Morgan v. Coffman

8 La. Ann. 56

• Court: Supreme Court of Louisiana
• Decided: February 15, 1853
• Status: Published

Opinion

Dunbar, J.

This is an injunction sued out by the administrator of Charles Horga/n, deceased, to restrain the defendant from proceeding- upon an execution issued on a twelve months’ hond given in the case of Coffman v. Williams, by John V. Gresup, as principal, and Charles Morgan, deceased, as surety. The plaintiff alleges that the surety has been released by the giving of time to Gresup, the principal, by Coffman, without the consent of the surety. The District Judge made the injunction perpetual, and the defendant has appealed.

It appears from the evidence of the Sheriff of the Parish of Pointe Coupee, that, on the 19th of July, 1849, he had in his hands an execution issued on the above twelve months’ hond, against Ch'esup and his sureties, and on the same day, he was about to levy the said execution, in company with IT. C. Hudson, the attorney-at-law of Coffman, when they met with Cresup, the principal on said bond, and demanded payment of the execution, who told them that he had funds with Messrs. Fellowes, Johnson & Co., of New Orleans, and would give a draft on them for the amount. That Mr. Hudson took the draft as proposed, on Fellowes, Johnson & Co., payable to his own order, on the first day of November thereafter, and ordered the execution to be returned, which was accordingly done. It further appears, that the draft was endorsed by Hudson without recourse, and forwarded to Coffman, who having kept it aalong“time, in the language of the witness, returned it to him, who produced it on the trial of the cause, the same never having been accepted or paid by Fellowes, Johnson & Go., one of whom, in his deposition in the case, declares that Gresup had no funds in their hands and had no right whatever to draw on them.

Under this statement of facts, we think the surety is discharged. If Goffman did not approve of the return of the execution ordered by his attorney, and the taking of the draft which was forwarded to him, he should immediately have dissented and ordered another execution; his long acquiescence in this arrangement must be considered as a prolongation of the term granted to the principal debtor without the consent of the surety, which operates a discharge of the latter. Civil Code, Art. 3032. See also the case of John R. Sham & Co. v. John Nolan, ante p. 25.

The judgment of the District Court is, therefore, affirmed, with costs.