
    Henry T. Irish v. John T. Wright and others.
    Two distinct actions having been commenced by different plaintiffs against the defendant, attachments were levied at the same time on the same property, which were released on the execution of a single bond for the two cases, conditioned that if said defendants shall satisfy such judgments as maybe rendered against them in the suits pending, the said obligations shall be void, otherwise remain in full force, &e. The claim of each plaintiff exceeded the amount of the bond, which was silent as to their respective shares in it. On a rule by one of the plaintiffs against the sureties on the bond to show cause why they should not satisfy a judgment obtained by him, and exception by the sureties that plaintiff, being a'joint obligee, could not recover against them without joining his co-obli-gee ; Held, that the bond containing distinct obligations to perform different things in favor of different persons, each obligee has a distinct and separate remedy, (C. C. 2074, 2076); but that where one plaintiff proceeds against the sureties, before any decision on the claim, of the other, he ean recover only one-half of the amount of the bond, reserving his right to recover the balance in case the plaintiff in the other action shall be defeated. A judgment overruling, as coming too late, an exception by the defendant to the legality of an attachment, has the force of res judicata as to the surety in the attachment bond.
    
      Appeal from the Parish Court of New Orleans, Maurian, J„
    
      Peyton, I. W. Smith and Cry mes, for the plaintiff
    
      T. Slidell, for the appellants.
   Simon, J.

It appears from the records, that when the present suit was originally instituted, the plaintiffs sued out an attachment against the defendants’ property, which was levied by the Sheriff on divers rights, interest, and moneys, which said defendants had belonging to them in different banks of the city of New Orleans, and in the hands of Bogart & Hawthorn, as also on the steamship New York owned by said .defendants, one-fourth belonging to Wright, and three-fourths belonging to his co-defendants, Haggerty and Morgan. In the mean time another suit was also instituted by one McCaughan, by attachment, against the same defendants, which attachment was also levied on the same property, and in order to obtain the release of both attachments, the defendants executed two bonds in favor of the Sheriff, with Hawthorn and Woods as sureties, conditioned that, whereas by virtue of writs of attachment issued at the suit of H. E. Irish against the said defendants, and at the suit of J. J. McCaughan against the same defendants, certain property therein described had been seized and attached, &c,, which attachments were released and set aside, “if said defendants shall satisfy such judgments as may be rendered against them in the suits pending as above mentioned, then the obligations to be void,” &c. One of said bonds was executed for the sum of $20,000, by Haggerty and Morgan as principals, and the other bond was executed by Wright as principals for the sum of $10,000, with the same sureties, and they were both executed on the same day.

It appears further, that on the day the Sheriff made the return of the attachments, he made a transfer or assignment of his rights, title and interest in and to the two bonds, to the plaintiffs in the two suits; and that the same were approved by the plaintiff !s counsel, who, accordingly, authorized the seizures to be released on the delivery of the said bonds.

The suits went on, and judgment having been rendered in favor of Irish against the defendant Wright for the sum of $13,333 33, (which judgment was subsequently affirmed in June, 1844, by this court on a devolutive appeal taken by Wright,) and in favor of his co-defendants, Haggerty and Morgan, a writ of execution was issued for the benefit of Irish against said Wright, which was returned by the Sheriff; “ No property found f whereupon the plaintiff obtained a rule on the sureties, Hawthorn and Woods, to show cause why judgment should not be rendered against them, in solido, for the sum of $10,000, in consequence of their being obligated jointly and severally for that amount, as the sureties of Wright, on the bond by him executed for the release of the property attached, and of the judgment rendered against said Wright, which was not and could not be satisfied by the seizure of his property under the execution which had issued for that purpose ; by reason whereof the sureties have become liable to pay to the plaintiff the amount of the judgment, or the penalty stipulated in the bond.

Hawthorn and Woods filed their answer to the rule, in which, after excepting to said rule, on the ground that the plaintiff is n<}t competent to maintain it alone, he being a joint obligee with John McCaughan, the plaintiff in the other suit, they deny the allegations of the rule, admitting only as to said obligation what they have admitted of record, and also denying that they are in any wise liable to the plaintiff.

Judgment was rendered below in favor of the plaintiff for the sum of $5000, being one-half of the amount of the bond ; and from this judgment Hawthorn and Woods have appealed.

The appellee has prayed in his answer, that the judgment appealed from may be so amended as to allow him the whole amount of the bond.

On the exception of the appellants, which was overruled below, we think the Judge, a quo, did not err. It has already been stated, that two suits were instituted in the names of two different plaintiffs against the original defendants, in which writs of attach nent were sued out. T ne&e attachments were levied on said defendant’s interest in the steamship JNew York, belonging for one-fourth to the defendant Wright, and under the bond sued on, furnished by the latter with the appellants as his sureties, the property attached was released. The Sheriff took only one bond for the two cases, conditioned that the defendant should satisfy such judgments as might be rendered, &c.; and the bond was assigned by the Sheriff to the plaintiffs in the two actions.

It is perhaps true, that in every suit on a contract or obligation in which more than one obligee is named, it is necessary that all the obligees should join to enforce its performance; but a contract may contain distinct obligations to perform different things in favor of different persons; and in such cases, the obligations being several and unconnected, each obligee has his separate and distinct remedy on the obligation which regards him individually. Civ. Code, arts. 2074, 2076. But it is different when the obligation is contracted for the performance of something for the common benefit of all the obligees. In this case, the suit of Irish had no connection whatever with that of Me-Caughan ; the interest of each is distinct from that of the other, as they sought to obtain distinct and separate judgments against the principal debtor, which judgments, on being respectively rendered in favor of the plaintiffs, the defendants promised to satisfy respectively under the penalty stipulated in the bond. The appellants here, are called upon to satisfy the judgment in favor of Irish; or to pay him the amount of said bond, and we are not prepared to say, that MeCaughan has any sort of interest in the object of his demand. The real obligee in this bond was originally the Sheriff, in whose favor it was made; and we concur with the Judge, a quo, in the opinion that said bond having been by him assigned to the parties, who are respectively to benefit from it, having a distinct and separate interest in the object for which it was taken, it is clearly analogous and may be fairly compared to a bond given by a sheriff, or other officer, for the faithful discharge of his duties, upon which the law allows to the official creditors of such officer, a distinct and separate right of action. Why should MeCaughan join the plaintiff? Nothing shows that any judgment was ever rendered in his favor; and suppose he had never obtained any such judgment as would entitle him to the benefit of the bond, ought the plaintiff to be for ever precluded from exercising his rights upon it, because, forsooth, MeCaughan would never be able to join him? Surely not. The plaintiff’s rights are distinct and separate, and we are of opinion that they may be enforced against the obligors by a distinct and separate suit.

On the merits, it has been contended by the appellants’ counsel, that his clients, as sureties on the attachment bond, are not liable, because the attachment was issued in a suit, the subject matter of which was not a contract, but damages for a tort. Hence, it has been insisted that such a cause of action cannot support an attachment, and that, therefore, the bond given for the property attached is a nullity.

Before investigating the legal question submitted to our solution, and which is one of some importance under our system of legislation, it is proper and even necessary, that we should advert to the-facts relative to the origin of the action, as they appear from the allegations set up in the plaintiff’s petition for an attachment, and inquire into the cause of action upon which his claim for damages was based ; for, if it be true that the amount sued for, though under the denomination of damages for a tort, is claimed by virtue of an obligation which originated ear contractu, and which the defendant became subsequently bound to discharge ex delicto, and if such amount is so certain and so-specific, as to enable the plaintiff to swear expressly to its existence, and to claim it as a debt, or in the nature of a debt, this would undoubtedly be sufficient to authorize the issuing of a writ of attachment.

The petition in this case alleges, that the defendants are justly indebted to the ‘plaintiff in the sum of $>13,333 33, which was originally due him by one Alsbury and others, on two promissory notes, each for the sum of $6666 66|~. That having instituted a suit in the State of Mississippi against his debtors, in which a judgment was expected to be rendered in February, 1842, said Alsbury, to avoid the payment of said debt, and to defeat the process of the court, absconded from said State, and clandestinely ran off his slaves from said State. The petition proceeds to state the facts relative to the negotiation which took place between Als-bury and the defendant Wright, to transport the slaves out of the State of Louisiana on board of the steamer INew York ; adverts to the circumstances which attended the transportation and its object; alleges that the plaintiff vainly resorted to the issuing of a writ of attachment against said slaves, by process issued against Alsbury from the court of the First District ; states further circumstances that followed the suing out of the writ of attachment, and avers, that he has sustained damages to the sum of $13,333 33, for the payment of which, the defendants, Wright, and Haggerty and Morgan, have become liable and indebted, in solido, to the petitioner, with the interest due thereon by the original debtor; wherefore, he prays that judgment be rendered against them accordingly, <fcc. The affidavit ol the plaintiff, upon which the attachment was granted, states, that the defendants therein named a,re justly and truly indebted to him, in solido, in the just and full sum of $13,333 33, which he swears is really due him, &c. This was the amount of the judgment rendered by the court, a qua, in favor of the plaintiff against the defendant, Wright, which was affirmed in this court, (see case of Irish v. Wright et al. decided in' June, 1844,) and which is nothing less than condemning Wright to pay to the plaintiff the amount, of the debt contracted by Alsbury to the plaintiff, and which Wright had, from his unlawful and fraudulent acts in collusion with the debt- or, become liable to discharge by way of damages.

Now, art. 242 of the Code of Practice provides, that “the property of a debtor may be attached in the hands of third persons by his creditors, in order to secure the payment of a debt, whatever may be its nature, whether the amount be liquidated or not, provided the term of payment have arrived, and the creditor, who prays for the attachment, state expressly and positively the amount which he claimsand art. 243 requires the creditor to declare under oath, the amount of the sum due to him. Under these provisions, very broad in their language, can it be seriously contended that the present case should form an exception to the general rule, and that the law-maker has not intended that a creditor should have the benefit of the writ of attachment, when the debt by him claimed is sought to be recovered in the form and nature of damages? Are not the damages claimed in this suit really a debt due by the defendants, as a consequence of their unlawful acts 1 and can it be said, that the claim set up against them, though unliquidated, is not sufficiently certain to enable the plaintiff to swear to its precise amount ? The allegations of his petition, which were subsequently established, show that he had a right to consider the defendant Wright as his debt- or for the whole amount of the debt due by Alsbury, and that the said debt was the foundation of his action ; and if so, we cannot entertain any doubt, that his case came under the provision of the Code of Practice which authorizes a creditor to resort to the writ of attachment, for the purpose of securing the- payment of a debt, whatever may be its nature. A contrary opinion would limit this provision of our law to its most restricted sense or interpretation : when, on the contrary, the will of the legislator appears clearly to be, that it should apply to all sorts or nature of debts, provided the creditor cau state expressly and positively the amount which he claims, and can also swear to the existence of the sum due him. Here, again, the amount claimed as damages was a debt which the plaintiff was seeking to secure and recover; it was expressly and positively stated by him in his petition, and sworn to in his affidavit; and we must conclude, that the attachment which gave rise to the bond sued on, was properly and legally obtained.

This view of the subject renders it necessary to examine the question presented by a comparison of art. 213 of the Code of Practice, in which damages in general are provided for when a writ of arrest is sought to be obtained, with art. 242 above quoted. Cases may arise in which the damages claimed could not be considered as a debt, or in the nature of a debt; and such cases perhaps would not come under the application of the article last referred to. Indeed, this appears to be the jurisprudence of this court, so far as it goes ; and we are not ready to make it undergo any change or modification, so far as it applies to the kind of causes in which this question was settled. But it is worthy of notice, that the cases referred to by the appellants’ counsel, seem to exclude from the attachment law those claims for damages, in which the amount sued for cannot be ascertained, and where such amount is not specific. So, in-1 Mart. 67, the court said, that “ the obvious meaning and import of the expressions of tho law (then under consideration) confine the case, in which bail is demandable, to suits for direct and specific injuries, the amount of which may be ascertained,” &c. Also, in 2 Mart. N. S. 325, it was held, that “ to require that the damages should be ascertained and made specific by the act of the party sued, would be to render the words of the statute (that of 1817) useless, for the moment this liquidation took place, they would cease to be damages and become .a debt." And in 6 Mart. N. S. 564, it was decided, that the law of 1817 did not extend the process of attachment to all cases of damages absolutely, but restricts it to damages ascertained or specific. This jurisprudence is in accordance with our interpretation, in this case, of art. 242, which, we think, applies also to cases in which debts ascertained and specific, are sought to be recovered by way of damages; or in which the damages sued for, the amount whereof is expressly and positively stated and sworn to, are claimed in the nature of a debt.

Having thus disposed of the principal point in controversy, our next inquiry necessarily is, what portion of the amount of the bond is the plaintiff entitled to? The Judge, a quo, was of opinion that,'as the bond had been made for the benefit of two plaintiffs, each of whose claims exceeds $10,000, one of them could not recover the whole amount of the bond, and leave the other without anything in case he should recover judgment against the defendant in his suit; and that, as the bond did not state their respective shares in the obligation, he should apply the rule prescribed by art. 2081 ofthe Civil Code, relative to the liability of joint obligors; and he accordingly divided the amount of said bond in two portions, and allowed one-half thereof to the plaintiff'. We are of opinion that he decided correctly; but as the judgment rendered in this case exceeds the whole amount of the bond ; and as, if the plaintiff had been the only creditor at whose suit the attachment had been sued out, he would have been entitled to the exclusive benefit of said bond, and to the whole amount thereof, we think justice requires, in case it should happen that McCaughan’s action should be defeated, and the bond sued on should become unavailable as to him, that the rights of the plaintiff to the recovery of the balance of said bond should be reserved, so as to permit him hereafter to institute proceedings for that purpose.

It is, therefore, ordered and decreed, that the judgment of the Parish Court be affirmed with costs, reserving to the plaintiff his right to sue for and recover of the defendants and appellants, the urther sum of $5000, due on the bond sued on, in case said bond should hereafter prove to be unavailable as to J. J. McCaughan or his assignees, for whose benefit it was partly executed by said defendants.

T. Slidell, for the appellants,

Hawthorn and Woods, for a rehearing. The appellants, Hawthorn and Woods, the sureties on the attachment bond, are not liable, because the attachment issued in a suit, the subject matter of which was not a contract, but damages for a tort. Such a cause of action cannot support an attachment ; and,' the bond given for the property attached is a nullity.

There is a distinction between the remedy of arrest, and the remedy of attachment. The Code of Pract. art. 213, says :

“ Such arrest may be ordered in all demands brought for a debt, whether liquidated or not, when the term of payment has expired, and even for damages for any injury sustained by the plaintiff either in his person or property.” Art. 242 of the same Code declares that, “ The property of a debtor may be attached in the hands of third persons by his creditor, in order to secure the payment of a debt, whatever may be its nature, whether the amount be liquidated or not, provided the term of payment has arrived, and the creditor, his agent, or attorney in fact, who prays for the attachment, state expressly and positively the amount which he claims.”

In one case the remedy is given for damages as well as debt; in the other case it is given for debt only.

This difference cannot be said to be accidental. It is found in the legislation of this country forty years ago, under the territorial government.

In Martin’s Digest, p. 474, we find the act of 1805, prescribing in what cases a writ of arrest may issue. “ Whenever a petition is filed for the recovery of any debt, or damages on note, bond, contract or open account, or for damages for injury or detention of the property of the petitioner,” &c.

In the same volume, p. 514, and by the statute of the same year, 1805, the remedy of attachment is given only for debt. “ Whenever a petition shall be presented for the recovery of a debt.” p. 512.

Then as now, an arrest would lie not only for debt, but for damages for a tort; but an attachment would lie for a debt only.

The law of 1817 extended, however, the remedy of attachment to certain cases of damages. At page 26, (Statutes of 1817,) it was prescribed in all actions where the sum due is one hundred dollars or upwards, whether upon bond, bill of exchange, promissory note, or liquidated account, and in every case where the amount of the debt, damages, or demand is ascertained and specific, the plaintiff may have an attachment, <fcc.

Same Case. — On a Re-i-ieariNG.

But the Code of Practice, repealing the law of 1817, restored the old law, and while it provided the writ of arrest both for debt and damages for wrongs, gave the writ of attachment for debt only.

The French text of art. 242, which will be found to be the same in that respect with art. 213, shows that the words “ whatever may be its nature,” in the latter article refer to the fact of the debts being liquidated or not.

Art. 213. Cette arrestation peut étre ordonnée pour toute espéce de dettes échues liquides ou non liquides, et méme pour tons dommages et intéréts qui seraient reclames par le deman-deur pour un tort qui aurait été causé á sa person ne ou dans ses biens.

Art. 242. On peut faire une saisie arret pour paiement de toute espéce de dettes liquides ou non liquides, pourvu qu'elles soient échues, et que le créan-cier qui sollicite saisie-arrét, ou son agent ou fondé de pouvoir, allegue d’une maniere expresse et positive qu’elle est la sornme qu’il reclame.

This provision, as to'liquidation, was introduced from the fact, that the point had been disputed whether any thing but a liquidated indebtedness would sustain an attachment. See Sergeant on Attachment, p. 44 to 51.

The correctness of this position will be found in the origin of our attachment law. This remedy was derived from the other States of the Union. Of the truth of this assertion the phraseology of the statute of 1805, and especially the form and language of the writ prescribed therein, (Martin’s Digest, p. 514,) furnishes abundant internal evidence. There, a debt is inseparable from a contract, and without a contract cannot be created ; Sergeant on Attachment, p. 51 ; and an attachment in an action for a demand ex delicio, is unknown. See the cases collected in Wharton’s Digest of Pennsylvania Reports, to wit: 2 W. C. C. R. 382, Sergeant on Attachment, 44 and 45, 2 Br. Appx. 28, S. P. 2 Br. 02, 5 S. & R. 450, 1 M. 312. In the last case the attaching creditor sued upon a claim which arose thus : A. had stolen from the agent of a bank a quantity of notes, and it was held that the bank could not maintain against A. a foreign attachment for the amount thereof, because the foundation of the claim is ex delicto. The counsel for plaintiff argued that “the act of Assembly granting the writ is a remedial Jaw, and should receive a liberal construction. Section 3d has the words ‘ debt or other demand.’ ” But the court, after disposing of other points in the cause, proceeds to say: “ Bat we do not decide these questions. An insuperable difficulty in the plaintiff’s way arises from the act of 1705. The < use of the process of attachment for the com ueucement of an action, is not commensurate with that of summons, it is limited in respect to persons, to non-residents, and iu respect to the cause of action, to debts contracted or owing, which, by the interpretation of the courts, is extended to all actious arising ex contractu, but no further. The cause of action shown in this case is not of this description. The action of debt is founded upon an express contract, and it lies hv reason of a breach of contract. 1 Esp. Dig. 172 2 Dali. 173. 2 Rolle’sRep. 44. 2 Wash. C. C. Rep. 386. 2 Browne’s Rep. appx. 38. In this case the action arises ex delicto, from a tort committed under circumstances and with an intent which amounts to crime. It is not an answer to say that the plaintiff may waive the tort. Perhaps he may do so, as it respects the action, (although that is a point which we do not decide,) still he cannot do so as it respects this process. The reason is, the act of 1805 does not apply to the form of the action, but to the cause of the action. The form of the action may be debt, indebitatus assumpsit, or on the case, but the cause of the action must arise from a contract.”

So in New York, a demand, ex delicto, will not support a foreign attachment. 3 Gaines’ Reports, 258.

The court has at all times held, that the remedies of arrest and attachment, being onerous, must be strictly construed.

Iu 1 Martin, 65, is the case of a writ of arrest issued in a suit claiming da nages for slander. The law of 18U5 allowed an arrest for “damages or injury to or detention of the property of the petitioner.” The arrest was set aside, because such damages as were claimed were not within the statute, being damages for an injury to the person.

In 2 Mart. N. S. 325, the court again recognized that some cases of damages were without the statute.

In 6 Mart. N. S. the court refused to sustain an attachment in an action for slander. “ Some cases of damages are certainly excluded. The exclusion does not appear to us too broad,, and it is necessary to give effect to the words of the legislator.”

In 3 Robinson, 233, the court said, “ We are by no means disposed to r..lax any thing of the strictness and rigor with which we have heretofore construed our attachment laws. The remedy they provide, is iu itself, a harsh and extraordinary one, and those who resort to it, have no right to complain if they are held to a strict compliance with all the requirements of our statutes on the subject.” See also 8 La. 586.

So in 3 La. 18, the court said, “ Whatever may be the general doctrine of nullity, relating to contracts or judicial proceedings, in ordinary cases, it is believed that in the extraordinary remedy by attachment, all the forms prescribed by law must be strictly pursued, on pain of nullity as a consequence of their neglect.”

The court admits, that the main action against Wright was an action for damages sustained by the tortious conduct of Wright. But it argues, that the damages were sustained by the plaintiff with reference to a debt due to him by Alsbury. Wright was alleged to have assisted Alsbury in evading an attachment issued against his property. Because his attachment was evaded, plaintiff alleged that he failed to collect his debt of Alsbury, and that Wright by his co-operation, in the evasion of the attachment, made himself responsible to the extent of the debt. The court does not of course say, that the conduct of Wright amounted in ■law, to a contract to assume Alsbury’s debt, but that the law inflicts upon him, a responsibility in damages for the wrong done. Do those damages arise from contract, or ex delicto ? If from the former, the remedy by attachment is given, if from the latter, it is not.

2d. If the bond be not a nullity, what is the liability of the sureties to the plaintiff in this suit? Two attachments having-been levied simultaneously on the same property by the two plaintiffs, Irish and McCaughan, one bond of $10,000 was given, conditioned to satisfy such judgment as might be rendered in the two suits. Both plaintiffs were therefore interested in this bond. What is the nature of this interest ?

The court below decreed, that each was interested for one moiety, or $5000 under the art. 2081 of the Civil Code. This court says the article was properly applied by the Parish Judge. If so, how is this reconcileable with the decision which gives Irish a contingent residuary interest in the remaining $5000, if not hereafter absorbed by a successful result of McCaughan’s suit ? If the article 2081 determines the nature of the obligation, Irish has no interest beyond the virile share.

Irish’s suit was for $13,333 33; McCaughan’s for $15,000. The bond was so taken by consent of both plaintiffs, as appears by the endorsement of their counsel on the bond itself. The natural inference is, that they were to share pro rata. If so, Irish was .not entitled to as much as $5000, or one moiety. Yet this amount is now absolutely awarded to him, in a proceeding to which, notwithstanding the exception of appellants, McCaughan was not made party.

Should McCaughan recover a judgment for his whole claim, to wit, $15,000, receiving but $5000, the residue of the bond, he will obtain a less dividend than Irish. Yet the property was in custodia legis for the benefit of both, by process simultaneously levied. How is this case distinguishable from a case of insolvency, where the property is in custody of law for the benefit of creditors ? There, the division is not made by virile shares, but pro rata. How is the case distinguishable from a seizure under two writs of execution simultaneously levied? Certainly in such a case, the distribution would be pro rata.

“ The bond is a substitute for the property.” Dorr v. Ker-shaw, 18 La. 58. In the analogous case of a twelve month bond for property sold under execution, 1 Robinson, 397, the court said; It is clear, that this bond in the hands of the marshal, represented the whole price of the property sold, and belonged to the several parties having an interest in it, according to their right in the property itself.”

If the interest of the parties be for virile shares, the reservation to Irish of a residuary interest is erroneous. If it be a bond available according to the amounts claimed pro rata, judgment has been given for too much. If it be a bond whose amount is distributable pro rata, according to the claims of the parties as finally adjudged, then an ex parte application was irregular and the proceeding premature.

Simon, J.

Our object in granting a re-hearing in this cause, was mainly to afford us an opportunity of reviewing our decision on the question whether, under art. 242 of the Code of Practice, an attachment could properly and legally issue on a cause of action not originating in a contract, but based upon a claim for damages? We have attentively re-examined this important question; and although we were originally impressed with the idea that the plaintiff’s demand in the case in which the bond sued on was given, though sounding in damages, was virtually for the payment or recovery of a debt due to him by the party who, from his unlawful act, had become responsible for its amount, and bound to discharge it by way of damages, we must confess that we are not sufficiently satisfied with our previous opinion, and that, were it not that the consideration of another question raised in the cause, has brought us to the conclusion that our first judgment ought not to be changed, we should have felt inclined to overrule it, and to decide that the attachment originally issued, had been illegally and improperly sued out. The question is therefore left open, as not definitively settled, and we shall now proceed to give our reasons why we think that, whatever be its solution, the defendants and appellants are now precluded from availing themselves of the exception upon which it is based.

The defendants being sued as the sureties of Wright, the principal obligor in the attachment bond, we have ascertained that the in suit instituted by the plaintiff against Wright, in which the attachment was issued, the same exception was pleaded by the latter and his co- defendants, as one of the grounds upon which they attempted to obtain the release of said attachment. On referring to the record of the attachment suit, we have found that a rule was obtained by Wright, on the 11th of January, 1842, on the plaintiff, to show cause why the attachment should not be set aside, on the ground, among others, that the attachment had been illegally issued ; on the next day, another rule was taken by the defendant to be permitted to bond the property attached, without prejudice to the first rule; this was granted in the 14th, and the bond sued on was subsequently furnished accordingly. On the 12th of February the trial of the exception came on before the inferior court, which, being of opinion “ that an attachment could issue on the claim set forth in the ‘plaintiff’s petition, Code of Pract-art. 242,” overruled the exception, and maintained the attachment in its full legal effect. An appeal was taken from the judgment rendered on the merits against Wright, and the case having been brought before this court, the question was renewed and insisted on by the appellant’s counsel, orally and in writing ; when it was decided, that the objection come too late, as the case was at issue on its merits, and the property attached bonded. See the case of Irish v. Wright et al., decided in June, 1844. The defendant’s counsel, however, made an application fora re-hearing on the same point, suggesting the fact, that the property was bonded without prejudice to his rights in the rule for dissolution ; but it was refused, as it was then considered that said defendant having filed his answer to the merits on the first of February, about twelve days previous to the action of the lower court on the exception and to the judgment rendered thereon, his said answer was a waiver of the exceptions by him previously pleaded. Thus, both courts have already passed upon this exception as to the principal obligor, and the question occurs; can it now be renewed and set up by his sureties ? or, in other words, is it not res judicata against the latter, as well as against Wright?

We think it is. It is clear that the judgment rendered against the principal obligor, overruling an exception upon which the validity of the bond sued on depended, and therefore the liability of the parties thereto, has acquired the force and effect of res judi-cata ; it was definitive at the time this suit was instituted, with regard to Wright, and has become so with regard to all other parties therein interested, by the elapsing of the time allowed by law for appealing therefrom. The defendants did not even plead the exception in the lower court; the question was not raised there , and it was only on their appeal before this court, that they made the suggestion that the attachment, in consequence of which the bond sued on was given, had been illegally issued, as the plaintiff’s claim was one in damages for a tort.

Now, it is a well recognized doctrine that the obligation of a surety, not existing without that of a principal obligor, the contract of suretyship must be governed by the extent of the obligations of >the principal debtor ; it cannot exceed the amount due under the principal contract, nor can it be contracted under more onerous conditions j and it follows, therefore, that if a judgment be rendered in favor of the principal debtor against the creditor, such judgment must have the force of res judicata in favor of the surety, provided it be not the result of personal exceptions which such principal debtor alone may be entitled to plead. u On a done consideré, says Toullier, Vol. 10, No. 209, la caution com-me etant la méme partie que le débiteur a Végard de tous les jugemens qui la rendent moins onéreuse.” In No. 210, he says: “ Vice versa, lejugement rendu contre le débiteur enfaveur du eré-ancier peut étre oppose d la caution, et declaró exécutoire contre elle; mais elle peut s’en porter appelante.” Such is the opinion of Pothier, Obligations, Vol. 2, p. 299, No. 61, who considers that the obligation of a surety, depending upon that of the principal debtor, to which it is a mere accessory, such surety ought to be viewed as being the same party with such principal debtor, with regard to all that may be judicially decided (jugé) for or against the principal obligor. See also ff. 1. 21, § 4, De except, xeijud. Civ. Code, arts. 3006, 3029, This doctrine is very clear, and is fully applicable to this case, for, if it were otherwise, we would have here the anomaly, as has been well remarked by the plaintiff’s counsel, that by the judgment against the defendant, the attachment would be maintained, and the property seized made liable for its satisfaction; and yet the bond which represents the property would be declared to be a nullity, and the sureties discharged. This cannot receive our sanction; and we must hold the appellants liable under the judgment rendered ill favor of the plaintiff against the principal debtor; said judgment having the force of res judicata against all the parties therein concerned.

With regard to the reservation made in our first judgment in relation to the other half of the amount of the bond sued on, in case it should not be recovered by M’Caughan, we see no reason why it should not be maintained. It seems to us that, as we have already said, if the plaintiff had been the only creditor at whose suit the attachment had been sued out, he would be entitled to the exclusive benefit of the bond, and to the whole amount thereof, and that he ought not to be deprived of such benefit, if it turns out subsequently that M’Caughan cannot recover the portion reserved for him in consequence of his attachment. Such portion would have accrued to the plaintiff in this suit, if M’Oaughan had not sued out his simultaneous attachment; it is not sufficient to satisfy the plaintiff’s judgment; the bond represents the property attached, and the principal defendant cannot have any right to recover any part of the property attached, or be dispensed from paying any part of the amount of the bond, unless there be a surplus over and above the sum to be recovered.

It is, therefore, ordered that our first judgment remain undisturbed.  