Clements v. Cassilly

4 La. Ann. 380

• Court: Supreme Court of Louisiana
• Decided: June 15, 1849
• Status: Published

Opinion

The judgment of the court was pronounced by

Seideia, J.

An attachment having been levied upon the property of the defendant, a bond was given to release it, which was signed by Fullerton, as surety. Cassilly, Wooden and Babcock were named as the principals in the bond, but Wooden was the only one of the principals who signed. Judgment having been rendered against Wooden alone, and a. fieri facias having been taken out against him without success, a rule was taken against Fullerton to show cause why he should not be condemned to pay the amount of the judgment. The district judge discharged the rule, and the plaintiff has appealed.

We are of opinion that the surety is not bound'upon this bond, Cassilly and Babcock, the proposed principals, not having signed it; and there being no evidence to show that the surety would have any recourse against them if he paid the money, or to destroy the presumption that he expected them to be bound as principals. See Wood v. Washburn, 2 Pick. 24. Bean v. Parker, 17 Mass. 591.

Judgment affirmed.