
    Martin Gordon, Jr., for the use, &c. v. Succession of E. W. Diggs and R. B. Sykes.
    A steamer was sequestered, and released on bond. In an action against the sureties on the bond» they pleaded that the steamer had been, subsequent to the sequestration, seized and sold by another creditor, and the proceeds, to the knowledge of plaintiff, paid into court and distributed among the creditors. By the Cowi't: The creditor was not bound to resort to the fund in question, and thereby involve himself in a litigation'with third persons, which, for aught that appears to the contrary, might have been fruitless, and which resort he was not requested by the sureties to use»
    0. 0. S018»
    APPEAL from the Second District Court of New Orleans, Lea, J.
    
      Durant & Mornm\ ior plaintiff and appellant. L. Bhjma, for B. B. Bylces, defendant. Wolfe & Singleton, for succession.
   Slidell, C. J.

The defendants, Sykes, and the executor of Diggs, were sued upon a bond given by them as sureties of Levistones, to release a sequestration of a steamer owned by Levistones and others, which issued in the suit of Gordon v. steamer Cincinnati, Levistones, and others.

Under the answer of Sykes, we think the genuiness of his signature was not, put in issue. C. P. 324.

The District Judge did not err in considering the matter specially pleaded by Sykes, as not constituting a discharge of the surety. The plea, and the showing made under it were, that the steamer was subsequently seized in another suit, was sold at judicial sale, and the proceeds, to the knowledge of plaintiff, distributed among other creditors, and that plaintiff, if be bad asserted his privilege, might have received payment out of that fund.

Under the bonds, the principal obligor and his sureties were bound to restore the property sequestered, and released, or satisfy the judgment, at least to the amount of its value, which was much more than the judgment rendered in the cause.

The creditor was not bound to resort to the fund in question, and thereby involve himself in a litigation with third persons, which, for aught that appears to the contrary, might have been fruitless; and which resort he was not even requested by the sureties to use. Under the case of Parker v. Alexander, 2 Ann. 188, Louisiana State Bank v. Ledoux, 3 Ann. 680, it is clear that much of the defence was properly disregarded.

It is also clear that by the nature of that contract, and in the absence of express words therein to the contrary, the sureties were solidarily liable. Our code declares, that when several persons have become sureties for the same debt, each of them is liable for the whole of the debt in case of insolvency of any of them. Article 8018. In this, it follows, the rule of the Roman law, si plures sint fidejussores, quotquot erunt numero singuli in solidum tenentur. The article gives, it is true, the right of division ; bilt the exception of division was not pleaded. See McCausland v. Lyons, 4 Ann. 274, and the authorities there cited.

The appeal in this case was taken by Sykes. It was applied for by petition, and he gave bond in favor of the plaintiif only. The succession of the other surety, Diggs, is not properly before us, either as appellant or appellee, and we cannot therefore inquire into the correctness of the judgment as to Diggs, as we are requested to do by the plaintiff in his answer to the appeal.

Judgment, as to Sykes, affirmed with costs.  