on Erwin, until it was known whether the defendant had to pay. The court in that case went as far as it well could to avoid the effect of a positive law, which, in its operation in the country, is calculated to produce delay in the collection of debts, and considerable embarrassment to creditors. We are bound to execute the law in all cases, however hard its operation may be, when it appears that its provisions are not seized upon to evade the administration of justice, and the collection of just debts. In this case we see nothing in the conduct of the defendants at all suspicious.

The judgment of the district court is therefore reversed, and this case remanded to the district court, with directions to permit the defendants to call Alexander D. Peck in warranty, and otherwise to be proceeded in according to law ; the plaintiffs paying the costs of this appeal.  