
    
      THIBODEAU vs. PATIN.
    
    The surety who is bound in solido cannot claim the benefit of discussion.
    Appeal from the court of the seventh district.
   Porter, J.

delivered the opinion of the court. The defendant is sued on an obligation in the following words:

‘‘Twenty days after date, we, or either of us, promise to pay to the order of John Olivier Thibodeau, three hundred dollars, value received, the 15th Nov. 1820.

Rezin Bowie,

Marcel Patin, Surety.”

The answer sets up, for defence to the action, a plea that the surety was not bound in solido, and that he cannot be sued until the property of Bowie, the principal debtor, is discussed ; it concludes by indicating property by which that discussion can be carried into effect.

Judgment was given in the court below, in favor of the plaintiff and the defendant appealed.

West’n District

Aug. 1823.

It appears to us no error was committed, and that the defendant is not entitled to the benefit of the plea, on which he relies. “The surety is not obliged to pay unless the debtor fails to satisfy the debt, and the property of the principal must be discussed, unless the plea of discussion is renounced, or the surely be bound in solido with the debtor; in which case the effects of his engagement, are to be regulated by the same principles established in relation to debtors in solido."—Civil Code, 428, art. 7.

Supposing it possible to escape from this positive and explicit declaration of law, the defendant has not brought himself within the rule, which enables sureties bound in the ordinary way, to refer their creditor to the principal debtor for payment; he makes no tender of money to carry the discussion into effect—Civil code, 430, art. 9; Baldwin vs. Gordon & al. 12 Martin, 382.

It appears evident to the court, that the defendant, under pretence of correcting an error of the inferior tribunal, has sought to delay the execution of a judgment, the correctness of which cannot be doubted.

Simon for the plaintiff, Fennessy for the defendant.

It is, therefore, ordered, adjudged and decreed, that that judgment be affirmed with costs, and ten per centum damages for the delay.  