Слике страница
PDF
ePub

CHAPTER 2.

Of the Effects of Suretyship.

SECTION 1.

Of the Effects of Suretyship between the Creditor and the Surety.

ART. 3045. [3014.]-The obligation of the surety towards the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.

C. C. 2094 (2089), 3051 (3020), 3066 (3035), 3403 (3366); C. N. 2021; 2 M. 336; 5 M. 366; 11 M. 434; 1 N. S. 478; 3 R. 258; 1 A. 254; 2 A. 830; 3 A. 365; 9 A. 421; 12 A. 645; 15 A. 522; 21 A. 443, 727; 22 A. 42; 24 A. 335, 469. Acts 1859, p. 174.

ART. 3046. [3015.]-The creditor is not bound to discuss the principal debtor's property, unless he should be required to do so by the surety, on the institution of proceedings against the latter.

C. C. 3035 (3004), 3047 (3016), 3051 (3020); C. N. 2022; 5 M. 366, 674; 6 M. 562; 9 M. 385; 12 M. 378; 1 N. S. 478; 14 L. 165; 1 R. 15; 5 A. 688; 14 A. 645; 18 A. 651; 22 A. 42; D. Sec. 3725.

ART. 3047. [3016.]-The surety who does require the discussion is bound to point out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried into effect.

He must not point out the property of the principal debtor situated out of the State, nor the property which is in litigation, nor that which is mortgaged for debt, and no longer in the possession of the debtor.

C. C. 3046 (3015), 3404 (3367); C. N. 2023; C. P. 72; 7 N. S. 195; 13 L. 274; 1 R. 15; 3 A. 674; 13 A. 196; 18 A. 651; 22 A. 42.

ART. 3048. [3017.]-When the surety has pointed out property in the manner directed in the foregoing article, and has furnished a sufficient sum to have the discussion effected, the creditor is, to the amount of property pointed out, responsible to the surety for the insolvency of the principal debtor, provided it has occurred through. remissness in commencing proceedings.

C. N. 2024; 3 A. 674.

ART. 3049. [3018.]-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 insolvency of any of them.

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.

C. N. 2025, 2026; 15 L. 50; 4 A. 273; 9 A. 422; 12 A. 630; 14 A. 645.

ART. 3050. [3019.]-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 action.

C. N. 2027; 15 L. 50; 4 A. 273.

ART. 3051. [3020.]-The creditor may include in the same suit, both the debtor and the surety. If he obtains judgment against both, the surety who is entitled to the benefit of discussion, may insist that the judgment shall be first executed against the principal debtor.

C. C. 3046 (3015); C. P. 304; 1 R. 15; D. Sec. 19, 37, 107, 355, 1476, 2354, 2417, 3715, 3724, 3725, 3857. Acts 1871, No. 4.

SECTION 2.

Of the Effects of Suretyship between the Debtor and the Surety.

ART. 3052. [3021.]-The surety who has paid the debt, has his remedy against the principal debtor, whether the security has been given with or without the knowledge of the debtor.

This remedy takes place both for the principal and interest, and for the costs which the surety may have been sentenced to pay; but with regard to the costs, the remedy of the surety begins only from the day he has given notice to the principal debtor, that a suit was commenced against him.

C. C. 1941 (1936), 2161 (2157); C. N. 2028; 19 L. 385; 5 A. 312; 13 A. 249; 20 A. 199.

ART. 3053. [3022.]-With regard to that remedy, the surety has the same right of action and the same privilege of subrogation, which the law grants to co-debtors in solido.

C. C. 2161 (2157); C. N. 2029; 5 A. 312; 15 A. 522; 20 A. 199. ART. 3054. [3023.] — When there exists several principal debtors in solido for the same debt, he who became a surety to them all, has his remedy against each of them for the whole amount of what he may have paid,

C. N. 2030; 9 A. 419.

ART. 3055. [3024.]-The surety has no remedy against the principal debtor, who has paid a second time for want of being warned by the surety of the payment made by him. But the surety may have his action against the creditor for his reimburse

ment.

C. N. 2031.

ART. 3056. [3025.]-When the surety has paid without being sued and without informing the principal debtor, he shall have no recourse against the latter, provided that, at the time of payment, the debtor was in possession of such means as would have enabled him to have the debt declared extinct; but in this case the surety has recourse to the creditor for restitution.

C. N. 2031; 13 L. 142; 7 A. 569; 21 A. 722, 725; 24 A. 564.

ART. 3057. [3026.]-A surety may, even before making any payment, bring suit against the debtor to be indemnified by him: 1. When there exists a lawsuit against him for payment.

2. When the debtor has become a bankrupt, or is in a state of insolvency.

3. When the debtor was bound to discharge him within a certain time.

4. When the debt has become due by the expiration of the term for which it was contracted.

5. At the expiration of ten years, when the principal obligation is of a nature to last a longer time; unless the principal obligation, such as that of guardianship, be of a nature not to be extinguished before a determinate time.

C. C. 3058 (3027), 3544 (3508); C. N. 2032; 5 M. 674; 10 M. 196; 3 N. S. 575; 7 N. S. 590; 11 L. 418; 13 L. 142; 16 L 133; 19 L. 385; 4 R. 422; 2 A. 469; 3 A. 681; 10 A. 648; 14 A. 645; 18 A. 651; 22 A. 335.

SECTION 3.

Of the Effects of Suretyship between the Sureties.

ART. 3058. [3027.]-When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.

C. C. 2161 (2157), 2162 (2158), 3057 (3026); C. N. 1252, 2033; 2 R. 426; 2 A. 334; 10 A. 7; 15 A. 206, 207; 18 A. 549.

CHAPTER 3.

Of the Extinction of Suretyship.

ART. 3059. [3028.]-The obligation which results from a suretyship, is extinguished by all the different modes in which other obligations may be extinguished; but the confusion which results in case the principal debtor or his surety should become

heirs one to the other does not extinguish the action of the creditor against the person who has become the surety of the surety. C. C. 3069; C. N. 2034, 2035; 15 A. 428.

ART. 3060. [3029.]-The surety may oppose to the creditor all the exceptions belonging to the principal debtor, and which are inherent to the debt; but he can not oppose exceptions which are personal to the debtor.

C. C. 3036 (3005), 3299 (3266); C. N. 2036; 14 L. 183; 2 A. 123, 160, 591; 10 A. 124; 15 A. 39, 428; 16 A. 445.

ART. 3061. [3030.]-The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.

C. C. 2161 (2157); C. N. 2037; 3 N S. 598; 3 L. 352; 6 L. 514; 9. L. 12; 1 R. 212, 528; 4 R. 506; 6 R. 47; 12 R. 206; 2 A. 188, 427, 940; 3 A. 674; 5 A. 266; 12 A. 630; 13 A. 63; 14 A. 259, 645; 15 A. 61, 594; 16 A. 357, 445; 18 A. 651; 23 A. 438.

ART. 3062. [3031.]-The voluntary acceptance on the part of the creditor, of an immovable or any other property, in payment of the principal debt, is a full discharge of the surety, even in case the creditor should be afterwards evicted from the property so accepted.

C. N. 2038.

ART. 3063. [3032.]—The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.

C. C. 2198 (2194), 3037 (3006), 3061 (3030); C. N. 2039; 4 M. 639; 3 N. S. 598; 7 N. S. 13; 8 N. S. 278; 4 L. 294, 407; 16 L. 218; 18 L. 470; 19 L. 211; 3 R. 299; 4 R. 33, 276; 5 R. 249; 6 R. 399; 9 R. 240; 10 R. 412; 11 R. 33, 38; 1 A. 192; 14 A. 93, 260; 15 A. 61, 522; 21 A. 636.

CHAPTER 4.

Of the Legal and Judicial Sureties.

ART. 3064. [3033.]-Whenever a person is bound by law, or by a judgment, to give a surety, he must present one who has the qualifications required in article 3042.

C. C. 3042 (3011), 3035 (3004); C. N. 2040; 3 A. 619; 6 A. 326; 22 A. 263. D. Sec. 1207, 1208. Acts 1855, p. 365.

ART. 3065. [3034.]-The person who can not give a surety is admitted to give a pledge or other satisfaction sufficient to secure the debt, provided that the thing given in pledge may kept without difficulty or risk.

be

He may also deposit in the hands of the public officer, whose duty it is to receive the surety, the sum for which he is required to furnish a surety.

C. C. 1041 (1034); C. N. 2041; 2 A. 132.

[ocr errors]

ART. 3066. [3035.]—A judicial surety can not demand the discussion of the property of the principal debtor.

But no suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.

The mode of proceeding against sureties on official bonds, is prescribed by special laws.

(Am'd.) C. C. 3045 (3014); C. N. 2042; C. P. 235, 259, 579, 596; 12 M. 79; 3 N. S. 575; 6 N. S. 495; 9 L. 227; 19 L. 497; 9 R. 45; 10 R. 130, 191; 11 R. 266; 1 A. 122; 10 A. 753; 13 A. 430; 14 A. 235; 18 A. 305; 21 A. 443. D. Sec. 3722, 3723, 3724, 3725, 3726, 3727, 3728, 3729, 3736. Acts 1855, pp. 365, 398, § 3. Acts 1866, February 17.

ART. 3067. [3036.]-The person who has become the surety of the judicial surety, can not demand the discussion of the property of the principal debtor nor of the surety.

C. N. 2043.

ART. 3068. [3037.]-The effects of judicial suretyship are determined in the laws regulating judicial proceedings.

1 A. 122; 3 A. 37; 14 A. 235; 21 A. 443. Acts 1855, p. 81.

ART. 3069. Sureties on the bond of any administrator, executor, curator or tutor, shall have the right to be released from any further liability on such bond, by causing their principal to be cited into the court having jurisdiction over the appointment of such administrator, curator, executor, or tutor, by petition, setting forth their fears that such administrator, curator, executor or tutor is mismanaging the property under his charge, and that they are in danger of being injured seriously by his conduct, and praying that he shall be required to give new security.

(New Article.) C. C. 3059 (3028); D. Sec. 16, 1473, 3716, 3737, 3858. Acts 1859, p. 174.

ART. 3070. On due proof. being made of maladministration by any curator, administrator, executor or tutor cited, the court shall require him to give a new bond, with other sufficient security, for the faithful administration of the property; and upon failure to do so within three days after such order, he shall be . forthwith removed from the administration thereof, and the judge shall proceed at once to the appointment of another curator, administrator, executor or tutor, who shall be required to give security in manner and form as now required by law; and this being done, the former sureties on the bond shall be released from all liability for any maladministration of such administrator, curator, executor or tutor, from and after execution of the new bond with security as aforesaid.

(New Article.) C. C. 303 (323), 1158 (1149). D. Sec. 17, 1817, 1474, 3717, 3738, 3859. Acts 1855, p. 174.

« ПретходнаНастави »