
    McCausland v. Lyons et al.
    'One, not a party to a promissory note, who puts bis name on the back, will bo bound as a surety.
    'Where two persons, not parties to a promissory note, write their names on its back, being bound as sureties, judgment will be rendered against them, in solido, for the whole debt-The obligation of each surety is to pay the whole debt; but -this obligation is subject to the right to claim a division. Until this right is exercised, the obligation is in solido. O. G. 3018, 3019.
    The exception of division by a surety is a peremptory one, which must be pleaded specially.
    from the District Court of West Feliciana, Boyle, J.
    
    
      Paterson, fot the appellant.
    No counsel appeared for tíre defendants.
   The judgment of the court [King, J. absent,) was pronounced by

Slidell, J.

Lyons and Smith are sued upon a note of the following tenors

“On the 1st of April, 1843, we or either of ns promise to pay to Robert McCauslancl, or order, the sum of two thousand and two hundred dollars, payable and negotiable at -the Louisiana State Bank, at St. Francisville, bearing ten per cent per annum from maturity, until paid, it being for value received, this 1st day of April, 1842. P. B. McKelvey.”

On the back of this note are the signatures of the defendants, “II. A. Lyons and Ira Smith.”

The petitioner, who is the payee of this note, alleges that Lyons and Smith signed before the delivery of the note to -him, and thus incurred the liability of sureties in solido. Lyons and Smith answered, admitting their signatures only, and pleading the general issue. The court below gave judgment in favor of the plaintiff against the defendants each for his virile share, and from this judgment the plaintiff has appealed, and asks that -the judgment be amended .so as to condemn the defendants in sólido.

Our first enquiry is under what class of contracts does the obligation contracted by Smith and Lyons fall. This is answered by several decisions of our predecessors and of this court, which must be considered as settling the point in this State. By this irregular endorsement Lyons and Smith bound themselves as sureties. See Smith v. Gorton, 10 La. 376, Laurence v. Oakey, 14 La. 389. McGuire v. Bosworth, 1 An. 248.

Such being the character of the contract, our next enquiry is, are these sureties liable each for the whole debt, or is the liability merely joint. By article 2088 of our Civil Code (which is taken literally from article 1202 of the Napoléon Code,) it is declared that “an obligation in solido is not presumed; it must be expressly stipulated. The rule ceases to prevail only in cases where an obligation in solido takes place by virtue of some provision of law”—“ou la solidarité a lieu de plein droit, en vertu d’une disposition de la loi.” It is therefore necessary to consider the nature of the contract of suretyship, for the purpose of determining whether it falls within the exception contemplated by the article.

The rule of the roman law was that, if several persons become sureties for ®a© and the same thing, every one of them is answerable for the whole. Si plures sint fidejussores, quotquot erunt numero singuli in solidum tenentur. Ther benefit of division was not ipso jure, butmighf be demanded by a surety when liis co-surety was solvent. Inter fidejussores non ipso jure dividitur obligatio ex epístola JDivi Hadriani; et ideo si quis eorum ante exactam a se partem sine herede decesserit, vel ad inopiam pervenerit, pars ejus ad cceterorum onus respicit. Ut autem is, qui cum altero fidejussit, non solus conveniatur, sed dividatur actio inter eos, qui solvendo sunt; ante condemnationem ex ordine postulan solet. See the text and notes of Domat, Surety, b. 3, tit. 4, s. 2.

The french Code followed the Institutes and the Code of Justinian, not however without previous opposition on the part of those jurisconsults who desired to extend the rule of article 1292 to the contract of suretiship, and require an express undertaking to impose a liability in solido. That Code was thus made to harmonize with the roman law on this subject, and the opinions of Vinnius and Danneau, which were adopted by Pothier. See the history of the law on this subject as given by Troplong, Cautionnement, § 281 et seq. Pothier, Obligation, § 416. The latter considers the principle of solidarity as inherent in and derivable from the nature of the contract. II est de la_ nature du cautionnement de s’obliger á tout ce que doit le debiteur principal; et, par consequent chaeum de ceux qui le cautionment est censé contracter cet engagement, a moins qui’l ne déclaro expressément qu’il ne s’oblige que pour partie; c’est la raison qu’en rapporte Vinnius. He then alludes to the exception of division accorded by the' emperor Hadrian, and says it was adopted in the practice in France.

Our Code has adopted this principle; and so far as our present enquiiy is involved, has substantially followed the law of Rome and France. “When several persons have become sureties for the same debt, each of them is individually liable for the whole of the debt, in case of the insolvency of any of them.” Art. 3018. “Any one of them may, however, demand that the creditor should divide his action, by reducing his demand to the amount of the share and portion due by each surety, unless the sureties have renounced the benefit of division.” Ib. “A creditor can by no means claim the whole sum from the surety who applied for a division, when the other sureties have become insolvent since the time of that application. The same thing takes place if the creditor has himself voluntarily divided his actions.” Art. 3019-.

The contract of suretiship, under these provisions of law, is of a mixed character. The obligation of each surety is to pay the whole debt; but this solidarity js tempered by the right of division. This right however, rests in facúltateThe surety has the right to demand the division; but until the right is exercised, the obligation is solidary.

In the present case there has been no demand of division by the sureties. They were attacked by the-plaintiff as debtors in solido, and pleaded the general issuedlie exception is a peremptory one, which must be pleaded specially; aud this' has not been done in the court below, nor even in this court. Dividitur obligatio inter plures fidejussores per exceptionem duntaxat, non ipso jure. It is not an exception which can be supplied by the court. It is obvious that it presents a mixed question of law and fact. Suppose that Lyons or Smith had pleaded tha exception of division. The plaintiffs might have met the plea by proving the insolvency of the other surety. See Troplong, Cautionnement, § 297, and the' authorities there cited. Merlin, Rep. verbo Caution., § 4, no. 2.

It is therefore decreed that the judgment of the court below be reversed, and-that the plaintiff recover from the said defendants Henry A, Lyons and Ira Smithr in, solido, the sum of two thousand two hundred dollars, with ten per cent interest thereon from the 4th day of April, 1843, until paid, and costs in both courts.  