Dussol v. Bruguiere
Before: Coubti
Synopsis
Liability of Sureties on Note.—If the maker of a promissory note, as collateral security for its payment, assigns personal property to the payee, and, as additional security, third persons sign the note as sureties, the liability of the sureties becomes fixed at the time the collateral security is exhausted.
Limitation of Actions as to Sureties.—The liability of sureties on a promissory note is not discharged by the Statute of Limitations until four years after their liability becomes fixed.
Joint Action by Sureties.—When several are sureties, and all but one pay the whole sum for which all became liable, those who pay may maintain a joint action for contribution against the one who failed to pay his proportion, provided they jointly paid the money.
Joinder of Executor with others in an Action.—If one of several sureties dies, his executor may be joined with a part of the sureties in an action against another for a contribution.
When Executob may Sue.-—If one of two sureties dies, and his executor pays all the money for which both became liable, without having the claim allowed in the Probate Court, he, as executor, can recover the demand for a contribution from the other surety.
By the Coubti 1. Michels and the others were sureties—their liability, from the peculiar language in which it is couched, becoming fixed, at the time the collateral security was exhausted, that is, September 29, 1865.
2. Being sureties, the Statute of Limitations would not operate to discharge them until the lapse of four years from the 29th of September, 1865, and when, on the first day of February, 1869, the plaintiffs paid the debt to Guy, they did not pay a demand which had been discharged by the operation of the Statute of Limitations, or which, for any reason appearing in the complaint, they were not under obligation to pay.
3. The objection that the plaintiffs should have sued separately is answered by the allegation found in the complaint as amended, that the plaintiffs “jointly laid out and expended a joint sum of money” in making the payment in question.
4. The fact that Chevassus is the executor of Bene, and sues in autre droit, while the others sue in their own right, does not amount to a misjoinder of parties plaintiff.
5. Nor was it necessary to aver that the claim of Guy had been presented to the executor of Bene. If, as executor, he united in the payment of the claim without requiring its presentment in advance, while he might upon settlement of his accounts with the Probate Court be chargeable with [460]the sum so paid, it is a matter of no concern to the defendant.
Judgment reversed and cause remanded, with directions to overrule the demurrer to the complaint.
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