
    MAXWELL & AL. vs. GUNN.
    East'n District.
    Feb. 1824.
    Appeal from the court of the third district.
    A creditor may use all legal means against any of his debtors in solido.
    A fact, added by the party, answering interrogatories, to his answer, is not to be stric en out because not called for, by the interrogatory.
   Porter, J.

delivered the opinion of the court This action was commenced by attachment againt the defendant, on a note drawn in the following words.

The first day of January next, I promise to pay Thomas Phillips, or order, sit hundred dollars, negotiable and payable in St. Francisvile branch bank.

(Signed)

Henry Flower,

Jesse W. Gunn.

St. Francisville, January 9, 1823.

The attachment was, on motion of the defendant, dissolved by the judge of be first instance; no reasons are given in the opinion for the decision, and we are unable to see, on what grounds it is formed The principal reason that has been urged here is, that it appears, by the note, that the debtor was only surety for Flower, the principal obligor, and that, admitting him to be bound in solido, it appears by the answer of the petitioner to certain interrogatories propounded, that the other obligor, Flower, was in good circumstances and able to pay the note, and that, consequently, this remedy, which is given to creditors of suing, and seizing the property of their debtor, before his obligation falls due, was improperly exercised in this case.

The obligation on the face of it does not import that the defendant was surety, and the answer of the plaintiff to the interrogatories, (which, for the purpose of this enquiry, must be taken as true,) states on the contrary that the debt was due by Gunn, and that Flower was surety. We therefore think the attachment was properly taken out. As to the objection that there was an other person, bound with the defendant, who was in solvent circumstances, we think little or no weight can be attached to it. The creditor has a right to resort to any of the debtors in solido for payment, and it follows that he has a right to use all legal means to inforce payment from the debtor he selects: and the enquiry here must be would the permanent removal of the defendant have defeated the pursuit of the plaintiff against him, not whether it would or would not affect his recourse against his co-debtor. To hold that the circumstance of the last being solvent, destroys he right of the petitioner to secure the means of being paid by the other, would in truth, be defeating thet election which the law has conferred on creditors, and which it preserves to them, even after a suit has been commenced against one of the co debtors Civil Code, 280, art. 104.

Being of opinion. therefore, that the attachment was improperly dissolved, it only remains to examine whether the judge decided correctly on the exceptions filed to the answers made by the plaintiff to the defendant's interrogatories.

The first interrogatory is answered correctly. So we think is the second. It is in these words "are you not now well satisfied by the information of Thomas Phillips, of whom you received the note, that Henry Flower gave the said note, in payment of a debt he owed to Jesse W. Gunn, or to said Gunn and his wife." The answer is, "that he has heard different stories on the subject, and cannot now say that he has an opinion about it" The exception filed to this reply is that, the defendant intended to enquire whether the plaintiff was not satisfied by information, given him by Phillips the payee, and that the question is evaded. We think differently. The interrogatory is not to a particular fact, but to the conclusion formed in the plaintiff's mind, on a statement made by a particular person. This he negatives; for, in saying that he has no opinion formed oil the matter, he virtually declares that he is not satisfied from any source, that the fact was, as the defendant alleged. It is true that he does not state that this want of any positive opinion arises from Phillips's declarations. But whether Phillips gave the Information or not, is immaterial; for the interrogatory was not as to his statement, but as to the opinion the petitioner had formed on it.

The answer to the third interrogatory is not excepted to. The fourth in substance, enquires whether Flower, the co-obligor, was not able to pay the debt, and whether. if the defendant was ever out of the state. Flower's means were not sufficient. In the concluding part of his reply to these questions, the plaintiff after stating that Flower was, adds, "but considering his situation as surety, I chose to take the course I did." It is objected that this was not called for by the interrogatory, and ought to be stricken out. An objection similar to this was made in the case of Bradford's heirs vs. Brown, an overruled; our code has provided that a judicial confession cannot be divided, and the equity of such a rule appears to us as strong as the law is positive. Civil Code, 314 a 257, 11 Martin, 222.

Watts & Lobdell for the plaintiff, - for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and it is further ordered, adjudged, and decreed that the case he remanded for a new trial, and that the appellee pay costs of appeal.  